NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal
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California Gas Transport, Inc. and General Teamsters (Excluding
Mailers), State of Arizona, Local 104, an affiliate of The International Brotherhood
of Teamsters. Case 28–CA–21287
March 19, 2008
DECISION AND ORDER
By Members Liebman and Schaumber
On September 26, 2007, Administrative Law Judge James M.
Kennedy issued the attached decision.
The General Counsel and Respondent each filed exceptions and a
supporting brief. The General Counsel
also filed an answering brief.
The National Labor Relations Board
has considered the decision and the record in light of the exceptions and
briefs, and has decided to affirm the judge’s rulings, findings, and conclusions
as modified and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, California
Gas Transport, Inc., El Paso,
Texas, its officers, agents,
successors, and assigns, shall take the action set forth in the Order.
Dated, Washington, D.C. March 19, 2008
Wilma
B. Liebman, Member
Peter C. Schaumber, Member
(seal) National Labor Relations Board
Johannes Lauterborn, for the General Counsel.
Gregg J. Tucek, (Sherman & Howard), of Phoenix,
Arizona., for the Respondent.
Kathy Tiihonen, Organizer, of Phoenix, Arizona, for the Charging Party.
DECISION
Statement of the Case
James M. Kennedy,
Administrative Law Judge: This case was
tried before me in Tucson, Arizona, on July 18 and 19, 2007. The complaint, issued on May 31, 2007
by the Regional
Director for Region 28 of the National Labor Relations Board (the Board) is
based upon an unfair labor practice charge filed by General Teamsters
(excluding Mailers), State of Arizona, Local
104, an affiliate of the International Brotherhood of Teamsters (the Union) on March 14, 2007.
It alleges that Respondent, California Gas Transport, Inc. (Respondent),
has engaged in certain unilateral changes in the working conditions of
Respondent's Nogales-based drivers in violation of Section 8(a)(5) and (1) of
the Act (the Act). At the hearing, counsel
for the General Counsel amended the complaint to assert that Respondent had
withdrawn recognition of the Union.
Respondent denies the allegations.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine witnesses and to file
briefs. All parties have filed briefs
which have been carefully considered.
Based upon the entire record of the case, as well as my observation of
the witnesses and their demeanor, I make the following
Findings of Fact
i.
jurisdiction
Respondent admits that at all times material it has been a
Texas corporation headquartered in El Paso and having offices in Nogales,
Arizona, and San Diego, California. It is engaged in the business of transporting
propane gas by tanker truck. During the
12-month period ending March 14, 2007, Respondent in conducting its business
purchased and received at its Nogales facility
goods valued in excess of $50,000 directly from points outside the State of Arizona. Accordingly, it admits that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act. In addition, Respondent admits that
the Union is a labor organization within the
meaning of Section 2(5) of the Act.
ii. background and issues
On August 31, 2006, the Board issued a bargaining order
against Respondent requiring it to recognize and bargain with the Union over the wages, hours, and terms and conditions of
employment of its Nogales-based drivers.
California Gas Transport, Inc.,
347 NLRB No. 118 (2006. Respondent has filed an appeal of that order in the
United States Court of Appeals for the Fifth Circuit and has declined to
recognize the Union pending the outcome of
that appeal.
As was found in the earlier case, Respondent has only one
customer, Universal Gas. Universal Gas
has contracted with several propane suppliers in the United States to purchase large
quantities of propane. The propane is
picked up by Universal's carrier, Respondent, at various locations in United States. Those locations include a Valero Energy
refinery in El Paso; a refinery in Gallup, New Mexico; a petroleum storage
facility west of Phoenix (known as Bumstead LPG (in the suburb of Waddell); and
a refinery in Bakersfield, California.
