Direct Transit

National Labor Relations Board - Board Decisions

Feb 17, 1993

310 N.L.R.B. 466 (N.L.R.B. 1993)

466
310 NLRB No. 61
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 309 NLRB 697.
2 The judge granted the bargaining order in par. 2(c) of his rec-
ommended Order, and the Board adopted it.
3 The second sentence of fn. 1 of the Decision and Order is modi-
fied to read as follows: ‘‘The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed exceptions and a brief
in support of the judge’s decision.’’
Direct Transit, Inc. and Teamsters Local Union No.
166 a/w International Brotherhood of Team-
sters, AFL–CIO. Case 31–CA–19095
February 17, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 30, 1992, the National Labor Rela-
tions Board issued its Decision and Order in this pro-
ceeding adopting the judge’s finding that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by, inter
alia, closing its Daggett, California facility and laying
off indefinitely all of its bargaining unit employees be-
cause of their actions in pursuing union representa-
tion.1 The Board further adopted the judge’s rec-
ommendation that a bargaining order was warranted to
remedy the Respondent’s unfair labor practices.
On December 4, 1992, counsel for the General
Counsel moved that the Board reconsider and modify
its Decision and Order. On December 11, 1992, the
Respondent filed an opposition to counsel for the the
General Counsel’s motion.
In her motion, counsel for the General Counsel
avers, with supporting documentation, that she simulta-
neously filed with the Board both a brief in support of
the judge’s decision and exceptions ‘‘challeng[ing] the
Administrative Law Judge’s failure to issue a bar-
gaining order based on Section 8(a)(5) as well as Sec-
tion 8(a)(3) and (1) of the Act.’’ However, counsel for
the General Counsel notes that in footnote 1 of its De-
cision and Order, the Board acknowledged only the fil-
ing of her supporting brief and did not consider or rule
on her exceptions in which she excepted to the judge’s
failure ‘‘to recommend that Respondent be ordered to
cease and desist from refusing to recognize and on re-
quest, bargain with the Charging Party Union . . . .’’
Accordingly, counsel for the General Counsel submits
that in light of her timely filed exceptions, extraor-
dinary circumstances exist as required by Section
102.48(d)(1) of the Board’s Rules and Regulations to
support her motion for a bargaining order and notice
based upon violations of Section 8(a)(5), (3), and (1).
The Respondent argues in opposition that paragraph
2(c) of the Board’s Order already provides for a bar-
gaining order,2 and ‘‘[t]here is no difference in any
material respect between what the General Counsel is
asking the Board to do and what the Board has already
done.’’ Accordingly, the Respondent contends that
counsel for the General Counsel has failed to allege
‘‘extraordinary circumstances’’ or specify ‘‘material
error’’ in the underlying proceeding as required by
Section 102.48 and that her motion must, therefore, be
denied.
We find merit in counsel for the General Counsel’s
motion. With respect to the alleged error in the
Board’s failure to acknowledge in footnote 1 of its de-
cision that counsel for the General Counsel filed ex-
ceptions, the Board’s records show that she filed ex-
ceptions with the Board’s Executive Secretary on the
same day that her brief in support of the judge’s deci-
sion was filed. However, the exceptions were inadvert-
ently not forwarded to the Board for consideration. Ac-
cordingly, we correct footnote 1 of our decision to re-
flect counsel for the General Counsel’s timely filing of
exceptions to the judge’s decision.3
We further find merit in counsel for the General
Counsel’s motion with respect to the alleged failure by
the judge to base his bargaining order on a violation
of Section 8(a)(5), as well as Section 8(a)(3) and (1).
Counsel for the General Counsel alleged a violation of
Section 8(a)(5) in the amended complaint and, al-
though the judge did not specifically find that the Re-
spondent violated that section of the Act, he found the
elements of an 8(a)(5) violation based on the undis-
puted evidence that a majority of unit employees
signed valid authorization cards and that the Union
made a lawful demand for recognition upon the Re-
spondent prior to the closure of the Daggett facility.
Accordingly, we find that a bargaining order based on
Section 8(a)(5) and (1) is warranted, in addition to the
bargaining order granted by the judge and adopted by
the Board based on the judge’s 8(a)(3) and (1) find-
ings. We further find, as requested in counsel for the
General Counsel’s exceptions, that an order requiring
the Respondent to cease and desist from refusing to
bargain is warranted.
Accordingly, for the reasons stated above, we grant
counsel for the General Counsel’s motion for reconsid-
eration and, consistent therewith, we shall further mod-
ify the judge’s recommended Order and our original
Order dated November 30, 1992, in the manner set
forth below.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified by our Order dated November 30, 1992, and
orders that the Respondent, Direct Transit, Inc.,
Daggett, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 1(e) and reletter
the paragraphs accordingly.
467DIRECT TRANSIT
‘‘(e) Refusing to recognize and bargain with the
Union as the exclusive collective-bargaining represent-
ative of its employees in the appropriate unit set forth
below.’’
2. Substitute the attached notice for that attached to
the Board’s underlying Decision and Order.
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 shut down a maintenance facility and
terminate our employees because they seek union af-
filiation for purposes of collective-bargaining represen-
tation.
WE WILL NOT demote an employee from a leadman
position because of his activity on behalf of union or-
ganization.
WE WILL NOT threaten employees with shop closure
because of their interest in or activity on behalf of the
Union.
WE WILL NOT interrogate employees about their in-
terest in or activity on behalf of the Union.
WE WILL NOT refuse to recognize and bargain with
the Union as the exclusive collective-bargaining rep-
resentative of our employees in the following appro-
priate unit:
All mechanics, mechanic leadman, mechanic
trainees, and fuel and wash employees employed
by the Respondent at its facility located at 34760
Daggett/Yermo Road, Daggett, California; but ex-
cluding office clerical employees, guards, and su-
pervisors, as defined in the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed by Section 7 of the Act.
WE WILL reestablish and resume operations at our
Daggett, California facility in a manner consistent with
the level and manner of operation that existed before
the facility was closed on October 6, 1991.
WE WILL offer reinstatement to all employees laid
off on that date who held a position in the bargaining
unit set forth above.
WE WILL make them whole for losses they incurred
as a result of the discrimination against them, with in-
terest.
WE WILL recognize and, on request, bargain with the
Union as the exclusive collective-bargaining represent-
ative of our employees in the bargaining unit set forth
above concerning terms and conditions of employment
and, if an understanding is reached, WE WILL embody
the understanding in a signed agreement.
WE WILL offer Ivan Elvik reinstatement to his
former position of leadman and make him whole, with
interest, for any losses he incurred as a result of his
unlawful demotion.
DIRECT TRANSIT, INC.