Decatur Transfer & Storage, Inc.

DECATUR TRANSFER & STORAGE, INC. Decatur Transfer & Storage, Inc. and Retail, Wholesale & Department Store Union , AFL-CIO. Case 10-CA-7695 August 14, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 30, 1969, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, granting General Counsel's Motion for Summary Judgment, on the ground that there are no unresolved issues requiring an evidential hearing and finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended. The Trial Examiner recommended that the 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, the 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 considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Decatur Transfer & Storage, Inc., Huntsville, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Issue CHARLES W.SCHNEIDER,Trial Examiner:The case arises on a motion for summary judgment by the General Counsel upon an admitted refusal by the Respondent to bargain with a certified union on the ground that the Respondent's objections to the election had been improperly overruled. 63 The Representation Proceeding' Upon a petition filed July 29, 1968, by Retail, Wholesale & Department Store Union, AFL-CIO, the Union, and a stipulation for certification upon consent election dated August 21, 1968, an election was conducted on September 18, 1968, under the supervision of the Board's Regional Director, among employees of Decatur Transfer & Storage, Inc., the Respondent, in an appropriate unit described hereinafter. Of 58 eligible voters in the unit 48 cast ballots, of which 32 were cast for the Union, 15 against the Union, and I was void. No ballots were challenged. Pursuant to timely objection to conduct affecting the results of the election filed by Respondent on September 23, 1968, an investigation was conducted by the Regional Director in accordance with Section 102.69 of the Board's Rules. The grounds for the objection were that a supervisor of the Respondent had engaged in organizing activities and had campaigned for the Union prior to the election and had induced, encouraged, and coerced employees to vote for the Union, thereby interfering with a free and fair choice in the election. On November 19, 1968, the Regional Director issued his report on objection in which he recommended that the objection be overruled and that the Union be certified as collective-bargaining representative of the employees in the appropriate unit. In the report the Regional Director found that the alleged supervisor referred to, Clarence Roy Estrumse, was "very active" on behalf of the Union during the union campaign. The Regional Director further found, however, that the Respondent was aware of Estrumse's union sympathies prior to the election, that the Respondent had heard rumors that Estrumse was working on behalf of the Union, and that Respondent was informed by Estrumse that he would be an observer at the election.' Further, the Regional Director found that the Respondent took no action to disavow any improper conduct by Estrumse, included his name on the eligibility list to vote in the election, did not challenge Estrumse's ballot, and apparently did not object to Estrumse's activity as union observer. In these circumstances the Regional Director held that because of the Respondent's action in permitting the election to proceed and in failing to take appropriate steps to dissipate the alleged coercive effects of the conduct of its supervisors, the Respondent, in effect, was estopped from contesting the election on the ground stated by the Respondent. The Regional Director did not find it necessary to decide whether Estrumse's conduct was coercive or whether he was a supervisor. The Regional Director concluded that: If Estrumse was not a supervisor, his conduct was clearly permissible, if he was a supervisor, the Employer, by reason of its knowledge and acquiesence may not now invalidate the election because of the alleged misconduct of its own representative. [Citing Talladega Cotton Factory, Inc., 91 NLRB 470, and Hadley Manufacturing Corp., 106 NLRB 620.] 'Administrative or official notice is taken of the record in the representation proceeding , Case 10-RC-7488, as the term "record" is defined in Sec. 102 68 and 102.69( f) of the Board's Rules (Rules and Regulations and Statements of Procedure, National Labor Relations Board, Series 8 as amended). See LTV Electrosystems, Inc., 166 NLRB No 81, enfd 388 F.2d 683 (C.A. 4); Golden Age Beverage Co, 167 NLRB No. 24; 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); Follett Corp., et al, 164 NLRB No. 47, enfd. 397 F 2d 91 (C.A 7); Sec. 9(d) of the NLRA 'Estrumse did not, however, serve as an observer. 178 NLRB No. 12 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 29, 1968, the Respondent filed Employer's exceptions to Regional Director's conclusions with the Board in Washington, D.C., and requested a hearing on the ground that the matter involved substantial and material factual issues. On January 23, 1969, the Board issued its Decision and Certification of Representative in which it adopted the Regional Director's findings, conclusions, and recommendations and certified the Union as the representative in the appropriate unit. The Board said in part: The Employer's exceptions, in our opinion, raise no material or substantial issues of fact or law which would warrant reversal of the Regional Director's findings and recommendations. We agree with the Regional Director's conclusion that the Employer's failure to act on the basis of rumors that Estrumse had been working on behalf of the Union and its knowledge of Estrumse's union sympathies is sufficient to establish that the Employer acquiesced in any supervisory misconduct, irrespective of whether the Employer