G. P. Trucking

National Labor Relations Board - Board Decisions

Jul 28, 1971

192 N.L.R.B. 279 (N.L.R.B. 1971)

G. P. TRUCKING 279
George Pearce,-.d/b/a G . P. Trucking and General
Teamsters Local , 431 International Brotherhood of
Teamsters,, Chauffeurs , Warehousemen and Help-
ers of America. Case 20-CA-6564
July 28, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINSO. AND
KENNEDY
Upon a charge filed on February 2, 1971, by
General Teamsters Local 431, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, and
duly served on George Pearce, d/b/a G. P. Trucking,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 20, issued a complaint on March
17, 1971, against Respondent, alleging that Respon-
dent 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, complaint, 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
complaint alleges ' in substance that on October 30,
1970, following a Board election in Case 20-RC-9526,
the Union was duly 'certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; I and that,
commencing on or about January 18, and at all
times thereafter, Respondent has refused, and contin-
ues 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 March 29, 1971, Respondent filed its
answer to the complaint, admitting in part, and
denying in part, the allegations in the complaint.
On April 30, 1971, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, contending that the Respondent's answer
to the complaint raises no issues of fact or law
requiring an evidentiary hearing in this unfair labor
practice proceeding and praying the Board to grant
the Motion for Summary Judgment. Subsequently, on
May 4,-1971, the Board issued an order transferring
the proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Summa-
ry Judgment should not be granted. Respondent
thereafter -filed a response to Notice To Show Cause,
entitled "Opposition to General Counsel's Motion for
Summary Judgment."
Pursuant to the provisions of Section 3(b) of, the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with 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
The record establishes that, pursuant to a Stipula-
tion for Certification Upon Consent Election, which
provided for an eligibility payroll period ending
September 19, 1970, an election by secret ballot was
conducted on October 22, 1970, in Case 20-RC-9526.
The tally of ballots showed that of approximately 64
eligible voters, 53 cast ballots, of which 28 were cast
for, and, 12 against, the ' Union, and 13 ballots were
challenged. Because there were no objections filed
with the Board by either party and because the
challenged ballots were insufficient in number to
affect the results of the election, the Regional
Director, pursuant to Section 102.69 (b) of the Board's
Rules and Regulations, certified the Union as the
exclusive collective-bargaining representative for the
employees in the stipulated unit on October 30, 1970.
The only real issue concerns the validity of the
Respondent's purported challenges to all but 13
voters made on the day of, but prior to, the election.
According to the affidavits attached to its
"Opposition to the' General Counsel's Motion for
Summary Judgment," the Respondent alleges that,
although approximately 64 employees were eligible to
vote on September 19, 1970, the -last day of the
stipulated payroll eligibility period, there were only 13
employees working on October 22, 1970, the day of
the election. The others had either been laid off due to
seasonal cutbacks or had voluntarily quit. On the day
of the election, but prior to the opening of the polls,
the Respondent alleges that he informed the Board
agent that only the 13 current employees were eligible
to vote and that all others were specifically and
unequivocally challenged by it. However, although 53
employees voted in the election, the Respondent's
election observer did not challenge `any of, them. At
the conclusion of , the election, the parties were
furnished with the tally of ballots, which was then
signed by both_ parties. Respondent also failed to file
with the Board any objections to the election-and did
i Official notice is taken of the record in the representation proceeding , 1968); Golden Age Beverage Co., 1467 NLRB 151 ; Intertype Co. v. Penello,
Case 20-RC-9526, as the term "record" is defined in Secs. 102 68 and 269 F. Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397
102.69(f) of the Board's Rules and Regulations , Series 8, as amended. See F.2d 91 (G.A. 7, 1968); Sec. 9(d) of the NLRA.
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F. 2d 683 (C.A 4,
192 NLRB No. 55
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not raise any of the aforesaid issues until after, the
General Counsel's Motion for Summary Judgment
had been filed. In view of the foregoing, we find that
Respondent's contention with respect to the validity
of the purported preelection challenges is lacking in
merit.
It is well settled that in the absence of newly
discovered 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.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly,
discovered or previously unavailable evidence, nor
an 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 properly litigable in this unfair
labor practice proceeding .3 We shall, accordingly,
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 THE RESPONDENT
George Pearce is a sole proprietor, doing business as
G. P. Trucking, with a place of business in Mendota,
California, and at all times material herein has been
engaged in the, business of hauling agricultural
products by truck.
During the past year, in the course and conduct of
his business operations, Respondent received gross
revenues in excess of $50,000 for transporting goods
within the State of California for various firms, each
of which annually ships goods valued in excess of
$50,000 -directly from their respective operations in
the State of California to points outside the State of
California.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
2 See Pittsburgh Plate Glass Co. v. N.L.P.B. 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
3 In, its answer to the complaint, the,Respondent denied all allegations
