Atlantic Paratrans of N.Y.C., Inc.

National Labor Relations Board - Board Decisions

Feb 28, 2007

349 N.L.R.B. 44 (N.L.R.B. 2007)

349 NLRB No. 44
Atlantic Paratrans of N.Y.C., Inc. and Transport
Workers Union of America, AFL–CIO. Case 29–
CA–27916
February 28, 2007
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 September 21, 2006,
the General Counsel issued the complaint on October 27,
2006, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union certification in Case 29–
RC–10316. (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(b);
Frontier 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 December 4, 2006, the General Counsel filed a
Motion for Summary Judgment. On December 14, 2006,
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.
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 conten-
tions in the underlying representation proceeding that
dispatchers are statutory supervisors.1

1 The Respondent’s answer denies that the Union is a labor organiza-
tion, denies that the Union demanded bargaining, and asserts as an
affirmative defense that the Union is excluded from coverage under the
NLRA, and that the Board therefore lacks jurisdiction. The General
Counsel moves to strike those portions of the Respondent’s answer as
frivolous, asserting that there are no grounds to support these denials,
and that the Respondent answered falsely, denying allegations that it
knew to be true.
In its opposition to the General Counsel’s motion, the Respondent
argues that it had a legitimate ground on which to deny the Union’s
labor organization status, because of the “inconsistency” as to the iden-
tity of the Union that was created when it received a December 15,
2005 request for information from the Union that indicated that the
“TWU International” and “Local 252, TWU” had received carbon-
copies of the letter, and when an employee filed an unfair labor practice
charge alleging that he was terminated because of his support for “Lo-
cal 100 TWU.” The Respondent further argues that because of the
above circumstances, it did not know the precise nature of the party
speaking on behalf of the unit in the requests for bargaining, and there-
fore could not admit in its answer that a request to bargain was made by
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).
Accordingly, we grant the Motion for Summary Judg-
ment, and will order the Respondent to bargain with the
Union.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a domestic cor-
poration with its principal office and place of business
located at 58-75 Maurice Avenue, Maspeth, New York,
has been an independently operated subsidiary of Atlan-
tic Express Transportation Group, providing transporta-
tion services to disabled individuals, and those individu-
als who, due to a physical ailment or impediment, cannot
utilize public transportation, throughout the five bor-
oughs of New York City.
Annually, in the course and conduct of its business op-
erations described above, the Respondent derived reve-

the designated representative. The Respondent then offers to amend its
answer to admit the previously-denied allegations.
There is no possibility of confusion or inconsistency with respect to
the identity of the certified exclusive collective-bargaining representa-
tive. The Respondent stipulated in the underlying representation pro-
ceeding that the Transport Workers Union of America was a labor
organization within the meaning of the Act. On December 28, 2005,
the certification of representative was issued in the name of “Transport
Workers Union of America, AFL–CIO.” Two requests to bargain were
made of the Respondent on behalf of the Transport Workers Union.
With respect to the Respondent’s denial of the Union’s request for
bargaining, the General Counsel has submitted with his motion copies
of this letter evidencing the Union's request. The Respondent has not
disputed the authenticity of that correspondence, or asserted any argu-
ment whatsoever in support of its denial.
Sec. 102.21 states in pertinent part “[i]f an answer . . . is signed with
intent to defeat the purpose of this rule, it may be stricken as sham and
false and the action may proceed as though the answer had not been
served.” In light of the uncontroverted facts presented above, and the
Respondent’s offer to amend its answer to admit the denied facts, we
find that the denials in the Respondent’s answer with respect to the
Union’s status as a labor organization and the Union’s demands for
bargaining are frivolous, and we grant the General Counsel’s motion to
strike these portions of the Respondent’s answer. See Superior Indus-
tries International, Inc., 295 NLRB 320 (1989).
Inasmuch as the Respondent is willing to amend its answer in rele-
vant part, Chairman Battista finds it unnecessary to pass on the issue of
whether the original answer was frivolous.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
nues in excess of $250,000 and purchased and received
at its New York facility goods and services valued in
excess of $5000 directly from points located outside the
State of New York.
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 representation election held April 1,
2005, the Union was certified on December 28, 2005, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time dispatchers, exclud-
ing all other employees, managers and supervisors as
defined in Section 2(11) of the Act.
The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
By letters dated December 15, 2005 and July 31, 2006,
the Union requested the Respondent to bargain with it
and to commence negotiations for a first contract. About
August 30, 2006, by letter, the Respondent informed the
Union that it would not bargain because it refused to rec-
ognize the Union as the bargaining representative of its
dispatcher employees. We find that this failure and re-
fusal constitutes an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on August 30, 2006, to bargain with the
Union as the exclusive collective-bargaining representa-
tive 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 Sec-
tion 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 from failing and refusing to recognize and bargain
with the Union, 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 law, we shall construe the initial period of the certifi-
cation 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); and 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, Atlantic Paratrans of N.Y.C., Inc., Maspeth,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Transport Workers Union of America, 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, recognize and bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody
the agreement in a signed agreement:
All full-time and regular part-time dispatchers, exclud-
ing all other employees, managers and supervisors as
defined in Section 2(11) of the Act.
(b) Within 14 days after service by the Region, post at
its facility in Maspeth, New York, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
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 August 30, 2006.

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.”
ATLANTIC PARATRANS OF N.Y.C., INC. 3
(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.
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 Transport Workers Union of America, AFL–CIO,
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, recognize and bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the following bargaining unit:
All full-time and regular part-time dispatchers, exclud-
ing all other employees, managers and supervisors as
defined in Section 2(11) of the Act.
ATLANTIC PARATRANS OF N.Y.C., INC.