Yellow Transportation Company

YELLOW TRANSPORTATION COMPANY 91 Yellow Transportation Company, a Division of thereafter filed a response to the Notice To Show Yellow Cab Cooperative, Inc. and Raul Rodri- Cause. guez. Case 20-CA-16274 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- DECISION AND ORDER thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the BY MEMBERS FANNING, JENKINS, AND Board makes the following: ZIMMERMAN Upon a charge filed on May 27, 1981, by Raul Ruling on the Motion for Summary Judgment Rodriguez, an individual, and duly served on In its answer Respondent denied the allegations Yellow Transportation Company, A Division of in the complaint that it is an employer engaged in Yellow Cab Cooperative, Inc., herein called Re- commerce within the meaning of Section 2(2), (6), spondent, the General Counsel of the National and (7) of the Act, that the Union is a labor organi- Labor Relations Board, by the Acting Regional Di- zation within the meaning of Section 2(5) of the rector for Region 20, issued a complaint on June Act, and that the unit is appropriate. Respondent 10, 1981, against Respondent, alleging that Re- denied these allegations on the grounds that the spondent had engaged in and was engaging in complaint merely stated legal conclusions and unfair labor practices affecting commerce within failed to state sufficient facts as to require an the meaning of Section 8(a)(5) and (1) and Section answer.2 Respondent also denied that the Union 2(6) and (7) of the National Labor Relations Act, was the exclusive representative of the unit em- as amended. Copies of the charge and the com- ployees. It further denied that it violated Section plaint and notice of hearing before an administra- 8(a)(5) and (1) of the Act. Respondent admitted tive law judge were duly served on the parties to that during the calendar year ending December 31, this proceeding. 1980, it derived gross revenues in excess of With respect to the unfair labor practices, the $500,000, and during the same period it purchased complaint alleges in substance that on April 3, and received at its San Francisco location prod- 1981, following a Board election in Case 20-RC- ucts, goods, and materials valued in excess of 15153, Independent Cab Drivers Association was $5,000 directly from points outside the State of duly certified as the exclusive collective-bargaining California or from other enterprises located within representative of Respondent's employees in the the State each of which other enterprises had re- unit found appropriate;' and that, commencing on ceived the said products, goods, and materials di- or about April 20, 1981, and at all times thereafter, rectly from points outside the State. Respondent Respondent has refused, and continues to date to also admitted that the Union was certified as the refuse, to bargain collectively with the Union as exclusive representative for collective bargaining the exclusive bargaining representative, although for the unit of employees described in paragraph 5 the Union has requested and is requesting it to do of the complaint. Respondent further admitted that so. On June 18, 1981, Respondent filed its answer on April 15, 1981, the Union requested it to bar- to the complaint admitting in part, and denying in gain collectively with the Union as the exclusive part, the allegations in the complaint, and raising representative of unit employees with respect to an affirmative defense. their rates of pay, wages, hours of employment, On June 21, 1981, counsel for the General Coun- and other terms and conditions of employment, and sel filed directly with the Board a Motion for Sum- that since April 20, 1981, Respondent has failed mary Judgment. Subsequently, on July 31, 1981, and refused to recognize and to bargain with the Union. the Board issued an order transferring the proceed- UnAon. ing to the Board and a Notice To Show Cause As an affirmative defense Respondent alleges why the General Counsels Motion for Summary that the Board's certification in Case 20-RC-15153 Judgment should not be granted. Respondent was invalid, unlawful, and improper for the reasons set forth in its objections to the election conducted 'Official notice is taken of the record in the representation proceeding, in the underlying representation proceeding. Also Case 20-RC-15153, as the term "record" is defined in Secs. 102.68 and in its answer and response to the Board's Notice 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 Respondent 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 2 In Case 20-RC-15153 Respondent stipulated that it is an employer (D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 engaged in commerce, that the Union is a labor organization, and that the (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. unit, as described in the complaint, is appropriate. 259 NLRB No. 13 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the invalid certification it has never been obligated of the complaint is appropriate, it is apparent that to bargain collectively and that the sole reason for Respondent is attempting to litigate issues which its refusal to bargain is to obtain judicial review of were or could have been raised in the underlying the Board's certification. representation proceeding. This it may not do.3 Review of the record herein, including the All issues raised by Respondent in this proceed- record in Case 20-RC-15153, reveals that on Sep- ing were or could have been litigated in the prior tember 9, 1980, Respondent and the Union entered representation proceeding, and Respondent does into a Stipulation for Certification Upon Consent not offer to adduce at a hearing any newly discov- Election. As noted supra, Respondent stipulated ered or previously unavailable evidence, nor does that it is engaged in commerce within the meaning it allege that any special circumstances exist herein of Section 2(6) and (7) of the Act, that the Union is which would require the Board to reexamine the a labor organization, and that