possessed actual knowledge that Estrumse engaged in coercive organizational activities during the preelection period. The Unfair Labor Practice Case On March 19, 1969, the Union filed an unfair labor practice charge alleging that the Respondent had refused to bargain with the Union on or about February 15, 1969. On March 20, 1969, the Regional Director issued a complaint upon the charge in which the Regional Director asserted, inter alia, that on or about February 15, 1969, and specifically on February 25, 1969, the Union requested the Respondent to bargain and that on or about February 25, March 3, and March 11, 1969, the Respondent refused to bargain and continues to so refuse. This conduct is alleged in the complaint as violative of Section 8(a)(1) and (5) of the Act. On March 27, 1969, the Respondent filed its answer in which it admits all the material facts alleged in the complaint except the following, which it denied: (1) that the Union is the representative of the employees, (2) that the Respondent's refusal to bargain was "continuing," and (3) that the Respondent committed unfair labor practices. Affirmatively, Respondent asserts in its answer that the certification is null and void, and states that its sole reason to decline to meet and bargain with the Union is in order to obtain judicial review of the certification. In addition the answer requests a hearing on the complaint pursuant to Section 101.10 of the Board's rules in order to afford the Respondent an opportunity to present evidence in the representation case on what the Respondent terms "substantial and material factual issues in dispute." On April 11, 1969, Counsel for the General Counsel filed a motion for summary judgment on the ground that in view of the Board's action in the representation case and the state of the pleadings there were no issues of fact or law requiring a hearing, and prayed issuance of a Decision finding the violations alleged in the complaint. On this motion an order to show cause was issued returnable May 7, 1969. On April 30, 1969, the Respondent filed a response to the Order to Show Cause. In its response the Respondent opposes the motion for summary judgment and moves for hearing on the issues raised on its objections on the grounds (1) that the Regional Director's determinations in the representation proceeding and the Board's adoption of them was based on an ex parse investigation without hearing in denial of due process in violation of the Administrative Procedure Act, and not in compliance with the Board's Rules and Regulations, Section 102.69(c);3 (2) that the objections raised substantial and material issues requiring hearing before entrance of judgment on the complaint, and (3) that a hearing is required to provide the Board with a proper evidentiary record for review of the Regional Director's decision. With the exception of ground no. 3, Respondent's contentions in its response to the Order To Show Cause are essentially a restatement of its positions stated previously in the representation case and in its answer to the complaint. On May 7, 1969, the Union filed a response to the Order To Show Cause in support of the motion for summary judgment. Ruling on Motion for Summary Judgment It is established Board policy, in the absence of newly discovered or previously unavailable evidence, not to permit litigation before a Trial Examiner in a complaint case of issues' which were or could have been litigated in a prior related representation proceeding.' This policy is applicable even though no formal hearing on objections has been provided by the Board. Such a hearing is not a matter of right unless substantial and material issues are raised;' and that there are not such issues here has been effectively decided by the Board. With the exception of the contention in the response to Order To Show Cause referred to above as No. 3, all the Respondent's contentions in the representation case and in this unfair labor practice case, including the Respondent's right to hearing on the issues, were urged before the Regional Director and/or the Board and were denied. Those denials are binding on the Trial Examiner. The Respondent is free to request the Board to reconsider its determination and in the event of adverse decision to seek review in an appropriate court of appeals. The Board's dispositions are not, however, reviewable by the Trial Examiner. There are thus no unresolved matters requiring an evidential hearing. Though the Respondent contends that a hearing is necessary for a proper evidentiary record in order to review the correctness of the Regional Director's decision, the representation record as defined by the Board's rules has been officially noted and is to be considered as incorporated herein. See fn. 1, supra, and the cases there cited. The Motion of the General Counsel for summary judgment is therefore granted, and I hereby 'Sec 102 69(c) provides in part. if it appears to the regional director that substantial and material factual issues exist which can be resolved only after a hearing , he shall issue and cause to be served on the parties a notice of hearing on said issues before a hearing officer Presumably this is the portion of the rule to which the Respondent refers. 'Krieger-Ragsdale & Co . Inc. 159 NLRB 490, enfd 379 F 2d 517 (C.A. 7), cert. denied 389 U .S. 1041, Macomb Pottery Co v N.L R B., 376 F 2d 450 (C A. 7); Howard Johnson Company, 164 NLRB No. 121, Metropolitan Life Insurance Company, 163 NLRB No 71 See Pittsburgh Plate Glass Co. v. N.L R.B. 313 US 146, 162, NLRB Rules and Regulations, Sec. 102.67(f) and 102 69(c). 'O K Van and Storage, Inc, 127 NLRB 1537, enfd . 297 F.2d 74 (C A. 5) See Air Control Window Products, Inc., 335 F 2d 245, 249 (C.A. 5) "If there is nothing to hear , than a hearing is a senseless and useless formality " See also N.L R.B. v. Bata Shoe Co, 377 F.2d 821, 826 (C.A. 4). ". . . 