Osborn Transportation, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 821 (N.L.R.B. 1977)

OSBORN TRANSPORTATION, INC.
Osborn Transportation, Inc. and Teamsters Local
Union 612, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Case 10-CA- 12882
September 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on June 27, 1977, by
Teamsters Local Union 612, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the
Union, and duly served on Osborn Transportation,
Inc., herein called Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 10, issued a complaint
and notice of hearing on July I, 1977, 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
National 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
complaint alleges in substance that on May 27, 1977,
following a Board election in Case 10-RC-10612 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about June 20, 1977, 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 July 7, 1977, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On July 14, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. On July 20, 1977, Respondent filed a
response entitled "Respondent's Motion To Dismiss
Complaint and Response to Motion for Summary
Judgment." Subsequently, on July 21, 1977, 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
I Official notice is taken of the record in the representation proceeding,
Case 10- RC 10612. 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 Elecirosystems, Inc., 166 NL.RB 938 (1967). enfd. 388 F.2d 683 (C.A. 4.
1968); Golden Age Beverage Co., 167 N RB 151 (1967). enfd. 415 F.2d 26
232 NLRB No. 126
should not be granted. Respondent thereafter filed a
response to Notice To Show Cause.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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, motion to dismiss
complaint and response to Motion for Summary
Judgment, and response to Notice To Show Cause,
Respondent contests the validity of the UniQn's
designation and its certification on the basis of its
Objections 1, 2, and 3 to the election in the
underlying representation case and requests the
Board to take official notice of the affidavits and
statements submitted by the Respondent in the
investigation in Case 10-RC-10612, as well as those
obtained by the Regional Director in the investiga-
tion of the election objections. The General Counsel
contends that Respondent is attempting here to
relitigate issues which were or could have been raised
and determined in the underlying representation case
and this it may not do. We agree with the General
Counsel.
Review of the record herein, including that in Case
10-RC-10612, establishes that, pursuant to a Stipula-
tion for Certification Upon Consent Election, an
election was held on May 3, 5, and 7, 1976, which the
Union won by a vote of 33 to 14. There were 10
challenged ballots, a number insufficient to affect the
results of the election. Respondent filed timely
objections alleging in substance, inter alia. (I) a
preelection investigation of unfair labor practice
charges against Respondent by a Board agent, (a)
who contacted union agents engaged in organizing
unit employees, and (b) who interviewed employees
in company with union agents combined, in one
instance, with a party at which alcoholic beverages
were consumed: (2) conduct of the election by the
same Board agent; (3) creating the impression among
the employees by the aforesaid activities that the
Board and its agent endorsed the Union; (4) union
threats to employees and to employees of owner-
operators under contract with Respondent; and (5)
the placing of a foreign substance in the fuel supply
of three tractors belonging to owner-operators
causing a breakdown of and damage to such
equipment and causing a cancellation of his contract
(C.A. 5, 1969): Intertype Co. v. Penello, 269 F.Supp. 573 (D.CVa.. 1967):
Follerr Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968): Sec.
9(d) of the NLRA. as amended.
z This response incorporated by reference Respondent's motion to
dismiss complaint and response to Motion for Summary Judgment.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the principal owner-operator. On June 25, 1976,
the Acting Regional Director issued a Report on
Objections in which he found that Respondent's
objections raised no substantial or material issues
affecting the results of the election and recommend-
ed that they be overruled and that the Union be
certified. Respondent filed detailed exceptions and a
supporting brief reiterating its objections, requesting
that the election be set aside and that a second
election be directed or, alternatively, that a hearing
be held on the allegedly substantial and material
factual issues raised by the objections. On December
3, 1976, a Board panel majority, with then Chairman
Murphy dissenting, after reviewing the record in light
of the exceptions, issued a Decision and Order
Directing Hearing 3 in which it adopted the Acting
Regional Director's findings and recommendations
as to all objections except Objection 4, and in which
it directed a hearing on Objection 4.
On February 9, 1977, after a hearing, the Hearing
Officer issued a report and recommendations on
objections in which she found that Objection 4 was
without merit and recommended that it be overruled
and that a certification of representative be issued.
