Pacific Intermountain Express

PACIFIC INTERMOUNTAIN EXPRESS Pacific Intermountain Express and Brotherhood of Teamsters and Auto Truck Drivers, Local No. 70, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 32-CA- 1920 September 28, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE Upon a charge filed on July 9, 1979, by Brother- hood of Teamsters and Auto Truck Drivers, Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Pacific Intermountain Express, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 32, issued a complaint and notice of hearing on July 17, 1979, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on May 24, 1979, fol- lowing a Board election in Case 32-RC-420, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about June 13, 1979, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On July 26, 1979, Respondent filed its answer to the com- plaint, in which it admitted the filing and service of the charge, the jurisdictional conclusions as to Re- spondent, and the labor organization status of the Union, but denied all other allegations of the com- plaint without providing any affirmative defense. On August 10, 1979, counsel for the General Coun- sel filed directly with the Board a motion to strike portions of Respondent's answer and Motion for I Official notice is taken of the record in the representation proceeding. Case 32-RC-420, as term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electro- sytems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26 (5th Cir. 1969): Intertype Co. v. Penello, 269 F. Supp. 573 (D.C. Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA. as amended. Summary Judgment with exhibits attached, and a memorandum in support thereof, alleging, inter alia, that Respondent's answer to the complaint failed to raise factual issues warranting an evidentiary hearing, and therefore requesting the Board to grant the Mo- tion for Summary Judgment. Subsequently, on Au- gust 17, 1979, the Board issued an Order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended. the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent attacks the valid- ity of the Union's certification on the ground that the election was not a free and secret election in accord- ance with the purposes and policies of the National Labor Relations Act. The General Counsel contends that Respondent's answer raises no issue of fact war- ranting a hearing, and that, accordingly, he is entitled to summary judgment as a matter of law. We agree with the General Counsel. Our review of the record, including that in Case 32-RC-420, shows that an election was conducted pursuant to a Stipulation for Certification Upon Con- sent Election on September 15, 1978, in a unit of all sales representatives. The tally was three for, and two against, the Union; there were no challenged ballots. Respondent filed its objections to the election, assert- ing, inter alia, improper conduct by the Board agent conducting the election in failing to shake up the bal- lots in the ballot box before opening the counting the ballots, thereby allegedly making it possible for "everyone," including management officials, to know how eligible employees voted. On October 13, 1978, the Regional Director, having duly investigated the matters raised by Respondent's objections, issued his Report on Objections wherein he recommended that the objections be overruled in their entirety and that an appropriate certification of representative issue. Respondent timely filed with the Board its exceptions to the Regional Director's Report on Objections, to- gether with a brief in support thereof, urging the same arguments and contentions that it now advances as grounds for denying the General Counsel's Motion for Summary Judgment. After considering the record in light of Respondent's exceptions, the Board, on 245 NLRB No. 97 769 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 24, 1979, issued a Decision and Certification of Representative 2 in which it adopted the Regional Di- rector's findings and recommendations contained in his report, and certified the Union as the collective- bargaining representative of the employees in the ap- propriate unit. On June 11, 1979, Respondent moved the Board for reconsideration of its Decision and Cer- tification of Representative. On June 21, 1979. the Board rejected the motion as untimely filed. It thus appears that Respondent is attempting to relitigate issues in this proceeding which were decided in the underlying representation case. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding.4 Accordingly, we grant the Motion for Summary Judgment.' On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a California corporation with an office and principal place of business located in Emeryville, California, is engaged in the business of warehousing and transportation of goods. During the past 12 months, Respondent, in the course and conduct of its 2 Not reported in volumes of Board Decision. 'See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941). Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 4 By its answer, Respondent denies the appropriateness of the unit. the election results, and the certification of the Union. Respondent also denies that the Union has requested it to bargain and that it has refused to do so. However, attached to the General Counsel's Motion for Summary Judgment are three letters dated June 5, 15, and 26, 1979, requesting Respondent to bargain, and two letters dated June 13 and 25, 1979, in which Respondent stated that it would not bargain. Respondent presents nothing to controvert these documents. Accordingly, we deem these allegations of the complaint to be true. The May Department Stores Company, 186 NLRB 86 (1970); and Carl Simpson Buick, Inc., 161 NLRB 1389 (1966). As for its other denials, Respondent stipulated to the appropriateness of the unit in the representa- tion proceeding and therefore may not relitigale that issue herein; and the record reveals an undisputed tally of ballots showing a vote in favor of the Union and the certification of the Union by this Board. 5 In view of the result reached herein, we find it unnecessary to rule on the General Counsel's motion to strike Respondent's answer to the complaint. business operations, purchased and received goods or services valued in excess of $50,000 directly from the suppliers located outside the State of California. We find, on the basis of the foregoing, that Respon- dent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE I.ABOR OR(iANIZA()ON INVO()I.VEI) Brotherhood of Teamsters and Auto Truck Driv- ers, Local No. 70. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACII(LES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All sales representatives employed by Respon- dent at its 5500 Eastshore Highway. Emeryville, California, terminal; excluding all other employ- ees, all office clerical employees, guards and su- pervisors as defined in the Act. 2. The certification On September 15, 1978, a majority of the employ- ees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Regional Director for Region 32, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on May 24, 1979, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about June 5, 1979, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collec- tive-bargaining representative of all the employees in the above-described unit. Commencing on or about June 13, 1979, and continuing at all times thereafter to date. Respondent has refused, and continues to re- 770 PACIFIC INTERMOUNTAIN EXPRESS fuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since June 13. 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 111, above, occurring in connection with its operations described in section I, above, have a close, intimate. and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Con- struction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Pacific Intermountain Express is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Brotherhood of Teamsters and Auto Truck Drivers, Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All sales representatives employed by Respon- dent at its 5500 Eastshore Highway, Emeryville, Cali- fornia, terminal, excluding all other employees, all of- fice clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 24, 1979, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 13, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Pacific Intermountain Express, Emeryville, California, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Brotherhood of Team- sters and Auto Truck Drivers, Local No. 70, Interna- tional Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All sales representatives employed by Respon- dent at its 5500 Eastshore Highway. Emeryville, California, terminal: excluding all other employ- 771 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees, all office clerical employees, guards and su- pervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Emeryville, California, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof; and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I In the event that 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 National Labor 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Broth- erhood of Teamsters and Auto Truck Drivers. Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representa- tive of the employees in the bargaining unit de- scribed below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All sales representatives employed by the Em- ployer at its 5500 Eastshore Highway, Emery- ville, California, terminal; excluding all other employees, all office clerical employees, guards and supervisors as defined in the Act. PACIFIC INTERMOUNTAIN EXPRESS 772