Fulton Building

National Labor Relations Board - Board Decisions

Apr 24, 1989

293 N.L.R.B. 778 (N.L.R.B. 1989)

778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ernest Stern , George Stern, Transexecutive Avia-
tion, Inc, Richard Stern , Linda Stern Coslov,
Judith Stern Guttman d/b/a Fulton Building
and International Union of Operating Engi-
neers , Local Union No 95-95A , AFL-CIO
Case 6-CA-21454
April 24, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
On December 27, 1988, the General Counsel of
the National Labor Relations Board issued a com-
plaint alleging that the Respondent has violated
Section 8(a)(5) and (1) of the National Labor Rela
tions Act by refusing the Union's request to bar-
gain following the Union's certification in Case 6-
RC-10060 (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 its answer admitting in part
and denying in part the allegations in the com-
plaint
On February 2, 1989, the General Counsel filed a
Motion for Summary Judgment On February 6,
1989, 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 delegat-
ed its authority in this proceeding to a three-
member panel
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain, but attacks the validity of the certification
on the basis of the Board's unit determination in
the representation proceeding
All representation issues raised by the Respond-
ent were or could have been litigated in the prior
representation proceeding The Respondent does
not offer to adduce at a hearing any newly discov-
ered and previously unavailable evidence, nor does
it allege any special circumstances that would re
quire the Board to reexamine the decision made in
the representation proceeding We therefore find
that the Respondent has not raised any representa-
tion issue that is properly litigable in this unfair
labor practice proceeding i See Pittsburgh Plate
i The Respondent argues inter alia that the certification of the Union
was improper because employee Chuck Wagner was erroneously ex
cluded from the bargaining unit on the basis of a stipulation made at the
hearing that Wagner did not share a community of interest with the unit
employees The Respondent claims that the stipulation was misrepresent
ed as it was made without prejudice to what [Wagner s] status may be
Glass Co v NLRB, 313 US 146, 162 (1941) Ac
cordingly , we grant the Motion for Summary
Judgment
On the entire record , the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a partnership with its office
and sole facility in Pittsburgh, Pennsylvania, is en-
gaged in the business of renting commercial office
space During the 12-month period ending Novem
ber 30, 1988, the Respondent received gross reve-
nues in excess of $100,000 from tenants, of which
in excess of $25,000 was received from Cinema
World, which operates a chain of theaters and
leases office space from the Respondent During
the 12 month period ending November 30, 1988,
Cinema World purchased and received goods and
materials valued in excess of $50,000 directly from
points outside the Commonwealth of Pennsylvania
We find that the Respondent is an employer en-
gaged 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 November 2, 1988,
the Union was certified on November 14, 1988, as
the collective-bargaining representative of the em-
ployees in the following appropriate unit
All full-time and regular part-time mechanical
maintenance employees employed by the Em
ployer at its Fulton Building facility in Pitts
burgh, Pennsylvania, excluding construction
and remodeling employees, custodial and jani-
torial employees, office clerical employees and
guards, professional employees and supervisors
as defined in the Act
The Union continues to be the exclusive repre
sentative under Section 9(a) of the Act
in the future and that Wagners status changed before the election
Thus the Respondent maintains that Wagner should have been allowed
to cast a challenged ballot We reject these contentions Despite the Re
spondent s claim that as of the applicable payroll period Wagner was an
employee of Respondent sharing the precise terms and conditions of em
ployment as those of the other employees in the bargaining unit the Re
spondent has failed to present any evidence to substantiate its contention
that Wagner s status had changed since the Respondent entered into the
stipulation Furthermore even if Wagner s status had changed at the time
of the election and Wagner was improperly denied the opportunity to
cast a challenged ballot the outcome of the election would not be affect
ed because Wagner s ballot would not have been determinative Finally
the Respondent is precluded from complaining about the Board agent s
failure to allow Wagner to cast a challenged ballot because it did not file
timely objections to the conduct of the election
293 NLRB No 95
FULTON BUILDING
B Refusal to Bargain
Since November 28, 1988 , the Union has request-
ed the Respondent to bargain and, since December
5, 1988 , the Respondent has refused We find that
this refusal constitutes an unlawful refusal to bar-
gain in violation of Section 8(a)(5) and ( 1) of the
Act
CONCLUSIONS OF LAW
By refusing on and after December 5, 1988, to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the ap-
propriate unit, the Respondent 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 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 ini
tial 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)
779
ployees in the following appropriate unit on terms
and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement
All full time and regular part-time mechanical
maintenance employees employed by the Em-
ployer at its Fulton Building facility in Pitts
burgh, Pennsylvania, excluding construction
and remodeling employees, custodial and jam-
tonal employees, office clerical employees and
guards, professional employees and supervisors
as defined in the Act
(b) Post at its facility in Pittsburgh, Pennsylva-
nia, copies of the attached notice marked "Appen
dix "2 Copies of the notice, on forms provided by
the Regional Director for Region 6, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly 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 Respondent
to ensure that the notices are not altered, defaced,
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 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 Nation
al 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
APPENDIX
ORDER
The National Labor Relations Board orders that
the Respondent , Ernest Stern , George Stern, Tran-
sexecutive Aviation , Inc, Richard Stern, Linda
Stern Coslov , Judith Stern Guttman d/b/a Fulton
Building , Pittsburgh , Pennsylvania , its officers,
agents , successors , and assigns, shall
1 Cease and desist from
(a) Refusing to recognize and bargain with Inter
national Union of Operating Engineers, Local
Union No 95-95A, 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 ex
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) On request , recognize and bargain with the
Union as the exclusive representative of the em-
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 ordered us to post and abide by this notice
WE WILL NOT refuse to bargain with Internation
al Union of Operating Engineers , Local Union No
95-95A, AFL-CIO as the exclusive 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 exer-
cise 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
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All full-time and regular part-time mechanical
maintenance employees employed by the Em
ployer at its Fulton Building facility in Pitts-
burgh , Pennsylvania , excluding construction
and remodeling employees , custodial and jam-
tonal employees , office clerical employees and
guards, professional employees and supervisors
as defined in the Act
ERNEST STERN, GEORGE STERN,
TRANSEXECUTIVE AVIATION, INC,
RICHARD STERN, LINDA STERN
COSLOV , JUDITH STERN GUTTMAN
D/B/A FULTON BUILDING