Modesti Brothers, Inc.

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Modesti Brothers, Inc. and Local 807, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 29- CA-8186 April 10, 1981 DECISION AND ORDER Upon a charge filed on July 31, 1980, by Local 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, herein called the Union, and duly served on Modesti Brothers, Inc., herein called Respondent, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 29, issued a complaint on August 28, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge 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 July 2, 1980, following aBoard election in Case 29- RC-4711, the Union was duly certified as the ex- clusive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about July 23, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. Subsequently, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint; submitting an affirmative defense; and requesting that the complaint be dismissed in its entirety. On October 27, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment with exhibits attached. Subse- quently, on October 31, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Coun- sel's Motion for Summary Judgment should not be granted. Respondent thereafter filed an "Affidavit I Official notice is taken of the record in the representation proceed- ing, Case 29-RC 4711, as the term "record" is defined in Secs. 10268 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystens. ,Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Interrype Co, v. Penrello, 269 F.Supp. 573 (D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA. as amended. 255 NLRB No. 109 In Opposition To Motion for Summary Judgment" with exhibits attached. 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, Respondent as- serts as an affirmative defense that the Union's cer- tification was illegal and improper because of the Board's failure to hold a hearing with respect to material issues of fact in dispute and accordingly Respondent does not possess any duty to bargain. Nonetheless, Respondent admits all of the opera- tive factual allegations of the complaint except for its denial that the Union was properly certified and that the Union is the exclusive bargaining repre- sentative of employees in the unit described below.2 Apparently, based on its denials, Respond- ent also denies the conclusionary averments of the complaint that it has violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. In its Affidavit in Opposition to Motion For Summary Judgment, Respondent attacks the Union's certification on the basis that "substantial and material factual and legal issues" exist which necessitate a hearing pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, and make summary judgment inappropri- ate and improper. In support of this contention, Respondent's affidavit repeats evidence it previous- ly submitted to the Regional Director and to the Board in the representation proceeding. It also refers to allegedly new evidence that it would at- tempt to adduce at a hearing as well as certain "evidence" it presently offers in its affidavit. Based on these contentions and evidence, Respondent's affidavit denies allegations in the General Counsel's Motion for Summary Judgment that Respondent (1) does not offer to adduce at a hearing any newly discovered or previously unavailable evidence nor does it allege that any circumstances exits which would require the Board to reexamine its decisions on the representation proceeding, (2) has not raised an issue which is properly litigated in an unfair labor practice proceeding, and (3) merely seeks to relitigate issues in the representation case already decided by the Board. 2 In its answer, Respondent specifically denies the allegations in par. 8, II11, and 12 o the complaint Respondent does not specifically deny any other allegations of the complaint or indicate a lack of knowledge as to any of the complaint allegations. Accordingly. the remaining paragraphs of the complaint are deemed to be admitted since Sec. 102.20 of the Board's Rules and Regulations. Series 8 as amended, indicates, inter alia, that. "[A]ll allegations in the complaint, if no answer is filed, or any alle- gation in the complaint not specifically denied or explained in an answer riled unless the Respondent shall state in the answer that he is without knowledge. shall be deemed to be admitted to be true and shall be so found by the Board. unless good cause to the contrary is shown." MODESTI BROTHERS, INC. 829 Review of the record herein, including the record in Case 29-RC-4711, reveals that, pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted on November 5, 1979, which resulted in a vote of 5 for, 3 against, the Union, with 2 challenged ballots, sufficient in number to affect the results of the election. There- after, Respondent filed two timely objections to conduct affecting the results of the election, alleg- ing in substance that the Board agent conducting the election failed to inform Respondent's observer of the proper procedure for challenging a ballot and, accordingly, an employee that Respondent in- tended to challenge voted in the election; and that the Union improperly induced Respondent's em- ployees to vote for the Union by wining and dining employees on several occasions and promising em- ployees benefits if they voted for the Union. Following an investigation, on February 7, 1980, the Regional Director issued a Report on Chal- lenged Ballots and Objections in which he recom- mended to the Board that Respondent's two objec- tions be overruled; that the challenge to the ballot cast by Edward Modesti, Jr. (the son of Respond- ent's president) be sustained since Modesti, Jr., was not an employee under Section 2(3) of the Act, and did not share a community of interest with unit em- ployees; that a revised tally of ballots be issued; and that the Union be certified as the exclusive representative of the employees.3 Respondent filed with the Board exceptions to all the Regional Director's recommendations, asking that the election be set aside and that a new election be conducted. Respondent also filed with the Board a request that a hearing be held on all issues in its exceptions. On July 2, 1980, the Board issued a Decision and Certification of Representa- tive (not published in bound volumes of Board De- cisions) in which it adopted the Regional Direc- tor's findings and recommendations, rejected Re- spondent's request for a hearing, and certified the Union as the exclusive collective-bargaining repre- sentative of the employees in the unit described below. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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. 4 3 Inasmuch as the Regional Director recommended sustaining the chal- lenge to the ballot of Edward M(desti, Jr., he found it unnecessary to rule on the remaining challenged ballot as it would not be determinative of the election. 4 See Pilsburgh Plate Glass Co. . L.R.B., 313 U.S. 146. 