Turner's Express, Inc.

National Labor Relations Board - Board Decisions

Aug 10, 1971

192 N.L.R.B. 561 (N.L.R.B. 1971)

TURNER'S EXPRESS, INC. 561
Turner's a Express, Incorporated and Teamsters Local
Union No.-822, affiliated with International Broth-
erhood of Teamsters; Chauffeurs, Warehousemen
and Helpers of America . Case 5-CA-5155
August 10, 1971
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND
> KENNEDY
Upon a charge filed on May 4, 1971, by Teamsters
Local Union No. 822, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men andHelpers of America, herein called the Union,
and duly served on Turner's Express, Incorporated,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 5, issued a complaint on May 10,
1971, 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
tht charge, complaint, and notice of hearing before a
Tria1'Ecaminer 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
March 19, 1971, following a Board election in Case
5-RC-6853 the Union was duly certified as, the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;'
and that, commencing on or about April 28,197 1, and
at all times thereafter,-Respondent has, refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is
requesting it to do so. On May 21, 1971, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
On May 26, 1971, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 8, 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 Summary Judgment should not
be granted. Respondent thereafter filed a response to
Notice To Show Cause, characterized as Respon-
dent's Statement in Opposition to Motion for Summa-
ry Judgment and Notice To Show Cause.
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
In its answer to the complaint and in its response to
the Notice To Show Cause , Respondent asserts that
the Board exceeded its statutory authority in certify-
ing the Union as the exclusive bargaining representa-
tive of Respondent's employees . - Its argument is
premised on the contention- that its objections filed in
Case 5-RC-6853 should have been sustained and the
election set aside . Respondent further states that its
only means of obtaining judicial review of the Board's
Decision and Certification, of Representative (189
NLRB ' No. 23) issued in the antecedent representa-
tion proceedings in Case. 5-RC-6853, which it
considers to be erroneous , is to refuse to bargain.
Accordingly, it opposes the' Motion for Suxnxnary
Judgment.
Upon the record before us, including the record in
Case 5-RC-6853, Turner 's Express,_Incorporated 189
NLRB No. 23, we find no merit in the ,Respondent's
contentions. The election in the representation case
was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election between the Respondent
and the Union . Upon conclusion of the election the
parties were furnished with a tally of ballots which
showed that of approximately 66 eligible voters, 32
votes were cast for the Petitioner , 22 were cast against
the Petitioner , 6 votes were challenged , and 2 ballots
were void . The challenged ballots were not sufficient
in number to affect the results of the election.
On August 14, 1969, the Employer filed timely
Objections to Conduct Affecting the Outcome of the
Election, together with a motion to dismiss the
petition. The objections alleged in substance that two
supervisory and managerial employees of the Em-
ployer, Garland Tebo and E. W. Robbins , were active
in support of the Union 's organizing and electioneer-
ing efforts . The Regional Director conducted an
investigation and on October 21, 1969, ° issued his
Report on Objections and Notice of Hearing in which
he found-that the investigation disclosed the existence
of certain "substantial and material questions" and
directed that a hearing be held before a Hearing
Officer who would propose recommendations to the
Board.
1 Official notice is .taken of the record m the representation proceeding,
Case 5-RC--6853, as the term "record" is defined , in Sees. 102.68 and
102.69(1) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (CA. 4,1%8);
192 NLRB No. 89
Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v.'Penello, 269
F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d
91 (CA. 7, 1968); Sec. 9(d) of the NLRA.
W DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
Following such a hearing,' in, his report, issued-on
April 15,.1970, the Hearing Officer recommended'that
the,' objections be overruled in their-entirety and that
the Petitioner be certified as the collective-bargaining
representative of the employees. The Respondent
filed timely exceptions to the Hearing Officer's
Report together with a supporting brief. On March 9,
1971, the Board issued,its Decision and Certification
of Representative in Turner's Express, Incorporated,
189 NLRB No. 23, wherein it adopted and amplified
the Hearing Officer's findings and recommendations
by finding that the` p'roumon'''activities of minor
supervisors, Robbins and Tebo, - did `not impair the
employees' freedom of choice in the election, or
constitute interference which would warrant 'setting
aside the election.' The Board certified the Union as
the exclusive collective-bargaining representative of
the employees in the appropriate unit. -
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 proceed-
ing 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 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 the 'Reespondent has not' raised any' issue
which is properly litigable in this unfair labor practice
proceedings 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
