A. Dule Pyle, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1978

236 N.L.R.B. 1220 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Duie Pyle, Inc. and Fraternal Association of Spe-
cial Haulers Local Union 100. Case 4-CA 9026
June 29, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JLNKINS
AND TRIJFSDAI 1
Upon a charge filed on November 7, 1977, by Fra-
ternal Association of Special Haulers Local Union
100, herein called the Union, and duly served on A.
Duie Pyle, Inc., herein called Respondent, the Gen-
eral Counsel of the National Labor Relations Board,
by the Regional Director for Region 4, issued a com-
plaint and notice of hearing on February 8, 1978,
against Respondent, and, on March 29, 1978, an
amendment to the complaint, alleging that Respon-
dent had engaged in and was engaging in unfair la-
bor practices affecting commerce within the meaning
of Section 8(a)(5) and (I) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. C'op-
ies of the charge, complaint, amendment to com-
plaint, and notice of hearing before an Administra-
tive 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 August 29, 1977,
following a Board election in Case 4-RC-12341, 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 October 17, 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 February 17, 1978, Respondent filed its answer to
the complaint and on March 31, 1978, its answer to
the amended complaint, admitting in part, and deny-
ing in part, the allegations in the complaint.
On April 11, 1978, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on April 24, 1978, 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 is taken of the record in the representation proteedilng
Case 4 R( 12341. as the term "record" is defined in Sees 1()268 and
102 69(g) of the Board's Rules and Regulations, Series 8. as amended. See
LTV Electrosystemr., Inc. 166 NL RB 938 ( 1967). enfd 388 F.2d 683 i('.A 4.
1968); Golden Age Beverage ('o., 167 Nl.RB 51 1967), enfd. 415 F2d ( A
5. 1969); Intertrpe ('o. v. Penello. 269 F Supp. 573 (D.('.Va.. 1967): -(,I/hitt
Corp.. 164 NLRB 378 (1967). enfd. 397 F. 2d 91 (('A. 7. 1968); Sec. 91d) of
the NLRA, as amended.
should not be granted. Respondent thereafter filed a
response to The Notice To Show Cause, entitled
"Statement in Opposition to Motion for Summary
Judgment and Request for Oral Argument Before the
Full Board."
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, amended com-
plaint, and the Notice To Show Cause, Respondent
essentially contests the validity of the Union's certifi-
cation. Respondent argues that the unit is inappro-
priate, based upon its contention that certain individ-
uals included in the unit, i.e., owner-operators of
trucking equipment, are not employees within the
meaning of the Act but, rather, are independent con-
tractors. Respondent maintains that review of this
case by the full Board would be particularly appro-
priate in order to resolve the employment status of
owner-operators. In its memorandum in support of
the Motion for Summary Judgment, the General
Counsel contends that there are no issues requiring a
hearing and that Respondent is attempting here to
relitigate issues which were raised and determined in
the underlying representation proceeding. We agree
with the General Counsel.
Review of the entire record, including that in Case
4-RC--12341, discloses that, at the representation
case hearing, Respondent contended that the unit
sought by the petitioner therein 2 was inappropriate.
The petitioner sought to represent a unit which in-
cluded, among others, owner-operators of trucking
equipment who leased their equipment to Respon-
dent. Respondent claimed that the owner-operators
were in fact independent contractors and not em-
ployees within the meaning of the Act. In his Deci-
sion and Direction of Election issued on April 29,
1977, the Regional Director found that the owner-
operators were employees and were appropriately in-
cluded in the unit sought by the petitioner. Respon-
dent filed a request for review of the Regional Direc-
tor's Decision, and brief in support thereof, in which
it reiterated its unit contention based, in part, on the
alleged failure of the Regional Director to consider
relevant Board precedent. On June 2, 1977, the
G (eneral I eamsters. ( hauffeurs. Helpers and Yardmen. Local 470. affili-
ated with International Brotherhood of teamsters. Chauffeurs. Warehouse-
men and Helpers of American filed the petition In ( ase 4 R( 12341 The
F raterna;l Asolciation of Special Haulers Local I ltiln I 00. the Union
herein illr ned in the representation case hearing.
