DynCorp

National Labor Relations Board - Board Decisions

Aug 24, 2005

345 N.L.R.B. 9 (N.L.R.B. 2005)

345 NLRB No. 9
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.
DynCorp and American Postal Workers Union, Local
164, AFL–CIO. Case 9–CA–42012
August 24, 2005
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 May 23, 2005, the
General Counsel issued the complaint on May 26, 2005,
alleging that the Respondent has violated Section 8(a)(1)
and (5) of the Act by refusing the Union’s request to bar-
gain following the Union’s certification in Case 9–RC–
17352. (Official notice is taken of the “record” in the
representation proceeding as defined in the Board’s
Rules and Regulations, Sections 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer, with an affirmative defense, admitting in
part and denying in part the allegations in the complaint.
On June 14, 2005, the Acting General Counsel filed a
Motion for Summary Judgment. On June 17, 2005, 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.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification on the
ground that the Board erred in setting aside the initial
election, based on the Union’s objections, and directing a
second election.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 Board’s decision setting aside the initial election and ordering
a rerun election is reported at 343 NLRB No. 124 (2004).
2 Chairman Battista dissented from the ordering of a second election
in the underlying representation case and would have found that the
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged in the repair of postal mail transporta-
tion equipment at and out of its West Chester, Ohio facil-
ity.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its operations
described above, performed services valued in excess of
$50,000 for the United States Postal Service which, in
turn, meets the Board’s jurisdictional standards.
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 American Postal Workers Union,
Local 164, AFL–CIO (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 second election held April 6, 2005, the
Union was certified on April 14, 2005, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All production and maintenance employees employed
by the Respondent at its West Chester, Ohio facility,
but excluding all office clerical employees, and all pro-
fessional employees, guards and supervisors as defined
in the Act.
The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
On about April 25, 2005, the Union, in writing, re-
quested that the Respondent recognize and bargain col-
lectively with it as the exclusive collective-bargaining
representative of the unit. Since about April 28, 2005,
the Respondent has failed and refused to recognize and
bargain with the Union as the exclusive collective-
bargaining representative of the unit. We find that this

Respondent did not engage in objectionable conduct warranting a new
election. 343 NLRB No. 124, slip op. at 5–7. While he remains of that
view, he agrees that the Respondent has not raised any new matters that
are properly litigable in this unfair labor practice case. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). In light of this,
and for institutional reasons, Chairman Battista agrees with the decision
to grant the Acting General Counsel’s Motion for Summary Judgment.
Member Schaumber did not participate in the underlying representa-
tion proceeding. However, he agrees that the Respondent has not
raised any new matters warranting a hearing in this proceeding, and that
summary judgment is therefore appropriate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
failure and refusal constitutes an unlawful refusal to bar-
gain in violation of Section 8(a)(1) and (5) of the Act.
CONCLUSION OF LAW
By failing and refusing since about April 28, 2005, to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of employees in the
appropriate unit, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(1) and (5) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (5) 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 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); 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, DynCorp, West Chester, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with American Postal Workers
Union, Local 164, 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 production and maintenance employees employed
by the Respondent at its West Chester, Ohio facility,
but excluding all office clerical employees, and all pro-
fessional employees, guards and supervisors as defined
in the Act.
(b) Within 14 days after service by the Region, post at
its facility in West Chester, Ohio, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 9,
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 April 28, 2005.
(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 24, 2005
______________________________________
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
violated 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.”
DYNCORP 3
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 refuse to bargain with American Postal
Workers Union, Local 164, AFL–CIO, as the exclusive
bargaining representative of the employees in the bar-
gaining 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 production and maintenance employees employed
by us at our West Chester, Ohio facility, but excluding
all office clerical employees, and all professional em-
ployees, guards and supervisors as defined in the Act.
DYNCORP