ABM Onsite Services - West, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 2015

362 NLRB No. 179 (N.L.R.B. 2015)

362 NLRB No. 179
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.
ABM Onsite Services—West, Inc. and International
Association of Machinist and Aerospace Work-
ers, District Lodge W24, Local Lodge 1005.
Case 19–CA–153164
August 26, 2015
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
DECISION AND ORDER
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
Association of Machinist and Aerospace Workers, Dis-
trict Lodge W24, Local Lodge 1005 (the Union) on May
28, 2015, the General Counsel issued the complaint on
June 10, 2015, alleging that ABM Onsite Services—
West, Inc. (the Respondent) has violated Section 8(a)(5)
and (1) of the Act by refusing the Union’s request to bar-
gain following the Union’s certification in Case 19–RC–
144377. (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 denying in part the
allegations in the complaint, and asserting affirmative
defenses.
On July 1, 2015, the General Counsel filed a Motion
for Summary Judgment. On July 6, 2015, 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
contention, raised and rejected in the underlying repre-
sentation proceeding, that it is not an employer within the
meaning of the Act but rather is subject to the Railway
Labor Act, and, therefore, the Board lacks jurisdiction.1

1 The Respondent also asserts that the unfair labor practice charge
and the complaint are barred in whole or in part by Sec. 10(b) of the
Act. However, the Respondent has not presented any factual or legal
basis in support of this defense, and its answer admits the complaint
allegations that the charge was filed on May 28, 2015, and that it has
refused to bargain with the Union since May 27, 2015. Therefore, we
find that the Respondent’s 10(b) defense is without merit.
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.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a State of Delaware corporation with
an office and place of business at Portland International
Airport in Portland, Oregon (the Airport), is engaged in
operating the baggage handling system at the Airport and
providing janitorial, parking, facilities engineering, secu-
rity, and landscaping services at various locations.
In conducting its operation described above during the
12-month period preceding issuance of the complaint, a
representative period, the Respondent derived gross rev-
enues in excess of $500,000, and performed services
valued in excess of $50,000 in states other than the State
of Oregon.
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 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 2,
2015, the Union was certified on April 10, 2015, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time jammer technicians
and dispatchers employed by the Respondent at the
Portland International Airport in Portland, Oregon; ex-
cluding office and clerical employees, administrative
assistants, professional employees, managerial employ-
ees, guards and supervisors as defined in the Act.

2 The Respondent’s request to dismiss the complaint is denied.
Member Miscimarra would have granted review in the underlying
representation proceeding. He agrees, however, that the Respondent
has not raised any new matters that are properly litigable in this unfair
labor practice proceeding and that summary judgment is appropriate,
with the parties retaining their respective rights to litigate relevant
issues on appeal.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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 letters dated April 13 and May 5, 2015, the Union
requested that the Respondent bargain with it as the ex-
clusive collective-bargaining representative of the unit
employees and, since May 27, 2015, the Respondent has
refused to do so.
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 May 27, 2015, to recog-
nize and bargain with the Union as the exclusive collec-
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).
ORDER
The National Labor Relations Board orders that the
Respondent, ABM Onsite Services—West, Inc., Port-
land, Oregon, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
the International Association of Machinists & Aerospace
Workers, District Lodge W24, Local Lodge 1005 as the
exclusive collective-bargaining representative of the em-
ployees 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 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 jammer technicians
and dispatchers employed by the Respondent at the
Portland International Airport in Portland, Oregon; ex-
cluding office and clerical employees, administrative
assistants, professional employees, managerial employ-
ees, guards and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Portland, Oregon, copies of the attached
notice marked “Appendix.”3 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 May 27, 2015.
(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.

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.”
ABM ONSITE SERVICES—WEST, INC. 3
Dated, Washington, D.C., August 26, 2015
Mark Gaston Pearce, Chairman
Philip A. Miscimarra, 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
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 Association of Machinists and Aero-
space Workers, District Lodge W24, Local Lodge 1005
as the exclusive collective-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 full-time and regular part-time jammer technicians
and dispatchers employed by us at the Portland Interna-
tional Airport in Portland, Oregon; excluding office and
clerical employees, administrative assistants, profes-
sional employees, managerial employees, guards and
supervisors as defined in the Act.
ABM ONSITE SERVICES—WEST, INC.
The Board’s decision can be found at
www.nlrb.gov/case/19-CA-153164 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.