ABC Freight Forwarding Corp.

National Labor Relations Board - Board Decisions

Nov 12, 1971

194 N.L.R.B. 179 (N.L.R.B. 1971)

ABC FREIGHT FORWARDING CORP. 179
ABC Freight Forwarding Corporation , Blue Ribbon
Express, Inc., and Midland Forwarding Corporation
and Chicago Truck Drivers, Helpers and Ware-
house Workers Union (Independent). Case
13-CA-10674
November 12, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on June 8, 1971, by Chicago
Truck Drivers, Helpers and Warehouse Workers
Union (Independent), herein called the Union, and
duly served on ABC Freight Forwarding Corporation
(herein called ABC), Blue Ribbon Express, Inc.
(herein called Blue Ribbon), and Midland Forward-
ing Corporation (herein called Midland), collectively
herein called the Respondents, the Acting General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 13, issued a
complaint on August 6, 1971, against Respondents,
alleging that Respondents had engaged in and were
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 May 20, 1971,
following a Board election in Case 13-RC-12356, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondents' employees
in the unit found appropriate;1 and that, commencing
on or about June 1, 1971, and at all times thereafter,
Respondents have refused, and continue to date to
refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting them to do so.
On August 16, 1971, Respondents filed their answer
to the complaint admitting in part, and' denying in
part, the allegations in the complaint.
On August 27, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, submitting that the Respondents
are seeking to relitigate issues which the parties fully
and exhaustively have litigated in Case I3-RC-12356.
Subsequently, on September 1, 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 . Respondents 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
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 their answer to the complaint and in their
response to the Notice To Show Cause, Respondents
contend that the certification issued to the Union on
May 20, 1971, is invalid because the Regional
Director erred in including two statutory supervisors
in the single bargaining unit of the three Respondents
which the Regional Director improperly found to be
appropriate. We find that Respondents' contentions
in these respects are identical to those it raised, and
which were litigated and decided , in the underlying
representation proceeding and must , accordingly, be
denied.
The record in Case 13-RC-12356 indicates that,
after a hearing in which Respondents participated, the
Regional Director issued a Decision and Direction of
Election on April 14, 1971, in which he found that the
three Respondent corporations named herein consti-
tuted a single employer for purposes of collective
bargaining, that employees of three corporations
constituted an appropriate unit, and that the two
individuals here in question were neither managerial
employees nor supervisors as defined in the Act.
Thereafter , Respondents filed a request for review of
the Regional Director's Decision and Direction of
Election and a supporting brief , in which they stated
that two issues were raised in the representation
proceeding : the appropriateness of a joint employer
unit and the supervisory status of the two individuals.
The Union filed a statement in opposition to the
request. The request for review , however, appealed
only the supervisory status issue . By telegram dated
May 3, 1971, the Board denied the request for review
on the ground that it raised no substantial issues
warranting review . Upon our review of the record in
this proceeding and the record in Case 13-RC-12356,
we adhere to that view and find no reason to disturb
the findings and conclusions of the Regional Director.
In their response to the Notice To Show Cause,
Respondents state that they do not waive their right to
"Official notice is taken of the record in the representation proceeding, 1968); Golden Age Beverage Co., 167 NLRB 151, Intertype Co. v. Penello,
Case 13-RC-12356, 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(1) of the Board's Rules and Regulations , Series 8, as amended. See F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRB.
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F 2d 683 (CA. 4,
194 NLRB No. 26
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a full hearing on the issues of the supervisory status of
the two individuals involved herein or on the joint
employer issue determined in a representation pro-
ceeding, Case 13-RC-12022, antecedent to the one
underlying this case. Considering this disclaimer of
waiver a request for an evidentiary hearing, we find
that no issue posed by Respondents herein raises
substantial questions which would warrant a hearing.
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 Respondents in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondents
do not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor do
they 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 Respondents have 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
1. THE BUSINESS OF THE RESPONDENTS
The Respondents, ABC, Blue Ribbon, and Mid-
land, are corporations organized under the laws of
New York, Delaware, and Missouri, respectively. The
