United Workers of America (AM Property Holding Corp.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352 NLRB No. 45 286 United Workers of America and Local 32B-32J, Ser- vice Employees International Union and AM Property Holding Corp. and Media Technology Centers, LLC, a single employer, a joint em- ployer with Planned Building Services, Inc. Case 2–CB–18037 March 27, 2008 ORDER GRANTING MOTION FOR RECONSIDERATION1 BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN On September 13, 2007, the National Labor Relations Board issued a Decision and Order in this proceeding.2 The Board found, inter alia, that the Respondent Union, United Workers of America (UWA) did not violate Sec- tion 8(b)(1)(A) and (2) of the Act by accepting recogni- tion from Planned Building Services, Inc. (PBS) as the collective-bargaining representative of a unit of mainte- nance employees at a building at 80-90 Maiden Lane in New York City, and by maintaining a collective- bargaining agreement covering those employees. In AM Property Holding Corp. (AM Property),3 a related case in which it was alleged that PBS violated Section 8(a)(2) and (1) by extending recognition to the UWA at 80-90 Maiden Lane, the Board had declined, for procedural reasons, to find that the recognition was unlawful. Ac- cordingly, in this case the Board dismissed the allegation that the UWA’s acceptance of recognition and mainte- nance of the agreement were unlawful.4 On October 12, 2007, the General Counsel filed a Mo- tion for Reconsideration in this case. On the same day, the General Counsel also filed a Motion for Reconsidera- tion in AM Property, supra, contending that the Board had erred in dismissing the allegation that PBS had unlawfully recognized the UWA. In his motion here, the General Counsel contends that if the Board grants his motion in AM Property and finds that the extension of recognition was unlawful, it follows that the Board must 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 2 350 NLRB 1268. 3 350 NLRB 998 (2007). 4 In AM Property, Member Liebman would have found that PBS’s recognition of the UWA violated the Act. See 350 NLRB at 1013. She therefore would have found that the UWA’s acceptance of recognition and maintenance of the collective-bargaining agreement was also unlawful. 350 NLRB at 1270 fn. 11. find the UWA’s acceptance of recognition to be unlawful as well.5 Section 102.48 of the Board’s Rules and Regulations permits a party in “extraordinary circumstances” to move for reconsideration of a Board decision. We find that the General Counsel has shown extraordinary circumstances here that warrant reconsideration of the Board’s decision. As stated above, the Board in the underlying case re- fused to find the UWA’s acceptance of recognition to be unlawful solely because it had not found PBS’s extension of recognition to be unlawful in AM Property. However, as explained in our Order Granting the General Coun- sel’s Motion for Reconsideration in AM Property,6 we have found that the Board committed material error in refusing to consider whether the UWA had the support of an uncoerced majority of PBS employees at the time that PBS granted recognition. On reconsideration, we have found in that case that the UWA in fact did not enjoy uncoerced majority support at the time of recognition, and therefore that PBS violated Section 8(a)(2) and (1) by recognizing the UWA as the representative of its em- ployees and subsequently maintaining a collective- bargaining agreement with the UWA. It therefore fol- lows that the UWA’s acceptance of recognition from PBS and its maintenance of the collective-bargaining agreement likewise violated Section 8(b)(1)(A), and we so find. We therefore grant the General Counsel’s Mo- tion for Reconsideration in this case, and we shall modify our Order and notice accordingly. AMENDED CONCLUSION OF LAW 2. By accepting recognition from PBS and by main- taining a collective-bargaining agreement with PBS at 80-90 Maiden Lane when it did not have the uncoerced support of a majority of the PBS employees, the Respon- dent violated Section 8(b)(1)(A) of the Act. AMENDED REMEDY Having found that the Respondent violated Section 8(b)(1)(A), we shall order it to cease and desist from accepting recognition from PBS as the representative of PBS’s maintenance employees at 80-90 Maiden Lane, and from maintaining and giving effect to the May 1, 2000–April 30, 2003 collective-bargaining agreement with PBS, unless and until it is certified by the Board as the representative of those employees pursuant to Section 5 The General Counsel also argues that the Board should find the UWA’s acceptance of recognition to be unlawful even if it does not find PBS’s extension of recognition unlawful, because the UWA failed to answer the complaint allegation in this case, and thus should be deemed to have admitted that its acceptance of recognition was unlaw- ful. Because we are granting the General Counsel’s motion on other grounds, we need not pass on this argument. 