1t2 (1941); Rules and Regulations of the Board, Sees. 102.67(0 and 102.6 9(c). Contrary to Respondent's contentions, all issues raised by it in in this proceeding were or could have been litigated in the prior representation pro- ceeding, and Respondnet 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 re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice pro- ceeding. In this proceeding, Respondent contends that summary judgment may not be entered because there are substantial and material issues remaining and therefore a hearing is required according to Section 102.69 of the Board's Rules and Regula- tions, Series 8, as amended, to consider the chal- lenges and its objections to the election.5 During the course of the representation proceeding, all parties were afforded the opportunity to be heard. Prior to adopting the findings and recommenda- tions of the Regional Director, the Board consid- ered the Regional Director's Report on Challenged Ballots and Objections, Respondent's exceptions thereto, and Respondent's initial request for a hear- ing. In adopting the recommendations of the Re- gional Director, the Board necessarily found that Respondent's objections had not raised substantial or material issues warranting a hearing. Respondent now raises the same matters raised in the represen- tation proceeding in an attempt to obtain a hearing, but it is well settled that Section 102.69 does not give a party an absolute right to a hearing on ob- jections to an election. It is only when the moving party presents a prima facie showing of substantial and material issues which would warrant setting aside the election that it is entitled to an eviden- tiary hearing.6 Respondent's objections did not raise substantial or material issues in the underlying representation proceeding and they do not now raise substantial or material issues merely by being raised in the unfair labor practice proceeding. The same is true with regard to its complaint that the s Sec 102 69 of the Board's Rules and Regulations states, iter ala, that: (d) The action (if the regional director in issuing a report on obiec- Ilols or challenged ballots, or both . . may he on the basis of an administrative investigalion or. if it appears to the regional director that suhstanlial and material factual issues exist which. in the exercise of his realsonale discretion. he determines ma, more appropriately be resolved after a hearing. he shall issue and cause to be served on the parties a otice of hearing on alid issues before a hearing officer. ' Contrary to Respondent's affidavil. the Board has found in a number of cases that a respondent is under a duty to bargain ilth a ulnioll sshere no hearing \was held on1 the obhjections in the underlying representation proceeding Sec ecg. PerAk, I :rterpris. Inc., 251 NLRB 522 (19(0) Ma- dsonvillh Contcrete Co.. a Division of Corum & Edwards. Inc., 220 NLRB 668 (19751): Evansillc .lAuto Parrts. Inc . 217 NI.RB 660) (1975) MODESTI BROTHERS, INC. 829 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regional Director incorrectly sustained the chal- lenge to the ballot of Edward Modesti, Jr. In its af- fidavit in opposition to the Motion for Summary Judgment, Respondent contends, however, that it has additional evidence on each issue it has raised warranting a hearing. These contentions are with- out merit. With respect to the status of Modesti, Jr., Respondent refers to additional evidence in Case 29-CA-7571 where Modesti, Jr., is alleged to be a supervisor under the Act. Respondent con- tends that at a hearing it would show he is not a superivsor. However, Modesti, Jr., was not ex- cluded from the unit in the underlying representa- tion proceeding because he was a supervisor but rather because he was not a Section 2(3) employee who did not share a community of interest with unit employees. Hence, Respondent's attempt to show Modesti, Jr., is not a supervisor is irrelevant to the issues framed here. And with regard to its two objections, Respondent does not offer any new evidence but simply asserts what it would prove if allowed to subpena witnesses and records. Such as- sertions do not raise issues warranting a hearing. Lastly, Respondent makes an offer of proof regard- ing the second voter, whose status the Regional Director found it unnecessary to resolve in this proceeding. The Board affirmed that recommenda- ton and so Respondent's proffer on his status is also irrelevant to the issues framed here. In sum, Re- spondent's claim that it is entitled to a hearing and that summary judgment is improper is without merit. Accordingly, we grant the Motion for Sum- mary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a New York corporation with an office in Long Island City, New York, is engaged in performing general freight trucking and related services. During the past 12 months, a representa- tive period of all times material herein, Respond- ent, in the course and conduct of its business oper- ations, derived gross revenues in excess of $50,000. During the past 12 months, a representative period of all times material herein, Respondent, in the course and conduct of its business operations, de- rived gross revenues in excess of $50,000 from the transportation of freight from States outside the State of New York directly to points inside the State of New York. We find, on the basis of the foregoing, that Re- spondent 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 effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local 807, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. I1. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees, including truck drivers, em- ployed by the Employer, but excluding all office clerical employees, guards and supervi- sors, as defined in the Act. 2. The certification On or about November 5, 1979, a majority of the employees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 29, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on or about July 2, 1980, 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 July 7, 1980, and at all times thereafter, the Union has requested Respond- ent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about July 23, 1980, and continuing at all times thereafter to date, 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 Respondent has, since July 23, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- MODESTI BROTHERS, INC. 831 tices 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, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Modesti Brothers, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 807, 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 employees, including truck drivers, em- ployed by the Employer, but excluding all office clerical employees, guards and supervisors, as de- fined 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 or or about July 2, 1980, the above- named labor organization has been and now is the certified and exclusive representative of all employ- ees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. By refusing on or about July 23, 1980, 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 prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 meaning 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, Modesti Brothers, Inc., Long Island City, New York, 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 Local 807, Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All employees, including truck drivers, em- ployed by the Employer, but excluding all office clerical employees, guards and supervi- sors, as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if MODEST BROTHERS, INC 831 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its office located in Long Island City, New York, copies of the attached notice marked "Appendix."7 Copies of said notice, on forms pro- vided by the Regional Director for Region 29, after being duly signed by Respondent's representa- tive, 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 29, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 7 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the Naitonal 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 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees, including truck drivers, em- ployed by the Employer, but excluding all office clerical employees, guards and super- visors, as defined in the Act. MODESTI BROTHERS, INC.