281 N.L.R.B. 410 (N.L.R.B. 1986)

Mohawk Flush Doors, Inc.

National Labor Relations Board - Board DecisionsSep 10, 1986

281 N.L.R.B. 410 (N.L.R.B. 1986)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mohawk Flush Doors , Incorporated and Laborers' District Council of Eastern Pennsylvania, La- borers' International Union of North America, AFL-CIO. Case 4-CA-15604 10 September 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS Upon a charge filed by the Union 11 February 1986, the General Counsel of the National Labor Relations Board issued a complaint 26 March 1986 against the Company, the Respondent , alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The complaint alleges that on 10 January 1986, following a Board election in Case 4-RC-15857, the Union was certified as the exclusive collective- bargaining representative of the Company's em- ployees in the unit found appropriate. (Official notice is taken of the "record " in the representation proceeding as defined in the Board 's Rules and Regulations, Secs . 102.68 and 102 .69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that since 27 January 1986 the Compa- ny has refused to bargain with the Union. On 3 April 1986 the Company filed its answer admitting in part and denying in part the allegations in the complaint , and raising certain affirmative defenses. On 5 May 1986 the General Counsel filed a Motion for Summary Judgment. On 8 May 1986 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 Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company's answer admits its refusal to bar- gain with the Union, but alleges that the Union was certified improperly. The Company denies (1) that the Union is a labor organization within the meaning of Section 2(5) of the Act; (2) that the unit designated as appropriate by the Board in the representation proceeding is the appropriate unit for the purposes of collective bargaining ; and (3) that the Union is the exclusive representative of the unit for collective-bargaining purposes. The Com- pany also contends that its objections to the con- duct of the election should be sustained and the election set aside or, at a minimum, that the Board should order a hearing to resolve the issues raised by those objections. Finally, the Company asserts both in its answer and response that it should not be required to bargain with the Union because of an alleged "documented relationship " between the Laborers' International Union of North America (LIUNA) and "organized crime ." The Company argues that a bargaining order would constitute an endorsement by the Board of LIUNA's alleged in- volvement in criminal conduct, and also asserts that because of its alleged connection with orga- nized crime, the Union is unable to fulfill its obliga- tions under the Act because it "does not act with the single..minded purpose of protecting and ad- vancing the interests of the employees it purports to represent." The record shows that in Case 4-RC-15857 a representation petition was filed by the Union on 22 February 1985. Pursuant to a Stipulation for Certification Upon Consent Election, an election was held 11 April 1985 among the employees in the unit stipulated to by the Union and the Compa- ny. The Union received a majority of the votes cast. After an investigation of the Company's objec- tion,' the Acting Regional Director issued a report on 20 May 1985 in which he found that the Com- pany's objection lacked merit and recommended that it be dismissed and that a certification of repre- sentative be issued. The Company filed exceptions to the Acting Regional Director 's report and rec- ommendation , and requested a hearing . On 10 Jan- uary 1986 the Board adopted the findings and rec- ommendations and certified the Union as the exclu- sive bargaining representative of the employees in the stipulated unit. In that decision, the Board found no substantive issue of material fact requiring a hearing and denied the Company's request for a hearing. By letter dated 17 January 1986, the Union re- quested that the Company meet with it for pur- poses of collective bargaining . By letter dated 27 January 1986, the Company refused to bargain with the Union. The Union thereupon filed the unfair labor practices charge that gave rise to this proceeding. Thereafter, on 17 March 1986, the Company filed a "Motion to Revoke Certification ," based on statements contained in the report of the Presi- dent's Commission on Organized Crime, alleging extensive influence by organized crime over LIUNA and some of its locals. On 8 May 1986 the Board denied the Motion to Revoke Certification, 2 The conduct complained of consisted of the Union's holding several meetings and parties at which food and drinks, including beer, were served to employees of the Company 281 NLRB No. 59 MOHAWK FLUSH DOORS citing Alto Plastics Mfg. Corp., 136 NLRB 850 (1962). The Company's contention that it should be re- lieved of its duty to bargain with the Union be- cause of the latter's alleged connection with the un- derworld is without merit. The Board rejected the Company's contentions in this regard when it denied the Motion to Revoke Certification , and the Company has alleged nothing in its answer to the complaint or in its brief opposing summary judg- ment that might lead us to a different conclusion in this proceeding.2 All of the other issues raised by the Company were or could have been litigated in the prior rep- resentation proceeding . It is well settled that in the absence of newly discovered and previously un- available evidence or special circumstances, a re- spondent in a proceeding alleging a violation of Section 8(aX5) is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs . 102.67(f) and 102.69(c) of the Board's Rules and Regulations. The Company does not offer to adduce at a hear- ing any newly discovered and previously unavail- able evidence, nor does it allege any special cir- cumstances that would require the Board to reex- amine the decision made in the representation pro- ceeding . We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding . Accordingly, we grant the Motion for Summary Judgment. On the entire record , the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Company , a Pennsylvania corporation, en- gages in the manufacture and sale of doors with a plant in Northumberland , Pennsylvania. During the year immediately preceding the issuance of the complaint, the Company in the course of its busi- ness operations described above sold and shipped products valued in excess of $50,000 directly to points outside Pennsylvania . We find that the Com- pany 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. 9 The Company's request for oral argument on the Motion to Revoke Certification is denied. II. ALLEGED UNFAIR LABOR PRACTICES 411 A. The Certification Following the election held 11 April 1985, the Union was certified 10 January 1986 as the collec- tive-bargaining representative of the employees in the following appropriate unit: All maintenance employees , group leaders and laborers employed by the Company at its Northumberland, Pennsylvania plant, but ex- cluding all office clerical employees , foremen, truck drivers, guards and supervisors as de- fined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 17 January 1986 the Union has requested the Company to bargain , and since 27 January 1986 the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 27 January 1986 to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appro- priate unit, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(aX5) 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 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 (19.62); 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).9 8 The General Counsel requests that the remedy include a visitatorial clause authorizing the Board , for compliance purposes, to obtain discov- ery from the Company under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order. Under the circumstances of this case, we find it unnecessary to include such a clause. Accordingly, we deny the General Counsel's re- quest. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board orders that the Respondent, Mohawk Flush Doors, Incorporat- ed, Northumberland , Pennsylvania, its officers, agents , successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Laborers' District Council of Eastern Pennsylvania , Laborers' Inter- national Union of North America, AFL-CIO as the exclusive bargaining representative of the em- ployees in the bargaining 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 maintenance employees , group leaders and laborers employed by the Company at its Northumberland , Pennsylvania plant, but ex- cluding all office clerical employees , foremen, truck drivers , guards and supervisors as de- fined in the Act. (b) Post at its Northumberland, Pennsylvania fa- cility copies of the attached notice marked "Ap- pendix."4 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent 's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt 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 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. 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 Laborers' District Council of Eastern Pennsylvania , Labor- ers' International Union of North America, AFL- CIO as the exclusive 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 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 maintenance employees , group leaders and laborers employed at our Northumberland, Pennsylvania plant , but excluding all office clerical employees, foremen, truck drivers, guards and supervisors as defined in the Act. MOHAWK FLUSH DOORS , INCORPO- RATED 4 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 "