Respondent is contracted to Universal to deliver the propane to Universal’s
customer which, according to the contract of transport services between
Respondent and Universal, is PEMEX, the state-owned petroleum monopoly of Mexico. PEMEX has storage facilities in the cities of
Juarez, Nogales, Mexicali,
and Tijuana, Mexico. I infer from the testimony that those locations
are operated by Hidrogas Silza.
The Juarez location is usually served by Respondent's El Paso drivers short-hauling propane from the nearby
Valero Energy refinery in El Paso which is only
a few miles from the Juarez border
station. Nogales,
Mexico is always serviced by
drivers located in Nogales, Arizona
and who commonly pick up propane from the Gallup
refinery or from the Bumstead storage facility.
The Nogales, Mexico drop-point is about 8 miles
beyond the border. On rare occasions
these drivers have been asked to deliver to Juarez or to pick up from a Flagstaff, Arizona
storage facility.
The San Diego drivers
acquire their propane from three locations, the Bakersfield
refinery, the Bumstead facility, or the Gallup
refinery. They then deliver their LPG
cargo to either Mexicali or Tijuana.
The Mexicali drop-point is about is about
15 miles beyond the Calexico, California
border crossing.
It is fair to say that the San Diego drivers are long-haul or
over-the-road drivers. The Nogales drivers normally
perform one long haul and one medium length run. The trucks from both cities are equipped with
sleeper units enabling the drivers to sleep in the cabs. Their rest periods can occur at any time,
depending on when they have exhausted their drivable hours as set forth by U.S.
Department of Transportation regulations.
Runs are based upon what Universal Gas' instructions from PEMEX are at
any given moment. In early 2007,
Respondent was required to deliver approximately 2 million gallons of propane
per month. Gardea describes the manner
that the deliveries are called for: “They
[Universal] tell me every month how much gallons we are going to pick up, but
during the month, they might need more propane and I have to deliver more propane. But are we talking about the same two million
gallons. It is just a different amount
of loads per day.”
Aware of these circumstances, the complaint alleges three
incidents supposedly breaching the bargaining obligations of Section 8(d) and
(a)(5). First, it asserts that on
October 20, 2006, Respondent withdrew recognition of the Union in the Nogales bargaining
unit. Second, it asserts that on January
27, Respondent changed the route of driver Rogelio Delgadillo by assigning him
to drive to El Paso. Third, it contends that in January and
February Respondent unilaterally changed the working conditions by assigning
its drivers to runs to Mexicali, normally served
by the San Diego
drivers.
Respondent defends the first, arguing that any obligation
to bargain must await the outcome of its appeal to the Fifth Circuit. It defends the second on a factual basis,
observing that Delgadillo was one of three drivers assigned a Juarez run in
that timeframe and that Delgadillo is splitting hairs between a Juarez run and
an El Paso run; he knew he was expected to deliver to Juarez, but would
not. It defends the third observing that
the February Mexicali run was only temporary in order to deal with the
temporary loss of the Bakersfield
supplier due to an explosion, fire and temporary shut-down of that
facility. However, there is one January
run to Mexicali
it does not address.
In addition, it should be observed at this juncture that
there has been, and continues to be, a wildly differing perspective on what
types of drivers these are. Respondent
has consistently, starting with the previous proceeding, contended that the Nogales-based
drivers, like the San Diego
drivers, are over-the-road drivers who can be called upon to drive wherever the
customer requires at any time of any given week. It does allow that it generally lets the
drivers be home for many weeknights and most weekends; indeed those making the
Nogales-Wadddell roundtrip would be at home that same night. The General Counsel argued to Judge Meyerson,
and now to me, that the Nogales-based drivers are route drivers who drove only
to Gallup and Waddell, ending their routes at their Nogales-area homes. Judge Meyerson, affirmed by the Board,
accepted that argument and made an appropriate finding. See 347 NLRB No. 118, slip op. at 46, where
he said:
[Nogales dispatcher] Velasco attempted to
alter the Nogales-based drivers’ route assignments by directly dealing with
them. Of course, these route assignments were inherently related to their
rates of pay, hours, and terms and conditions of employment. These are
mandatory subjects over which the Respondent was required to bargain with the Union. See Permanente Medical Group, Inc., 332
NLRB 1143 (2000); Southern California Gas Co., 316 NLRB 979, 982
(1995). In attempting to make these changes in the route assignments
without consulting and bargaining with the Union, the Respondent was engaged in
direct dealing with the represented employees and was making unilateral changes
in the terms and conditions of their employment in violation of the Act. Christopher
Street Owners Corp., 294 NLRB 277, 282 (1989).
