Johnson Rents, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson Rents, Inc. and General Teamsters, Chauf- feurs and Helpers Local 249 a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 6-CA- 13551 December 10, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JtNKINS ANI) PENELLO Upon a charge filed on June 18, 1980, by Gener- al Teamsters, Chauffeurs and Helpers Local 249 a/ w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, and duly served on John- son Rents, Inc., herein called Respondent, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a complaint on July 22, 1980, against Re- spondent, 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 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 March 26, 1980, following a Board election in Case 6-RC- 8649, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about May 30, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On August 1, 1980, Re- spondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On September 2, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 5, 1980, 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 Ollicial notlice is taken of the record in the representation prlceed ing. Case h RC 8649, as the term "record" is defined in Sees. 102h and 102 6 9(g) of the Board's Rules and Regulations. Series 8, as amended Sec LI7 Ectroyvtcm., Inc., 166 NlRB 938 (1967), enfd 388 F2d 683 (4th Cir 1968): Golden Age Beverage (o., 167 N.RI1 151 (1967), enfd 415 F 2d 26 (5th Cir 1969): Intertvpe Co. v. Pencllo. 269 F Supp 573 (D.CVa 1967); Ioblll (Corp., 164 NI.RH 378 (1967), enfd 397 F 2d 91 (7th Cir. 1968) Sec 9(d) of the NI.RA, a amended 253 NLRB No. 100 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 response to the Board's Notice To Show Cause, Respondent admits the Union's request and its refusal to bar- gain but contends it was denied its due process rights because: (1) the Acting Regional Director failed to provide Respondent or the Board with the affidavits upon which he relied in rejecting Re- spondent's postelection objections; (2) the Board failed to review the entire investigative record when it denied Respondent's request for review; 2 and (3) the Acting Regional Director and the Board failed to direct a hearing on postelection ob- jections in which substantial and material issues of fact existed concerning alleged union promises of financial inducement for employees who voted for the Union. In response to Respondent's "Opposition to the Motion for Summary Judgment," the General Counsel argues in substance that Respondent's due process argument is without merit because the issue is governed by Southwest Color Printing Corpora- tion, 247 NLRB No. 127 (1980), wherein the Board held that it is within the Board's discretion to de- termine whether to review the entire investigative record, and, further, that Respondent has not raised any litigable issue. We agree. Review of the record herein, including the record in Case 6-RC-8649, reveals that on Novem- ber 27, 1979, the Union filed a petition seeking to represent certain employees of Respondent. On January 9, 1980, the Regional Director for Region 6 issued a Decision and Direction of Election find- ing the Union to be a labor organization within the meaning of the Act and the following unit of em- ployees appropriate for purposes of collective bar- gaining: All full-time and regular part-time truck- drivers, technicians and warehousemen em- ployed by the Employer at its Pittsburgh, Pennsylvania, facility; excluding all other em- ployees, respiratory therapists and guards, pro- In'r supportl fI is first and second conrent ions. Respondenlt relics on N 1 RB. the( (amrnbridg Wire Cloth (Company, Inc., 622 F 2d 1195 (4th Cir 198() 9() JOHNSON RENTS. INC fessional employees and supervisors as defined in the Act. Thereafter, Respondent filed with the Board a re- quest for review of the Regional Director's deci- sion which was denied. On February 8, 1980, a secret-ballot election was conducted among employees in the aforementioned unit. The tally was four for, and two against, the Union with no challenged ballots. Thereafter, Re- spondent filed timely objections and on March 26, 1980, after a complete investigation of the objec- tions, the Acting Regional Director issued a Sup- plemental Decision and Certification of Representa- tive in which he overruled the objections and certi- fied the Union as the bargaining representative for the unit described herein. Respondent filed a re- quest for review of the Supplemental Decision which was denied because it raised no substantial issues warranting either a review or a need for an evidentiary hearing. As noted above, Respondent cites the Fourth Circuit decision in N.L.R.B. v. Cambridge Wire Cloth Company, supra, as support for its contention that the Board's denial of Respondent's request for review without having the entire investigative record before it constitutes an abuse of discretion and denial of due process. In reaching that conclu- sion, however, the Fourth Circuit relied on the Sixth Circuit's holding to this effect in Prestolite Wire Division v. N.L.R.B., 592 F.2d 302 (6th Cir. 1979), which the Board, in Southwest Color Printing Corporation, supra, respectfully declined to follow. Moreover, we note that neither of those cases has any application here. Section 3(b) of the Act au- thorizes the Board to delegate to its regional direc- tors its powers under Section 9, and places review of any such delegated action by the regional direc- tor within the Board's discretion. Where, as here, it appears from the Regional Director's decision and the Respondent's brief in support of its request for review that no substantial and material issues exist, we find that it is a proper exercise of our discretion to deny the request for review on that basis. Such finding is supported by the Board's policy of expe- ditiously resolving questions concerning representa- tion.3 As to Respondent's contention that it was denied due process by the Board's refusal to order a hear- ing on Respondent's objections in the underlying representation case, it is well established that a party is not entitled to a hearing on objections absent a showing of substantial and material issues.4 Here, it is implicit that the Board, in deny- a Truoteei ofBoton Univervity, 242 NLRB 110 (1979). Natrional Beryllia Corporation, 222 NLRB 1289 (1976), and cases cited therein hearing was warranted. Further, the Board has held, with judicial approval, that evidentiary hear- ings are not required in unfair labor practice cases and summary judgment cases where, as here, there are no substantial or material facts to be deter- mined.5 It thus appears that Respondent is attempt- ing to relitigate issues raised and resolved in the underlying representation case.6 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. 