A. Bonfatti & Co.

623 316 NLRB No. 104 A. BONFATTI & CO. 1 We note in this regard that the Respondent failed to request re- view of the Regional Director’s September 29, 1994 Decision and Direction of Election rejecting the Respondent’s contentions in the representation proceeding. In these circumstances, the Respondent is precluded under Sec. 102.67(f) of the Board’s Rules from raising the same issues in the instant proceeding. See Pony Express Courier Corp., 311 NLRB 1157 fn. 1 (1993), and cases cited there. See also NLRB v. Louisiana Industries, 414 F.2d 227, 228 (5th Cir. 1969). A. Bonfatti & Co., Inc. and Massachusetts Labor- ers’ District Council, a/w Laborers’ Inter- national Union of North America, AFL–CIO. Case 1–CA–32435 February 28, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND BROWNING Pursuant to a charge filed by the Union on Decem- ber 23, 1994, the General Counsel of the National Labor Relations Board issued a complaint on January 10, 1995, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain follow- ing the Union’s certification in Case 1–RC–20177. (Official notice is taken of the ‘‘record’’ in the rep- resentation 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 al- legations in the complaint, and asserting affirmative defenses. On January 27, 1995, the General Counsel filed a Motion for Summary Judgment. On January 30, 1995, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. On February 21, 1995, the Respondent filed a response. 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 admits its refusal to bargain, but attacks the validity of the certification on the basis of its contentions in the representation pro- ceeding that the parties’ expired Section 8(f) agreement did not constitute a sufficient showing of interest to warrant holding a representation election and that it did not employ any unit employees. All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding.1 The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro- ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with an office and place of business in Norwood, Mas- sachusetts, has been engaged in business as a general contractor in the construction industry. During the cal- endar year ending December 31, 1994, the Respondent, in conducting its business operations, provided services valued in excess of $50,000 for enterprises within the Commonwealth of Massachusetts which are directly engaged in interstate commerce. We find that the Re- spondent 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 organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held October 26, 1994, the Union was certified on November 9, 1994, as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit: All laborers employed by Respondent in the towns of North Orange and Warwick in Franklin County, and in the counties of Barnstable, Bristol, Dukes, Essex, Middlesex, Nantucket, Norfolk, Plymouth, Suffolk, and Worcester in the Com- monwealth of Massachusetts, and in the town of Salem in Rockingham County, New Hampshire, but excluding all other employees, guards and su- pervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain About November 1 and 21 and December 7, 1994, the Union requested the Respondent to meet and bar- gain and, since about November 1, 1994, the Respond- ent has refused. 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 refusing on and after November 1, 1994, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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.’’ unit, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 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 serv- ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe- riod of the certification as beginning the date the Re- spondent 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, A. Bonfatti & Co., Inc., Norwood, Massa- chusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Massachusetts Labor- ers’ District Council, a/w Laborers’ International Union of North America, AFL–CIO as the exclusive bargaining representative of the employees in the bar- gaining 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 laborers employed by Respondent in the towns of North Orange and Warwick in Franklin County, and in the counties of Barnstable, Bristol, Dukes, Essex, Middlesex, Nantucket, Norfolk, Plymouth, Suffolk, and Worcester in the Com- monwealth of Massachusetts, and in the town of Salem in Rockingham County, New Hampshire, but excluding all other employees, guards and su- pervisors as defined in the Act. (b) Post at its facility in Norwood, Massachusetts, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Re- gional Director for Region 1 after being signed by the Respondent’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 Massachusetts Laborers’ District Council, a/w Laborers’ International Union of North America, 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 laborers employed by us in the towns of North Orange and Warwick in Franklin County, and in the counties of Barnstable, Bristol, Dukes, Essex, Middlesex, Nantucket, Norfolk, Plymouth, Suffolk, and Worcester in the Commonwealth of Massachusetts, and in the town of Salem in Rock- ingham County, New Hampshire, but excluding all other employees, guards and supervisors as de- fined in the Act. A. BONFATTI & CO., INC.