Pacific Intermountain Express Co.

470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pacific Intermountain Express Company and Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local Union No. 961. Case 27-CA-2544 October 30, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN Upon a charge filed by the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 961, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 27 issued a complaint dated August 27, 1968 against Pacific Intermountain Express Company, here- in called the Respondent, alleging that the Respon- dent had engaged in and was engaging in unfair labor practices 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 a Trial Examiner were duly served on the parties to this proceeding. 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 complaint alleges, in substance, that on July 9 1968, the Union was duly certified as the exclusive bargaining representative of the Respondent's em- ployees in an appropriate unit, and that, on or about July 1, 1968, and thereafter, the Respondent refused to recognize or bargain with the Union as such exclusive bargaining representative, although on or about July 1 and 19, 1968, the Union requested the Respondent to do so. On September 5, 1968, Respondent filed its answer to the complaint, in which it admitted in part and denied in part the allegations contained therein, and requested that the complaint be dismissed. On September 16, 1968, the General Counsel filed with the Board a Motion for Summary Judgment, asserting that there were no issues of fact or law requiring a hearing, and requesting the issuance of a Decision and Order finding the violations as alleged in the complaint and remedying the violations. There- after, on September 20, 1968, the Board issued an Order Transferring Proceeding to the Board and Notice to Show Cause why General Counsel's Motion for Summary Judgment should not be granted. Pursuant thereto, Respondent filed a Response to the Notice to Show Cause with a supporting affidavit. Upon the entire record in this case, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT The record before us establishes that the Union filed a petition in Case 27-RC-3386, seeking to represent the Employer's three line driver dispatchers employed at the Denver Terminal. After a hearing, the Regional Director for Region 27 issued a Decision and Direction of Election on May 23, 1968, in which he found appropriate for bargaining the following unit of employees: All line dispatchers employed by Pacific Inter- mountain Express Company, at 3223 East 46th Avenue, Denver, Colorado, but excluding all sales- men, guards, professional employees, and supervi- sors as defined in the Act and other employees presently covered under a labor agreement. On June 1, 1968, the Respondent filed a Request for Review of the Decision and Direction of Election. It contended that the Regional Director's unit finding was inappropriate on the ground that the line dispatchers are supervisors within the meaning of Section 2(11) of the Act. On June 18, 1968 the Board denied review, thereby affirming the correct- ness of the Regional Director's unit determination. On June 24, 1968, an election was held, in which a majority of the valid ballots were cast for the Union. No objections having been filed, the Union was certified on July 9, 1968. On or about July 1, 1968, and continuing to date, and more particularly on July 1 and 19, 1968, the Union requested, and is requesting that Respondent bargain collectively with it. On or about July 1, 1968, and continuing to date, and more particularly on July 19, 1968, Respondent has refused to bargain collec- tively with the Union, and the Union filed the charges upon which these proceedings are predicated. In its Response to the Notice to Show Cause, Respondent predicates its refusal to bargain upon its contention that line drivers are supervisors within the meaning of the Act. Respondent accordingly contests the validity of the Board-conducted election and the Certification of Representative based thereon. It is well settled that in the absence of newly discovered or previously unavailable evidence, a res- pondent in a Section 8(a)(5) proceeding is not entitled to relitigate issues which were or could have been raised in the prior representation proceeding.' As the contentions now made were raised at the 1 Pittsburgh Plate Glass Company v N.L.R.B., 313 U.S. 146, The Sheffield Corporation , 163 NLRB No. 34, and Collins & Aikman Corp., 160 NLRB 1750 173 NLRB No. 75 PACIFIC INTERMOUNTAIN EXPRESS CO earlier hearing in the representation case, and were considered and rejected, and as all factual allegations of the complaint are admitted by Respondent's answer to the complaint or stand admitted by the failure of Respondent to controvert the averments of the General Counsel's motion, there are no matters in issue requiring a hearing before a Trial Examiner. Accordingly, the General Counsel's Motion for Sum- mary Judgment is granted. On the basis of the record before it, the Board makes the following. FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is and has been at all times material herein , a corporation duly organized and existing under the laws of the State of Nevada and has maintained its principal place of business in Oakland, California, where it is engaged in the business of the interstate transportation by truck of various goods and materials . As part of its organization , Respondent operates a terminal facility at 3223 East 46th Avenue, Denver, Colorado, the only location involved in this proceeding . Respondent annually, in the course and conduct of its business operations derives income in excess of $ 1 million for the interstate transportation of various goods and materials . It is admitted and we find that Respondent 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. