Mccullough Environmental Services, Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1990

297 N.L.R.B. 546 (N.L.R.B. 1990)

546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McCullough Environmental Services, Inc. and Team-
sters Local Union No. 891, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO. Case 15-CA-10972
January 25, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND CRACRAFT AND
DEVANEY
On September 15, 1989, the General Counsel of
the National Labor Relations Board issued a com-
plaint alleging that the Respondent has violated
Section 8(a)(5) and (1) of the National Labor Rela-
tions Act by refusing the Union's request to bar-
gain following the Union's certification in Case 15-
RC-7452 (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 its answer admitting in part
and denying in part the allegations in the com-
plaint
On October 20, 1989, the General Counsel filed
a Motion to Transfer and Continue Case Before the
National Labor Relations Board and Motion to
Strike' and Motion for Summary Judgment and for
Issuance of Board Decision and Order 2 On Octo-
ber 23, 1989, 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 a response entitled "Motion in
Opposition to Motion to Strike and Motion for
Summary Judgment" The General Counsel and
the Charging Party filed responses to the Respond-
ent's motions
Ruling on Motion for Summary Judgment
In its answer and response to the show cause
notice, the Respondent denies the complaint's ap-
propriate unit allegation and its refusal to bargain,
attacks the validity of the certification on the basis
of the Board's disposition on the status of lead op-
erators in the representation proceeding, and
argues that it was denied due process as the Re-
gional Director did not conduct a hearing to con-
sider the Respondent's objection to the Union's
preelection conduct The Respondent also offers al-
legedly newly discovered evidence, which it claims
both proves the supervisory status of the lead oper-
1 We deny the General Counsel's motion to strike the Respondent s
answer to par 11 of the complaint as a sham answer
2 The Charging Party filed a document urging the Board to grant the
General Counsel's motions
ators and shows that the Respondent has bargained
with the Union
All representation issues raised by the Respond-
ent were or could have been litigated in the prior
representation proceeding The Respondent does
not offer to adduce at a hearing any relevant newly
discovered and previously unavailable evidence,
nor does it allege any special circumstances that
would require the Board to reexamine the decision
made in the representation proceeding 3 We there-
fore 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 General Counsel's
Motion for Summary Judgment
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a Texas corporation with an
office and place of business in Jackson, Mississippi,
has been engaged in the business of operating,
maintaining, and managing water and sewage treat-
ment plants for various municipalities throughout
the United States, including a water and sewage
treatment facility located in Jackson During the
3 The Respondent proffers evidence consisting of letters and memoran-
da that invite the Union to discuss various disciplines imposed on em-
ployees to support its assertion that it has bargained with the Union The
Respondent however, makes no claim that It has bargained or offered to
bargain about a collective-bargaining agreement, nor would its proffered
evidence even remotely support such a contention Further, the Respond-
ent s August 22, 1989 letter in fact denies an obligation to bargain with
the Union about wages, hours, or other conditions of employment be-
cause It disagrees that the Union represents Its employees Even though
the letter purports to request the Union s authonzation to have a credit
union consult with the unit employees, the Respondent s offers do not
constitute the good-faith offer to bargain to which the Union is entitled
See Brooks Inc , 228 NLRB 1365, 1366 (1977), enfd in relevant part 593
F 2d 936 (10th Cir 1979)
The Respondent also proffers evidence consisting of letters and memo-
randa describing the safety responsibilities of lead operators to support its
assertion that lead operators are supervisors Most of the evidence pre-
dates the representation hearing and is therefore not newly discovered
and previously unavailable To warrant a reopened hearing, the remain
mg evidence that the Respondent wishes the Board to consider must be
such that if adduced and credited it would require a different result See
Sec 102 48(d)(1) of the Board s Rules and Regulations and Seder Foods
Corp, 286 NLRB 215 (1987) Here, the evidence does not substantively
differ from the evidence already considered at the representation hearing
and is thus cumulative Having already had a hearing in which the lead
operators status was fully litigated, we find that, to the extent the Re-
