Direct Transit

466 310 NLRB No. 61 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 309 NLRB 697. 2 The judge granted the bargaining order in par. 2(c) of his rec- ommended Order, and the Board adopted it. 3 The second sentence of fn. 1 of the Decision and Order is modi- fied to read as follows: ‘‘The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed exceptions and a brief in support of the judge’s decision.’’ Direct Transit, Inc. and Teamsters Local Union No. 166 a/w International Brotherhood of Team- sters, AFL–CIO. Case 31–CA–19095 February 17, 1993 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH On November 30, 1992, the National Labor Rela- tions Board issued its Decision and Order in this pro- ceeding adopting the judge’s finding that the Respond- ent violated Section 8(a)(3) and (1) of the Act by, inter alia, closing its Daggett, California facility and laying off indefinitely all of its bargaining unit employees be- cause of their actions in pursuing union representa- tion.1 The Board further adopted the judge’s rec- ommendation that a bargaining order was warranted to remedy the Respondent’s unfair labor practices. On December 4, 1992, counsel for the General Counsel moved that the Board reconsider and modify its Decision and Order. On December 11, 1992, the Respondent filed an opposition to counsel for the the General Counsel’s motion. In her motion, counsel for the General Counsel avers, with supporting documentation, that she simulta- neously filed with the Board both a brief in support of the judge’s decision and exceptions ‘‘challeng[ing] the Administrative Law Judge’s failure to issue a bar- gaining order based on Section 8(a)(5) as well as Sec- tion 8(a)(3) and (1) of the Act.’’ However, counsel for the General Counsel notes that in footnote 1 of its De- cision and Order, the Board acknowledged only the fil- ing of her supporting brief and did not consider or rule on her exceptions in which she excepted to the judge’s failure ‘‘to recommend that Respondent be ordered to cease and desist from refusing to recognize and on re- quest, bargain with the Charging Party Union . . . .’’ Accordingly, counsel for the General Counsel submits that in light of her timely filed exceptions, extraor- dinary circumstances exist as required by Section 102.48(d)(1) of the Board’s Rules and Regulations to support her motion for a bargaining order and notice based upon violations of Section 8(a)(5), (3), and (1). The Respondent argues in opposition that paragraph 2(c) of the Board’s Order already provides for a bar- gaining order,2 and ‘‘[t]here is no difference in any material respect between what the General Counsel is asking the Board to do and what the Board has already done.’’ Accordingly, the Respondent contends that counsel for the General Counsel has failed to allege ‘‘extraordinary circumstances’’ or specify ‘‘material error’’ in the underlying proceeding as required by Section 102.48 and that her motion must, therefore, be denied. We find merit in counsel for the General Counsel’s motion. With respect to the alleged error in the Board’s failure to acknowledge in footnote 1 of its de- cision that counsel for the General Counsel filed ex- ceptions, the Board’s records show that she filed ex- ceptions with the Board’s Executive Secretary on the same day that her brief in support of the judge’s deci- sion was filed. However, the exceptions were inadvert- ently not forwarded to the Board for consideration. Ac- cordingly, we correct footnote 1 of our decision to re- flect counsel for the General Counsel’s timely filing of exceptions to the judge’s decision.3 We further find merit in counsel for the General Counsel’s motion with respect to the alleged failure by the judge to base his bargaining order on a violation of Section 8(a)(5), as well as Section 8(a)(3) and (1). Counsel for the General Counsel alleged a violation of Section 8(a)(5) in the amended complaint and, al- though the judge did not specifically find that the Re- spondent violated that section of the Act, he found the elements of an 8(a)(5) violation based on the undis- puted evidence that a majority of unit employees signed valid authorization cards and that the Union made a lawful demand for recognition upon the Re- spondent prior to the closure of the Daggett facility. Accordingly, we find that a bargaining order based on Section 8(a)(5) and (1) is warranted, in addition to the bargaining order granted by the judge and adopted by the Board based on the judge’s 8(a)(3) and (1) find- ings. We further find, as requested in counsel for the General Counsel’s exceptions, that an order requiring the Respondent to cease and desist from refusing to bargain is warranted. Accordingly, for the reasons stated above, we grant counsel for the General Counsel’s motion for reconsid- eration and, consistent therewith, we shall further mod- ify the judge’s recommended Order and our original Order dated November 30, 1992, in the manner set forth below. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified by our Order dated November 30, 1992, and orders that the Respondent, Direct Transit, Inc., Daggett, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(e) and reletter the paragraphs accordingly. 467 DIRECT TRANSIT ‘‘(e) Refusing to recognize and bargain with the Union as the exclusive collective-bargaining represent- ative of its employees in the appropriate unit set forth below.’’ 2. Substitute the attached notice for that attached to the Board’s underlying Decision and Order. 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 shut down a maintenance facility and terminate our employees because they seek union af- filiation for purposes of collective-bargaining represen- tation. WE WILL NOT demote an employee from a leadman position because of his activity on behalf of union or- ganization. WE WILL NOT threaten employees with shop closure because of their interest in or activity on behalf of the Union. WE WILL NOT interrogate employees about their in- terest in or activity on behalf of the Union. WE WILL NOT refuse to recognize and bargain with the Union as the exclusive collective-bargaining rep- resentative of our employees in the following appro- priate unit: All mechanics, mechanic leadman, mechanic trainees, and fuel and wash employees employed by the Respondent at its facility located at 34760 Daggett/Yermo Road, Daggett, California; but ex- cluding office clerical employees, guards, and su- pervisors, as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL reestablish and resume operations at our Daggett, California facility in a manner consistent with the level and manner of operation that existed before the facility was closed on October 6, 1991. WE WILL offer reinstatement to all employees laid off on that date who held a position in the bargaining unit set forth above. WE WILL make them whole for losses they incurred as a result of the discrimination against them, with in- terest. WE WILL recognize and, on request, bargain with the Union as the exclusive collective-bargaining represent- ative of our employees in the bargaining unit set forth above concerning terms and conditions of employment and, if an understanding is reached, WE WILL embody the understanding in a signed agreement. WE WILL offer Ivan Elvik reinstatement to his former position of leadman and make him whole, with interest, for any losses he incurred as a result of his unlawful demotion. DIRECT TRANSIT, INC.