Doral Building Services

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1243 (N.L.R.B. 1980)

DORAL. BUILDING SRVICES
Doral Building Services, Inc. and Stove, Furnace
and Allied Appliance Workers International
Union of North America, AFL-CIO, Local No.
125. Case 31-CA-10100
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEILLO
Upon a charge filed on June 13, 1980, by Stove,
Furnace and Allied Appliance Workers Interna-
tional Union of North America, AFL-CIO, Local
No. 125B, herein called the Union, and duly served
on Doral Building Services, Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 31, issued a complaint and notice of
hearing on July 22, 1980, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative law judge were duly served on the parties
to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on February 28,
1980, following a Board election in Case 31-RC-
4626, the Union was duly certified as the exclusive
collective-bargaining representative of Respon-
dent's employees in the unit found appropriate;'
and that, commencing on or about April 30, 1980,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On July 30, 1980, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On August 27, 1980, counsel for the General
Counsel filed directly with the Board a "Motion to
Transfer Case to and Continue Proceedings before
the Board and for Summary Judgment." 2 Subse-
quently, on September 3, 1980, the Board issued an
Official notice is taken of the record in the representation proceed-
ing. Case Il RC-4626, as the term "record" is defined in Sees. 102 68
and 102 69 (g) of the Board's Rules and Regulations. Series 8. as amended
See Li Electrovyitems, Inc., 6 NLRB 938 (1967), enfd 388 F2d 683
(4th Cir 1968) Golden Age Beverag Co., 167 NLRB 151 (1967), enfd 415
F 2d 26 (5th Cir 1969): Intertype Co v Pencllo. 269 I Supp 573
(D CVa 1967). Follet Corp.. 164 NI.RH 378 (1967). enfd 397 F2d 41
(7th Cir 1968L. Sec 9(d) of the NLRA, as amended
I On September 5. 1980. the Ulnion filed ith the Board a joinder in
motion to transfer case and continue proceeding before the Board and for
summary judgment
252 NLRB No. 173
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. On September 5, 1980, Respondent filed a
statement in pposition to the Motion for Summary
Judgment. Respondent thereafter filed a response
to the Notice To Show Cause entitled, "Employ-
er's Statement of Cause for Denial of General
Counsel's Motion for Summary Judgment."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, in its statement in
opposition to the Motion for Summary Judgment,
and in its response to the Notice To Show Cause,
Respondent maintains that certification of the
Union was invalid. Respondent admits its refusal to
bargain, but denies that its refusal violated Section
8(a)(5) and (1) of the Act. Specifically, Respondent
contends that the Union should not have been cer-
tified as the collective-bargaining representative of
Respondent's employees because the Union en-
gaged in objectionable conduct that affected the re-
sults of the election held on January 3, 1980. Re-
spondent further argues that the Regional Director
improperly denied Respondent a hearing on what
Respondent believes to have been substantial issues
of fact and that the Regional Director's disposition
of its objections in his Supplemental Decision and
Certification of Representative reflects a substantial
departure from reported Board precedent. In the
Motion for Summary Judgment, the General Coun-
sel argues that there are no issues requiring a hear-
ing and that Respondent is attempting to relitigate
issues that were raised and determined by the
Board in the underlying representation case. We
agree with the General Counsel.
The record, including the record in the underly-
ing representation case, Case 31-RC-4626, reveals
that on November 30, 1979, after a hearing, the
Acting Regional Director issued a Decision and
Direction of Election. On January 3, 1980, by di-
rection of the Acting Regional Director, an elec-
tion by secret ballot was conducted at Respon-
dent's facility. The tally of ballots showed that, of
approximately 53 eligible voters, 50 cast ballots, of
which 25 were cast for, and 23 against, the Union;
2 ballots w.'ere challenged, a sufficient number to
affect the results of the election.
On January 10, 1980, Respondent filed an objec-
tion to conduct affecting the results of the election.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The objection alleged that immediately prior to
and during the time the polls were open on the day
of the election, an agent of the Union offered mon-
etary payments to certain unit employees in order
to induce them to vote in favor of the Union. On
February 28, 1980, the Regional Director issued a
Supplemental Decision and Certification of Repre-
sentative, in which he found Respondent's objec-
tion without merit, sustained the challenge to one
of the two challenged ballots, and certified the
Union as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the appro-
priate unit. On iarch 11, 1980, Respondent filed
with the Board a request for review of the Region-
al Director's Supplemental Decision and Certifica-
tion of Representative. Subsequently, the Union
filed with the Board a brief in opposition to Re-
spondent's request for review, and Respondent
filed a brief in reply to the Union's opposition to its
request for review. The Board denied Respondent's
request for review on April 8, 1980.
