Four Seasons Environmental, Inc.

National Labor Relations Board - Board Decisions

Feb 12, 2016

363 NLRB No. 115 (N.L.R.B. 2016)

363 NLRB No. 115
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.
Four Seasons Environmental, Inc. and International
Union of Operating Engineers, Local 926. Case
10–CA–164737
February 12, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
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
Union of Operating Engineers, Local 926 (the Union),
the General Counsel issued the complaint on December
8, 2015, alleging that Four Seasons Environmental, Inc.
(the Respondent) has violated Section 8(a)(5) and (1) of
the Act by failing and refusing to recognize and bargain
with the Union following the Union’s certification in
Case 10–RC–144025. (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(d). Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations of the complaint, and asserting
affirmative defenses.
On January 5, 2016, the General Counsel filed a Mo-
tion for Summary Judgment. On January 12, 2016, 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 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 Union’s certification based on its
objections to conduct alleged to have affected the results
of the election in the representation proceeding.
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 or 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.1
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 Atlanta,
Georgia and has been engaged in providing maintenance
services for entities including the federal government.
The Respondent, in conducting its operations de-
scribed above, annually purchases and receives at its
Atlanta, Georgia facility goods valued in excess of
$50,000 directly from points outside the State of Geor-
gia.
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 on February
19, 2015, the Union was certified on October 29, 2015,
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All full-time and regular part-time electricians, general
maintenance workers, HVAC, plumbers/pipefitters,
plumbers, pipefitters, carpenters/painters, millwrights,
HVAC refrigeration, electronic technicians, lawn and
garden personnel, personnel assistants, stationary engi-
neers, general mechanics, groundskeepers, boiler tech-
nicians, gas operators and leads employed by the Em-
ployer at its facilities located at 1600 Clifton Road, NE,
Atlanta, Georgia; 4770 Buford Highway, Chamblee,
Georgia; 692 Webb Gin House Road, Lawrenceville,
Georgia; and 3719 N. Peachtree Road, Chamblee,
Georgia; but excluding all office clerical employees,
guards and supervisors as defined by the Act.
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
About November 10, 2015, the Union requested by
electronic mail that the Respondent recognize and bar-
gain collectively with the Union as the exclusive collec-
tive-bargaining representative of the unit.

1 The Respondent’s request that the complaint be dismissed is there-
fore denied.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Since about November 10, 2015, the Respondent has
failed and refused to recognize and bargain with the Un-
ion as the exclusive collective-bargaining representative
of the unit.
We find that this failure and refusal constitutes an un-
lawful 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 about November 10,
2015, to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the appropriate unit, the Respondent has en-
gaged in unfair labor practices affecting commerce with-
in 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, Four Seasons Environmental, Inc., Atlanta,
Georgia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Union of Operating Engineers, Local 926 as
the exclusive collective-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 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 electricians, general
maintenance workers, HVAC, plumbers/pipefitters,
plumbers, pipefitters, carpenters/painters, millwrights,
HVAC refrigeration, electronic technicians, lawn and
garden personnel, personnel assistants, stationary engi-
neers, general mechanics, groundskeepers, boiler tech-
nicians, gas operators and leads employed by the Em-
ployer at its facilities located at 1600 Clifton Road, NE,
Atlanta, Georgia; 4770 Buford Highway, Chamblee,
Georgia; 692 Webb Gin House Road, Lawrenceville,
Georgia; and 3719 N. Peachtree Road, Chamblee,
Georgia; but excluding all office clerical employees,
guards and supervisors as defined by the Act.
(b) Within 14 days after service by the Region, post at
its facilities in Atlanta, Georgia, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 10,
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 November 10, 2015.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 10 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.

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-
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.”
FOUR SEASONS ENVIRONMENTAL, INC. 3
Dated, Washington, D.C. February 12, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, 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 Union of Operating Engineers, Local
926 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 electricians, general
maintenance workers, HVAC, plumbers/pipefitters,
plumbers, pipefitters, carpenters/painters, millwrights,
HVAC refrigeration, electronic technicians, lawn and
garden personnel, personnel assistants, stationary engi-
neers, general mechanics, groundskeepers, boiler tech-
nicians, gas operators and leads employed by us at our
facilities located at 1600 Clifton Road, NE, Atlanta,
Georgia; 4770 Buford Highway, Chamblee, Georgia;
692 Webb Gin House Road, Lawrenceville, Georgia;
and 3719 N. Peachtree Road, Chamblee, Georgia; but
excluding all office clerical employees, guards and su-
pervisors as defined by the Act.
FOUR SEASONS ENVIRONMENTAL, INC.
The Board’s decision can be found at
www.nlrb.gov/case/10-CA-164737 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.