Macke Laundry West, Inc.

936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Macke Laundry West, Inc. and Freight Checkers, Clerical Employees and Helpers, Local Union No. 856, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO.' Case 20-CA-20668 June 30, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On October 30, 1986, the General Counsel of the National Labor Relations Board issued a complaint 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 follow- ing the Union's certification in Case 20-RC-15974. (Official notice is taken of the "record" in the rep- resentation proceeding as defined in the Board's Rules and Regulations, Secs. 102. 68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Re- spondent filed its answer admitting in part and de- nying in part the allegations in the complaint. On January 16, 1987, the General Counsel filed a Motion for Summary Judgment. On January 22, 1987, 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 raises as a defense its doubts as to the validity of the Union's certification on the basis of its objections to the election in the underlying rep- resentation proceeding.2 i On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change. 2 In its answer, the Respondent denied that a proper charge was filed or served. The Respondent admitted , however, that a first amended charge was filed and properly served The address listed for the Re- spondent on both charges was the same and the proofs of service reflect that the charge and the first amended charge were mailed to and re- ceived at the same address. The Respondent also denied the existence of certain entities described in the complaint and denied the jurisdictional allegations of the complaint. The Stipulation for Certification Upon Con- sent Election in case 20-RC-15974 reflects that the Respondent stipulated that its name is "Macke Laundry West , Inc.," and further stipulated to facts establishing that it is engaged in commerce within the meaning of the Act. That stipulation, which was entered into on behalf of the Re- spondent by the same attorney who filed the answer in the instant pro- ceeding, is binding on the Respondent Accordingly , neither of these de- nials raises any issue of fact warranting a hearing. 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.3 We therefore find that the Respondent has not raised any representa- tion issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, 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 Maryland corporation, with an office and place of business in San Francisco, California, has been engaged in the placement and service of coin-operated washers and dryers, where it annually derives gross revenues in excess of $500,000 and where it annually purchases goods and materials valued over $50,000 directly from outside the State. We find that the Respondent 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 mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held February 13, 1986, the Union was certified on August 19, 1986, as the collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time service technicians, shop employees , collectors, install- ers, mechanics, and dispatchers employed by a The Respondent claims that the Regional Director improperly denied its request under the Freedom of Information Act (5 U.S C. § 522) and under § 102 117 of the Board's Rules and Regulations to be provided with an affidavit submitted by Mary Watts, and asserts that it has no bar- gaining obligation until its appeals from this denial are exhausted. We find no ment to these contentions. We note, initially, that this alleged af- fidavit was the subject of a specific exception in the representation case and is not subject to relitigation. Moreover, under § 102 117 of the Board's Rules and Regulations, the denial of a request for documents by the Regional Director is subject to appeal to the General Counsel and thereafter subject to judicial review. As for any appeals that may be pending, it is well settled that collateral litigation does not suspend the duty to bargain under the Act. See, e g., Peabody Coal Ca, 265 NLRB 93, 97 (1982), Peat Mfg. Co, 261 NLRB 240, 242 (1982); and Dresser In- dustnes, 252 NLRB 631, 632 (1980). Thus, the Respondent raises no issue of fact or law warranting a hearing. 295 NLRB No. 98 MACKE LAUNDRY WEST 937 the Employer at its 567 7th Street, San Fran- cisco, California facility; excluding all office clerical employees, confidential employees, guards, and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since September 18, 1986, the Union has request- ed the Respondent to bargain and since that date the Respondent has refused. We find that this re- fusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after September 18, 1986, 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). ORDER The National Labor Relations Board orders that the Respondent, Macke Laundry West, Inc., San Francisco, California, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Freight Checkers, Clerical Employees and Helpers, Local Union No. 856, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive bargaining representative of the employees in the bargaining 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, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate 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 service technicians, shop employees, collectors, install- ers, mechanics, and dispatchers employed by the Employer at its 567 7th Street, San Fran- cisco, California facility ; excluding all office clerical employees, confidential employees, guards and supervisors as defined in the Act. (b) Post at its facility in San Francisco , Califor- nia, copies of the attached notice marked "Appen- dix."4 Copies of the notice, on forms provided by the Regional Director for Region 20, 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. 4 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 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 Freight Checkers, Clerical Employees and Helpers, Local Union No. 856, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO as the ex- 938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD clusive representative of the employees in the bar- gaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed to 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: All full-time and regular part-time service technicians, shop employees, collectors, install- ers, mechanics, and dispatchers employed by the Employer at its 567 7th Street, San Fran- cisco, California facility; but excluding all office clerical employees, confidential employ- ees, guards and supervisors as defined in the Act. MACKE LAUNDRY WEST, INC.