Overnite Transportation

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. Overnite Transportation Co. and International Brotherhood of Teamsters, AFL–CIO, Local 728. Case 10–CA–29969 May 30, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on February 12, 1997, the General Counsel of the National Labor Relations Board issued a complaint on March 21, 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 10–RC–14592. (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 May 8, 1997, the General Counsel filed a Mo­ tion for Summary Judgment. On May 9, 1997, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On May 14, 1997, the Respond­ ent filed a response opposing the motion and request­ ing that the complaint be dismissed. 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.1 1 Member Higgins has expressed his concern about the original de­ cision in the underlying representation case. See fn. 2 of Order De­ nying Motion for Reconsideration. However, he agrees that no new matters are appropriately raised herein. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Virginia corporation, with an office and place of business in At­ lanta Georgia, has been engaged in the interstate trans­ portation of commodity freight. During the 12-month period preceding the issuance of the complaint, the Re­ spondent in conducting its business operations de- scribed above, derived gross revenues in excess of $50,000 from the interstate transportation of freight. 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 April 17, 1995, the Union was certified on February 7, 1997,2 as the ex­ clusive collective-bargaining representative of the em­ ployees in the following appropriate unit: All full-time and regular part-time dock workers, city drivers, combo drivers, road drivers, jockeys and leadmen employed by the Employer at its Moreland Avenue, Atlanta, Georgia service facil­ ity, but excluding office clerical employees, man­ agerial employees, shop employees, guards and supervisors as defined in the Act. 3 The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since February 11, 1997, the Union has requested the Respondent to bargain, and, since February 12, 1997, 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. CONCLUSIONS OF LAW By refusing on and after February 12, 1997, 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. 2 On March 20, 1997, the Board issued an Order denying the Re­ spondent’s motion for reconsideration. 3 The unit description conforms to the language in the Certification of Representative which differs slightly and inconsequentially from the complaint. 323 NLRB No. 145 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, Overnite Transportation Company, At­ lanta, Georgia, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with International Brother- hood of Teamsters, Local 728, as the exclusive bar- gaining representative of the employees in the bargain­ ing 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 dock workers, city drivers, combo drivers, road drivers, jockeys and leadmen employed by the Employer at its Moreland Avenue, Atlanta, Georgia service facil­ ity, but excluding office clerical employees, man­ agerial employees, shop employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Atlanta, Georgia, copies of the at­ tached notice marked ‘‘Appendix.’’4 Copies of the no­ tice, on forms provided by the Regional Director for Region 10 after being signed by the Respondent’s au­ thorized representative, shall be posted by the Re- 4 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.’’ 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 February 12, 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. May 30, 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 728 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 dock workers, city drivers, combo drivers, road drivers, jockeys and leadmen employed by us at our Moreland Av­ enue, Atlanta, Georgia service facility, but exclud­ ing office clerical employees, managerial employ- OVERNITE TRANSPORTATION CO. 3 ees, shop employees, guards and supervisors as defined in the Act. OVERNITE TRANSPORTATION COMPANY The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 728 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 dock workers, city drivers, combo drivers, road drivers, jockeys and leadmen employed by us at our Moreland Avenue, Atlanta, Georgia service facility, but ex­ cluding office clerical employees, managerial employees, shop employees, guards and super- visors as defined in the Act. OVERNITE TRANSPORTATION COMPANY (Employer) Dated By (Representative) (Title) 101 Marietta Street NW, Suite 2400, Atlanta, Georgia 30323–3301. Telephone (404) 331–2896. 5