Cincinnati Air Conditioning Co.

344 NLRB No. 51 Cincinnati Air Conditioning Co. and Sheet Metal Workers International Association, Local Union No. 24, AFL–CIO. Case 9–CA–41683 March 31, 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 January 25, 2005, the General Counsel issued the complaint on January 27, 2005, alleging that the Respondent has violated Section 8(a)(1) and (5) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 9– RC–17933. (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 admitting in part and denying in part the allegations in the complaint. On February 15, 2005, the General Counsel filed a Motion for Summary Judgment and memorandum in support. On February 25, 2005, the Board issued an or- der transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent did not file a response. 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 objections to the election in the representation proceeding.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- 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 1 The Respondent’s answer asserts that the Union’s certification was improper. Further, in its letter to the Regional Director dated January 28, 2005, setting forth the Respondent’s position regarding the charge, the Respondent’s counsel stated that the Respondent “does not believe that the results of the election were properly certified. Given the pre- election conduct of the union, CAC [the Respondent] believes that the election must be overturned and a new election ordered. Thus, CAC is not prepared to bargain at this time.” 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 corporation, has been engaged in the business of installing HVAC equipment and systems for commercial and residential customers from its Cincinnati, Ohio facility. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its operations described above, performed services valued in excess of $50,000 in states other than 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 Sheet Metal Workers Interna- tional Association, Local Union No. 24, AFL–CIO (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 on September 3, 2004, the Union was certified on December 15, 2004, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time employees perform- ing sheet metal work working at or out of the Em- ployer’s 1820 Central Parkway, Cincinnati, Ohio facil- ity, but excluding MES service technicians, pipefitters, plumbers, truck drivers, truck mechanics, office clerical employees, and all professional employees, guards, 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 On about December 30, 2004, and January 10 and 11, 2005, the Union, orally, requested that the Respondent recognize and bargain collectively with it as the exclu- sive collective-bargaining representative of the unit. Further, on about January 3 and 11, 2005, the Union, in writing, requested the Respondent to bargain with it. Since about December 30, 2004, the Respondent has failed and refused to recognize and bargain with the Un- ion. We find that this failure and refusal constitutes an 2 Chairman Battista did not participate in the underlying representa- tion proceeding. However, he 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, and that summary judgment is appropriate. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 unlawful refusal to bargain in violation of Section 8(a)(1) and (5) of the Act. CONCLUSION OF LAW By failing and refusing since December 30, 2004, to 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)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(1) and (5) 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, Cincinnati Air Conditioning Co., Cincin- nati, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Sheet Metal Workers In- ternational Association, Local Union No. 24, AFL–CIO, as the exclusive bargaining representative of the employ- ees 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 perform- ing sheet metal work working at or out of the Em- ployer’s 1820 Central Parkway, Cincinnati, Ohio facil- ity, but excluding MES service technicians, pipefitters, plumbers, truck drivers, truck mechanics, office clerical employees, and all professional employees, guards, and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Cincinnati, Ohio, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent 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 Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since December 30, 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 violated Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT refuse to bargain with Sheet Metal Workers In- ternational Association, Local Union No. 24, AFL–CIO, as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. 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.” CINCINNATI AIR CONDITIONING CO. 3 WE WILL, on request, bargain with the Union and put in writ- ing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time employees performing sheet metal work working at or out of our 1820 Central Park- way, Cincinnati, Ohio facility, but excluding MES service technicians, pipefitters, plumbers, truck drivers, truck me- chanics, office clerical employees, and all professional em- ployees, guards, and supervisors as defined in the Act. CINCINNATI AIR CONDITIONING CO.