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." DECATUR TRANSFER & STORAGE, INC 65 make the following further FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, an Alabama corporation, with places of business located at Decatur and Huntsville, Alabama, where it is engaged in long distance and local moving and storage of household goods Respondent, during the past calendar year, which period is representative of all times material herein, derived gross revenue in excess of $50,000 from the interstate transportation of household goods Respondent is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act lI 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 the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All truck drivers and warehouse employees, including packers, loaders, warehousemen and utility and service men at the Respondent's Decatur and Huntsville, Alabama establishments, but excluding temporary summer employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act At all times since January 23, 1969, the Union has been the representative of a majority of the employees in the appropriate unit for the purposes of collective bargaining, and by virtue of Section 9(a) of the Act is the exclusive representative of all the employees in said anit for the purposes of collective bargaining On or about February 15, 1969, including specifically on or about February 25, 1969 and March 3, 1969, the Union requested Respondent to bargain collectively with the Union as the exclusive representative of all the employees in the aforesaid unit The Respondent's answer, while admitting the specific refusals to bargain, denies the allegation of the complaint that the Respondent "continues to refuse" to bargain However, the Respondent's correspondence with the Union, and its stated position in its answer to the effect that the Respondent's reason for refusal to bargain is its wish to secure judicial review of the certification, establish a continuing refusal to bargain It is therefore found that on or about February 15, 1969, and at all times thereafter, including specifically on or about February 25, March 3, and March 11, 1969, Respondent refused , and continues to refuse, to bargain collectively with the Union By thus refusing to bargain with the Union the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) of the Act and has interfered with, restrained and coerced 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, 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 Decatur Transfer & Storage, Inc , its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively with Retail, Wholesale & Department Store Union, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the following appropriate bargaining unit All truck drivers and warehouse employees, including packers, loaders, warehousemen and utility and service men at the Respondents Decatur and Huntsville, Alabama establishments, but excluding temporary summer employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act (b) Interfering with the efforts of said Union to negotiate for or represent employees as such exclusive collective bargaining representative 2 Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Upon request bargain collectively with Retail, Wholesale & Department Store Union, AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment and other terms and conditions of employment and embody in a signed agreement any understanding reached (b) Post at its plant in Huntsville, Alabama, copies of the attached notice marked "Appendix "' Copies of said notice, on forms provided by the Regional Director for Region 10, shall, after being duly signed by an authorized representative of the Respondent, be posted by the 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Recommended Order, what steps the Respondent has taken to comply herewith ' ,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 785 Commerce Co d/b/a Lamar Hotel 140 NLRB 226 enfd 328 F 2d 600 (C A )) cert denied 379 U S 817 Burnett Construction Co 149 NLRB 1419 1421 enfd 350 F 2d 57 (C A 10) 'In the event that this Recommended Order is adopted by the Board the words a Decision and Order shall be substituted for the words the Recommended Order of a Trial Examiner in the notice In the further event that the Board s Order is enforced by a decree of a United States Court of Appeals the words a decree of the United States Court of Appeals Enforcing an Order shall be substituted for the words a Decision and Order ' 'In the event that this Recommended Order is adopted by the Board this provision shall be modified to read Notify the Regional Director for Region 10 in writing within 10 days from the receipt of this Order what steps the Respondent has taken to comply herewith 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board WE WILL NOT refuse to bargain collectively with Retail, Wholesale & Department Store Union, AFL-CIO, as the exclusive collective-bargaining representative of all our following employees: All truck drivers and warehouse employees, including packers, loaders, warehousemen and utility and service men at our Decatur and Huntsville, Alabama establishments, but excluding temporary summer employees, office clerical employees, professional 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 appropriate unit and if an understanding is reached we will sign a contract with the Union. Dated By DECATUR TRANSFER & STORAGE, INC. (Employer) (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. Any questions concerning this notice may be directed to the Board's Regional Office, 730 Peachtree Street, NE., Atlanta, Georgia, Telephone 404-526-5760.