Under principles of res judicata I am bound by that
finding. Accordingly, as part of the
background to the case, I find myself obligated to consider the drivers who
drove from the Nogales
yard to be route drivers, not over the road drivers. See the collateral estoppel discussion infra.
iii. the
alleged unfair labor practices
A.
The Purported Withdrawal of Recognition
As noted above, the Board has ordered Respondent to recognize
and bargain with the Union in a bargaining
unit consisting of Respondent's Nogales-based drivers. It directed that the bargaining take place on
retroactive basis beginning August 30, 2004.
As stated, the Board did not issue its order until August 31, 2006. At that time, Respondent made the decision to
file an appeal of the Board's order in the United States Court of Appeals for
the Fifth Circuit. Aside from a short
period covered by the temporary injunction referred to in footnote 2, there was
no formal bargaining order in place until August 31, 2006. During the 2-month period covered by the
temporary injunction, the Union did make an
effort to bargain. In fact, Respondent
on July 7, 2006, asked the Union to submit a
written contract proposal and to consider certain dates for negotiations. The Union,
by letter of August 9, 2006, proposed to meet in October. However, the Board order intervened on August
31 and Respondent determined to appeal it.
In mid-October one of the Union's
business representatives, Frank Mendoza, telephoned one of Respondent's
attorneys to follow up on a proposed meeting.
The attorney advised him that Respondent had filed an appeal of the
Board's order and would not agree to meet until the validity of the Board's
order had been affirmed by the court. As
a result of the appeal no bargaining has yet occurred.
B.
Delgadillo's Instructions to Go to Juarez
The assignment of Nogales-based drivers to drive to Juarez has never been frequent. Respondent has generally serviced Universal's
needs in Juarez through propane pickup from a Valero Energy refinery in El Paso. Nevertheless, a Juarez
run was given to Delgadillo beginning on Saturday, January 27. He was the second driver to be assigned that
run during the late January timeframe.
The first leg required Delgadillo to make an early morning run to
Waddell for a pickup at Bumstead. He
brought it back to Nogales
at noon that day. He parked the loaded
tanker at Respondent’s Nogales,
Arizona yard. He was off on Sunday. Early on Monday morning, January 29, he drove
the load to El Paso.
Delgadillo had earlier been involved in the unfair labor
practice hearing before Judge Meyerson, specifically an allegation concerning
driving from Nogales to Juarez. He also knew that he did not possess a Juarez crossing badge issued by Mexican Customs. His lack of a badge led to a conversation with
dispatcher Velasco in which he attempted to negotiate around what he perceived
to be the problem he would encounter when crossing the border at Juarez. Velasco
didn’t concur with his apprehensions.
Apparently, in some frustration, Velasco told him to drive to the El Paso yard and take up
the matter with operations manager, Oscar Gardea, who was officed there and who
would resolve the problem by assigning a passenger who possessed the appropriate
badge and who would ride with him across the border. Delgadillo was not enamored of this procedure
either. At this point he decided to
contend that he had been instructed to drive only to El
Paso, rather than to Juarez. Accordingly he drove to Respondent’s El Paso facility. Once there, he had a conversation with Gardea
who asked him if he was going to take truck across. When Delgadillo said he would not, Gardea
told him to wait. Shortly thereafter another
driver appeared and took the truck to Juarez. Delgadillo waited 6 hours until the truck was
returned. He then took his DOT rest
period, from 5 p.m. until 3 a.m. the following morning, staying in the sleeper
unit of his truck. Afterwards, he drove
the truck, as instructed, back to Waddell where he loaded an order and
delivered it to Nogales, Mexico.
