Cleveland Construction

National Labor Relations Board - Board Decisions

Aug 31, 1993

311 N.L.R.B. 1397 (N.L.R.B. 1993)

1397
311 NLRB No. 198
CLEVELAND CONSTRUCTION
1 In both its answer and its response to the Notice to Show Cause,
the Respondent also contends that the Regional Director’s certifi-
cation was improper inasmuch as Respondent’s Objections 2 thru 10,
which the Board had held in abeyance in its April 2, 1992 Order,
were still pending and had never been considered or addressed by
the Board. Respondent’s contention is without merit. Although not
readily apparent from the Board’s subsequent February 10, 1993
Order, all of Respondent’s objections were in fact subsequently con-
sidered by the Board in denying Respondent’s request for review of
the Regional Director’s third supplemental decision.
2 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162
(1941).
3 Although Respondent’s brief cites an affidavit given by Respond-
ent’s vice president, Jon Small, as support for its contention that the
drastic expansion of Respondent’s Mason branch office occurred
‘‘subsequent to certification,’’ in fact Small’s affidavit nowhere men-
tions when the expansion in that office began or was completed.
Cleveland Construction, Inc. and Southwest Ohio
District Council of Carpenters, AFL–CIO. Case
9–CA–30636
August 31, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 1, 1993, the General Counsel of the Na-
tional Labor Relations Board issued a complaint and
notice of hearing alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act by refusing the Union’s request to bargain
following the Union’s certification in Case 9–RC–
15828. (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 Respond-
ent filed its answer admitting in part and denying in
part the allegations in the complaint.
On July 6, 1993, the General Counsel filed a Motion
for Summary Judgment and Motion to Strike, and a
memorandum in support. On July 9, 1993, 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 August 10, 1993, the Re-
spondent filed a response to the Notice to Show Cause
and a motion to vacate the Union’s certification and
dismiss the complaint.
Ruling on Motion for Summary Judgment
In its answer and response to the Notice to Show
Cause the Respondent admits that the Union was cer-
tified by the Regional Director on March 4, 1993, as
the exclusive collective-bargaining representative of
the unit, but attacks the validity of the certification on
the basis of its objections to the election in the rep-
resentation proceeding.1 In addition, the Respondent
contends that events occurring since the representation
hearing, including the cessation of all work and the
permanent layoff of all the unit employees at its VA
hospital project in Dayton, the transformation of its
Columbus field office into a full-fledged, functionally
separate branch office with complete autonomy over
day-to-day operations, and the drastic expansion of its
Mason branch office, have rendered the unit no longer
appropriate.
It is well established that, in the absence of newly
discovered or previously unavailable evidence or spe-
cial circumstances, a respondent is not entitled to reliti-
gate issues which were or could have been litigated in
the representation proceeding in the subsequent 8(a)(5)
refusal-to-bargain proceeding.2 Here, all issues raised
by Respondent concerning its objections to the election
were or could have been litigated in the prior represen-
tation proceeding. Accordingly, we find that they do
not warrant relitigation in this proceeding.
As for Respondent’s contention that events have
rendered the unit no longer appropriate, such evidence
cannot in the instant circumstances in any way be con-
sidered newly discovered or previously unavailable.
First, the fact that the VA hospital project was of lim-
ited duration and would be completed between June
and September 1991 was specifically raised and con-
sidered by the Acting Regional Director and the Board
in the representation proceeding. Second, as indicated
in Respondent’s brief and the affidavits accompanying
its response to the Notice to Show Cause, the last lay-
off from the VA hospital project and most if not all
of Respondent’s other alleged operational and organi-
zational changes occurred over a year ago.3 Thus, even
assuming, as Respondent contends, that all the unit
employees at that project were permanently laid off
after the project’s completion in 1991, and that the
other operational and organizational changes have also
occurred as alleged by Respondent, the Respondent has
failed to show why it could not have brought forth that
evidence prior to issuance of the March 4, 1993 certifi-
cation.
Nor do we find that Respondent’s allegations other-
wise raise special circumstances warranting relitigation.
Although the VA hospital project in Dayton may have
been the Respondent’s largest project at the time of the
