Shore Club Condominium Assn., 700 (2003)

Shore Club Condominium Association, Inc., a/k/a S.C. Condominium Association, Inc. and Inter-national Brotherhood of Teamsters, Local Union No. 390, AFL-CIO. Case 12-CA-23262

September 30, 2003

DECISION AND ORDER

CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER

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 on August 7, 2003,1 the General Counsel issued the complaint on August 22, 2003, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union's request to bargain following the Union's certification in Case 12-RC-8915. (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 September 11, 2003, the General Counsel filed a Motion for Summary Judgment. On September 15, 2003, 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 and cross-motion for summary judgment.

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 certification based on its contentions in the representation proceeding that the Board lacks jurisdiction and that the unit employees are in the domestic service of families and persons at their homes and, therefore, are not "employees" under Section 2(3) of the Act.

All representation issues raised by the Respondent were or could have been litigated in the prior representa

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1 The Respondent's answer to the complaint states that it is without knowledge as to the filing date, service, or mailing dates of the charge by the Union, and therefore denies this allegation. However, copies of the charge and affidavit of service are attached as Exhs. G and I to the General Counsel's motion and the Respondent has not contested the authenticity of these documents. Further, the Respondent admits that it received a copy of the charge. Accordingly, we find that the Respondent has not raised any issue regarding filing and service of the charge warranting a hearing. See, e.g., Corrections Corp. of America, 330 NLRB 663 (2000), enfd. 34 F.3d 1321 (D.C. Cir. 2000).

tion proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and 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.2

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

1. JURISDICTION

   At all material times, the Respondent, a Florida corporation, with an office and principal place of business located at 1910 North Ocean Drive, Ft. Lauderdale, Florida, has provided maintenance and security services to condominium owners, most of whom are residents, at a complex consisting of two residential buildings located at 1901 and 1905 North Ocean Drive, Ft. Lauderdale, Florida, and a recreational facility located at 1912 North Ocean Drive, Ft. Lauderdale, Florida. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business operations described above, derived gross revenues in excess of $500,000 and purchased and received goods and materials valued in excess of $50,000 directly from points outside the State of Florida.3

   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 election held April 17, 2003, the...