6 352 NLRB 279 (2008). UNITED WORKERS OF AMERICA (AM PROPERTY HOLDING CORP.) 287 9(c) of the Act. We shall also order the Respondent, jointly and severally with PBS, to reimburse the unit employees, with interest, for all dues and fees paid or withheld pursuant to the union-security and checkoff provisions of the agreement.7 However, reimbursement will not extend to employees who voluntarily became members of UWA before May 1, 2000. See, e.g., Dairy- land USA Corp., 347 NLRB 310, 314 (2006). ORDER The General Counsel’s Motion for Reconsideration is granted. Accordingly, the Board’s Decision and Order is modified as set forth below, and the Respondent, United Workers of America, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Telling employees that they are required to sign un- ion authorization cards. (b) Accepting assistance and support from Planned Building Services, Inc. (PBS) in obtaining employee authorization to deduct union dues from their paychecks. (c) Accepting recognition from and executing a collec- tive-bargaining agreement with PBS covering PBS em- ployees at 80-90 Maiden Lane unless and until UWA is certified by the Board as the collective-bargaining repre- sentative of a unit of those employees pursuant to Sec- tion 9(c) of the Act. (d) Maintaining and giving effect to its May 1, 2000– April 30, 2003 collective-bargaining agreement with PBS at 80-90 Maiden Lane, or to any renewal, extension, or modification thereof, unless and until UWA is certi- fied by the Board. (e) In any like or related manner restraining or coerc- ing 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) Jointly and severally with PBS, reimburse all pre- sent and former PBS employees at 80-90 Maiden Lane for all dues, initiation fees, and other moneys paid by or withheld from them pursuant to the union-security and dues-checkoff provisions of the May 1, 2000–April 30, 2003 collective-bargaining agreement, plus interest as 7 The complaint does not allege that the union-security and dues checkoff provisions were unlawful. Accordingly, we do not find that those provisions violated Sec. 8(b)(2). Nevertheless, we find it appro- priate to order reimbursement of dues and fees exacted under those provisions, in order to afford complete relief for the unlawful extension and acceptance of recognition and maintenance of the agreement. PBS is not a party to this proceeding. However, in AM Property, supra, 352 NLRB at 281, we are finding that PBS unlawfully recog- nized and entered into the collective-bargaining agreement with UWA, and ordering PBS, jointly and severally with UWA, to reimburse the PBS employees in the manner described above. provided in New Horizons for the Retarded, 283 NLRB 1173 (1987). However, reimbursement does not extend to those employees who may have voluntarily become members of UWA prior to May 1, 2000. (b) Within 14 days after service by the Region, post at its offices and meeting halls copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 2, 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 members 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. (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 MEMBERS 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 on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT tell employees that they are required to sign union authorization cards. WE WILL NOT accept assistance and support from Planned Building Services, Inc. (PBS) in soliciting em- ployee authorization to deduct union dues from their paychecks. WE WILL NOT accept recognition from and execute a collective-bargaining agreement with PBS covering PBS employees at 80-90 Maiden Lane unless and until we are 8 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 288 certified by the Board as the collective-bargaining repre- sentative of a unit of those employees. WE WILL NOT maintain and give effect to our May 1, 2000–April 30, 2003 collective-bargaining agreement with PBS at 80-90 Maiden Lane, or to any renewal, ex- tension, or modification thereof, unless and until we are certified by the Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, jointly and severally with PBS, reimburse with interest all present and former PBS employees at 80-90 Maiden Lane for all dues, initiation fees, and other moneys paid by or withheld from them pursuant to the union-security and dues-checkoff provisions of the col- lective-bargaining agreement. However, reimbursement does not extend to employees who may have voluntarily become members of UWA before May 1, 2000. UNITED WORKERS OF AMERICA