More Truck Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 2003

338 N.L.R.B. 796 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796
More Truck Lines, Inc. and General Truck Drivers,
Office, Food & Warehouse Union, Teamsters
Local 952, International Brotherhood of Team-
sters, AFL–CIO. Case 21–CA–35414
March 14, 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 and an amended charge filed
on October 17 and October 21, 2002,1 respectively, the
General Counsel issued the complaint on November 18,
2002, 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
31–RC–7554. (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 December 30, 2002, the General Counsel filed a
Motion for Summary Judgment. On December 31, 2002,
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 Union’s certification on the
grounds that the Board improperly set aside the May 20,
1999 runoff election and improperly overruled its objec-
tions to the second runoff election. The Respondent fur-
ther argues that it would be premature to grant the Gen-
eral Counsel’s Motion for Summary Judgment because
the Board’s decision in the prior consolidated unfair la-
bor practice case is currently pending review in the
United States Court of Appeals for the District of Co-
lumbia Circuit.2

1 The Respondent’s answer states that Respondent has insufficient
knowledge or information to admit or deny the complaint allegations
with respect to the filing and service of the charge and amended charge.
However, copies of the charge and amended charge are attached to the
General Counsel’s motion, with affidavits of service, and the Respon-
dent has not challenged the authenticity of those documents.
2 The initial election in the underlying representation proceeding was
held on December 4, 1997, pursuant to a Stipulated Election Agree-
ment. The ballot choices were Teamsters Local 952 (the Petitioner),
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).
We also reject the Respondent’s contention that grant-
ing the General Counsel’s Motion for Summary Judg-
ment would be premature at this point given the pending
petitions for review and enforcement of the Board’s deci-
sion finding that the Respondent’s conduct prior to the
May 20, 1999 runoff election violated Section 8(a)(1) of
the Act. Section 10(g) of the Act provides that the com-
mencement of proceedings in a United States Court of
Appeals pursuant to a petition for enforcement or review
“shall not, unless specifically ordered by the court, oper-
ate as a stay of the Board’s order.” The Respondent does
not assert that an order staying the Board’s order has
been issued by the court. Accordingly, the Respondent
must honor the certification, and its duty to bargain is not

the Brotherhood (the Intervenor), or neither Union. Teamsters Local
952 (the Union) received a majority of the ballots cast in this initial
election, but the election was later set aside by the Board based on the
Respondent’s objections.
Neither the Union nor the Brotherhood received a majority in the
second election. Accordingly, a runoff election was held on May 20,
1999. The Brotherhood received a majority of the ballots cast in the
runoff election, but the Union filed objections. The objections alleged,
inter alia, that the Respondent had misrepresented the law by informing
employees that they would not receive scheduled wage increases under
the existing Brotherhood contract if the Union was certified (Objection 1).
This and other objections (subsequently withdrawn to the extent not
coextensive with Objection (1) were thereafter consolidated for hearing
with a related unfair labor practice complaint containing a similar alle-
gation under Sec. 8(a)(1) of the Act. On October 1, 2001, the Board
issued a Decision, Order, and Direction of Election (336 NLRB 772)
affirming the judge’s finding that the Respondent’s alleged statement
violated Sec. 8(a)(1) and warranted setting aside the May 20, 1999
runoff election. On November 13, 2001, the Respondent filed a peti-
tion for review of the Board’s decision with the D.C. Circuit, and on
December 31, 2001, the Board petitioned the court for enforcement of
the Board’s order. (The petitions for review and enforcement remain
pending.)
A second runoff election was held on January 24, 2002. The Union
received a majority of the votes cast, but the Respondent filed objec-
tions. The objections alleged, inter alia, that the Union engaged in
improper electioneering and campaigning on the day of the election,
offered improper inducements to union observers by offering them
lunch, and misrepresented the Employer’s obligation to implement
terms of the Brotherhood’s contract if the Union won the election. The
hearing officer recommended that the objections be overruled, and the
Board adopted the hearing officer’s findings and recommendations and
certified the Union by unpublished order dated September 24, 2002.
338 NLRB No. 111
MORE TRUCK LINES 797
postponed by a pending petition for court review. See
Midland-Ross, Inc., 243 NLRB 1165, 1166 (1979), enfd.
653 F.2d 239 (6th Cir. 1981). M.J. Metal Products, 330
NLRB 502 fn. 2 (2000), enfd. 267 F.3d 1059 (10th Cir.
2001).
We therefore grant the Motion for Summary Judg-
ment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a Cali-
fornia corporation engaged in the business of transport-
ing paving materials, rock, sand, and related equipment
to customers located in Southern California, with its
principal place of business located at Corona, California,
and with other facilities in Westminster and Irvine, Cali-
fornia.
During the 12-month period ending November 18,
2002, a representative period, the Respondent, in con-
ducting its business operations, purchased and received
at its California facilities goods valued in excess of
$50,000 directly from points outside the State of Califor-
nia.
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 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 a second runoff election held January 24,
2002, the Union was certified on September 24, 2002, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time truck drivers em-
ployed by the Employer from its Corona, Irvine and
Westminster, California, locations; excluding all other
employees, office clerical employees, dispatchers,
guards and supervisors as defined by the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
In October 2002, the Union requested the Respondent
to recognize and bargain with it, and, since about the
same time, the Respondent has failed and refused to do

3 Members Schaumber and Walsh did not participate in the underly-
ing representation proceeding. However, they agree that the Respon-
dent has not raised any new matters warranting a hearing in this pro-
ceeding and that summary judgment is appropriate.
so.4 We find that the Respondent’s conduct constitutes
an unlawful refusal to bargain in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since October 2002, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices affect-
ing 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, More Truck Lines, Inc., Corona, Irvine, and
Westminster, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with General Truck Drivers,
Office, Food & Warehouse Union, Teamsters Local 952,
International Brotherhood of Teamsters, 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
4 The Respondent denies the complaint allegations that the Union
verbally requested it to bargain on October 9 and 16, 2002, and that
Respondent has refused to do so since October 16, 2002. However,
Respondent admits that, in October 2000, the Union requested Respon-
dent to recognize and bargain with it and that Respondent declined to
do so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798
an understanding is reached, embody the understanding
in a signed agreement:
All full-time and regular part-time truck drivers em-
ployed by the Employer from its Corona, Irvine and
Westminster, California, locations; excluding all other
employees, office clerical employees, dispatchers,
guards and supervisors as defined by the Act.
(b) Within 14 days after service by the Region, post at
its facilities in Corona, Irvine, and Westminster, Califor-
nia, copies of the attached notice marked “Appendix.”5
Copies of the notice, on forms provided by the Regional
Director for Region 21, after being signed by the Re-
spondent’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 no-
tices are not altered, 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 facility involved in these proceedings, the Re-
spondent shall duplicate 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 October 2002.
(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.

5 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.”
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
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 General Truck
Drivers, Office, Food & Warehouse Union, Teamsters
Local 952, International Brotherhood of Teamsters,
AFL–CIO, as the exclusive representative of the employ-
ees 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 em-
ployed by us from our Corona, Irvine and Westminster,
California, locations; excluding all other employees, of-
fice clerical employees, dispatchers, guards and super-
visors as defined by the Act.
MORE TRUCK LINES, INC.