Flex Products, Inc.

FLEX PRODUCTS 417 Flex Products, Inc. and Shopmen's Local Union 662 of the International Association of Bridge, Structural and Ornamental Ironworkers, AFL- CIO. Case 8-CA-15870 31, January 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON Upon a charge filed by the Union 7 July 1982 and an amended charge filed 27 August 1982, the General Counsel of the National Labor Relations Board issued a complaint 26 November 1982 and an amendment to complaint 6 July 1983 against the Company, the Respondent, alleging that it has vio- lated Section 8(a)(1) and (5) of the National Labor Relations Act by refusing to recognize and bargain with the Union as the exclusive bargaining repre- sentative of its employees and by engaging in speci- fied unilateral conduct. The Respondent filed an answer, an amended answer, and an answer to the amendment to the complaint. It admits in part and denies in part the complaint allegations and submits affirmative defenses. On 6 September 1983 the General Counsel filed a Motion for Summary Judgment with exhibits and brief. On 12 September 1983 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 and brief and a motion to 'strike. The General Counsel filed a response to the Respondent's motion. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment In May 1977 the Board certified the Union as the exclusive collective-bargaining representative of the Respondent's production and maintenance em- ployees.' The Respondent and the Union later en- tered into a collective-bargaining agreement effec- tive from 4 May 1977 to 3 May 1980. On 30 June 1982 the Board issued a Decision and Order in Case 8-CA-147322 in which it found, among other things, that in November 1980 the Respondent withdrew recognition from the Union in violation of Section 8(a)(5) and (1) of the Act and thereafter refused 'to bargain with the Union and unilaterally a The appropriate unit comprises all full-time and regular part-time production and maintenance employees, excluding all office clerical em- ployees and professional employees, guards, and supervisors as defined in the Act- 2 Flex Plastics, 262 NLRB 651 (1982) On 30 June 1982 the Respondent changed its name from Flex Plastics , Inc. to Flex Products, Inc. changed terms and conditions of employment. The Board rejected the Respondent's contentions that it had a good-faith doubt of the Union's majority status reasonably based on objective considerations and ordered the Respondent to recognize and bar- gain with the Union. On 20 January 1984 a United States court of appeals enforced the Board's Order.3 The complaint in this case alleges that the Re- spondent engaged in the following conduct in vio- lation of Section 8(a)(5) and (1): refused to bargain with the Union about 15 January 1982 and laid off approximately 15 unit employees without giving the Union notice or opportunity to bargain about the conduct and its effects; changed a job classifi- cation during the layoff thereby removing the job from the unit and laying off employee Thomas Strimbu; and notified the Union by letter about 22 June 1982 that it rejected Strimbu's grievance over his discharge of 24 May 1982 and would not bar- gain with the Union. The Respondent admits that it engaged in the conduct set out above, but denies that it thereby violated the Act. In defense it argues that the issue of the Respondent's obligation to recognize and bargain with the Union was litigated in the previ- ous unfair labor practice case and is res judicata; the issue of the unilateral conduct is barred by Sec- tion 10(b);4 and the issues concerning Strimbu are not appropriate for determination on a motion for summary judgment. The res judicata and 10(b) defenses that the Re- spondent has raised and briefed are legal questions that -do not require an evidentiary hearing before determination. While the Respondent argues that issues regarding Strinibu should not be decided on a summary judgment motion and should be set for hearing, it does not specify factual issues that re- quire determination. We see none. The complaint does not. raise the merits of Strimbu's layoff, dis- charge, or grievance.5 It alleges only that the Re- spondent notified the Union that it rejected the grievance and would not bargain with the Union, matters that the Respondent admits in its answer. Accordingly, we conclude that the issues raised by the complaint may be decided on the motion before us without hearing, and we grant the Gener- al Counsel's Motion for Summary Judgment. 2 NLRB v. Flex Plastics, 726 F.2d 272 (6th Cir. 1984) 4 In pertinent part Sec. 10(b) provides that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board." 5 Exhs G,H, and I relate to Strimbu's grievance, but we do not think they prejudice the Respondent, and we deny its motion to strike them and statements concerning Strimbu's discharge. 278 NLRB No. 59 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent, an Ohio corporation with an office and place of business in Midvale, Ohio, is en- gaged in the manufacture of plastic products. An- nually it sells and ships from the Midvale facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Ohio. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 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 About 15 January 1982 the Respondent laid off approximately 15 employees and during the layoff changed a job classification, thereby removing the job from the bargaining unit. As a result of the job classification change, it laid off employee Thomas Strimbu. The Respondent admits that it engaged in this conduct and did so without notifying the Union or giving it an opportunity to negotiate and bargain.6 At the time the Union was the exclusive collective-bargaining representative of the Re- spondent's employees as found by the Board and the court of appeals.7 The Respondent's conduct derogates the Union's representative status, and we find no merit to its position that the conduct does not violate the Act. First, we reject the Respondent's contention that the doctrine of res judicata precludes a determina- tion of whether its conduct violates Section 8(a)(5). The General Counsel does not attempt here to reli- tigate the issue of the Union's continued representa- tive status that was decided in Case 8-CA-14732, and we accept the earlier finding that the Union is the exclusive collective-bargaining representative of the Respondent's employees. The complaint in this case concerns employer acts that are different from those considered in the earlier case, and dis- position of that case does not procedurally bar this one. We also reject the Respondent's contention that Section 10(b) bars the allegations concerning the 15 6 The Union was not required to make a futile demand to bargain over the Respondent's conduct when it was presented a fait accomph by the Respondent which was refusing generally to deal with the Union and de- nying its representative status before the Board. 