G. P. Trucking

G. P. TRUCKING 279 George Pearce,-.d/b/a G. P. Trucking and General Teamsters Local , 431 International Brotherhood of Teamsters,, Chauffeurs, Warehousemen and Help- ers of America. Case 20-CA-6564 July 28, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINSO. AND KENNEDY Upon a charge filed on February 2, 1971, by General Teamsters Local 431, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on George Pearce, d/b/a G. P. Trucking, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint on March 17, 1971, 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 a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges ' in substance that on October 30, 1970, following a Board election in Case 20-RC-9526, the Union was duly 'certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; I and that, commencing on or about January 18, and at all times thereafter, Respondent has refused, and contin- ues 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 March 29, 1971, Respondent filed its answer to the complaint, admitting in part, and denying in part, the allegations in the complaint. On April 30, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, contending that the Respondent's answer to the complaint raises no issues of fact or law requiring an evidentiary hearing in this unfair labor practice proceeding and praying the Board to grant the Motion for Summary Judgment. Subsequently, on May 4,-1971, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summa- ry Judgment should not be granted. Respondent thereafter -filed a response to Notice To Show Cause, entitled "Opposition to General Counsel's Motion for Summary Judgment." 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 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 The record establishes that, pursuant to a Stipula- tion for Certification Upon Consent Election, which provided for an eligibility payroll period ending September 19, 1970, an election by secret ballot was conducted on October 22, 1970, in Case 20-RC-9526. The tally of ballots showed that of approximately 64 eligible voters, 53 cast ballots, of which 28 were cast for, and, 12 against, the ' Union, and 13 ballots were challenged. Because there were no objections filed with the Board by either party and because the challenged ballots were insufficient in number to affect the results of the election, the Regional Director, pursuant to Section 102.69 (b) of the Board's Rules and Regulations, certified the Union as the exclusive collective-bargaining representative for the employees in the stipulated unit on October 30, 1970. The only real issue concerns the validity of the Respondent's purported challenges to all but 13 voters made on the day of, but prior to, the election. According to the affidavits attached to its "Opposition to the' General Counsel's Motion for Summary Judgment," the Respondent alleges that, although approximately 64 employees were eligible to vote on September 19, 1970, the -last day of the stipulated payroll eligibility period, there were only 13 employees working on October 22, 1970, the day of the election. The others had either been laid off due to seasonal cutbacks or had voluntarily quit. On the day of the election, but prior to the opening of the polls, the Respondent alleges that he informed the Board agent that only the 13 current employees were eligible to vote and that all others were specifically and unequivocally challenged by it. However, although 53 employees voted in the election, the Respondent's election observer did not challenge `any of, them. At the conclusion of , the election, the parties were furnished with the tally of ballots, which was then signed by both_ parties. Respondent also failed to file with the Board any objections to the election-and did i Official notice is taken of the record in the representation proceeding, 1968); Golden Age Beverage Co., 1467 NLRB 151 ; Intertype Co. v. Penello, Case 20-RC-9526, as the term "record" is defined in Secs. 102 68 and 269 F. Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See F.2d 91 (G.A. 7, 1968); Sec. 9(d) of the NLRA. LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F. 2d 683 (C.A 4, 192 NLRB No. 55 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not raise any of the aforesaid issues until after, the General Counsel's Motion for Summary Judgment had been filed. In view of the foregoing, we find that Respondent's contention with respect to the validity of the purported preelection challenges is lacking in merit. It is well settled that in the absence of newly discovered 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 by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly, discovered or previously unavailable evidence, nor an exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding .3 We shall, accordingly, 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 THE RESPONDENT George Pearce is a sole proprietor, doing business as G. P. Trucking, with a place of business in Mendota, California, and at all times material herein has been engaged in the, business of hauling agricultural products by truck. During the past year, in the course and conduct of his business operations, Respondent received gross revenues in excess of $50,000 for transporting goods within the State of California for various firms, each of which annually ships goods valued in excess of $50,000 -directly from their respective operations in the State of California to points outside the State of California. We find, on the basis of the foregoing, that Respondent is, and has been at all times material 2 See Pittsburgh Plate Glass Co. v. N.L.P.B. 