XPO Logistics Freight, Inc.

National Labor Relations Board - Board Decisions

Jul 6, 2017

365 NLRB No. 105 (N.L.R.B. 2017)

365 NLRB No. 105
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
XPO Logistics Freight, Inc. and Teamsters Local Un-
ion No. 179. Case 13–CA–196637
July 6, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union's certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on April 11, 2017,
by Teamsters Local Union No. 179 (the Union), the
General Counsel issued the complaint on April 13, 2017,
alleging that XPO Logistics Freight, Inc. (the Respond-
ent) has violated Section 8(a)(5) and (1) of the National
Labor Relations Act by refusing the Union's request to
recognize and bargain with it following the Union's certi-
fication in Case 13–RC–184190. (Official notice is tak-
en of the record in the representation proceeding as de-
fined in the Board’s Rules and Regulations, Secs. 102.68
and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).)
The Respondent filed an answer admitting in part and
denying in part the allegations in the complaint, and as-
serting affirmative defenses.
On April 27, 2017, the General Counsel filed with the
National Labor Relations Board a Motion for Summary
Judgment. On May 4, 2017, 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.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification of repre-
sentative on the basis of its contentions, raised and re-
jected in the underlying representation proceeding, that
the Union was improperly certified because the Union’s
supporters and/or agents threatened, intimidated, and/or
coerced employees and created a general atmosphere of
fear and coercion during the critical period and interfered
with employees’ ability to make a free and uncoerced
choice.1
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-

1 In its response to the Board’s Notice to Show Cause, the Respond-
ent also reiterates arguments raised in its preelection statement of posi-
tion that the Board’s Representation Case Rules (effective April 14,
2015) violate the Administrative Procedures Act, the spirit, intent and
language of the NLRA, and employers’ due process rights.
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).
Accordingly, we grant the Motion for Summary Judg-
ment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a cor-
poration with an office and place of business in Aurora,
Illinois, and has been engaged in the business of inter-
state freight transportation, including to and from the
Respondent's facility.
In conducting its operations during the calendar year
preceding the issuance of the complaint, the Respondent
purchased and received goods, products, and materials
valued in excess of $50,000 at the Respondent's facility
directly from points outside the State of Illinois.
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.3

2 The Respondent’s request that the complaint be dismissed is there-
fore denied.
Chairman Miscimarra would have granted the Employer’s request
for review with respect to the Regional Director’s decision to overrule,
without a hearing, Objection 1, which alleges union supporters and
agents harassed employees, Objection 2, which alleges a vocal pro-
union employee told another employee to “go fuck [him]self,” and
Objection 4, which alleges prounion agents “got in [the] face” of an
employee who disposed of union literature. While he remains of that
view, he agrees that the Respondent has not raised any new matters that
are properly litigable in this unfair labor practice proceeding and that
summary judgment is appropriate, with the parties retaining their re-
spective rights to litigate relevant issues on appeal.
3 The Respondent’s answer denies the complaint paragraphs alleg-
ing that the Respondent has been an employer engaged in commerce
within the meaning of the Act, that the Union is a labor organization
within the meaning of the Act, and that the unit is appropriate. Howev-
er, in the underlying representation proceeding, the Respondent stipu-
lated that it is engaged in commerce within the meaning of Sec. 2(6)
and (7) of the Act, that the Union is a labor organization within the
meaning of Sec. 2(5) of the Act, and that the unit is appropriate for the
purposes of collective bargaining. Accordingly, we find that the Re-
spondent’s denials do not raise any issue warranting a hearing. All
American Service & Supplies, 340 NLRB 239, 239 fn. 2 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on October
12, 2016, the Union was certified on November 2, 2016,4
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
Included: All full-time and regular part-time city driv-
ers, road drivers, and hostlers (spotters).
Excluded: All other employees, dock workers, mechan-
ics, janitors, managers, confidential employees, office
clerical employees and guards, professional employees
and supervisors as defined in the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
By letter dated November 8, 2016, and email dated
April 6, 2017, the Union requested that the Respondent
recognize and bargain collectively with it as the exclu-
sive collective-bargaining representative of the unit.
Since November 8, 2016, the Respondent has failed and
refused to bargain with the Union.
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing since November 8, 2016, to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the appropriate unit, the Respondent has engaged in un-
fair labor practices affecting commerce within the mean-
ing 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 law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry

4 On April 5, 2017, the Board (Chairman Miscimarra, dissenting in
part) denied the Respondent’s request for review of the Regional Direc-
tor’s Decision and Certification of Representative.
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, XPO Logistics Freight, Inc., Aurora, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Teamsters Local Union No. 179 as the exclusive collec-
tive-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 exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
Included: All full-time and regular part-time city driv-
ers, road drivers, and hostlers (spotters).
Excluded: All other employees, dock workers, mechan-
ics, janitors, managers, confidential employees, office
clerical employees and guards, professional employees
and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Aurora, Illinois, copies of the attached no-
tice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 13, after
being signed by the Respondent's authorized representa-
tive, 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. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by

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.”
XPO LOGISTICS FREIGHT, INC. 3
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent 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 November 8, 2016.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 13 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. July 6, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) 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 fail and refuse to recognize and bargain
with Teamsters Local Union No. 179 as the exclusive
collective-bargaining representative of our employees 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
listed above.
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 fol-
lowing appropriate bargaining unit:
Included: All full-time and regular part-time city driv-
ers, road drivers, and hostlers (spotters).
Excluded: All other employees, dock workers, mechan-
ics, janitors, managers, confidential employees, office
clerical employees and guards, professional employees
and supervisors as defined in the Act.
XPO LOGISTICS FREIGHT, INC.
The Board’s decision can be found at
www.nlrb.gov/case/13-CA-196637 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.