Acme Bus Corp.

National Labor Relations Board - Board Decisions

Jun 20, 1995

317 N.L.R.B. 887 (N.L.R.B. 1995)

887
317 NLRB No. 136
ACME BUS CORP.
Acme Bus Corp., Brookbus Bus Corp., Bauman &
Sons Buses, Inc., Alert Coach Lines, Inc., a
Single Employer and Local 868, International
Brotherhood of Teamsters, AFL–CIO. Case 29–
CA–18973
June 20, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
Upon a charge filed on March 10, 1995, the General
Counsel of the National Labor Relations Board issued
a complaint and notice of hearing on April 12, 1995,
alleging that the Respondent has violated Section
8(a)(5) and (1) of the National Labor Relations Act by
refusing the request to bargain by Local 868, Inter-
national Brotherhood of Teamsters, AFL–CIO and Dis-
trict Lodge 15, International Association of Machinists
and Aerospace Workers, AFL–CIO (Joint Petitioners),
following their certification in Cases 29–RC–8162 and
29–RC–8167. (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
denying in part the allegations in the complaint.
On May 12, 1995, the General Counsel filed a Mo-
tion for Summary Judgment. On May 16, 1995, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. On June 9, 1995, the Respond-
ent filed a response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer and response to the Notice to Show
Cause, the Respondent admits that the Joint Petitioners
were certified as the exclusive collective-bargaining
representative of the unit, but attacks the validity of
the certification on the basis of its objections to con-
duct alleged to have affected the results of the election
in the representation proceeding. In addition, the Re-
spondent’s answer asserts that the Joint Petitioners’
bargaining request was improper inasmuch as the Joint
Petitioners have ‘‘consistently bypassed the designated
representative of the Respondent in violation of [Sec.
8(b)(1) and (3)],’’ and also denies that the Respondent
has refused to bargain with the Joint Petitioners.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find that no issue warranting a hearing is
raised by the Respondent’s contentions regarding the
Joint Petitioners’ bargaining request and the Respond-
ent’s refusal to bargain. The Respondent’s answer ad-
mits that the Joint Petitioners sent a letter dated Feb-
ruary 27, 1995, to the Respondent’s vice president re-
questing bargaining. Although the Respondent’s an-
swer asserts that the demand was improper and there-
fore ineffective because it was not sent to Respond-
ent’s designated representative, we reject this assertion
as without merit. See S. E. Nichols Co., 156 NLRB
1201, 1212 (1966). Further, it is clear that the Re-
spondent is in fact refusing to bargain. A copy of the
letter that Respondent’s attorney subsequently sent to
the Joint Petitioners acknowledging receipt of the Joint
Petitioners’ February 27, 1995 letter and stating that
Respondent ‘‘will continue to seek judicial relief’’ is
attached to the General Counsel’s motion, and the Re-
spondent has not disputed the authenticity of that docu-
ment in response to the Notice to Show Cause. Rather,
the Respondent’s answer denies the allegation that it
has refused to bargain since February 27, 1995, and
the Respondent’s response to the Notice to Show
Cause contests the General Counsel’s Motion for Sum-
mary Judgment, solely on the basis of the Respond-
ent’s objections to the election. In these circumstances,
we find that the Respondent has unlawfully refused to
bargain as alleged in the complaint. Cf. Albright &
Zimmerman, 261 NLRB 1035 (1982). Accordingly, we
grant the General Counsel’s Motion for Summary
Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, each of the Respondent’s con-
stituent companies, Acme Bus Corp., Brookset Bus
Corp., Baumann & Sons Buses, Inc., and Alert Coach
Lines, Inc., are and have been New York corporations,
with their principal office and place of business collec-
tively located at 3355 Veterans Memorial Highway,
Ronkonkoma, New York (Ronkon- koma location),
where they have been engaged in providing bus trans-
portation services for various school districts, private
organizations, and for the general public and with bus
yards in Bohemia, Northport, Jericho, and West-
hampton, New York.
During the past calendar year, the Respondent, in
the course and conduct of its business operations, de-
rived gross revenues in excess of $250,000 and pur-
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
chased and received at its Ronkonkoma, New York fa-
cility products, goods, and materials valued in excess
of $50,000 from other enterprises located directly out-
side the State of New York.