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 3 In, its answer to the complaint, the,Respondent denied all allegations of the complaint except those relating to the filing and service of the charge, the nature and'' extent of its business operations, the jurisdiction of the Board, and the status of the Union as a labor organization. In its response to the Notice To Show Cause, however, the Respondent admitted the execution of'the Stipulation for Certification Upon Consent Election in Case 20-RC-9526. Attached to the General Counsel's Motion for Summary Judgment, as appendix 10, is a letter dated December 2, 1970, written by the Respondent and notifying the Union that it was being represented by Mr. Paul Haerle and directing the Union to send its correspondence to Mr. Haerle. Also attached to the motion, as appendixes herein, an employer engaged in commerce within=the meaning of Section 2(6) and (7).ofthe'Act; and that it will effectuate the policies' of the Act to assert jurisdiction herein. - II. THE LABOR ORGANIZATION INVOLVED General Teamsters Local 431, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,, is a labor organization within the meaing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All drivers employed by Respondent at his Mendota, California operation, excluding all office clerical employees, guards, supervisors and agricultural employees as defined in the Act. 2. The certification On October 22, 1970, a majority of the employees of Respondent in said unit, in a secret ballot, election conducted, pursuant to a Stipulation for Certification Upon Consent Election, under the supervision of the Regional Director for Region 20, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargainng representative of the employees in said, unit on October 30, 1970, and the Union continues to be such exclusive representative within the meaning of Sec- tion 9(a)' of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about December 2, 1970, and at' all times` thereafter, the Union has' requested the Respondent to bargain - collectively with it as the 5 and 6, are letters showing the Union's request and the Respondent's refusal, by his agent, Paul Haerle, to bargain. Appendix 3 is the Regional Director's tally of ballots and appendix 4 is his Certification of Representative. In its response to the, Notice To Show Cause,Respondent neither alluded to nor sought to controvert these documents . Thus, the truth of the factual allegations of the complaint is either expressly admitted or stands admitted by; virtue of the uncontroverted factual 'averments-in the General Counsel's motion. The May Department ;Stores Company; 186 NLRB No. 17, and ' Carl Simpson Buick, Inc., 161 NLRB 1389. Accordingly, we agree with the General Counsel that the Respondent has raised no' issues litigable in the unfair labor practice proceeding before us and that all of the allegations of the complaint are deemed to be admitted as true. G. P. TRUCKING 281 exclusive collective-bargaining representative of all the employees in the above-described unit. Com- \mencing on or about January 18 , 1971, and continu- ing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective-bargaining of all employees in said unit. Accordingly, we find that,the Respondent has, since January 18, 1971, 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 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 PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce 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 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 representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order 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, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. George Pearce, d/b/a G. P. Trucking,, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters Local 431 , International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All drivers employed by Respondent at his Mendota, California, operation, excluding all office clerical employees, guards, supervisors and agricul- tural employees 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 October 30, 1970, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 18, 1971, 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 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 Relations Board hereby orders that Respondent, George Pearce, d/b/a G. P. Trucking, its officers, 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 conditions of employment, with General Teamsters Local 431, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All drivers employed by Respondent at his Mendota, California operation, excluding all office clerical employees, guards, supervisors and agricultural employees 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. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 atits Mendota, California, operation copies of . the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 20, 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, the Regional ,Director for Region 20, in writing., "within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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 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." 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 General Teamsters Local 43 1,, International, -Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representa- tive 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 exclusiv6^representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours;' and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All drivers employed by Respondent at his Mendota, California operation, excluding all office clerical employees, guards, supervisors and agricultural employees as defined in the Act. GEORGE PEARCE, D/B/A G. P. TRUCKING (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, 13050 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-1197.