Lisbon Cleaning, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 43 (N.L.R.B. 2004)

343 NLRB No. 43
Lisbon Cleaning, Inc. and Local 108, Retail, Whole-
sale and Department Store Union, AFL-CIO.
Case 22–CA–26432
September 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union's certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on June 21, 2004, the
General Counsel issued the complaint and an amended
complaint on July 21 and August 10, 2004, respectively,
alleging that the Respondent has violated Section 8(a)(5)
and (1) of the Act by refusing the Union's request to bar-
gain and to provide information following the Union's
certification in Case 22–RC–12376. (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 an answer admitting in
part and denying in part the allegations in the complaint,
and asserting affirmative defenses.
On August 30, 2004, the General Counsel filed a Mo-
tion for Summary Judgment. On September 2, 2004, as
corrected on September 7, 2004, the Board issued an
order transferring the proceeding to the Board and a No-
tice 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 and to
furnish information that is alleged to be relevant and
necessary to the Union's role as bargaining representa-
tive, but contests the validity of the certification based on
its objections to the election in the representation pro-
ceeding.1

1 The Respondent's answer also denies that the certified unit is ap-
propriate. The Respondent, however, stipulated that this unit was ap-
propriate in the underlying representation proceeding. Any questions
regarding the appropriateness of the unit could and should have been
raised in the representation proceeding. Chardon Rubber Co., 335
NLRB 1189 fn. 1 (2001); Wintz Distribution Co., 317 NLRB 284 fn. 1
(1995), enfd. mem. 103 F.3d 130 (6th Cir. 1996).
In its answer and response to the Notice to Show Cause, the Re-
spondent urges the Board to order a hearing to consider, among other
things, whether the postponement of the election from September 19,
2003 to September 26, 2003, due to Hurricane Isabel destroyed labora-
tory conditions necessary for the holding of a fair election. In addition,
the Respondent’s answer to the complaint asserts as an affirmative
defense that “Since the NLRB headquarters were closed on September
19, 2003, it was unable to rule on the Respondent’s Appeal from the
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).
We also find that there are no genuine issues of mate-
rial fact warranting a hearing regarding the Union’s re-
quest for information. The complaint alleges, and the
Respondent’s answer admits, that the Union requested
the following information from the Respondent by letters
dated December 8, 2003 and May 13, 2004:
(1) a list of all benefits currently given to unit
employees;
(2) a copy of all Summary Plan Descriptions for
any Medical, Pension, 401(k), or Savings Plans
given to unit employees;
(3) waiting period for these benefits;
(4) current starting pay and pay differentials for
unit employees; and
(5) a list of all unit job titles and descriptions.
Although the Respondent’s answer denies that the in-
formation requested is necessary and relevant to the Un-
ion’s duties as the exclusive bargaining representative of
the unit employees, it is well established that all of the
foregoing types of information are presumptively rele-
vant for purposes of collective bargaining and must be
furnished on request. See, e.g., Cheboygan Health Care

Regional Director’s determination to unnecessarily delay the election
and the ruling should now be a subject of a full review and hearing.”
We note, however, that the Respondent filed various objections to the
election, including that the Regional Director abused his discretion by
postponing the election. The Respondent subsequently requested with-
drawal of its objection pertaining to the postponement of the election,
and the Regional Director approved the request. In these circum-
stances, the Respondent is precluded from raising the postponement of
the election or the Board’s failure to rule on its appeal concerning the
postponement of the election as defenses in this unfair labor practice
proceeding. Buchanan Lumber Birmingham, Inc. 232 NLRB 929, 931–
932 fn. 3 (1977).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Center, 338 NLRB No. 115 (2003); Baker Concrete
Construction, 338 NLRB No. 48 (2002), and cases cited
therein. The Respondent has not asserted any basis for
rebutting the presumptive relevance of the information,
apart from its contention, rejected above, that the Un-
ion’s certification is invalid.
Accordingly, we grant the Motion for Summary Judg-
ment, and will order the Respondent to bargain and to
furnish the requested information to the Union.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New Jersey
corporation with its principal office and place of business
in Newark, New Jersey, has been engaged in providing
commercial janitorial and cleaning services at various
locations throughout the State of New Jersey including
Newark Liberty International Airport, the only facility
involved herein.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, purchased and received at its
New Jersey facilities goods and materials valued in ex-
cess of $50,000 directly from points outside the State of
New Jersey.
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 Local 108, Retail, Wholesale and
Department Store Union, AFL–CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held September 26, 2003, the
Union was certified on April 15, 2004, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time cleaning and main-
tenance employees, including cleaners, floor cleaners,
carpet cleaners, window cleaners, runners and handy-
persons employed by the Respondent at its Newark In-
ternational Airport, Terminal C, Newark, New Jersey
location, but excluding all office clerical employees,
professional employees, guards and supervisors as de-
fined in the Act.
The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
By letters dated December 8, 2003 and May 13, 2004,
the Union requested the Respondent to bargain and to
furnish information, and, since about December 8, 2003,
and specifically by letter dated June 17, 2004, the Re-
spondent has failed and refused to do so. We find that
the Respondent has thereby unlawfully failed and refused
to bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By refusing on and after December 8, 2003, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit and to
furnish the Union requested information, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 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. We also shall order the Respon-
dent to furnish the Union the information it requested.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification 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, Lisbon Cleaning, Inc., Newark, New Jersey,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 108, Retail,
Wholesale and Department Store Union, AFL-CIO, as
the exclusive bargaining representative of the employees
in the bargaining unit, and refusing to furnish the Union
information that is relevant and necessary to its role as
the exclusive bargaining representative of the unit em-
ployees.
(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 exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment, and if
LISBON CLEANING, INC. 3
an understanding is reached, embody the understanding
in a signed agreement:
All full-time and regular part-time cleaning and main-
tenance employees, including cleaners, floor cleaners,
carpet cleaners, window cleaners, runners and handy-
persons employed by the Respondent at its Newark In-
ternational Airport, Terminal C, Newark, New Jersey
location, but excluding all office clerical employees,
professional employees, guards and supervisors as de-
fined in the Act.
(b) Furnish the Union the information it requested on
December 8, 2003 and May 13, 2004.
(c) Within 14 days after service by the Region, post at
its facility in Newark, New Jersey, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 22,
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. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since December 8, 2003.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the

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.”
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 refuse to bargain with Local 108, Retail,
Wholesale and Department Store Union, AFL–CIO, as
the exclusive representative of the employees in the bar-
gaining unit, and WE WILL NOT refuse to furnish the Un-
ion information that is relevant and necessary to its role
as the exclusive bargaining representative of the unit
employees.
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 fol-
lowing bargaining unit:
All full-time and regular part-time cleaning and main-
tenance employees, including cleaners, floor cleaners,
carpet cleaners, window cleaners, runners and handy-
persons employed by us at our Newark International
Airport, Terminal C, Newark, New Jersey location, but
excluding all office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
WE WILL furnish the Union the information it re-
quested on December 8, 2003 and May 13, 2004.
LISBON CLEANING, INC.