Rural/Metro of Texas

326 NLRB No. 91 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. Rural/Metro of Texas LP and Professional EMTS and Paramedics (PEP), a Division of International Brotherhood of Boilermakers, Iron Ship Build- ers, Blacksmiths, Forgers and Helpers, AFL– CIO, CFL. Case 16–CA–19319–4 September 21, 1998 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND BRAME Pursuant to a charge filed on May 28, 1998,1 the Act- ing General Counsel of the National Labor Relations Board issued a complaint on June 24, 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 16–RC–10003. (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 August 3, the Acting General Counsel filed a Mo- tion for Summary Judgment. On August 5, 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.2 The Acting General Counsel filed a reply. 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 and response to the Notice to Show Cause, the Respondent admits its refusal to bargain, but attacks the validity of the certification on the basis of the Board's unit determination in the representation pro- ceeding. Specifically, the Respondent reiterates its con- tention, raised and rejected in the representation case, that the petitioned-for unit of paramedics at its Grand Prairie, Texas location is not an appropriate unit, and that the only unit appropriate for collective-bargaining pur- poses consists of all of its paramedics, emergency medi- cal technicians (EMTs), dispatchers, and mechanics em- ployed at its facilities in Dallas, Arlington, and Grand Prairie, Texas. 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 All subsequent dates are in 1998. 2 The Respondent’s request for oral argument is denied. 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 Delaware cor- poration with an office and place of business in Grand Prairie, Texas, has been engaged in the business of pro- viding ambulance services. During the 12-month period preceding issuance of the complaint, the Respondent in conducting its business operations described above, pur- chased and received at its Dallas, Texas facilities materi- als and goods valued at more than $50,000 directly from points outside the State of Texas. We find that the Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held April 6, the Union was certified on April 14 as the exclusive collective- bargaining representative of the employees in the fol- lowing appropriate unit: Included: All regular full-time and part-time para- medics, including Field Training Officers employed by the Employer in Grand Prairie, Texas. Excluded: All other employees, including supervisors and guards, as defined by the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since on or about May 9 and 11, the Union has re- quested the Respondent to bargain and, since on or about May 9, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bargain in vio- lation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after May 9, to bargain with the Union as the exclusive collective-bargaining representa- tive of employees in the appropriate unit, the Respondent has engaged 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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, Rural/Metro of Texas LP, Grand Prairie, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Professional EMTS and Paramedics (PEP), a Division of International Brother- hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, CFL, as the exclusive collective-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: Included: All regular full-time and part-time para- medics, including Field Training Officers employed by the Employer in Grand Prairie, Texas. Excluded: All other employees, including supervisors and guards, as defined by the Act. (b) Within 14 days after service by the Region, post at its facility in Grand Prairie, Texas, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 16 after being signed by the Respondent's authorized repre- 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.” 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 May 9, 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. September 21, 1998 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 and Direction of Election, in which he found appropriate a unit limited to the Employer’s paramedics employed at its Grand Prairie, Texas facility. Accordingly, I dissent here from my colleagues’ finding that the Employer vio- lated Section 8(a)(5) and (1) of the Act in this certifica- tion-testing proceeding. Dated, Washington, D.C. 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Professional EMTS and Paramedics (PEP), a division of International Brotherhood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers and Helpers, AFL-CIO, CFL, as the ex- RURAL/METRO OF TEXAS LP 3 clusive 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 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: Included: All regular full-time and part-time para- medics, including Field Training Officers employed by us in Grand Prairie, Texas. Excluded: All other employees, including supervisors and guards, as defined by the Act. RURAL/METRO OF TEXAS LP