Roadway Package System, Inc

ROADWAY PACKAGE SYSTEM Roadway Package System, Inc and Chauffeurs and Sales Drivers, Local Union No 402 , affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO Case 10-CA-3331 November 18 1988 r DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On May 17 1988 the General Counsel of the National Labor Relations Board issued a complaint alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Unions request to bargain follow ing the Unions certification in Case 10-RC-13460 (Official notice is taken of the record in the rep resentation proceeding as defined in the Board s Rules and Regulations Secs 102 68 and 102 69(g) Frontier Hotel 265 NLRB 343 (1982)) The Re spondent filed its answer admitting in part and de nying in part the allegations in the complaint On June 20 1988 the General Counsel filed a Motion for Summary Judgment On June 24 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted The Respondent 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 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 and the Board s unit determination in the representation proceeding All representation issues raised by the Respond ent were or could have been litigated in the prior representation proceeding The Respondent has not shown that any newly discovered and previously unavailable evidence exists which could have a ma terial effect on the election i nor does it allege any i In its opposition to the motion the Respondent asserts that summary judgment is inappropriate because newly discovered and previously un available evidence shows that the Union has a conflict of interests that prevents it from properly representing the Respondents employees i e that the Union wants to put the Respondent out of business to protect its interests as representative of the employees of the Respondents competi tor United Parcel Service The thrust of the Respondents evidence however is that the Teamsters was interested in obtaining contractual terms for the Respondent s drivers that were similar to those of UPS drivers There is only one isolated statement that could be construed as directly supporting the Respondents claim and it involves a remark by a Teamsters official in a local other than the one certified in this case The only document relating specifically to the certified local here does not 745 special circumstances that would require the Board to reexamine the decision made in the representa tion proceeding We therefore find that the Re spondent has not raised any representation issue that is properly litigable in this unfair labor prac tice proceeding See Pittsburgh Plate Glass Co v NLRB 313 US 146 162 (1941) Accordingly we grant the Motion for Summary Judgment On the entire record the Board makes the fol lowing FINDINGS OF FACT I JURISDICTION The Respondent a Delaware corporation is en gaged as a common carrier by motor vehicle in the interstate transportation of freight at its facility in Huntsville Alabama where it annually receives revenues in excess of $50 000 from such activity We find that the Respondent is an employer en gaged 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 June 25 1987 the Union was certified on August 10 1987 as the col lective bargaining representative of the employees in the following appropriate unit All truck drivers and delivery employees em ployed by the Employer at its Huntsville Ala bama facilities but excluding all office clerical employees part time dock workers sales em ployees janitors guards and supervisors as de fined in the Act The Union continues to be the exclusive represent ative under Section 9(a) of the Act B Refusal to Bargain Since February 21 1988 the Union has request ed the Respondent to bargain and since February 21 the Respondent has refused We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act support the Respondents conflict of interests claim Thus the Respond ent has not proffered evidence sufficient to require a hearing The Respondent also asserts that the charge was untimely filed How ever it offers no proof to support this assertion and we rely on the date of the refusal to bargain alleged in the complaint and admitted by the Respondent to establish that the charge was filed within the 10(b) period 291 NLRB No 116 746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW By refusing on and after February 21 1988 to bargain with the Union as the exclusive collective bargaining representative of employees in the ap propriate 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 (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 Roadway Package System Inc Huntsville Alabama its officers agents successors and assigns shall 1 Cease and desist from (a) Refusing to bargain with Chauffeurs and Sales Drivers Local Union No 402 affiliated with International Brotherhood of Teamsters Chauf feurs Warehousemen and Helpers of America AFL-CIO as the exclusive bargaining representa tive of the employees in the appropriate 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 nary 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 truck drivers and delivery employees em ployed by the Employer at its Huntsvile Ala bama facilities but excluding all office clerical employees part time dock workers sales em ployees janitors guards and supervisors as de fined in the Act (b) Post at its facilities in Huntsville Alabama copies of the attached notice marked Appendix 2 Copies of the notice on forms provided by the Re gional Director for Region 10 after being signed by the Respondents authorized representative shall be posted by the Respondent immediately upon receipt 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 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 2 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 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 Chauffeurs and Sales Drivers Local Union No 402 affiliated with International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of Amer Ica AFL-CIO 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 them 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 the employment for our employees in the bargaining unit All truck drivers and delivery employees em ployed by the Employer at its Huntsvile Ala bama facilities but excluding all office clerical employees part time dock workers sales em ployees janitors guards and superivors as de fined in the Act ROADWAY PACKAGE SYSTEM INC