C.
The Runs to Mexicali
On January 22, Delgadillo found himself in Waddell at 6
p.m., needing to take his DOT scheduled rest.
At 4 a.m. on January 23, he loaded at Bumstead and, per instructions,
took the load to Mexicali, despite the fact that
Nogales drivers had never before delivered loads
to Mexicali. He then returned to Waddell, reloaded and
went back to Nogales. This run to Mexicali seems to have been an isolated
incident. Indeed, Respondent's officials,
when testifying, were mystified about it.
In some respects their puzzlement is understandable, given their
perspective that once drivers are on the road, Respondent's obligation is to
serve Universal's ever-shifting requirements.
This particular Mexicali run may simply
have been a response to an immediate need specified by Universal, and
Delgadillo’s presence at Bumstead was fortuitous to a Mexicali delivery. Whatever the reason, Delgadillo's Mexicali run was in fact typical of all Respondent's
longer runs, including Gallup. A Gallup
roundtrip from Nogales
was a little over 800 miles. This Mexicali excursion,
Waddell-Mexicali-Waddell-Nogales was about 690 miles. [4] Drivers were expected to run through the
entire week, ending up in Nogales. Certainly Delgadillo was back in Nogales by Wednesday,
though his trip logs for the days later in the week are not in evidence.
The Mexicali
situation changed for a short time in early February. It is undisputed that on Thursday, February
8, 2007, several of Respondent's San Diego
drivers were awaiting loads at Bakersfield. At that time an explosion or fire occurred at
the facility, although this record does not clearly describe the location or
nature of the conflagration. The waiting
drivers notified their dispatcher of the situation by either radio or cellular
telephone in San Diego. He told them to leave the area for safety reasons
and await further instructions.
Respondent’s operations manager, Oscar Gardea, was visiting
the San Diego office that day and learned of the
Bakersfield
problem as it was occurring. He notified
his contact at Universal in Juarez, Palemon
Solorzono, to find out what alternative sources Universal wished to use. His inquiry resulted in the San Diego-based
drivers running from Bakersfield
to both Waddell and Gallup. At first,
this slowed their capability to serve Tijuana. As Respondent focused on Tijuana,
that necessarily reduced its capability to serve Mexicali.
After a day or two, Respondent determined that it could cover Mexicali by diverting some of its Nogales-bound trucks
there, since Universal deemed the LPG demand in Nogales to be not as vital.
During the weeks of February 12–17 and February 19–23,
Respondent's Nogales-based drivers made a number of runs to Mexicali.
Some were as a result of re-routes and some were scheduled. Over that 2-week period, approximately 24 deliveries
were made to Mexicali from either Bumstead or
Gallup, including some loads diverted from the Nogales yard.
Most of Respondent's Nogales-based drivers participated in at least one
run. Several made three or more.
iv. analysis
and conclusions
To recap, this case has three contentions: 1. Unilateral
changes insofar as runs from Nogales to Juarez
are concerned; 2.(a) Unilateral changes
with regard to the January 22 run to Mexicali
made by Delgadillo and 2.(b). Unilateral
changes with regard to the February runs to Mexicali
triggered by the temporary loss of the Bakersfield
supplier. 3. The alleged withdrawal of recognition.
Taking the last first, Respondent's recognition of the
Union as the collective-bargaining representative of its Nogales drivers is
based solely on the Board's order in California
Gas Transport, Inc., 347 NLRB No. 118 (2006). Respondent has not voluntarily recognized the
Union; it has been ordered to do so and has
chosen to file an appeal with the appropriate United States Court of
Appeals. This circumstance may be viewed
two different ways. First, follow Respondent’s
assertion that I must await the outcome of the court's review of that order;
or, second, as a Board administrative law judge, that I am bound to recognize
Board orders as a matter of res judicata.