236 NLRB No. 155
1220
A. DUIE PYLE. INC.
Board affirmed the Regional Director's Decision and
Direction of Election based upon the lack of a Board
majority for granting review.3
The election was held on June 5. 1977, and the
tally of ballots furnished to the parties on that date
showed that there were challenged ballots sufficient
in number to affect the results of the election. On
July 8, 1977, the Acting Regional Director issued a
Supplemental Decision on Challenged Ballots and,
on July 12, 1977, a revised tally of ballots issued
which indicated the necessity for a runoff election. A
runoff election was held on August 21, 1977, and the
tally of ballots furnished on that date showed a ma-
jority of votes were cast for the Union. In the ab-
sence of objections to conduct affecting the results of
the election, the Acting Regional Director issued a
Certification of Representative on August 29, 1977,
in which the Union was certified as the exclusive bar-
gaining representative of employees in the unit found
appropriate.
On December 1, 1977. Respondent submitted to
the Board a motion for reconsideration. Respondent
requested that the Board reconsider its previous ac-
tions in this case in light of the appointment of a new
Board member 4 who had not previously considered
the issue involved herein and in view of the fact that
its request for review had, in effect, been denied only
because there was no Board majority in favor of
granting review. By telegraphic order dated January
27, 1978, the entire Board granted Respondent's mo-
tion insofar as it requested the vote of the current
five Board members on the underlying issue; a Board
majority denied the motion in all other respects and
affirmed the Regional Director's Decision and Direc-
tion of Election. It thus appears that Respondent is
raising issues which had been raised and determined
in the underlying representation case.
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 reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.'
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 pre-
viously unavailable evidence, nor does it allege anl
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
iFormer Member Peter I) Walther dlit not p;lrtlcpalle
i John C Fruesdale became . menmhb r o.f tilt Board filxlitlnr Ih, reSlctla-
tion nff former Mlember Wa.tiher
'See Pittrhurgh Plilt, (;tiln (i ,X. V I R B 3 13 tS .146, 102 (1941):
Rules and Regulatiotln mif the Boeard. Sec, 102( 67f) and 10i ) ht c)
the representation proceeding. We therefore find that
Respondent has not raised any issue which is proper-
ly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment. Additionally, as the record and briefs sub-
mitted in the underlying representation proceeding
adequately set forth the positions of the parties, we
shall deny Respondent's request for oral argument.
On the basis of the entire record, the Board makes
the following:
FINI)INGS OF FACT
I 111F BUSINESS OF RESPONDENI
Respondent is a Pennsylvania corporation with its
corporate headquarters located in West Chester,
Pennsylvania. Respondent is engaged in the inter-
state transportation of freight and commodities and
operates a terminal located at Morrisville, Pennsylva-
nia. During the preceding 12 months, a representa-
tive period, Respondent derived in excess of $50,000
from its interstate transportation operations.
We find, on the basis of the foregoing, that Re-
spondent 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 juris-
diction herein.
11 W111 I.\HOR OR(iAN17AIION INVOIVED
Fraternal Association of Special Haulers Local
Union 100 is a labor organization within the meaning
of Section 2(5) of the Act.
III 11Nt- lNFIR l.ABOR PRAC(1ICES
A. The Repre.senlation Proceeding
I. Ihe 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 owner-operators and non-owner operators of
equipmient leased by the owners to Respondent
and employed by Respondent at its Morrisville.
Pennsylvania terminal; excluding office clerical
employees. guards and supervisors as defined in
the Act.
2. IThe certification
On August 21. 1977. a majority of the employees
1221
A. DUIE PYLE. INC.
Board affirmed the Regional Director's Decision and
Direction of Election based upon the lack of a Board
majority for granting review.'
The election was held on June 5, 1977. and the
tally of ballots furnished to the parties on that date
showed that there were challenged ballots sufficient
in number to affect the results of the election. On
July 8. 1977, the Acting Regional Director issued a
Supplemental Decision on Challenged Ballots and.
on July 12, 1977, a revised tally of ballots issued
which indicated the necessity for a runoff election. A
runoff election was held on August 21, 1977, and the
tally of ballots furnished on that date showed a ma-
jority of votes were cast for the Union. In the ab-
sence of objections to conduct affecting the results of
the election, the Acting Regional Director issued a
Certification of Representative on August 29, 1977,
in which the Union was certified as the exclusive bar-
gaining representative of employees in the unit found
appropriate.
