MEC Construction, Inc.

344 NLRB No. 30 MEC Construction, Inc. and Pipeliners Union Local 798, United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada, AFL– CIO, CLC. Case 6–CA–34417 February 28, 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 filed on November 22, 2004, the General Counsel issued the complaint on December 15, 2004, alleging that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 6–RC–12291. (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 January 18, 2005, the General Counsel filed a Mo- tion for Summary Judgment. On January 26, 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 opposing the General Counsel’s motion, and the Union filed a statement in support of the motion. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tends that the Union’s certification is invalid because the Board erred in overruling its challenges to the determina- tive ballots cast in the election by Carl Hogue Jr., Mat- thew Saliga, and David Swiger. 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).1 Accord- 1 Chairman Battista dissented from the Board panel majority’s deci- sion in the underlying representation case overruling the Respondent’s challenges to the ballots of Hogue Jr., Saliga, and Swiger. Contrary to ingly, we grant the General Counsel’s Motion for Sum- mary Judgment.2 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 in Meadowbrook, West Virginia, has been engaged as a general contractor in the construction industry. During the 12-month period ending October 31, 2004, the Respondent, in conducting its business operations described above, purchased and received at its Meadow- brook, West Virginia facility goods valued in excess of $50,000 directly from points outside the State of West Virginia. 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 Pipeliners Union Local 798, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL–CIO, CLC, is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the mail ballot election held between De- cember 17, 2003 and January 7, 2004, the Union was certified on October 7, 2004, as the exclusive collective- bargaining representative of the employees in the follow- ing appropriate unit: All full-time and regular part-time rig welders and cer- tified welders employed by the Employer from its Meadowbrook, West Virginia, facility; excluding all office clerical employees and guards, professional em- his colleagues, Chairman Battista found that Hogue and Swiger had abandoned their jobs with the Respondent and therefore were ineligible to vote in the election. Because he would have sustained the challenges to the ballots of Hogue and Swiger, Chairman Battista found it unnec- essary to determine whether Saliga was eligible to participate in the election inasmuch as the challenge to his ballot would no longer be determinative to the outcome of the election. While Chairman Battista remains of the view that the challenges to the ballots of Hogue and Swiger should have been sustained, he agrees that the Respondent has not raised any new matters that are properly litigable in this unfair labor practice case. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). In light of this, he agrees with the decision to grant the General Counsel’s Motion for Summary Judgment. Member Schaumber did not participate in the underlying representa- tion proceeding. He agrees, however, 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, and therefore that summary judgment is appropriate. 2 We therefore deny the Respondent’s request that the complaint be dismissed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 ployees and supervisors as defined in the Act, and all other employees. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain On or about November 4, 2004, the Union, by letter, requested that the Respondent bargain collectively with it and, since on or about November 18, 2004, the Respon- dent, by letter, has refused to recognize and bargain with the Union. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing since November 18, 2004, to recognize and bargain with the Union as the exclusive collective- bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices 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 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, MEC Construction, Inc., Meadowbrook, West Virginia, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with Pipeliners Union Local 798, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL–CIO, CLC, 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 full-time and regular part-time rig welders and cer- tified welders employed by the Employer from its Meadowbrook, West Virginia, facility; excluding all office clerical employees and guards, professional em- ployees 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 Meadowbrook, West Virginia, copies of the attached notice marked “Appendix.”3 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 6, after being signed by the Respondent’s author- ized 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 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 November 18, 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 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.” MEC CONSTRUCTION, INC. 3 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 Pipeliners Union Local 798, United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL–CIO, CLC, as the exclusive representative of the employees in the bargain- ing 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 bar- gaining unit: All full-time and regular part-time rig welders and cer- tified welders employed by us from our Meadowbrook, West Virginia, facility; excluding all office clerical employees and guards, professional employees and su- pervisors as defined in the Act, and all other employ- ees. MEC CONSTRUCTION, INC.