7 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and 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 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 proceeding. Accordingly, we 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 RESPONDI)ENT At all times material herein, Respondent, a cor- poration duly organized and existing by virtue of the laws of the Commonwealth of Pennsylvania, with a place of business and warehouse in Pitts- burgh, Pennsylvania, has been engaged in the retail rental of outpatient hospital equipment. During the 12 months preceding issuance of the complaint, a representative period at all times material herein, Respondent in the course and conduct of its busi- ness operations received gross revenues in excess of $500,000 and purchased and received at its Pitts- burgh facility goods and materials valued in excess of $50,000 directly from points located outside the Commonwealth of Pennsylvania. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material I Handy Hardware Wholesale. Inc., 222 NLRB 373 (19761. and cae.i cited therein. 6 The General Counsel erroneously alleged that Respondent did not follow the procedures outlined in Sec 102 117(c)( 2 )(ii), as amended, of the Board's Rules and Regulations, in seeking a review o the Reglional Director's denial of Respondent's request for information under the Free- dom of Information Act Nevertheless, Respondent's request is merely another attempt to rehligate a previously resolved issue 7 See Pittsburgh Plate Glao Co. v N.L.R.., 313 !S 146. 162 (1q41), Rules and Regulations of the Board, Secs 102 7(n and 102 h9(c) h91 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) 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 I.ABOR ORGANIZATION INVOLVE I General Teamsters, Chauffeurs and Helpers Local 249 a/w 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. III. 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 full-time and regular part-time truck- drivers, technicians and warehousemen em- ployed by the Employer at its Pittsburgh, Pennsylvania, facility; excluding all other em- ployees, respiratory therapists and guards, pro- fessional employees and supervisors as defined in the Act. 2. The certification On February 8, 1980, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Acting Regional Director for Region 6, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining repre- sentative of the employees in said unit on March 26, 1980, and the Union continues to be such exclu- sive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about April 3, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining reprtesentative of all the employees in the above-described unit. Com- mencing on or about May 30, 1980, and continuing at all times thereafter to date, Respondent has re- fused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since May 30, 1980, 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, Re- spondent 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 FFECT OF THE UNFAIR L.ABOR PRACTICES UPON COMMIERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section 1, 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. Johnson Rents, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters, Chauffeurs and Helpers Local 249 a/w 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. 3.All full-time and regular part-time truckdrivers, technicians and warehousemen employed by the Employer at its Pittsburgh, Pennsylvania, facility; 692 JOHNSON RENTS, INC. excluding all other employees, respiratory thera- pists and guards, professional employees and super- visors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 26, 1980, 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 May 30, 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, Johnson Rents, Inc., Pittsburgh, Pennsylvania, its officers, 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 conditions of employment with General Teamsters, Chauffeurs and Helpers Local 249 a/w Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time truck- drivers, technicians and warehousemen em- ployed by the Employer at its Pittsburgh, Pennsylvania, facility; excluding all other em- ployees, respiratory therapists and guards, pro- fessional employees and supervisors 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 an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Pittsburgh, Pennsylvania, facility copies of the attached notice marked "Appendix."H Copies of said notice, on forms provided by the Regional Director for Region 6, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. " In he event that this Order is enfoirced by Judgment orf a United States Court of Appeal,. the words in the notice reading "Posted by ()rder of the Natitonal Labor Relations Board" hall read Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of tilhe Natinal l.abor Relations HBard APPENDIX NOTICE To EMPILOYES POSTED BY ORDER OF THE NATIONAL LABOR REIATIONS BOARD An Agency of the United States Government WE WI I. NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with General Teamsters, Chauffeurs and Help- ers Local 249 a/w 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 WILI., 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- 693 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time truck- drivers, technicians and warehousemen em- ployed by the Employer at its Pittsburgh, Pennsylvania, facility; excluding all other employees, respiratory therapists and guards, professional employees and supervisors as defined in the Act. JOHNSON RENTS, INC. 694