C. C. Eastern, Inc.

National Labor Relations Board - Board Decisions

Feb 7, 1994

313 N.L.R.B. 632 (N.L.R.B. 1994)

632
313 NLRB No. 94
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See Southwestern Bell Telephone Co., 235 NLRB 963 fn. 2
(1978). Thus, neither the bonus system change nor the fact that two
of the unit employees are alleged to have assumed entrepreneurial
duties warrants additional hearing on the Respondent’s unit conten-
tions.
2 The Respondent denies the jurisdictional facts allegation in its
answer to the complaint, but admits that it is engaged in commerce
within the meaning of the Act. The Board in the underlying rep-
resentation proceeding affirmed the Regional Director’s findings,
with respect to jurisdiction, and review of that aspect of the Regional
Director’s decision was not requested of the Board. The Respondent
does not raise any issues of jurisdiction in its response to the Notice
to Show Cause. Therefore, having admitted that it is engaged in
commerce but denying only jurisdictional facts which have pre-
viously been found by the Regional Director, the Respondent’s de-
nial does not warrant a hearing.
C. C. Eastern, Inc. and Local 701, International
Brotherhood of Teamsters, AFL–CIO. Case 22–
CA–19042
February 7, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On April 23, 1993, the General Counsel of the Na-
tional Labor Relations Board issued a complaint and
notice of hearing alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act by refusing the Union’s request to bargain
following the Union’s certification in Case 22–RC–
10594. (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 Respond-
ent filed an answer admitting in part and denying in
part the allegations in the complaint.
On November 19, 1993, the General Counsel filed
a Motion to the National Labor Relations Board for
Summary Judgment and memorandum in support. On
November 26, 1993, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted.
The Respondent filed a response.
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 the Board’s unit determination in the rep-
resentation proceeding. The Respondent alleges as af-
firmative defenses that it has no duty to bargain be-
cause the unit consists solely of individuals who are
independent contractors and not ‘‘employees’’ within
the meaning of the Act and that subsequent changes
and additional facts took place prior to the certification
of the Union which the Regional Director failed to
consider and this constituted a denial of due process.
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.1 We therefore find that the Respondent has
not raised any representation issue that is properly lit-
igable in this unfair labor practice proceeding. See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941). Accordingly, we grant the Motion for
Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and
place of business in North Brunswick, New Jersey, has
been engaged in the interstate transport of commercial
freight.
During the 12-month period preceding issuance of
the complaint, the Respondent, in conducting its busi-
ness operations, derived gross revenues in excess of
$50,000 for the transport of freight from the State of
New Jersey directly to points outside the State of New
Jersey.2
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 organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held April 24, 1992, the
Union was certified on January 28, 1993, as the collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All drivers employed by the Employer at its
North Brunswick, New Jersey facility, but exclud-
ing all dispatchers, dock workers, mechanics, of-
fice clerical employees, guards and supervisors as
defined in the Act, and all other employees.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since February 3, 1993, the Union has requested the
Respondent to bargain and, since February 3, 1993, the
Respondent has refused. We find that this refusal con-
stitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
633C.C. EASTERN, INC.
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
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.’’
CONCLUSION OF LAW
By refusing on and after February 3, 1993, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 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 Union,
and, if an understanding is reached, to embody the un-
derstanding 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 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, C.C. Eastern, Inc., North Brunswick, New
Jersey, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Local 701, International
Brotherhood of Teamsters, AFL–CIO as the exclusive
bargaining representative of the employees in the fol-
lowing appropriate bargaining unit.
All drivers employed by the Employer at its
North Brunswick, New Jersey facility, but exclud-
ing all dispatchers, dock workers, mechanics, of-
fice clerical employees, guards and supervisors as
defined in the Act, and all other employees.
(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 Union as the exclu-
sive representative of the employees in the unit on
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement.
(b) Post at its facility in North Brunswick, New Jer-
sey, copies of the attached notice marked ‘‘Appen-
dix.’’3 Copies of the notice, on forms provided by the
Regional Director for Region 22, after being signed by
the Respondent’s 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 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 701,
International Brotherhood of Teamsters, 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 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 bargaining unit:
All drivers employed by us at our North Bruns-
wick, New Jersey facility, but excluding all dis-
patchers, dock workers, mechanics, office clerical
employees, guards and supervisors as defined in
the Act, and all other employees.
C. C. EASTERN, INC.