ENTERPRISE LEASING COMPANY-SOUTHEAST, LLC

National Labor Relations Board - Board Decisions

Oct 2, 2014

361 N.L.R.B. 686 (N.L.R.B. 2014)

686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Enterprise Leasing Company-Southeast, LLC and
International Brotherhood of Teamsters, Local
391. Case 11–CA–073779
October 2, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
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.1 Pursuant to a charge filed by the Union on
February 3, 2012,2 the Acting General Counsel issued
the complaint on February 27, 2012, alleging that the
Respondent has violated Section 8(a)(5) and (1) of the
Act by refusing the Union’s request to bargain following
the Union’s certification in Case 11–RC–006746.3 The
Respondent filed an answer, admitting in part and deny-
ing in part the allegations in the complaint and asserting
affirmative defenses.
On March 14, 2012, the Acting General Counsel filed
a Motion for Summary Judgment. On March 16, 2012,
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.
On April 18, 2012, the Board issued a Decision and
Order in this proceeding, which is reported at 358 NLRB
251. The Board filed an application for enforcement of
the order in the United States Court of Appeals for the
Fourth Circuit. The court consolidated the case for oral
argument and decision with Huntington Ingalls, Inc. v.
NLRB (4th Cir. No. 12–2065).
On July 17, 2013, the court denied enforcement of the
Board’s order. NLRB v. Enterprise Leasing Co.-
Southeast, LLC, 722 F.3d 609, 660 (2013). At the time
of the Board’s order, three of the five members of the
Board were serving pursuant to January 2012 appoint-
ments that had been challenged as constitutionally in-
firm. The court’s denial of enforcement was based on its
conclusion that the January 2012 appointments were in-
valid, and that the Board therefore lacked a quorum to act
at the time that it issued the order. Id. at 612–613, 660.
The Board filed a petition for rehearing for the limited
purpose of requesting that the court’s order be modified
1 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Union also filed an amended charge on February 22, 2012, but
it was later withdrawn.
3 357 NLRB 1799 (2011). Official notice is taken of the record in
the representation proceeding as defined in the Board’s Rules and Reg-
ulations, Secs. 102.68 and 102.69(g). Frontier Hotel, 265 NLRB 343
(1982).
to include language explicitly remanding the case to the
Board for further proceedings consistent with the court’s
decision. The petition was summarily denied.
The Board subsequently filed a petition for certiorari.
After the Supreme Court’s decision in NLRB v. Noel
Canning, 134 S.Ct. 2550 (2014), which held the January
2012 appointments invalid, the Court denied the Board’s
petition.
By letter dated August 15, 2014, the Executive Secre-
tary notified the parties that, in view of the determination
that the Board that had previously decided the case was
not properly constituted, the Board would now “consider
the case anew and . . . issue a decision and order resolv-
ing the complaint allegations.” Thereafter, the Respond-
ent filed a letter objecting to any further action by the
Board, arguing that in the absence of a remand from the
court the Board lacks jurisdiction over this case.
Respondent’s Objection to Consideration of Motion for
Summary Judgment
The threshold issue is whether, in light of the denial of
enforcement, the Board may consider this case anew.
The sole basis of the decision denying enforcement was
the court’s conclusion that the January 2012 appoint-
ments were invalid, and that the Board thus lacked a
quorum when it issued its order. See 722 F.3d at 612–
613, 660. The court’s denial of enforcement was not
based on the merits of the unfair labor practice findings;
to the contrary, the court held that the Board’s determina-
tion on the merits of the case was supported by substan-
tial evidence. Id. at 620. The clear import of the court’s
decision denying enforcement, along with the Supreme
Court’s Noel Canning decision, is that no validly consti-
tuted Board has ruled on the General Counsel’s motion
for summary judgment. The motion is therefore still
pending before the Board, and the Board is free to ad-
dress it.
This conclusion is consistent with the court’s denial of
the Board’s petition for rehearing. In the petition, the
Board stated its view that the court’s decision clearly
contemplated the possibility of further proceedings be-
fore a validly constituted Board:
The Court’s denial of enforcement is not based on the
merits of the Board’s unfair labor practice determina-
tions, but solely on the Court’s determination that the
recess appointments to the Board were unconstitution-
al, and that the Board orders, issued without a Board
quorum, therefore “must be vacated.” [722 F.3d at
660.] Accordingly, it follows that the Court’s decision
is to be read as anticipating the possibility of issuance
of new Board orders.
361 NLRB No. 63

