Davis Memorial Goodwill Industries

NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Davis Memorial Goodwill Industries and District Lodge 12, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 5-CA-25810 April 17, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND Fox Pursuant to a charge filed on December 4, 1995, the General Counsel of the National Labor Relations Board issued a complaint on January 19, 1996, 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 following the Union's certification in Case 5-RC-14090. (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 Respondent filed an answer admitting in part and denying in part the allegations in the complaint. On March 14, 1996, the General Counsel filed a Motion for Summary Judgment. On March 18, 1996, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent did not file 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 the Board's unit determination in the representation proceeding. The Respondent contends that the Board was incorrect in ordering an election comprised of certain individuals who are not statutory employees.¹ All representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special circumstances that would require the Board to 1 On September 8, 1995, the Board issued a decision, Davis Memorial Goodwill Industries, 318 NLRB No. 109, affirming the Regional Director's finding that certain handicapped workers are statutory employees and reversing the finding that the primary and secondary supervisors are statutory supervisors. 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 unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a District of Columbia corporation, with offices and places of business in Washington, D.C., including its facility at the Bureau of Engraving and Printing, has been engaged in providing job training and employment to handicapped individuals. During the 12 months preceding the issuance of the complaint, the Respondent, in conducting its operations, derived gross revenues in excess of $250,000 performing contracts with the United States government and purchased and received materials, goods, and services valued at more than $5000 directly from points outside the District of Columbia. We find that the Respondent is an employer engaged in commerce within the meaning of Section 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 on November 4, 1994, the Union was certified on November 3, 1995, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time handicapped and non-handicapped cleaners and janitorial employees employed by the Employer under its contract with the United States Government working at the Bureau of Engraving and Printing located at 14th and C Streets, S.W., Washington, D.C., but excluding all other employees, professionals, office clericals, guards and supervisors as defined by the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since November 7, 1995, the Union has requested the Respondent to bargain and, since November 29, 1995, the Respondent 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. 320 NLRB No. 151 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW By refusing on and after November 29, 1995, 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 affecting 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 Section 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 understanding 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); and 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, Davis Memorial Goodwill Industries, Washington, DC, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with District Lodge 12, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive 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 exclusive representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time handicapped and non-handicapped cleaners and janitorial employees employed by the Employer under its contract with the United States Government working at the Bureau of Engraving and Printing located at 14th and C Streets, S.W., Washington, DC, but excluding all other employees, professionals, office clericals, guards and supervisors as defined by the Act. (b) Post at its facility at the Bureau of Engraving and Printing located at 14th and C Streets, S.W., Washington, D.C., copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 5 after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained 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 altered, 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 Respondent has taken to comply. Dated, Washington, D.C. April 17, 1996 William B. Gould IV, Chairman Margaret A. Browning, Member Sarah M. Fox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 2If 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with District Lodge 12, International Association of Machinists and Aerospace Workers, 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: DAVIS MEMORIAL GOODWILL INDUSTRIES All full-time and regular part-time handicapped and non-handicapped cleaners and janitorial employees employed by us under our contract with the United States Government working at the Bureau of Engraving and Printing located at 14th and C Streets, S.W., Washington, D.C., but excluding all other employees, professionals, office clericals, guards and supervisors as defined by the Act. DAVIS MEMORIAL GOODWILL INDUS- TRIES