Innovative Facility Services, LLC

349 NLRB No. 9 Innovative Facility Services, LLC and Local 3, Retail, Wholesale and Department Store Union, UFCW. Case 2–CA–37949 January 18, 2007 DECISION AND ORDER BY MEMBERS SCHAUMBER, 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 proceed- ing. Pursuant to a charge filed on October 26, 2006, the General Counsel issued the complaint on November 3, 2006, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 2– RC–23113. (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 an answer admitting in part and denying in part the allegations in the complaint, and asserting an affirmative defense. On November 30, 2006, the General Counsel filed a Motion for Summary Judgment. On December 4, 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. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification on the basis of its objections to conduct alleged to have affected the results of the election in the representation proceeding. 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- 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 The Respondent is a wholly owned subsidiary of Kel- lermeyer Building Services, LLC, and is a limited liabil- ity company incorporated in the State of Delaware, with its principal office and place of business in Maumee, Ohio. The Respondent is engaged in providing house- keeping and janitorial services in New York, New York, including at a facility located at 504 Broadway, New York, New York, the only facility involved herein. Annually, in the course and conduct of its business op- erations described above, the Respondent provides ser- vices valued in excess of $50,000 to Bloomingdales and other companies which are located in the State of New York and are directly engaged in interstate commerce. 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 Local 3, Retail, Wholesale and Department Store Union, UFCW (the Union) is a labor organization within the meaning of Section 2(5) of the Act.1 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held June 26, 2006, the Union was certified on September 28, 2006, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All nonsupervisory housekeeping employees employed by the Employer at the Bloomingdale’s store located at 504 Broadway, New York, NY, but excluding all other employees, including sales, stock, and shipping em- ployees, office and clerical employees, and guards, pro- fessional employees, and supervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain On or about October 11, 2006, the Union, by letter, has requested the Respondent to meet and bargain collec- tively with the Union as the exclusive collective- bargaining representative of the unit. On or about Octo- ber 20, 2006, the Respondent refused to recognize and bargain collectively with the Union. We find that this refusal constitutes an unlawful refusal to bargain in vio- lation of Section 8(a)(5) and (1) of the Act. 1 In paragraph 3 of its answer, the Respondent denies sufficient knowledge or information regarding the Union’s status as a labor or- ganization within the meaning of Sec. 2(5) of the Act. However, in the underlying representation proceeding, the Respondent entered into a Stipulated Election Agreement in which it effectively stipulated that the Union is a labor organization. Accordingly, we find that the Respon- dent’s answer in this regard does not raise any issue warranting a hear- ing. See, e.g., Spruce Co., 321 NLRB 919 fn. 2 (1996). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 CONCLUSION OF LAW By refusing on and after October 20, 2006, to recog- nize and bargain with the Union as the exclusive collec- tive-bargaining representative of employees in the ap- propriate unit, the Respondent has engaged in unfair la- bor 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 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); 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, Innovative Facility Services, LLC, New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with Local 3, Retail, Wholesale and Department Store Union, UFCW, as the exclusive bargaining representative of the employ- ees 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, meet and bargain with the Union as the exclusive representative of the employees in the follow- ing appropriate unit on terms and conditions of employ- ment, and if an understanding is reached, embody the understanding in a signed agreement: All nonsupervisory housekeeping employees employed by the Employer at the Bloomingdale’s store located at 504 Broadway, New York, NY, but excluding all other employees, including sales, stock, and shipping em- ployees, office and clerical employees, and guards, pro- fessional employees, and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in New York, New York, copies of the at- tached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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 al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since October 20, 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 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 with us on your behalf Act together with other employees for your bene- fit and protection 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 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.” INNOVATIVE FACILITY SERVICES, LLC 3 Choose not to engage in any of these protected activities. WE WILL NOT refuse to recognize and bargain with Lo- cal 3, Retail, Wholesale and Department Store Union, UFCW, as the exclusive bargaining 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 fol- lowing bargaining unit: All nonsupervisory housekeeping employees employed by the Employer at the Bloomingdale’s store located at 504 Broadway, New York, NY, but excluding all other employees, including sales, stock, and shipping em- ployees, office and clerical employees, and guards, pro- fessional employees, and supervisors as defined in the Act. INNOVATIVE FACILITY SERVICES, LLC