Overland Hauling, Inc.

OVERLAND HAULING, INC. Overland Hauling, Inc., and Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 385 , affiliat- ed with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 12-CA-4767 December 14, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On July 14, 1970, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, granting General Counsel's Motion for Summary Judgment; finding no merit in the various contentions urged by Respondent in its Response to the Trial Examiner's Order to Show Cause why the Motion for Summary Judgment should not be granted; further finding on the pleadings that Res- pondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended; and recommending that Respondent cease and desist from such unfair labor practices and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision, and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Overland Hauling, Inc., Ocoee, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. i In its exceptions Respondent contends , as it did at the several stages of the underlying representation matter , that the Regional Director's unit and eligibility determinations and his disposition of the objections in Case 12-RC-3317 are erroneous and contrary to law, and that the Board erred in failing to grant Respondent's requests for review Respondent also contends that it is entitled , as a right of due process , to a hearing on the issues raised by its objections to conduct affecting the results of the election We find no ment in Respondent 's contentions We have reviewed 245 the entire record in the underlying representation case and are satisfied that the Regional Director 's disposition of the issues in his Decision and Direction of Election and Supplemental Decision , Order and Certification of Representative is fully supported by the evidence, and is correct Like the Trial Examiner, we find no unresolved issues necessitating a hearing, and, accordingly , we shall adopt the Tnal Examiner's findings, conclusions, and recommendations TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THE ISSUE CHARLES W. SCHNEIDER, Trial Examiner: The case arises on a motion of counsel for the General Counsel for summary judgment based upon an admitted refusal by the Respondent to bargain with the certified Charging Union, the Respondent contesting the validity of Board rulings in the representation proceeding in which the Union was certified. The Representation Proceeding' Upon a petition filed in Case 12-RC-3317 under Section 9(c) of the National Labor Relations Act (29 U.S.C.A. 159) by Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 385, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , herein called the Union , the Acting Regional Director for Region 12 of the Board issued a Decision and Direction of Election dated July 10, 1969, among employees of Overland Hauling , Inc., herein called the Respondent . Disagreeing to some extent with the unit found appropriate by the Acting Regional Director, the Respondent filed a request for review of that decision with the Board in Washington, D.C. On August 5, 1969, the Board denied the Respondent's request for review in substantial part. Pursuant to the Decision and Direction of Election, an election by secret ballot was conducted on August 8, 1969, under the direction and supervision of the Acting Regional Director. A revised tally of ballots showed the following election results: Approximate number of eligible voters 108 Void ballots 0 Votes cast for Petitioner 51 Votes cast against participating labor organization 49 Valid votes counted 100 Challenged ballots I Valid votes counted plus challenged ballots 101 i Administrative or official notice is taken of the record in the representation proceeding , Case 12-RC-3317, as the term "record" is defined in Section 102 68 and 102 69(1) of the Board's rules (Rules and Regulations and Statements of Procedure, National Labor Relations Board, Series 8 as amended) See LTV Electrosysienw, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4), cert denied 393 U S 843, Golden Age Beverage Co, 167 NLRB No 24, enfd. 415 F 2d 26 (C A 5), Intertype Co v Penello, 269 F Supp 573 (D C Va ), Intertype Co v N L.R B, 401 F 2d 41 (C A 4), cert denied 393 U S 1049, Follett Corp, et al, 164 NLRB 378, enfd 397 F 2d 91 (C A 7), Sec 9( d) of the National Labor Relations Act 187 NLRB No. 40 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The challenged ballot was insufficient to affect the results of the election. On August 18, 1969, the Employer timely filed objections (subsequently expanded on August 26, 1969) to conduct affecting results of election alleging, in sum, that prior to and during the election union representatives engaged in certain specified conduct interfering with the election, that the election was improperly conducted, and that the Respondent was prejudiced by actions of a Board agent in investigating unfair labor practice charges in June 1969. On October 16, 1969, the Regional Director issued a Supplemental Decision, Order and Certification of Repre- sentative. In this Decision the Regional Director stated