Eagle Ray Electric Co.

EAGLE RAY ELECTRIC CO. 355 NLRB No. 111 589 Eagle Ray Electric Company and International Brotherhood of Electrical Workers, Local #1, AFL–CIO. Cases 14–CA–29685 and 14–RC– 12739 August 23, 2010 DECISION, CERTIFICATION OF REPRESENTATIVE, AND NOTICE TO SHOW CAUSE BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND PEARCE On May 29, 2009, the two sitting members of the Board issued a Decision and Order in this proceeding, which is reported at 354 NLRB No. 27 (not reported in Board volumes).1 Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit, and the General Counsel filed a cross-application for enforcement. On June 17, 2010, the United States Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that under Section 3(b) of the Act, in order to exercise the delegated authority of the Board, a delegee group of at least three members must be main- tained. Thereafter, the Board issued an Order setting aside the above-referenced decision and order, and re- tained this case on its docket for further action as appro- priate. The National Labor Relations Board has consolidated these proceedings and delegated its authority in both pro- ceedings to a three-member panel.2 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. The Board’s May 29, 2009 decision states that the Respondent is precluded from litigating any representa- tion issues because, in relevant part, they were or could have been litigated in the prior representation proceed- 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the powers of the National Labor Relations Board in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Thereafter, pursuant to this delegation, the two sitting members issued decisions and orders in unfair labor practice and representation cases. 2 Consistent with the Board’s general practice in cases remanded from the courts of appeals, and for reasons of administrative economy, the panel includes the members who participated in the original deci- sion. Furthermore, under the Board’s standard procedures applicable to all cases assigned to a panel, the Board Members not assigned to the panel had the opportunity to participate in the adjudication of this case prior to the issuance of this decision. ing.3 The prior proceeding, however, was also a two- member decision and we do not give it preclusive effect. We have considered the postelection representation is- sues raised by the Respondent. The Board has reviewed the record in light of the exceptions and brief, and has adopted the Regional Director’s findings and recommen- dations to the extent and for the reasons stated in the February 5, 2009 Decision and Certification of Represen- tative,4 which is incorporated herein by reference. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for International Brotherhood of Electrical Workers, Local #1, AFL–CIO, and that it is the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time journeyman electri- cians and apprentice electricians employed by the Em- ployer at its Ellisville, Missouri facility, EXCLUDING office clerical and professional employees, guards, and supervisors as defined in the Act. Notice to Show Cause As noted above, the Respondent has refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals. Al- though Respondent’s legal position may remain un- changed, it is possible that the Respondent has or intends to commence bargaining at this time. It is also possible that other events may have occurred during the pendency of this litigation that the parties may wish to bring to our attention. Having duly considered the matter, 1. The General Counsel is granted leave to amend the complaint on or before September 2, 2010, to conform with the current state of the evidence; 2. The Respondent’s answer to the amended com- plaint is due on or before September 16, 2010; and 3. NOTICE IS HEREBY GIVEN that cause be shown, in writing, on or before October 7, 2010 (with affidavit of service on the parties to this proceeding), as to why the Board should not grant the General Counsel’s motion for summary judgment. Any briefs or statements in support of the motion shall be filed by the same date. 3 The Respondent did not file any objections to the election. The only objection was by an intervening labor organization, the Congress of Independent Unions. 4 On February 24, 2009, the two-member Board issued a Corrected Decision and Certification of Representative that corrected an error in the original certification’s voting tally. We reaffirm that decision.