Transportation Maintenance Services

National Labor Relations Board - Board Decisions

Aug 17, 2000

331 N.L.R.B. 1050 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1050
Transportation Maintenance Services, L.L.C. and
Automotive, Petroleum and Allied Industries
Employees Union, Local 618, affiliated with In-
ternational Brotherhood of Teamsters, AFL–
CIO. Case 14–CA–25682
August 17, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX,
LIEBMAN, HURTGEN, AND BRAME
On a charge filed July 30, 1999, by Automotive, Petro-
leum and Allied Industries Employees Union, Local 618,
affiliated with International Brotherhood of Teamsters,
AFL–CIO (the Union), the General Counsel of the Na-
tional Labor Relations Board issued a complaint on Oc-
tober 27, 1999, against Transportation Maintenance Ser-
vices, L.L.C. (the Respondent). The complaint alleges
that the Respondent violated Section 8(a)(5) and (1) of
the Act by failing and refusing to bargain collectively
with the Union as the exclusive collective-bargaining
representative of the employees in the bargaining unit.
The Respondent filed a timely answer to the complaint,
admitting in part and denying in part the allegations.
On February 23, 2000, the Respondent, the Union, and
the General Counsel filed with the Board a stipulation of
facts and motion to transfer this proceeding to the Board.
The parties agreed that the charge, the complaint, the
answer to the complaint, and the stipulation of facts, to-
gether with the exhibits attached to the stipulation of
facts, constitute the entire record in this case, and that no
oral testimony is necessary or desired. The parties
waived a hearing before an administrative law judge, the
making of findings of fact and conclusions of law by an
administrative law judge, and the issuance of an adminis-
trative law judge’s decision, and submitted this case di-
rectly to the Board for findings of fact, conclusions of
law, and the issuance of a Decision and Order. On April
6, 2000, the Board approved the stipulation of facts,
granted the motion, and transferred this proceeding to the
Board. The General Counsel and the Respondent filed
briefs.
On the entire record and the briefs, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a limited liability company engaged
in the fueling and service of trucks at its Bridgeton, Mis-
souri facility. During the 12-month period ending Sep-
tember 30, 1999, the Respondent, in conducting its busi-
ness operations, purchased and received at its facility
goods valued in excess of $50,000 directly from points
outside the State of Missouri, and provided services val-
ued in excess of $50,000 for enterprises, each of which
meets other than a solely indirect standard for the asser-
tion of the Board’s jurisdiction. At all material times, the
Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. The Union has been at all material times a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The issue presented is whether the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by failing and
refusing to bargain with the Union following issuance of
the Board’s June 10, 1999 Order in Transportation Mainte-
nance Services, 328 NLRB 691 (1999) (Transportation
Maintenance I) (Members Hurtgen and Brame jointly dis-
senting). Previously, on July 21, 1998, the Board issued
an order which (1) granted the Petitioner’s request to
withdraw the decertification petition in Case 14–RD–
1568, and (2) expressly closed the decertification case.
In Transportation Maintenance I, the Board denied the
Respondent’s motion for reconsideration of the Board’s
July 21, 1998 Order.
In its answer to the complaint, the Respondent admits
(as discussed more fully below) that it voluntarily recog-
nized the Union on December 11, 1996, and further ad-
mits that since July 26, 1999, it has failed and refused to
recognize and bargain with the Union. But the Respon-
dent denies that the Union is still the designated exclu-
sive bargaining representative of the unit employees or
the exclusive bargaining representative under Section
9(a) of the Act. The Respondent, thus, denies that its
refusal to recognize and bargain with the Union violated
the Act.
A. Stipulated Facts
1. The unit
The following employees of the Respondent constitute
a unit (the unit) appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act:

