Burns Motor Freight, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burns Motor Freight, Inc. and Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and elpers of America. Case 9-CA-13301 June 1, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on December 22, 1978, by Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Burns Motor Freight, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a com- plaint and notice of hearing on January 26, 1979, 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 Na- tional Labor Relations Act, as amended. Copies of the charge, 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 com- plaint alleges in substance that on November 6, 1978, following a Board election in Case 9-RC-12581, 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 December 19, 1978, and at all times thereafter, 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 or about March 5, 1979, Respondent filed its an- swer to the complaint admitting in part and denying in part the allegations in the complaint. On March 21, 1979, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on March 29, 1979, 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 Official notice s taken of the record in the representation proceeding. Case 9 RC 12581, 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 LT' Eleciro.svsiems, 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); Interitpe Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967): Foller Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA, as amended. should not be granted. Respondent thereafter filed a response to 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 In its answer to the complaint and reply to the No- tice To Show Cause, Respondent in substance con- tends that it is not obligated to bargain with the Union because the bargaining unit certified by the Board is inappropriate. A review of the record in the representation pro- ceeding, Case 9-RC-12581, discloses that the Union filed a petition on August 10, 1978, seeking to repre- sent all drivers and mechanics employed at Respon- dent's Rupert, West Virginia, facility. On September 22, 1978, the Regional Director for Region 9 issued a Decision and Direction of Election finding that a question affecting commerce existed concerning the representation of certain of Respondent's employees and directing an election. In his Decision and Direc- tion of Election, the Regional Director found a sub- stantial degree of autonomy in the daily operation of Respondent's Rupert facility, a considerable geo- graphic distance separating Respondent's facilities, a lack of significant interchange of personnel between Respondent's facilities, a separate seniority list for Respondent's Rupert operation, and no bargaining history affecting driver and mechanic employees for Respondent's facilities. On the basis of those findings, the Regional Director concluded that a single-loca- tion unit consisting of employees at the Respondent's Rupert operation was appropriate. Thereafter, Respondent filed a request for review of the Regional Director's Decision and Direction of Election. In its request for review Respondent con- tended that there was insufficient evidence to estab- lish that its Rupert, West Virginia, operation is func- tionally distinct from its other operations and asserted that the designation of the employees at the Rupert facility as an appropriate unit was improper because it arbitrarily isolated the Rupert employees from employees employed at Respondent's other fa- cilities and because it constituted a designation of unit solely on the basis of the extent of union organi- zation. Respondent also challenged the Regional Di- rector's findings on the employee status of certain in- dividuals. On October 26, 1978, the Board denied Respon- dent's request for review since it raised no substantial 242 NLRB No. 113 712 BURNS MOTOR FREIGHT. INC. issues warranting review, except as to the supervisory status of Thomas Kimberlin.2 Pursuant to the Decision and Direction of Election, on October 27, 1978, an election was conducted among the unit employees. The result showed that of 22 eligible voters there were 12 votes for, and 8 against, the Union; there were 2 challenged ballots. Respondent did not file any objections to the conduct of the election and on November 6, 1978, the Union was certified as the collective-bargaining representa- tive of the unit employees. It is well settled that in the absence of newly dis- covered 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.3 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously 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 prop- erly litigable in this unfair labor practice proceeding. Accordingly, we 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 RESPONDENT Respondent, a West Virginia corporation. is en- gaged in the transportation of freight by truck from various locations in West Virginia, including its Ru- pert, West Virginia, terminal, the only facility in- volved in this proceeding. During the past year, a rep- resentative period, Respondent received revenues in excess of $50,000 from the interstate transportation of freight from points within the State of West Virginia directly to points outside the State of West Virginia. We find, on the basis of the foregoing, that Respon- dent 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. 2 Member Jenkins dissented from the Board's refusal to grant review. The Board ordered that Kimberlin. an alleged supervisor, be allowed to ote subject to challenge. ISee Pittsburgh Plate Glass Co v. NL REB.. 313 U.S. 146. 162 (1941): Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c). II. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All truck drivers and mechanics employed by the Respondent at its Rupert, West Virginia opera- tion, excluding all office clerical employees, pro- fessional employees, and all supervisors as de- fined in the Act. 2. The certification On October 27, 1978. a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 9 designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on November 6, 1978, and the Union con- tinues 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 November 14, 1978, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about December 19, 1978, 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 December 19, 1978, and at all times thereafter, re- fused 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. 713 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRA("I('ES UPON COMMERCE The activities of 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 com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. IIE REMEI)Y 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 order that it cease and desist therefrom, and, upon request, 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 commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company. Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel. 140 NLRB 226, 229 (1962), entfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Con- struction 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: CON(I.USIONS ()F LAW I. Burns Motor Freight, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters and Helpers Local Union No. 175, 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 truck drivers and mechanics employed by Respondent at its Rupert, West Virginia, operation. excluding all office clerical employees, professional employees, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 6, 1978, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of' collective bargaining within the meaning of' Section 9(a) of the Act. 5. By refusing on or about December 19, 1978, 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 them in Sec- tion 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 Rela- tions Board hereby orders that Respondent, Burns Motor Freight, Inc., Rupert, West Virginia, its offi- cers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Chauffeurs. Teamsters and Helpers Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, s the exclusive bar- gaining representative of its employees in the follow- ing appropriate unit: All truck drivers and mechanics employed by the Respondent at its Rupert. West Virginia opera- tion, excluding all office clerical employees, pro- fessional employees, and all supervisors as de- fined 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 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. 714 BURNS MOTOR FREIGHT, INC. (b) Post at its Rupert, West Virginia, facility copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 9 after being duly signed by Re- spondent's representative, shall be posted by Respon- dent 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 he 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. MEMBER JENKINS, dissenting: Because I regard the unit here as inappropriate, I would dismiss the petition instead of granting the Motion for Summary Judgment. 4 In the event that this Order is enforced h a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National L.ahr Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enlorcing an Order of the National l.ahr Relations Board" APPENDIX NOTICE To EMPI.()YES POSIED BY ORDER OF IIiE NATIONAL LABOR REIAII()ONS BOARI) An Agency of the United States Government WE Wl. NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described be- low. WE wsl.l. NO 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. Wi. wii., 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 employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All truck drivers and mechanics employed by the Respondent at its Rupert, West Virginia, operation, excluding all office clerical employ- ees, professional employees, and all supervi- sors as defined in the Act. BURNS MIO()R FRII0(;II, IN(. 715