CWM, Inc.

National Labor Relations Board - Board Decisions

Aug 17, 1992

308 N.L.R.B. 263 (N.L.R.B. 1992)

263
308 NLRB No. 53
CWM, INC.
1 The Board, former Member Cracraft and Member Devaney dis-
senting, denied the Employer’s request for review of the Regional
Director’s dismissal of election objections.
2 306 NLRB 495 (1992).
CWM, Inc.—Port Arthur and International Broth-
erhood of Electrical Workers, Local 479, AFL–
CIO. Case 16–CA–15542
August 17, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 22, 1992, the General Counsel of the Na-
tional Labor Relations Board issued a complaint alleg-
ing that the Respondent has violated Section 8(a)(5)
and (1) and Section 8(d) of the National Labor Rela-
tions Act by refusing the Union’s request to bargain
following the Union’s certification in Case 16–RC–
9397. (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);
Frontier Hotel, 265 NLRB 343 (1982).) The Respond-
ent filed its answer admitting in part and denying in
part the allegations in the complaint.
On May 11, 1992, the General Counsel filed a Mo-
tion for Summary Judgment. On May 13, 1992, 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 filed a re-
sponse.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain and to furnish information that is relevant and
necessary to the Union’s role as bargaining representa-
tive, but attacks the validity of the certification on the
basis of its objections to the election in the representa-
tion proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
There are no factual issues regarding the Union’s re-
quest for information because the information sought is
presumptively relevant to collective bargaining, and
because the Respondent admitted that it refused to fur-
nish the information because it wished to seek judicial
review of the Board’s certification in the underlying
representation proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation, with a
place of business located at Highway 73 in Port Ar-
thur, Texas, is engaged in the business of disposing of
hazardous waste. During the 12 months preceding the
issuance of the complaint, the Respondent purchased
and received goods and materials valued in excess of
$50,000 directly from points located outside the State
of Texas. We find that the Respondent 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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Pursuant to a Stipulated Election Agreement, an
election was held on July 3, 1991. The Employer filed
objections which were dismissed as untimely by the
Regional Director. Thereafter, the Employer filed a re-
quest for review of the Regional Director’s dismissal
and the Board, by Order dated August 27, 1991,1 de-
nied the Employer’s request. Challenges to the ballots
of five voters were determinative. A hearing was held
on these challenged ballots and on August 30, 1991,
the hearing officer issued his Report and Rec-
ommendation to the Board on Challenged Ballots.
Thereafter, the Employer filed exceptions to this report
with the Board. On February 28, 1992, the Board
issued a Decision and Direction2 in which it directed
the Regional Director to open and count the ballots,
prepare and serve a revised tally of ballots, and issue
the appropriate certification. Following the opening of
the ballots and issuance of a revised tally of ballots on
March 4, 1992, the Union was certified on March 9,
1992, as the collective-bargaining representative of the
employees in the following appropriate unit:
All instrumentation/electrical technicians at the
Employer’s Port Arthur, Texas, facility, excluding
all other employees, guards, watchmen and super-
visors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
National 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.’’
B. Refusal to Bargain
Since March 18, 1992, the Union has requested the
Respondent to bargain and to furnish information, and,
since April 10, 1992, the Respondent has refused. We
find that this refusal constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By refusing on and after April 10, 1992, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit and
to furnish the Union requested information, the Re-
spondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 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 un-
derstanding in a signed agreement. We also shall order
the Respondent to furnish the Union the information
requested.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial 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 (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, CWM, Inc.—Port Arthur, Port Arthur,
Texas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with International Brother-
hood of Electrical Workers, Local 479, AFL–CIO as
the exclusive bargaining representative of the employ-
ees in the bargaining unit, and refusing to furnish the
Union information that is relevant and necessary to its
role as the exclusive bargaining representative of the
unit employees.
(b) In any like or related manner interfering with,
restraining, 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 employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All instrumentation/electrical technicians at the
Employer’s Port Arthur, Texas, facility, excluding
all other employees, guards, watchmen and super-
visors as defined in the Act.
(b) On request, furnish the Union information that is
relevant and necessary to its role as the exclusive rep-
resentative of the unit employees.
(c) Post at its facility in Port Arthur, Texas, copies
of the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 16, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER DEVANEY, dissenting.
Contrary to my colleagues, I would deny the Gen-
eral Counsel’s Motion for Summary Judgment. In the
underlying representation proceeding, the Regional Di-
rector dismissed the Employer’s election objections as
untimely under Section 102.69 of the Board’s Rules
and Regulations. In so doing, the Regional Director re-
jected the Employer’s contention that its objections,
which were hand-delivered to the Regional Office 8
days after the election, i.e., 1 day after the date due
under the Rules, should be considered timely because
a Federal holiday occurred during the first 6 days of
the 7-day period for filing objections. I dissented from
the Board’s denial of the Employer’s request for re-
view of the Regional Director’s dismissal of the objec-
tions as I would have found merit in the Employer’s
contention.
Accordingly, and for essentially the same reasons set
forth in my dissent in Goody’s Family Clothing, 308
NLRB No. 49 (Aug. 10, 1992), I would have consid-
ered the Employer’s objections to have been timely
filed. Therefore, unlike my colleagues, I would remand
this proceeding for a determination of the Employer’s
objections on their merits.
265CWM, INC.
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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with International
Brotherhood of Electrical Workers, Local 479, AFL–
CIO as the exclusive representative of the employees
in the bargaining unit, and WE WILL NOT refuse to fur-
nish the Union information that is relevant and nec-
essary to its role as the exclusive bargaining represent-
ative of the unit employees.
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 bargaining unit:
All instrumentation/electrical technicians at the
Employer’s Port Arthur, Texas, facility, excluding
all other employees, guards, watchmen and super-
visors as defined in the Act.
WE WILL, on request, furnish the Union information
that is relevant and necessary to its role as the exclu-
sive representation of the unit employees.
CWM, INC.—PORT ARTHUR