Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 131 (N.L.R.B. 2001)

OVERNITE TRANSPORTATION CO. 131
Overnite Transportation Company and Thomas
Moulton, Petitioner and Teamsters Local 657.
Case 16–RD–1468
December 20, 2001
ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
The National Labor Relations Board has considered
the Employer’s request for special permission to appeal
the Regional Director’s administrative determination to
hold the instant petition in abeyance. Having reviewed
the entire matter, the Board has decided to affirm the
Regional Director’s determination for the reasons set
forth below.
The Employer is a provider of “less-than-truckload”
freight services throughout the United States and in Can­
ada and Mexico. The Employer operates through nu­
merous service centers, including the facility in Laredo,
Texas. The Laredo facility opened on December 8,
1997. Pursuant to an election on September 2, 1999, the
Union was certified on September 10, 1999. On No­
vember 10, 1999, the Board issued its decision in Over­
nite Transportation Co., 329 NLRB 990,1 in which the
Board ordered, inter alia, that the Employer post at all its
service centers a notice to employees remedying certain
unfair labor practices which the Board found had af­
fected employees “on a nation-wide basis.” As the dis­
sent acknowledges, the Employer did not post any no­
tices because it was seeking court review of the Board’s
Order.
On December 18, 2000, employee Thomas Moulton
filed the instant decertification petition. By letter dated
February 13, 2001, the Regional Director informed the
parties that he was holding the petition in abeyance. The
letter stated:
While the Laredo, Texas service center is not specifi­
cally found to be a facility where such unfair labor
practices occurred, a reasonable interpretation of the
Board Order is that such posting is mandated at the
Laredo facility as part of the nation-wide posting or­
dered by the Board . . . . Accordingly, as no posting
has occurred in Laredo, which would remedy the unfair
labor practices found by the Board in Overnite Trans­
portation Company, supra, I will hold in abeyance any
further processing of the petition in the instant case at
this time. It has long been the policy of the Board that
no representation election may be held until unfair la-
1 Overnite Transportation, enfd. 240 F.3d 325 (4th Cir. 2001), ptn.
for rehearing en banc granted and panel decision vacated July 5, 2001
argument heard on September 25, 2001.
bor practices, which may affect the outcome of the
election have been fully remedied.
We find that the Regional Director acted within his
discretion in holding the instant petition in abeyance
pending compliance with the Overnite decision. See
NLRB Casehandling Manual, generally Secs. 11730-
11734. We agree with the Regional Director that the
nationwide posting requirement applies to Laredo. The
Board in Overnite did not limit the posting to facilities
where the unfair labor practices underlying Overnite had
occurred or to facilities which were in existence at the
time of those unfair labor practices. Rather, the Board
viewed those unfair labor practices as so pervasive and
egregious as to affect employees “on a nationwide basis”
and require a posting by the Employer at all the Em­
ployer’s facilities nationwide.
The Employer and our dis senting colleague contend
that because the Laredo facility opened subsequent to the
commission of the unfair labor practices underlying the
Overnite order, the Laredo employees were not “co­
erced” by any unlawful conduct and that it is unreason-
able to hold the petition in abeyance. We view the notice
posting as a necessary remedial step to assure all the
Employer’s employees that the Employer is repudiating
its unlawful conduct and erasing its lingering effects and
that the Board’s protection of employees’ rights is being
upheld. Thus, we disagree with our dissenting colleague
that notice posting is merely “prophylactic.” The Re­
gional Director’s decision does not foreclose the possi­
bility that a decertification election will be held in the
future after the posting period; rather, it only precludes
the holding of an election at this time.
Accordingly, we find that the Regional Director acted
within his discretion in holding the instant petition in
abeyance.
ORDER
The Regional Director’s administrative order holding
the instant petition in abeyance pending posting of a no­
tice pursuant to the order in Overnite, supra, is affirmed.
CHAIRMAN HURTGEN, dissenting.
I would grant the Employer’s request for special per-
mission to appeal the Regional Director’s decis ion.
The Regional Director blocked further processing of
the decertification petition filed on December 8, 2000, in
this Laredo, Texas unit. He did so because the Board’s
remedial notice had not been posted at Laredo at the time
of the petition. The Board had ordered the posting in 329
NLRB 990 (1999) (Overnite I) . I agree that the Board’s
Order required a nationwide posting and thus covered the
337 NLRB No. 19
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Laredo facility. The Employer had not posted because it
was seeking court review of the Board’s Order.1
The instant case is unique in that the Laredo unit did
not even exist as of the time of the conduct found unlaw­
ful in 329 NLRB 990 (1999). Thus, these employees
were not coerced by any unlawful conduct. Accordingly,
1 The circuit court initially enforced the Board Order, but later
granted Overnite’s petition for a rehearing en banc. Despite this later
action, the Board’s order (including inter alia posting in the Laredo
unit) is not stayed. See Sec. 10(e) and (f) of the Act. Thus, the issue
herein is ripe for ruling. Compare the situation described in my dissent
in Overnite, 334 NLRB 1074, 1082 (2001), where I concluded that that
case should be held in abeyance pending court action in Overnite I.
it is not reasonable to hold that a fair election cannot be
held among these employees. Indeed, a fair election was
held in Laredo in September 1999, i.e., after the unfair
labor practices, and the Union prevailed.
To be sure, the Board, as a prophylactic matter, or­
dered that all employees be apprised of their statutory
rights, even at places where no unlawful conduct oc­
curred. But this is a far cry from saying that a fair elec­
tion cannot be held among these uncoerced employees.
Indeed, the notice of election will apprise employees of
their rights.