Hilliard Electric

344 NLRB No. 23 JZE Electric, Inc. d/b/a Hilliard Electric and Interna- tional Brotherhood of Electrical Workers Local No. 38, AFL–CIO. Case 8–CA–35339 February 23, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge and an amended charge filed on October 6 and November 29, 2004, respectively, the General Counsel issued the complaint on November 30, 2004, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 8– RC–16583. (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, with affirmative defenses, admitting in part and denying in part the allegations in the complaint. On January 3, 2005, the General Counsel filed a Mo- tion for Summary Judgment and brief in support. On January 6, 2005, 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 Charging Party filed a brief in sup- port of the General Counsel’s Motion for Summary Judgment. Thereafter, the General Counsel filed a statement in support of his motion. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification based on its objec- tions to the election in the underlying representation pro- ceeding. 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.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times the Respondent, an Ohio corpora- tion, with an office and place of business located at 68 Depot Street, Berea, Ohio (the Respondent’s facility), has been engaged in the installation and servicing of electrical, fire alarm, communications, and security sys- tems. Annually, in the course and conduct of its business, the Respondent purchases and receives goods and materials valued in excess of $50,000 at its Berea, Ohio facility 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. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held February 18, 2004, the Un- ion was certified on August 31, 2004, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time employees em- ployed by the Employer at its 68 Depot Street, Berea, Ohio facility, including crew leaders, helpers, journey- men electricians, apprentice electricians, communica- tion workers, fire alarm and security installers, and ser- vice technicians, but excluding all driver-warehouse- men and office clerical employees and all professional employees, guards and supervisors as defined in the Act, and all other employees. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since on or about September 13, 2004, and continuing to date, the Respondent has failed and refused to recog- nize and bargain with the Union. We find that this fail- ure and refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. 1 Member Liebman did not participate in the underlying representa- tion proceeding. However, she agrees that the Respondent has not raised any new matters or special circumstances warranting a hearing in this proceeding or reconsideration of the decision in the representation proceeding. The Respondent’s request for oral argument is denied. We also deny the Respondent’s requests that the complaint be dismissed and that it recover its attorney’s fees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 CONCLUSION OF LAW By failing and refusing on and after September 13, 2004, to recognize and bargain with the Union as the 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, JZE Electric, Inc. d/b/a Hilliard Electric, Berea, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with International Brotherhood of Electrical Workers Local No. 38, AFL– CIO, 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 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 full-time and regular part-time employees em- ployed by the Employer at its 68 Depot Street, Berea, Ohio facility, including crew leaders, helpers, journey- men electricians, apprentice electricians, communica- tion workers, fire alarm and security installers, and ser- vice technicians, but excluding all driver-warehouse- men and office clerical employees and all professional employees, guards and supervisors as defined in the Act, and all other employees. (b) Within 14 days after service by the Region, post at its facility in Berea, Ohio, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms 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 September 13, 2004. (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. 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain with International Brotherhood of Electrical Workers Local No. 38, AFL– 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 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.” HILLIARD ELECTRIC 3 CIO, as the exclusive representative of the employees in the bargaining unit set forth below. 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 bar- gaining unit: All full-time and regular part-time employees em- ployed by us at our 68 Depot Street, Berea, Ohio facil- ity, including crew leaders, helpers, journeymen elec- tricians, apprentice electricians, communication work- ers, fire alarm and security installers, and service tech- nicians, but excluding all driver-warehousemen and of- fice clerical employees and all professional employees, guards and supervisors as defined in the Act, and all other employees. JZE ELECTRIC, INC. D/B/A HILLIARD ELECTRIC