Georgetown Development and Management Corp.

GEORGETOWN DEVELOPMENT AND MANAGEMENT CORP. Georgetown Development and Management Corpora- tion and Local 227, Service Employees Interna- tional Union, AFLCIO. Case 3-CA-6902 July 8, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on January 24, 1977, by Local 227, Service Employees International Union, AFL- CIO, herein called the Union, and duly served on Georgetown Development and Management Corpo- ration, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3, issued a complaint on February 18, 1977, and an amended complaint on March 9, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 Adminis- trative 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 December 17, 1976, following a Board election in Case 3-RC-6474 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about December 17, 1976, and more particularly on January 11, 1977, and at all times thereafter, Respondent has refused, and con- tinues 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 February 28, 1977, and March 28, 1977, respectively, Respondent filed its answer to the complaint and an amended answer admitting in part, and denying in part, the allegations in the complaint. On April 7, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 14, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter did not file a response to Notice To Show Cause. I official notice is taken of the record in the representation proceeding. Case 3-RC 6474, 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 Electrovstems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 230 NLRB No. 99 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 In its answer to the complaint, Respondent denies the validity of the Board's certification of the Union on the basis of its objections to the election and the Board's disposition of a determinative challenge to the ballot of an alleged supervisor in the underlying representation proceeding. The General Counsel contends that Respondent is attempting to relitigate matters considered and determined in the representa- tion proceeding and that there are no factual issues remaining for determination in this proceeding. We agree with the General Counsel. Review of the entire record, including that in the representation proceeding in Case 3-RC--6474, dis- closes that in an election conducted on December 5, 1975, pursuant to a Stipulation for Certification Upon Consent Election, the tally of ballots revealed that 11 votes were cast for, and 10 against, the Union, and that I ballot was challenged. The Union had challenged the ballot on the ground that the voter was a supervisor. Both Respondent and the Union filed timely objections to conduct affecting the result of the election. The Union's objection alleged that the employee eligibility list furnished the Union was incomplete because of the omission of the name of an eligible voter. Respondent's objection alleged, in substance, that the Union had failed to disclose to employees, prior to the election, that the Union local involved herein had been placed in trusteeship by the International Union. After an investigation, the Regional Director issued on January 9, 1976, a Report on Objections and Challenged Ballot and Order Directing Hearing on Challenged Ballot in which he recommended that the objections be overruled in their entirety and directed a hearing to resolve the issues raised by the challenged ballot. Respondent filed timely excep- tions to the Regional Director's report on objections and a brief in support of its exceptions in which it contended that the election should be set aside on the basis of its objections regarding the imposition of a trusteeship upon the union local and requested a full hearing on its objections. On April 26, 1976, the Board issued a Decision and Order Directing Hearing in which it adopted the findings, conclu- 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969). Inrertspe Co. v. Penello, 269 F.Supp. 573 (D.C.Va.. 1967): Follettrr Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C.A. 7. 1968); Sec. 9(d) of the NLRA, as amended. 707 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sions, and recommendations of the Regional Direc- tor and directed a hearing only to receive evidence on the alleged supervisory status of the challenged voter. After a hearing, on June 2, 3, 10 and 11, 1976, in which all parties participated, the Hearing Officer issued a report on the challenged ballot in which he concluded that the challenged voter is a supervisor within the meaning of Section 2(11) of the Act and in which he recommended that the challenge to the ballot of the voter involved be sustained, that the challenged ballot not be opened, and that a certifica- tion of representative issue. Respondent filed timely exceptions to the Hearing Officer's report and a supporting brief in which it contended, in substance, that the Hearing Officer erred in his interpretation of the testimony presented at the hearing and improper- ly recommended that the challenge be sustained. The Board, in a Decision and Certification of Represen- tative of December 17, 1976 (227 NLRB 381), adopted the recommendations of the Hearing Officer and certified the Union. It thus appears that Respondent has raised no issue not previously considered and determined by the Board. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances 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 representation proceeding. 2 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, 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 THE RESPONDENT Respondent, a wholly owned subsidiary of Cald- well Development Corporation, is a New York corporation with its principal office and place of business in Williamsville, Ncw York, where it is engaged in the business of providing property 2 See Pittsburgh Plare Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). management, maintenance services, and related services for apartment complexes owned jointly by Caldwell Development Corporation and Mader Corporation. The apartment complexes under Re- spondent's management are situated in the States of New York and Michigan. During the past 12 months the total gross volume of business of all apartment complexes managed by Respondent exceeded $500,000. During the same period Respondent purchased carpeting and appli- ances valued in excess of $2,000 from manufacturers located outside the State of New York for use in the New York State complexes under its management and these goods were shipped to Respondent directly from outside New York State. We find, on the basis of the foregoing, that Respondent 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. 11. THE LABOR ORGANIZATION INVOLVED Local 227, Service Employees International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All painters, maintenance people, landscapers and cleaning people employed by the Respon- dent, excluding all office clerical employees, professional employees, other employees, guards, and supervisors as defined in the Act. 2. The certification On December 5, 1975, 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 3, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on December 17, 1976, and the 708 GEORGETOWN DEVELOPMENT AND MANAGEMENT CORP. 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 December 17, 1976, and more particularly on January 3, 1977, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about December 17, 1976, and particularly on January 11, 1977, 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 December 17, 1976, and particularly on January 11, 1977, 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, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) 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 opera- tions described in section 1, 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 com- merce. 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 appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 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. Georgetown Development and Management Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 227, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All painters, maintenance people, landscapers and cleaning people employed by the Respondent, excluding all office clerical employees, professional employees, other employees, guards, and supervisors as defined 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 December 17, 1976, 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 purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 17, 1976, and more particularly on January II11, 1977, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged 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 mean- ing 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 Relations Board hereby orders that Respondent, Georgetown Development and Management Corpo- ration, Williamsville, New York, its officers, agents, successors, and assigns, shall: 709 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 227, Service Employees International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All painters, maintenance people, landscapers and cleaning people employed by the Respon- dent, excluding all office clerical employees, professional employees, other employees, guards, and 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 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Williamsville, New York, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 3, 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 insure that said notices are not 3 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." altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Local 227, Service Employees International Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere 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 representa- tive 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 understanding in a signed agree- ment. The bargaining unit is: All painters, maintenance people, land- scapers and cleaning people employed by the Respondent, excluding all office clerical employees, professional employees, other employees, guards, and supervisors as de- fined in the Act. GEORGETOWN DEVELOPMENT AND MANAGEMENT CORPORATION 710