All fuelers and service technicians employed by the
Respondent at its Bridgeton, Missouri facility,
EXCLUDING mechanics, office clerical, and profes-
sional employees, guards, and supervisors, as defined
in the Act.
2. Background
The Respondent voluntarily recognized the Union as
the majority collective-bargaining representative of the
unit on December 11, 1996, pursuant to the terms of a
private settlement agreement between the Union and the
Respondent in Case 14–CA–32828. The Respondent
continued to recognize the Union as the exclusive collec-
tive-bargaining representative of the unit from December
11, 1996, until at least April 29, 1997, when a decertifi-
cation petition was filed in Case 14–RD–1568. The Re-
gional Director issued a Decision and Direction of Elec-
tion on May 29, 1997. He found, inter alia, (1) that the
Respondent’s December 11, 1996 recognition of the Un-
ion was not a bar to a decertification election, and (2)
331 NLRB No. 140
TRANSPORTATION MAINTENANCE SERVICES 1051
that, in any event, a reasonable time for bargaining had
elapsed between the Respondent’s recognition of the
Union and the filing of the decertification petition so as
to remove any arguable recognition bar to the election.
The Union filed a request for review of the Regional
Director’s Decision and Direction of Election, and the
Board granted the request for review on June 25, 1997.
Shortly thereafter, the Regional Director conducted the
decertification election and impounded the ballots with-
out opening them. No objections were filed to conduct
affecting the results of the election.
On July 15, 1998, while the Regional Director’s Deci-
sion and Direction of Election was under review by the
Board, the decertification Petitioner filed a request with
the Board to withdraw his petition. On July 21, 1998,
the Board issued an Order granting the request for with-
drawal and expressly closing the decertification case.
The Respondent filed a motion for reconsideration of
that Order, asserting that since the election had already
been conducted it would be inequitable to permit one
employee, i.e., the Petitioner, to withdraw the petition,
thereby depriving the unit employees of their vote.
On June 10, 1999, the Board denied the Respondent’s
motion for reconsideration.1 Applying the principles set
forth in sections 11116 and 11110.1 of the Board’s
Casehandling Manual (Part Two), Representation Pro-
ceedings the Board majority found that, (1) there was no
evidence or claim that the Petitioner’s purpose in with-
drawing the petition was to circumvent the 1-year elec-
tion bar of Section 9(c)(3) of the Act,2 (2) there was no
evidence that the Petitioner’s desire to discontinue the
decertification proceeding was not genuine or voluntary,
and (3) there was no evidence or allegation that any unit
employee opposed the withdrawal of the petition. The
Board majority concluded that its approval of the Peti-
tioner’s request to withdraw the petition did not run
counter to the purposes and policies of the Act. Rather,
in the absence of evidence that the request to withdraw
the petition was not voluntary or that other employees
opposed the withdrawal, approval of the request actually
furthered one of the primary purposes of the Act: to
promote stability in collective-bargaining relationships.
Members Hurtgen and Brame jointly dissented. They
would have denied the request to withdraw the decertifi-
cation petition and instead would have opened and
counted the impounded ballots and issued an appropriate
certification based on the results of the voting.3 In their

1 Transportation Maintenance I, supra.
2 Sec. 9(c)(3) states in pertinent part that “No election shall be di-
rected in any bargaining unit or any subdivision within which, in the
preceding twelve-month period, a valid election shall have been held.”
3 In doing so, Members Hurtgen and Brame expressly affirmed the
Regional Director’s Decision and Direction of Election in the decertifi-
cation proceeding and found, for the reasons stated by the Regional
Director, that the Respondent’s recognition of the Union did not consti-
tute a recognition bar to the requested decertification election. They
found it unnecessary to pass on the Regional Director’s alternative
view, the secret ballots cast in the privacy of the voting
booth in a Board-conducted election most accurately
reflected the unit employees’ views on representation,
which should not have been negated by the subsequent
withdrawal of the petition by the Petitioner, an individual
employee.4
3. Refusal to bargain
On July 23, 1999, the Union requested in writing that
the Respondent bargain with it as the exclusive collec-
tive-bargaining representative of the unit. The Union’s
letter stated that it had reviewed Transportation Mainte-
nance I, denying the Respondent’s motion for reconsid-
eration of the Board’s approval of the withdrawal of the
decertification petition, and was therefore requesting to
meet with the Respondent to negotiate a collective-
bargaining agreement.
The Respondent replied to the Union in writing on
July 26, 1999, expressly refusing to bargain with the
Union. The Respondent’s letter stated that it agreed with
the dissenting opinion in Transportation Maintenance I
that once a decertification election has been held, the
ballots should be counted and an appropriate certification
should be issued.
B. Contentions of the Parties
1. The General Counsel
The General Counsel contends that the Respondent
violated Section 8(a)(5) and (1) of the Act by failing and
refusing to bargain with the Union since July 26, 1999.
More specifically, the General Counsel notes that in the
underlying decertification proceeding the Board granted
the Petitioner’s request to withdraw the decertification
petition and closed the decertification case, and denied
the Respondent’s motion for reconsideration of that rul-
ing. The General Counsel further notes that the im-
pounded ballots in the decertification election were never
opened and counted, at no time has a majority of unit
employees indicated that they no longer wish to be repre-
sented by the Union, and the Respondent has not chal-
lenged the majority status of the Union. Thus, the Gen-
eral Counsel contends that the Respondent has a continu-
ing duty to recognize and bargain with the Union, pursu-
ant to its voluntary recognition, and that it has provided
no reason for its failure and refusal to do so, other than
its reliance on the dissent’s position in Transportation
Maintenance I, that once a decertification election has
been conducted, the ballots should be opened and
counted and an appropriate certification issued. Citing,
inter alia, Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.
146, 161–162 (1941), the General Counsel asserts that

