FedEx FREIGHT INC.

762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FedEx Freight, Inc. and International Brotherhood of Teamsters, Local 701. Case 22–CA–146653 May 19, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS JOHNSON AND MCFERRAN This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed by International Brotherhood of Teamsters, Local 701 (the Union) on February 19, 2015, the General Counsel issued the com- plaint on March 4, 2015, alleging that FedEx Freight, Inc. (the Respondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request for recog- nition and to bargain following the Union’s certification in Case 22–RC–134873. (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 of the complaint, and asserting certain affirmative defenses. On March 25, 2015, the General Counsel filed a Mo- tion for Summary Judgment. On March 27, 2015, 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, in which it requested that the Board clarify the record to include additional evidence. The General Counsel filed an opposition to the Respondent’s request to clarify the record. 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 Union’s certification on the basis of its arguments, raised and rejected in the representation proceeding, that the certified bargaining unit is inappro- priate because it excludes the Respondent’s dockwork- ers. 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.1 We 1 The Respondent requests that the Board “clarify” the record in the representation proceeding by admitting into evidence a report purport- 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, an Arkansas corporation, has been engaged in interstate transportation of less than truckload commodity freight, with an end-of- the-line terminal located at 9 Distribution Way, Mon- mouth Junction, New Jersey. During the 12-month period preceding issuance of the complaint, the Respondent derived gross revenues in excess of $50,000 directly from enterprises located out- side the State of New Jersey. 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 is a labor organization within the meaning of Section 2(5) of the Act. edly detailing the hours worked by city drivers, road drivers, and dockworkers at other “non-domiciled” locations for the time period of February 1 to July 31, 2014. The Respondent made the same request in FedEx Freight, Inc., 362 NLRB No. 74 (2015) (not reported in Board volumes). Here, as there, we shall treat the request as a motion to reo- pen the representation proceeding record. Further, here, as there, the request is denied. The proffered information does not constitute newly discovered and previously unavailable evidence, nor would the evi- dence, if adduced, establish special circumstances. A party seeking to introduce new evidence after the record of a rep- resentation proceeding has closed must establish that (1) the evidence existed but was unavailable to the party before the close of the hearing; (2) the evidence would have changed the result of the proceeding; and (3) it moved promptly upon discovery of the evidence. Manhattan Center Studios, 357 NLRB 1677, 1679 (2011); Rules and Regulations, Sec. 102.65(e). To qualify as newly discovered evidence, such evi- dence must have been in existence at the time of the representation hearing and could not have been discovered by reasonable diligence. Crew One Productions, 362 NLRB 26, 26 fn. 1 (2015); Manhattan Center Studios, 357 NLRB at 1679. The evidence the Respondent proffers is merely an expansion of the same class of information (i.e., dock work performed by the city drivers and road drivers during the period of February 1 to July 31, 2014) that the Respondent presented during the representation case proceeding. Here, the proffered evi- dence concerns facts that were in existence at the time of the represen- tation hearing and it is offered in support of the same arguments by the Respondent that were fully litigated at the hearing and subsequently rejected. The Respondent has not submitted any reason why this addi- tional evidence was unavailable during the course of the hearing or why it could not have been discovered with reasonable diligence. Further, the Respondent has failed to establish that the proffered evidence, if adduced, would change the result in the representation proceeding and has additionally failed to establish that it moved promptly to present this evidence. 362 NLRB No. 91 FEDEX FREIGHT, INC. 763 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following a representation election held on October 31, 2014, the Union was certified on November 12, 2014, as the exclusive collective-bargaining representa- tive of employees in the following appropriate unit: All full-time and regular part-time Road Drivers and City Drivers; excluding all other employees, Dock- workers, Supplemental Dockworkers, Mechanics, building maintenance employees, office clerical em- ployees, and guards and supervisors as defined by 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 By letter dated January 20, 2015, the Union requested that the Respondent recognize it and bargain with it as the exclusive collective-bargaining representative of the unit employees. Since about January 20, 2015, the Re- spondent has failed and refused to do so. We find that this failure and refusal constitutes an un- lawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since January 20, 2015, 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 employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certification as beginning the date that the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, FedEx Freight, Inc., Monmouth Junction, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Brotherhood of Teamsters, Local 701 as the exclusive collective-bargaining representative of 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 effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive collective-bargaining representative of the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time Road Drivers and City Drivers; excluding all other employees, Dock- workers, Supplemental Dockworkers, Mechanics, building maintenance employees, office clerical em- ployees, and guards and supervisors as defined by the Act. (b) Within 14 days after service by the Region, post at its facility in Monmouth Junction, New Jersey, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electron- ically, such as by email, posting on an intranet or an in- ternet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- 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 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 764 plicate 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 January 20, 2015. (c) Within 21 days after service by the Region, file with the Regional Director for Region 22 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that 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 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 701 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 listed above. 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 Road Drivers and City Drivers; excluding all other employees, Dock- workers, Supplemental Dockworkers, Mechanics, building maintenance employees, office clerical em- ployees, and guards and supervisors as defined by the Act. FEDEX FREIGHT, INC. The Board’s decision can be found at www.nlrb.gov/case/22-CA-146653 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.