Certainly as the Board’s judicial officer, I am obligated
to recognize and give effect to what has gone before, at least insofar as Board
findings are concerned. I am therefore
not able, as a matter of law, to observe that in reality Respondent may eventually
succeed in overturning the bargaining order which the Board issued.
In American
Thoro-Clean, 283 NLRB 1120
(1987), Administrative Law Judge David S. Davidson found himself faced with a
similar procedural circumstance. The
preceding case there had not yet been decided by the Board, as opposed to here
where the Board has decided it, but the Court of Appeals has not yet reviewed
it. Judge Davidson made the following
observation which I find persuasive:
For purposes of this decision, I rely on the findings and
conclusions of Judge Giannasi in Case 13–CA–21389 with respect to the unfair
labor practice committed by Respondent before the issues in this case arose. To
be sure, if his decision should be reversed in any substantial part, the
underpinnings of this case may well disappear. However, whether affirmed or
reversed by the Board or a court of appeals, the decision in that case will be
res judicata as to the issues decided in it, and they are not subject to
relitigation in this case. Thus, that decision establishes that Local 11 was
the majority representative of Respondent's employees. . . .
Following Judge Davidson’s logic, I find that the proof establishes
that Respondent was obligated to recognize the Union as the collective
bargaining representative of the Nogales
drivers effective August 30, 2004. This
complaint alleges that Respondent withdrew recognition on October 20,
2006. Even so, the General Counsel has
not shown what act Respondent took which constitutes a withdrawal of
recognition. He does argue that when Respondent’s
attorney truthfully told the Union’s business
agent Mendoza that it was in the process of appealing the Board’s order to the
Court of appeals, that action constituted a withdrawal of recognition. Frankly, I find that argument to be unworthy
of much consideration. A straightforward
refusal to bargain in order to challenge a Board certification is certainly not
a withdrawal of recognition. Indeed, it
is part of the statutory process by which representation case issues can be
reviewed by the courts. See Section 10(f)
of the Act which requires a final Board order as a predicate to court
review. A certification of representative
is not a final order subject to direct challenge. Similarly, Respondent’s refusal to bargain is
the statutory predicate for an appeal of the bargaining order. It cannot be regarded as a withdrawal of
recognition. Alleging a withdrawal of
recognition adds nothing to the overall situation. Furthermore, ordinary unilateral changes do
not usually qualify as a withdrawal of recognition. Indeed, the General Counsel does not cite any
particular case for that proposition.
Frankly, I fail to see the utility of the allegation.
As Judge Davidson said above, whatever happens in the previous
case will become res judicata in the
second. Indeed, it may fairly be said
that Respondent is acting at its peril with respect to its decision to decline
to bargain with the Union pending final resolution of the issue by the Court of
Appeals.
I will agree with the
General Counsel that the bargaining obligation attached as the Board said, but
the simple fact is that despite the Board's order, Respondent has never
recognized the Union in any meaningful
way. Accordingly, I shall recommend that
this allegation be dismissed.
Respondent's refusal to bargain with the Union
is simply a matter for compliance with the original Board order.
Turning to the unilateral change allegations, once again
the issue of res judicata, or more properly, collateral estoppel, comes into
play.
The definitions of and distinction between the principles
of res judicata and collateral estoppel were set forth by Justice Marshall in Montana
v. United States, 440 U.S. 147, 153–154 (1979). The Board has adopted his reasoning and
applied it. See Sabine Towing &
Transportation Co., 263 NLRB 114, 120 (1982), where Administrative Law
Judge William Schmidt, affirmed by the Board, held that collateral estoppel
barred relitigation of an issue which had been previously decided against the
General Counsel. He observed that Justice
Marshall said in Montana: “Under res judicata, a final judgment on the merits bars further claims by
parties or their privies based on the same cause of action. Cromwell v. County
of Sac., 94 U.S. 351, 352 (1877); Lawlor v. National
Screen Service Corp., 349 U.S.
