Downtown Bid Services Corporation

National Labor Relations Board - Board Decisions

Apr 4, 2011

356 NLRB No. 130 (N.L.R.B. 2011)

356 NLRB 130
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.
Downtown Bid Services Corporation and Interna-
tional Association of Machinists and Aerospace
Workers, AFL–CIO, District Lodge 98. Case 5–
CA–36375
April 4, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
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 January 14, 2011, the
Acting General Counsel issued the complaint on January
31, 2011, alleging that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act by refusing the Union’s
request to bargain following the Union’s certification in
Case 5–RC–16330. (Official notice is taken of the “re-
cord” 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 deny-
ing in part the allegations in the complaint.
On February 17, 2011, the Acting General Counsel
filed a Motion for Summary Judgment. On February 18,
2011, the Board issued an order transferring the proceed-
ing 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 con-
tests the validity of the certification based on its objec-
tions to conduct affecting the election in the representa-
tion proceeding.
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). Accord-
ingly, we grant the Acting General Counsel’s Motion for
Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a non-profit Dis-
trict of Columbia corporation, with offices and worksites
in Washington, D.C., has been engaged in the business of
providing beautification maintenance, safety, and hospi-
tality services to the public in downtown Washington,
D.C. During the 12-month period preceding the issuance
of the complaint, a representative period, the Respon-
dent, in conducting its business operations described
above, purchased and received at its Washington, D.C.
locations materials and goods valued in excess of
$50,000 directly from points located outside the District
of Columbia. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that International
Association of Machinists and Aerospace Workers,
AFL–CIO, District Lodge 98 (the Union) is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election by secret ballot held on July 30
and 31, 2009, the Union was certified on December 23,
2010, as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:
All full-time and regular part-time hospitality/safety
workers and maintenance workers employed by Re-
spondent in Washington, D.C.; but excluding all office
clerical employees, professional employees, managers,
guards and supervisors as defined in the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
Since January 4, 2011, the Union has requested the
Respondent to bargain, and, since January 18, 2011, the
Respondent has refused to do so. We find that this fail-
ure and refusal 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 January 18, 2011, to rec-
ognize and bargain with the Union as the exclusive col-
lective-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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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); 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, Downtown Bid Services Corporation,
Washington, D.C., its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Association of Machinists and Aerospace
Workers, AFL–CIO, District Lodge 98, 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
representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:
All full-time and regular part-time hospitality/safety
workers and maintenance workers employed by Re-
spondent in Washington, D.C.; but excluding all office
clerical employees, professional employees, managers,
guards and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Washington, D.C., copies of the attached
notice marked “Appendix.”1 Copies of the notice, on
forms provided by the Regional Director for Region 5,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-

1 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.”
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 Respon-
dent at any time since January 18, 2011.
(c) 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.
Dated, Washington, D.C. April 4, 2011
Wilma B. Liebman, Chairman
Craig Becker, Member
Mark Gaston Pearce, 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 International Association of Machinists and Aero-
space Workers, AFL–CIO, District Lodge 98, as the
DOWNTOWN BID SERVICES CORP. 3
exclusive collective-bargaining representative of the em-
ployees in the bargaining unit.
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 hospitality/safety
workers and maintenance workers employed by us in
Washington, D.C.; but excluding all office clerical em-
ployees, professional employees, managers, guards and
supervisors as defined in the Act.
DOWNTOWN BID SERVICES CORPORATION