Board asserted jurisdiction over Respondents on
April 14, 1971, in Case 13-RC-12356 and determined
therein that Respondents were a single employer.
Respondents, with principal offices in New York,
New York, maintain various facilities in other states
including the Chicago terminal involved in this
proceeding located at 1514 South Canal Street,
Chicago, Illinois. During the past year in the course of
their freight forwarding business within the State of
Illinois, each of the Respondents derived gross
income in excess of $50,000 from operations involving
common carriers who were directly in interstate
commerce.
We find, on the basis of the foregoing, that
Respondents are, and have been at all times material
herein, a single 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
Chicago Truck Drivers, Helpers and Warehouse
Workers Union (Independent) 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 Respondents
constitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All freight salesmen employed by ABC, Blue
Ribbon, and Midland at its Chicago terminal,
excluding office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
2. The certification
On May 12, 1971, a majority of the employees of
Respondents in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 13, designated the Union as their
representative for the purpose of collective bargaining
with the Respondents. The Union was certified as the
collective-bargaining representative of the employees
in said unit on May 20,197 1, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondents'
Refusal
Commencing on or about May 24, 1971, and at all
times thereafter, the Union has requested the Respon-
dents 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 June 1, 1971, and continuing at all times
thereafter to date, the Respondents have refused and
continue 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 Respondents have,
since June 1, 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, Respondents have
2 See Pittsburgh Plate Glass Co. v N.L RB, 313 U.S. 146,162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c)
ABC FREIGHT FORWARDING CORP. 181
engaged in and are 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 Respondents set forth in section
III, above, occurring in connection with their 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 commerce.
V. THE REMEDY
Having found that Respondents have engaged in
and are engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we shall
order that they 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 Respondents commence 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. ABC Freight Forwarding Corporation, Blue
Ribbon Express, Inc., and Midland Forwarding
Corporation are a single employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Chicago Truck Drivers, Helpers and Ware-
house Workers Union (Independent) is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All freight salesmen employed by ABC, Blue
Ribbon, and Midland at its Chicago terminal,
excluding office clerical employees, professional
employees, 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 20, 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 June 1, 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
Respondents in the appropriate unit, Respondents
have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respon-
dents have interfered with , restrained , and coerced,
and are interfering with , restraining, and coercing,
employees in the exercise of the rights guaranteed to
them in Section 7 of the Act, and thereby have
engaged in and are 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 Respondents,
ABC Freight Forwarding Corporation, Blue Ribbon
Express; Inc., and Midland Forwarding Corporation,
their 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 Chicago Truck Drivers, Helpers
and Warehouse Workers Union (Independent) as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All freight salesmen employed by ABC, Blue
Ribbon, and Midland at its Chicago terminal,
excluding office clerical employees, professional
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
182 DECISIONS OF NATIONAL
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Chicago terminal copies of the
attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director
for Region 13, after being duly signed by Respon-
dents' representatives, shall be posted by Respon-
dents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 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 Chicago
Truck Drivers, Helpers and Warehouse Workers
Union (Independent) 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 exclusive representative of all
LABOR RELATIONS BOARD
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 freight salesmen employed by ABC,
Blue Ribbon, and Midland at its Chicago
terminal, excluding office clerical employees,
professional employees, guards and supervi-
sors as defined in the Act.
ABC FREIGHT
FORWARDING
CORPORATION
(Employer)
Dated By
Dated By
Dated By
(Representative) (Title)
BLUE RIBBON EXPRESS,
INC.
(Employer)
(Representative) (Title)
MIDLAND FORWARDING
CORPORATION
(Employer)
(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, Everett McKinley Dirksen Building, Room
881, 219 South Dearborn Street, Chicago, Illinois
60604, Telephone 312-353-7572.