Weather Shield Mfg., Inc.

4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Weather Shield Mfg., Inc., Millwork Division and Midwestern Industrial Council Local No. 1035, affiliated with United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO. Cases 18-CA-7798, 18-CA-7952, and 18-RD-1172 July 13, 1990 SUPPLEMENTAL DECISION, ORDER, AND CERTIFICATION OF RESULTS BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 20, 1988, the National Labor Rela- tions Board issued a Decision, Order, and Direc- tion of Second Election in this proceeding in which it found that the Respondent violated Sec- tion 8(a)(1) and (5) of the Act and engaged in ob- jectionable conduct requiring the direction of a second election Thereafter, the Respondent filed a petition for review and the General Counsel filed a cross-appli- cation for enforcement of the Board's Order with the United States Court of Appeals for the Seventh Circuit In an opinion dated November 29, 1989, as corrected on December 7, 1989, 2 the court denied enforcement of the Board's Order and directed the Board to certify the results of the July 15, 1982 de- certification election in Case 18-RD-1172 3 With respect to the Section 8(a)(5) complaint allegations which the Board found to be meritorious, the court found that the Respondent's "failure to bargain with the Union during the pendency of this case is 1 292 NLRB 1 I 890 F 2d 52 3 The tally of ballots at the election was 123 votes against representa- tion and 110 for the Union There were no challenged ballots moot based on our holding Accordingly, we need not reach the appropriateness of the Board's Order to bargain with the Union for the time period rep- resenting those several years in which the case was pending "4 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board, having accepted the remand, recog- nizes the court's opinion as the law of this case Accordingly, as the court's treatment of the Sec- tion 8(a)(5) complaint allegations, on its face, pre- cludes any possible finding that the Respondent re- fused to bargain in violation of the Act, 2 we shall dismiss the complaint and, as directed by the court, we shall certify the results of the election in Case 18-RD-1172 IT IS ORDERED that the complaint in Cases 18- CA-7798 and 18-CA-7952 be dismissed CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for Midwestern Industrial Council, Local No 1035, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO and that it is not the exclusive repre- sentative of bargaining unit employees 4 890 F 2d at 60, fn 5 5 It is evident that fn 5 of the court's opinion is premised on the view that when the Union lost an untamted decertification election, the Re- spondent's bargaining obligation to the Union ceased in its entirety as of the date of the election That is the law of the case, irrespective of what Board precedent may dictate regarding Respondent's bargaining obliga- tion during the pendency of objections before the Board Presbyterian Hospital, 241 NLRB 996 (1979) Accord Dow Chemical Co. 250 NLRB 748 and 250 NLRB 756 (1980), enf denied 660 F 2d 637 (5th Cu . 1981) 299 NLRB No 3