Onyx Management Group LLC

361 NLRB No. 30 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. Onyx Management Group LLC and International Union of Operating Engineers, Local 30, AFL- CIO. Case 29–CA–130471 August 28, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS JOHNSON AND SCHIFFER This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed by the Union on June 9, 2014, the General Counsel issued the complaint on June 19, 2014, alleging that the Respondent has vio- lated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to recognize and bargain following the Union’s certification in Case 29–RC–123189. (Official notice is taken of the “record” in the representation pro- ceeding as defined in the Board’s Rules and Regulations, Sections 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 July 7, 2014, the General Counsel filed a Motion for Summary Judgment. On July 8, 2014, the Board is- sued 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 position that the bargaining unit in the underlying repre- sentation proceeding is not appropriate. 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 At all material times, the Respondent, a domestic cor- poration doing business in New Jersey and New York including at 1 and 2 Jericho Plaza, Jericho, New York, has been engaged in providing primary commercial property services. During the 12-month period preceding the issuance of the complaint (a representative period), the Respondent, in the course and conduct of its business operations, de- rived gross revenues in excess of $1,000,000, and pro- vided services valued in excess of $50,000, directly to customers outside the State of New Jersey. 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 Union of Operating Engineers, Local 30, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on May 7, 2014, the Union was certified on May 20, 2014, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: Included: All full-time and regular part-time building engineers, grounds maintenance employees and the lead grounds maintenance employee employed by On- yx Management Group LLC, and working at its 1 and 2 Jericho Plaza, Jericho, New York facility. Excluded: All other employees, including business of- fice clericals, clericals and professional employees, guards, and supervisors as defined in Section 2(11) of the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain By letter dated May 20, 2014, the Union requested that the Respondent meet and bargain with it to negotiate an initial collective-bargaining agreement and, since June 6, 2014, the Respondent has refused to do so. We find that this failure and refusal constitutes an un- lawful 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 June 6, 2014, to recog- nize and bargain with the Union as the exclusive collec- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 tive-bargaining representative of the employees in the appropriate 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 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); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). In addition to the customary Notice posting remedies, the General Counsel requests the additional remedy that the Respondent mail a Notice to each unit employee’s residence. In the absence of any explanation why the Notice mailing remedy is warranted here, we deny the General Counsel’s request. ORDER The National Labor Relations Board orders that the Respondent, Onyx Management Group LLC, Jericho, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Union of Operating Engineers, Local 30, AFL-CIO, as the exclusive collective-bargaining repre- sentative of the employees 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, bargain with the Union as the exclusive collective-bargaining 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: Included: All full-time and regular part-time building engineers, grounds maintenance employees and the lead grounds maintenance employee employed by On- yx Management Group LLC, and working at its 1 and 2 Jericho Plaza, Jericho, New York facility. Excluded: All other employees, including business of- fice clericals, clericals and professional employees, guards, and supervisors as defined in Section 2(11) of the Act. (b) Within 14 days after service by the Region, post at its facility in Jericho, New York, copies of the attached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 29, 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. 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 custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered 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 current em- ployees and former employees employed by the Re- spondent at any time since June 6, 2014. (c) Within 21 days after service by the Region, file with the Regional Director for Region 29, a sworn certi- fication of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. August 28, 2014 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Harry I. Johnson, III, Member 1 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.” 3 ONYX MANAGEMENT GROUP LLC ______________________________________ Nancy Schiffer, Member (SEAL) 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 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 Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bar- gain with International Union of Operating Engineers, Local 30, AFL-CIO, as the exclusive collective- bargaining 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 exercise of the rights listed above. 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: Included: All full-time and regular part-time building engineers, grounds maintenance employees and the lead grounds maintenance employee employed by On- yx Management Group LLC, and working at its 1 and 2 Jericho Plaza, Jericho, New York facility. Excluded: All other employees, including business of- fice clericals, clericals and professional employees, guards, and supervisors as defined in Section 2(11) of the Act. ONYX MANAGEMENT GROUP LLC The Board’s decision can be found at www.nlrb.gov/case/29-CA-130471 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.