finding that a reasonable period of time for bargaining had elapsed by
the time the decertification petition was filed. Transportation Mainte-
nance I, supra (dissenting opinion).
4 Id. Members Hurtgen and Brame also disagreed with the majority’s
reliance on the principles set forth in the Casehandling Manual, on the
grounds that the Manual does not necessarily represent Board law.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1052
the Respondent is not entitled in the instant proceeding to
relitigate issues that were or could have been litigated in
the prior representation proceeding.
2. The Respondent
The Respondent contends that where, as here, a decer-
tification election has been conducted, and no objections
to conduct affecting the results of the election have been
filed, the ballots should be opened and counted and the
appropriate certification should be issued. The Respon-
dent maintains that the Board’s failure to count the bal-
lots in the decertification election “frustrates the pur-
poses of the Act and deprives the employees of the elec-
tion to which they are entitled under the Act” and “privi-
leges [the Respondent] to fail and refuse to bargain.”
The Respondent also contends that it has no duty to
bargain with the Union because a reasonable time for
bargaining had elapsed prior to the decertification peti-
tion being filed. It notes that the Regional Director im-
pounded the ballots in the decertification election with-
out counting them because, at the time of the election,
the Union’s request for review of the Regional Director’s
Decision and Direction of Election was pending before
the Board. The Board, thus, subsequently granted the
Petitioner’s request to withdraw the petition and closed
the decertification case without having ruled on the Un-
ion’s request for review arguing that the petition should
have been barred because a reasonable amount of time
for bargaining had not elapsed before the filing of the
petition. The Respondent contends that “[b]ecause the
withdrawal should not have been allowed given the cir-
cumstances of this case, this underlying issue should be
resolved so that the results of the election can be certi-
fied.” The Respondent then argues that the facts estab-
lish that a reasonable amount of time for bargaining had
elapsed before the filing of the instant decertification
petition, therefore, the petition would not have been
barred on that basis, and “thus, [the Respondent] is under
no duty to bargain with Local 618.”
3. The Union
The Union asserts, inter alia, that (1) the Respondent is
not justified in withdrawing recognition and refusing to
bargain with the Union on the basis of issues which were
previously fully litigated and determined in a representa-
tion proceeding, and (2) the Respondent may not raise
the issue of whether or not a reasonable amount of time
for bargaining had elapsed before the filing of the instant
decertification petition, because that issue is moot as a
result of the Board’s approval of the Petitioner’s request
to withdraw the decertification petition in Transportation
Maintenance I.
C. Analysis and Conclusions
It is well settled, as the General Counsel contends, that
in the absence of newly discovered or previously un-
available 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 Plate Glass Co. v. NLRB, supra at 162.5
The Respondent’s contention that the impounded bal-
lots in the election should be opened and counted, and an
appropriate certification issued, was raised in its motion
for reconsideration of the Board’s order granting the Pe-
titioner’s request to withdraw the decertification petition
in the underlying representation case, and was rejected
by the Board in Transportation Maintenance I. The Re-
spondent has offered no newly discovered or previously
unavailable evidence nor has it adduced any special cir-
cumstances which would require a reexamination of the
Board’s decision in Transportation Maintenance I.
The Respondent also contends that it has no duty to
bargain with the Union because a reasonable time for
bargaining had elapsed prior to the decertification peti-
tion being filed. In agreement with the Union, we find
that the issue of whether or not a reasonable amount of
time for bargaining had elapsed before the filing of the
instant decertification petition is moot, as a result of the
Board’s approval of the Petitioner’s request to withdraw
the decertification petition in Transportation Mainte-
nance I.6
We therefore find that the Respondent has not raised
any representation issue that is properly litigable in this
unfair labor practice proceeding. Accordingly, we also
find that the Union continues to be the exclusive repre-
sentative of the employees in the above-described appro-
priate unit under Section 9(a) of the Act. Consequently,
we conclude that the Respondent’s refusal to bargain
with the Union since July 26, 1999, as the statutory bar-
gaining representative of its employees in the above-
described appropriate unit is in violation of Section
8(a)(5) and (1) of the Act.7

