Virginia Mfg. Co.

National Labor Relations Board - Board Decisions

Mar 22, 1994

313 N.L.R.B. 1010 (N.L.R.B. 1994)

1010
313 NLRB No. 169
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Inasmuch as we are granting the Acting General Counsel’s Mo-
tion for Summary Judgment, we find it unnecessary to pass on his
motion to strike portions of the Respondent’s answer.
Virginia Manufacturing Company, Inc. and United
Mine Workers of America. Case 11–CA–15748
March 22, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On December 16, 1993, the National Labor Rela-
tions Board issued a complaint alleging that the Re-
spondent has violated Section 8(a)(5) and (1) of the
National Labor Relations Act by refusing the Union’s
request to bargain following the Union’s certification
in Case 11–RC–5781. (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 Respondent filed an answer admitting in part and
denying in part the allegations in the complaint.
On February 4, 1994, the Acting General Counsel
filed a motion to strike portions of Respondent’s an-
swer to complaint and Motion for Summary Judgment.
On February 9, 1994, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted.
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, but attacks the validity of the certification on
the basis of the Board’s disposition of certain chal-
lenged ballots in the representation 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).
Accordingly, we grant the Motion for Summary Judg-
ment.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is now, and has been at all times
material, a Virginia corporation, with a facility located
at Pennington Gap, Virginia, where it is engaged in the
manufacture and nonretail sale of case goods and con-
tainers. During the 12-month period preceding the
issuance of the complaint, the Respondent purchased
and received at its Pennington Gap, Virginia facility,
goods and raw materials valued in excess of $50,000
directly from points outside the Commonwealth of Vir-
ginia, and also sold and shipped from that facility
products valued in excess of $50,000 directly to points
outside the Commonwealth of Virginia. 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
Following the election held February 28, 1992, the
Union was certified on September 30, 1993, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time production and
maintenance employees including leadpersons and
quality control employees employed by the Em-
ployer at its facility located at 1001 Industrial
Drive, Pennington Gap, Virginia; excluding all of-
fice clerical employees, professionals, guards and
supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since on or about September 30, 1993, and specifi-
cally by letter dated November 23, 1993, the Union
has requested the Respondent to bargain and, since
about September 30, 1993, 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 September 30, 1993, to
bargain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
1011VIRGINIA MFG. CO.
2 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.’’
tion 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.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent 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, Virginia Manufacturing Company, Inc.,
Pennington Gap, Virginia, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Mine Workers
of America as the exclusive bargaining representative
of the employees in the bargaining unit.
(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 full-time and regular part-time production and
maintenance employees including leadpersons and
quality control employees employed by the Em-
ployer at its facility located at 1001 Industrial
Drive, Pennington Gap, Virginia; excluding all of-
fice clerical employees, professionals, guards and
supervisors as defined in the Act.
(b) Post at its facility in Pennington Gap, Virginia,
copies of the attached notice marked ‘‘Appendix.’’2
Copies of the notice, on forms provided by the Re-
gional Director for Region 11, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent 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 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 Re-
spondent 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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with United Mine
Workers of America as the exclusive 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 bargaining unit:
All full-time and regular part-time production and
maintenance employees including leadpersons and
quality control employees employed by us at our
facility located at 1001 Industrial Drive, Pen-
nington Gap, Virginia; excluding all office clerical
employees, professionals, guards and supervisors
as defined in the Act.
VIRGINIA MANUFACTURING COMPANY,
INC.