Eastern Natural Gas Co.

330 NLRB No. 143 1 NOTICE: This opinion is subject to formal revision before publication in the bound 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. Eastern Natural Gas Company and International Brotherhood of Electrical Workers, Local Union No. 573. Case 8-CA-31257 March 20, 2000 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND HURTGEN Pursuant to a charge filed on January 13, 2000, the General Counsel of the National Labor Relations Board issued a complaint on January 19, 2000, 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 8–RC–15951. (Official notice is taken of the “re- cord” 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 deny- ing in part the allegations in the complaint. On February 11, 2000, the General Counsel filed a Motion for Summary Judgment. On February 17, 2000, 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 three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent attacks the validity of the certification on the basis of its disagreement with the Board’s unit determination in the representation proceed- ing.1 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- 1 In its answer, the Respondent states that it “is without knowledge to admit or deny” the allegations of the complaint concerning the filing and the service of the charge. In addition, the Respondent has denied the complaint allegations that about November 30, 1999, the Union requested the Respondent to recognize and bargain, and that, since that date, the Respondent has refused. The General Counsel has attached as an exhibit to his Motion for Summary Judgment a copy of the charge and the affidavit of service, which establish that the charge was filed on January 13, 2000 and served on January 14, 2000. The General Counsel also attached a copy of a November 30, 1999 letter, sent by the Union to the Respondent, in which the Union requested the Respondent to meet and negotiate with it. In its response to the Notice to Show Cause, the Respondent has not contested the authenticity of these documents and acknowledges receiv- ing the Union’s November 30, 1999 letter. Furthermore, the Respon- dent clearly indicates in its response that it is challenging the validity of the Union’s certification. Accordingly, we find that the Respondent’s denials raise no material issue of fact warranting a hearing. 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.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Ohio corpora- tion, with an office and place of business in Burghill, Ohio, has been engaged as a public utility in the distribu- tion of natural gas in Northeastern Ohio. Annually, the Respondent, in conducting its business operations, derives gross revenues in excess of $500,000 and receives, at its Burghill, Ohio facility products val- ued in excess of $50,000 directly from points located outside the State of Ohio. 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. ALEGED UFAIR LBOR PRACTICES A. The Certification Following the election held November 4, 1999, the Union was certified on November 18, 1999, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time service employees employed by the Employer at its Burghill, Ohio facil- ity, but excluding all office clerical employees, profes- sional employees, guards and supervisors 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 30, 1999, the Union, by written cor- respondence, requested the Respondent to recognize and bargain, and, since about November 30, 1999, the Re- spondent has failed and refused. We find that this failure and refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after November 30, 1999, to recognize and bargain with the Union as the 2 Member Hurtgen dissented from the denial of the Respondent’s Request for Review in the underlying representation case. While he continues to be of the view that review was warranted, he agrees that the Respondent has not presented any new matters which would war- rant denial of the Motion for Summary Judgment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 exclusive collective-bargaining representative of em- ployees in the appropriate unit, the Respondent has en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 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 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, Eastern Natural Gas Company, Burghill, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Brother- hood of Electrical Workers, Local Union No. 573, as the exclusive bargaining representative of the employees in the bargaining 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 exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employment, and if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time service employees employed by the Employer at its Burghill, Ohio facil- ity, but excluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Burghill, Ohio, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms 3 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 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.” provided by the Regional Director for Region 8, after being signed by the Respondent’s authorized representa- tive, 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 Respon- dent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since November 30, 1999. Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsi- ble official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. March 20, 2000 Sarah M. Fox, Member Wilma B. Liebman, Member Peter J. Hurtgen, Member (SEAL) 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 International Brotherhood of Electrical Workers, Local Union No. 573, 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 exe rcise 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 bar- gaining unit: EASTERN NATURAL GAS CO. 3 All full-time and regular part-time service employees employed by us at our Burghill, Ohio facility, but ex- cluding all office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. EASTERN NATURAL GAS COMPANY