V.I.P. Limousine Service

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Farat, Inc. d/b/a V.I.P. Limousine Service and Amalgamated Transit Union, Local 627, AFL- CIO-CLC. Case 9-CA-21997 19 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON Upon a charge filed by the Union on 1 May 1985, the General Counsel of the National Labor Relations Board issued a complaint on 10 June 1985 against the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges in substance that on 20 September 1984, following a Board election in Case 9-RC-14470, the Union was certified as the exclusive collective-bargaining representative of the Respondent's employees in the unit found ap- propriate. (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), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further alleges that since 20 September 1984 the Respondent has refused to bar- gain with the Union. On 21 June 1985 the Re- spondent filed an answer admitting in part and de- nying in part the allegations in the complaint. On 3 July 1985 the General Counsel filed a Motion for Summary Judgment and Partial Motion to Strike "Answer" of Respondent. On 11 July 1985 the Board issued an order transferring pro- ceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Respondent's answer admits its refusal to bargain with the Union, but attacks the validity of the certification in the representation proceeding on the basis that it is improper and contrary to law. The Respondent's answer further asserts that the charge is time-barred by Section 10(b) of the Act because it was filed more than 6 months after the Respondent advised the Union by letter dated 1 October 1984 that it was refusing to bargain in order to test the validity of the certification. The General Counsel argues that all material issues except the 10(b) defense have been previously de- cided and that the 10(b) defense should be stricken. The record, including the record in Case 9-RC- 14470, reveals that a Decision and Direction of Election issued in Case 9-RC-14470 on 11 May 1984. The Respondent timely filed a request for review in which it alleged that the Regional Direc- tor had erred by not finding the Respondent's dis- patchers supervisors and by including them in a unit of its drivers and mechanics. On 5 June 1984 the Board issued a telegraphic order which did not pass on the supervisory status of the dispatchers, but did require that they vote subject to challenge. On the same date an election was held in which a majority of the Respondent's employees in the unit selected the Union as their exclusive representative for collective bargaining.' On 12 June 1984 the Respondent timely filed ob- jections to conduct affecting the election's results. The Regional Director overruled two of the objec- tions and ordered a hearing on the remaining two. On 20 August 1984 a hearing officer's report issued overruling the two remaining objections in their entirety. The Respondent timely filed exceptions to the hearing officer's report, and on 20 September 1984 the Regional Director issued a Second Supplemen- tal Decision and Certification of Representative adopting the hearing officer's findings. On 2 Octo- ber 1984 the Respondent filed a request for review of the Regional Director's Second Supplemental Decision, and on 11 February 1985 the Board denied the Respondent's request for review. By letter dated 16 April 1985 the Union request- ed the Respondent to bargain. Since that date the Respondent has refused to recognize and bargain with the Union. The Respondent contends in its opposition to the Motion for Summary Judgment that its refusal to bargain is justified by the Regional Director's al- legedly improper refusal to set aside the election based on the two election objections overruled in the 20 August 1984 hearing officer's report. The Respondent also contends that its refusal to bargain is justified by the Regional Director's refusal to order a hearing on the Respondent's other two election objections. The Respondent raised this issue for the first time in its October 1984 request for review which the Board denied on 11 February 1985. Finally, the Respondent's opposition raises the 10(b) defense noted above. We find that the Respondent's 10(b) defense lacks merit because the Respondent has admitted that the Union requested bargaining on 16 April i The tally of ballots showed 28 votes for and 12 votes against the Union, with 5 challenged ballots 277 NLRB No. 56 V.I.P. LIMOUSINE SERVICE 1985, within the certification year, 2 and that it has refused to bargain since that date. The charge was filed on 1 May 1985, and thus is clearly within the 6-month requirement of Section 10(b).3 It is well settled that in the absence of newly dis- covered and previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Re- spondent in this proceeding, with the exception of the affirmative defense discussed above, to which we find no merit, were or could have been litigated in the prior representation proceeding. The Re- spondent does not offer to adduce at a hearing any newly discovered and previously unavailable evi- dence, nor does it allege any special circumstances that would require the Board to reexamine the de- cision made in the representation proceeding. We therefore find that the Respondent has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment finding that on or since 16 April 1985 the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent, an Ohio corporation with an office and place of business in Cincinnati, Ohio, is engaged in the interstate and intrastate transporta. tion of passengers and freight for hospitals, nursing homes, and other institutions. During the 12 months preceding issuance of the complaint herein, the Respondent derived in the course and conduct of its operations gross revenues in excess of $50,OCO. During the same period of time the Re- 2 We find that the lapse of time between the Respondent's 1 October 1984 letter refusing to bargain and the Union's 16 April 1985 letter re- questing bargaining does not constitute such unusual circumstances within the meaning of Ray Brooks s: NLRB, 348 U S. 96 (1954), that would relieve the Respondent of its obligation to bargain throughout the certification year See Sunnyland Refining Co, 250 NLRB 1180, 1181 fn. 2 (1980) Although the Respondent initially refused to bargain in its letter dated 1 October 1984, at that time the unit description set forth in the Second Supplemental Decision and Certification of Representative mcor- rectly included the classification of dispatchers The Respondent's I Oc- tober 1984 refusal to bargain was based, in part , on this error However, the Regional Director's Correction of Second Supplemental Decision and Certification of Representative dated 28 December 1984 corrected this error, which therefore provided the Respondent no defense for its refusal to bargain in response to the Union 's 1L6 April 1985 request. 539 spondent purchased and received in the-course of its operations at its Cincinnati, Ohio facility prod- ucts, goods, and materials valued in excess of $50,000 directly from points outside the State of Ohio. We find that the Respondent is an employer engaged in commerce within the meaning of Sec- tion 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 on 5 June 1985, the Union was certified on 20 September 1984 (as re- vised by Order of 28 December 1984) as the collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time drivers and mechanics including school bus drivers em- ployed by the Employer at its Cincinnati, Ohio location, but excluding all office clerical em- ployees, all other employees and all profession- al employees, guards and supervisors as de- fined in the Act. B. Refusal to Bargain Since 16 April 1985 the Union has requested the Respondent to bargain, and since that date the Re- spondent has refused. We find that this refusal con- stitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAw By refusing on and after 16 April 1985 to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting 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 Section 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 understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 540 DECISIONS OF NATIONAL (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, Farat, Inc. d/b/a V.I.P. Limou- sine Service, Cincinnati, Ohio, its officers, agents, sucessors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Amalgamated Tran- sit Union, Local 627, AFL-CIO-CLC as the exclu- sive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time drivers and mechanics including school -bus drivers em- ployed by the Employer at its Cincinnati, Ohio location, but excluding all office clerical em- ployees, all other employees and all profession- al employees, guards and supervisors as de- fined in the Act. (b) Post at is facility in Cincinnati, Ohio, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Re- gional Director for Region 9, after being signed by the Respondent's authorized representative, imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken 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 Nation- al 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." LABOR RELATIONS BOARD spondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Amalga- mated Transit Union, Local 627, 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 exer- cise 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 and mechanics including school bus drivers em- ployed by the Employer at its Cincinnati, Ohio location, but excluding all office clerical em- ployees, all other employees and all profession- al employees, guards and supervisors as de- fined in the Act. FARAT, INC. D/B/A V.I.P. LIMOU- SINE