ENTERPRISE LEASING COMPANY–SOUTHEAST, LLC 687
Petition for Rehearing at 3–4, NLRB v. Enterprise Leasing
Co.-Southeast, LLC, supra (No. 12–1514) (emphasis in
original). Notwithstanding this understanding of the mean-
ing of the denial of enforcement for further proceedings
before the Board, the Board requested the inclusion of ex-
plicit remand language, in order to avoid the possibility of
needless litigation concerning the issue. Because the peti-
tion was denied without explanation, no inference can be
drawn that the denial was inconsistent with the clear import
of the order denying enforcement.4
Finally, consideration of the motion at this time is con-
sistent with the treatment in the courts of appeals of other
cases in which enforcement was denied for lack of a
Board quorum at the time the original decision was is-
sued, and the Board then considered the case again and
issued a new decision. The issue was presented squarely
in NLRB v. Whitesell Corp., 638 F.3d 883 (8th Cir.
2011). The court had denied enforcement of the Board’s
original order because the Board had lacked a quorum
under New Process Steel, L.P. v. NLRB, 560 U.S. 674
(2010),5 and the Board issued a new decision and order.
The court enforced the new order, rejecting the respond-
ent’s argument that the Board lacked jurisdiction to re-
decide the case:

In the prior action, the only question presented
was whether to enforce the NLRB’s order. Relying
on the New Process decision, we denied the applica-
tion for enforcement because the prior NLRB deci-
sion, reached while there were only two members of
the Board, was invalid. On that issue, our decision is
final. See 29 U.S.C. § 160(e).
We have yet to determine whether Whitesell vio-
lated the NLRA. Our prior denial does not preclude
the Board, now properly constituted, from consider-
4 See, e.g., Exxon Chemical Patents, Inc. v. Lubrizol Corp., 137 F.3d
1475, 1483 (Fed. Cir. 1998) (motion for clarification); United States v.
Cote, 51 F.3d 178, 181 (9th Cir. 1995) (petition for rehearing or modi-
fication); Luckey v. Miller, 929 F.2d 618, 621–622 (11th Cir. 1991)
(petition for rehearing en banc). Member Johnson did not participate in
the prior representation case and concurs with the result in this proceed-
ing, without needing to rely on the Board’s view stated in its petition,
above. Here, the Court indicated in its original opinion on review that
the sole reason for declining to enforce the order was based on the
invalid composition of the Board at that time; the Court did not give
any explanation for its subsequent denial of the petition for rehearing
that was filed by a constitutionally valid Board; and the Respondent has
admittedly refused to bargain while not raising any representation is-
sues that are properly litigable in an unfair labor practice proceeding.
See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Given those circumstances, Member Johnson concurs here.
5 NLRB v. Whitesell Corp., 385 F. Appx. 613 (8th Cir. 2010). As in
the instant case, the court had also summarily denied a postdecisional
motion by the Board for remand or clarification. 638 F.3d at 888.

ing this matter anew and issuing its first valid deci-
sion. . . . . The Board properly read our denial of the
application for enforcement as based solely on the
New Process decision. We now address the merits of
the Board’s decision for the first time.

638 F.3d at 889. Similarly, in NLRB v. Domsey Trading
Corp., 636 F.3d 33 (2d Cir. 2011), the court addressed the
merits of a Board decision readdressing a case in which it
had denied enforcement of a prior decision based on New
Process Steel. See NLRB v. Domsey Trading Corp., 383 F.
App’x 46 (2d Cir. 2010); NLRB v. Domsey Trading Corp.,
636 F.3d at 34 fn. 1.6 Accordingly, we proceed to consider
the General Counsel’s motion.7
Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification on the basis of its
objections to conduct alleged to have affected the results
of the election in the 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).8
Accordingly, we grant the Motion for Summary Judg-
ment.
6 See also NLRB v. Whitesell Corp., 638 F.3d at 889 (While “the
Domsey Trading court declined the invitation to clarify its denial deci-
sion,” it “anticipated further proceedings before the NLRB” and, after
“the case was reconsidered by the Board, . . . addressed the merits of
the Board’s decision”).
7 NLRB v. Lundy Packing Co., 81 F.3d 25 (4th Cir. 1996), relied on
by the Respondent in opposing consideration of the General Counsel’s
motion, is inapposite. In that case, the court had denied enforcement of
a prior Board order in the case, on the merits. Here, decisively, the
court’s denial of enforcement of the prior order was not a final judg-
ment on the merits of the case. See Whitesell, 638 F.3d at 889.
8 The Respondent’s motion that the complaint be dismissed in its
entirety is therefore denied.

