Kleen Brite Laboratories, Inc.

KLEEN BRITE LABORATORIES 939 Kleen Brite Laboratories, Inc. and Rochester Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC. Case 3-CA- 14835 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT June 30, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On March 3, 1989, 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 3-RC-9240. (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 March 31, the General Counsel filed a Motion for Summary Judgment. On April 7 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 briefs in opposition. The Charging Party filed a Motion for Summary Judgment in which it seeks certain remedial relief. 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 its answer and briefs the Respondent admits its refusal to bargain, 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 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. v. NLRB, 313 U.S. 146, 162 (1941). Ac- cordingly, we grant the General Counsel's Motion for Summary Judgment, and the Charging Party's to the extent it coincides with that of the General Counsel. 1. JURISDICTION The Respondent, a New York State corporation, manufactures household cleaning products for non- retail sale and distribution at its facilities in Brock- port and Rochester, New York, and other facilities both within and outside New York State, where it annually processes goods valued in excess of $50,000 and ships them directly to points outside of the State of New York. We find that the Respond- ent is an employer 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 Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held July 8, 1988, the Union was certified on January 31 , 1989, as the collective-bargaining representative of the employ- ees in the following appropriate unit: All production, maintenance, shipping and re- ceiving employees employed by the Respond- ent at its facilities located in Rochester and Brockport, New York; excluding all manageri- al employees, office clerical employees, and professional employees, 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 February 8, 1989, the Union has requested the Respondent to bargain, and, since February 9, the Respondent has refused. We find that this re- fusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after February 9, 1989, to bargain with the Union as the exclusive collective- bargaining representative of employees in the ap- propriate unit 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 violated Section 8(a)(5) and (1) of the Act, we shall order it 295 NLRB No. 99 940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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). marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees 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. ORDER The National Labor Relations Board orders that the Respondent, Kleen Brite Laboratories, Inc., Rochester and Brockport, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Rochester Joint Board, Amalgamated Clothing and Textile Work- ers Union, AFL-CIO-CLC as the exclusive bar- gaining representative of the employees in the bar- gaining 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 on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production, maintenance, shipping and re- ceiving employees employed by the Respond- ent at its facilities located in Rochester and Brockport, New York; excluding all manageri- al employees, office clerical employees, and professional employees, guards and supervisors as defined in the Act. (b) Post at its facilities in Rochester and Brock- port, New York, copies of the attached notice I As noted, the Charging Party requests, in addition to the traditional remedies for the violations found, an order directing the Respondent to inform the Union of any action that it proposes to take pursuant to its current employee disciplinary policy ; to allow employees, at their re- quest, to represented by a designated union representative at any investi- gative disciplinary interview; and to allow the Union to be present at any complaint adjustment meeting held pursuant to Kleen Brite's extant com- plaint adjustment procedure. The Charging Party further seeks a retroac- tive bargaining order We deny the request for these additional remedies as unwarranted, given the circumstances and the nature of this proceed- ing, and as beyond the scope of the complaint ' 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 Rochester Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC 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, maintenance, shipping and re- ceiving employees employed by the Respond- ent at its facilities located in Rochester and Brockport, New York; excluding all manageri- al employees, office clerical employees, and professional employees, guards and supervisors as defined in the Act. KLEEN BRITE LABORATORIES, INC.