Transport, Inc.

TRANSPORT. !NC Transport, Inc. and General Drivers Union Local 346, Affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 18-CA-5949 March 27, 1979 DECISION AND ORDER BY MEMBERS JFNKINS, MURPIY, ANI) TR ESDAI I Upon a charge filed on August 18, 1978, by Gen- eral Drivers Union Local 346, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union, and duly served on Transport, Inc., herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Direc- tor for Region 18, issued a complaint on October 17. 1978, against Respondent, alleging that Respondent 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 18, 1978, fol- lowing a Board election in Case 18 RC-11697, 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 August 1, 1978, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On October 31, 1978, Respondent filed its answer to the complaint, admitting in part, and denying in part, the allegations in the complaint and asserting that, in ad- dition to the facts set forth in the transcript of the representation hearing, newly discovered and previ- ously unavailable facts as well as special circum- stances establish the supervisory status of the employ- ees in the unit. On December 5, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 18, 1978, the Board issued an order transferring the pro- Official notice is taken of the record in the representation proceeding. Case 18-RC-11697. as the term "record" is defined in Secs. 102.68 and 102,69(8) of the Board's Rules and Regulations. Series 8. as amended. See LTV Electrosrssterm, 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); Intertrpe Co. . Penello, 269 F.Supp. 573 (D.C.Va.. 1967); Follerr Corp. 164 NLRB 378 (1967). enfd 397 F2d 91 (7th Cir. 1968): Sec. 9(d) of the NL RA, as amended. ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after 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 fbr Summary Judgment In its opposition to the General Counsel's Motion for Summary Judgment and answer to the complaint, Respondent admits that it has refused to bargain with the Union, but asserts that the certified unit is made up entirely of supervisors and that therefore the certi- fication is invalid. Further, Respondent claims that evidence discovered subsequent to the representation hearing and unavailable to the Board at the time it denied Respondent's request for review of the Acting Regional Director's Decision and Direction of Elec- tion warrants the holding of a hearing. It alleges that since May 14, 1978 (the date of the election), the dis- patchers have arranged for driver applicants to be assigned "student runs" and have hired driver appli- cants without first obtaining management approval; have granted sick and vacation leave prior to manag- ment clearance: and have disciplined drivers on their own initiative and made recommendations concern- ing disciplining errant drivers which have been subse- quently followed by Respondent. The General Coun- sel contends that Respondent in its answer to the complaint raises no issues which were not previously litigated nor does it raise issues which would warrant a hearing before the Board. We agree with General Counsel. Our review of the record herein, including that in Case 18-RC-11697, indicates that on January 25, 1978, the Union filed a petition in which it sought to represent certain of Respondent's employees. A hear- ing on that petition was held on March 14, 1978. On April 11, 1978, the Acting Regional Director issued his Decision and Direction of Election directing that an election be held in the following appropriate unit: All dispatchers employed by the Employer, at its Esko, Minnesota, facility; excluding all other employees, confidential employees, guards and supervisors as defined in the Act. On April 24, 1978, Respondent filed a Request for Review of Decision and Direction of Election. On May 11, 1978, the Board (Member Murphy dissent- ing) denied Respondent's request for review of the Decision and Direction of Election. An election was held on May 11, 1978. The tally of ballots showed 3 241 NLRB No. 66 477 I) ( ISII()NS ()I N \ IONAL ILABOR RI I A I I()NS I)A\R) votes cast tfor tile U nion and none against. No objec- tions were iled. As a result of the election, on May 18. 1978, the Regional 1)irector issued a certification of representative. certiling the lnion as the exclu- sive collective-hargaining representative in the appro- priate unit. It is well settled that in the absence of newl 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. 2 All issues raised bh Respondent in this proceeding Cere or ould have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any ne wly 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. Accordingl\, we griant the Motion for Sumlmary .Judgment . On the basis of the entire record. the Board makes the following: [INI)IN(;S )01 IA( I 1. Ill 1tSINISS ()OF RI SP'()NI)IN I Transport, Inc., a Minnesota corporation. mIlanl- taifns an oftice and place of business in Elsko, Minne- sota. where it is engaged in the interstate transporta- tion of bulk commodities. l)uring the ear ending l)ecember 31. 1977. which period is representative of its operation, it derived revenues in excess of $50,000 from its interstate freight transportation services. We find, on the basis of the loregoing. 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. 2 Although Respondent avcrs Ilhil it hs Ilew eidellce oi the slupelIlsorv slatus i) [he dispatcher,. it does 1not claim that he scope ol ;iuthorit, granted the dispatchcrs hls chlanged sinceh the ,ting Regional ircctor issued Ili, Decision and D)irection t f lectil. I he etiidence it seeks tIo present is hai- cally il Ihe ;lilie i. ture a, the Acting Reglo il Iet l scoot lteles v L pre- sentell Id te lprespctialiil proceding. exceptl thall i cocer, L tlime period after the Acting Regiinal )irecttor' deltermtiatlltn and includes aillegaion i c rlduct hb the dipatchers which departed from past plalice Llic d , peritrincd ithoilt tie knoledge i( Re,.pondent Such evldeclle s I islli- cient to Warralit the directliol of al hearing i this relatied subsequent unlfiir lahbor practice ploceeding. Secc 12.67(1 ) Rules ad Reguilatios and1 State- tictllls I Il' roceduire Sclis 8, is a;llC ded W ' e ilote, htonexer. tIlIt lt eil ploer irnlly lnot tllller.illII Intlpse supervisorv responlsibiltics t11 cnrllplec,, ithoul prior coisuhlaion lth their chosel hargaining respresentati e Pilot -rclrtl (I t rei. /Irt , 221 Nl R13 1026, 1 28 1975). See PittOmrgh Pc (t,/ ( , v R, 31 I S 14(, t162 941i, Rules aild Regulations (tf the 13i)rd, Secs 10i2.6711 t and, 102 69(c. 11. IIi .AB()R ()R(iANI/All()N NVOii) (ieneratl I)rivers UInion l.ocal 346. affiliated with Inttel-national 3rottherhood of Tearnsters. ('hauffeurs Warehousemlen and Hlelpers of Ani mrica, is a labor orgali/ation within the meaning of Section 2(5) of the Act. 111. lII1 I NIAIR I ABOR P'RA(I5 FS A. 1 Rev' .