688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a company with
an office and place of business is located at the Raleigh-
Durham airport in Raleigh, North Carolina, has been
engaged in the rental of vehicles at the Raleigh-Durham
airport.
During the 12-month period preceding the issuance of
the complaint, the Respondent, in conducting its opera-
tions described above, derived gross revenues in excess
of $500,000 and purchased and received at its facility
goods and materials valued in excess of $5000 directly
from points located outside the State of North Carolina.
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, International Brother-
hood of Teamsters, Local 391, is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on Decem-
ber 16 and 17, 2010, the Union was certified on Decem-
ber 29, 2011, as the exclusive collective-bargaining rep-
resentative of the employees in the following appropriate
unit:
All hourly full-time and regular part-time greeter, exit
booth agents, counter representatives, rental agents,
handheld agents, bus drivers, service agents, customer
service representatives, push/pullers and mechanics
employed by the Employer at its Alamo and National
car rental facility located at its Raleigh-Durham airport
facility; but excluding all salaried employees, technical
employees, office clerical employees, and guards, pro-
fessional employees, and supervisors as defined in the
National Labor Relations Act, as amended.
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
At all material times, Adam Schneider held the posi-
tion of regional vice president of the Respondent and has
been a supervisor of the Respondent within the meaning
of Section 2(11) of the Act and an agent of the Respond-
ent within the meaning of Section 2(13) of the Act.
About January 17, 2012, the Union, by letter, request-
ed that the Respondent recognize the Union and bargain
collectively with it. Since about January 23, 2012, the
Respondent has refused to recognize and bargain with it.
We find that this failure and refusal constitutes an unlaw-
ful 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 January 23, 2012, 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
Co., 136 NLRB 785 (1962); accord: Burnett Construc-
tion 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.), cert. denied 379
U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, Enterprise Leasing Company-Southeast,
LLC, Raleigh, North Carolina, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Teamsters, Local 391, 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, recognize and bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit on terms and conditions of
employment, and, if an understanding is reached, em-
body the understanding in a signed agreement:

All hourly full-time and regular part-time greeter, exit
booth agents, counter representatives, rental agents,
handheld agents, bus drivers, service agents, customer
ENTERPRISE LEASING COMPANY–SOUTHEAST, LLC 689
service representatives, push/pullers and mechanics
employed by the Employer at its Alamo and National
car rental facility located at its Raleigh-Durham airport
facility; but excluding all salaried employees, technical
employees, office clerical employees, and guards, pro-
fessional employees, and supervisors as defined in the
National Labor Relations Act, as amended.

(b) Within 14 days after service by the Region, post at
its facility in Raleigh, North Carolina, copies of the at-
tached notice marked “Appendix.”9 Copies of the notice,
on forms provided by the Regional Director for Region
11, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, 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. Reasonable steps shall be taken by the Respond-
ent 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 Respondent has
gone out of business or closed its facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since January 23, 2012.
(c) Within 21 days after service by the Region, file
with the Regional Director of Region 11 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.
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.
9 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.”
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 International Brotherhood of Teamsters, Local 391,
as the exclusive collective-bargaining representative of
the 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, recognize and bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the following bargaining unit:

All hourly full-time and regular part-time greeter, exit
booth agents, counter representatives, rental agents,
handheld agents, bus drivers, service agents, customer
service representatives, push/pullers and mechanics
employed by us at our Alamo and National car rental
facility located at our Raleigh-Durham airport facility;
but excluding all salaried employees, technical em-
ployees, office clerical employees, and guards, profes-
sional employees, and supervisors as defined in the Na-
tional Labor Relations Act, as amended.
ENTERPRISE LEASING COMPANY–SOUTHEAST,
LLC

The Board’s decision can be found at –
www.nlrb.gov/case/11-CA–073779 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.