Loewen Louisiana Holding

327 NLRB No. 90 1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive 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. Loewen Louisiana Holdings, Inc., Central Service Division and Local 100, Service Employees In- ternational Union, AFL–CIO. Case 15–CA– 15069 January 29, 1999 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND BRAME Pursuant to a charge filed on October 27, 1998, the General Counsel of the National Labor Relations Board issued a Complaint and Notice of Hearing on November 6, 1998, alleging that the Respondent has violated Sec- tion 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 15-RC-8141. (Official no- tice is taken of the “record” in the representation pro- ceeding 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 com- plaint. On December 28, 1998, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support. On December 30, 1998, the Board issued an order transferring the proceeding to the Board and a No- tice 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 three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bar- gain but attacks the validity of the certification on the basis of the Board’s unit determination in the representa- tion proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable 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). Accord- ingly, 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 corporation, with an office and place of business at New Orleans, Louisiana, has been engaged in the business of providing retail and non-retail funeral support services. During the 12-month period ending October 31, 1998, the Respondent, in conducting its operations, derived gross revenues in excess of $500,000 and purchased and received at its New Orleans facility goods valued in ex- cess of $50,000 directly from points outside the State of Louisiana 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 organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held September 24, 1997, the Union was certified on October 5, 1998, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All embalmers, embalmers’ assistants/drivers, and shift supervisors employed by the Employer at its Central Service Division in New Orleans, Louisiana, but ex- cluding all janitors, switchboard operators, managerial employees, office clerical employees and guards, pro- fessional employees and supervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since October 15, 1998, the Union, by letter, requested the Respondent to bargain and, since October 26, 1998, the Respondent has failed and refused. We find that this failure and refusal constitutes an unlawful refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after October 26, 1998, 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 affect- ing 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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 cer- tification 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, Loewen Louisiana Holdings, Inc., Central Service Division, New Orleans, Louisiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 100, Service Em- ployees International Union, AFL-CIO, as the exclusive bargaining representative of the employees in the bar- gaining unit. (b) In any like or related manner interfering with, re- straining, 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 appro- priate unit on terms and conditions of employment, and if an understanding is reached, embody the understanding in a signed agreement: All embalmers, embalmers’ assistants/drivers, and shift supervisors employed by the Employer at its Central Service Division in New Orleans, Louisiana, but ex- cluding all janitors, switchboard operators, managerial employees, office clerical employees and guards, pro- fessional employees and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in New Orleans, Louisiana, copies of the at- tached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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 al- tered, defaced, or covered by any other material. In the 1If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since October 26, 1998. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. January 29, 1999 Sarah M. Fox, Member Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER BRAME, dissenting. In the underlying representation proceeding, I dis- sented from my colleagues’ denial of the Employer’s request for review of the Regional Director’s decision, in which he found that the Employer’s shift supervisors were not statutory supervisors and that they were prop- erly included in the unit. Accordingly, I dissent here from my colleagues’ granting the Acting General Coun- sel’s motion for summary judgment and their finding that the Employer violated Section 8(a)(5) and (1) of the Act. Dated, Washington, D.C. January 29, 1999 J. Robert Brame III, Member 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local 100, Service Employees International Union, AFL-CIO, as the exclu- sive 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 guar- anteed you by Section 7 of the Act. LOEWEN LOUISIANA HOLDINGS, INC. 3 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 bar- gaining unit: All embalmers, embalmers’ assistants/drivers, and shift supervisors employed by us at our Central Service Di- vision in New Orleans, Louisiana, but excluding all janitors, switchboard operators, managerial employees, office clerical employees and guards, professional em- ployees and supervisors as defined in the Act. LOEWEN LOUISIANA HOLDINGS, INC., CENTRAL SERVICE DIVISION