322, 326 (1955); 1B, Moore,
Federal Practice ¶. 0.405 [1], 621, 624 (2d ed. 1974)
(hereinafter 1B Moore);
Restatement (Second) of Judgments Section 47 (Tent. Draft No. 1, March 28, 1973)
(merger); id. Section 48 (bar). Under collateral estoppel, once an issue is actually
and necessarily determined by a court of competent jurisdiction, that
determination is conclusive in subsequent suits based on a different cause of
action involving a party to the prior litigation. Park Lane Hosiery Co. v.
Shore, 439 U.S.
322, 326 fn. 5 (1979).” Accordingly
Judge Schmidt dismissed the allegation.
In the previous case against Respondent Judge Meyerson and
the Board clearly found that the Nogales-based runs to places other than
Waddell, Gallup and probably Flagstaff, are material and substantial
changes in the working conditions of the Nogales-based drivers. In making that finding, the Board held that
the runs to which those drivers are assigned are regular routes, not
over-the-road runs. It made that finding
knowing full well that these drivers drove vehicles with sleeper units behind
the cabs. It was aware that most of the
runs were to Phoenix/Waddell and permitted the drivers, for the most part, to spend
rest periods or nights at their homes in or near Nogales.
These drivers did not normally depart in the first part of the week and
return at the end of the week as long haul drivers might normally be expected
to do. Therefore, the fact that the
Juarez and Mexicali runs may be relatively
similar to the Gallup
run is of no moment, given the Board's finding in the previous case. More specifically, it is settled law that an
employer violates §8(a)(5) and (1) if a material change in the conditions of
employment is made without consulting with the employees' bargaining
representative and providing a meaningful opportunity to bargain. Ciba-Geigy Pharmaceuticals Division v. NLRB,
772 F.2d 1120, 1126 (3d Cir. 1983). "An employer must inform the union of
its proposed actions under circumstances which at least afford a reasonable
opportunity for counter arguments or proposals." NLRB v. Centra, 954 F. 2d 366, 372 (6th Cir. 1992)." Accordingly, I find that when Respondent assigned
Delgadillo first to Mexicali in January and later in that month to Juarez,
without first consulting with the Union, it violated Section 8(a)(5) and (1) of
the Act.
I do not find, however, that Delgadillo suffered a loss of
pay for his refusal to across the border.
Respondent normally provides each driver with a bonus for each border
crossing. Had Delgadillo allowed the
badge-bearer to join him in taking that load across from El
Paso to Juarez, he would have
received the bonus. Whether it was he or
the badge-bearer who was behind the wheel would have had no effect on his
remuneration. Accordingly any backpay
due him for making the January 27–29 Nogales-El Paso/Juarez run should not
include the bonus.
As for the Mexicali runs
which occurred for two weeks after the Bakersfield
fire, I observe that Respondent did not immediately assign the Nogales
drivers to cover Mexicali. It took a few days for Respondent to realize
that the San Diego drivers were having
difficulty meeting the needs in Tijuana if they
were to also serve Mexicali. It therefore had sufficient time and opportunity
to notify the Union that it needed to assign Nogales
drivers to make Mexicali
runs. It did not avail itself of that
time window. More specifically, I find
that the Bakersfield
fire did not constitute an exigent circumstance. For the Nogales
drivers, it was not an emergency. In
addition, while Respondent was able to cobble together pay calculations for
Nogales-Gallup-Mexicali and Nogales-Waddell-Mexicali, those runs did not have
an established pay scale, such as those set forth in General Counsel’s Exhibit 10. Beyond that, runs to Mexicali
meant that drivers could sometimes end up in Mexicali
and need to deadhead home to Nogales,
a leg for which they would not be paid anything beyond reimbursement for diesel
fuel. Such circumstances clearly needed
to be bargained with the Union.