On April 30, 1980, the Union requested by letter
that Respondent bargain with it concerning the
rates of pay, wages, hours, and other terms and
conditions of employment of unit employees. On or
about April 30, 1980, Respondent refused, and con-
tinues to refuse, to honor the certification and bar-
gain with the Union because of its belief that the
Regional Director erred in overruling its objection
to the election held on January 3, 1980. Thus, it ap-
pears that Respondent is attempting to raise in this
proceeding issues that were raised and determined
in the underlying representation case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.3
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
I See Pittsburgh Plate Glass Co. v. NL.R.B. 313 U S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f and 102.6
9
(c).
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a California corporation with a fa-
cility in Los Angeles, California, where it is en-
gaged in the business of providing janitorial ser-
vices to commercial enterprises. In the course and
conduct of its business, Respondent annually sells
goods or services valued in excess of $50,000 to
customers or business enterprises within the State
of California, which customers or business enter-
prises themselves meet one of the Board's jurisdic-
tional standards other than the indirect-inflow or
indirect-outflow standard. In the course and con-
duct of its business operations, Respondent annual-
ly derives gross revenues in excess of $500,000.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Stove, Furnace and Allied Appliance Workers
International Union of North America, AFL-CIO,
Local No. 125B, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All building maintenance employees employed
by Respondent at the following locations: In
Pasadena, California: 100 West Walnut Street,
75 North Fair Oaks Street, 170 North Fair
Oaks Street, and 80 South Lake Street; in Los
Angeles, California: 714 West Olympic Boule-
vard, 1052 West 6th Street, 201 South Alvar-
ado Street, and 133 South Lasky Drive; ex-
cluding all office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
2. The certification
On January 3, 1980, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Acting
Regional Director for Region 31, designated the
1244
DORAL BUILDING SERVICES
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on February 28, 1980, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about April 30, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 30, 1980, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
April 30, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit, and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCI.USIONS OF LAW
I. Doral Building Services, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Stove, Furnace and Allied Appliance Workers
International Union of North America, AFL-CIO,
Local No. 125B, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All building maintenance employees employed
by Respondent at the following locations: In Pasa-
dena, California: 100 West Walnut Street, 75 North
Fair Oaks Street, 170 North Fair Oaks Street, and
80 South Lake Street; in Los Angeles, California:
714 West Olympic Boulevard, 1052 West 6th
Street, 201 South Alvarado Street, and 133 South
Lasky Drive; excluding all office clerical employ-
ees, professional employees, guards and supervisors
as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since February 28, 1980, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about April 30, 1980, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
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DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Doral Building Services, Inc., Los Angeles and
Pasadena, California, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Stove, Furnace and
Allied Appliance Workers International Union of
North America, AFL-CIO, Local No. 125B, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All building maintenance employees employed
by Respondent at the following locations: In
Pasadena, California: 100 West Walnut Street,
75 North Fair Oaks Street, 170 North Fair
Oaks Street, and 80 South Lake Street; in Los
Angeles, California: 714 West Olympic Boule-
vard, 1052 West 6th Street, 201 South Alvar-
ado Street, and 133 South Lasky Drive; ex-
cluding all office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at all Los Angeles, California, and Pasa-
dena, California, locations copies of the attached
notice marked "Appendix."4 Copies of said notice,
on forms provided by the Regional Director for
Region 31, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
4 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX
NOIICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAIl LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Stove, Furnace and Allied Appliance
Workers International Union of North Amer-
ica, AFL-CIO, Local No. 125B, as the exclu-
sive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions
of employment, and, if an understanding is
reached, embody such understanding in a
signed agreement. The bargaining unit is:
All building maintenance employees em-
ployed by the Employer at the following lo-
cations: In Pasadena, California; 100 West
Walnut Street, 75 North Fair Oaks Street,
170 North Fair Oaks Street, and 80 South
Lake Street; in Los Angeles, California; 714
West Olympic Boulevard, 1052 West 6th
Street, 201 South Alvarado Street, and 133
South Lasky Drive; excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
DORAL BUILDING SERVICES, INC.
1246