spondent relies on additional evidence similar to that already considered,
the Respondent has failed to demonstrate that a further hearing is war-
ranted Furthermore, assuming that the postheanng evidence shows
changes in the lead operators duties, these unilateral changes would have
occurred when the Respondent was obligated to bargain with the Union
We cannot consider such changes in the context of a refusal to bargain
See Southwestern Bell Telephone Co, 235 NLRB 963 fn 2 (1978) Accord
ingly, we find that the Respondent s proffer does not warrant a reopened
hearing
297 NLRB No 79
MCCULLOUGH ENVIRONMENTAL SERVICES 547
12-month period ending August ,31, 1989, a repre-
sentative period, Respondent, in the course and
conduct of its business operations, provided serv-
ices in excess of $50,000 to customers located out-
side the State of Texas We find that the Respond-
ent 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
The following employees of the Respondent con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act
All operators and shift operators, mechanics
and mechanics/helpers, laborers and utility
employees, laboratory technicians, field inspec-
tors, electricians, instrument men, lead opera-
tors and lead relief operators employed by the
Respondent and working at the Jackson, Mis-
sissippi wastewater treatment plant, excluding
office clerical personnel, and guards, profes-
sional employees, and supervisors as defined in
the Act
On August 1, 1989, the Union was certified as
the exclusive bargaining representative of the unit
Since August 1, 1989, the Union, by virtue of Sec-
tion 9(a) of the Act, has been, and is, the exclusive
representative of the unit for the purposes of col-
lective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment
B Refusal to Bargain
On August 3, 1989, the Union, by letter, request-
ed the Respondent to recognize it as the exclusive
collective-bargaining representative of the employ-
ees in the unit and to bargain collectively with it as
the exclusive collective-bargaining representative
of the employees in the unit with respect to rates
of pay, wages, hours of employment, and other
terms and conditions of employment On August
22, 1989, the Respondent, by letter, refused to rec-
ognize and bargain with the Union as the exclusive
collective-bargaining representative of the unit We
find that this refusal constitutes an unlawful refusal
to bargain in violation of Section 8(a)(5) and (1) of
the Act
CONCLUSIONS OF LAW
By refusing since August 22, 1989, to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor
practices affecting 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
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 (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
Go, 149 NLRB 1419, 1421 (1964), enfd 350 F 2d
57 (10th Cir 1965)
ORDER
The National Labor Relations Board orders that
the Respondent, McCullough Environmental Serv-
ices, Inc , Jackson, Mississippi, its officers, agents,
successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain with Teamsters Local
Union No 891, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL-CIO as the ex-
clusive bargaining representative of the employees
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 operators and shift operators, mechanics
and mechanics/helpers, laborers and utility
employees, laboratory technicians, field inspec-
tors, electricians, instrument men, lead opera-
tors and lead relief operators employed by the
Respondent and working at the Jackson, Mis-
sissippi wastewater treatment plant, excluding
office clerical personnel, and guards, profes-
ic
:-1
-.:
548 ' DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sional employees, and supervisors as defined in
the Act
(b) Post at its facility in Jackson, Mississippi,
copies of the attached noticed marked "Appen-
dix "4 Copies of the notice, on forms provided by
the Regional Director for Region 15, 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 Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(c) Notify the Regional Director in wnting
within 20 days from the date of this Order what
steps the Respondent has taken to comply
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"
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 Teamsters
Local Union No 891, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen and Helpers of America, AFL-CIO 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 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 operators and shift operators, mechanics
and mechanics/helpers, laborers and utility
employees, laboratory technicians, field inspec-
tors, electricians, instrument men, lead opera-
tors and lead relief operators employed by us
and working at our Jackson, Mississippi
wastewater treatment plant, excluding office
clerical personnel, and guards, professional
employees, and supervisors as defined in the
Act
MCCULLOUGH ENVIRONMENTAL
SERVICES, INC