Sanders Bus Lines, Inc.

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sanders Bus Lines, Inc. and Chauffeurs Union Local No. 923, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 32-CA-3198 June 2, 1981 DECISION AND ORDER Upon a charge filed on November 13, 1980, by Chauffeurs Union Local No. 923, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, and duly served on Sanders Bus Lines, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 32, issued a complaint on November 20, 1980, against Respondent, alleg- ing that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge and complaint and notice of hearing before an adminis- trative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on November 3, 1980, following a Board election in Case 32-RC- 1120, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about November 10, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On December 3, 1980, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On March 18, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 24, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. ' Official notice is taken of the record in the representation proceed- ing, Case 32-RC-1120, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F 2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 256 NLRB No. 56 Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint, Respondent con- tends that it has not violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. Specifically, Respondent contends that it is bound by a collective-bargaining agreement between it and the Sanders Bus Line Drivers Association (SBLDA), which is effective until August 31, 1981, and that it expressed to the Union its willingness to bargain with it and to enter into an agreement as of that date. In its memorandum in support of the Motion for Summary Judgment, the General Counsel argues that there are no issues requiring a hearing, as Re- spondent admits each of the material factual allega- tions in the complaint and denies only that it there- by violated Section 8(a)(5) and (1) of the Act. For the reasons set forth below, we agree with the General Counsel, and accordingly grant the Motion for Summary Judgment. Review of the record herein, including the record in Case 32-RC-1120, reveals that on July 21, 1980, the Union filed a petition seeking to rep- resent all full-time and regular part-time bus drivers and relief drivers employed by Respondent at its Oakland, California, facility, excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. Following a hearing, the Regional Director for Region 32 issued a Decision and Direction of Election direct- ing an election in the petitioned-for unit. In his De- cision, the Regional Director considered Respond- ent's contention that the election was barred by an existing collective-bargaining agreement between Respondent and the Sanders Bus Line Drivers As- sociation (SBLDA), effective September 1, 1979, through August 31, 1981. The Regional Director found that this contract did not act as a bar to the election, because SBLDA is defunct and is unwill- ing to represent the unit employees. Respondent filed a timely request for review, claiming that the Regional Director erred in crediting the testimony of an employee who testified in the preelection hearing and by finding that SBLDA is defunct. On October 24, 1980, the Board denied Respondent's request for review. Thereafter, an election was conducted among the employees in the above-described unit. The tally of ballots showed that of approximately 60 eligible voters, 36 cast ballots for the Union, 13 cast ballots against the Union, and 4 ballots were challenged. The challenges were not determinative. No objec- tions to the conduct of the election were filed. Ac- SANDERS BUS LINES, INC. 317 cordingly, the Regional Director issued a Certifica- tion of Representative on November 3, 1980, certi- fying the Union as the exclusive representative of the employees in the unit herein. On or about November 6, 1980, the Union re- quested that Respondent bargain collectively with it with respect to wages, hours, and working con- ditions of the employees in the unit described above. On November 10, 1980, Respondent re- fused, and continues to refuse, to bargain with the Union over any of the terms of the contract that it considered were covered by the contract between it and SBLDA until the expiration of that contract on August 31, 1981. In the prior representation proceeding, the Re- gional Director determined that the collective-bar- gaining agreement between Respondent and SBLDA did not act as a bar to the election, be- cause SBLDA was defunct and unwilling to repre- sent Respondent's employees. In the absence of newly discovered or previously unavailable evi- dence or special circumstances Respondent is not entitled to relitigate this issue, since it had been liti- gated in the prior representation proceeding. 2 Moreover, Respondent may not assert that its col- lective-bargaining agreement with SBLDA remains in effect notwithstanding the dissolution of SBLDA and the subsequent certification of the Union. In American Sunroof Corporation- West Coast, Inc., d/b/a American Sunroof/Custom-Craft, Inc.,3 the Board stated: It is well settled . . . that when a union is de- certified, or when an employer transfers its business to a successor employer, the succeed- ing union or employer is not bound by a prior contract, even if the terms of the contract have not yet expired. The same principle ap- plies when an existing contract is held not to bar an election, and a new union becomes the representative of the employees previously covered by the contract.4 We find, therefore, that Respondent may not refuse to bargain with the Union regarding terms and conditions of employment contained in its agree- ment with SBLDA, and shall, accordingly, grant the General Counsel's Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: 2 See Pittsburgh Plate Glass Co. v jNL.R. B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Sees. 102.67(f and 102.69(c). 3 243 NLRB 1128 (1979). 4 Id. at 1129-30 FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a California corporation with an office and place of business in Oakland, California, and has been engaged in the operation of a trans- portation business which provides, inter alia, trans- portation service for school children for the Oak- land Unified School District. During the 12 months preceding issuance of the complaint, which period is representative of all times material herein, Re- spondent derived gross revenue in excess of $250,000, and purchased and received goods or services valued in excess of $5,000 which originat- ed outside the State of California. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Chauffeurs Union Local No. 923, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time bus drivers and relief drivers employed by the Employer at its Oakland, California facility; excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. 2. The certification On October 24, 1980, a majority of the employ- ees of Respondent, in a secret-ballot election con- ducted under the supervision of the Regional Di- rector for Region 32, designated the Union as their representative for the purpose of collective bar- gaining with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on November 3, 1980, and the Union continues to be such exclusive repre- sentative within the meaning of Section 9(a) of the Act. SANDERS BUS LINES, INC 317 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Request To Bargain and Respondent's Refusal Commencing on or about November 6, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about November 10, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since November 10, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Sanders Bus Lines, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs Union Local No. 923, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time bus drivers and relief drivers employed by Respondent at its Oakland, California, facility, excluding all other employees, office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. Since November 3, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about November 10, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent, Sanders Bus Lines, Inc., Oakland, California, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Chauffeurs, Ware- housemen and Helpers of America, as the exclusive SANDERS BUS LINES, INC. 319 bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time bus drivers and relief drivers employed by the Employer at its Oakland, California facility; excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Oakland, California, facility, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. 5 In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enfoircing an Order of the National Labor Relations Board " (c) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Chauffeurs Union Local No. 923, a/w In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive representative of the employ- ees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time bus driv- ers and relief drivers employed at our Oak- land, California facility; excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. SANDERS BUS LINES, INC. SANDERS US LINES INC. 3: