Edward J. DeBartolo Corp.

National Labor Relations Board - Board Decisions

Dec 28, 1994

315 N.L.R.B. 1170 (N.L.R.B. 1994)

1170
315 NLRB No. 149
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 313 NLRB 382.
2 As indicated above, the General Counsel has also filed a motion
to correct the certification issued by the Board in the representation
proceeding. The General Counsel asserts therein that the Board inad-
vertently identified the voting group as an appropriate unit and failed
to certify that the voting group was included in the overall unit rep-
resented by the Union. In its response to the General Counsel’s mo-
tion, the Respondent states that it has no objection to correcting the
certification in this manner. Accordingly, the General Counsel’s mo-
tion to correct the certification of representative is granted, and the
certification set forth at 313 NLRB 382, 383, is corrected to read
as follows:
IT IS CERTIFIED that Service Employees International Union,
Local 750, AFL–CIO, CLC, may bargain for the voting group
described below as part of the existing unit of shopping mall
maintenance employees it currently represents:
All full-time and regular part-time food court maintenance em-
ployees including crew leaders, employed by the Employer at
Altamonte Mall, but excluding office clerical employees,
guards and supervisors as defined in the Act, and all other em-
ployees.
The Edward J. DeBartolo Corporation and Service
Employees International Union, Local 750,
AFL–CIO, CLC. Case 12–CA–16098
December 28, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
BROWNING, AND COHEN
On August 1, 1994, the General Counsel of the Na-
tional Labor Relations Board issued an amended com-
plaint alleging that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations
Act by refusing the Union’s request to bargain follow-
ing the certification issued by the Board on November
24, 1993, in Case 12–RC–7611.1 (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 amended
complaint and asserting certain affirmative defenses.
On September 28, 1994, the General Counsel filed
a Motion to Transfer Proceedings to the National
Labor Relations Board, Motion for Summary Judgment
and Brief in Support Thereof and a Motion to Correct
Certification of Representative and Brief in Support
Thereof. On September 30, 1994, the Board issued an
order transferring the proceeding to the Board and a
Notice to Show Cause why the motions should not be
granted. The Respondent filed responses.
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 its objections to conduct affecting the re-
sults of the election 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.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, an Ohio cor-
poration, with a place of business in Altamonte
Springs, Florida, has been engaged in the business of
owning and operating shopping malls.
During the 12-month period preceding issuance of
the complaint, the Respondent, in conducting its busi-
ness operations, derived gross revenues in excess of
$100,000, of which in excess of $25,000 was derived
from businesses which in turn met other than a solely
indirect standard for assertion of the Board’s jurisdic-
tion. We find that the Respondent is an employer en-
gaged 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
Since at least July 7, 1991, and at all material times,
the Union has been the designated exclusive bargain-
ing representative of a unit of shopping mall mainte-
nance employees employed by the Respondent, as de-
scribed in successive collective bargaining agreements,
the most recent of which is effective from July 6,
1994, to July 6, 1997.
The Respondent has recognized the Union as the ex-
clusive bargaining representative of the employees in
the above unit, and this recognition has been embodied
in successive collective-bargaining agreements, the
most recent of which is effective from July 6, 1994,
to July 6, 1997.
Pursuant to a Stipulated Election Agreement, on
May 20, 1993, an election was held among the follow-
ing employees (the voting group):
All full-time and regular part-time food court
maintenance employees including crew leaders,
employed by the Employer at Altamonte Mall, but
1171EDWARD J. DEBARTOLO CORP.
3 As part of the remedy, the complaint requests that the Board re-
quire the Respondent to bargain in good faith with the Union as the
exclusive representative of the voting group for the period set forth
in Mar-Jac Poultry, 136 NLRB 785 (1962). The Respondent’s an-
swer denies that such a remedy is appropriate, however, and we
agree. We find that such a remedy is inappropriate where, as here,
the underlying representation proceeding involved a self-determina-
tion election. In such circumstances the certification merely certifies
that the voting group voted to be included in the overall unit cur-
rently represented by the Union and that the Union may bargain for
the voting group as part of that unit. Such a certification does not
certify that the voting group constitutes a separate appropriate unit,
or that the Union is the exclusive bargaining representative of the
overall unit. In these circumstances, we find that a remedy which
would effectively bar any representation petition until the parties had
bargained for at least a year with respect to the voting group is inap-
propriate. Although we recognize that a Mar-Jac remedy has some-
times been included in prior Board orders in cases involving self-
determination elections (compare Raytheon Co., 296 NLRB No. 162
(Oct. 11, 1989) (not reported in Board volumes), enfd. 918 F.2d 249
(1st Cir. 1990), and American Printers & Lithographers, 275 NLRB
1490 (1985), enfd. 820 F.2d 878 (7th Cir. 1987), with Southern Indi-
ana Gas Co., 284 NLRB 895 (1987), enfd. 853 F.2d 580 (7th Cir.
1988)), no rationale is set forth in those decisions and thus it is un-
clear whether the issue was actually considered. In any event, for the
reasons set forth above, we overrule such cases to the extent incon-
sistent herewith.
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
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.’’
excluding office clerical employees, guards and
supervisors as defined in the Act, and all other
employees.
Pursuant to the Stipulated Election Agreement, the
Respondent and the Union agreed that if a majority of
the valid ballots were cast in favor of the Union, this
would be deemed to indicate the voting group’s desire
to be included in the existing unit of mall maintenance
employees already represented by the Union. A major-
ity of the voting group voted in favor of representation
by the Union at the May 20, 1993 election, and the
Board so certified on November 24, 1993.
The employees in the recognized unit, including the
voting group, constitute a unit appropriate for purposes
of collective bargaining.
At all times since November 24, 1993, based on
Section 9(a) of the Act, the Union has been, and con-
tinues to be, the exclusive collective-bargaining rep-
resentative of the unit, including the voting group.
B. Refusal to Bargain
Since about mid-December 1993, the Union has ver-
bally requested the Respondent to bargain with it as
the exclusive bargaining representative of the voting
group, and, since about mid-December 1993, the Re-
spondent has refused. We find that this refusal con-
stitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing since mid-December 1993, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the voting group, the
Respondent has engaged in unfair labor practices af-
fecting 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.3
ORDER
The National Labor Relations Board orders that the
Respondent, the Edward J. DeBartolo Corporation,
Altamonte Springs, Florida, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Service Employees
International Union, Local 750, AFL–CIO, CLC 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 following group of employ-
ees as part of the recognized appropriate unit of shop-
ping mall maintenance employees employed by Re-
spondent on terms and conditions of employment, and
if an understanding is reached, embody the understand-
ing in a signed agreement:
All full-time and regular part-time food court
maintenance employees including crew leaders,
employed by the Employer at Altamonte Mall, but
excluding office clerical employees, guards and
supervisors as defined in the Act, and all other
employees.
(b) Post at its facility in Altamonte Springs, Florida,
copies of the attached notice marked ‘‘Appendix.’’4
Copies of the notice, on forms provided by the Re-
gional Director for Region 12, 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.
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(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 Service Em-
ployees International Union, Local 750, AFL–CIO,
CLC 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
set forth below as part of the recognized appropriate
unit of shopping mall maintenance employees em-
ployed by us:
All full-time and regular part-time food court
maintenance employees including crew leaders,
employed by us at Altamonte Mall, but excluding
office clerical employees, guards and supervisors
as defined in the Act, and all other employees.
THE EDWARD J. DEBARTOLO CORPORATION