Four Seasons Environmental, Inc., (2016)

• Date: 02 December 2016
• Docket Number: 10-CA-164737
• Court: National Labor Relations Board (US)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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 Respondent is contesting the Union’s certification as bargaining 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 denying in part the allegations of the complaint, and asserting affirmative defenses.

On January 5, 2016, the General Counsel filed a Motion 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 contests 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 representation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege any special circumstances 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 unfair labor practice proceeding. See Pittsburgh Plate

Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judgment.¹

On the entire record, the Board makes the following FINDINGS OF FACT

1. JURISDICTION

   At all material times, the Respondent has been a corporation 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 described above, annually purchases and receives at its Atlanta, Georgia facility goods valued in excess of $50,000 directly from points outside the State of Georgia.

   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.

2. ALLEGED UNFAIR LABOR PRACTICES

   1. 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 engineers, general mechanics, groundskeepers, boiler technicians, gas operators and leads employed by the Employer 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 collectivebargaining representative of the unit employees under Section 9(a) of the Act.

   2. Refusal to Bargain

      About November 10, 2015, the Union requested by electronic mail that the Respondent recognize and bargain collectively with the Union as the exclusive collective-bargaining representative of the unit.

      ¹ The Respondent’s...