Rhino Northwest, LLC

RHINO NORTHWEST, LLC 673 363 NLRB No. 72 Rhino Northwest, LLC and Local No. 15, Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists, and Allied Crafts of the United States, Its Territories and Canada, AFL–CIO, CLC. Case 19–CA– 160205 December 17, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS 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 on September 17, 2015, by Local No. 15, International Alliance of Theatri- cal Stage Employees and Moving Picture Technicians, Artists, and Allied Crafts of the United States, its Territo- ries and Canada, AFL–CIO, CLC (the Union), the Gen- eral Counsel issued the complaint on October 1, 2015, alleging that Rhino Northwest, LLC (the Respondent) has violated Section 8(a)(5) and (1) of the Act by refus- ing the Union’s request to recognize and bargain follow- ing the Union’s certification in Case 19–RC–152947. (Official notice is taken of the record in the representa- tion proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g). Frontier Ho- tel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allega- tions in the complaint, and asserting affirmative defens- es. On October 21, 2015, the General Counsel filed a Mo- tion for Summary Judgment. On October 23, 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 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 of representative on the basis of its contention, raised and rejected in the un- derlying representation proceeding, that the certified bar- gaining unit is inappropriate. In addition, as an affirma- tive defense in its answer to the complaint, the Respond- ent raises for the first time the argument that Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enfd. sub. nom. Kindred Nursing Center East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), which was relied on by the Regional Director in making the unit determination, was decided at a time when the Board did not have a constitutional majority.1 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, a State of Arizona limited liability corporation with an office and place of business in Fife, Washington (the facility), is engaged in the business of providing event labor staffing services. In conducting its business operations during the 12- month period preceding issuance of the complaint, a rep- resentative period, the Respondent derived gross reve- nues in excess of $500,000 and provided services valued in excess of $50,000 to customers located in states other than the State of Washington. 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 by mail bal- lot, in which the ballots were mailed to voters on June 26, 2015, and counted on July 17, 2015, the Union was certified on August 3, 2015, as the exclusive collective- bargaining representative of the employees in the follow- ing appropriate unit: All full-time and regular part-time riggers, including boom lift riggers, ballroom riggers, decorating riggers, down riggers, ETCP high riggers, fly operators, head riggers, head fly operators, high riggers, high rigger trainees, high rigger welders, installation riggers, roof 1 Contrary to the Respondent’s argument, Specialty Healthcare was decided at a time when the Board had a valid quorum. See Mathew Enterprise, Inc. v. NLRB, 771 F.3d 812 (D.C. Cir. 2014) (“[T]he Presi- dent’s recess appointment of Member Becker . . . was constitutionally valid.”); Gestamp South Carolina, L.L.C. v. NLRB, 769 F.3d 254, 257– 258 (4th Cir. 2014) (same). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674 operators, roof supervisors, and rigging trainees, em- ployed by the Employer out of its Fife, Washington, fa- cility, excluding all other employees, guards and super- visors as defined in the National Labor Relations 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 By emails dated August 5, 7, and 13, 2015, the Union requested that the Respondent meet and bargain collec- tively with the Union as the exclusive collective- bargaining representative of the unit employees. Since August 17, 2015, the Respondent has failed and refused to recognize and bargain with the Union. 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 August 17, 2015, to rec- ognize and bargain with the Union as the exclusive col- lective-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). ORDER The National Labor Relations Board orders that the Respondent, Rhino Northwest, LLC, Fife, Washington, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Local No. 15, International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists, and Allied Crafts of the United States, its Territories and Canada, AFL–CIO, CLC 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 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: All full-time and regular part-time riggers, including boom lift riggers, ballroom riggers, decorating riggers, down riggers, ETCP high riggers, fly operators, head riggers, head fly operators, high riggers, high rigger trainees, high rigger welders, installation riggers, roof operators, roof supervisors, and rigging trainees, em- ployed by the Employer out of its Fife, Washington, fa- cility, excluding all other employees, guards and super- visors as defined in the National Labor Relations Act. (b) Within 14 days after service by the Region, post at its facility in Fife, Washington, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 19, 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. If 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 August 17, 2015. 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.” RHINO NORTHWEST, LLC 675 (c) Within 21 days after service by the Region, file with the Regional Director for Region 19 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. 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 Local No. 15, International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Art- ists, and Allied Crafts of the United States, its Territories and Canada, AFL–CIO, CLC 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: All full-time and regular part-time riggers, including boom lift riggers, ballroom riggers, decorating riggers, down riggers, ETCP high riggers, fly operators, head riggers, head fly operators, high riggers, high rigger trainees, high rigger welders, installation riggers, roof operators, roof supervisors, and rigging trainees, em- ployed by the Employer out of its Fife, Washington, fa- cility, excluding all other employees, guards and super- visors as defined in the National Labor Relations Act. RHINO NORTHWEST, LLC The Board’s decision can be found at www.nlrb.gov/case/19-CA-160205 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.