Tekweld Solutions, Inc.

361 NLRB No. 164 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Tekweld Solutions, Inc. and Warehouse Production Sales and Allied Service Employees Union, Local 811. Case 29–CA–138172 January 22, 2015 DECISION AND ORDER BY MEMBERS MISCIMARRA, HIROZAWA, AND JOHNSON This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed by Warehouse Production Sales and Allied Service Employees Union, Local 811 (the Union) on October 6, 2014, the General Counsel issued the complaint on November 10, 2014, alleging that Tekweld Solutions, Inc. (the Respondent) has violated Section 8(a)(5) and (1) of the Act by refus- ing the Union’s request to recognize and bargain follow- ing the Union’s certification in Case 29–RC–099621.1 (Official notice is taken of the “record” in the representa- tion proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g). Frontier Ho- tel, 265 NLRB 343 (1982).) The Respondent filed an answer, admitting in part and denying in part the allega- tions in the complaint, and asserting affirmative defens- es. On November 20, 2014, the General Counsel filed a Motion for Summary Judgment. On November 25, 2014, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response, and the General Counsel filed a reply. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification on the basis of its position that the Acting Regional Director abused his discretion in his report recommending disposition of de- terminative challenged ballots. 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 1 361 NLRB No. 18 (2014). 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- ingly, we grant the 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 180 Central Avenue, Farmingdale, New York, has been engaged in the wholesale distribution of promo- tional products. During the year preceding issuance of the complaint, which period is representative of its annual operations generally, the Respondent, in the course and conduct of its business operations, has derived gross revenues in excess of $50,000 from the performance of services to clients 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 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 representation election held on Novem- ber 19, 2013, the Union was certified on September 8, 2014, as the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: Included: All full-time and regular part-time printing department employees, packaging, labeling, bottle cap- ping, warehouse employees, shipping, receiving, ma- chine operators, and production employees at the Re- spondent’s 180 Central Avenue, Farmingdale, New York location. Excluded: All clerical employees, sales personnel, guards and supervisors as defined by Section 2(11) of the Act. 2 Member Miscimarra dissented in part from the Board’s Decision and Direction in the underlying representation proceeding reported at 361 NLRB No. 18 (2014). He would have established a new eligibility date and directed a new election. While Member Miscimarra remains of that view, he agrees that the Respondent has not presented any new matters that are properly litigable in this unfair labor practice case. See Pittsburgh Plate Glass Co. v. NLRB, supra. In light of this, and for institutional reasons, Member Miscimarra agrees with the decision to grant the Motion for Summary Judgment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain By letters dated September 9 and 25, 2014, the Union requested that the Respondent meet and bargain with it as the exclusive collective-bargaining representative of the unit employees and, since September 9, 2014, the Respondent has refused to do so. We find that this failure and refusal constitutes an un- lawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since September 9, 2014, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in un- fair labor practices affecting commerce within the mean- ing 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 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); accord: Burnett Construc- tion Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). In addition to the customary notice posting remedies, the General Counsel requests the additional remedy that the Respondent mail a notice to each unit employee’s residence. In the absence of any explanation why the notice mailing remedy is warranted here, we deny the General Counsel’s request. ORDER The National Labor Relations Board orders that the Respondent, Tekweld Solutions, Inc., Farmingdale, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Warehouse Production Sales and Allied Service Employ- ees Union, Local 811 as the exclusive collective- bargaining representative of the employees in the bar- gaining 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 collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: Included: All full-time and regular part-time printing department employees, packaging, labeling, bottle cap- ping, warehouse employees, shipping, receiving, ma- chine operators, and production employees at the Re- spondent’s 180 Central Avenue, Farmingdale, New York location. Excluded: All clerical employees, sales personnel, guards and supervisors as defined by Section 2(11) of the Act. (b) Within 14 days after service by the Region, post at its facility in Farmingdale, New York, copies of the at- tached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous plac- es, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since September 9, 2014. (c) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certifi- 3 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 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.” TEKWELD SOLUTIONS, INC. 3 cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. January 22, 2015 ______________________________________ Philip A. Miscimarra, Member ______________________________________ Kent Y. Hirozawa, Member ______________________________________ Harry I. Johnson, III, Member (SEAL) 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 vio- lated 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 fail and refuse to recognize and bargain with Warehouse Production Sales and Allied Service Employees Union, Local 811 (the Union) as the exclu- sive collective-bargaining representative of the employ- ees 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 listed above. 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 fol- lowing bargaining unit: Included: All full-time and regular part-time printing department employees, packaging, labeling, bottle cap- ping, warehouse employees, shipping, receiving, ma- chine operators, and production employees at our 180 Central Avenue, Farmingdale, New York location. Excluded: All clerical employees, sales personnel, guards and supervisors as defined by Section 2(11) of the Act. TEKWELD SOLUTIONS, INC. The Board’s decision can be found at www.nlrb.gov/case/29-CA-138172 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.