The Pierre Apartments

THE PIERRE APARTMENTS 445 Abraham Sommer, d/b/a The Pierre Apartments and Local 734, Service Division, Laborers International Union of North America, AFL-CIO. Case 22-CA-6089 April 21, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS , AND KENNEDY relied on its memorandum in opposition to motion for summary judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT Upon a charge filed on October 8, 1974, by Local 734, Service Division, Laborers International Union of North America, AFL-CIO, herein called the Union, and duly served on Abraham Sommer, d/b/a The Pierre Apartments, herein called Respondent, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 22, issued a com- plaint on November 14, 1974, against Respondent, al- leging that Respondent had engaged in and was engag- ing in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on August 30, 1974, following a Board election in Case 22-RC-6117 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about September 13, 1974, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On November 20, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On December 19, 1974, counsel for the General Counsel filed directly with the Board a motion for summary judgment. On January 6, 1975, the Respond- ent filed a memorandum in opposition to motion for summary judgment. Subsequently, on January 7, 1975, the Board issued an order transferring the proceeding to the Board and a notice to show cause why the Gen- eral Counsel's motion for summary judgment should not be granted. Respondent responded stating that it Official notice is taken of the record in the representation proceeding, Case 22-RC-6117, formerly 22-RC-7017, as the term "record" is defined in Secs . 102.68 and 102 . 69(g) of the Board's Rules and Regulations , Series 8, as amended . See LTV/Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. In its answer to the complaint and in its motion in opposition to the motion for summary judgment Re- spondent contends that it is not obliged to bargain with the Union, because the certification of the Union was invalid since the Regional Director erroneously over- ruled its objections to the conduct of the election in the underlying representation proceeding and denied it a hearing thereon. The General Counsel contends that all matters sought to be litigated herein were disposed of by the Regional Director in his report on objections and by the Acting Regional Director in his order on motion for reconsideration. We agree with the General Counsel. Our review of the record in Case 22-RC-6117 dis- closes that, in an election conducted pursuant to an agreement for consent election, the vote was 5 to 4 in favor of the Union with no unresolved challenges. Re- spondent filed timely objections to the conduct of the election alleging, in essence, that the Board agent con- ducting the election had closed the polls early and re- opened them to permit an employee to vote; improperly refused to permit Respondent to maintain its challenge to the ballot of a supervisor; failed to interpose a chal- lenge to a ballot when a union challenge to the ballot was withdrawn; and permitted a supervisor to vote. After an investigation the Regional Director overruled Respondent's objections and certified the Union. Thereafter, Respondent filed a motion for reconsidera- tion which was denied by the Acting Regional Director on October 8, 1974, in an order denying motion for reconsideration on the ground that it raised no matters not fully considered by the Regional Director in his August 30, 1974, report on objections and certification. In its memorandum in opposition to the motion for summary judgment Respondent reiterates the conten- tions advanced in its objections and in its motion for reconsideration which, as noted above, were considered and disposed of, respectively, by the Regional Director and the Acting Regional Director. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior 217 NLRB No. 68 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation proceeding.' Here, Respondent not only raises no issues not determined by the Regional Director under his authority to make final and binding determinations bestowed upon him by the parties to the consent election agreement, but it also has failed to appeal the Regional Director's determinations to the Board. In its memorandum in opposition to the motion for summary judgment Respondent seeks to have the case remanded to the Regional Director for hearing, con- tending that the Regional Director erroneously over- ruled Respondent's objection to the resolution of a challenge to a ballot without affording Respondent a hearing on conflicting evidentiary allegations, and that the Board agent misled Respondent's representatives as to their right to challenge the determinative ballot after the Union had withdrawn its challenge thereto. Re- spondent is thus contending, in substance, that the Re- gional Director's decision was arbitrary and capricious. It appears from the record in the representation pro- ceeding that the Board agent closed the polls after be- ing informed by the observers that all eligible voters had cast ballots. Prior to the opening of the ballot box, the assistant to the president of the Respondent advised the Board agent that employee Lekaj had not voted and offered to tell Lekaj that the polls were opened. The Board agent reopened the polls to accept Lekaj's ballot which the Union challenged on the ground that he was a supervisor. After the counting of the ballots, which disclosed that four were cast for, and four against, the Union, the Union withdrew its challenge to Lekaj's ballot. The Respondent then sought to challenge Le- kaj's ballot. The Regional Director found, and Re- spondent does not deny, that Respondent had listed Lekaj as an eligible voter on the eligibility list submitted to the Regional Office prior to the election and that, when the Board agent had unsuccessfully attempted to resolve the Respondent's challenge to Lekaj's ballot prior to the ballot count, Respondent's representative agreed that Lekaj was an eligible voter. Later, following withdrawal of the Union's challenge and following its own statement that it was challenging Lekaj's vote, Respondent signed a statement, agreeing that Lekaj was an eligible voter, on the challenged envelope at which time the ballot was opened and counted. It has long been the Board's policy to refuse to re- view the merits of a Regional Director's determinations under a consent-election agreement, which the parties agree are final and binding upon them, unless fraud, misconduct, or such gross mistakes are found so as to imply bad faith and support a conclusion that the rul- 2 See Pittsburgh Plate Glass Co. v. N.L.R.B. 313 U.S. 146, 162 (1941); Rules and Regulations of the Board , Secs. 102.67 (t) and 102 .69(c). 