North American Enclosures, Inc.

344 NLRB No. 156 North American Enclosures, Inc. and Local 348-S, United Food and Commercial Workers Union, AFL–CIO. Case 29–CA–26679 July 29, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on December 13, 2004,1 the General Counsel issued the complaint on February 23, 2005, alleging that the Respondent has violated Sec- tion 8(a)(1) and (5) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 29–RC–10007. (Official notice is taken of the “re- cord” 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 admitting in part and deny- ing in part the allegations in the complaint. On June 29, 2005, the Acting General Counsel filed a Motion for Summary Judgment. On July 1, 2005, 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 did not file a response. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tends that the Union’s certification is invalid because the Board erred in overruling 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- 1 The Respondent’s answer “denies knowledge or information suf- ficient to form a belief as to the truth of the allegations” concerning the filing and service of the charge. The Acting General Counsel, however, has attached as exhibits to his motion a copy of the charge and affidavit of service of the charge. The Respondent has not challenged the au- thenticity of these documents. Accordingly, it is clear that the charge was filed and served as alleged, and we find that the Respondent’s denials in this regard do not raise any issue of fact warranting a hearing. ingly, we grant the Acting General Counsel’s Motion for Summary Judgment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a domestic cor- poration with its principal office and place of business located at 65 Jetson Lane, Central Islip, New York, and other facilities located at 85 Jetson Lane and 973 Motor Parkway, Central Islip, New York, has been engaged in the manufacture, assembly, and wholesale distribution of picture frames and framed art. Annually, in the course and conduct of its operations, the Respondent purchases and receives at its Central Islip facilities goods, supplies, and materials valued in excess of $50,000 directly from points located outside the State of New York. 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 Local 348-S, United Food and Commercial Workers Union, AFL–CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act.3 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held April 24, 2003, the Union was certified on October 27, 2004, as the exclusive col- lective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time production and maintenance, shipping and receiving, plant clerical employees, and drivers employed by the Re- 2 The Respondent’s request that the complaint be dismissed is there- fore denied. Chairman Battista did not participate in the Board’s March 17, 2004 Decision and Order Directing Hearing in the underlying representation proceeding, and Member Schaumber did not participate in the Board’s October 27, 2004 Decision and Certification of Representative in the representation proceeding. They agree, however, that the Respondent has not raised any new matters or special circumstances warranting a hearing in this proceeding or reconsideration of the decisions and or- ders in the representation proceeding, and that summary judgment is therefore appropriate. 3 In par. 5 of its answer, the Respondent denies sufficient knowledge or information regarding the Union’s status as a labor organization within the meaning of Sec. 2(5) of the Act. However, in the underlying representation proceeding, the Respondent stipulated that the Union is a labor organization within the meaning of the Act. Accordingly, we find that the Respondent’s answer in this regard does not raise any issue warranting a hearing in this proceeding. See, e.g., Spruce Co., 321 NLRB 919 fn. 2 (1996), and cases cited there. In light of this, we find it unnecessary to pass on the Acting General Counsel’s request that we strike par. 5 of the Respondent’s answer. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 spondent at its premises located at 65 Jetson Lane, 85 Jetson Lane, and 973 Motor Parkway, Central Is- lip, New York, but excluding all office clerical em- ployees, managerial employees, guards and supervi- sors as defined in Section 2(11) of the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain On or about November 1, 2004, the Union, by letter, requested from the Respondent a date, time, and location to commence bargaining for an initial collective- bargaining agreement. On or about November 15, 2004, the Union, by letter, repeated its request that the Respon- dent contact the Union and make arrangements to com- mence bargaining for an initial collective-bargaining agreement. Since about November 1, 2004, the Respon- dent has failed and refused to respond to the Union’s requests to bargain, and has failed and refused to meet with the Union and commence negotiations toward an initial collective-bargaining agreement. We find that this failure and refusal constitutes an unlawful refusal to bar- gain in violation of Section 8(a)(1) and (5) of the Act. CONCLUSION OF LAW By failing and refusing since November 1, 2004, to 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)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(1) and (5) 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 initial period of the certifi- cation 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, North American Enclosures, Inc., Central Islip, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with Local 348-S, United Food and Commercial Workers Union, AFL–CIO, 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 exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time production and maintenance, shipping and receiving, plant clerical employees, and drivers employed by the Re- spondent at its premises located at 65 Jetson Lane, 85 Jetson Lane, and 973 Motor Parkway, Central Is- lip, New York, but excluding all office clerical em- ployees, managerial employees, guards, and supervi- sors as defined in Section 2(11) of the Act. (b) Within 14 days after service by the Region, post at its facilities in Central Islip, New York, copies of the attached notice marked “Appendix.”4 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 29, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent 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 al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facili- ties involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since November 1, 2004. (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. 4If 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.” NORTH AMERICAN ENCLOSURES 3 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain with Local 348-S, United Food and Commercial Workers Union, AFL– CIO, as the exclusive bargaining 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, 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 bar- gaining unit: All full-time and regular part-time production and maintenance, shipping and receiving, plant clerical employees, and drivers employed by us at our premises located at 65 Jetson Lane, 85 Jetson Lane, and 973 Motor Parkway, Central Islip, New York, but excluding all office clerical employees, managerial employees, guards, and supervisors as defined in Section 2(11) of the Act. NORTH AMERICAN ENCLOSURES, INC.