of the complaint except those relating to the filing and service of the
charge, the nature and'' extent of its business operations, the jurisdiction of
the Board, and the status of the Union as a labor organization. In its
response to the Notice To Show Cause, however, the Respondent admitted
the execution of'the Stipulation for Certification Upon Consent Election in
Case 20-RC-9526. Attached to the General Counsel's Motion for
Summary Judgment, as appendix 10, is a letter dated December 2, 1970,
written by the Respondent and notifying the Union that it was being
represented by Mr. Paul Haerle and directing the Union to send its
correspondence to Mr. Haerle. Also attached to the motion, as appendixes
herein, an employer engaged in commerce within=the
meaning of Section 2(6) and (7).ofthe'Act; and that it
will effectuate the policies' of the Act to assert
jurisdiction herein. -
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters Local 431, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America,, is a labor organization
within the meaing 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
purposes within the meaning of Section 9(b) of the
Act:
All drivers employed by Respondent at his
Mendota, California operation, excluding all
office clerical employees, guards, supervisors and
agricultural employees as defined in the Act.
2. The certification
On October 22, 1970, a majority of the employees of
Respondent in said unit, in a secret ballot, election
conducted, pursuant to a Stipulation for Certification
Upon Consent Election, under the supervision of the
Regional Director for Region 20, designated the
Union as their representative for the purpose of
collective bargaining with the Respondent. The
Union was certified as the collective-bargainng
representative of the employees in said, unit on
October 30, 1970, and the Union continues to be such
exclusive representative within the meaning of Sec-
tion 9(a)' of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 2, 1970, and at'
all times` thereafter, the Union has' requested the
Respondent to bargain - collectively with it as the
5 and 6 , are letters showing the Union's request and the Respondent's
refusal, by his agent, Paul Haerle , to bargain . Appendix 3 is the Regional
Director's tally of ballots and appendix 4 is his Certification of
Representative . In its response to the, Notice To Show Cause,Respondent
neither alluded to nor sought to controvert these documents . Thus, the
truth of the factual allegations of the complaint is either expressly admitted
or stands admitted by; virtue of the uncontroverted factual 'averments-in the
General Counsel's motion . The May Department ;Stores Company; 186
NLRB No. 17, and ' Carl Simpson Buick, Inc., 161 NLRB 1389.
Accordingly, we agree with the General Counsel that the Respondent has
raised no' issues litigable in the unfair labor practice proceeding before us
and that all of the allegations of the complaint are deemed to be admitted
as true.
G. P. TRUCKING 281
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
\mencing on or about January 18 , 1971 , and continu-
ing 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 18, 1971 , 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 , 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
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 com-
merce 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, 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
appropriate 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 beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed 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:
CONCLUSIONS OF LAW
1. George Pearce , d/b/a G. P. Trucking,, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. General Teamsters Local 431 , International
Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , is a labor organization
within the meaning of Section 2(5) of the Act.
3. All drivers employed by Respondent at his
Mendota, California , operation, excluding all office
clerical employees , guards, supervisors and agricul-
tural employees 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 October 30, 1970 , 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 January 18, 1971, 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 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
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
Relations Board hereby orders that Respondent,
George Pearce, d/b/a G. P. Trucking, 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 General Teamsters Local 431,
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All drivers employed by Respondent at his
Mendota , California operation, excluding all
office clerical employees, guards , supervisors and
agricultural employees 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.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
(b) Post atits Mendota, California, operation copies
of . the attached notice marked "Appendix ." 4 Copies
of said notice , on forms provided by the Regional
Director for Region 20, 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 Respondent to insure that said
notices are not altered , defaced, or covered by. any
other material.
(c) Notify, the Regional ,Director for Region 20, in
writing., "within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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 General
Teamsters Local 43 1,, International, -Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representa-
tive 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 exclusiv6^representative of all
employees in the bargaining unit described below,
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. The bargaining
unit is:
All drivers employed by Respondent at his
Mendota, California operation, excluding all
office clerical employees, guards, supervisors
and agricultural employees as defined in the
Act.
GEORGE PEARCE, D/B/A
G. P. TRUCKING
(Employer)
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, 13050 Federal Building, Box 36047, 450
Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-1197.