Chardon Rubber Co.

CHARDON RUBBER CO. 1189 Chardon Rubber Company and United Steelworkers of America, AFL–CIO. Case 8–CA–32420 September 20, 2001 DECISION AND ORDER BY MEMBERS LIEBMAN, TRUESDALE, AND WALSH Pursuant to a charge filed on May 21, 2001, the Gen- eral Counsel of the National Labor Relations Board is- sued a complaint on June 8, 2001, alleging that the Re- spondent has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act by refusing the Union’s re- quest to bargain following the Union’s certification in Case 8–RC–16104. (Official notice is taken of the “re- cord” in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, with affirmative defenses, admitting in part and denying in part the allegations in the complaint. On July 2, 2001, the General Counsel filed a Motion for Summary Judgment. On July 9, 2001, the Board is- sued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer, the Respondent admits its refusal to bar- gain but attacks the validity of the certification on the basis that shift leaders were improperly excluded from the bargaining unit in the representation proceeding.1 1 The Respondent’s answer also denies that the certified unit is ap- propriate. The Respondent, however, stipulated that this unit was ap- propriate in the underlying representation proceeding. Any questions regarding the appropriateness of the unit could and should have been raised in the representation proceeding. Playhouse Square Foundation, 291 NLRB 995 fn. 1 (1988), enf. denied on other grounds 942 F.2d 369 (6th Cir. 1991). 2 By way of an affirmative defense, the Respondent asserts that the charge did not name the proper employer as a party and was not prop- erly served. Although the charge contained a typographical error in the Respondent’s name, the correct name and address were listed in the affidavit of service and the Respondent was correctly identified in the complaint. In addition, the Board has long held that procedural re- quirements regarding proof of service should be liberally construed, and that when charges have in fact been received, technical defects in the form of service do not affect the validity of service. Control Ser- vices, 303 NLRB 481 (1991), enfd. mem. 961 F.2d 1568 (3d Cir. 1992). The Respondent further asserts that the Regional Director improp- erly shifted the burden to the Respondent to show that the shift leaders were not supervisors, contrary to NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001). The hearing officer in his report on challenged ballots thoroughly analyzed the evidence presented by the Union to establish that the shift leaders are supervisors. He did not shift the burden of proof on this issue to the Respondent. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding.2 We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, an Ohio corpo- ration with an office and place of business located in Alliance, Ohio, has been engaged in the operation of a rubber injection molding facility where it fabricates parts for the appliance industry. Annually, in the course and conduct of its business, the Respondent sells and ships products valued in excess of $50,000 directly to points located outside the State of Ohio. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held October 6, 2000, the Un- ion was certified on March 19, 2001, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees employed at the Employer’s 15825 Armour Road, Alliance, Ohio facility, but excluding all managerial employees, office clerical employees, confidential employees, profes- sional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain About April 2, 2001, the Union, by letter, requested that the Respondent recognize and bargain, and, about 3 The Respondent’s requests that this matter be dismissed and that it be awarded its costs, attorneys’ fees, and any other relief are therefore denied. 335 NLRB No. 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190 April 12, 2001, the Respondent refused.4 We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after April 12, 2001, to recognize and bargain with the Union as the exclusive collective- bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Chardon Rubber Company, Alliance, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Steelworkers of America, AFL–CIO, as the exclusive bargaining repre- sentative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 4 The Respondent admits that by letter dated April 2, 2001, the Un- ion requested it to recognize and bargain, and that by letter dated May 15, 2001, it refused. The Respondent denies that by letter dated April 12, 2001, it acknowledged the Union’s April 2, 2001 letter and implic- itly refused to bargain. The Respondent’s April 12 letter, which the General Counsel attached to its motion, clearly states that “we have received your letter dated April 2, 2001 regarding your request to schedule negotiations. We are continuing to consider our options and will communicate with you regarding how we decide to respond.” The Respondent has not contested the authenticity of this document. In these circumstances, we find that the Respondent has effectively re- fused to bargain with the Union since April 12, 2001, as alleged in the complaint. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees employed at the Employer’s 15825 Armour Road, Alliance, Ohio facility, but excluding all managerial employees, office clerical employees, confidential employees, profes- sional employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Alliance, Ohio, copies of the attached no- tice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respon- dent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since April 12, 2001. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with United Steel- workers of America, AFL–CIO, as the exclusive repre- sentative of the employees in the bargaining unit. 5 If this Order is enforced by a judgment of the United States court of appeals, the words in the notice “Posted by Order of the National Labor Relations Board’’ shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ CHARDON RUBBER CO. 1191 WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: All production and maintenance employees employed at our 15825 Armour Road, Alliance, Ohio facility, but excluding all managerial employees, office clerical employees, confidential employees, professional em- ployees, guards and supervisors as defined in the Act. CHARDON RUBBER COMPANY