NOTICE: This opinion is subject to formal revision before publication in the All representation issues raised by the Respondent

bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C. were or could have been litigated in the prior representa-
20570, of any typographical or other formal errors so that corrections can tion proceeding. The Respondent does not offer to ad-
be included in the bound volumes.
duce at a hearing any newly discovered and previously
UPS Supply Chain Solutions, Inc. and International unavailable evidence, nor has it established any special
Brotherhood of Teamsters, Local 439. Case 32– circumstances that would require the Board to reexamine
CA–309933 the decision made in the representation proceeding. We
August 4, 2023 therefore find that the Respondent has not raised any
DECISION AND ORDER representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
AND WILCOX
ingly, we grant the Motion for Summary Judgment.2
This is a refusal-to-bargain case in which the Re- On the entire record, the Board makes the following
spondent UPS Supply Chain Solutions, Inc. is contesting FINDINGS OF FACT
the Union’s certification as bargaining representative in
the underlying representation proceeding. Pursuant to a I. JURISDICTION
charge filed on December 30, 2022, and amended on At all material times, the Respondent UPS Supply
February 9, 2023, by International Brotherhood of Team- Chain Solutions, Inc., a Delaware corporation with plac-
sters, Local 439 (the Union), the General Counsel issued es of business located in Tracy, California, has been en-
a complaint on May 3, 2023, alleging that the Respond- gaged in the business of healthcare logistics and ware-
ent has violated Section 8(a)(5) and (1) of the Act by house services.
failing and refusing to recognize and bargain with the During the 12-month period ending December 31,
Union following the Union’s certification in Case 32– 2022, the Respondent has provided services valued in
RC–293756. (Official notice is taken of the record in the excess of $50,000 directly to customers outside the State
representation proceeding as defined in the Board’s of California.
Rules and Regulations, Secs. 102.68 and 102.69(d). We find that the Respondent is an employer engaged
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent in commerce within the meaning of Section 2(2), (6), and
filed an answer admitting in part and denying in part the (7) of the Act, and that the Union is a labor organization
allegations in the complaint and asserting affirmative within the meaning of Section 2(5) of the Act.
defenses. II. ALLEGED UNFAIR LABOR PRACTICES
On June 1, 2023, the General Counsel filed a Motion
A. The Certification
for Summary Judgment. On June 5, 2023, the Board
issued an Order Transferring the Proceeding to the Board Following the representation election, conducted on
and a Notice to Show Cause why the motion should not May 11, 2022, the Regional Director issued a decision on
be granted. On June 19, 2023, the Respondent filed its December 6, 2022, overruling the Respondent’s objec-
opposition. The General Counsel filed a timely reply. tions to the election and certifying the Union as the ex-
The National Labor Relations Board has delegated its clusive collective-bargaining representative of the em-
authority in this proceeding to a three-member panel. ployees in the following appropriate unit:
Ruling on Motion for Summary Judgment All full-time and regular part-time Warehouse Workers
The Respondent admits its refusal to bargain, but con- II, Warehouse Workers III, Senior Warehouse Work-
tests the validity of the Union’s certification of repre- ers, Ops Admin Assistants II, Ops Admin Assistants
sentative based on its contention, raised and rejected in III, and Inventory Control Associates II employed by
the representation proceeding, that the Union engaged in the Employer at its facilities located at 5849 W. Schulte
objectionable electioneering at and near the polling area
during the election.1 The Respondent’s answer asserts several affirmative defenses. None
of these defenses—save the ones pertaining to the General Counsel’s
1 In its opposition to the Motion for Summary Judgment, the Re-
request for a compensatory remedy requiring the Respondent to make
its employees whole for the lost opportunity to bargain at the time and
spondent admits that this issue was fully litigated and resolved in the in the manner contemplated by the Act—are supplemented with any
underlying representation hearing, but argues that the facts of this case additional argument or support. Therefore, they are insufficient to
trigger the exception to the rule against religitation set forth in Sub- warrant denial of the General Counsel’s Motion for Summary Judg-
Zero Freezer Co., 271 NLRB 47 (1984), and affirmed in RadNet ment. See, e.g., Sysco Central California, Inc., 371 NLRB No. 95, slip
Mgmt., Inc. v. NLRB, 992 F.3d 1114, 1128 (D.C. Cir. 2021). However, op. at 1 fn. 1 (2022); Station GVR Acquisition, LLC d/b/a Green Valley
because the allegations in this case are materially different from the Ranch Resort Spa Casino, 366 NLRB No. 58, slip op. at 1 fn. 1 (2018).
threats to employees and property damage found in Sub-Zero Freezer, Because the issue of compensatory relief will be severed for future
this case does not present the “extreme circumstances” required for the consideration, the Respondent’s arguments on that matter are no barrier
Board to depart from its rule against religitation. See RadNet Mgmt., to granting summary judgment.
Inc., 992 F.3d at 1128. 2 The Respondent’s request that the complaint be dismissed is there-

fore denied.

