XPO Logistics Freight, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 2017

365 NLRB No. 42 (N.L.R.B. 2017)

365 NLRB No. 42
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 Local Lodge 701,
International Association of Machinists & Aero-
space Workers, AFL–CIO. Case 13–CA–189647
March 10, 2017
DECISION AND ORDER
BY ACTING 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 December 9,
2016, by Local Lodge 701, International Association of
Machinists & Aerospace Workers AFL–CIO (the Un-
ion), the General Counsel issued the complaint on De-
cember 16, 2016, alleging that XPO Logistics Freight,
Inc. (the Respondent) has violated Section 8(a)(5) and
(1) of the Act by refusing the Union's request to recog-
nize and bargain with it following the Union's certifica-
tion in Case 13–RC–177753. (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(d). Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations in the complaint, and asserting
affirmative defenses.
On December 30, 2016, the General Counsel filed a
Motion for Summary Judgment. On January 9, 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 based on its objections to the election in the
underlying representation proceeding.
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).
Accordingly, we grant the Motion for Summary Judg-
ment.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURIDICTION
At all material times, the Respondent has been a cor-
poration with an office and place of business in Gary,
Indiana (the Respondent’s facility), and has been en-
gaged in the business of interstate freight transportation,
including to and from the Respondent’s facility.
In conducting its operations during the calendar year
preceding 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 Indiana.
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
At all material times, Jeremy St. Pierre has been a su-
pervisor of the Respondent within the meaning of Sec-
tion 2(11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act.
Following the representation election held on June 29,
2016, the Union was certified on July 20, 2016, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
Included: All full-time and regular part-time mechan-
ics and mechanic/custodians employed by the Employ-
er at its facility currently located at 201 Blaine Street,
Gary, Indiana.
Excluded: All customer service representatives, Parts
Department employees, managerial 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
On August 18, 2016, the Union, by letter, requested
that the Respondent meet and bargain collectively with it
as the exclusive collective-bargaining representative of
the unit. Since about August 18, 2016, the Respondent

1 The Respondent’s request that the complaint be dismissed is there-
fore denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
has failed and refused to recognize and 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 August 18, 2016, to rec-
ognize and bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the
appropriate unit, the Respondent 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 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
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., Gary, Indiana,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Local Lodge 701, International Association of Machin-
ists & Aerospace Workers AFL–CIO, as the exclusive
collective-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 mechan-
ics and mechanic/custodians employed by the Employ-
er at its facility currently located at 201 Blaine Street,
Gary, Indiana.
Excluded: All customer service representatives, Parts
Department employees, managerial 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 Gary, Indiana, copies of the attached notice
marked "Appendix."2 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
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 August 18, 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. March 10, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
_____________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

2 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 3
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 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 Local Lodge 701, International Association of Machin-
ists & Aerospace Workers AFL–CIO as the exclusive collec-
tive-bargaining representative of our employees in the bar-
gaining 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 condi-
tions of employment for our employees in the following ap-
propriate bargaining unit:
Included: All full-time and regular part-time mechan-
ics and mechanic/custodians employed by us at our fa-
cility currently located at 201 Blaine Street, Gary, Indi-
ana.
Excluded: All customer service representatives, Parts
Department employees, managerial employees, office
clerical employees and guards, professional employees
and supervisors as defined in the Act.

XPO LOGISTICS FREIGHT, INC.
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