C & C Roofing Supply

C & C ROOFING SUPPLY, INC. 349 NLRB No. 64 667 C & C Roofing Supply, Inc. and United Union of Roofers, Waterproofers and Allied Workers, Local 135, AFL–CIO. Case 28–CA–20988 March 29, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS KIRSANOW AND WALSH 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 proceeding. Pursuant to a charge and an amended charge filed on Sep- tember 12 and October 10, 2006,1 respectively, the Gen- eral Counsel issued the complaint on October 20, 2006, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bar- gain following the Union’s certification in Case 28–RC– 6417. (Official notice is taken of the “record” in the repre- sentation 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 and asserting affirmative defenses. On November 17, 2006, the General Counsel filed a Motion for Summary Judgment. On November 21, 2006, 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, and the General Counsel filed a reply to the Respondent’s response. 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, the Respondent admits its refusal to bargain, but contests the validity of the certifica- tion on the basis of conduct alleged to have affected the results of the election,2 its contention that the Union’s showing of interest in support of its petition for an election 1 The Respondent’s answer denies the complaint allegations con- cerning the filing and service of the charge and amended charge. The Respondent’s answer also denies the complaint allegation that the Un- ion was certified as the exclusive collective-bargaining representative of the unit on August 24, 2006. Copies of the charge, the amended charge, the certificates of service of the charge and the amended charge, and the certification of representative are included in the docu- ments supporting the General Counsel’s motion, showing the dates as alleged, and the Respondent does not contest the authenticity of these documents. 2 Under well-established precedent, the Respondent waived its ar- guments pertaining to conduct alleged to have affected the results of the election by failing to file timely objections. Bishop Mugavero Center for Geriatric Care, 323 NLRB 642 (1997). was obtained through improper means,3 and the Regional Director’s failure to hold the election in abeyance pursuant to the Board’s “blocking charge” policy.4 In addition, the Respondent contends that the Board’s decisions in Oak- wood Healthcare, 348 NLRB 686 (2006), Croft Metals, Inc., 348 NLRB 717 (2006), and Golden Crest Healthcare Center, 348 NLRB 727 (2006), which issued after the decision in the representation case, create special circum- stances warranting reexamination of the Board’s decision in the representation case to overrule challenges to the ballots of 10 foremen whom the Respondent contends are statutory supervisors. In Oakwood, Croft Metals, and Golden Crest, the Board refined the analysis to be applied in assessing supervisory status in light of the Supreme Court’s decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), and adopted definitions for “assign,” “responsibly to direct,” and “independent judg- ment,” as those terms are used in Section 2(11) of the Act. The Respondent contends that, under the standard articu- lated in Oakwood, Croft Metal, and Golden Crest, the foremen at issue are statutory supervisors based on their authority with respect to the assignment and direction of employees, and it requests that the representation case be remanded to the Region and the hearing reopened to re- ceive additional evidence on these issues. All representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence. With respect to the Respondent’s contention that the Board’s decisions in Oakwood, Croft Metals, and Golden Crest create special circumstances warranting re- examination of the decision in the representation case, we note that the Respondent failed to file timely exceptions to the hearing officer’s February 17, 2006 report finding that the foremen are not statutory supervisors and recommend- ing that the challenges to their ballots be overruled.5 Con- 3 Inasmuch as the election has already been held, and as the matter is newly raised, we reject the Respondent’s contention in regard to the showing of interest. Crystal Art Gallery, 323 NLRB 258, 259 (1997); Gaylord Bag Co., 313 NLRB 306, 307 (1993) (after the election, the adequacy of the showing of interest is irrelevant). 4 Documents attached to the General Counsel’s motion show that on December 9, 2005, 2 weeks before the election, the Respondent filed unfair labor practice charges against the Union alleging that it violated the Act by coercing and threatening employees, and by causing them to engage in a strike on August 24, 2005. In its response, the Respondent argues that given the pendency of these charges, a fair election could not be held. However, we agree with the General Counsel that this issue could have been raised in the underlying representation proceed- ing. Therefore, the Respondent is precluded from litigating it now. 5 In the absence of timely exceptions, the Board adopted the hearing officer’s findings and recommendations. Thereafter, the Respondent filed a motion for reconsideration and to extend the time for filing DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668 sequently, the Respondent is barred from raising its argu- ments regarding the supervisory status of the foremen in the instant proceeding. HeartShare Human Services of New York, 317 NLRB 611 (1995), enfd. 108 F.3d 467 (2d Cir. 1997); Flatbush Manor Care Center, 314 NLRB 702 (1994). Moreover, even if all of the putative supervisors were excluded from the unit, it would not change the results of the election. Thus, the initial tally of ballots that issued after the election reflects that the Union received 19 votes, 15 votes were cast against the Union, and there were 13 determinative challenged ballots.6 Accordingly, the Union would have won the election by a margin of 1 vote (19– 18) even if the 10 foremen at issue were found to be statu- tory supervisors, the challenges to their ballots sustained, and the remaining 3 challenged ballots counted for the Respondent.7 We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding.8 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.9 exceptions, but the Board denied the motion. Thus, that matter is res judicata. 6 The final tally of ballots was 27 for the Union, 19 against the Un- ion. (The challenge to one of the 13 determinative ballots was sus- tained, and it was not opened or counted.) 7 In view of this result, we need not pass on the issue of whether, if timely exceptions had been filed and found without merit, the Respon- dent could now raise the applicability, if any, of the Board’s decision in Oakwood Healthcare, supra. 