the unit, as described decision made in the representation proceeding. We in paragraph 5 of the complaint, is appropriate. therefore find that Respondent has not raised any Subsequently, on October 24, 1980, the employ- issue which is properly litigable in this unfair labor ees in the unit voted in an election for the purpose practice proceeding. Accordingly, we find that Re- of selecting a collective-bargaining representative. spondent, since on or about April 20, 1981, has vio- The tally of ballots showed 43 votes cast for, 34 lated Section 8(a)(5) and (1) of the Act by its refus- cast against, the Union, and 77 challenged ballots, a al to bargain with the Union. We therefore grant sufficient number to affect the results of the elec- the Motion for Summary Judgment. tion. On October 31, 1980, Respondent filed timely On the basis of the entire record, the Board objections to conduct affecting the results of the makes the following: election, alleging in substance that the Union en- gaged in deceptive campaign practices and inter- FINDINGS OF FACT fered with the employees' free choice in the elec- tion. On December 29, 1980, the Acting Regional I. THE BUSINESS OF RESPONDENT Director issued a "Report on Objections and Chal- Yellow Transportation Company, A Division of lenged Ballots" to the Board recommending that Yellow Cab Cooperative, Inc., stipulated that it is a the Employer's objections be overruled in their en- California corporation engaged in the taxicab busi- tirety, and that 72 challenges be sustained. On ness in San Francisco, California. During the past April 3, 1981, the Board found no merit in Re- fiscal year, Respondent has received gross revenues spondent's exceptions to the Acting Regional Di- in excess of $100,000. During the same period, Re- rector's recommendations, and certified the Union as the exclusive bargaining representative of all the the State of California valued in excess of $10,000. employees in the unit. By mailgram dated April 15, 1981, the Union requested Respondent to bargain. We find, on the basis of the foregoing, and upon On April 20, 1981, and at all times thereafter Re: the entire record in this proceeding, that Respond- Ond admittedly ha1s refused, and co ntus tr ent is, and has been at all times material herein, an spondent admittedly has refused, and continues to refuse, to recognize and to bargain collectively in employer engaged in commerce within the mean- good faith with the Union as the exclusive collec- ing of Section 2(6) and (7) of the Act, and that it tive-bargaining representative of the employees in will effectuate the policies of the Act to assert ju- the unit. risdiction herein. It is well settled that in the absence of newly dis- I. THE LABOR ORGANIZATION INVOLVED covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding Independent Cab Drivers Association is a labor which alleges a violation of Section 8(a)(5) is not organization within the meaning of Section 2(5) of entitled to relitigate issues which were or could the Act. have been litigated in a prior representation pro- III. THE UNFAIR LABOR PRACTICES ceeding. As noted supra, Respondent in its answer to the complaint denied that it is engaged in com- A. The Representation Proceeding merce within the meaning of the Act, that the Union is a labor organization, and that the unit is 1. The unit appropriate. In light of Respondent's stipulation in The following employees of Respondent consti- the underlying representation proceeding that it is an employer engaged in commerce within the tute a unit appropriate for collective-bargaining an employer engaged in commerce within the meaning of the Act, that the Union is a labor orga- 3 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); nization, and that the unit described in paragraph 5 Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c). YELLOW TRANSPORTATION COMPANY 93 purposes within the meaning of Section 9(b) of the meaning of Section 8(a)(5) and (1) of the Act, we Act: shall order that it cease and desist therefrom, and, All cab driver employees employed by Re- upon request, bargain collectively with the Union spondent at its San Francisco, California loca- as the exclusive representative of all employees in tion; excluding all other employees, lessees, the appropriate unit and, if an understanding is guards and supervisors as defined in the Act. reached, embody such understanding in a signed agreement. 2. The certification In order to insure that the employees in the ap- On October 24, 1980, a majority of the employ- propriate unit will be accorded the services of their ees of Respondent in said unit, in a secret-ballot selected bargaining agent for the period provided election conducted under the supervision of the by law, we shall construe the initial period of certi- Regional Director for Region 20, designated the fication as beginning on the date Respondent com- Union as their representative for the purpose of mences to bargain in good faith with the Union as collective bargaining with Respondent. the recognized bargaining representative in the ap- The Union was certified as the collective-bar- propriate unit. See Mar-Jac Poultry Company, Inc., gaining representative of the employees in said unit 136 NLRB 785 (1962); Commerce Company d/b/a on April 3, 1981, and the Union continues to be Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 such exclusive representative within the meaning of F.2d 600 (5th Cir. 1964), cert, denied 379 U.S. 817; Section 9(a) of the Act. Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). B. The Request To Bargain and Respondent's The Board, upon the basis of the foregoing facts Refusal and the entire record, makes the following: Commencing on or about April 15, 1981, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- 1. Yellow Transportation Company, A Division clusive collective-bargaining representative of all of Yellow Cab Cooperative Inc., is an employer the employees in the above-described unit. Comn- engaged in commerce within the meaning of Sec- mencing on or about April 20, 1981, and continu- tion 2(6) and (7) of the Act. ing at all times thereafter to date, Respondent has 2. Independent Cab Drivers Association is a refused, and continues to refuse, to recognize and labor organization within the meaning of Section bargain with the Union as the exclusive representa- 2(5) of the Act. tive for collective bargaining of all employees in 3. All cab driver employees employed by Re- said unit. spondent at its San Francisco, California, location, Accordingly, we find that Respondent has, since excluding all other employees, lessees, guards and April 20, 1981, and at all times thereafter, refused supervisors as defined in the Act, constitute a unit to bargain collectively with the Union as the exclu- appropriate for the purposes of collective bargain- sive representative of the employees in the appro- ing within the meaning of Section 9(b) of the Act. priate unit, and that, by such refusal, Respondent 4. Since April 3, 1981, the above-named labor or- has engaged in and is engaging in unfair labor prac- ganization has been and now is the certified and ex- tices within the meaning of Section 8(a)(5) and (1) clusive representative of all employees in the afore- of the Act. said appropriate unit for the purpose of collective IV. THE EFFECT OF THE UNFAIR LABOR bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 20, 1981, and at The activities of Respondent set forth in section all times thereafter, to bargain collectively with the II1, above, occurring in connection with its oper- above-named labor organization as the exclusive ations described in section I, above, have a close, bargaining representative of all the employees of intimate, and substantial relationship to trade, traf- Respondent in the appropriate unit, Respondent fic, and commerce among the several States and has engaged in and is engaging in unfair labor prac- tend to lead to labor disputes burdening and ob- tices within the meaning of Section 8(a)(5) of the structing commerce and the free flow of com- Act. merce. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, Having found that Respondent has engaged in employees in the exercise of the rights guaranteed and is engaging in unfair labor practices within the them in Section 7 of the Act, and thereby has en- 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in and is engaging in unfair labor practices Copies of said notice, on forms provided by the within the meaning of Section 8(a)(1) of the Act. Regional Director for Region 20, after being duly 7. The aforesaid unfair labor practices are unfair signed by Respondent's representative, shall be labor practices affecting commerce within the posted by Respondent immediately upon receipt meaning of Section 2(6) and (7) of the Act. thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all ORDER places where notices to employees are customarily Pursuant to Section 10(c) of the National Labor posted Reasonable steps shall be taken by Re- Relations Act, as amended, the National Labor Re- spondent to insure that said notices are not altered, Relations Act, as amended, the National Labor Re- . lations Board hereby orders that the Respondent, (c) Notify the Regional Director for Region 20, Yellow Transportation Company, A Division of in writing, within 20 days from the date of this Yellow Cab Cooperative, Inc., San Francisco, Cali- Order, what steps have been taken to comply here- fornia, its officers, agents, successors, and assigns, with. shall: 1. Cease and desist from: APPENDIX (a) Refusing to bargain collectively concerning NOTICE To EMPLOYEES rates of pay, wages, hours, and other terms and POSTED BY ORDER OF THE conditions of employment with Independent Cab NATIONAL LABOR RELATIONS BOARD Drivers Association as the exclusive bargaining An Agency of the United States Government representative of its employees in the following ap- propriate unit: WE WILL NOT refuse to bargain collectively All cab driver employees employed by Re- concerning rates of pay, wages, hours, and spondent at its San Francisco, California loca- other terms and conditions of employment tiond excluding all other employees, lesseesn with Independent Cab Drivers Association as tn; exclun al o r em , l ' the exclusive representative of the employees guards and supervisors as defined in the Act. the bargaining unit described below. in the bargaining unit described below. (b) In any like or related manner interfering WE WILL NOT in any like or related manner with, restraining, or coercing employees in the ex- interfere with, restrain, or coerce our employ- ercise of the rights guaranteed them in Section 7 of ees in the exercise of the rights guaranteed the Act. them by Section 7 of the Act. 2. Take the following affirmative action which WE WILL, upon request, bargain with the the Board finds will effectuate the policies of the above-named Union, as the exclusive repre- Act: sentative of all employees in the bargaining (a) Upon request, bargain with the above-named unit described below, with respect to rates of labor organization as the exclusive representative pay, wages, hours, and other terms and condi- tions of employment and, if an understanding of all employees in the aforesaid appropriate unit understanding with respect to rates of pay, wages, hours, and s reached, em body s uch u nderstanding i a other terms and conditions of employment and, if an understanding is reached, embody such under- All cab driver employees employed by the standing in a signed agreement. Employer at its San Francisco, California lo- (b) Post at its San Francisco, California, location cation; excluding all other employees, les- copies of the attached notice marked "Appendix." 4 sees, guards and supervisors as defined in the Act. '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 YELLOW TRANSPORTATION COMPA- Order of the National Labor Relations Board" shall read "Posted Pursu- NY, A DIVISION OF YELLOW CAB ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." COOPERATIVE, INC.