A. Bonfatti & Co.

National Labor Relations Board - Board Decisions

Feb 28, 1995

316 N.L.R.B. 623 (N.L.R.B. 1995)

623
316 NLRB No. 104
A. BONFATTI & CO.
1 We note in this regard that the Respondent failed to request re-
view of the Regional Director’s September 29, 1994 Decision and
Direction of Election rejecting the Respondent’s contentions in the
representation proceeding. In these circumstances, the Respondent is
precluded under Sec. 102.67(f) of the Board’s Rules from raising the
same issues in the instant proceeding. See Pony Express Courier
Corp., 311 NLRB 1157 fn. 1 (1993), and cases cited there. See also
NLRB v. Louisiana Industries, 414 F.2d 227, 228 (5th Cir. 1969).
A. Bonfatti & Co., Inc. and Massachusetts Labor-
ers’ District Council, a/w Laborers’ Inter-
national Union of North America, AFL–CIO.
Case 1–CA–32435
February 28, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
Pursuant to a charge filed by the Union on Decem-
ber 23, 1994, the General Counsel of the National
Labor Relations Board issued a complaint on January
10, 1995, alleging that the Respondent has violated
Section 8(a)(5) and (1) of the National Labor Relations
Act by refusing the Union’s request to bargain follow-
ing the Union’s certification in Case 1–RC–20177.
(Official notice is taken of the ‘‘record’’ in the rep-
resentation 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 denying in part the al-
legations in the complaint, and asserting affirmative
defenses.
On January 27, 1995, the General Counsel filed a
Motion for Summary Judgment. On January 30, 1995,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. On February 21, 1995, 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
In its answer the Respondent admits its refusal to
bargain, but attacks the validity of the certification on
the basis of its contentions in the representation pro-
ceeding that the parties’ expired Section 8(f) agreement
did not constitute a sufficient showing of interest to
warrant holding a representation election and that it
did not employ any unit employees.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding.1 The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair 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.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business in Norwood, Mas-
sachusetts, has been engaged in business as a general
contractor in the construction industry. During the cal-
endar year ending December 31, 1994, the Respondent,
in conducting its business operations, provided services
valued in excess of $50,000 for enterprises within the
Commonwealth of Massachusetts which are directly
engaged in interstate commerce. We find that the Re-
spondent 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 election held October 26, 1994, the
Union was certified on November 9, 1994, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All laborers employed by Respondent in the
towns of North Orange and Warwick in Franklin
County, and in the counties of Barnstable, Bristol,
Dukes, Essex, Middlesex, Nantucket, Norfolk,
Plymouth, Suffolk, and Worcester in the Com-
monwealth of Massachusetts, and in the town of
Salem in Rockingham County, New Hampshire,
but excluding all other employees, guards and su-
pervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
About November 1 and 21 and December 7, 1994,
the Union requested the Respondent to meet and bar-
gain and, since about November 1, 1994, the Respond-
ent has refused. We find that this refusal constitutes an
unlawful refusal to bargain in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after November 1, 1994, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 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 un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent 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, A. Bonfatti & Co., Inc., Norwood, Massa-
chusetts, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Massachusetts Labor-
ers’ District Council, a/w Laborers’ International
Union of North America, AFL–CIO as the exclusive
bargaining representative of the employees in the bar-
gaining unit.
(b) In any like or related manner interfering with,
restraining, 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 representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All laborers employed by Respondent in the
towns of North Orange and Warwick in Franklin
County, and in the counties of Barnstable, Bristol,
Dukes, Essex, Middlesex, Nantucket, Norfolk,
Plymouth, Suffolk, and Worcester in the Com-
monwealth of Massachusetts, and in the town of
Salem in Rockingham County, New Hampshire,
but excluding all other employees, guards and su-
pervisors as defined in the Act.
(b) Post at its facility in Norwood, Massachusetts,
copies of the attached notice marked ‘‘Appendix.’’2
Copies of the notice, on forms provided by the Re-
gional Director for Region 1 after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Massachusetts
Laborers’ District Council, a/w Laborers’ International
Union of North America, AFL–CIO as the exclusive
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 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 bargaining unit:
All laborers employed by us in the towns of
North Orange and Warwick in Franklin County,
and in the counties of Barnstable, Bristol, Dukes,
Essex, Middlesex, Nantucket, Norfolk, Plymouth,
Suffolk, and Worcester in the Commonwealth of
Massachusetts, and in the town of Salem in Rock-
ingham County, New Hampshire, but excluding
all other employees, guards and supervisors as de-
fined in the Act.
A. BONFATTI & CO., INC.