Valcourt Build Services

National Labor Relations Board - Board DecisionsSep 30, 2004

343 N.L.R.B. 25 (N.L.R.B. 2004)

343 NLRB No. 25 Valcourt Building Services, Inc. and Painters, District Council 711. Case 22–CA–26491 September 30, 2004 DECISION AND ORDER BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG 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 on July 19, 2004, the General Counsel issued the complaint on August 4, 2004, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bar- gain following the Union’s certification in Case 22–RC– 12384. (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 and amended answer admitting in part and denying in part the allegations in the complaint, and setting forth an affirmative defense. On August 27, 2004, the General Counsel filed a Mo- tion for Summary Judgment. On August 31, 2004, 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. 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 based on its objec- tions 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). Accord- ingly, we grant the Motion for Summary Judgment.1 On the entire record, the Board makes the following 1 The Respondent’s request to dismiss the complaint is therefore de- nied. FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Virginia cor- poration with an office and place of business in Eliza- beth, New Jersey, has been engaged in the provision of building restoration services.2 During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business operations described above, purchased and received at its Elizabeth, New Jersey facility goods and supplies valued in excess of $50,000 directly from suppliers located out- side the State of New Jersey. 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 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 on October 8, 2003, the Union was certified on May 20, 2004, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All restoration division mechanics including foremen and drivers employed by the Employer at its Elizabeth, New Jersey facility but excluding all window cleaning division employees, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain On about May 26, 2004, the Union by letter requested the Respondent to recognize it and bargain and, since about June 2, 2004, 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 June 2, 2004, to bargain with the Union as the exclusive collective-bargaining repre- sentative of employees in the appropriate unit, the Re- spondent 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. 2 In the underlying representation proceeding, the Stipulated Election Agreement identified the Respondent as Valcourt Building Services, Inc. However, in its amended answer to the complaint in the instant proceeding, the Respondent states that its legal name is Valcourt Exte- rior Building Services of New Jersey, LC. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 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, Valcourt Building Services, Inc., Elizabeth, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Painters, District Council 711, as the exclusive bargaining representative of the employees in the bargaining 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 representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All restoration division mechanics including foremen and drivers employed by the Employer at its Elizabeth, New Jersey facility but excluding all window cleaning division employees, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Elizabeth, New Jersey, copies of the at- tached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 3 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.” 22, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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 al- tered, 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 facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since June 2, 2004. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent 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 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 refuse to bargain with Painters, District Council 711, as the exclusive representative of the em- ployees 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 fol- lowing appropriate unit: All restoration division mechanics including foremen and drivers employed by us at our Elizabeth, New Jer- sey facility but excluding all window cleaning division employees, office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. VALCOURT BUILDING SERVICES 3 VALCOURT BUILDING SERVICES, INC.