Care Cabs od Madison, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1980

247 N.L.R.B. 986 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Care Cabs of Madison, Inc. and Drivers, Salesmen,
Warehousemen, Milk Processors, Cannery, Dairy
Employees and Helpers Union Local No. 695,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America. Case 30-CA-5156
February 8, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
Upon a charge filed on March 28, 1979, by Drivers,
Salesmen, Warehousemen, Milk Processors, Cannery,
Dairy Employees and Helpers Union Local No. 695,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of Amer-
ica, herein called the Union, and duly served on Care
Cabs of Madison, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region 30,
issued a complaint on April 4, 1979, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge and
complaint were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 17,
1979, following a Board election in Case 30-RC-3459,
the Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate;' and that,
commencing on or about March 17, 1979, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On April 16, 1979, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On May 2, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, with exhibits attached. Subsequently, on
May 9, 1979, the Board issued an order transferring
the proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Summa-
' Official notice is taken of the record in the representation proceeding, Case
30-RC-3459, as the term "record" is defined in Sees. 102.68 and 102.6
9(g) of
the Board's Rules and Regulations, Series 8, as amended. See LTV
Ehlctroywsems, Inc.. 166 NLRB 938 (1967), enfd. 388 F2d 683 4th Cir.
1968): Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd. 415 F.2d 26
247 NLRB No. 129
ry Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, Respondent admits
most of the operative factual allegations of the
complaint, but denies that it received the instant
charge, and denies that its operations fall within the
Board's jurisdiction.2 Respondent also denies the
conclusionary allegations that it violated Section
8(a)(5) and (1) of the Act by refusing to bargain with
the Union. The General Counsel contends that Re-
spondent did receive a copy of the charge, and that
Respondent is subject to the Board's jurisdiction.
Consequently, the General Counsel contends that
Respondent violated the Act by refusing to comply
with its duty to bargain with the Union, and that
Respondent is improperly seeking to relitigate issues
which were raised and decided or which could have
been raised and decided in the representation case. We
agree with the General Counsel.
Review of the record herein, including that in the
underlying representation proceeding (Case 30-RC-
3459), shows that the election was held on January 9,
1979, pursuant to a Decision and Direction of Election
of the Acting Regional Director dated December 12,
1978, and after Respondent's request for review of the
aforementioned decision was denied on January 8,
1979. The election resulted in a vote of 11 for, and 6
against, the Union; there were no challenged ballots.
No objections to the election were filed, and the
Regional Director issued a Decision and Certification
of Representative on January 17, 1979, certifying the
Union as the collective-bargaining representative of
the employees in the bargaining unit found appropri-
ate.
With respect to Respondent's various assertions, we
note first that, with regard to receipt of the charge
herein, Respondent was served with the charge by
registered mail on March 29, 1979.
Second, with respect to Respondent's assertions in
its answer to the complaint and in its response to the
Notice To Show Cause dated May 23, 1979, regarding
(5th Cir. 1969); Intertype Co. v. Pendllo. 269 F.Supp. 573 (D.C.Va. 19t7)
Follelt Corp.., 164 NLRB 378 (1967)., enfd 397 F.2d 91 (7th Cir. 196X): Sec.
9(d) of the NLRA. as amended.
: Respondent also raises this latter argument as an affirmative defense to the
complaint.
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CARE CABS OF MADISON, INC.
jurisdiction, we note that the Acting Regional Direc-
tor, in his decision, fully discussed and determined the
jurisdictional issues. He determined, in essence, that
the Board possessed statutory and discretionary juris-
diction over the operations of Respondent. In doing
so, he found that Respondent and Care Cabs, Inc.,
were a joint employer for jurisdictional purposes, and
that their revenues could be combined to determine
jurisdiction. Combining them, he found that they
exceeded the Board's $250,000 standard for transpor-
tation enterprises and the $500,000 standard for
taxicabs. He also found that the State of Wisconsin did
not exercise such control over Respondent's labor
relations to exempt Respondent from the Board's
jurisdiction. Thereafter, the Board denied Respon-
dent's request for review of that determination.
Therefore, for the reasons fully set forth by the Acting
Regional Director in the underlying representation
proceeding, and for the further reason set forth by the
General Counsel in the Motion for Summary Judg-
ment in support of the Board's statutory jurisdiction,'
we find, as indicated in the section entitled "Conclu-
sions of Law," infra, that Respondent is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled to
relitigate issues which were or could have been
litigated in a prior representation proceeding.'
