Gross Bus Company

356 NLRB No. 81 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Sec- retary, National Labor Relations Board, Washington, D.C. 20570, of any ty- pographical or other formal errors so that corrections can be included in the bound volumes. Gross School Bus Service, Inc. and International Brotherhood of Teamsters, Local 384. Case 4–CA–37768 January 21, 2011 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND PEARCE 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 proceed- ing. Pursuant to a charge filed on October 26, 2010, the Acting General Counsel issued the complaint on No- vember 12, 2010, alleging that the Respondent has vio- lated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certifi- cation in Case 4–RC–21631. (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 deny- ing in part the allegations in the complaint. On November 30, 2010, the Acting General Counsel filed a Motion for Summary Judgment and a memoran- dum in support. On December 3, 2010, 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 reply. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification on the basis of its objections to conduct alleged to have affected the results of the election in the representation case. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Pennsylvania corporation with a facility at 1801 Pottstown Pike, Potts- town, Pennsylvania (the facility), and headquarters in Bechtelsville, Pennsylvania, has been engaged in provid- ing student transportation services. During the 12-month period preceding issuance of the complaint, the Respon- dent, in conducting its business operations described above, received gross revenues in excess of $250,000, and purchased and received at the facility goods valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania.1 We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union, International Brother- hood of Teamsters, Local 384, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on January 22, 2010, the Union was certified on September 14, 2010, as the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: All full-time and regular part-time bus drivers and bus aides employed by Respondent at its 1801 Pottstown Pike, Pottstown, Pennsylvania facility but excluding all other employees, dispatchers, managerial employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain About September 27, 2010, the Union, by letter, re- quested the Respondent to recognize and bargain with it as the exclusive collective-bargaining representative of the unit. About October 21, 2010, the Respondent, by letter, advised the Union that it would not recognize and bargain with the Union as the exclusive collective- 1 The Respondent denies par. 2(b) of the complaint, which alleges that the Respondent meets the above-stated jurisdictional standards. However, the Respondent admits the allegations in complaint par. 2(c) that it has been an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. Further, in the underlying repre- sentation proceeding, the Respondent stipulated that it meets the above- stated jurisdictional standards and that it is an employer engaged in commerce under the Act. Accordingly, we find that the Respondent’s denial of the factual basis for asserting jurisdiction under the Act does not raise any issues warranting a hearing. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 bargaining representative of the unit. We find that this failure and refusal constitutes an unlawful failure and refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since October 21, 2010, to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining 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 the law, we shall construe the initial period of the cer- tification 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). ORDER2 The National Labor Relations Board orders that the Respondent, Gross School Bus Service, Inc., Pottstown and Bechtelsville, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Brotherhood of Teamsters, Local 384 as the exclusive collective-bargaining representative of the em- ployees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, 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 ef- fectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit on terms and conditions of 2 Consistent with our recently issued decision in J. Picini Flooring, 356 NLRB No. 9 (2010), we have ordered the Respondent to distribute the notice electronically if it is customarily communicating with em- ployees by such means. employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time bus drivers and bus aides employed by Respondent at its 1801 Pottstown Pike, Pottstown, Pennsylvania facility but excluding all other employees, dispatchers, managerial employ- ees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facilities in Pottstown and Bechtelsville, Pennsylvania, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent’s au- thorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physical posting of pa- per notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to en- sure that the notices 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 facilities involved in these proceed- ings, 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 Respondent at any time since October 21, 2010. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsi- ble official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. January 21, 2011 Wilma B. Liebman, Chairman Craig Becker, Member Mark Gaston Pearce, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” GROSS SCHOOL BUS SERVICE 3 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with International Brotherhood of Teamsters, Local 384 as the exclusive collective-bargaining 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 fol- lowing bargaining unit: All full-time and regular part-time bus drivers and bus aides employed by us at our 1801 Pottstown Pike, Pottstown, Pennsylvania facility but excluding all other employees, dispatchers, managerial employees, guards and supervisors as defined in the Act. GROSS SCHOOL BUS SERVICE, INC.