Monotech Of Mississippi

942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Monotech of Mississippi anti International Union of Operating Engineers, Local Union 624, AFL- CIO. Case 26-CA-12635 August 23, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 27, 1988, the General Counsel of the National Labor Relations Board issued a complaint 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 follow- ing the Union's certification in Case 26-RC-6929. (Official notice is taken of the "record" in the rep- resentation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Re- spondent filed its answer admitting in part and de- nying in part the allegations in the complaint. On June 27, 1988, the General Counsel filed a motion to transfer case to Board and for Summary Judgment. On June 29, 1988, 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. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bargain, but attacks the validity of the certification on the basis of the Board"s disposition of certain challenged ballots in the representation proceeding. All representation issues raised by the Respond- ent were or could have been litigated in the prior representation proceeding. The Respondent does not offer to adduce at a hearing any newly discov- ered and previously unavailable evidence, nor does it allege any special circumstances that would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representa- tion issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. Y. NLRB, 313 U.S. 146, 162 (1941).1 Ac- ' In its answer, the Respondent denies, inter alia, par I of the com- plaint that alleges that the instant charge was filed by the Union on May 24, 1988, and a copy was served by cortified mail on the Respondent on May 24, 1988. The General Counsel, however, has submitted the affidavit of service of the charge and the post office return receipt that indicates that the charge was received by the Respondent on May 26, 1988 Ac- cordingly, we find that the Respondent's denial raises no material issue of fact warranting a hearing The Respondent also denies par 5 of the complaint that alleges that at all times material , the Union has been a labor organization within the meaning of Sec 2(5) of the Act Because this denial raises an issue that could have been litigated in the poor representation proceeding, we find that It does not warrant a hearing cordingly, we grant the General Counsel's Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation with an office and place of business in Iuka, Mississippi, has been engaged in the fabrication of steel products. During the past 12 months, a representative period, the Re- spondent, in the course and conduct of its business operations, sold and shipped from its facility prod- ucts, goods, and materials valued in excess of $50,000 directly to points outside the State of Mis- sissippi. During the same period, the Respondent, in the course and conduct of its business oper- ations, purchased and received at its facility prod- ucts, goods, and materials valued in excess of $50,000 directly from points outside the State of Mississippi. We find that the Respondent is an em- ployer engaged 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 Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held May 7, 1987, the Union was certified on April 20, 1988, as the col- lective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees employed by the Respondent at its Route 4, Box 650, luka, Mississippi facilities, excluding all other employees, office clericals, guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since about May 9, 1988, the Union has request- ed the Respondent to bargain, and since about May 19, 1988, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing since about May 19, 1988, to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, the Respondent has engaged in unfair labor 290 NLRB No. 104 MONOTECH OF MISSISSIPPI 943 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 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 law, we shall construe the ini- tial period of the certification 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). (b) Post at its facility in Iuka, Mississippi, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Re- gional Director for Region 26, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt 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 Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. a 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 ORDER The National Labor Relations Board orders that the Respondent, Monotech of Mississippi, Iuka, Mississippi, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with International Union of Operating Engineers, Local Union 624, AFL- CIO as the exclusive bargaining representative of the employees in the bargaining unit. (b) 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 concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees employed by the Respondent at its Route 4, Box 650, Iuka, Mississippi facilities, excluding all other employees, office clericals, guards and supervisors as defined in the Act. 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 Internation- al Union of Operating Engineers, Local Union 624, AFL-CIO 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 exer- cise 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 bargaining unit: All production and maintenance employees employed by us at our Route 4, Box 650, luka, Mississippi facilities, excluding all other em- ployees, office clericals, guards and supervi- sors as defined in the Act. MONOTECH OF MISSISSIPPI