¥I) llclal , 'Proceclding I. T'he unit 'lhe fiollowing emploNees of Respondent constitute a unit appropriate tfr collective-bargaining purposes within the meaning of Section 9(b) of the Act: All dispatchers employed by the F.mployver at its Esko Minnesota, facility; excluding all other employees, confidential employees. guards and supervisors as defined in the Act. 2. The certification On Ma I 1, 1978, a mljority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional D)i- rector for Region 18. 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 18. 1978. and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. 13. Thu Rcquersl I Btrgaitn and Resvonldel'v Reicsal ('mmenciing on or about July 18, 1978, and at all times thereafer. the Union has requested Respondent to bargain collectively with it as the exclusive collec- tive-bargaining representative of all the employees in the above-dlescribed unit. ('ommencing on or about August 1, 1978. and continuing at all times thereafter to date, Respondent has refused, and continues to re- tuse, 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 August 1. 1978, and at all times thereafer, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit and that, by s, uch refusal, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IRANSPOR I. INC Iv. 1111 III I 1) IAIIIF I AIR ABOR PRA( I( s PN\ ( ()MNIlR( I 'FiThe activities of Respondent set forth in section Ill, above, occurring in connection with its operations described in section 1I above, have a close. intimate. and substantial relationship to rade, traffic, and com- merce among the several States andl tend to lead to labor disputes hurdening and obstructingl colmmerce and the free flow of commerce. Having tound that Respondent has engaged in and is engaging in unfair labor practices within the mican- ing of Section 8(a)(5) anlld (1) of the Act, we shall order that it cease andt desist therefrom and, upon request, bargain collectively with the U nion 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 ftor 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 taith with the tinion as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poullrri (onatianv, Inc.. 136 NlRB 785 (1962): (ommerce (Compa d1/ta lnamar lHotel. 140 NLRB 226. 229 (1962). entd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964): Burnltt ('onstruction (mpv/tll, 149 NIRB 1419. 1421 (1964). enfd. 350 F.2d 57 (10th ( ir. 1965). The Board, upon the basis tof the ftOregoineg 1lcts and the entire record, makes the tollowing: ('()N('I ISI()NS ()I IA\' 1. Transport. Inc.. is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of' the Act. 2. General Drivers Union Local 346. affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. is a labor organization within the meaning of Section 2(5) of the Act. 3. All dispatchers employed hb the Employ(er at its Esko. Minnesota. fcility, excluding all other emplo- ees confidential 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(hb) of the Act, 4. Since May 18, 1978. the above-namied labor or- ganization has been and now is the certified and ex- elusive representative of all employees in the aftore- said appropriate unit tor the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. B retusing on or about A gust I, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- ganinig representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gagedt in and is engaging in untair labor practices \ithin the nealnilng of Section 8(a)(5) of' the Act. 6. Bv 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 mean- ing of Section 8(a)( 1) of the Act. 7. The aforesaid untfair labor practices are untair 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 the Respondent, Transport. Inc.. sko Minnesota, its officers, agents, successors, and assigns, shall: I. ease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of emplo mient with General Drivers tInion local 346, afilia;lted ith International 13rotherhood of Teamsters, (haufteurs, Warehousemen and elp- ers of America, as the exclusive bargaining represent- ative o its elliploees ill the tollowing appropriate unit: All dispatchers employed b the EmploNer at its Fsko, Minnesota, facility; excluding all other employees, confidential employees, guards and supervisors 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. ake the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request. bargain with the above-named labor organi7zation as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pa, wages, hours, and other terms and conditions of employment and, if an understand- ing is reached, emhodN such understanding in a signed agreement. (b) Post at its Esko, Minnesota facility copies of 479 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Direc- tor for Region 18, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. MEMBER MURPHY. dissenting: Contrary to my colleagues, I would have granted review of the Acting Regional Director's Decision and Direction of Election, as Respondent's request for review raised substantial and material issues of fact and law as to the supervisory or employee status of dispatchers requiring the Board's consideration. I also believe that the evidence submitted by Respon- dent concerning the actions of the dispatchers since the decision by the Acting Regional Director in the representation proceeding, raises substantial and ma- terial issues of fact and law warranting a hearing herein. Accordingly, I would not grant the Motion for Summary Judgment. 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 Gen- eral Drivers Union Local 346, affiliated with In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described 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 agree- ment. The bargaining unit is: All dispatchers employed by the Employer at its Esko, Minnesota, facility; excluding all other employees, confidential employees, guards and supervisors as defined in the Act. TRANSPORT, INC. 480