Comfort Solutions, Inc.

National Labor Relations Board - Unpublished Board Decisions

Jun 29, 2012

05-RC-016680 (N.L.R.B. Jun. 29, 2012)

NOT TO BE INCLUDED
IN BOUND VOLUMES PHG
Springfield, VA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
COMFORT SOLUTIONS, INC.
Employer

and

SHEET METAL WORKERS INTERNATIONAL Case 5-RC-16680
ASSOCIATION, LOCAL UNION NO. 100
Petitioner
DECISION AND CERTIFICATION OF REPRESENTATIVE
The National Labor Relations Board, by a three-member panel, has considered a
determinative challenge in an election held July 15, 2011, and the hearing officer’s report
recommending disposition of it. The election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows three for and one against the Petitioner, with two
challenged ballots.
The Board has reviewed the record in light of the exceptions1 and briefs, has adopted the
hearing officer’s findings and recommendations,2 and finds that a certification of representative
should be issued.

1 The Employer has excepted to some of the hearing officer’s credibility findings. The Board’s
established policy is not to overrule a hearing officer’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are incorrect. Stretch-Tex Co.,
118 NLRB 1359, 1361 (1957). We have carefully examined the record and find no basis for
reversing the findings.
In addition, some of the Employer’s exceptions imply that the hearing officer’s rulings,
findings, and conclusions demonstrate bias and prejudice. On careful examination of the hearing
officer’s decision and the entire record, we are satisfied that the Employer’s contentions are
without merit.
2
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have been cast for Sheet Metal
Workers International Association, Local Union No. 100, and that it is the exclusive collective-
bargaining representative of the employees in the following appropriate unit:3
Included: All full-time and regular part-time technicians performing HVAC
service, repair, and installation employed by the Employer at its Springfield, VA
facility.
Excluded: All office and clerical workers, professional employees, guards, and
supervisors as defined in the Act.
Dated, Washington, D.C., June 29. 2012.
_______________________________
Mark Gaston Pearce, Chairman

The Employer excepts to the absence of information in the hearing officer’s report about
its appeal rights, but it presented no argument in support of these exceptions. In accordance with
Sec. 102.46(b)(2) of the Board’s Rules and Regulations, we shall disregard them. See Holsum
de Puerto Rico, Inc., 344 NLRB 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). In any
event, that information had been furnished to all counsel earlier in the proceeding, and the
hearing officer appended the standard appeals language to the decision before the appeal period
expired. The Employer, represented by experienced labor counsel, timely filed its exceptions
and brief without seeking an extension of time.
2 In the absence of exceptions, we adopt pro forma the hearing officer’s recommendation to
overrule the Petitioner’s challenge to the ballot of Akash Rathie. Because, as explained below,
we sustain the challenge to Carlos Bonilla’s ballot, Rathie’s ballot is not determinative and
therefore should not be opened.
In adopting the hearing officer’s recommendation to sustain the challenge to the ballot of
Carlos Bonilla, we agree with her findings that the record establishes that Bonilla is a statutory
supervisor. In particular, we note that Bonilla uses independent judgment in directing the work
of the Employer’s installation technicians: on a daily basis, he instructs the technicians on how
to address unforeseen issues and problems that arise when the technicians install heating and air
conditioning systems in customers’ homes. The evidence also shows that Bonilla takes
corrective action when the technicians encounter problems or commit errors. In addition,
Bonilla’s direction of the technicians is responsible: memoranda the Employer issued to him in
2008 and 2009 demonstrate that he is held accountable for the work of others. Indeed, the
Employer’s contention, that the memoranda held Bonilla accountable for only his own work (and
not that of others), conflicts with its admission that Bonilla generally does not perform the
installation work.
3 The unit description is as set forth in the Stipulated Election Agreement and the record.
3
_______________________________
Brian E. Hayes, Member
_______________________________
Richard F. Griffin, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD