366 NLRB No. 18 (N.L.R.B. 2018)

Cranesville Block Co., Inc.

National Labor Relations Board - Board DecisionsFeb 13, 2018

366 NLRB No. 18 (N.L.R.B. 2018)

366 NLRB No. 18 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. Cranesville Block Co., Inc. and International Broth- erhood of Teamsters, Local 294. Case 03–CA– 209124 February 13, 2018 DECISION AND ORDER BY CHAIRMAN KAPLAN AND MEMBERS PEARCE AND EMANUEL 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 the Interna- tional Brotherhood of Teamsters, Local 294 (the Union) on November 2, 2017,1 the General Counsel issued the complaint on November 17, alleging that Cranesville Block Co., Inc. (the Respondent) has violated Section 8(a)(5) and (1) of the Act by failing and refusing the Un- ion’s request to recognize and bargain following the Un- ion’s certification in Case 03–RC–190952. (Official notice is taken of the record in the representation pro- ceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, amended answer, and second amended answer admitting in part and denying in part the allegations in the complaint,2 and asserting affirmative defenses. On December 7, the General Counsel filed a Motion for Summary Judgment. On December 11, 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 an opposition. 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 Union’s certification of repre- sentative on the basis of its contentions, raised and re- jected in the underlying representation proceeding, that a statutory supervisor participated in the vote, and that he engaged in objectionable conduct during the critical peri- od of the election warranting overturning the election results. 1 All dates are in 2017. 2 The Respondent neither admitted nor denied the complaint allega- tion asserting the agency status of an “unnamed legal representative” of the Respondent. This allegation is immaterial to the disposition of the instant motion. 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.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a cor- poration with an office and place of business in Amster- dam, New York, where it has been engaged in the manu- facturing and nonretail sale of concrete. The Respondent, in conducting its business operations described above, annually purchases and receives at its Amsterdam, New York facility, goods and materials val- ued in excess of $50,000 directly from points located outside the State of New York. 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 secret ballot on February 8, the Union was certified on Septem- ber 194 as the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: All full-time and regular part-time truck mechanics employed by the Respondent at its Amsterdam, New York facility excluding guards, professional employees and supervisors as defined in the Act, and all other em- ployees. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. 3 Chairman Kaplan and Member Emanuel did not participate in the underlying representation proceeding. 4 By unpublished Order dated September 19, the Board denied the Respondent’s request for review (former Chairman Miscimarra dissent- ing). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 B. Refusal to Bargain On October 21, the Union, by letter, requested that the Respondent recognize and bargain collectively with it as the exclusive collective-bargaining representative of the unit. Since October 21, and continuing to date, the Re- spondent has failed and refused to recognize and bargain with the Union as the collective-bargaining representa- tive of the unit. 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 October 21 to recognize and bargain with the Union as the exclusive collective- bargaining representative of the unit employees, the Re- spondent 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 recognize and bargain on request with the Un- ion 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. de- nied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, Cranesville Block Co., Inc., Amsterdam, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Brotherhood of Teamsters, Local 294 (the Union) as the exclusive collective-bargaining representa- tive 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 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 truck mechanics employed by the Respondent at its Amsterdam, New York facility excluding guards, professional employees and supervisors as defined in the Act, and all other em- ployees. (b) Within 14 days after service by the Region, post at its facilities in Amsterdam, New York, copies of the at- tached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous plac- es, including all places where notices to employees are customarily 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 customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since October 21, 2017. (c) Within 21 days after service by the Region, file with the Regional Director for Region 3 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. Dated, Washington, D.C. February 13, 2018 ______________________________________ Marvin E. Kaplan, Chairman ______________________________________ Mark Gaston Pearce, Member 5 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.” CRANSEVILLE BLOCK CO. 3 ______________________________________ William J. Emanuel 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 Brotherhood of Teamsters, Local 294 (the Union) as the exclusive collective-bargaining repre- sentative of our 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 appropriate bargaining unit: All full-time and regular part-time truck mechanics employed by the Respondent at its Amsterdam, New York facility excluding guards, professional employees and supervisors as defined in the Act, and all other em- ployees. CRANESVILLE BLOCK CO., INC. The Board’s decision can be found at https://www.nlrb.gov/case/03-CA-209124 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., Washing- ton, D.C. 20570, or by calling (202) 273-1940.