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union No. 961, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A The Representation Proceeding 1 The unit The following employees at the Respondent's Denver, Colorado, operation constitute a unit appro- priate for collective bargaining within the meaning of Section 9(b) of the Act: All line dispatchers employed by Pacific Inter- mountain Express Company at 3223 East 46th Avenue, Denver, Colorado, but excluding all sales- men, guards, professional employees, and supervi- sors as defined in the Act and all other employees presently covered under a labor agreement. 2. The certification 471 On June 24, 1968, a majority of the employees of Respondent in said unit, in an election by secret ballot conducted under the supervision of the Region- al Director for Region 27 designated the Union as their representative for the purpose of collective bargaining with Respondent, and on July 9, 1968, the Regional Director for Region 27 certified the Union as the collective-bargaining representative of the employees in said unit and the Union continues to be such representative. B The Request To Bargain and the Respondent's Refusal Commencing on or about July 1, 1968, and continuing to date, and more particularly on July 1 and 19, 1968, the Union has been requesting the Respondent to bargain collectively with it with respect to wages, hours, and working conditions of the employees in the appropriate unit. At all times since on or about July 1, 1968, and more particularly on July 19, 1968, Respondent admittedly has refused to recognize and bargain collectively with the Union as exclusive collective-bargaining representative of all employees in said unit. Accordingly, we find that the Respondent has refused to bargain collectively with the Union as the exclusive bargaining representative of the employees in the appropriate unit, and that, by such refusal, the Respondent has engaged 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 PRACTICE UPON COMMERCE The acts of the Respondent set forth in section III, above, occurring in connection with its operations as described in section I above, have a close, intimate, and substantial relation 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. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning 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 represen- tative of all employees in the appropriate unit and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD selected bargaining agent for the period provided by law, we shall construe the initial year of certification as beginning on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See : Mar-Jac Poultry Company, Inc , 136 NLRB 785, Commerce Company d/b/a LamarHotel, 140 NLRB 226, 229, enfd 328 F. 2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). CONCLUSIONS OF LAW 1. Pacific Intermountain Express Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union No 961, is a labor organization within the meaning of Section 2(5) of the Act. 3. All line dispatchers employed by Pacific Inter- mountain Express Company, at 3223 East 46th Avenue, Denver, Colorado, but excluding all sales- men, guards, professional employees, and supervisors as defined in the Act, and all other employees presently covered under a labor agreement, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since July 9, 1968, the above-named labor organization has been certified as the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act 5. By refusing on or about July 1 and 19, 1968, and at all times thereafter to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged 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 to them in Section 7 of the Act, and thereby 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. Pacific Intermountain Express Company, Denver, Colorado, its officers, agents, successors, and assigns, shall: I Cease and desist from. (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment, with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 961, as the exclusive bargaining representative of its employees in the following appropriate unit. All line dispatchers employed by Pacific Inter- mountain Express Company at 3223 East 46th Avenue, Denver, Colorado, but excluding all sales- men, guards, professional employees, and supervi- sors as defined in the Act and all other employees presently covered under a labor agreement. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed to them by 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 Denver, Colorado, place of business, copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's representative, shall be posted by Respondent 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 said Regional Director for Region 27, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order," the words "a Decree of the United States Court of Appeals Enforcing an Order." APPENDIX ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as PACIFIC INTERMOUNTAIN EXPRESS CO. amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union No. 961, as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner inter- fere 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 representative of all employees in the bargaining unit described below, with respect to wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. The bargaining unit is: All line dispatchers employed by Pacific Inter- mountain Express Company at 3223 East 46th Avenue, Denver, Colorado, but excluding all salesmen, guards, professional employees, and supervisors as defined in the Act and all other em- ployees presently covered under a labor agree- ment. PACIFIC INTERMOUNTAIN EXPRESS COMPANY (Employer) 473 Dated By (Representative ) (Title) 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. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, New Custom House, 721 19th Street, Denver, Colorado 80202, Telephone 303-297-3551.