The Respondent filed timely exceptions, with a
supporting brief, to the Hearing Officer's report and
recommendations. On May 27, 1977, the same Board
panel majority, with Member Murphy dissenting,
issued a Decision and Certification of Representative
in which, after reviewing the record in light of the
exceptions and briefs, it adopted the Hearing
Officer's findings and recommendations as to Objec-
tion 4, and certified the Union. It thus appears that
Respondent is attempting here to relitigate issues
which were or could have been raised and deter-
mined in the underlying representation case.4
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.5
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent 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 require the Board to reexamine the decision
made in the representation proceeding. We therefore
3 226 NLRB 1370(1976).
4 In its responses Respondent has requested that the Board take official
notice of all statements and affidavits submitted by Respondent in
connection with the investigation in Case lo RC-10612 and all affidavits
and statements obtained by the Regional Director in the investigation of the
election objections. We deny the request for it is well established by various
Board and court cases cited in fn. I that documents such as affidavits and
find that 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
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, an Alabama corporation, with an office and
place of business located in Gadsden, Alabama,
where it is engaged in interstate transportation of
freight. Respondent, during the past calendar year,
which period is representative of all times material
herein, received in excess of $50,000 directly from the
interstate transportation of freight.
We find, on the basis of the foregoing, that
Respondent 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
Teamsters Local Union 612, affiliated with 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.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. 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 over-the-road truck drivers employed by
Respondent at its Gadsden, Alabama, facility,
but excluding owner-operators and their employ-
ees, mechanical shop employees, office clerical
employees, guards and supervisors as defined in
the Act.
statements which were before the Regional Director in his disposition of the
election objections are not a part of the record in the representation case or
in the related unfair labor practice proceeding. Prestolite Wire Division.
ELTRA Corporation, 226 N LRB 327 (1976).
5 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
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OSBORN TRANSPORTATION, INC.
2. The certification
On May 3, 5, and 7, 1976, 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 10, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining representa-
tive of the employees in said unit on May 27, 1977,
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 June 14, 1977, and at all
times thereafter, the Union has requested Respon-
dent 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 June 20, 1977, 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
June 20, 1977, 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 Respondent set forth in section
III, above, occurring in connection with its opera-
tions 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 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
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 certifica-
tion as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized 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), enfd. 328
F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett 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. Osborn Transportation, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters Local Union 612, affiliated with
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 over-the-road truck drivers employed by
Respondent at its Gadsden, Alabama, facility, but
excluding owner-operators and their employees,
mechanical shop employees, office clerical employ-
ees, 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 May 27, 1977, 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 June 20, 1977, 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the Respondent,
Osborn Transportation, Inc., Gadsden, Alabama, 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 Teamsters Local
Union 612, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, as the exclusive bargaining represent-
ative of its employees in the following appropriate
unit:
All over-the-road truck drivers employed by
Respondent at its Gadsden, Alabama, facility,
but excluding owner-operators and their employ-
ees, mechanical shop employees, office clerical
employees, 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
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 Gadsden, Alabama, facility copies of
the attached notice marked "Appendix."6 Copies of
said notice, on forms provided by the Regional
Director for Region 10, 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 thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 10, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER MURPHY, dissenting:
In my earlier dissents in the underlying representa-
tion case, I would have sustained Respondent's
Objections 1, 2, and 3 and set aside the election 7 and,
accordingly, did not agree with my colleagues'
decision to certify the Union.8 In these circum-
stances, contrary to my colleagues, I would not find
that Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to bargain with the Union.
Accordingly, I would deny the General Counsel's
Motion for Summary Judgment and dismiss the
complaint in its entirety.
1i 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."
See my dissent in 226 NLRB 1370(1976).
s See my dissent in the unpublished Decision and Certification of
Representative in the underlying representation case.
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 Team-
sters Local Union 612, affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the
exclusive representative of the employees in the
bargaining unit described below.
WE Wll.l 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 wlllt, upon request, bargain with the
above-named Union, as the exclusive representa-
tive 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 understanding in a signed agree-
ment. The bargaining unit is:
All over-the-road truck drivers employed
by Respondent at its Gadsden, Alabama,
facility, but excluding owner-operators and
their employees, mechanical shop employ-
ees, office clerical employees, guards and
supervisors as defined in the Act.
OSBORN
TRANSPORTATION, INC.
824