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered or
previously unavailable evidence, nor does it allege that
any special circumstances exist herein which would
require the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is properly
litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
' As argued by the General Counsel in the Motion for Summary Judgment,
we note that the record in the underlying representation proceeding reveals
that Respondent purchases vehicles from Peters Dodge, a Milwaukee,
Wisconsin. Chrysler Corporation dealership and from other dealerships
within the State of Wisconsin. Further. we hereby take official notice of the
fact that there are no Chrysler Corporation automobile manufacturing plants
in the State of Wisconsin. "Moody's Industrial Manual," vol. I, A-I. 362
(Moody's Investors Service. Inc., 1978). Therefiore, it is apparent that the
vehicles purchased by Respondent in Wisconsin originated from outside
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Wisconsin corporation, whose
principal place of business is in Madison, Wisconsin,
where it is engaged in the business of transportation of
the elderly and the handicapped and also provides bus
transportation to handicapped students to schools
within Dane County, Wisconsin. During the calendar
year preceding issuance of the complaint; a representa-
tive period, Respondent received gross annual reve-
nues in excess of $500,000 and received revenues in
excess of $100,000 directly from the State of Wiscon-
sin. Respondent also purchased and received sufficient
goods directly from suppliers located outside the State
of Wisconsin.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it
will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and we
find that Drivers, Salesmen, Warehousemen, Milk
Processors, Cannery, Dairy Employees and Helpers
Union Local No. 695, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute a
unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time drivers and
mechanics employed by Care Cabs of Madison,
Inc., but excluding office clerical employees,
guards and supervisors as defined in the Act.
Wisconsin. Consequently, as Respondent has purchased goods of more than a
de minimis nature on a continuing basis from a supplier within the State of
Wisconsin, who, in turn, received those goods from outside the State of
Wisconsin. it is clear that the Board's statutory jurisdiction over Respondent
has been further demonstrated. See Golden Doay School. Inc. 236 NLRB 1292
(1978).
'See Pittsburgh Plute Glass Co v. NL.R.B. 313 U.S. 146, 162(1941); Rules
and Regulations of the Board, Secs 102.67(f) and 102.6 9 (c).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The certification
On January 9, 1979, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 30, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on January 17, 1979, and the Union
continues to'be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain and
Respondent's Refusal
Commencing on or about March 8, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
March 17, 1979, and continuing at all times thereafter
to date, Respondent has refused, and continues to
refuse, to recognize and bargain with the Union as the
exclusive representative for collective bargaining of all
employees in said unit.
Accordingly, we find that Respondent has, since
March 17, 1979, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECTS OF THE UNFAIR I.ABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the appro-
priate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representat'e in the appropriate unit. See
Mar-Jac Poultry Company. Inc., 136 NLRB 785
(1962); Commerce Company d/b/a Lamar Hotel, 140
NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir.
1964), cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421 (1964), enfd. 350
F.2d 57 (10th Cir. 1965).
The Board, on the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Care Cabs of Madison, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Drivers, Salesmen, Warehousemen, Milk Proces-
sors, Cannery, Dairy Employees and Helpers Union
Local No. 695, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time drivers and
mechanics employed by Care Cabs of Madison, Inc.,
but excluding office clerical employees, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since January 17, 1979, the above-named labor
organization has been 'and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about March 17, 1979, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in
Section 7 of the Act, and hereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
988
CARE CABS OF MADISON. INC.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Care Cabs of Madison, Inc., Madison, Wisconsin, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates
of pay, wages, hours, and other terms and conditions
of employment with Drivers, Salesmen, Warehouse-
men, Milk Processors, Cannery, Dairy Employees and
Helpers Union Local No. 695, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time drivers and
mechanics employed by Care Cabs of Madison,
Inc., but excluding office clerical employees,
guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a signed
agreement.
(b) Post at its Madison, Wisconsin, place of business
copies of the attached notice marked "Appendix"'
Copies of said notice, on forms provided by the
Regional Director for Region 30, after being duly
signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herein.
MEMBER PENELLO, dissenting:
Contrary to my colleagues, I would decline to assert
jurisdiction over Respondent's operations. Because
Respondent is engaged in providing bus transportation
for handicapped children attending public schools and
transportation for the elderly and handicapped, as
mandated by the State of Wisconsin, Respondent is
intimately connected to a governmental entity that is
excluded by statute from the coverage of the Act, and
thus Respondent shares in the governmental entity's
exemption from coverage. See the dissent in National
Transportation Service, Inc., 240 NLRB 565 (1979).1
Accordingly, I would deny the Motion for Summary
Judgment and dismiss the complaint.
' In the event that this Order is enforced b 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."
Since I would not assert jurisdiction on other grounds, I find it
unnecessary to determine whether the record contains facts sufficient to
establish the Board's statutory jurisdiction over Respondent's operation.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOr refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Driv-
ers, Salesmen, Warehousemen, Milk Processors,
Cannery, Dairy Employees and Helpers Union
Local No. 695, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, as the exclusive
representative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All full-time and regular part-time drivers and
mechanics employed at our Madison, Wiscon-
sin, place of business, but excluding office
clerical employees, guards, and supervisors as
defined in the Act.
CARE CABS OF MADISON, INC.
989