Interstate Waste Services of New Jersey, Inc.

National Labor Relations Board - Board Decisions

May 18, 2006

347 N.L.R.B. 60 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 5
60
Interstate Waste Services of New Jersey, Inc. and In-
ternational Brotherhood of Teamsters, Local
945. Case 22–CA–27216
May 18, 2006
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 December 28, 2005,
the General Counsel issued the complaint on January 5,
2006, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case
22–RC–12605. (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, with affirmative defenses,
admitting in part and denying in part the allegations in
the complaint.
On February 1, 2006, the General Counsel filed a Mo-
tion for Summary Judgment. On February 3, 2006, 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,
and the General Counsel filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification based on its objec-
tions to conduct alleged to have affected the results of the
election in the representation proceeding. Specifically,
the Respondent contends that the Union was improperly
certified because the actions of the Union’s observer and
the Board agent destroyed the laboratory conditions and
warrant setting aside the election. In addition, the Re-
spondent maintains that the certified unit is no longer
appropriate due to the integration of the operations at the
Respondent’s Newark facility, where the certified unit
was located, into the operations at the Respondent’s fa-
cilities in Jersey City and Sloatsburg, New Jersey, which
were purchased after the election took place.
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.
With respect to the Respondent’s contention that the
certified unit no longer remains appropriate due to
changes in its operation since the date of the election, we
find that the Respondent has failed to show that with due
diligence it could not have brought forth evidence per-
taining to the integration of its Newark facility into its
Jersey City and Sloatsburg operations within a reasona-
bly short period of time after that integration. The Re-
spondent, in its December 29, 2005 refusal to bargain,
did not rely on the alleged integration of September
2005. Furthermore, the Respondent first brought this
evidence to the Board’s attention in its response to the
Notice to Show Cause, which was filed on February 15,
2006, despite the fact that the purchase of the Jersey City
and Sloatsburg facilities and the integration of the New-
ark operations allegedly occurred on September 3, 2005.
This date was more than 2 months before the Board is-
sued its certification of representative in Case 22–RC–
12605. Further, we note that this date was approximately
2 weeks before the Respondent filed its exceptions to the
hearing officer’s report on objections, which are dated
September 19, 2005. In these circumstances, we find
that the alleged evidence should not be considered newly
discovered or previously unavailable and does not consti-
tute special circumstances warranting relitigation of is-
sues raised in the representation proceeding.1 We there-
fore find that the Respondent has not raised any repre-
sentation 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 Judgment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a New Jersey
corporation, with offices and a place of business in New-
ark, New Jersey, has been engaged in the transportation
and handling of solid waste.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, provided services valued in
excess of $50,000 directly to customers outside the State
of New Jersey.

1 See U-Haul Co. of Nevada, Inc., 345 NLRB 1301 (2005) (Board
held that the respondent failed to show that with due diligence it could
not have brought forth evidence pertaining to the closure of its facility
within a reasonably short time after its implementation, where closure
occurred approximately 2 months before the Board’s certification of
representative issued in the related representation proceeding).
2 Consequently, we deny the Respondent’s request for a hearing.
INTERSTATE WASTE SERVICES OF NEW JERSEY 61
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 International Brotherhood of
Teamsters, Local 945 (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 June 3, 2005, the Union
was certified on November 21, 2005, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time drivers and driver’s
helpers employed by the Employer at its Newark, New
Jersey location, but excluding all office clerical em-
ployees, managerial employees, professional employ-
ees, guards and supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
About December 2, 2005, the Union requested the Re-
spondent to bargain with it as the exclusive collective-
bargaining representative for the certified unit.
Since on or about December 29, 2005, the Respondent,
has failed and refused to bargain with the Union.3 We
find that this refusal constitutes an unlawful refusal to
bargain in violation of Section 8(a)(1) and (5) of the Act.
CONCLUSION OF LAW
By refusing on and after December 29, 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

3 The complaint alleges that the Respondent has refused to bargain
since December 2, 2005. The General Counsel, however, has attached
to his motion a letter dated December 29, 2005, in which the Respon-
dent informs the Union that the Respondent will challenge the Union’s
certification and will not bargain with it.
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, Interstate Waste Services of New Jersey,
Inc., Newark, New Jersey, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Teamsters, Local 945 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 exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:
All full-time and regular part-time drivers and driver’s
helpers employed by the Employer at its Newark, New
Jersey location, but excluding all office clerical em-
ployees, managerial employees, professional employ-
ees, guards and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Newark, New Jersey, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 22,
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-

4 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD62
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 December 29, 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.
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 vio-
lated 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 bene-
fit and
protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with International
Brotherhood of Teamsters, Local 945 as the exclusive
representative of the employees 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 drivers and driver’s
helpers employed by us at our Newark, New Jersey lo-
cation, but excluding all office clerical employees,
managerial employees, professional employees, guards
and supervisors as defined in the Act.
INTERSTATE WASTE SERVICES OF NEW JERSEY,
INC.