On December 1, 1977, Respondent submitted to
the Board a motion for reconsideration. Respondent
requested that the Board reconsider its previous ac-
tions in this case in light of the appointment of a new
Board member 4 who had not previously considered
the issue involved herein and in view of the fact that
its request for review had, in effect, been denied only
because there was no Board majority in favor of
granting review. By telegraphic order dated January
27, 1978, the entire Board granted Respondent's mo-
tion insofar as it requested the vote of the current
five Board members on the underlying issue; a Board
majority denied the motion in all other respects and
affirmed the Regional Director's Decision and Direc-
tion of Election. It thus appears that Respondent is
raising issues which had been raised and determined
in the underlying representation case.
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 reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.
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 pre-
viously unavailable evidence, nor does it allege any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
Former Member Petei 1) a.lliher did not paltilLpatc
4 John ( [ruedale bhcame .n i rllclnh cr of the Bo.ird fil'wl' thle l ,igna-
tion iof former Melhber \a lther
"See Pittrhurgh Platc ;/lat (; i R B. 313 S 1 46. 14 6 (1'941);
Rules and Regula.slon of the Board. Se' s 102 t 7() .111 Il 6
9
ic)
the representation proceeding. We therefore find that
Respondent has not raised any issue which is proper-
ly litigable in this unfair labor practice proceeding.
Accordingly. we grant the Motion for Summary
Judgment. Additionally, as the record and briefs sub-
mitted in the underlying representation proceeding
adequately set forth the positions of the parties, we
shall deny Respondent's request for oral argument.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FAcr
1. iHE BUSINESS OF RESPONDENT
Respondent is a Pennsylvania corporation with its
corporate headquarters located in West Chester,
Pennsylvania. Respondent is engaged in the inter-
state transportation of freight and commodities and
operates a terminal located at Morrisville, Pennsylva-
nia. During the preceding 12 months, a representa-
tive period, Respondent derived in excess of $50,000
from its interstate transportation operations.
We find, on the basis of the foregoing, that Re-
spondent 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 juris-
diction herein.
II. Ite I.ABOR ORGANIZATION INVOI VED
Fraternal Association of Special Haulers Local
Union 100 is a labor organization within the meaning
of Section 2(5) of the Act.
III IIHE UNFAIR I.ABOR PRAC'1ICFS
A. The Represenlation 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 owner-operators and non-owner operators of
equipment leased by the owners to Respondent
and employed by Respondent at its Morrisville,
Pennsylvxania terminal; excluding office clerical
employees, guards and supervisors as defined in
the Act.
2. The certification
On .\ugust 21, 1977. a majority of the employees
1221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 4, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on August 29, 1977, 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 Refisal
Commencing on or about October 4, 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 October 17, 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 collec-
tive bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
October 17, 1977, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate 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. iTHE FFECT OF 'IIIE U NFAI R I.ABOR PRAC('IIC(S U PON
COMMI.R(CE
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, inti-
mate, 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 commerce.
V lIii RF.MEDY
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 bh
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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); Bur-
nett 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. A. Duie Pyle, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Fraternal Association of Special Haulers Local
Union 100 is a labor organization within the meaning
of Section 2(5) of the Act.
3. All owner-operators and non-owner operators
of equipment leased by the owners to Respondent
and employed by Respondent at its Morrisville,
Pennsylvania, terminal; excluding office clerical em-
ployees, 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 August 29, 1977, 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 October 17, 1977, 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 to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)( I) 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.
1222
A. DUIE PYLE, INC.
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, A.
Duie Pyle, Inc., West Chester, Pennsylvania, its offi-
cers, 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 con-
ditions of employment with Fraternal Association of
Special Haulers Local Union 100 as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All owner-operators and non-owner operators of
equipment leased by the owners to Respondent
and employed by Respondent at its Morrisville,
Pennsylvania terminal; excluding 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 Morrisville, Pennsylvania, terminal
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the Re-
gional Director for Region 4, 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. Rea-
sonable 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 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the i nited States (Court of Appeals Enforrig an Order of the
National I abor Relations Board."
APPENDIX
NoTI( F To EMP.O'YEES
POSTED BY ORD)FR OF THE
NATIONAL LABOR RFILATIONS BOARD
An Agency of the United States Government
WE WILL Noi refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Fra-
ternal Association of Special Haulers Local
Union 100 as the exclusive representative of the
employees in the bargaining unit described be-
low.
Wi WIlt.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 WILL. upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, 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 owner-operators and non-owner operators
of equipment leased by the owners to the Em-
ployer and employed by the Employer at its
Morrisville, Pennsylvania terminal: excluding
office clerical employees, guards and supenris-
ors as defined in the Act.
A. DUIF PYInE. INC.
1223