representation hearing, it was not its only project in the
geographic area encompassed by the certification, and
Respondent does not contend that it is no longer work-
ing projects in that area. Indeed, according to Respond-
ent, while it no longer has any significant projects in
Dayton, its operation in Mason has greatly expanded.
While it may be that none of the former unit employ-
ees who worked at the Dayton project and who voted
in the election have been rehired at Respondent’s other
projects in the unit area, this is not a basis for recon-
1398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 See, e.g., NLRB v. Action Automotive, 284 NLRB 251 (1987),
enfd. 853 F.2d 433 (6th Cir. 1988), cert. denied 488 U.S. 1041
(1989); and Murphy Bros., Inc., 265 NLRB 1574 (1982) (employee
turnover not the kind of ‘‘unusual circumstance’’ within the meaning
of Supreme Court’s decision in Ray Brooks v. NLRB, 348 U.S. 96
(1954), that would permit rebuttal of union’s majority status or war-
rant reexamination of certification).
5 Cf. SOHIO Petroleum Co., 239 NLRB 281 (1978), enfd. 625
F.2d 223 (9th Cir. 1980). Although Respondent in its answer to the
complaint also denies the complaint’s allegations that the Union re-
quested Respondent to bargain on or about March 10, 1993, and that
the Respondent on or about March 17, 1993, refused to do so, the
General Counsel has submitted with its motion copies of the cor-
respondence between the parties evidencing these facts, and the Re-
spondent has not disputed the authenticity of that correspondence.
Accordingly, we find that Respondent’s denials do not raise any
issues warranting a hearing. Finally, in view of this ruling, we find
it unnecessary to pass on the General Counsel’s Motion to Strike.
sidering the Union’s certification.4 Finally, given the
variety of factors relied on by the Acting Regional Di-
rector and the Board in determining the appropriate
unit, and taking into account the fluctuating nature of
the construction industry generally, we find that the
other operational and organizational changes alleged
by Respondent are also not the kinds of changes which
would warrant reopening the representation proceeding.
Accordingly, we deny Respondent’s motion to va-
cate the Union’s certification and dismiss the com-
plaint, and grant the General Counsel’s Motion for
Summary Judgment.5
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with a facility at
Mason, Ohio, has been engaged as a commercial and
industrial contractor in the construction industry. Dur-
ing the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its oper-
ations, purchased and received at the Mason, Ohio fa-
cility goods valued in excess of $50,000 directly from
points outside the State of Ohio. 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 September 13, 1991, the
Union was certified on March 4, 1993, as the collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time carpenters and
apprentice carpenters employed by the [Respond-
ent] within its Mason, Ohio area, excluding all of-
fice clerical employees, all other employees, and
all professional employees, guards and supervisors
as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since March 10, 1993, the Union has requested the
Respondent to bargain and, since March 17, 1993, the
Respondent has refused. We find that this refusal con-
stitutes 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 March 17, 1993, 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 af-
fecting 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 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 law, we shall construe the initial period of
the certification 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, Cleveland Construction, Inc., Mason,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Southwest Ohio District
Council of Carpenters, AFL–CIO as the exclusive bar-
gaining 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-
1399CLEVELAND CONSTRUCTION
6 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.’’
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time carpenters and
apprentice carpenters employed by the [Respond-
ent] within its Mason, Ohio area, excluding all of-
fice clerical employees, all other employees, and
all professional employees, guards and supervisors
as defined in the Act.
(b) Post at its facility in Mason, Ohio, copies of the
attached notice marked ‘‘Appendix.’’6 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, 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 Southwest
Ohio District Council of Carpenters, AFL–CIO 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 bargaining unit:
All full-time and regular part-time carpenters and
apprentice carpenters employed by us within our
Mason, Ohio area, excluding all office clerical
employees, all other employees, and all profes-
sional employees, guards and supervisors as de-
fined in the Act.
CLEVELAND CONSTRUCTION, INC.