that an investigation of the Respondent's objections had been conducted, during which all parties were afforded opportu- nity to submit and present evidence bearing on the issues. After discussion of the evidence, the Regional Director concluded in his Decision that the Respondent had raised no substantial or material issues of fact or law which would warrant setting aside the election. Consequently, the Regional Director overruled the Respondent's objections in their entirety and certified the Union as the exclusive bargaining representative of the employees in the appropri- ate unit. At the same time the Regional Director denied the Respondent's motion for a hearing on its objections. Thereafter on November 1, 1969, the Respondent timely filed with the Board in Washington, D.C., its request for review of the Regional Director's Supplemental Decision, Order and Certification of Representative, in which Respondent urged that the Regional Director erred in not setting aside the election, and in denying the Respondent's request for a hearing on the objections. On November 18, 1969, the Board by telegraphic order denied the Respondent's request for review for the reason that ". . . it raises no substantial issues warranting review. 11 The Unfair Labor Practice Case On February 9, 1970, the Union filed the instant unfair labor practice charge alleging that since the certification the Respondent had refused and continues to refuse to bargain with the Union. On March 6, 1970, the Regional Director issued a complaint and notice of hearing alleging that the Respon- dent had committed unfair labor practices in violation of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act by refusing to meet and negotiate with the Union as the bargaining representative of the employees in the certified unit, though requested to do so since the certification. Thereafter, the Respondent filed its answer (subsequently amended) in which it denied, inter alia, the validity of the certification and the commission of unfair labor practices, but admitted some allegations of the complaint, such as the fact of the certification and its refusal to bargain with the 2 Pepsi-Colo Buffalo Bottling Company v N L R B, 409 F.2d 676 (C A. 2, 1969), cert. denied 396 U.S. 904 (1969) 3 Krieger-Ragsdale & Co, Inc, 159 NLRB 490, enfd 379 F.2d 517 (C A 7, 1967), cert denied 389 U S. 1041. See Pittsburgh Plate Glass Co v N.L R B, 313 U.S. 146, 162 (1941); NLRB Rules and Regulations, Secs 102.67(f) and 102 69(c) 4 0 K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F.2d 74 (C A Union. At the same time the Respondent filed a motion to dismiss (subsequently amended) or to stay the unfair labor practice proceeding and to reopen the representation proceeding. On April 3, 1970, counsel for the General Counsel filed a motion for summary judgment, in which the Charging Party concurred, and on April 8, 1970, I issued an Order to Show Cause returnable April 29, 1970, on the Respondent's motion to dismiss, to stay, and to reopen and on the General Counsel's motion for summary judgment. The Respondent has filed a response to the Order to Show Cause. No other responses have been received. Ruling on Motion for Summary Judgment Counsel for the General Counsel contends that all issues in dispute were decided by the Board in the representation case and that he is therefore entitled to summary judgment as a matter of law. The Respondent opposes summary judgment on statuto- ry and constitutional grounds and asserts that due process requires that a full hearing be held on all issues, including the issues raised in the representation proceeding. In addition the Respondent has provided evidence which it asserts is newly discovered and was previously unavailable bearing on its objections to the election. The basic position of the Respondent is that the Board's unit determination was incorrect in the representation case, and that the election was invalid and should have been set aside on the basis of the Respondent's objections to the election. Alternatively, the Respondent contends that its objections raised substantial and material issues requiring a hearing, and that the Regional Director erroneously refused to issue investigative subpenas requested by the Respon- dent in connection with the objections. All these issues were raised by the Respondent in the representation proceeding, and were found by the Regional Director and the Board to raise no substantial or material issues affecting the validity of the unit, the election, and the certification. Finally, the Respondent contends that in accordance with the opinion in the Pepsi-Cola case2 the Board may not find an unfair labor practice on the basis of a unit determination by a Regional Director. It is established Board policy, in the absence of newly discovered or previously unavailable evidence or special circumstances, not to permit litigation before a Trial Examiner in an unfair labor practice case of issues which were or could have been litigated in a prior related representation proceeding.3 Such a hearing is not a matter of right unless substantial and material issues were