Fulton Building

778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ernest Stern, George Stern, Transexecutive Avia- tion, Inc, Richard Stern, Linda Stern Coslov, Judith Stern Guttman d/b/a Fulton Building and International Union of Operating Engi- neers, Local Union No 95-95A, AFL-CIO Case 6-CA-21454 April 24, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On December 27, 1988, the General Counsel of the National Labor Relations Board issued a com- plaint alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Rela tions Act by refusing the Union's request to bar- gain following the Union's certification in Case 6- RC-10060 (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 its answer admitting in part and denying in part the allegations in the com- plaint On February 2, 1989, the General Counsel filed a Motion for Summary Judgment On February 6, 1989, 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 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel Ruling on Motion for Summary Judgment In its answer 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 proceeding All representation issues raised by the Respond- ent were or could have been litigated in the prior representation proceeding The Respondent does not offer to adduce at a hearing any newly discov- ered and previously unavailable evidence, nor does it allege any special circumstances that would re quire the Board to reexamine the decision made in the representation proceeding We therefore find that the Respondent has not raised any representa- tion issue that is properly litigable in this unfair labor practice proceeding i See Pittsburgh Plate i The Respondent argues inter alia that the certification of the Union was improper because employee Chuck Wagner was erroneously ex cluded from the bargaining unit on the basis of a stipulation made at the hearing that Wagner did not share a community of interest with the unit employees The Respondent claims that the stipulation was misrepresent ed as it was made without prejudice to what [Wagner s] status may be Glass Co v NLRB, 313 US 146, 162 (1941) Ac cordingly, we grant the Motion for Summary Judgment On the entire record , the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, a partnership with its office and sole facility in Pittsburgh, Pennsylvania, is en- gaged in the business of renting commercial office space During the 12-month period ending Novem ber 30, 1988, the Respondent received gross reve- nues in excess of $100,000 from tenants, of which in excess of $25,000 was received from Cinema World, which operates a chain of theaters and leases office space from the Respondent During the 12 month period ending November 30, 1988, Cinema World purchased and received goods and materials valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that 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 November 2, 1988, the Union was certified on November 14, 1988, as the collective-bargaining representative of the em- ployees in the following appropriate unit All full-time and regular part-time mechanical maintenance employees employed by the Em ployer at its Fulton Building facility in Pitts burgh, Pennsylvania, excluding construction and remodeling employees, custodial and jani- torial employees, office clerical employees and guards, professional employees and supervisors as defined in the Act The Union continues to be the exclusive repre sentative under Section 9(a) of the Act in the future and that Wagners status changed before the election Thus the Respondent maintains that Wagner should have been allowed to cast a challenged ballot We reject these contentions Despite the Re spondent s claim that as of the applicable payroll period Wagner was an employee of Respondent sharing the precise terms and conditions of em ployment as those of the other employees in the bargaining unit the Re spondent has failed to present any evidence to substantiate its contention that Wagner s status had changed since the Respondent entered into the stipulation Furthermore even if Wagner s status had changed at the time of the election and Wagner was improperly denied the opportunity to cast a challenged ballot the outcome of the election would not be affect ed because Wagner s ballot would not have been determinative Finally the Respondent is precluded from complaining about the Board agent s failure to allow Wagner to cast a challenged ballot because it did not file timely objections to the conduct of the election 293 NLRB No 95 FULTON BUILDING B Refusal to Bargain Since November 28, 1988, the Union has request- ed the Respondent to bargain and, since December 5, 1988, the Respondent has refused We find that this refusal constitutes an unlawful refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW By refusing on and after December 5, 1988, to bargain with the Union as the exclusive collective- bargaining representative of employees in the ap- propriate unit, the Respondent has engaged in unfair labor practices 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 law, we shall construe the ini tial period of the certification 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) 779 ployees in the following appropriate unit on terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement All full time and regular part-time mechanical maintenance employees employed by the Em- ployer at its Fulton Building facility in Pitts burgh, Pennsylvania, excluding construction and remodeling employees, custodial and jam- tonal employees, office clerical employees and guards, professional employees and supervisors as defined in the Act (b) Post at its facility in Pittsburgh, Pennsylva- nia, copies of the attached notice marked "Appen dix "2 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt 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 altered, defaced, or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 2 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 Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX ORDER The National Labor Relations Board orders that the Respondent, Ernest Stern, George Stern, Tran- sexecutive Aviation, Inc, Richard Stern, Linda Stern Coslov, Judith Stern Guttman d/b/a Fulton Building, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to recognize and bargain with Inter national Union of Operating Engineers, Local Union No 95-95A, AFL-CIO as the exclusive bar- gaining representative of the employees in the bar- gaining unit (b) In any like or related manner interfering with, restraining, or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) On request, recognize and bargain with the Union as the exclusive representative of the em- 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 Internation al Union of Operating Engineers, Local Union No 95-95A, AFL-CIO as the exclusive 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 exer- cise 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 bargaining unit 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time mechanical maintenance employees employed by the Em ployer at its Fulton Building facility in Pitts- burgh, Pennsylvania, excluding construction and remodeling employees, custodial and jam- tonal employees , office clerical employees and guards, professional employees and supervisors as defined in the Act ERNEST STERN, GEORGE STERN, TRANSEXECUTIVE AVIATION, INC, RICHARD STERN, LINDA STERN COSLOV, JUDITH STERN GUTTMAN D/B/A FULTON BUILDING