Birnie Bus Service

1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er­ rors so that corrections can be included in the bound volumes. Birnie Bus Service, Inc. and Service Employees International Union, Local 200B, AFL–CIO. Case 3–CA–20280 November 18, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND FOX Pursuant to a charge filed on September 12, 1996, the General Counsel of the National Labor Relations Board issued a complaint on September 25, 1996, al­ leging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus­ ing the Union’s request to bargain following the Union’s certification in Case 3-RC-10381. (Official no­ tice is taken of the ‘‘record’’ in the representation pro­ ceeding as defined in the Board’s Rules and Regula­ tions, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting the factual allegations in the complaint but denying the legal conclusions as to the Union’s status as the certified representative of its employees and de­ nying that it committed any violations of the Act. On October 21, 1996, the General Counsel filed a Motion for Summary Judgment. On October 22, 1996, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo­ tion should not be granted. The Respondent did not file 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 In its answer the Respondent admits its refusal to bargain but attacks the validity of the certification on the basis of its objections to the election in the rep­ resentation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior represen­ tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre­ viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro­ ceeding. 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 Judg­ ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, with an office and its principal place of business in Rome, New York, and other facilities in the State of New York, including a facility in Syracuse, New York, has been engaged in school transportation. Annually, the Respondent, in conducting its business operations described above, derived gross revenues in excess of $250,000 and purchased and received at its New York facilities, goods valued in excess of $5000 directly from points outside the State of New York. We find that the Respondent is an employer engaged in com­ merce within the meaning of Section 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. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held March 29, 1996, the Union was certified on August 27, 1996, as the exclu­ sive collective-bargaining representative of the employ­ ees in the following appropriate unit: All full-time and regular part-time drivers, sub­ stitute drivers, monitor/aides and fueler employees employed by Respondent at its Syracuse location; excluding employees employed for summers only in connection with the Respondent’s summer school contract with the Syracuse School District, all confidential and clerical employees, and all employees who are guards and supervisors as de- fined in the National Labor Relations Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since September 4, 1996, the Union has requested the Respondent to bargain, and since September 5, 1996, the Respondent has refused. We find that this re­ fusal constitutes an unlawful refusal to bargain in vio­ lation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after September 5, 1996, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac­ tices affecting commerce within the meaning of Sec­ tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 322 NLRB No. 89 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD REMEDY Having found that the Respondent has violated Sec­ tion 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 un­ derstanding in a signed agreement. To ensure that the employees are accorded the serv­ ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe­ riod of the certification as beginning the date the Re­ spondent 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, Birnie Bus Service, Inc., Rome, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Service Employees International Union, Local 200B, AFL–CIO as the ex­ clusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, 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 representative of the employees in the following appropriate unit on terms and conditions of employ­ ment, and if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time drivers, sub­ stitute drivers, monitor/aides and fueler employees employed by Respondent at its Syracuse location; excluding employees employed for summers only in connection with the Respondent’s summer school contract with the Syracuse School District, all confidential and clerical employees, and all employees who are guards and supervisors as de- fined in the National Labor Relations Act. (b) Within 14 days after service by the Region, post at its facility in Syracuse, New York, copies of the at­ tached notice marked ‘‘Appendix.’’1 Copies of the no­ tice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent’s au- 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 National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ thorized representative, shall be posted by the Re­ spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no­ tices are not altered, defaced, or covered 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 pro­ ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re­ spondent at any time since September 12, 1996. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. November 18, 1996 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Margaret A. Browning, Member llllllllllllllllll Sarah M. Fox, 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 violated the National Labor Relations Act and has or­ dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Service Em­ ployees International Union, Local 200B, AFL–CIO as the exclusive representative of the employees 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 bargaining unit: All full-time and regular part-time drivers, sub­ stitute drivers, monitor/aides and fueler employees BIRNIE BUS SERVICE 3 employed by us at our Syracuse location; exclud- guards and supervisors as defined in the National ing employees employed for summers only in Labor Relations Act. connection with our summer school contract with the Syracuse School District, all confidential and BIRNIE BUS SERVICE, INC. clerical employees, and all employees who are