raised in the representation case.4 The New Evidence We come now to the Respondent's new evidence. If the evidence is indeed new, meets the standard required in such cases, and a prima facie showing is made of cause for not 5, 1961). See N L R B v Air Control Window Products, Inc, 335 F.2d 245, 249 (C A 5, 1964). " If there is nothing to hear, then a hearing is a senseless and useless formality " See also N LR B v. Bata Shoe Co, 377 F 2d 821, 826 (C.A. 4, 1967), cert. denied 389 U S. 917. ". . there is no requirement, constitutional or otherwise, that there be a hearing in the absence of substantial and material issues crucial to determination of whether NLRB election results are to be accepted for purposes of certification OVERLAND HAULING, INC. having previously produced it, the dismissal of the Respondent's objections to the election must be reconsid- ered, and hearing will be required. In determining whether the evidence is adequate to require hearing on the objections issues at this stage of the proceeding, the standard or test is more rigorous than it was in the representation case. For to be entitled to a hearing on objections to a Board election a party is required only to produce specific evidence prima facie warranting setting aside the election (O.K. Van & Storage, Inc., supra at 75), that is to say, enough evidence to raise a substantial and material issue as to the probity of the election results. However, at the stage in which we find ourselves, the evidence must be such as is likely to require reversal of the prior decision. Thus, in the case of Red-More Corp., d/b/a Disco Fair, 169 NLRB No. 63, the Board in a comparable situation stated the rule as follows: ... motions based on newly discovered eviden- ce will not be granted unless such evidence will probably change the outcome of the litigation. Analysis of the new evidence submitted by the Respondent indicates that it is not, in my opinion, of such nature as probably to change the outcome of the litigation. Nor do I believe that probable cause has been shown for not having produced the evidence in the representation proceeding. In support of its position in this respect the Respondent has attached to its motion to dismiss and reopen the representation proceeding copies of several affidavits, and has attached to its response to Order To Show Cause a number of copies of additional affidavits. Four of the affidavits attached to the motion to dismiss and to reopen, all dated March 30, 1970, are related to the issues raised by the objections to the election. Each refers to the conduct of one Witt, a representative of the Union. Affiants in these instances are, respectively, Harvard Patrick, the proprietor, at the time of the election, of a tavern in the vicinity of the Respondent's establishment; Frank Richards, Jr., a driver for the Respondent; Jimmy Meadors, a lease operator for the Respondent; and Gene Stephenson, a former employee of one of the Respondent's lease operators. If credited, and possible discrepancies disregarded, one or more of these affidavits could be construed to establish the following: (1) prior to the election and during the time the polls were open Witt bought beer for employees of the Respondent at the tavern; (2) Witt said in the presence of employees of the Respondent that the Union could "guarantee" a raise of some kind, and "quoted" rates of $3.25 to $4.50 per hour, when the Respondent's rate was $1.85 or $1.90 per hour; (3) when one employee told Witt that he would "have to work" if there were a picket line, Witt, indicating a scar on his eye, said that he had got the scar "trying to keep someone from crossing the picket line"; and (4) Witt, fingering his scar, told another employee that he (the employee) "wouldn't want to look like this." Eight other affidavits, one dated March 23, 1970, the others dated April 14, 1970, are attached to the Respon- dent's response to the Order To Show Cause. Except for two of these (discussed more specifically hereinafter) in so far as the affidavits accompanying the response to the 5 Coopers, Inc, 94 NLRB 1554, The Zeller Corp, 115 NLRB 762, Albion Malleable Iron Co, 104 NLRB 225, Wagner Electric Corp, Chatham 247 Order To Show Cause contain material relevant to the issues, they recite hearsay, or refer to incidents not attributable to the Union, or are otherwise nonprobative. Those six therefore do not constitute, or contain an offer of, evidence warranting reexamination of the Respondent's objections to the election. The other two affidavits filed with the response are by D. L. Bloebaum, the Respondent's vice president and general manager, and J. W. Earwood, the Respondent's terminal manager. These the Respondent offers in support of its contention that the evidence was not previously available to the Respondent, stating as reason that employees had been intimidated by union threats which have apparently since been dissipated (response pp. 3-4). Mr. Bloebaum's and Mr. Earwood's affidavits state, in that connection, that the Respondent's objections to the election were based upon information that the Respondent had received from employees and lease