Associated Transport, Inc.

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Associated Transport, Inc. and Local 161, Interna- tional Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. Case 4-CA-5720 March 6, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on October 20, 1971, by Local 161, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Associated Transport, Inc., herein called the Respondent, the Gen- eral Counsel of the Nation Labor Relations Board, by the Regional Director for Region 4, issued a complaint and notice of hearing on November 5, 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 the charge, com- plaint, 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 com- plaint alleges in substance that on October 1, 1971, following a Board election in Case 4-RC-9164, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about October 11, 1971, and at all times there- after, Respondent has refused, and continues 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 November 15, 1971, Respondent filed its anwer to the complaint admitting in part, and denying in part, the allegations in the complaint. The Respondent in its answer admits the factual allegations of the complaint, including its refusal to bargain with the Union. In addi- tion, the Respondent by its answer alleged certain affirmative defenses to the allegations set forth in the complaint. On December 6, 1971, counsel for the General Coun- sel filed directly with the Board a Motion for Summary Judgment and a memorandum in support thereof sub- mitting, in effect, that the Respondent raised no issues in its answer which had not previously been litigated ' Official notice is taken of the record in the representation proceeding, Case 4-RC-9164, as the term "record" is defined in Secs 102 68 and 102.69(f) of the Board's Rules and Regulations , Series 8, as amended See LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); 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 347 F.2d 91 (C A. 7, 1968), Sec 9(d) of the NLRA and decided in the related representation proceeding, Case 4-RC-9164, and had raised no substantial issues which are litigable or require an evidential hearing in the instant case. It, therefore, requests that the Motion for Summary Judgment be granted. Subsequently, on December 20, 1971, the Board issued an order transfer- ring 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 there- after filed a response to Notice To Show Cause and memorandum in opposition to Motion for Summary Judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in 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 response as well as its answer, the Respondent contends, in substance, that the Regional Director was in error in finding in his Decision and Direction of Election, issued August 19, 1971, that the dispatchers involved herein were not supervisors within the mean- ing of the Act. This unit determination was upheld by the Board's denial on September 16, 1971, of the Re- spondent's request for review in the related representa- tion proceeding. It is well settled that in the absence of newly discov- ered or previously unavailable evidence of special cir- cumstances 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.' All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior repre- sentation 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 Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: I See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Sees. 102.67(1) and 102.69(c). 195 NLRB No. 134 ASSOCIATED TRANSPORT, INC. 705 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and exist- ing by virtue of, the laws of the State of New York, and is engaged as a common carrier in the shipment of general commodities by truck to and from its Phila- delphia, Pennsylvania, terminal. During the past year, Respondent, in the course and conduct of its business operations, sold and provided services valued in excess of $50,000 to customers located outside the Common- wealth of Pennsylvania. We find, on the basis of the foregoing, that Respond- ent 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, and that it will effectu- ate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED B. The Request To Bargain and Respondent's Refusal On or about October 7, 1971, the Union requested the Respondent, by letter, to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. By telephonic communication the Respondent informed the Union that it would not 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 October 7, 1971, refused to bargain collectively with the Union as the exclusive representative of the em- ployees 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 Local 161, 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 pur- poses within the meaning of Section 9(b) of the Act: All city dispatchers and road dispatchers em- ployed by the Respondent at its Philadelphia, Pennsylvania, terminal; but excluding all truck- drivers, platform and dock employees, office cleri- cal employees, salesmen, guards and supervisors within the meaning of the Act. 2. The certification On September 23, 1971, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Direc- tor for Region 4, designated the Union as their repre- sentative for the purpose of collective bargaining with the Respondent. The Union was certified as the collec- tive-bargaining representative of the employees in said unit on October 1, 1971, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. 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 commerce 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, bar- gain collectively with the Union as the exclusive repre- sentative 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 appropri- ate 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 begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized 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: 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW All city dispatchers and road dispatchers em- 1. Associated Transport, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 161, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All city dispatchers and road dispatchers em- ployed by the Respondent at its Philadelphia, Pennsyl- vania, terminal; but excluding all truckdrivers, plat- form and dock employees, office clerical employees, salesmen guards and supervisors within the meaning of 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 1, 1971, the above-named labor organization has been and now is the certified and ex- clusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargain- ing within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 7, 1971, to bar- gain collectively with the above-named labor organiza- tion as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Re- spondent 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 in- terfering 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 engag- ing 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Associated Transport, Inc., its officers agents, successors, and as- signs, 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 Local 161, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining repre- sentative of its employees in the following appropriate unit: ployed by the Respondent at its Philadelphia, Pennsylvania, terminal; but excluding all truck- drivers, platform and dock employees, office cleri- cal employees, salesmen, guards and supervisors within the meaning of 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. 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its Philadelphia, Pennsylvania, terminal copies of the attached notice marked "Appendix."3 Co- pies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Re- spondent's representative, shall be posted by Respond- ent immediately upon receipt thereof, and be main- tained 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 4, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ' 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 Local 161, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the em- ployees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in ASSOCIATED TRANSPORT, INC. the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached , embody such understanding in a signed agreement. The bargaining unit is: All city dispatchers and road dispatchers employed by the Respondent at its Phila- delphia, Pennsylvania, Terminal; but exclud- ing all truckdrivers, platform and dock em- ployees, office clerical employees, salesmen, guards and supervisors within the meaning of the Act. ASSOCIATED TRANSPORT, INC. (Employer) 707 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, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia,, Pennsylvania 19107, Telephone 215-597-7601.