Accordingly, I am unimpressed with Respondent's defense
that the Nogales drivers actually profited from Mexicali runs. It may be that some did earn more than they
might have had they remained running solely to Gallup
or Bumstead and back to Nogales. The change may indeed have provided earnings
opportunities that they might not otherwise have had. Yet, that is not the issue. The issue is whether Respondent made a material
and substantial change in Nogales
drivers' working conditions when it assigned them to those runs. In addition, it deprived the Union of the opportunity to negotiate appropriate
remuneration for making them.
On that basis, I conclude that Respondent's assignment of
the Mexicali
runs in February violated Section 8(a)(5) and (1).
Remedy
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist and to take
certain affirmative action designed to effectuate the policies of the Act. The affirmative action will include an order
to post a notice to employees advising them of the remedial steps it will
take. It shall also require Respondent
to make whole the Nogales drivers for any pay losses they may have suffered,
plus interest, due to their being assigned unusual runs in circumstances where
their collective-bargaining representative had not been given the opportunity
to bargain over such assignments.
Interest will be calculated under New Horizons for the Retarded,
283 NLRB 1173 (1987). Nevertheless, it
will not be required to pay the border crossing bonus to driver Rogelio
Delgadillo for his refusal to cross the border on January 29, since he, not
Respondent, made the decision not to make that crossing and his reason for
refusing to cross is not related to the unlawful unilateral change that the
assignment entailed.
Based on the foregoing findings of fact and the entire
record in this case, I hereby issue the following
Conclusions of Law
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor
organization within the meaning of § 2(5) of the Act.
3. The General Counsel has failed to prove that Respondent
withdrew recognition of the Union.
4. Respondent violated Section 8(a)(5) and (1) of the Act
when on January 22 and 27, and in early February 2007 it unilaterally assigned
its Nogales-based drivers to Juarez and Mexicali runs without first bargaining
with the Union over the manner in which those assignments changed the drivers’
wages, hours,and working conditions.
Based on the foregoing findings of fact and conclusions of
law and the entire record, I issue the following recommended
ORDER
The Respondent, California Gas Transport, Inc., El Paso, Texas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Making unilateral changes in the routes, pay rates or
other terms or conditions of employment its Nogales
bargaining unit employees, without prior notice to or bargaining with the Union as their exclusive collective-bargaining
representative.
(b) In any like or related manner interfering with,
restraining, 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.) Within 14 days of the Board’s decision, make whole
the employees in the bargaining unit, together with interest, for any pay they
may have lost due to the unlawful unilateral changes as set forth in the remedy
section of this decision.
b. Within 14 days after service by the Region, post at its
facility in Nogales, Arizona, copies of the attached notice
marked “Appendix.” Copies of the notice, on forms provided by
the Regional Director for Region 28 after being signed by Respondent's
authorized representative, shall be posted by Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted. Reasonable steps shall be taken by 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, Respondent has gone out of business or closed
the facility involved in these proceedings, Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current employees and
former employees employed by Respondent at any time since January 27, 2007.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible official on a form
provided by the Region attesting to the steps Respondent has taken to comply.
Dated, Washington,
D.C. September 26, 2007
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 benefit and
protection
Choose not to engage in any of these protected activities.
We will not
make unilateral changes in your routes, pay rates or other terms and conditions
of employment without first notifying or bargaining with General Teamsters
(excluding Mailers), State of Arizona,
Local 104, an affiliate of the International Brotherhood of Teamsters as your
exclusive collective-bargaining representative.
We will not in
any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights guaranteed by the
Federal law set forth above.
We
will make those of you whole, together with interest, for any pay you
may have lost due to our unlawful unilateral changes in your routes, pay rates
and other terms or conditions of employment
California Gas Transport, Inc.
