339 N.L.R.B. 34 (N.L.R.B. 2003)

Builders' Insulation, Inc.

National Labor Relations Board - Board DecisionsJun 3, 2003

339 N.L.R.B. 34 (N.L.R.B. 2003)

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. City Wide Insulation of Madison, Inc. d/b/a Builders’ Insulation, Inc. and Milwaukee & Southern Wisconsin Regional Council of Carpenters. Case 30–CA–16393–1 June 3, 2003 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH This is a refusal-to-bargain case in which the Respon dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed ing. Pursuant to a charge filed on March 17, 2003, the General Counsel issued the complaint on March 31, 2003, alleging that the Respondent has violated Section 8(a)(1) and (5) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 30–RC–6503. (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 May 2, 2003, the General Counsel filed a Motion for Summary Judgment. On May 8, 2003, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On May 22, 2003, 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 to the complaint and response to the No tice to Show Cause, the Respondent admits its refusal to bargain, but contests the validity of the certification based on its objections to the election in the representa tion proceeding. All representation issues raised by the Respondent were or could have been lit igated in the prior representation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously 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, has been engaged in the contract construction business of selling and installing insulation from its facility located in Germantown, Wisconsin. During the 12-month period preceding the issuance of the complaint, the Respondent, in conducting its operations described above, realized gross revenues in excess of $500,000, and purchased and received materials valued in excess of $5000 directly from suppliers located outside the State of Wisconsin. 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 Milwaukee & Southern Wiscon sin Regional Council of Carpenters, 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 November 26, 2002, the Union was certified on February 27, 2003,1 as the exclu sive collective-bargaining representative of the employ ees in the following appropriate unit: All regular full-time and regular part-time jobsite insu lation installers employed and working out of the Em ployer’s Germantown, Wisconsin facility; excluding office and clerical employees, temporary and casual employees, managerial employees, guards and supervi sors as defined in the Act. The Union continues to be the exclusive representative un der Section 9(a) of the Act. B. Refusal to Bargain On March 6, 2003, the Union, by letter, requested the Respondent to bargain, and, on March 10, 2003, the Re spondent, by letter, declined the Union’s request. We find that the Respondent’s conduct constitutes an unlaw ful refusal to bargain in violation of Section 8(a)(1) and (5) of the Act. CONCLUSION OF LAW By refusing on and after March 10, 2003, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affect- 1 338 NLRB No. 108 (2003). 339 NLRB No. 34 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(1) and (5) 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 the law, we shall construe the initial period of the cer tification as beginning the date the Respondent 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, City Wide Insulation of Madison, Inc. d/b/a Builders’ Insulation, Inc., Germantown, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Milwaukee & Southern Wisconsin Regional Council of Carpenters as the exclu sive bargaining representative of the 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 representative of the employees in the following appro priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All regular full-time and regular part-time jobsite insu lation installers employed and working out of the Em ployer’s Germantown, Wisconsin facility; excluding office and clerical employees, temporary and casual employees, managerial employees, guards and supervi sors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Germantown, Wisconsin, copies of the at tached notice marked “Appendix.”2 Copies of the notice, 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 on forms provided by the Regional Director for Region 30 after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained 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. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no tice to all current employees and former employees em ployed by the Respondent at any time since March 10, 2003. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. June 3, 2003 Wilma B. Liebman, Member Peter C. Schaumber, Member Dennis P. Walsh, 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 any union Choose representatives to bargain with us on your behalf 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.” BUILDEERS’ INSULATION, INC. 3 Act together with other employees for your bene fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain with Milwaukee & Southern Wisconsin Regional Council of Carpenters, as the exclusive 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 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 fol lowing bargaining unit: All regular full-time and regular part-time jobsite insu lation installers employed and working out of our Ge r mantown, Wisconsin facility; excluding office and clerical employees, temporary and casual employees, managerial employees, guards and supervisors as de- fined in the Act. CITY WIDE INSULATION OF MADISON, INC. D/B/A BUILDERS’ INSULATION, INC.