5 The policy considerations which bar such relitigation are not lim-
ited in their application to only 8(a)(5) refusal-to-bargain cases that are
brought to test the validity of a union’s certification as collective-
bargaining representative. Hafaidi Beach Hotel, 321 NLRB 116
(1996), enfd. mem. 116 F.3d 485 (9th Cir. 1997), cert. denied 522 U.S.
1107 (1998) (no relitigation in subsequent related 8(a)(1) and (3) case
of Board’s jurisdiction asserted in underlying representation case).
6 Under Board law, the fact that a reasonable time for bargaining
may have elapsed following the employer’s grant of recognition does
not privilege the employer to withdraw recognition, unless the em-
ployer has a good faith doubt or uncertainty based on objective evi-
dence of the union’s continuing majority status. See Allentown Mack
Sales & Service v. NLRB, 522 U.S. 359 (1998). As noted by the Gen-
eral Counsel, the Respondent has not asserted such a good-faith doubt
or challenged the Union’s majority status.
Member Hurtgen notes that the Respondent’s position is based on
the proposition that the ballots should have been counted so as to re-
solve the question of the Union’s majority status. Thus, he treats the
Respondent as having questioned the Union’s majority status.
7 As noted above, Members Hurtgen and Brame jointly dissented
from the Board’s Order denying the Respondent’s motion for reconsid-
eration of the Board’s approval of the Petitioner’s request to withdraw
the decertification petition in Transportation Maintenance I, and they
remain of that view. Member Hurtgen, however, agrees that the Re-
TRANSPORTATION MAINTENANCE SERVICES 1053
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the purposes and policies of the
Act. More specifically, having found that the Respon-
dent has unlawfully refused to bargain with the Union,
we shall order the Respondent, on request of the Union,
to bargain collectively and in good faith with the Union
on terms and conditions of employment of the unit em-
ployees, and if an understanding is reached, to embody it
in a signed agreement.
The General Counsel has requested that, “to assist in
effectuating the Board’s backpay orders,” the Board in-
clude in its Order in this case modified language regard-
ing the Respondent’s obligation to provide records for
computing backpay. We find it unnecessary in this case
to address the merits of the General Counsel’s request,
because the remedy for the Respondent’s unfair labor
practice does not include a backpay component. For that
reason, the General Counsel’s request is denied.
ORDER
The National Labor Relations Board orders that the
Respondent, Transportation Maintenance Services,
L.L.C., Bridgeton, Missouri, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
Automotive, Petroleum and Allied Industries Employees
Union, Local 618, affiliated with International Brother-
hood of Teamsters, AFL–CIO as the exclusive bargain-
ing representative of the employees in the following ap-
propriate unit:
All fuelers and service technicians employed by the
Respondent at its Bridgeton, Missouri facility,
EXCLUDING mechanics, office clerical, and profes-
sional employees, guards, and supervisors, as defined
in the Act.
(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 collectively and in good faith
with the Union as the exclusive representative of all the
employees in the appropriate unit described above con-
cerning terms and conditions of employment, and if an
understanding is reached, embody it in a signed agree-
ment.

spondent has not raised any new matters that are properly litigable in
this unfair labor practice case. See Pittsburgh Plate Glass Co. v.
NLRB, supra at 162. In light of that, and for institutional reasons, he
agrees with the decision to find that the Respondent has violated Sec.
8(a)(5) and (1) of the Act in this proceeding. Member Brame has filed
a dissenting opinion.
(b) Within 14 days after service by the Region, post at
its Bridgeton, Missouri facility, copies of the attached
notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 14,
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-
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 July 26, 1999.
(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 the Respondent has taken to comply.

MEMBER BRAME, dissenting.
In the underlying representation proceeding, I joined in
dissenting from my colleagues’ denial of the Respon-
dent’s motion for reconsideration of the Board’s ap-
proval of the Petitioner’s request to withdraw the decerti-
fication petition. I would have granted the motion, re-
scinded the approval of the withdrawal, ordered that the
impounded ballots be opened and counted, and issued an
appropriate certification based on the results of the vot-
ing. Accordingly, I dissent here from my colleagues’
finding that the Respondent violated Section 8(a)(5) and
(1) of the Act by failing and refusing to bargain with the
Union.
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
8 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 BOARD 1054
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT fail and refuse to bargain collectively with
Automotive, Petroleum and Allied Industries Employees
Union, Local 618, affiliated with International Brotherhood
of Teamsters, AFL–CIO as the exclusive bargaining repre-
sentative of our employees in the following appropriate
unit:

All fuelers and service technicians employed by the
Respondent at its Bridgeton, Missouri facility,
EXCLUDING mechanics, office clerical, and profes-
sional employees, guards, and supervisors, as defined
in the Act.

WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain collectively and in good
faith with the Union as the exclusive representative of all
the employees in the appropriate unit described above on
terms and conditions of employment, and if an understand-
ing is reached, embody it in a signed agreement.

TRANSPORTATION MAINTENANCE SERVICE, L.L.C.