3 Vanella Buick Opel, Inc., 196 NLRB 215 (1972), and cases cited in fn. 4 therein. ings were arbitrary or capricious.' On the record here we find that the consideration of the entire record before the Regional Director constituted a sufficient investigative basis for his determinations in Case 22-RC-6117 which were neither arbitrary nor capri- cious. We, therefore, find no issue has been raised that is properly litigable in this unfair labor practice proceeding.' Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an individual enterprise with an office and apartment house in Hackensack, New Jersey, is engaged in the business of providing apartment housing and related services. During the past year Respondent had a gross revenue in excess of $500,000 from its Hackensack apartment house. During the same period it purchased fuel valued in excess of $50,000 from sup- pliers within the State of New Jersey who purchased it from sources outside the State of New Jersey. We find, on the basis of the foregoing, that Respond- ent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectu- ate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED Local 734, Service Division, Laborers International Union of North America, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: In its answer to the complaint Respondent has in effect denied certain allegations of the complaint. As to Respondent 's status as an employer within the meaning of Sec. 2(6) and (7) of the Act, and the Union's status as a labor organization within the meaning of Sec. 2(5) of the Act, these were stipulated by the Respondent and so found by the Regional Director in the underlying representation proceeding , Case 22-RC-6117, and therefore may not be relitigated herein . See Raub Supply Company, 215 NLRB No. 75 (1974). As to the request to bargain , there are attached to the General Counsel's Motion for Summary Judgment copies of two letters from the Union to Respondent in which bargaining was requested . The contents of these letters have not been controverted or alluded to by the Respondent and thus establish the denied allegation of the complaint . Accordingly, these three denied allegations are deemed to be true and are so found. Jason/Em- pire, Inc., 212 NLRB 137 (1974). THE PIERRE APARTMENTS All service employees employed at Respon- dent's Hackensack Apartment House , including doormen, porters, and maintenance employees, but excluding all office clerical employees, profes- sional employees , guards, all other employees, and all supervisors as defined in. the Act. 2. The certification On July 18, 1974, a majority of the employees of Respondent in said unit , in a secret ballot election con- ducted under the supervision of the Regional Director for Region 22 designated the Union as their representa- tive for the purpose of collective bargaining with the Respondent. The Union was certified as the collective- bargaining representative of the employees in said unit on' August 30, 1974, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about September 13, 1974, and on or about October 2, 1974, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargain- ing representative of all the employees in the above- described unit . Commencing on or about September 13, 1974, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since September 13, 1974, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act , we shall order that 447 it cease and desist therefrom, and, upon request, bar- gain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Com- pany, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Abraham Sommer, d/b/a The Pierre Apartments, is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Local 734, Service Division, Laborers Interna- tional Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All service employees employed at Respondent's Hackensack Apartment House, including doormen, porters, and maintenance employees, but excluding all office clerical employees, professional employees, guards, all other employees, and all supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since August 30, 1974, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about September 13, 1974, and at all times thereafter to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respond- ent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is in- terfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engag- 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Abraham Som- mer, d/b/a The Pierre Apartments, Hackensack, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local 734, Service Division, La- borers International Union of North America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All service employees employed at Respon- dent's Hackensack Apartment House, including doormen, porters, and maintenance employees, but excluding all office clerical employees, profes- sional employees, guards, all other employees, and all supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its office and apartment house in Hacken- sack, New Jersey, copies of the attached notice marked "Appendix."' Copies of said notice, on forms pro- vided by the Regional Director for Region 22 after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or cov- ered by any other, material. (c) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 In the event that 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Local 734, Service Division, Laborers International Union of North America, AFL-CIO, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All service employees employed at Respon- dent's Hackensack Apartment House, includ- ing doormen, porters, and maintenance em- ployees, but excluding all office clerical employees, professional employees, guards, all other employees, and all supervisors as defined in the Act. ABRAHAM SOMMER, D/B/A THE PIERRE APARTMENTS