Trans Tech Logistics, Inc.

National Labor Relations Board - Board DecisionsAug 21, 2003

339 N.L.R.B. 133 (N.L.R.B. 2003)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Trans Tech Logistics, Inc. and District Lodge 57, In- ternational Association of Machinists and Aero- space Workers, AFL–CIO. Case 8–CA–34208–1 August 21, 2003 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER 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 April 28, 2003, the General Counsel issued the complaint on May 22, 2003, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bar- gain following the Union’s certification in Case 8–RC– 16325. (Official notice is taken of the “record” in the representation proceeding as defined in the Board’s Rules and Regulations, Sec. 102.68 and 102.69(g); Fron- tier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint and asserting affirmative defenses. On July 22, 2003, the General Counsel filed a Motion for Summary Judgment and brief in support. On July 24, 2003, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. On August 7, 2003, the Respondent 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 The Respondent admits its refusal to bargain, but con- tests the validity of the certification based on its objec- tions to the election in the representation proceeding.1 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.2 1 The Respondent’s answer also denies that the certified unit is ap- propriate. The Respondent, however, stipulated that this unit was ap- propriate in the underlying representation proceeding. Any questions regarding the appropriateness of the unit could and should have been raised in the representation proceeding. Chardon Rubber Co., 335 NLRB 1189 fn. 1 (2001); Wintz Distribution Co., 317 NLRB 284 fn. 1 (1995), enfd. mem. 103 F.3d 130 (6th Cir. 1996). On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware cor- poration, has had an office and place of business in Toledo, Ohio (the Respondent’s facility), where it is en- gaged in the business of transporting chemicals and other commodities. Annually, the Respondent, in conducting its business operations described above, derives gross revenues in excess of $50,000 for the transportation of freight from the State of Ohio directly to points outside the State of Ohio. 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. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held March 29, 2002, the Union was certified on September 26, 2002, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time truck drivers em- ployed by the Respondent at its facility located at 1420 Matzinger Road, Toledo, Ohio 43612, but excluding all office clerical employees, managerial employees, professional employees, guards and supervisors as de- fined in the Act, and all other employees. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since about March 29, 2002, and thereafter, the Union, by letters, has requested the Respondent to bargain col- lectively, and, since about the same date, the Respondent has refused to do so. We find that the Respondent has 2 The Respondent’s request for reconsideration of the Board’s deci- sion in the representation proceeding is therefore denied. Chairman Battista and Member Schaumber did not participate in the underlying representation proceeding. However, they agree that the Respondent has not raised any new matters or special circumstances warranting a hearing in this proceeding or reconsideration of the deci- sion in the representation proceeding, and that summary judgment is appropriate. 339 NLRB No. 133 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 thereby unlawfully refused to bargain in violation of Sec- tion 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after March 29, 2002, to bargain with the Union as the exclusive collective- bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices 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). ORDER The National Labor Relations Board orders that the Respondent, Trans Tech Logistics, Inc., Toledo, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with District Lodge 57, Inter- national Association of Machinists and Aerospace Work- ers, AFL–CIO, as the exclusive bargaining representative of the employees 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 exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time truck drivers em- ployed by the Respondent at its facility located at 1420 Matzinger Road, Toledo, Ohio 43612, but excluding all office clerical employees, managerial employees, professional employees, guards and supervisors as de- fined in the Act, and all other employees. (b) Within 14 days after service by the Region, post at its facility in Toledo, Ohio, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent’s authorized representa- tive, 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. Reasonable steps shall be taken by the Respon- dent to ensure 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 facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since March 29, 2002. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. August 21, 2003 ______________________________________ Robert J. Battista, Chairman ______________________________________ Wilma B. Liebman, Member ______________________________________ Peter C. Schaumber, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 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.” TRANS TECH LOGISTICS, INC. 3 Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT refuse to bargain with District Lodge 57, International Association of Machinists and Aerospace Workers, 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 bar- gaining unit: All full-time and regular part-time truck drivers em- ployed by us at our facility located at 1420 Matzinger Road, Toledo, Ohio 43612, but excluding all office clerical employees, managerial employees, professional employees, guards and supervisors as defined in the Act, and all other employees. TRANS TECH LOGISTICS, INC.