Grange Debris Box & Wrecking Co.

National Labor Relations Board - Board Decisions

Nov 30, 2005

345 N.L.R.B. 108 (N.L.R.B. 2005)

345 NLRB No. 108
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.
Grange Debris Box and Wrecking Company, Inc. and
Teamsters, Local 624. Case 20–CA–32679
November 30, 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 August 31, 2005, the
Acting General Counsel issued the complaint on Sep-
tember 7, 2005, alleging that the Respondent has violated
Section 8(a)(1) and (5) of the Act by refusing the Un-
ion’s request to bargain following the Union’s certifica-
tion in Case 20–RC–17987. (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 deny-
ing in part the allegations in the complaint.
On September 26, 2005, the Acting General Counsel
filed a Motion for Summary Judgment. On September
27, 2005, the Board issued an order transferring the pro-
ceeding 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-
tends that the Union’s certification is invalid because the
Board erred in affirming the Regional Director’s finding
in the representation proceeding that the Respondent’s
drivers are employees within the meaning of Section 2(3)
of the Act, rather than independent contractors.
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 Acting General Counsel’s Motion for
Summary Judgment.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a California
corporation with an office and place of business in San
Rafael, California, has been engaged in the business of
renting debris box containers to commercial customers
and directly to individual customers.
During the 12-month period ending August 31, 2005,
the Respondent, in conducting its business operations
described above, performed services valued in excess of
$50,000 to other businesses within the State of California
who are directly engaged in interstate commerce.
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 Teamsters, Local 624 (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 election held March 10, 2005, the Union
was certified on July 21, 2005, as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time truck drivers and
yard employees employed by the Employer at its San
Rafael, California facility; excluding office clericals,
managerial employees, guards and supervisors within
the meaning of the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.

1 We find no merit in the Respondent’s contention, set forth in its
opposition to the Acting General Counsel’s motion, that the instant case
should be consolidated with two other unfair labor practice charges
filed against the Respondent, which are apparently being investigated
by the Region. One of the additional charges assertedly alleges sepa-
rate violations of Sec. 8(a)(1) of the Act, and the other charge alleges
that the Respondent violated Sec. 8(a)(5) of the Act by making unilat-
eral changes to employees’ terms and conditions of employment, en-
gaging in direct dealing with employees, and refusing to provide re-
quested information. Thus, the additional charges present issues that
differ substantively from the complaint allegations in the instant case,
which involve the Respondent’s refusal to bargain with the Union in
order to test the certification issued in Case 20–RC–17987. In any
event, the General Counsel has wide discretion in determining whether
or not to consolidate proceedings, and the Respondent has failed to
show an arbitrary abuse of that discretion. See Service Employees
Local 87 (Cresleigh Management), 324 NLRB 774 (1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
B. Refusal to Bargain
On about July 28, 2005, the Union, by letter, requested
that the Respondent recognize and bargain collectively
with it as the exclusive collective-bargaining representa-
tive of the certified unit. Since about August 30, 2005,
the Respondent has failed and refused to recognize and
bargain with the Union.
CONCLUSION OF LAW
By failing and refusing since August 30, 2005, to bar-
gain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices 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, Grange Debris Box and Wrecking Com-
pany, San Rafael, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters, Local 624 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 full-time and regular part-time truck drivers and
yard employees employed by the Employer at its San
Rafael, California facility; excluding office clericals,
managerial employees, guards and supervisors within
the meaning of the Act.
(b) Within 14 days after service by the Region, post at
its facility in San Rafael, California, copies of the at-
tached notice marked “Appendix.”2 Copies of the notice,
on forms provided by the Regional Director for Region
20, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since August 30,
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. November 30, 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

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.”
GRANGE DEBRIS BOX & WRECKING CO. 3
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
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT refuse to bargain with Teamsters, Local
624 as the exclusive bargaining representative of the em-
ployees 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, 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 full-time and regular part-time truck drivers and
yard employees employed by us at our San Rafael,
California facility; excluding office clericals, manage-
rial employees, guards and supervisors within the
meaning of the Act.
GRANGE DEBRIS BOX AND WRECKING
COMPANY, INC.