282 N.L.R.B. 451 (N.L.R.B. 1986)

Ryder Driver Leasing, Inc.

National Labor Relations Board - Board DecisionsDec 15, 1986

282 N.L.R.B. 451 (N.L.R.B. 1986)

RYDER DRIVER LEASING Ryder Driver Leasing , Inc. and Chauffeurs, Team- sters and Helpers Local 391, affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America. Case 11-CA-12113 15 December 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON Upon a charge filed by the Union 26 August 1986, the General Counsel of the National Labor Relations Board issued a complaint 11 September 1986 against the Company, the Respondent, alleg- ing that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 18 April 1986, fol- lowing a Board election in Case 11-RC-5280, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and 102.69(g), amended Sept: 9, 1981, 46' Fed.Reg. 45922'(1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 19 August 1985 the Company has refused to bargain with the Union. On 16 Septem- ber 1986 the Company filed its answer admitting in part and denying in part the allegations in the com- plaint. On 29 September 1986 the General Counsel filed a motion to strike portions of Respondent's answer to complaint and- Motion for Summary Judgment. On 1 October 1986 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motions should not be granted. The Company has failed to file a re- sponse. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company's answer to the complaint admits certain factual allegations of the complaint, but denies that it has committed the unfair labor prac- tices alleged. The Company, in its answer, also admits that it has refused to recognize and bargain with the Union as the exclusive representative of the unit employees. The Company contends that it has no obligation to bargain with the Union, claim- ing that the Board's certification of the Union in 451 Case 11-RC-52801 was improper because at the time of the election the voters were confused about who their employer was2 and so were denied the right to make an informed choice. A review of the record reveals that the Compa- ny is attempting to relitigate the identical issues that were considered by the Board in the prior pro- ceeding and that were found to be without merit. It is well settled that in the absence of newly dis- covered and previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence , nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding., Accordingly we grant the Motion for Summary Judgment.3 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION 4 The Company, a Delaware corporation, is en- gaged in the business of leasing drivers to business- es that are engaged, inter alia, in hauling freight and commodities. The Company has facilities at several locations in North Carolina, and in Stuart, Virginia. It annually receives gross revenues in excess of $50,000 from its operations. We find that the Company is an employer engaged in commerce within the meaning of Section 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. i Member Babson did not participate in the representation proceeding. a The Company argues that the confusion resulted from the Regional Director's holding, in a companion representation proceeding involving the same parties, that J. P. Stevens and the Respondent were joint em- ployers. a We find that,the Company 's denials in its answer to the complaint raise no issues warranting a hearing. Accordingly , we find it unnecessary to pass on the General Counsel's motion to strike portions of the Re- spondent's answer. 4 The General Counsel 's motion to amend the jurisdictional allegations of the complaint is granted. 282 NLRB No. 69 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 17 May 1985 the Union was certified on 18 April 1986 as the collec- tive-bargaining representative of the employees in the following appropriate unit: All drivers employed by the Employer ''at its U.S. Highway 29 North, Greensboro, North Carolina facility, including all drivers em- ployed at the Stuart, Virginia, Fayetteville, North Carolina, Wagram, North Carolina, Ro- anoke Rapids, North Carolina and Aberdeen, North Carolina facilities, excluding all office clerical employees, mechanics, professional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 30 July 1986 the Union has requested the Company to bargain, and since 19 August 1986 the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 19 August 1986 to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appro- priate unit, the Company has engaged in unfair labor practices 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 will 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 will construe the initial period of the certification 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, Ryder Driver Leasing, Inc., Greensboro, North Carolina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Chauffeurs, Team- sters and Helpers Local 391, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America as the exclu- sive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All drivers employed by the Employer at its U.S. Highway 29 North, Greensboro, North Carolina facility, including all drivers em- ployed at the Stuart, Virginia, Fayetteville, North Carolina, Wagram, North Carolina, Ro- anoke Rapids, North Carolina and Aberdeen, North Carolina facilities, excluding all office clerical employees, mechanics, professional employees, guards and supervisors as defined in the Act. (b) Post at in all facilities where unit drivers are employed copies of the attached notice marked "Appendix-."5 Copies of the notice, on forms pro- vided by the Regional Director for- Region 11, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are custom- arily 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." RYDER DRIVER LEASING 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 the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Chauffeurs, Teamsters and Helpers Local , 391, affiliated with International Brotherhood of Teamsters; Chauf- feurs, Warehousemen and Helpers of America 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 exer- 453 vise 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 bargaining unit: All drivers employed by the Employer at its U.S. Highway 29 North, Greensboro, North Carolina facility, including all drivers em- ployed at the Stuart , Virginia, Fayetteville, North Carolina, Wagram, North Carolina, Ro- anoke Rapids, North Carolina and Aberdeen, -North Carolina facilities , excluding all office clerical employees , mechanics, professional employees, guards and supervisors as defined in the Act. RYDER DRIVER LEASING, INC.