Respondent , a Virginia corporation, with its princi-
pal office at .Norfolk, Virginia, is engaged in trucking
operations - and transports freight between the Com-
monwealth of Virginia and the States of Maryland,
Pennsylvania, New York, and other States. During
the preceding 12-month period, ' ,the Respondent
received revenues in excess , of $50,000 from the
interstate part of its business.
We find, on the -basis of the ,foregoing, that
Respondent is, and has been at all times material
R See Pittsburgh Plate Glass Co. v. N.LRB., 313,U.S. 146,162 (1941);
Rules and Regulations of the Board , Sees. 102.67(f) and 102.69(c).
3 Respondent further contends in its response to the Notice To Show
Cause that it is entitled , as 4 matter of law , to a formal hearmg under Sec.
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 No. 822,- 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.
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 , truckdrivers, warehousemen, and shop
employees employed by the Employer at its 1300
Shelton Avenue, Norfolk, Virginia, 'locatiori,
excluding all other employees, office",elerical
employees, guards and supervisors as defined in
the Act.
2, The certification
On August 6 and 7, 1969, a majority" of the
employees of Respondent in said unit, in a ,secret
ballot election conducted under the supervision of the
Regional Director for Region5designated the Union
as their- representative for the purpose of -collective
bargaining with the Respondent. The Union was
certified as the collective-bargaining representative of
the employees in said unit on March 19,197 1, 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 March 25,197 1, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the.employ-
ees in the above-described unit. Commencing on or
about April 28, 1971, and, continuing at all times
thereafter to date, the Respondent has refused, and
continues to refuse, to recognize and bargain with the
_10(b) of the Act rather than "an informal factual hearing under Section 9
of the Act." We fmd no merit in this contention . See Janler Plastic Mold
Corp., 191 NLRB No: 24.
TURNER'S EXPRESS, INC. - 563
Union as the exclusive - representative for collective
bargaining of all employees in said unit.'
Accordingly, we find 'that the Respondent has, since
April 28, 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 Respondent set forth in section III,
above, occuring 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,-weshall construe the initial period of certification
as beginning on the date Respondent commences to
bargain in good faith with the jUnion'as'the recognized
bargaining representative in the appropriate unit.
See Mar Jac Poultry Company, Inc., 136 NLRB 785;
Commerce Company d/bla 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
1419,142 1, 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. Turner's Express, Incorporated, is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters Local Union No. 822, 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 truckdrivers, warehousemen,, and shop
employees employed by the, Employer at it 1300
Shelton Avenue, Norfolk, Virginia, location; exclud-
ing all other employees, office, clerical employees,
guards and supervisors as defined in the Act consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.-
4. Since March 19, 1971, 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 April 28, 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,
Turner's Express, Incorporated, 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 No. 822,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All truckdrivers, warehousemen, and shop
employees employed by the Employer at its 1300
Shelton Avenue, Norfolk, Virginia, location;
excluding all other 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
rights guaranteed them in Section 7 of the Act.
'564 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 at its location and place of business yin
Norfolk, Virginia, copies of the attached -notice
marked ° `Appendix." 4 Copies of said notice, on forms
provided by the Regional Directot,for,,Region 5, 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 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
s In the event that the Board 's 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 concern-
ing rates -of pay, wages , hours, and other terms and
conditions of employment with Teamsters Local
Union No.. 822, affiliated with International- Brother-
hood of Teamsters , Chauffeurs , Warehousemen, and
Helpers of America, as the excl sive representative of
the employees in the bargainingunitdescribed below.
WE WILL NOT in any liketor related manner interfere
with, restrain, or coerce our,employees in the exercise
of the rights guaranteed themby Sectiony7 of the Act.
WE WILL ,upon request,, bargain with the above-
named,, Union, as the ,exclusive ,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 understand-
ing in a signed agreement . The bargaining unit is: -
All , truckdrivers , ` warehousemen, and 'shop
employees employed by the Employer at'its '*1300
Shelton Avenue, Norfolk, Virginia, location;
excluding all other employees, office clerical
employees, guards and supervisors as defined in
the Act.
TURNER'S EXPRESS,
INCORPORATED
(Employer) -
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted -for 160 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, Federal Building, Room 1019, Charles Center,
Baltimore, Maryland 21201, Telephone 301-962-
2822.