DCM Mfg., Inc.

326 NLRB No. 83 1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. DCM Mfg. Inc., a Wholly Owned Subsidiary of Drei- son International, Inc. and (UNITE!) Union of Needletrades, Industrial & Textile Employees, Cleveland Joint Board. Case 8–CA–30002 September 11, 1998 DECISION AND ORDER BY MEMBERS LIEBMAN, HURTGEN, AND BRAME Pursuant to a charge and amended charge filed on June 23 and 26, 1998, respectively, the Acting General Coun- sel of the National Labor Relations Board issued a com- plaint and notice of hearing on July 9, 1998, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union's request to bargain following the Union's certification in Case 8–RC–15695. (Official notice is taken of the “rec- ord” 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 defenses, admitting in part and denying in part the allegations in the complaint. On August 5, 1998, the Acting General Counsel filed a Motion for Summary Judgment. On August 10, 1998, the Board issued 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 of its objections to the election in the representation proceeding. 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. 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.1 On the entire record, the Board makes the following 1 The Respondent's motion to dismiss the General Counsel's motion and its demand that the complaint be dismissed is therefore denied. FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, an Ohio corpo- ration, with an office and place of business in Cleveland, Ohio, has been engaged in the manufacture of parts that are used in trucks, buses, and military vehicles.2 Annually, the Respondent, in conducting its business operations, sells and ships from its Cleveland, Ohio fa- cility, goods valued in excess of $50,000 directly to points 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 March 20, 1998, the Union was certified on June 1, 1998, as the exclusive collective- bargaining representative of the employees in the fol- lowing appropriate unit: All production and maintenance employees employed by DCM Mfg., Inc. at its 4540 West 160th Street, Cleveland, Ohio facility, including material handlers, inspectors, machine maintenance, building mainte- nance, assembly, machine operator, welders, lead per- sons, quality control, and R & D technicians, but ex- cluding all office clerical employees, inside sales em- ployees, professional employees, guards and supervi- sors 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 By letter dated June 12, 1998, the Union requested that the Respondent recognize and bargain, and, by letter dated June 17, 1998, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to recognize and bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after June 17, 1998, 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 2 The description of the Respondent's business is as set forth in its answer. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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, DCM Mfg., Inc., a Wholly Owned Subsidi- ary of Dreison International, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with (UNITE!) Union of Nee- dletrades, Industrial & Textile Employees, Cleveland Joint Board, as the exclusive bargaining representative 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. (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 by DCM Mfg., Inc. at its 4540 West 160th Street, Cleveland, Ohio facility, including material handlers, inspectors, machine maintenance, building mainte- nance, assembly, machine operator, welders, lead per- sons, quality control, and R & D technicians, but ex- cluding all office clerical employees, inside sales em- ployees, professional employees, guards and supervi- sors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Cleveland, Ohio, copies of the attached notice marked “Appendix.” 3 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent and main- 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent 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 Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since June 17, 1998. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. September 11, 1998 Wilma B. Liebman, Member Peter J. Hurtgen, Member J. Robert Brame III, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with (UNITE!) Union of Needletrades, Industrial & Textile Employees, Cleve- land Joint Board, as the exclusive representative of the employees in the bargaining unit. 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 NOT, 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 bargaining unit: All production and maintenance employees employed by us at our 4540 West 160th Street, Cleveland, Ohio facility, including material handlers, inspectors, ma- chine maintenance, building maintenance, assembly, machine operator, welders, lead persons, quality con- trol, and R & D technicians, but excluding all office DCM MFG., INC. 3 clerical employees, inside sales employees, profes- sional employees, guards and supervisors as defined in the Act. DCM MFG. INC., A WHOLLY OWNED SUB- SIDIARY OF DREISON INTERNATIONAL, INC.