Advanced Masonry Associates, LLC d/b/a Advanced Masonry Systems

National Labor Relations Board - Board Decisions

Aug 17, 2018

366 NLRB No. 164 (N.L.R.B. 2018)

366 NLRB No. 164
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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.
Advanced Masonry Associates, LLC d/b/a Advanced
Masonry Systems and Bricklayers and Allied
Craftworkers, Local 8 Southeast. Case 12–CA–
221114
August 17, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union's certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on May 30, 2018,
by Bricklayers and Allied Craft Workers, Local 8 South-
east (the Union), the General Counsel issued the com-
plaint on June 13, 2018, alleging that Advanced Masonry
Associates, LLC d/b/a Advanced Masonry Systems (the
Respondent) has violated Section 8(a)(5) and (1) of the
Act by refusing the Union's request to recognize and bar-
gain with it following the Union's certification in Case
12-RC-175179. (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 in the complaint, and asserting affirmative
defenses.
On July 2, 2018, the General Counsel filed a Motion
for Summary Judgment. On July 5, 2018, the Board is-
sued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted. The Respondent filed no 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 con-
tests the validity of the Union’s certification of repre-
sentative on the basis of its contentions, raised and re-
jected in the underlying representation proceeding, that
the certification was issued in error because the Board
counted votes of employees who were ineligible to vote,
and the Union lacked majority status.
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 has it shown 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).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a Flori-
da limited liability company with its principal office and
place of business located in Sarasota, Florida, and has
been engaged in business as a masonry contractor in the
construction industry performing commercial construc-
tion at jobsites throughout the State of Florida.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its operations
described above, purchased and received at its jobsites in
the State of Florida goods valued in excess of $50,000
directly from points located outside the State of Florida,
and from other enterprises located inside the State of
Florida, each of which had received the goods directly
from points located outside the State of Florida.
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.1
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held by mail bal-
lot from May 25 through June 9, 2016, the Union was
certified2 on May 8, 2018, as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:

1 The Respondent’s answer states that it is “without knowledge as to
whether the Union was a labor organization ‘at all material times’ and
therefore denies this allegation.” However, in the underlying represen-
tation proceeding, the Respondent stipulated, and the Board found, that
the Union is a labor organization. Accordingly, the Respondent’s deni-
al does not raise any issue warranting a hearing. All American Service
& Supplies, Inc., 340 NLRB 239, 239 fn. 2 (2003).
2 The determinative challenges in Case 12–RC–175179 were con-
solidated for hearing with related unfair labor practice allegations in
Case 12–CA–176715. On April 13, 2018, the Board issued its decision
in the consolidated proceeding finding, inter alia, that the Respondent’s
challenge to one ballot should be sustained, affirming the judge’s over-
ruling of the Respondent’s challenges to the remaining ballots, and
directing the Regional Director to open and count those ballots. 366
NLRB No. 57. The Respondent filed a petition for review of the
Board’s decision with the Eleventh Circuit, and the Board filed a cross-
petition for enforcement. The petitions are still pending.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
INCLUDED: All bricklayers and/or masons employed
by the Employer.
EXCLUDED: All other employees, office and clerical
employees, professional employees, guards and super-
visors 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
About May 15, 2018, the Union, by letter, requested
that the Respondent bargain collectively with it as the
exclusive collective-bargaining representative of the unit.
Since about May 18, 2018, the Respondent has failed and
refused to do so.
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing since May 18, 2018, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in the
appropriate 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 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 Construction
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, Advanced Masonry Associates, LLC d/b/a
Advanced Masonry Systems, Sarasota, Florida, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Bricklayers and Allied Craft Workers, Local 8 Southeast,
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 exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
INCLUDED: All bricklayers and/or masons employed
by the Employer.
EXCLUDED: All other employees, office and clerical
employees, professional employees, guards and super-
visors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Sarasota, Florida, copies of the attached
notice marked "Appendix."3 Copies of the notice, on
forms provided by the Regional Director for Region 12,
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. If 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 May 18, 2018.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 12 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.

3 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."
ADVANCED MASONRY ASSOCIATES, LLC D/B/A ADVANCED MASONRY SYSTEMS 3
Dated, Washington, D.C. August 17, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) 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 Bricklayers and Allied Craft Workers, Local 8
Southeast (the Union) as the exclusive collective-
bargaining representative of our 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 appropriate bargaining unit:
INCLUDED: All bricklayers and/or masons employed
by the Employer.
EXCLUDED: All other employees, office and clerical
employees, professional employees, guards and super-
visors as defined in the Act.
ADVANCED MASONRY ASSOCIATES, LLC D/B/A
ADVANCED MASONRY SYSTEMS
The Board’s decision can be found at
www.nlrb.gov/case/12-CA-221114 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.