7 The Respondent acted at its peril in refusing to bargain with the Union while the Board was considering the Union's representative status. See Clements Wire & Mfg. Co, 257 NLRB 1058 (1981); John Cuneo, Inc., 257 NLRB 551 (1981). January 1982 layoffs. The original charge in this case was filed 7 July 1982, within 6 months of the alleged date the layoffs occurred. That charge as- serts that the Respondent violated Section 8(a)(3)8 and (5) by terminating employee Strimbu's employ- ment on 24 May 1982, by failing to bargain with the Union about 23 June 1982 concerning a griev- ance Strimbu filed, and by eliminating certain job classifications in January 1982 without notifying the Union.9 Although the charge does not assert that the Respondent unilaterally laid off employees, we fmd that the unilateral-layoff conduct alleged as an 8(a)(5) violation in the complaint is closely asso- ciated with the unilateral conduct alleged as- an 8(a)(5) violation in the charge, and that the origi- nal, timely filed 8(a)(5) charge is sufficient to sup- port the additional incidents of unilateral conduct covered by the complaint.'0 Accordingly, we fmd that the Respondent violat- ed Section 8(a)(5) and (1) of the Act by unilaterally laying off employees and changing a job classifica- tion in January 1982 and by refusing to bargain with the Union in June 1982 about Strimbu's dis- charge in May 1982. CONCLUSIONS OF LAW The Respondent has engaged in unfair labor practices 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 engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. To remedy the Respondent's failure in January 1982 to bargain over layoffs and a change in job classification and its refusal in June 1982 to bargain about Strimbu's discharge, we shall order it on re- quest to bargain about these matters. To further remedy the unlawful unilateral conduct by restor- ing the situation that existed before it occurred, we shall order the Respondent to offer the employees who were laid off immediate and full reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without prejudice to their senority or any other rights or privileges previously enjoyed, and to make them whole for any loss of earnings and other benefits 8 The complaint does not allege that the Respondent violated Sec 8(a)(3). 9 An amended charge filed 27 August 1982 alleges a general refusal to bargain in violation of Sec. 8(a)(5). 10 See NLRB v. Fant Milling Co, 360 U.S 301 (1959). FLEX PRODUCTS suffered as a result of the unfair labor practices. Backpay shall be computed as prescribed in F. W Woolworth Co., 90 NLRB 289 (1950), plus interest as -computed in Florida Steel Corp., 231 NLRB 651 (1977) (see generally Isis Plumbing Co., 138 NLRB 716 (1962)). ORDER The National Labor Relations Board orders that the Respondent, Flex Products, Inc., Midvale, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain by laying off employees and changing job classifications without giving the Union notice and opportunity to bargain. (b) Refusing to bargain with the Union about Thomas Strimbu's discharge. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit about the unilateral layoffs and change in job classification, it made in January 1982 and about Thomas Strimbu's discharge in May 1982: All full-time and regular part-time production and maintenance employees, excluding all office clerical employees and professional em- ployees, guards, and supervisors as defined in the Act. (b) Offer the employees unilaterally laid off in January 1982 immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privi- leges previously enjoyed. (c) Make whole the employees unilaterally laid off in January 1982 for any loss of earnings and other benefits suffered as a result of the unfair labor practices in the manner set forth in the remedy section of this decision. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due- - under the terms of this Order. 419 (e) Post at its facility in Midvale, Ohio, copies of the attached notice marked "Appendix."" 1 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized representative, shall be posted, by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 1 i 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 Nation- al 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." 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Shopmen's Local Union No. 662 of the International Associa- tion of Bridge, Structural and Ornamental Iron- workers, AFL-CIO as the exclusive representative of the employees in the bargaining unit by laying off employees and changing job classifications without giving the Union notice and opportunity to bargain and by refusing to bargain about Thomas Strimbu's discharge. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union about the unilateral layoffs and change in job clas- sification we made in January 1982 and about Thomas Strimbu's discharge in May 1982. The bar- gaining unit is: All full-time and regular part-time production and maintenance employees, excluding all office clerical employees and professional em- ployees, guards, and supervisors as defined in the Act. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer the employees unilaterally laid WILL make them whole for any loss of earnings off in January 1982 immediate and full reinstate- and other benefits resulting from our unilateral ment to their former jobs or , if those jobs no conduct, less any net interim earnings, plus interest. longer exist, to substantially equivalent positions, without prejudice to their seniority or any other FLEX PRODUCTS, INC. rights or privileges previously enjoyed and wE