STAR WEST SATELLITE, INC.,

National Labor Relations Board - Board DecisionsMay 23, 2012

358 NLRB No. 44 (N.L.R.B. 2012)

358 NLRB No. 44 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Star West Satellite, Inc. and International Brother- hood of Electrical Workers Local 206 Affiliated with International Brotherhood of Electrical Workers, AFL–CIO. Case 19–CA–075174 May 23, 2012 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HAYES AND GRIFFIN This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed by the Union on February 23, 2012, the Acting General Counsel issued the amended complaint on March 29, 2012, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 19–RC–015362. (Offi- cial notice is taken of the “record” in the representation proceeding as defined in the Board’s Rules and Regula- tions, 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. On April 13, 2012, the Acting General Counsel filed a Motion for Summary Judgment. On April 17, 2012, 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 response, and the Acting General Counsel filed a reply. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification on the basis of its objections to conduct alleged to have affected the results of the election in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair 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 a State of Montana corporation with various offices and places of business in Idaho and Montana, including Bozeman and Kalispell, Montana, and Idaho Falls, Nampa, and Post Falls, Idaho, where it is engaged in the business of providing installation and repair services for satellite television systems. The Respondent, during the 12-month period preced- ing issuance of the amended complaint, a representative period, in conducting its business operations described above, derived gross revenues in excess of $500,000 and provided goods and services valued in excess of $50,000 directly to customers located outside the State of Mon- tana. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union, International Brother- hood of Electrical Workers Local 206 affiliated with In- ternational Brotherhood of Electrical Workers, AFL– CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on Septem- ber 7 and 8, 2011, the Union was certified on December 15, 2011, as the exclusive collective-bargaining represen- tative of the employees in the following appropriate unit: All full-time and regular part-time technicians, includ- ing quality control technicians, lead technicians, instal- lation technicians, training technicians, and warehouse employees employed by the Employer; excluding all other employees, office clerical employees, dispatch employees, route assigners, confidential employees, and guards and supervisors as defined by the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain At all material times, the following individuals held the positions set forth opposite their respective names 1 The Respondent’s request that the amended complaint be dismissed is therefore denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Derek Bieri - Field Operations Director Parker Estes - Field Service Manager Leisl Mooer - Controller Nola Perkins - Operations Director Roman Uzarraga - Field Service Manager Pete Sobrepena - President On January 5, 2012, the Union, by letter, requested the Respondent to recognize and bargain collectively with it as the exclusive collective-bargaining representative of the unit. Since that date, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that this failure and refusal constitutes an un- lawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since January 5, 2012, to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of the 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 initial period of the certifi- cation 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, Star West Satellite, Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Brotherhood of Electrical Workers Local 206 affiliated with International Brotherhood of Electri- cal Workers, AFL–CIO, as the exclusive collective- bargaining representative of the employees in the bar- gaining unit. (b) In any like or related manner interfering with, re- straining, 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 exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: All full-time and regular part-time technicians, includ- ing quality control technicians, lead technicians, instal- lation technicians, training technicians, and warehouse employees employed by the Employer; excluding all other employees, office clerical employees, dispatch employees, route assigners, confidential employees, and guards and supervisors as defined by the Act. (b) Within 14 days after service by the Region, post at all facilities, copies of the attached notice marked “Ap- pendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 con- secutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means.3 Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 3 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec- tronic distribution of the notice. STAR WEST SATELLITE 3 copy of the notice to all current employees and former employees employed by the Respondent at any time since January 5, 2012. (c) Within 21 days after service by the Region, file with the Regional Director for Region 19 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. May 23, 2012 Mark Gaston Pearce, Chairman Brian E. Hayes, Member Richard F. Griffin, Jr., Member (SEAL) 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with International Brotherhood of Electrical Workers Local 206 affiliated with International Brotherhood of Electrical Workers, AFL–CIO, as the exclusive collec- tive-bargaining 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 listed above. 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 fol- lowing bargaining unit: All full-time and regular part-time technicians, includ- ing quality control technicians, lead technicians, instal- lation technicians, training technicians, and warehouse employees employed by the Star West Satellite, Inc.; excluding all other employees, office clerical employ- ees, dispatch employees, route assigners, confidential employees, and guards and supervisors as defined by the Act. STAR WEST SATELLITE, INC.