Mail Contractors of America, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 2003

340 N.L.R.B. 1041 (N.L.R.B. 2003)

MAIL CONTRACTORS OF AMERICA 1041
Mail Contractors of America, Inc. and International
Brotherhood of Teamsters, AFL–CIO, Local
470. Case 4–CA–32337
November 24, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND
WALSH
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 4, 2003, the
General Counsel issued the complaint on September 9,
2003, 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 4–
RC–20640. (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 complaint, and asserting affirmative
defenses.
On October 20, 2003, the General Counsel filed a Mo-
tion for Summary Judgment and memorandum in sup-
port. On October 23, 2003, 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.
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.
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.1 See Pittsburgh Plate

1 The Respondent asserts in its answer that the complaint is “proce-
durally defective” because it is based on a charge that was filed before
the Union was certified. We reject this contention. The charge was
filed on August 4, 2003, after issuance of the Regional Director’s Re-
port recommending that the Respondent’s objections be overruled and
that the Union be certified. The charge alleges an unlawful refusal to
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, 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, an Arkansas
corporation with headquarters in Little Rock, Arkansas,
and facilities at 2196 Bennett Road, Philadelphia, Penn-
sylvania, and in Swedesboro, New Jersey (the facilities),
has been engaged in the interstate and intrastate transpor-
tation of bulk mail for the United States Postal Service.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, received gross revenues in
excess of $50,000 from its interstate operations.
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, AFL–CIO, Local 470 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 by mail ballot during the pe-
riod from May 30 through June 16, 2003, the Union was
certified on August 20, 2003, as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:
All full-time and regular part-time truck drivers and
mechanics employed by the Respondent at its facili-
ties located at 2196 Bennett Road, Philadelphia,
Pennsylvania and Swedesboro, New Jersey; but ex-
cluding all other employees, office clerical employ-
ees, casual classification drivers, guards, and supervi-
sors as defined in the Act.
The Union continues to be the exclusive bargaining repre-
sentative under Section 9(a) of the Act.

bargain, and the charge was pending during the time that the Respon-
dent admittedly refused to bargain, specifically, August 28, as alleged
in the complaint. In these circumstances, we find that the complaint
allegation is adequately supported by a timely charge. See generally
NLRB v. Fant Milling Co., 360 U.S. 301, 306–309 (1959) (a complaint
properly may address events occurring after the filing of a charge,
where those events are related to those alleged in the charge on which
the complaint was based and grew out of them while the proceeding
was pending before the Board).
2 The Respondent’s request that the complaint be dismissed is there-
fore denied.
Member Walsh did not participate in the underlying representation
proceeding. He agrees, however, that the Respondent has not raised
any new matters or special circumstances warranting a hearing in this
proceeding or reconsideration of the decision in the representation
proceeding, and that summary judgment is appropriate.
340 NLRB No. 125
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1042
B. Refusal to Bargain
By letter dated August 25, 2003, the Union requested
the Respondent to recognize and bargain, and, by letter
dated August 28, 2003, the Respondent refused to do so.
We find that this refusal constitutes 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 August 28, 2003, 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 prac-
tices affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
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 understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification 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, Mail Contractors of America, Inc., Phila-
delphia, Pennsylvania, and Swedesboro, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Brotherhood
of Teamsters, AFL–CIO, Local 470, as the exclusive
bargaining representative of the employees in the bar-
gaining 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
mechanics employed by the Respondent at its facilities
located at 2196 Bennett Road, Philadelphia, Pennsyl-
vania and Swedesboro, New Jersey; but excluding all
other employees, office clerical employees, casual clas-
sification drivers, guards, and supervisors as defined in
the Act.
(b) Within 14 days after service by the Region, post at
its facilities in Philadelphia, Pennsylvania, and Swedes-
boro, New Jersey, copies of the attached notice marked
“Appendix.”3 Copies of the notice, on forms provided by
the Regional Director for Region 4, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive 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 altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed either of the facilities involved
in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since August 28, 2003.
(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 com-
ply.
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

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.”

MAIL CONTRACTORS OF AMERICA 1043
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to bargain with International
Brotherhood of Teamsters, AFL–CIO, Local 470, as the
exclusive representative of the employees in the bargain-
ing 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
mechanics employed by us at our facilities located at
2196 Bennett Road, Philadelphia, Pennsylvania and
Swedesboro, New Jersey; but excluding all other em-
ployees, office clerical employees, casual classification
drivers, guards, and supervisors as defined in the Act.

MAIL CONTRACTORS OF AMERICA, INC.