E.A. Sween Co.

E.A. SWEEN CO. 355 NLRB No. 87 491 E.A. Sween Company and Teamsters Local Union No. 754, affiliated with International Brotherhood of Teamsters. Cases 13–CA–45563 and 13–RC– 21777 August 13, 2010 DECISION, CERTIFICATION OF REPRE- SENTATIVE, AND NOTICE TO SHOW CAUSE BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND PEARCE On December 24, 2009, the two sitting members of the Board issued a Decision and Order in this proceeding, which is reported at 354 NLRB No. 117. (not reported in Board volumes)1 Thereafter, the General Counsel filed an application for enforcement in the United States Court of Appeals for the Seventh Circuit. On June 17, 2010, the United States Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, hold- ing that under Section 3(b) of the Act, in order to exer- cise the delegated authority of the Board, a delegee group of at least three members must be maintained. Thereaf- ter, the court of appeals remanded this case for further proceedings consistent with the Supreme Court’s deci- sion. The National Labor Relations Board has consolidated these proceedings and delegated its authority in both pro- ceedings to a three-member panel.2 This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceeding. The Board’s December 24, 2009 decision states that the Respondent is precluded from litigating any representation issues because, in relevant part, they were or could have 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the powers of the National Labor Relations Board in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Thereafter, pursuant to this delegation, the two sitting members issued decisions and orders in unfair labor practice and representation cases. 2 Consistent with the Board’s general practice in cases remanded from the Courts of Appeals, and for reasons of administrative economy, the panel includes the members who participated in the original deci- sion. Furthermore, under the Board’s standard procedures applicable to all cases assigned to a panel, the Board members not assigned to the panel had the opportunity to participate in the adjudication of this case prior to the issuance of this decision. been litigated in the prior representation proceeding. The prior proceeding, however, was also a two-member deci- sion and we do not give it preclusive effect. We have considered the postelection representation is- sues raised by the Respondent. The Board has reviewed the record in light of the exceptions and brief, and has adopted the Hearing Officer’s findings and recommenda- tions to the extent and for the reasons stated in the Au- gust 17, 2009 Decision and Certification of Representa- tive, which is incorporated herein by reference. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for Teamsters Local Union No. 754, affiliated with the International Brotherhood of Teamsters, and that it is the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full time and regular part time drivers employed by the Employer out of its facility currently located at 10350 Argonne Drive, #500, Woodridge, Illinois, but excluding all lead drivers, office clerical employees and guards, professional employees and supervisors as de- fined in the Act. Notice to Show Cause As noted above, the Respondent has refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals. Al- though Respondent’s legal position may remain un- changed, it is possible that the Respondent has or intends to commence bargaining at this time. It is also possible that other events may have occurred during the pendency of this litigation that the parties may wish to bring to our attention. Having duly considered the matter, 1. The General Counsel is granted leave to amend the complaint on or before August 23 to conform with the current state of the evidence; 2. The Respondent’s answer to the amended com- plaint is due on or before September 7; and 3. NOTICE IS HEREBY GIVEN that cause be shown, in writing, on or before September 14 (with affidavit of ser- vice on the parties to this proceeding), as to why the Board should not grant the General Counsel’s motion for sum- mary judgment. Any briefs or statements in support of the motion shall be filed by the same date.