De Jana Industries

DE JANA INDUSTRIES De Jana Industries, Inc. and Local 813, International Brotherhood of Teamsters, AFL-CIO. Case 29-CA-16090 March 27, 1992 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH On December 5, 1991, the General Counsel of the National Labor Relations Board issued a complaint 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 29- RC-7443. (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 its answer admitting in part and denying in part the allegations in the complaint. On February 27, 1992, the General Counsel filed a Motion for Summary Judgment. On March 2, 1992, 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 filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a threemember panel. Ruling on Motion for Summary Judgment In its answer the Respondent does not deny its refusal to bargain but attacks the validity of the certification on the basis of its objections to the election. 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 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 The Respondent, a New York corporation, has maintained its principal office and place of business at 138 East Shore Road, in the town of Port Washington, county of Nassau, State of New York, where it is, and has been at all times material herein, continuously engaged in providing private sanitation and trash removal services and related services to residential homes, pursuant to contracts with various local New York State municipalities, including, inter alia, the towns of Kings Point, Sands Point, and Thomaston. During the year preceding issuance of the complaint, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business operations, provided services valued in excess of $50,000 to various municipalities located within the State of New York, including Kings Point, Sands Point, Thomaston, and other municipalities located in the State of New York, each of which municipalities annually purchases goods and materials valued in excess of $50,000 from suppliers located outside the State of New York, which are shipped to them directly from outside the State of New York. 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 December 22, 1989, the Respondent filed objections to conduct affecting the results of the election. On February 16, 1990, the Regional Director issued a report on challenges and objections and notice of hearing recommending overruling one of Respondent's two objections and setting the other one for hearing. No exceptions were filed to this report. On December 31, 1990, following a hearing, a supplemental report on objections issued recommending that the Respondent's remaining objection be overruled and that the Union be certified. On February 5, 1991, the Respondent filed exceptions. On September 30, 1991, the Board issued a Decision and Certification of Representative certifying the Union as the collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time employees employed as drivers and helpers in Respondent's solid waste removal operation, excluding 306 NLRB No. 171 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD all other employees, guards and supervisors as defined by Section 2(11) of the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since on or about October 16, 1991, the Union has requested the Respondent to bargain and, since on or about October 21, 1991, 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. CONCLUSIONS OF LAW By refusing on and after October 21, 1991, to bargain with the Union as the exclusive collectivebargaining 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 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, De Jana Industries, Inc., Port Washington, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 813, International Brotherhood of Teamsters, 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 employees employed as drivers and helpers in Respondent's solid waste removal operation, excluding all other employees, guards and supervisors as defined by Section 2(11) of the Act. (b) Post at its facility in Port Washington, New York, copies of the attached notice marked "Appendix.' Copies of the notice, on forms provided by the Regional Director for Region 29 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. 1 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." 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 Local 813, International Brotherhood of Teamsters, 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: DE JANA INDUSTRIES All full-time and regular part-time employees employed as drivers and helpers in Respondent's solid waste removal operation, excluding all other employees, guards and supervisors as defined by Section 2(11) of the Act. DE JANA INDUSTRIES, INC.