All Seasons Heating and Air Conditioning

ALL SEASONS HEATING AND AIR CONDITIONING 49 All Seasons Heating and Air Conditioning, Inc. and Sheet Metal Workers Local Union #242, Sheet Metal Workers International Association, AFL- CIO, CLC. Case 19-CA-12955 May 18, 1981 DECISION AND ORDER Upon a charge filed on November 13, 1980, by Sheet Metal Workers Local Union #242, Sheet Metal Workers International Association, AFL- CIO, CLC, herein called the Union, and duly served on All Seasons Heating and Air Condition- ing, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a com- plaint and notice of hearing on December 15, 1980, against Respondent, alleging that Respondent had engaged in and was engaging 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 National Labor Relations Act, as amended. Copies of the charge and 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 complaint alleges in substance that on September 30, 1980, following a Board election in Case 19- RC-9811, the Union was duly certified as the ex- clusive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;1 and that, commencing on or about October 15, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On Decem- ber 22, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On January 5, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 13, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. I Official notice is taken of the record in the representation proceed- ing, Case 19-RC-9811, as the term "record" is defined in Sees. 1()2.t and 102.69(g) of the Hoard's Rules and Regulations, Series 8, as amended See LTV Electroystenems, Inc. 166 NLRB 938 (1967). enfd 388 F 2d 6tl (4th Cir 1968); Golden .4ge Reverage Co., 167 NLRB 151 (1967), enfd 415 F.2d 26 (5th Cir. 1969) Interrype Co. v. Penello, 269 F.Supp 571 (DC.Va 1967) Follett Corp. 164 NIRB 378 (1967). enfd 397 F:2d 91 (7th Cir. 1968): Sec 9(d) of the NLRA. as amended 256 NLRB No. 11 Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint, Respondent admits that the Union has been certified as the col- lective-bargaining representative of the employees in the appropriate unit. Respondent also admits that the Union requested it to bargain collectively with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment, and that it has failed and refused to recog- nize and to bargain with the Union. Respondent contends, however, that the certification was im- proper, and denies that the Union is the exclusive representative of the employees. In its response to the Notice to Show Cause dated January 20, 1981, Respondent asserts that its objections to the elec- tion were meritorious, and also asserts for the first time that the Regional Director failed to make a full investigation into its objections. 2 Respondent does not explicate the basis for this last assertion. Review of the record herein, including the record in Case 19-RC-9811, reveals that on or about June 4, 1980, Respondent and the Union en- tered into a Stipulation for Certification Upon Con- sent Election in a unit of all employees but exclud- ing office clerical employees, salespersons, profes- sional employees, guards and supervisors as defined in the Act. Subsequently, on June 26, 1980, in a secret-ballot election a majority of the unit employ- ees designated and selected the Union as their col- lective-bargaining representative. On July 1, 1980, Respondent filed timely objec- tions to conduct affecting the results of the elec- tion. Subsequently, the Regional Director for Region 19 conducted an investigation of these ob- jections. In a Report on Objections dated August 18, 1980, the Regional Director recommended that Respondent's objections be overruled in their en- tirety, and that the Board issue a Certification of Representative. On August 25, 1980, Respondent filed exceptions to the Regional Director's Report on Objections. On September 30, 1980, the Board issued a Deci- sion and Certification of Representative, finding that the exceptions did not raise any material issues of fact or law which would warrant reversal of the Regional Director, and certified the Union as the collective-bargaining representative for the above- described unit of employees. On or about October 2, 1980, the Union requested Respondent to bargain ()li Janual5 26, 1981, Respi dent. to supplement its asver to the General Counsel nmotion, filed a copy of ts exceptions to the Regional Iirect lor's Report n Ohiecltions inl the lnderlyinig representation ca.eic 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with it concerning rates of pay, wages, hours of employment, and other terms and conditions of em- ployment. On October 15, 1980, Respondent denied the Union's request to bargain. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.s We find no merit in Respondent's assertion, made for the first time in its response to the Notice To Show Cause, that the Regional Director failed to fully in- vestigate its objections. Respondent did not raise this issue in its exceptions to the Regional Direc- tor's Report on Objections in the underlying repre- sentation proceeding, nor does it offer any evi- dence to substantiate its claim at this time. Further- more, the balance of Respondent's defense herein is an attempt to relitigate its objections considered and rejected by the Board in the underlying repre- sentation proceeding. All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which 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 I. THE BUSINESS OF RESPONDENT Respondent is engaged in the business of sheet metal fabrication with offices and place of business in Yakima, Washington. During the past 12 months preceding the issuance of the complaint, a period representative of all times material herein, Re- spondent had gross sales of goods and services valued in excess of $500,000 and during the same period it purchased and caused to be transferred and delivered to its facilities within the State of Washington goods and materials valued in excess of $50,000 directly from sources outside the State or from suppliers within the State which in turn obtained goods and materials from outside the State of Washington. 3 See Pittsburgh Plate Glass Co. v. NL.R.B, 313 U S. 146, 162 (1941); Rules and Regulations of the Board. Secs. 102.67(f and 102.69 (cL. We find, on the basis of the foregoing, that Re- spondent 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 effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Sheet Metal Workers Local Union #242, Sheet Metal Workers International Association, AFL- CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding i. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees of the Employer at its Yakima, Washington, facility, but excluding office cleri- cal employees, salespersons, professional em- ployees, guards and supervisors as defined in the Act. 2. The certification On June 26, 1980, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 19, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certi- fied as the collective-bargaining representative of the employees in said unit on September 30, 1980, and the Union continues to be such exclusive rep- resentative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about October 2, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about October 15, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since October 15, 1980, and at all times thereafter, re- ALL SEASONS HEATING AND AIR CONDITIONING 51 fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent 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 All Seasons Heating and Air Conditioning, Inc., 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 it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. All Seasons Heating and Air Conditioning, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers, Local Union #242, Sheet Metal Workers International Association, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the Employer at its Yakima, Washington, facility, but excluding office clerical employees. salespersons, professional employees, guards and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since September 30, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 15, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) 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 Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, All Seasons Heating and Air Conditioning, Inc., Yakima, Washington, its officers, agents, succes- sors, 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 Sheet Metal Work- ers, Local Union #242, Sheet Metal Workers Inter- national Association, AFL-CIO, CLC, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All employees of the Employer at its Yakima, Washington, facility, but excluding office cleri- cal employees, salespersons, professional em- ployees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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: 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit 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. (b) Post at its Yakima, Washington, facility copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 19, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 4 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 Pursu- ant 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with Sheet Metal Workers, Local Union #242, Sheet Metal Workers International Associ- ation, AFL-CIO, CLC, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees of the Employer at its Yakima, Washington, facility, but excluding office clerical employees, salespersons, pro- fessional employees, guards and supervisors as defined in the Act. ALL SEASONS HEATING AND AIR CONDITIONING, INC.