operators prior to the election and thereafter . Mr. Bloebaum says that when the Respondent attempted to get information from employees and lease operators concerning these incidents, "either they claimed they knew nothing at that time or were unwilling to furnish the information." Mr. Earwood, similarly, states that the Respondent was unable to get information about these reported incidents after the election, because the employees and lease operators would not talk or discuss the matter and "seemed scared." Mr. Earwood further says that it was not until the last 4 to 6 weeks that employees and lease operators have been willing to discuss the incidents. The subject matter of the new evidence had been alleged in the Respondent's objections to the election, and some evidence had apparently been submitted by the Respon- dent in connection therewith or had been unearthed by the Regional Office in its investigation of the objections. Thus, among the Respondent's objections to the election was one to the effect that Witt had been buying drinks for employees the night before and during the election (Objections 3 and 6). Another was that at the same time Witt made "exorbitant and insincere promises to the employees knowing such statements to be false" and knowing that the Respondent would have no chance to refute them (Objection 6). Another objection was that the Union had "threatened, coerced and restrained .. . employees by statements and conduct" and had thus interfered with free choice in the election (Objection 8). In his Supplemental Decision disposing of the objections the Regional Director found that the Respondent had submit- ted no evidence nor had "the investigation disclosed any evidence" in support of Objections 3 and 8 (Supplemental Decision). He found similarly with respect to Objection 6 (Supplemental Decision). Furthermore the Regional Direc- tor, citing authorities, ruled that the furnishing of alcoholic beverages prior to an election is permissible electioneering (Supplemental Decision).5 Additionally the Regional Director held that electioneering away from the polling area is permissible under Board authority (Supplemental Decision).6 Both propositions correctly state Board law. As has been seen, the Respondent filed a request with the Board to review the Regional Director 's failure to sustain Division, 167 NLRB 532 6 Phelps Dodge Copper Products Corp., I I 1 NLRB 950. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these and the Respondent's other objections to the election, but the Board found that the Respondent raised no substantial issues warranting review. Substantiality of the New Evidence Insofar as I find its new evidence of any degree of probativeness, the Respondent might thus be able to show at a hearing (1) evidence that Witt bought beer for employees prior to and during the election, (2) evidence that Witt made statements construable as threats, and (3) that Witt "guaranteed" employees a raise, referring to rates of pay far in excess of the Respondent's scale. The question then is whether this evidence is, in the circumstances, of sufficient weight to warrant reexamination of the objec- tions. 1. The purchase of beer: Assuming the truth of the first proposition-Witt's purchase of beer for employees-that evidence would not warrant overturning the election. As has been stated, such action away from the voting area is permissible electioneering. 2. The asserted threats: With respect to the second proposition-threats-the evidence submitted does not appear substantial enough in the circumstances as to probably change the decision on the merits of the Respondent's objections to the election. This evidence consists of what appear to be two incidents related in the affidavits of Driver Richards and Lease Operator Meadors. Richards' affidavit states in this respect that on the night before the election Witt engaged a group of employees in conversation outside the Glass Lounge. Richards says: During the conversation the subject of strikes and picket lines came up, and I said that even if there were a picket line I would have to work. Witt, who had been rubbing the scar on his eye, said he got that scar from trying to keep someone from crossing the picket line. Meadors' affidavit says, apparently wit'i respect to the same incident: Someone mentioned that Florida had a right to work law and if there were a strike what would happen to those who might try to work and cross the picket line. Witt's reply was to the effect that the way he got his scar was when someone tried to cross a picket line when he was on picket duty as to what could happen. Richards relates the second incident as follows A little later [the same] evening we went inside the Glass Lounge and continued to drink some more beer. I sat at a booth different from the one Witt was sitting at. During the conversation I overheard Witt say to one of the Overland employees concerning crossing a picket line during a strike that "you wouldn't want to look like this," pointing to his scar again. Assuming that these incidents occurred as described, it is not apparent how they could have influenced employees to vote for the Union in the election. If anything, it would seem that, if Witt's statements constituted threats against employees who might wish to cross a picket line around the Respondent's establishment, the statements would be more likely to produce votes against the Union than for it. For if the Union did not win the election the possibility of a picket line being established became more remote-and the necessity of having to cross it more unlikely. I therefore cannot find in these purported statements of Witt evidence of conduct likely to affect the outcome of the election in a manner advantageous to the Union. 