372 NLRB No. 121

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Rd., Suite 107, Tracy, CA 95377 and 1150 E. Arbor sideration to expedite the issuance of this decision re-
Avenue, Suite 101, Tracy, CA 95304; excluding all garding the remaining issues in this case.3 The Board
other employees, temporary employees, confidential will issue a supplemental decision regarding a make-
employees, guards, and supervisors as defined by the whole remedy at a later date.4 See Kentucky River Medi-
Act. cal Center, 355 NLRB 643, 647 fn. 13 (2010); Kentucky
River Medical Center, 356 NLRB 6 (2010).
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under ORDER
Section 9(a) of the Act. The National Labor Relations Board orders that the
B. Refusal to Bargain Respondent UPS Supply Chain Solutions, Inc., Tracy,
California, and its officers, agents, successors, and as-
By emails dated May 17, August 19, December 7, and signs, shall
13, 2022, and by letter dated April 21, 2023, the Union 1. Cease and desist from
requested that the Respondent recognize and bargain (a) Failing and refusing to recognize and bargain with
with the Union as the exclusive collective-bargaining International Brotherhood of Teamsters, Local 439 (the
representative of the unit. By letters dated August 25, Union) as the exclusive collective-bargaining representa-
2022, and April 20, 2023, and continuing to date, the tive of the employees in the bargaining unit.
Respondent has failed and refused to recognize and bar- (b) In any like or related manner interfering with, re-
gain with the Union as the exclusive collective- straining, or coercing employees in the exercise of the
bargaining representative of the unit. rights guaranteed them by Section 7 of the Act.
We find that the Respondent’s conduct constitutes an 2. Take the following affirmative action necessary to
unlawful failure and refusal to recognize and bargain effectuate the policies of the Act.
with the Union in violation of Section 8(a)(5) and (1) of (a) On request, bargain with the Union as the exclu-
the Act. sive collective-bargaining representative of the employ-
CONCLUSION OF LAW ees in the following appropriate unit concerning terms
By failing and refusing, since August 25, 2022, to rec- and conditions of employment and, if an understanding is
ognize and bargain with the Union as the exclusive col- reached, embody the understanding in a signed agree-
lective-bargaining representative of the employees in the ment:
appropriate unit, the Respondent has engaged in unfair
All full-time and regular part-time Warehouse Workers
labor practices affecting commerce within the meaning
II, Warehouse Workers III, Senior Warehouse Work-
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the
ers, Ops Admin Assistants II, Ops Admin Assistants
Act.
III, and Inventory Control Associates II employed by
REMEDY the Employer at its facilities located at 5849 W. Schulte
Having found that the Respondent has violated Section Rd., Suite 107, Tracy, CA 95377 and 1150 E. Arbor
8(a)(5) and (1) of the Act, we shall order it to cease and Avenue, Suite 101, Tracy, CA 95304; excluding all
desist, to bargain on request with the Union and, if an other employees, temporary employees, confidential
understanding is reached, to embody the understanding employees, guards, and supervisors as defined by the
in a signed agreement. Act.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided (b) Within 14 days after service by the Region, post at
by law, we shall construe the initial period of the certifi- its facilities in Tracy, California, copies of the attached
cation as beginning on the date the Respondent begins to notice marked “Appendix.”5 Copies of the notice, on
bargain in good faith with the Union. Mar-Jac Poultry 3 Member Kaplan would not sever this issue. Instead, he would ap-
Co., 136 NLRB 785 (1962); accord Burnett Construction ply Ex-Cell-O Corp. and deny the General Counsel’s request for a
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 make-whole remedy.
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 4 Having severed the Ex-Cell-O Corp. matter for future considera-

