E.A. Sween Co.

National Labor Relations Board - Board Decisions

Aug 13, 2010

355 N.L.R.B. 491 (N.L.R.B. 2010)

E.A. SWEEN CO.
355 NLRB No. 87
491
E.A. Sween Company and Teamsters Local Union No.
754, affiliated with International Brotherhood of
Teamsters. Cases 13–CA–45563 and 13–RC–
21777
August 13, 2010
DECISION, CERTIFICATION OF REPRE-
SENTATIVE, AND NOTICE TO SHOW CAUSE
BY CHAIRMAN LIEBMAN AND MEMBERS
SCHAUMBER AND PEARCE
On December 24, 2009, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 354 NLRB No. 117. (not reported in
Board volumes)1 Thereafter, the General Counsel filed
an application for enforcement in the United States Court
of Appeals for the Seventh Circuit. On June 17, 2010,
the United States Supreme Court issued its decision in
New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, hold-
ing that under Section 3(b) of the Act, in order to exer-
cise the delegated authority of the Board, a delegee group
of at least three members must be maintained. Thereaf-
ter, the court of appeals remanded this case for further
proceedings consistent with the Supreme Court’s deci-
sion.
The National Labor Relations Board has consolidated
these proceedings and delegated its authority in both pro-
ceedings to a three-member panel.2
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceeding.
The Board’s December 24, 2009 decision states that the
Respondent is precluded from litigating any representation
issues because, in relevant part, they were or could have

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 Consistent with the Board’s general practice in cases remanded
from the Courts of Appeals, and for reasons of administrative economy,
the panel includes the members who participated in the original deci-
sion. Furthermore, under the Board’s standard procedures applicable to
all cases assigned to a panel, the Board members not assigned to the
panel had the opportunity to participate in the adjudication of this case
prior to the issuance of this decision.
been litigated in the prior representation proceeding. The
prior proceeding, however, was also a two-member deci-
sion and we do not give it preclusive effect.
We have considered the postelection representation is-
sues raised by the Respondent. The Board has reviewed
the record in light of the exceptions and brief, and has
adopted the Hearing Officer’s findings and recommenda-
tions to the extent and for the reasons stated in the Au-
gust 17, 2009 Decision and Certification of Representa-
tive, which is incorporated herein by reference.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Teamsters Local Union No. 754, affiliated
with the International Brotherhood of Teamsters, and that
it is the exclusive collective-bargaining representative of
the employees in the following appropriate unit:

All full time and regular part time drivers employed by
the Employer out of its facility currently located at
10350 Argonne Drive, #500, Woodridge, Illinois, but
excluding all lead drivers, office clerical employees and
guards, professional employees and supervisors as de-
fined in the Act.
Notice to Show Cause
As noted above, the Respondent has refused to bargain
for the purpose of testing the validity of the certification
of representative in the U.S. Courts of Appeals. Al-
though Respondent’s legal position may remain un-
changed, it is possible that the Respondent has or intends
to commence bargaining at this time. It is also possible
that other events may have occurred during the pendency
of this litigation that the parties may wish to bring to our
attention.
Having duly considered the matter,
1. The General Counsel is granted leave to amend the
complaint on or before August 23 to conform with the
current state of the evidence;
2. The Respondent’s answer to the amended com-
plaint is due on or before September 7; and
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before September 14 (with affidavit of ser-
vice on the parties to this proceeding), as to why the Board
should not grant the General Counsel’s motion for sum-
mary judgment. Any briefs or statements in support of the
motion shall be filed by the same date.