THE ARDIT COMPANY

National Labor Relations Board - Board Decisions

Dec 12, 2013

360 N.L.R.B. 74 (N.L.R.B. 2013)

74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 15
Ardit Company and International Union of Bricklay-
ers and Allied Craftworkers, Ohio Kentucky
Administrative District Council, Local Union
No. 18. Case 09–CA–106395
December 12, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
The Acting General Counsel seeks summary judgment
in this case on the ground that there are no genuine issues
of material fact as to the allegations of the complaint, and
that the Board should find, as a matter of law, that the
Respondent has violated Section 8(a)(5) and (1) of the
Act by failing and refusing to bargain with the Union as
the exclusive collective-bargaining representative of the
unit.
Upon a charge filed by International Union of Brick-
layers and Allied Craftworkers, Ohio Kentucky Adminis-
trative District Council, Local Union No. 18 (the Union)
on June 3, 2013, the Acting General Counsel issued the
complaint on June 20, 2013, against The Ardit Company
(the Respondent), alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by refusing the
Union’s request to bargain following the Union’s certifi-
cation in Case 09–RC–083978. (Official notice is taken
of the “record” in the representation proceeding as de-
fined 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 as-
serting affirmative defenses.1
On July 11, 2013, the Acting General Counsel filed a
Motion for Summary Judgment. On July 15, 2013, 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 complaint alleges and the Respondent admits that,
beginning May 13, 2013, the unit described in Section
II.A, below, constitutes a unit appropriate for bargaining
within the meaning of Section 9(a) of the Act; that on
May 13, 2013, the Union was certified as the exclusive
collective-bargaining representative of the unit employ-

1 The Respondent asserts that the allegations of the complaint are
barred in whole or in part by the statute of limitations. However, the
record shows that the charge was filed on June 3, 2013, which is within
6 months of the Respondent’s May 17, 2013 refusal to bargain. There-
fore, the charge is timely under Sec. 10(b) of the Act.
ees; that at all times since May 13, 2013, the Union has
been the exclusive collective-bargaining representative of
the unit employees; that the Union requested bargaining
on May 17, 2013; and that the Respondent has thereafter
refused to bargain.
The Respondent does not contest the Acting General
Counsel’s Motion for Summary Judgment on the basis of
its request for review of the Regional Director’s Decision
and Direction of Election or its objections or challenges
to ballots in the underlying representation case. Instead,
the Respondent sets forth certain procedural arguments,
including that the complaint is ultra vires because the
Acting General Counsel did not lawfully hold that office
at the time he directed that the complaint be filed. In this
regard, the Respondent notes that Section 3(d) of the Act
provides that “[i]n case of a vacancy in the office of the
General Counsel the President is authorized to designate
the officer or employee who shall act as General Counsel
during such vacancy,” and that “no person or persons so
designated shall so act . . . for more than forty days when
the Congress is in session unless a nomination to fill such
vacancy shall have been submitted to the Senate.” See
29 U.S.C. § 153(d). The Respondent contends that be-
cause the President failed to submit a nomination to the
Senate to fill the Acting General Counsel’s position with-
in 40 days of designating Lafe Solomon as Acting Gen-
eral Counsel, Solomon could not serve in that position
for more than 40 days and, as such, lacked authority to
issue this complaint.
We find that there are no issues warranting a hearing
because the Respondent has admitted the crucial factual
allegations of the complaint as set forth above. The Re-
spondent’s argument that the Acting General Counsel
lacked the authority to issue the complaint is rejected.
Contrary to the Respondent, the Acting General Counsel
was properly appointed under the Federal Vacancies Re-
form Act (Vacancies Act), 5 U.S.C. § 3345, which does
not contain the limitation cited by the Respondent, and
not pursuant to Section 3(d) of the Act. See Muffley v.
Massey Energy Co., 547 F.Supp. 2d 536, 542–543 (S.D.
W. Va. 2008), affd. 570 F.3d 534 (4th Cir. 2009) (up-
holding authorization of 10(j) injunction proceeding by
Acting General Counsel designated pursuant to the Va-
cancies Act). Thus, the complaint is not subject to attack
based on Respondent’s arguments concerning the cir-
cumstances of his appointment.
Accordingly, we grant the Motion for Summary Judg-
ment.
ARDIT CO. 75
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
with an office and place of business in Columbus, Ohio,
has been engaged as a contractor in the construction in-
dustry.
During the 12-month period preceding the issuance of
the complaint, the Respondent, in conducting its opera-
tions described above, purchased and received at its Ohio
facilities goods valued in excess of $50,000 directly from
points outside the State of Ohio.
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, International Union of
Bricklayers and Allied Craftworkers, Ohio Kentucky
Administrative District Council, Local Union No. 18, is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following a representation election held on August 10,
2012, the Union was certified on May 13, 2013, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All tile, marble, and terrazzo installers and helpers em-
ployed by the Employer at or out of its facility in Co-
lumbus, Ohio, excluding office clerical employees and
all professional employees, and guards and supervisors
as defined in 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
At all material times, Michelle Johnson has been the
Respondent’s president and has been a supervisor of the
Respondent within the meaning of Section 2(11) of the
Act and an agent of the Respondent within the meaning
of Section 2(13) of the Act.
About May 17, 2013, the Union requested by letter
that the Respondent bargain collectively with it as the
exclusive collective-bargaining representative of the unit.
Since about May 17, 2013, the Respondent has failed and
refused to bargain with the Union as the exclusive collec-
tive-bargaining representative of the unit. We find that
this failure and refusal constitutes an unlawful failure and
refusal to bargain collectively with the Union in violation
of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since about May 17, 2013, to
bargain with the Union as the exclusive collective-
bargaining representative of the employees in the appro-
priate unit, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 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 Construc-
tion 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, The Ardit Company, Columbus, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Union of Bricklayers and Allied Craftwork-
ers, Ohio Kentucky Administrative District Council, Lo-
cal Union No. 18 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 exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All tile, marble, and terrazzo installers and helpers em-
ployed by the Employer at or out of its facility in Co-
lumbus, Ohio, excluding office clerical employees and
all professional employees, and guards and supervisors
as defined in the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD76
(b) Within 14 days after service by the Region, post at
its facility in Columbus, Ohio, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 9,
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. In the event that, during the
pendency of these proceedings, 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 about May 17, 2013.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 9 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.”
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 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 fail and refuse to recognize and bargain
with International Union of Bricklayers and Allied
Craftworkers, Ohio Kentucky Administrative District
Council, Local Union No. 18 as the exclusive collective-
bargaining representative of the employees in the bar-
gaining 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 tile, marble, and terrazzo installers and helpers em-
ployed by us at or out of our facility in Columbus,
Ohio, excluding office clerical employees and all pro-
fessional employees, and guards and supervisors as de-
fined in the Act.
THE ARDIT COMPANY