Dattco, Inc.

National Labor Relations Board - Board Decisions

May 12, 1998

325 N.L.R.B. 138 (N.L.R.B. 1998)

1
325 NLRB No. 138
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Dattco, Inc. and Teamsters Local Union No. 443,
International Brotherhood of Teamsters, AFL–
CIO. Case 34–CA–8241
May 12, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
Pursuant to a charge filed on February 24, 1998, the
General Counsel of the National Labor Relations
Board issued a complaint on March 19, 1998, alleging
that the Respondent has violated Section 8(a)(5) and
(1) of the National Labor Relations Act by refusing the
Union’s request to bargain following the Union’s cer-
tification in Case 34–RC–1516. (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 com-
plaint.
On April 13, 1998, the Acting General Counsel filed
a Motion for Summary Judgment. On April 14, 1998,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed a re-
sponse.
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 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.
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).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Connecticut
corporation with a main office located in New Britain,
Connecticut, and facilities in other locations in Con-
necticut, including a facility in North Branford, Con-
necticut, has been engaged in providing inter- and
intra-state charter services and local school transpor-
tation within the State of Connecticut. During the 12-
month period ending December 31, 1997, the Re-
spondent, in conducting its operations, derived gross
revenues in excess of $500,000 and purchased and re-
ceived at its North Branford, Connecticut facility
goods valued in excess of $50,000 directly from points
outside the State of Connecticut. We find that the Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held December 19, 1997, the
Union was certified on December 30, 1997, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time drivers em-
ployed by the Employer at its North Branford,
Connecticut facility; but excluding all other em-
ployees, the terminal manager, the dispatcher, and
guards, professional employees and other super-
visors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since January 26, 1998, the Union has requested the
Respondent to bargain and, since that date, the Re-
spondent 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.
CONCLUSION OF LAW
By refusing on and after January 26, 1998, 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.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.’’
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 serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent 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, Dattco, Inc., New Britain, Connecticut, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters Local Union
No. 443, International Brotherhood of Teamsters,
AFL–CIO as the exclusive 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 Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time drivers em-
ployed by the Employer at its North Branford,
Connecticut facility; but excluding all other em-
ployees, the terminal manager, the dispatcher, and
guards, professional employees and other super-
visors as defined in the Act.
(b) Within 14 days after service by the Region, post
at its facility in North Branford, Connecticut, copies of
the attached notice marked ‘‘Appendix.’’1 Copies of
the notice, on forms provided by the Regional Director
for Region 34 after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 no-
tices 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 pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since January 26, 1998.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. May 12, 1998
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
Wilma B. Liebman, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER HURTGEN, dissenting.
I dissented in the underlying representation proceed-
ing. I would have granted review and reversed the Re-
gional Director’s unit determination. I also would have
overruled Dattco, Inc., 324 NLRB No. 53 (Aug. 25,
1997) (Dattco I). Accordingly, I would deny the Mo-
tion for Summary Judgment.
Dated, Washington, D.C. May 12, 1998
llllllllllllllllll
Peter J. Hurtgen, Member
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
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 Teamsters
Local Union No. 443, International Brotherhood of
Teamsters, AFL–CIO as the exclusive representative of
the employees in the bargaining unit.
3DATTCO, INC.
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 full-time and regular part-time drivers em-
ployed by us at our North Branford, Connecticut
facility; but excluding all other employees, the
terminal manager, the dispatcher, and guards, pro-
fessional employees and other supervisors as de-
fined in the Act.
DATTCO, INC.