Turner's Express, Inc.

TURNER'S EXPRESS, INC. 561 Turner's a Express, Incorporated and Teamsters Local Union No.-822, affiliated with International Broth- erhood of Teamsters; Chauffeurs, Warehousemen and Helpers of America. Case 5-CA-5155 August 10, 1971 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND > KENNEDY Upon a charge filed on May 4, 1971, by Teamsters Local Union No. 822, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men andHelpers of America, herein called the Union, and duly served on Turner's Express, Incorporated, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a complaint on May 10, 1971, 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 tht charge, complaint, and notice of hearing before a Tria1'Ecaminer were,duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on or about March 19, 1971, following a Board election in Case 5-RC-6853 the Union was duly certified as, the exclusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate;' and that, commencing on or about April 28,197 1, and at all times thereafter,-Respondent has, refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represent- ative, although the Union has requested and is requesting it to do so. On May 21, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 26, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 8, 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 Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, characterized as Respon- dent's Statement in Opposition to Motion for Summa- ry Judgment and Notice To Show Cause. 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 In its answer to the complaint and in its response to the Notice To Show Cause, Respondent asserts that the Board exceeded its statutory authority in certify- ing the Union as the exclusive bargaining representa- tive of Respondent's employees . - Its argument is premised on the contention- that its objections filed in Case 5-RC-6853 should have been sustained and the election set aside. Respondent further states that its only means of obtaining judicial review of the Board's Decision and Certification, of Representative (189 NLRB 'No. 23) issued in the antecedent representa- tion proceedings in Case. 5-RC-6853, which it considers to be erroneous, is to refuse to bargain. Accordingly, it opposes the' Motion for Suxnxnary Judgment. Upon the record before us, including the record in Case 5-RC-6853, Turner's Express,_Incorporated 189 NLRB No. 23, we find no merit in the ,Respondent's contentions. The election in the representation case was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election between the Respondent and the Union. Upon conclusion of the election the parties were furnished with a tally of ballots which showed that of approximately 66 eligible voters, 32 votes were cast for the Petitioner , 22 were cast against the Petitioner, 6 votes were challenged, and 2 ballots were void. The challenged ballots were not sufficient in number to affect the results of the election. On August 14, 1969, the Employer filed timely Objections to Conduct Affecting the Outcome of the Election, together with a motion to dismiss the petition. The objections alleged in substance that two supervisory and managerial employees of the Em- ployer, Garland Tebo and E. W. Robbins, were active in support of the Union's organizing and electioneer- ing efforts. The Regional Director conducted an investigation and on October 21, 1969, ° issued his Report on Objections and Notice of Hearing in which he found-that the investigation disclosed the existence of certain "substantial and material questions" and directed that a hearing be held before a Hearing Officer who would propose recommendations to the Board. 1 Official notice is .taken of the record m the representation proceeding, Case 5-RC--6853, as the term "record" is defined , in Sees. 102.68 and 102.69(1) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (CA. 4,1%8); 192 NLRB No. 89 Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v.'Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 91 (CA. 7, 1968); Sec. 9(d) of the NLRA. W DECISIONS OF NATIONAL LABOR-RELATIONS BOARD Following such a hearing,' in, his report, issued-on April 15,.1970, the Hearing Officer recommended'that the,' objections be overruled in their-entirety and that the Petitioner be certified as the collective-bargaining representative of the employees. The Respondent filed timely exceptions to the Hearing Officer's Report together with a supporting brief. On March 9, 1971, the Board issued,its Decision and Certification of Representative in Turner's Express, Incorporated, 189 NLRB No. 23, wherein it adopted and amplified the Hearing Officer's findings and recommendations by finding that the` p'roumon'''activities of minor supervisors, Robbins and Tebo, - did `not impair the employees' freedom of choice in the election, or constitute interference which would warrant 'setting aside the election.' The Board certified the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit. - 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 proceed- ing 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 does it allege that any special circumstances exist herein which 'would require the Board' to reexamine the decision made in the representation proceeding. We therefore find that the 'Reespondent has not' raised any' issue which is properly litigable in this unfair labor practice proceedings 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 Respondent, a Virginia corporation, with its princi- pal office at .Norfolk, Virginia, is engaged in trucking operations- and transports freight between the Com- monwealth of Virginia and the States of Maryland, Pennsylvania, New York, and other States. During the preceding 12-month period, ' ,the Respondent received revenues in excess , of $50,000 from the interstate part of its business. We find, on the -basis of the ,foregoing, that Respondent is, and has been at all times material R See Pittsburgh Plate Glass Co. v. N.LRB., 313,U.S. 146,162 (1941); Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c). 3 Respondent further contends in its response to the Notice To Show Cause that it is entitled, as 4 matter of law, to a formal hearmg under Sec. 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. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local_, Union No. 822,- 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. 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 , truckdrivers, warehousemen, and shop employees employed by the Employer at its 1300 Shelton Avenue, Norfolk, Virginia, 'locatiori, excluding all other employees, office",elerical employees, guards and supervisors as defined in the Act. 2, The certification On August 6 and 7, 1969, a majority" of the employees of Respondent in said unit, in a ,secret ballot election conducted under the supervision of the Regional Director for Region5designated the Union as their- representative for the purpose of -collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on March 19,197 1, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about March 25,197 1, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the.employ- ees in the above-described unit. Commencing on or about April 28, 1971, and, continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the _10(b) of the Act rather than "an informal factual hearing under Section 9 of the Act." We fmd no merit in this contention . See Janler Plastic Mold Corp., 191 NLRB No: 24. TURNER'S EXPRESS, INC. - 563 Union as the exclusive -representative for collective bargaining of all employees in said unit.' Accordingly, we find'that the Respondent has, since April 28, 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 Respondent set forth in section III, above, occuring 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,-weshall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the jUnion'as'the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/bla 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 1419,142 1, 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. Turner's Express, Incorporated, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local Union No. 822, 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 truckdrivers, warehousemen,, and shop employees employed by the, Employer at it 1300 Shelton Avenue, Norfolk, Virginia, location; exclud- ing all other employees, office, clerical employees, guards and supervisors as defined in the Act consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.- 4. Since March 19, 1971, 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 April 28, 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, Turner's Express, Incorporated, 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 Teamsters Local Union No. 822, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All truckdrivers, warehousemen, and shop employees employed by the Employer at its 1300 Shelton Avenue, Norfolk, Virginia, location; excluding all other employees, office clerical 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 rights guaranteed them in Section 7 of the Act. '564 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 at its location and place of business yin Norfolk, Virginia, copies of the attached -notice marked ° `Appendix." 4 Copies of said notice, on forms provided by the Regional Directot,for,,Region 5, 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 5, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. s 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." 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 concern- ing rates -of pay, wages, hours, and other terms and conditions of employment with Teamsters Local Union No.. 822, affiliated with International- Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, as the excl sive representative of the employees in the bargainingunitdescribed below. WE WILL NOT in any liketor related manner interfere with, restrain, or coerce our,employees in the exercise of the rights guaranteed themby Sectiony7 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 rates of pay, wages, hours, and other terms and - conditions of employment, 'and, if an understanding is reached, embody such understand- ing in a signed agreement. The bargaining unit is: - All , truckdrivers, ` warehousemen, and 'shop employees employed by the Employer at'its'*1300 Shelton Avenue, Norfolk, Virginia, location; excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. TURNER'S EXPRESS, INCORPORATED (Employer) - Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted -for 160 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, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Telephone 301-962- 2822.