Red Arrow Delivery, Inc.

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Red Arrow Delivery, Inc. and Teamsters Local 651, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 9-CA-9217 January 14, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a charge filed on March 14, 1975, by Team- sters Local 651, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, and duly served on Red Arrow Delivery, Inc., herein called-the Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 9, issued a complaint on April 30, 1975, against Respondent, alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing 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 hear- ing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on December 19, 1974,' following a Board election in Case 9-RC- 10773, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;2 and that, commencing on or about January 23, 1975, and at all times thereafter, Respondent has refused, and con- tinues 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. Respondent filed its answer and amended answer to the complaint admitting in part, and deny- ing in part, the allegations in the complaint. On August 20, 1975, counsel for the Acting Gener- al Counsel, hereafter referred to as General Counsel, filed directly with the Board a Motion for Summary i We note that the complaint inadvertently alleges the certification date to be January 22, 1975 The record is clear, however, that the union was certi- fied on December 19, 1974, and we shall, therefore, use that date as the date of the certification herein 2 Official notice is taken of the record in the representation proceeding, Case 9-RC-10773, as the term "record" is defined in Secs 102 68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd 388 F 2d 683 (C.A. 4, 1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26 (C.A. 5, 1969), Intertype Co v Penello, 269 F Supp. 573 (D C Va, 1967), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec. 9(d) of the NLRA Judgment, and, on September 22, 1975, counsel for the General Counsel filed an Amendment to Motion for Summary Judgment. Subsequently, on September 25, 1975, the Board issued an order transferring the proceeding to the Board and a Notice To' Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a memorandum in response to the Notice To Show Cause. 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 3 In its answer to the complaint and its response to the Notice To Show Cause, Respondent admits its refusal to bargain but attacks the Union's certifica- tion on the basis of its election objections in the un- derlying representation case. Further, Respondent contends that granting the motion for summary judg- ment will deprive it of due process because it is enti- tled to a hearing on its election objections at this time. Review of the record herein, including the record in Case 9-RC-10773, reveals that, pursuant to the Regional Director's Decision and Direction of Elec- tion, an election was held on November 26, 1974, which the Union won. Thereafter, Respondent filed timely objections to conduct affecting the results of the election, contending that the Union promised to waive or reduce its initiation fee to induce employees to sign authorization cards and to vote for the Union in the election, and that the Union engaged in other coercive acts and conduct. On December 19, 1974, after investigation of Respondent's objections, the Regional Director issued his Supplemental Decision and Certification of Representative, in which he overruled the objections in their entirety and certi- fied the Union. Respondent filed a timely request for review of the Regional Director's Supplemental De- cision, and the Board, by telegraphic order dated January 22, 1975, denied the request as it raised no substantial issues warranting review. It thus appears that Respondent is attempting to raise herein issues which were raised and determined in the underlying representation case. It is well set- tled that in the absence of newly discovered or previ- ously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of 3 Counsel for the General Counsel's motion to amend the Motion for Summary Judgment is hereby granted 222 NLRB No. 51 RED ARROW DELIVERY, INC. Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances- exist herein which would require the Board to reexamine,the de- cision 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.' We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Kentucky corporation, is engaged in the hauling, delivery, and moving of furniture, household goods, and small parcels throughout the Commonwealth of Kentucky. During the past 12 months, a representative period, Respondent per- formed services valued in excess of $50,000 for a re- tail department store chain viz, Federated Depart- ment Stores, Inc. During the past 12 months, Federated had a direct inflow in interstate commerce of purchases and shipments of products valued in excess of $50,000, which products it caused to be shipped from,points outside Kentucky to Federated Stores located within Kentucky. During the same 12- month period, Federated Department Stores, Inc., had a gross volume of sales in excess of $500,000. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local 651, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organi- 4 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(f) and 102.69(c). 5 As to Respondent's contention that due process entitles it to a hearing at this time on its election objections , it is established that no hearing is -re- quired where, as here, there are no properly litigable issues of fact to be 271 zation 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All truck drivers and helpers employed by Re- spondent at its 525 West Shore Street, Lexing- ton, Kentucky facility, but excluding all office clerical employees, all other employees, and all guards and supervisors as defined in the Act. 2. The certification On November 26, 1974, a majority of the employ- ees of Respondent in said unit, in a secret ballot elec- tion conducted under the supervision of the Regional Director for Region 9, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on December 19, 1974, 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 January 23, 1975, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about January 23, 1975, and continuing 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 23, 1975, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. resolved Locust Industries, Inc., 221 NLRB No. 85 (1975), Janler Plastic Mold Corporation, 191 NLRB 162 (1971). 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, inti- mate, 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 mean- ing of Section 8(a)(5)and (1) of the Act, we shall or- der that it cease and desist therefrom, and, upon re- quest, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es 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 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Red Arrow Delivery, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 651, affiliated with the Inter- national 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 and helpers employed by Re- spondent at its 525 West Shore Street, Lexington, Kentucky facility, but excluding all office clerical employees, all other employees, and all guards and supervisors 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 December 19, 1974, the above-named la- bor organization has been and now is the certified and exclusive representative of all employes 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 23, 1975, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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 mean- ing 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 Re- lations Board hereby orders that the Respondent, Red Arrow Delivery, Inc., Lexington, Kentucky, 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 con- ditions of employment with Teamsters Local 651, af- filiated with the 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 truck drivers and helpers employed by Re- spondent at its 525 West Shore Street, Lexing- ton, Kentucky facility, but excluding all office clerical employees, all other employees, and all 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 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 labor organization as the exclusive representative of RED ARROW DELIVERY, INC. 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its 525 West Shore Street, Lexington, Kentucky, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's represen- tative, 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 9, 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX 273 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 Teamsters Local 651, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative 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 exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All truck drivers and helpers employed by Re- spondent at its 525 West Shore Street, Lexing- ton, Kentucky facility, but excluding all office clerical employees, all other employees, and all guards and supervisors as defined in the Act. RED ARROW DELIVERY, INC.