3. The promises of wage increases: The new evidence as to this, to the extent probative prima facie, is found in the affidavits of Richards, Meadors, and Stephenson, and apparently relate to statements of Witt made in the same conversation outside the Glass Lounge referred to above. They state respectively: Richards: While the group of us were outside the Glass Lounge I asked Witt what could the union guarantee us, and he said that they would go for a round figure of $3.50 to $3.75 and would advise on a one year contract. The average rate for a company driver at Overland Hauling at that time was approximately $1.90 an hour. Witt said that they, the union, could set one price and that the company would have to pay it if the union were voted in. I asked him to repeat that and he did because I wasn't sure I understood it the first time. He said the company would have to pay it and would have no choice. Meadors: During this discussion someone asked what could the union guarantee, and Witt said that the union could guarantee a raise, but he couldn't quote a figure. Stephenson: [Witt] was speaking for the union, but said he was not trying to tell anyone there how to vote. He said that the union would set a price that the company would have to pay if everybody went union. The company would have no choice. The price he quoted was between $3.25 and $3.75 for the first year and after a year or two, it would be between $4.00 and $4.50 an hour. At that time I understood the Overland starting rate to be $1.65 with an increase to $1.75 at the end of thirty days, and to $1.85 at the end of ninety days. After appraising this evidence, I do not believe that it can be said to warrant the conclusion that Witt made false statements to employees as to the amount of wage increases the Union could obtain for them. In sum, Witt's statements as to wage increases do not appear, in the circumstances, to be anything more than permissible election propaganda, whose reliability must be left to the voters to evaluate. Prior Unavailability of the New Evidence However, even if I were to find that the Respondent's new evidence was substantial enough in character as to warrant hearing if previously unavailable, the Respondent has made no adequate showing that it was previously unavailable. The first of the new affidavits was executed in March 1970, over 7 months after the election; the latest ones in April 1970, 8 months after the election. The Respondent contends that it had no access to this evidence previously because employees were intimidated by union threats. If prima facie support is shown for such contention, the present tender should be regarded as timely. However, I have found no probative evidence of such threats or coercion as to influence employees to vote for the Union. The only evidence submitted in this regard is the inferences suggested in the affidavits of the Respondent's vice OVERLAND HAULING, INC. president, Mr. Bloebaum, and its terminal manager, Mr. Earwood, referred to above. I also find no evidence to support a conclusion that employees may have withheld their information previously out of fear. None of the affidavits of employees or lease operators submitted refers to such a consideration. The affidavit of Mr. Bloebaum and Mr. Earwood do not refer to any particular employee or lease operator as having expressed any such fears. I think it unlikely that if intimidation had been a factor, the present affidavits would not have contained a reference to it. In these circumstances I cannot find that the evidence now offered was not previously in the possession of the Respondent or unavailable to it with the exercise of due diligence. Conclusions as to the New Evidence On this state of the record I conclude that the new evidence offered by the Respondent, both that which I have discussed above, and that which-though considered-has not been specifically detailed, is not of such nature as will probably, if accepted, change the outcome of the litigation. In addition, I cannot find the evidence to have been previously unavailable. The Respondent's motion to dismiss and to reopen representation proceeding is therefore now denied. With respect to the Respondent's contention that the Board may not find an unfair labor practice on the basis of a unit determination by a Regional Director, the Respon- dent will have another opportunity, in exceptions to this Decision, to request the Board to review that deternuna- tion. The Trial Examiner has no authority to review. Iowa Beef