Barrier West, Inc.

356 NLRB No. 136 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Barrier West, Inc. and International Association of Machinists and Aerospace Workers, AFL–CIO, Woodworkers District Lodge W1, affiliated with International Association of Machinists and Aerospace Workers, AFL–CIO. Case 19–CA– 32892 April 14, 2011 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND HAYES 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 by the Union on January 4, 2011,1 the Acting General Counsel issued the com- plaint on January 7, 2011, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refus- ing the Union’s requests to recognize and bargain and to furnish relevant and necessary information following the Union’s certification in Case 19–RC–15300. (Official notice is taken of the “record” in the representation pro- ceeding 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 com- plaint, and asserting affirmative defenses. On February 11, 2011, the Acting General Counsel filed a Motion for Summary Judgment. On February 23, 2011, the Board issued an order transferring the proceed- ing 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 objection to conduct alleged to have affected the results of the election in the representation proceeding.2 1 The complaint incorrectly stated that the charge was filed January 4, 2010; we correct this typographical error. 2 Although the Respondent’s answer denied that the information re- quested is relevant and necessary to the Union’s duties as the exclusive bargaining representative of the unit, the Acting General Counsel and the Respondent subsequently signed a written stipulation stating that the requested information described in the complaint would be relevant and necessary for collective-bargaining purposes had the Union been 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.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a State of Wash- ington corporation with an office and place of business in Aberdeen, Washington (the facility), has been engaged in the business of, among other things, the collection and conversion of logging by-products into bio-fuel. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business operations described above, purchased and received at the facility goods valued in excess of $50,000 directly from points outside the State of Washington, and derived gross revenues in excess of $500,000. 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 the Union, International Associa- tion of Machinists and Aerospace Workers, AFL–CIO, Woodworkers District Lodge W1, affiliated with Interna- tional Association of Machinists and Aerospace Work- ers, AFL–CIO, 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 representation election held on May 24, 2010, the Union was certified on September 22, 2010, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time woods drivers, paper drivers, highway drivers, yard truck drivers, low bed properly certified. The parties further stipulated that the Respondent informed the Union by letter dated December 16, 2010, that it would not bargain with it as the bargaining representative of the unit and since that time it has refused to recognize and bargain with the Union in order to contest the certification. 3 Accordingly, we deny the Respondent’s request that the complaint be dismissed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 drivers, equipment operators, laborers and maintenance employees employed by Respondent at its Aberdeen, Washington, facility; excluding all other employees, of- fice clerical employees, confidential employees, mana- gerial employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain At all material times Bill Quigg has been an owner of the Respondent and has been a supervisor within the meaning of Section 2(11) of the Act, and/or and agent within the meaning of Section 2(13) of the Act. At all material times George Donovan has held the position of the Respondent’s secretary-treasurer and has been a su- pervisor within the meaning of Section 2(11) of the Act, and/or an agent within the meaning of Section 2(13) of the Act. By letter dated October 15, 2010, the Union requested that the Respondent provide it with information related to unit employees’ terms and conditions of employment. The information requested by the Union is necessary for, and relevant to, the Union’s performance of its duties as the unit employees’ exclusive collective-bargaining rep- resentative. Since about October 15, 2010, the Respon- dent has failed and refused to furnish the Union with the requested information. About November 2 and 16, 2010, the Union requested, in writing, that the Respondent bargain collectively with it as the unit employees’ exclusive collective-bargaining representative. On about December 16, 2010, the Re- spondent, in writing, informed the Union that it would not bargain with it as the bargaining representative of the unit and, thereafter, has failed and refused to recognize and bargain with the Union as the unit employees’ exclu- sive collective-bargaining representative. We find that the Respondent’s conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since October 15, 2010, to fur- nish the Union with requested information, and by failing and refusing since December 16, 2010, to bargain with the Union as the exclusive collective-bargaining repre- sentative of the employees in the unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 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. We shall also order the Respon- dent to furnish the Union the information it requested. 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, Barrier West, Inc., Aberdeen, Washington, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Association of Machinists and Aerospace Workers, AFL–CIO, Woodworkers District Lodge W1, affiliated with International Association of Machinists and Aerospace Workers, AFL–CIO, as the exclusive collective-bargaining representative of the employees in the bargaining unit. (b) Failing and refusing to furnish the Union with in- formation that is necessary and relevant to its role as the exclusive bargaining representative of the unit employ- ees. (c) 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, bargain with the Union as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time woods drivers, paper drivers, highway drivers, yard truck drivers, low bed drivers, equipment operators, laborers and maintenance employees employed by Respondent at its Aberdeen, Washington, facility; excluding all other employees, of- fice clerical employees, confidential employees, mana- gerial employees, guards and supervisors as defined in the Act. BARRIER WEST, INC. 3 (b) Furnish the Union the information it requested in the Union’s October 15, 2010, letter to the Respondent. (c) Within 14 days after service by the Region, post at its facility in Aberdeen, Washington, copies of the at- tached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 19, 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. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means.5 Reasonable steps shall be taken by the Respon- dent 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 Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since October 15, 2010. (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. Dated, Washington, D.C. April 14, 2011 Wilma B. Liebman, Chairman Craig Becker, Member Brian E. Hayes, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 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.” 5 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec- tronic distribution of the notice. 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 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 Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with International Association of Machinists and Aero- space Workers, AFL–CIO, Woodworkers District Lodge W1, affiliated with International Association of Machin- ists and Aerospace Workers, AFL–CIO, as the exclusive collective-bargaining representative of the employees in the bargaining unit. WE WILL NOT refuse to furnish the Union information that is necessary to its role as the exclusive bargaining representative of unit employees. 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 full-time and regular part-time woods drivers, paper drivers, highway drivers, yard truck drivers, low bed drivers, equipment operators, laborers and maintenance employees employed by us at our Aberdeen, Washing- ton, facility; excluding all other employees, office clerical employees, confidential employees, managerial employees, guards and supervisors as defined in the Act. WE WILL furnish the Union the information that it re- quested on October 15, 2010. BARRIER WEST, INC.