King Electric, Inc.,

343 NLRB No. 54 King Electric, Inc. and International Brotherhood of Electrical Workers, Local Union No. 8, AFL– CIO. Case 8–CA–35105 October 29, 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 and an amended charge filed on June 15 and August 4, 2004, respectively, the General Counsel issued the complaint on August 19, 2004, alleg- ing 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 8–RC–16240. (Official notice is taken of the “record” in the representa- tion 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 complaint, and asserting affirmative defenses. On September 13, 2004, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support. On September 16, 2004, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be granted. The Respondent filed a response. Thereafter, the Union also filed a Motion for Summary Judgment. 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.1 1 The Respondent also contends that a change in the size of the bar- gaining unit from 11 to 6 employees shortly after the election consti- tutes “unusual circumstances” relieving it of its obligation to bargain with the Union. In support of this contention the Respondent princi- pally relies on Ray Brooks v. NLRB, 348 U.S. 96, 98 (1954), wherein the Court noted that the Board has evolved the following rule: “A certi- fication, if based on a Board-conducted election, must be honored for a ‘reasonable period,’ ordinarily ‘one year,’ in the absence of ‘unusual circumstances.’” The Court further noted that in “representation cases in which a rival union sought a new election less than a year after certi- fication,” the Board has found such “unusual circumstances,” where “the size of the bargaining unit fluctuated radically within a short time.” 348 U.S. at 99, citing Westinghouse Electric & Mfg. Co., 38 NLRB 404, 409 (1942). The Respondent’s reliance on Ray Brooks is misplaced. The rule quoted in Ray Brooks pertaining to radical fluctuations in the size of the bargaining unit was developed by the Board in a representation case where the issue was whether to entertain a new petition within one year 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.2 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the General Counsel’s Motion for Sum- mary Judgment.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, an Ohio corpo- ration, has been engaged in retail electrical contracting from its facility located in Toledo, Ohio. Annually, in the course and conduct of its business, the Respondent derives gross revenues in excess of $500,000 from its Toledo, Ohio facility and purchases and receives materi- als valued in excess of $2000 directly from points lo- cated outside the State of Ohio. 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 International Brotherhood of Electrical Workers, Local Union No. 8, AFL–CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act. of the issuance of a certification. In unfair labor practice cases, such as this, involving an employer’s refusal to recognize a union during the initial year of certification, the Board has uniformly held that employee turnover does not constitute “unusual circumstances” relieving an em- ployer of its obligation to bargain. See, e.g., Action Automotive, 284 NLRB 251 fn. 1 (1987), enfd. 853 F.2d 433 (6th Cir. 1988), cert. de- nied 488 U.S. 1041 (1989), and Murphy Bros., 265 NLRB 1574, 1575, fn. 3 (1982) (employee turnover not the kind of “unusual circumstance” within the meaning of the Supreme Court’s decision in Ray Brooks that would permit rebuttal of union’s majority status during the certification year). 2 Member Schaumber and Member Meisburg did not participate in the Board’s November 30, 2001 Decision and Order or in the Board’s December 20, 2001 Decision and Order in the representation proceed- ing. However, they agree that the Respondent has not raised any new matters or special circumstances warranting a hearing in this proceed- ing or reconsideration of the decisions and orders in the representation proceeding. 3 The Respondent’s motion to dismiss the complaint, its request for oral argument, and its request for reconsideration of the Board’s deci- sions and orders in the representation proceeding are therefore denied. Further, in view of this result, we find it unnecessary to rule on the Union’s Motion for Summary Judgment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held August 9, 2001, the Union was certified on April 29, 2004, as the exclusive collec- tive-bargaining representative of the employees in the following appropriate unit: All electrical workers, journey persons, and electrical apprentices employed by the Employer at its 1952 West Sylvania, Toledo, Ohio, facility, but excluding all office clerical employees, owners, professional em- ployees, 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 The Union, by letter dated May 18, 2004, requested the Respondent to bargain, and, since about May 18, 2004, the Respondent has failed and refused to do so. 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 failing and refusing on and after May 18, 2004, to bargain with the Union as the exclusive collective- bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices 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 the law, we shall construe the initial period of the cer- tification 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, King Electric, Inc., Toledo, Ohio, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Brotherhood of Electrical Workers, Local Union No. 8, AFL–CIO, 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 electrical workers, journey persons, and electrical apprentices employed by the Employer at its 1952 West Sylvania, Toledo, Ohio, facility, but excluding all office clerical employees, owners, professional em- ployees, guards, and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Toledo, Ohio, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent’s authorized representa- tive, 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 Respon- dent 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 Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since May 18, 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 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 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.” KING ELECTRIC, INC. 3 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 International Brotherhood of Electrical Workers, Local Union No. 8, AFL–CIO, as the exclusive representative of the employ- ees 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 bargaining unit: All electrical workers, journey persons, and electrical apprentices employed by us at our 1952 West Sylvania, Toledo, Ohio, facility, but excluding all office clerical employees, owners, professional employees, guards, and supervisors as defined in the Act. KING ELECTRIC, INC.