Packers, 144 NLRB 615. In any event, the Board has not indicated that it has accepted the Pepsi-Cola opinion, cited by the Respondent, (fn. 2, supra) for all future cases. The denial of certiorari in the Pepsi-Cola case contains no implication regarding the views of the Supreme Court on the merits of the case. See Maryland v. Baltimore Radio Show, 338 U.S. 912 at 919 (1950) Additionally it may be noted that the Court of Appeals for the First Circuit has declined to follow the Pepsi-Cola opinion and has held to the contrary. N.L.R.B. v. Magnesium Casting Co, 427 F.2d 114 (C.A. 1, 1970). There thus being no unresolved issues requiring an evidential hearing, summary judgment is appropriate and the General Counsel's motion for summary judgment is granted. Upon the basis of the record before me I make the following further- FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Florida corporation whose office and principal place of business is in Ocoee, Florida, where it engaged in hauling stone and other materials for other construction companies. During the past 12 months, Respondent has received in excess of $50,000 for these r The purpose of this provision is to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law See Mar-Jac Poultry Co, 136 NLRB 249 services performed in connection with the construction of Federal highways. Respondent, at all times material herein, has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All truckdnvers, including owner-operators, dispatched by Respondent's Ocoee terminal, and dispatchers there assigned, but excluding mechanics, shop employees, office clerical employees, guards, and supervisors as defined in the Act. On October 16, 1969, the Regional Director, on behalf of the Board, certified the Union as the exclusive collective- bargaining representative of the employees in the appropri- ate unit for the purposes of collective bargaining. By virtue of Section 9(a) of the Act, the Union is the exclusive representative of all the employees in the said unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. By letter from its attorney dated February 3, 1970, the Respondent refused to bargain with the Union as the collective-bargaining representative of said employees. By such refusal Respondent engaged in unfair labor practices in violation of Section 8(a)(5) of the Act and interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions, and pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDER A. For the purpose of determining the duration of the certification, the initial year of certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit.? B. Overland Hauling, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 385, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate bargaining unit: 785, Commerce Co, d/b/a Lamar Hotel, 140 NLRB 226, 229, 328 F 2d 600 (C A 5, 1964), cert denied 379 U S 817, Burnett Construction Co, 149 NLRB 1419, 1421, enfd 350 F 2d 57 (C A 10, 1965) 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All truckdrivers, including owner-operators, dispatched by Respondent's Ocoee terminal, and dispatchers there assigned, but excluding mechanics, shop employees, office clerical employees, guards, and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent employees as exclusive collective-bargain- ing representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request bargain collectively with Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 385, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and embody in a signed agreement any understand- ing reached. (b) Post at its place of business in Ocoee, Florida, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof and be maintained by the Respondent for a period of 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 12, in writing, within 20 days from receipt of this recommended Order, what steps the Respondent has taken to comply herewith.9 8 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's 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 be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 9 In the event this recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 12, in writing, within 10 days from re. eipt of this Order, what steps the Respondent has taken to comply herewith " 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 with Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 385, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargain- ing representative of all the following employees: All truckdrivers, including owner-operators, dis- patched by us at our Ocoee terminal, and dispatchers there assigned, but excluding mechan- ics, shop employees, office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT interfere with the efforts of the Union to negotiate for or represent employees as exclusive collective-bargaining representative. WE WILL bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the above described unit, and if an understanding is reached we will sign a contract with the Union. OVERLAND HAULING, INC. (Employer) Dated By (Representative), ( Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 813-228-7227.