8 The Respondent asserts that the charge allegations were not served by the Union within the 6-month limitation period specified in Sec. 10(b) of the Act, as required under Sec. 102.14(a) of the Board’s Rules and Regulations. As indicated above, affidavits of service by Board agents certifying that they served the Respondent with copies of the charge and amended charge by regular mail are included in the docu- ments supporting the General Counsel’s motion, and the Respondent does not dispute the authenticity of these documents. Although Sec. 102.14(a) of the Board’s Rules and Regulations provides that the charg- ing party shall be responsible for the timely and proper service of a copy of the charge, Sec. 102.14(b) provides that the Regional Director will also cause a copy of the charge to be served by regular mail. In- asmuch as copies of the charge and amended charge were served on the Respondent by the Regional Director for Region 28 within the 6-month limitation period specified in Sec. 10(b) of the Act, the Respondent’s contention that the charge allegations should be barred as untimely is without merit. T.L.B. Plastics Corp., 266 NLRB 331 fn. 1 (1983). The Respondent additionally contends that the Union has lost major- ity support. However, it is well established that, absent unusual cir- cumstances, a union’s majority status is irrebuttably presumed to con- tinue during the year following the union’s certification. The Respon- dent does not cite any unusual circumstances. Ray Brooks v. NLRB, 348 U.S. 98 (1954); Action Automotive, 284 NLRB 251 (1987), enfd. 853 F.2d 433 (6th Cir. 1988), cert. denied 488 U.S. 1041 (1989). 9 In view of our decision on the Motion for Summary Judgment, we find it unnecessary to rule on the General Counsel’s motion to strike portions of the Respondent’s answer to the complaint, and we deny the On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, an Arizona corpo- ration with an office and place of business in Phoenix, Arizona, has been engaged in the building and construc- tion industry as a roofing contractor. During the 12-month period ending September 12, 2006, the Respondent, in conducting its business opera- tions described above, purchased and received at its Phoe- nix facility goods valued in excess of $50,000 directly from points outside the State of Arizona. 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 United Union of Roofers, Waterproof- ers and Allied Workers, Local 135, AFL–CIO 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 December 23, 2005, the Un- ion was certified on August 24, 2006, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: Roofers and damp and waterproof workers, including apprentices and trainees, tile loading forklift opera- tors, small truck operators, cleanup workers, loaders, yardmen, customer service roofers and allied workers; excluding office staff, estimators, superintendents, quality assurance inspectors, and supervisors as de- fined in the Act.10 The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain On or about July 12 and August 28, 2006, the Union, by letter,11 requested that the Respondent recognize and bar- Respondent’s request that the complaint be dismissed and the Respon- dent be awarded attorney’s fees and such other relief as may be just and proper. 10 The unit description set forth in the complaint does not precisely mirror the certified unit. 11 In its answer, the Respondent denies the complaint allegation that by letters dated July 12 and August 28, 2006, the Union requested that the Respondent recognize and bargain with it, but admits that it has failed and refused to bargain with the Union. However, the General Counsel has attached as exhibits to his Motion for Summary Judgment copies of the letters described above. The Respondent does not contest the authenticity of these documents. Accordingly, we find that the Respondent’s denial raises no genuine issue of material fact warranting a hearing. C & C ROOFING SUPPLY, INC. 669 gain collectively with it as the exclusive collective- bargaining representative of the unit. By letter dated September 6, 2006, the Respondent re- fused to bargain with the Union.12 The Respondent’s September 6 letter stated that “C&C Roofing and Supply, Inc. respectfully declines your request to bargain.” We find that this refusal constitutes an unlawful re- fusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since September 6, 2006, to bargain with the Union as the exclusive collective- bargaining representative of the employees in the appro- priate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 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 law, we shall construe the initial period of the certifi- cation 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); and 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, C & C Roofing Supply, Inc., Phoenix, Ari- zona, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Union of Roofers, Waterproofers and Allied Workers, Local 135, AFL–CIO as the exclusive bargaining representative of the employ- ees in the bargaining unit. 12 In its answer, the Respondent denies complaint allegations that certain individuals have at all material times been agents of the Re- spondent within the meaning of Sec. 2(13) of the Act, and that another individual has at all material times been a supervisor and agent of the Respondent within the meaning of Sec. 2(11) and (13) of the Act. The Respondent’s denials do not preclude summary judgment or raise mate- rial issues of fact warranting a hearing because the Respondent admits, in par. 6(b) of its answer, that it has refused to bargain with the Union. (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, recognize and bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: Roofers and damp and waterproof workers, including apprentices and trainees, tile loading forklift opera- tors, small truck operators, cleanup workers, loaders, yardmen, customer service roofers and allied workers; excluding office staff, estimators, superintendents, quality assurance inspectors, and supervisors as de- fined in the Act. (b) Within 14 days after service by the Region, post at its facility in Phoenix, Arizona, copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms provided by the Regional Director for Region 28, 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 September 6, 2006. (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 13 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 670 The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to mail 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 fail and refuse to bargain with United Union of Roofers, Waterproofers and Allied Workers, Local 135, AFL–CIO as the exclusive bargaining repre- sentative 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, recognize and bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employ- ees in the following bargaining unit: Roofers and damp and waterproof workers, including apprentices and trainees, tile loading forklift opera- tors, small truck operators, cleanup workers, loaders, yardmen, customer service roofers and allied workers; excluding office staff, estimators, superintendents, quality assurance inspectors, and supervisors as de- fined in the Act. C & C ROOFING SUPPLY, INC.