Tito Contractors, Inc.

362 NLRB No. 119 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. Tito Contractors, Inc. and International Union of Painters and Allied Trades, District Council 51 (AFL–CIO). Case 05–CA–149046 June 18, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA 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 International Union of Painters and Allied Trades, District Council 51 (AFL–CIO) (the Union) on March 26, 2015, the General Counsel issued the complaint on April 9, 2015, alleging that Tito Contractors, Inc. (the Respondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Un- ion’s request to bargain following the Union’s certifica- tion in Case 05–RC–117169. (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 deny- ing in part the allegations of the complaint, and asserting an affirmative defense. On April 24, 2015, the General Counsel filed a Motion for Summary Judgment. On April 28, 2015, 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 did not file 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 Union’s certification on the basis of its contention in the underlying representation pro- ceeding that the unit is inappropriate. 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.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a cor- poration with an office and place of business in Wash- ington, D.C., and has been engaged in furnishing con- struction and labor services. During the 12-month period ending April 1, 2015, the Respondent performed services valued in excess of $50,000 in states other than the District of Columbia. 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 a mail ballot election held between Febru- ary 28 and March 14, 2014, the Union was certified on February 25, 2015, as the exclusive collective-bargaining representative of employees in the following appropriate unit: All employees employed by the Employer, excluding all project managers, recycling supervisors, clerical employees, managerial employees, professional em- ployees, guards, and supervisors as defined by 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 March 9, 2015, the Union requested that the Respondent bargain collectively with it as the exclusive collective-bargaining representative of the unit. Since about March 25, 2015, the Respondent has failed and refused to do so. We find that this failure and refusal constitutes an unlawful failure and refusal to recognize 1 Member Miscimarra would have granted review in the underlying representation proceeding. While Member Miscimarra remains of that view, he agrees, that the Respondent has not presented any new matters that are properly litigable in this unfair labor practice case. See Pitts- burgh Plate Glass Co. v. NLRB, supra. In light of this, Member Miscimarra agrees with the decision to grant the Motion for Summary Judgment. DECISIONS OF THE NATIONAL LABOR RELATION BOARD 2 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 March 25, 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 bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certification as beginning the date that 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. 2965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964).2 ORDER The National Labor Relations Board orders that the Respondent, Tito Contractors, Inc., Washington, D.C., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Union of Painters and Allied Trades, Dis- trict Council 51 (AFL–CIO) as the exclusive collective- bargaining representative of 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 following appropriate unit on terms and conditions of employment 2 In accordance with the General Counsel’s unopposed request, and as the record in the underlying representation proceeding indicates that notices of election were posted in both English and Spanish, we shall order the Notice to Employees to be posted in both English and Span- ish. and, if an understanding is reached, embody the under- standing in a signed agreement: All employees employed by the Employer, excluding all project managers, recycling supervisors, clerical employees, managerial employees, professional em- ployees, guards, and supervisors as defined by the Act. (b) Within 14 days after service by the Region, post at its facility in Washington, D.C., copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent’s authorized repre- sentative, shall be translated into Spanish, and both Span- ish and English notices shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electron- ically, such as by email, posting on an intranet or an in- ternet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate 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 March 25, 2015. (c) Within 21 days after service by the Region, file with the Regional Director for Region 5 a sworn certifi- cation 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. June 18, 2015 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Philip A. Miscimarra, Member 3 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.” TITO CONTRACTORS, INC. 3 ______________________________________ Kent Y. Hirozawa, 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 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 Union of Painters and Allied Trades, District Council 51 (AFL–CIO) as the exclusive collec- tive-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 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 employees employed by us, excluding all project managers, recycling supervisors, clerical employees, managerial employees, professional employees, guards, and supervisors as defined by the Act. TITO CONTRACTORS, INC. The Board’s decision can be found at www.nlrb.gov/case/05-CA-149046 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.