Pacific Trailer Repair

1 324 NLRB No. 108 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. Pacific Trailer Repair Services, Inc. and Transpor- tation Communications International Union, AFL–CIO, CLC. Case 12–CA–18906 October 10, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on July 18, 1997, the General Counsel of the National Labor Relations Board issued a complaint on August 7, 1997, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s cer- tification in Case 12–RC–8013. (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(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the com- plaint and requesting that the complaint dismissed in its entirety. On September 8, 1997, the General Counsel filed a Motion for Summary Judgment. On September 10, 1997, the Board issued an order transferring the pro- ceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. Ruling on Motion for Summary Judgment In its answer and response the Respondent admits its refusal to bargain, but attacks the validity of the cer- tification on the basis of its contentions in the rep- resentation proceeding regarding the unit determination and its objections to the election. 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 Washington corporation, with an office and place of business lo- cated in Jacksonville, Florida (Respondent’s Jackson- ville facility), has been engaged in providing inter- modal services to CSX Intermodal. During the 12- month period preceding the issuance of the complaint, the Respondent, in conducting its business operations, has purchased and received at its Jacksonville, Florida facility products, goods, and materials valued in excess of $50,000 directly from suppliers located outside the State of Florida. We find that the Respondent is an employer engaged in commerce 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 December 11 and 12, 1996, the Union was certified on June 24, 1997, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full time and regular part time lift department employees, including drivers, groundsmen, second (final) checkers and equipment operators, em- ployed by the Employer at its facility located at Jacksonville, Florida, excluding all maintenance department employees, shop mechanics, mobile mechanics, gate inspectors, mechanical gate in- spectors, office clerical employees, guards and su- pervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain By letter dated June 27, 1997, the Union requested the Respondent to bargain, and by letter dated July 15, 1997, the Respondent refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after July 15, 1997, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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.’’ 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, Pacific Trailer Repair Services, Inc., Jack- sonville, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Transportation Commu- nications International Union, AFL–CIO, CLC as the exclusive 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 lift department employees, including drivers, groundsmen, second (final) checkers and equipment operators, em- ployed by the Employer at its facility located at Jacksonville, Florida, excluding all maintenance department employees, shop mechanics, mobile mechanics, gate inspectors, mechanical gate in- spectors, office clerical employees, guards and su- pervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Jacksonville, Florida, copies of the at- tached notice marked ‘‘Appendix.’’1 Copies of the no- tice, on forms provided by the Regional Director for Region 12 after being signed by the Respondent’s au- 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 July 18, 1997. (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. October 10, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., 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 Transportation Communications International Union, AFL–CIO, CLC 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 lift department employees, including drivers, groundsmen, second 3 PACIFIC TRAILER REPAIR SERVICES (final) checkers and equipment operators, em- ployed by us at our facility located at Jackson- ville, Florida, excluding all maintenance depart- ment employees, shop mechanics, mobile mechan- ics, gate inspectors, mechanical gate inspectors, office clerical employees, guards and supervisors as defined in the Act. PACIFIC TRAILER REPAIR SERVICES, INC.