tion and ordered the customary remedies for test-of-certification cases,

(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied which include a notice posting and distributing the notice electronically
379 U.S. 817 (1964). should the Respondent customarily communicate with its employees by
Finally, the General Counsel requests that we adopt a such means, we find no need to order a notice mailing as requested by
compensatory remedy requiring the Respondent to make the General Counsel in her Motion for Summary Judgment.
5 If the facilities involved in these proceedings are open and staffed
its employees whole for the lost opportunity to bargain at
by a substantial complement of employees, the notices must be posted
the time and in the manner contemplated by the Act. To within 14 days after service by the Region. If the facilities involved in
do so would require overruling Ex-Cell-O Corp., 185 these proceedings are closed or not staffed by a substantial complement
NLRB 107 (1970), and outlining a methodological of employees due to the Coronavirus Disease 2019 (COVID-19) pan-
demic, the notices must be posted within 14 days after the facilities
framework for calculating such a remedy. The Board has
reopen and a substantial complement of employees have returned to
decided to sever this issue and retain it for further con-
 UPS SUPPLY CHAIN SOLUTIONS, INC. 3

forms provided by the Regional Director for Region 32, APPENDIX

after being signed by the Respondent’s authorized repre-
NOTICE TO EMPLOYEES
sentative, shall be posted by the Respondent and main-
POSTED BY ORDER OF THE
tained for 60 consecutive days in conspicuous places,
NATIONAL LABOR RELATIONS BOARD
including all places where notices to employees are cus-
An Agency of the United States Government
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such The National Labor Relations Board has found that we vio-
as by email, posting on an intranet or an internet site, lated Federal labor law and has ordered us to post and obey
and/or other electronic means, if the Respondent custom- this notice.
arily communicates with its employees by such means. FEDERAL LAW GIVES YOU THE RIGHT TO
Reasonable steps shall be taken by the Respondent to Form, join, or assist a union
ensure that the notices are not altered, defaced, or cov- Choose representatives to bargain with us on
ered by any other material. If the Respondent has gone your behalf
out of business or closed the facilities involved in these Act together with other employees for your bene-
proceedings, the Respondent shall duplicate and mail, at fit and protection
its own expense, a copy of the notice to all current em-
Choose not to engage in any of these protected
ployees and former employees employed by the Re- activities.
spondent at any time since August 25, 2022.
(c) Within 21 days after service by the Region, file WE WILL NOT fail and refuse to recognize and bargain
with the Regional Director for Region 32 a sworn certifi- with International Brotherhood of Teamsters, Local 439
cation of a responsible official on a form provided by the (the Union) as the exclusive collective-bargaining repre-
Region attesting to the steps that the Respondent has sentative of our employees in the bargaining unit.
taken to comply. WE WILL NOT in any like or related manner interfere
Dated, Washington, D.C. August 4, 2023 with, restrain, or coerce you in the exercise of the rights
listed above.
______________________________________ WE WILL, on request, bargain with the Union and put
Lauren McFerran, Chairman in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing appropriate bargaining unit:
______________________________________
All full-time and regular part-time Warehouse Workers
Marvin E. Kaplan Member
II, Warehouse Workers III, Senior Warehouse Work-
ers, Ops Admin Assistants II, Ops Admin Assistants
III, and Inventory Control Associates II employed by
_____________________________________
us at our facilities located at 5849 W. Schulte Rd., Suite
Gwynne A. Wilcox, Member
107, Tracy, CA 95377 and 1150 E. Arbor Avenue,
Suite 101, Tracy, CA 95304; excluding all other em-
ployees, temporary employees, confidential employees,
(SEAL) NATIONAL LABOR RELATIONS BOARD
guards, and supervisors as defined by the Act.
work, and the notices may not be posted until a substantial complement
of employees have returned to work. If, while closed or not staffed by UPS SUPPLY CHAIN SOLUTIONS, INC.
a substantial complement of employees due to the pandemic, the Re-
spondent is communicating with its employees by electronic means, the
notice must also be posted by such electronic means within 14 days
The Board’s decision can be found at
after service by the Region. If the notice to be physically posted was www.nlrb.gov/case/32-CA-309933 or by using the QR
posted electronically more than 60 days before physical posting of the code below. Alternatively, you can obtain a copy of the
notice, the notice shall state at the bottom that “This notice is the same decision from the Executive Secretary, National Labor
notice previously [sent or posted] electronically on [date].” If this
Order is enforced by a judgment of a United States court of appeals, the
Relations Board, 1015 Half Street, S.E., Washington,
words in the notice reading “Posted by Order of the National Labor D.C. 20570, or by calling (202) 273-1940.
Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD