Terrace Gardens Plaza

749 315 NLRB No. 119 TERRACE GARDENS PLAZA 1 In its response, the Respondent contends that the General Coun- sel’s motion should be rejected as untimely filed under Sec. 102.24(b) of the Board’s Rules inasmuch as it was filed with the Board less than 28 days prior to the scheduled November 1, 1994 hearing date. In addition, the Respondent moves that counsel for the General Counsel be disqualified from acting in that capacity in this proceeding inasmuch as she served as the hearing officer in the un- derlying representation case and also investigated contemporaneous charges brought by the Employer against the Union that had pre- viously represented the employees. We reject the Respondent’s con- tentions. With respect to timeliness, the General Counsel’s motion was postmarked October 5, 1994, 27 days before the hearing date, and was therefore filed only one day over the deadline. Further, the scheduled hearing date has already been postponed pursuant to the Board’s Notice to Show Cause. In these circumstances, and as it is clear, for the reasons discussed infra, that the Respondent is seeking to test the Board’s certification of the Union in the court of appeals, we find that no rational purpose would be served by requiring the General Counsel to refile the Motion for Summary Judgment. As for the Respondent’s motion to disqualify counsel, we deny the motion as without merit. As the Respondent acknowledges, the Re- gional Director previously rejected its argument that counsel could not serve as the hearing officer in the representation proceeding be- cause she had investigated the contemporaneous unfair labor practice charges. Nor do we now find any basis to disqualify counsel from prosecuting the instant case because she acted as the hearing officer in that case. See Willow Ridge Living Center, 314 NLRB No. 12 (June 15, 1994) (not printed in Board volumes). Terrace Gardens Plaza, Inc. and Local 32B-32J, Service Employees International Union, AFL– CIO. Case 29–CA–18268 December 14, 1994 DECISION AND ORDER BY MEMBERS STEPHENS, DEVANEY, AND BROWNING On June 30, 1994, the General Counsel of the Na- tional Labor Relations Board issued a complaint and notice of hearing alleging that the Respondent has vio- lated Section 8(a)(5) and (1) of the National Labor Re- lations Act by refusing the Union’s request to bargain following the Union’s certification in Case 29–RC– 7996. (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 Respond- ent filed an answer admitting in part and denying in part the allegations in the complaint. On October 11, 1994, the General Counsel filed a Motion for Summary Judgment and Issuance of Deci- sion and Order. On October 13, 1994, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On November 3, 1994, the Respondent filed a response.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer, the Respondent denies or claims insuf- ficient knowledge of various allegations of the com- plaint, including the allegations regarding the filing of the representation petition and the filing and service of the unfair labor practice charge, the allegations that the Union is a labor organization and is the exclusive bar- gaining representative of the unit employees, and the allegations that the Union requested the Respondent to bargain and that the Respondent refused. We find that none of these denials raise any issues warranting a hearing. The Respondent’s denials of the allegations regarding the filing of the representation petition, the Union’s status as a labor organization, and the Union’s certification as exclusive bargaining representative of the unit employees all raise issues which were or could have been litigated in the prior representation proceed- ing. See, e.g., Biewer Wisconsin Sawmill, 306 NLRB 732 (1992). The Respondent does not offer to adduce at a hearing any newly discovered and previously un- available 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). As for the allegations regarding the filing and serv- ice of the unfair labor practice charge, and the allega- tions that the Union requested bargaining and that the Respondent refused, all of these allegations are sup- ported by the documentary evidence attached to the Motion for Summary Judgment, and the Respondent has not disputed the authenticity of that evidence in re- sponse to the Notice to Show Cause. Although the Re- spondent contends that its letters responding to the Union’s request to bargain offered to meet with the Union to discuss outstanding issues and merely re- served the right to seek judicial review of the certifi- cation, we reject that contention. The Respondent’s March 23, 1994 letter to the Union’s attorney, which the Respondent attached to its response to the notice to show cause, clearly states that the Respondent ‘‘continues to believe that the NLRB erroneously cer- tified’’ the Union, and that the Respondent ‘‘will’’ seek judicial review of the certification. Further, in its subsequent May 16, 1994 letter to the Union’s attor- ney, the Respondent clearly stated in regard to any dis- cussions which took place, that any conclusions or agreements would ‘‘have to be made subject to the final judgment of the federal courts.’’ In these cir- cumstances, we find that the Respondent has effec- tively refused to bargain with the Union as alleged in the complaint. See, e.g., Biewer Wisconsin Sawmill, supra. 750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Accordingly, we grant the General Counsel’s Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all times material, the Respondent, a New York corporation, with its principal office and place of busi- ness located at 920 East 17th Street in the Borough of Brooklyn, City and State of New York, has been en- gaged in the ownership of a cooperative residential apartment house located at the same address. During the year preceding issuance of the complaint, which period is representative of its business oper- ations generally, the Respondent, in the course and conduct of its operations, has collected gross revenues from rentals and maintenance fees in the building in excess of $500,000, and has purchased and caused to be transported and delivered to its New York place of business, oil, cleaning supplies, and equipment, and other goods and materials valued in excess of $50,000, which goods and materials were transported and deliv- ered to it and received from other enterprises located in the State of New York, each of which other enter- prises had received these goods and materials in inter- state commerce directly from points outside the State of New York. 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 organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the rerun election held January 27, 1994, the Union was certified on February 17, 1994, as the collective-bargaining representative of the employees in the following appropriate unit: All full-time building service employees including doormen, porters, handyman and the assistant su- perintendent employed by the Employer at its 1615 Avenue I, 915 East 17th Street and 920 East 17th Street, Brooklyn, New York locations, but excluding the superintendent, guards, and super- visors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain On or about March 9 and May 10, 1994, the Union requested the Respondent to bargain, and, since in or around the latter part of March 1994, the exact date being uncertain, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after March 1994 to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices af- fecting 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 Sec- tion 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 un- derstanding 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 certification 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, Terrace Gardens Plaza, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 32B-32J, Service Employees International Union, AFL–CIO as the ex- clusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, 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 exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employ- ment, and if an understanding is reached, embody the understanding in a signed agreement: All full-time building service employees including doormen, porters, handyman and the assistant su- perintendent employed by the Employer at its 1615 Avenue I, 915 East 17th Street and 920 East 17th Street, Brooklyn, New York locations, but excluding the superintendent, guards, and super- visors as defined in the Act. 751 TERRACE GARDENS PLAZA 2 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 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.’’ (b) Post at its facility in Brooklyn, New York, cop- ies of the attached notice marked ‘‘Appendix.’’2 Cop- ies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local 32B-32J, Service Employees International Union, AFL–CIO, as the exclusive representative of the employees 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 bargaining unit: All full-time building service employees including doormen, porters, handyman and the assistant su- perintendent employed by us at our 1615 Avenue I, 915 East 17th Street and 920 East 17th Street, Brooklyn, New York locations, but excluding the superintendent, guards, and supervisors as defined in the Act. TERRACE GARDENS PLAZA, INC.