Advanced Disposal

362 NLRB No. 89 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. Advanced Disposal Services East, Inc. and Teamsters Local Union No. 384 a/w the International Brotherhood of Teamsters. Case 04–CA–145936 May 8, 2015 DECISION AND ORDER BY MEMBERS MISCIMARRA, HIROZAWA, AND MCFERRAN 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 Teamsters Lo- cal Union No. 384 a/w the International Brotherhood of Teamsters (the Union) on February 6, 2015, the General Counsel issued the complaint on February 19, 2015, al- leging that Advanced Disposal Services East, Inc. (the Respondent) has violated 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 04– RC–123739. (Official notice is taken of the “record” in the representation proceeding 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 March 13, 2015, the General Counsel filed a Mo- tion for Summary Judgment and Memorandum in Sup- port of Motion. On March 17, 2015, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be grant- ed. 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. Further, relying on NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Respondent contends that because the Board lacked a quorum, its appointment of the Regional Direc- tor for Region 4 is void; the Regional Director had no authority to conduct the election; and the Board’s subse- quent certification of the Union cannot stand. On these bases, the Respondent argues that the Board must set aside the election and remand the representation case to the Regional Director with directions to conduct a new election. 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). Accordingly, we grant the Motion for Summary Judg- ment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware cor- poration with facilities at 2955 Felton Road, Norristown, Pennsylvania, 455 Poplar Neck Road, Birdsboro, Penn- sylvania, and 565 Trestle Park, Downingtown, Pennsyl- vania, has been engaged in residential and commercial waste hauling services. During the year preceding issuance of the complaint, the Respondent received goods valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. 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 is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on April 16 and 17, 2014, the Union was certified on December 16, 2014, as the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: All full-time and regular part-time drivers, helpers and mechanics employed by the Respondent at its Birdsbo- ro, Pennsylvania; Norristown, Pennsylvania and Down- ingtown, Pennsylvania locations; but excluding all oth- er employees, guard and supervisors as defined in the Act. 1 The Respondent’s requests that the complaint be dismissed and a new election be directed are therefore denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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 January 22, 2015, the Union requested that the Respondent recognize and bargain with it as the exclusive collective-bargaining representative of the unit. By letter dated February 4, 2015, the Respondent refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that this failure and refusal constitutes an unlawful fail- ure 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 February 4, 2015, to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of 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 recognize and bargain on request with the Un- ion 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). ORDER The National Labor Relations Board orders that the Respondent, Advanced Disposal Services East, Inc., Nor- ristown, Birdsboro, and Downingtown, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Teamsters Local Union No. 384 a/w the International Brotherhood of Teamsters as the exclusive collective- bargaining representative of the employees in the bar- gaining 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 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 drivers, helpers and mechanics employed by the Respondent at its Birdsbo- ro, Pennsylvania; Norristown, Pennsylvania and Down- ingtown, Pennsylvania locations; but excluding all oth- er employees, guard and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facilities in Norristown, Birdsboro, and Downing- town, Pennsylvania, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consec- utive 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, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps shall be taken by the Respondent 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 Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since February 4, 2015. (c) Within 21 days after service by the Region, file with the Regional Director for Region 4 a sworn certifi- cation of a responsible official on a form provided by the 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.” ADVANCED DISPOSAL SERVICES EAST 3 Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. May 8, 2015 ______________________________________ Philip A. Miscimarra, Member ______________________________________ Kent Y. Hirozawa, Member ______________________________________ Lauren McFerran, 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 bargain with Teamsters Local Union No. 384 a/w International Brotherhood of Teamsters as the exclusive collective-bargaining representa- tive 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 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: All full-time and regular part-time drivers, helpers and mechanics employed by us at our Birdsboro, Pennsyl- vania; Norristown, Pennsylvania and Downingtown, Pennsylvania locations; but excluding all other em- ployees, guard and supervisors as defined in the Act. ADVANCED DISPOSAL SERVICES EAST, INC. The Board’s decision can be found at www.nlrb.gov/case/04-CA-145936 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.