Dave Transportation Services

1 324 NLRB No. 45 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. Dave Transportation Services, Inc. and Inter- national Brotherhood of Teamsters, Local Union 104, General Teamsters, (excluding Mailers), State of Arizona, an affiliate of Inter- national Brotherhood of Teamsters, AFL–CIO. Case 28–CA–14388 August 20, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on May 15, 1997, the General Counsel of the National Labor Relations Board issued a complaint on May 23, 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 28–RC–5481. (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. On July 7, 1997, the General Counsel filed a Motion for Summary Judgment. On July 9, 1997, the Board is- sued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On July 17, 1997, 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 objection to the election in the representation 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 The Respondent is now, and has been at all times material, a corporation duly organized under, and exist- ing by virtue of, the laws of the State of California, and has maintained offices and places of business lo- cated in various States of the United States, including in the City of Mesa, Arizona, where it is engaged in the business of providing bus transportation service. During the 12-month period ending May 15, 1997, the Respondent, in the course and conduct of its busi- ness operations, derived gross revenue therefrom in ex- cess of $250,000 and has provided services valued in excess of $50,000 for cities located in various States of the United States, including the City of Mesa, Ari- zona. 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 organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held February 21, 1997, the Union was certified on April 25, 1997, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time bus operators; excluding all office clerical employees, guards, and supervisors as defined by the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain About April 28, 1997, the Union, by letter, re- quested the Respondent to bargain and, about May 1, 1997, the Respondent, by letter, 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 May 1, 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. 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, 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.’’ 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, Dave Transportation Services, Inc., City of Mesa, Arizona, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Brother- hood of Teamsters, Local Union 104, General Team- sters, (excluding Mailers), State of Arizona, an affiliate of International Brotherhood of Teamsters, AFL–CIO, as the exclusive bargaining representative of the em- ployees 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 bus operators; excluding all office clerical employees, guards, and supervisors as defined by the Act. (b) Within 14 days after service by the Region, post at its facility in City of Mesa, Arizona, copies of the attached notice marked ‘‘Appendix.’’1 Copies of the notice, on forms provided by the Regional Director for Region 28 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 May 15, 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. August 20, 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 International Brotherhood of Teamsters, Local Union 104, General Teamsters, (excluding Mailers), State of Arizona, an affiliate of International Brotherhood of Teamsters, AFL–CIO, as the exclusive 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 bargaining unit: All full-time and regular part-time bus operators; excluding all office clerical employees, guards, and supervisors as defined by the Act. DAVE TRANSPORTATION SERVICES, INC.