At all times material, each of the Respondent’s con-
stituent companies, Acme Bus Corp., Brookset Bus
Corp., Baumann & Sons Buses, Inc., and Alert Coach
Lines, Inc., have been affiliated business enterprises
with common officers, ownership, directors, manage-
ment, and supervision; have formulated and adminis-
tered a common labor policy affecting employees of
said operations; have shared common premises and fa-
cilities; have provided services for and made sales to
each other; have interchanged personnel with each
other; and have held themselves out to the public as
a single integrated business enterprise. By virtue of its
foregoing operations, the Respondent’s constituent
companies collectively constitute a single integrated
business enterprise and a single employer within the
meaning of the Act.
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 Joint Petitioners are
labor organizations within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held July 30, 1993, the Joint
Petitioners were certified on February 10, 1995, as the
collective-bargaining representative of the employees
in the following appropriate unit:
Included: All full-time and regular part-time
drivers, drivers’ assistants and mechanics em-
ployed by Respondent at its Bohemia, Northport,
Westbury/Jericho and Westhampton locations.
Excluded: All other employees, office clerical
employees, guards and supervisors as defined in
the Act.
The Joint Petitioners continue to be the exclusive rep-
resentative under Section 9(a) of the Act.
B. Refusal to Bargain
About February 27, 1995, the Joint Petitioners, by
letter, requested the Respondent to bargain and, since
about the same date, 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.
CONCLUSION OF LAW
By refusing on and after February 27, 1995, to bar-
gain with the Joint Petitioners as the exclusive collec-
tive-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 Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Joint
Petitioners, and, if an understanding is reached, to em-
body the understanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification as beginning the date the Respondent
begins to bargain in good faith with the Joint Petition-
ers. 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, Acme Bus Corp., Brookset Bus Corp.,
Baumann & Sons Buses, Inc., Alert Coach Lines, Inc.,
a single employer, Ronkonkoma, New York, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 868, International
Brotherhood of Teamsters, AFL–CIO/District Lodge
15, International Association of Machinists and Aero-
space Workers, AFL–CIO, Joint Petitioners, as the ex-
clusive bargaining representative of the employees in
the bargaining unit.
(b) In any like or related manner interfering with,
restraining, 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 Joint Petitioners as
the exclusive representative of the employees in the
following appropriate unit on terms and conditions of
employment, and if an understanding is reached, em-
body the understanding in a signed agreement:
Included: All full-time and regular part-time
drivers, drivers’ assistants and mechanics em-
ployed by Respondent at its Bohemia, Northport,
Westbury/Jericho and Westhampton locations.
Excluded: All other employees, office clerical
employees, guards and supervisors as defined in
the Act.
889ACME BUS CORP.
1 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
National 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.’’
(b) Post at its facility in Ronkonkoma, New York,
copies of the attached notice marked ‘‘Appendix.’’1
Copies of the notice, on forms provided by the Re-
gional Director for Region 29 after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, 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 Re-
spondent 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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Local 868,
International Brotherhood of Teamsters, AFL–CIO/-
District Lodge 15, International Association of Ma-
chinists and Aerospace Workers, AFL–CIO, Joint Peti-
tioners, as the exclusive representative of the employ-
ees 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 Joint Peti-
tioners and put in writing and sign any agreement
reached on terms and conditions of employment for
our employees in the bargaining unit:
Included: All full-time and regular part-time
drivers, drivers’ assistants and mechanics em-
ployed by us at our Bohemia, Northport, West-
bury/Jericho and Westhampton locations.
Excluded: All other employees, office clerical
employees, guards and supervisors as defined in
the Act.
ACME BUS CORP., BROOKSET BUS
CORP., BAUMANN & SONS, BUSES, INC.,
ALERT COACH LINES, INC., A SINGLE
EMPLOYER