Ace Doran Hauling & Rigging Co.

National Labor Relations Board - Board Decisions

Jun 23, 1971

191 N.L.R.B. 428 (N.L.R.B. 1971)

428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ace Doran Hauling & Rigging Company and Truck
Drivers, Chauffeurs and Helpers Local Union No.
100, an Affiliate of the International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers
of America . Case 9-CA-5949
June 23, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
order transferring the proceeding to the Board and a
Notice To Show Cause why the General Counsel's Mo-
tion for Summary Judgment should not be granted.
Respondent thereafter filed a response to Notice To
Show Cause, and a memorandum in support thereof.
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 powers
in connection with this proceeding to a three-member
panel.
Upon the entire record in this proceeding, the Board
makes the following:
Upon a charge filed on November 18, 1970, by Truck
Drivers, Chauffeurs and Helpers Local Union No. 100,
an affiliate of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served on
Ace Doran Hauling & Rigging Company, herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 9, issued a complaint on January 6, 1971,
against Respondent, alleging that Respondent had en-
gaged 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 Exam-
iner 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 10, 1970,
following a Board election in Case 9-RC-8470 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on September 28, 1970, again on October 12, 1970, 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 January 15, 1971, Respondent filed its
answer to the complaint admitting in part, and denying
in part, the allegations in the complaint, and alleging
certain affirmative defenses.
On March 12, 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 litigable issues, and praying the
Board to grant the Motion for Summary Judgment.
Subsequently, on March 31, 1971, the Board issued an
' Official notice is taken of the record in the representation proceeding,
Case 9-RC-8470 as the term "record" is defined in Secs. 102.68 and
102 69(f) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4,
1968); 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 (C.A 7, 1968); Sec 9(d) of the NLRB.
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
In its response to the Notice To Show Cause, just as
in its answer to the complaint, the Respondent con-
tends that the certification issued to the Union on Au-
gust 10, 1970, is invalid by reason that the Regional
Director erred in including independent contractors in
the bargaining unit and by failing to find that the Blue
Rock Road operation and the Kellogg Avenue opera-
tion are separate and distinct business entities and con-
stitute separate bargaining units.2 We find that the Re-
spondent's contentions in these respects are identical to
the contentions it raised, and which were litigated and
decided in the underlying representation case, and, ac-
cordingly, must be dismissed for lack of merit.
The record in Case 9-RC-8470 reflects that on June
8, 1970, after a hearing in which the Respondent par-
ticipated, the Regional Director issued his Decision
and Direction of Election. Contrary to the contentions
of the Respondent, the Regional Director found that
the single owner-drivers and all nonowner-drivers op-
erating equipment under lease to the Respondent were
employees within the meaning of the Act, and not inde-
pendent contractors. The Regional Director further
found, again contrary to the contention of the Re-
spondent, that the drivers employed at the Respond-
ent's Kellogg Avenue terminal enjoyed duties, skills,
working and employment conditions similar to the
drivers at its Blue Rock Road terminal, and that the
drivers at both locations were properly included in a
single combined unit.
I In addition to its contentions concerning the alleged inappropriateness
of the unit, the Respondent asserts in both its answer and response to the
Notice To Show Cause that the Union's demand for bargaining would force
the Respondent to enter into the Teamsters' "Central States Over The Road
Agreement and Iron and Steel Addendum," thus causing the Respondent
and the Union to violate the antitrust laws of the United States and Section
10(e) of the National Labor Relations Act. We find no merit in this asser-
tion. In view of the Respondent's refusal to meet and bargain with the Union
its assertions as to the subjects for bargaining are anticipatory and prema-
ture. Section 8(d) of the Act, moreover, requires that the Respondent meet
with the Union at reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employment-but it does
not require the Respondent to agree to any proposal or to make any conces-
sion
191 NLRB No. 63
ACE DORAN HAULING & RIGGING COMPANY
On June 19, 1970, the Respondent filed with the
Board a request for review, supported by a brief in
which it raised the same assertions, contentions, and
arguments as it now advances in this unfair labor prac-
tice proceeding. By telegram dated July 15, 1970, the
Board denied the Respondent's request on grounds that
it raised no substantial issues warranting review. Upon
our review of the record in this unfair labor practice
proceeding and the record in Case 9-RC-8470, we
adhere to that view and find no reason to disturb the
findings and conclusions of the Regional Director.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation 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 Respondent has not raised any issue which is prop-
erly 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 RESPONDENT
The Respondent is an Ohio corporation engaged in
the business of contract machine and steel hauling and
transports from its location at Blue Rock Road and
Kellogg Avenue in the Cincinnati, Ohio, area. During
the past 12 months, which is a representative period,
the Respondent had gross revenues in excess of $500,-
000, of which at least $50,000 was derived from hauling
services performed by the Respondent for customers
located outside the State of Ohio.'
We find, on the basis of the foregoing, that Respond-
ent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
' See Pittsburgh Plate Glass Co. v. N.L. R.B., 313 U.S. 146, 162 (1941),
Rules and Regulations of the Board, Sees . 102.67(£) and 102.69(c).
' In its answer the Respondent seeks to controvert the allegations of
paragraph 2(a) of the complaint by contending that it is also a common
carrier of freight by motor vehicle and that its steel hauling operations at the
Kellogg Avenue location are the sole responsibility of an independent con-
tractor. On the basis of the record , including the record in Case 9-RC-8470,
we find that the allegations of the complaint adequately describe the Re-
spondent's business operations and, as its answer admits , the Respondent is
engaged in commerce within the meaning of the Act
429
Section 2(6) and (7) of the Act, and that it will effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers, Chauffeurs and Helpers Local Union
No. 100, an affiliate of the 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 pur-
poses within the meaning of Section 9(b) of the Act:
All single owner-drivers and all nonowner-drivers
operating equipment under lease to the Employer,
and all drivers operating the Employer's equip-
ment out of its Blue Rock Road and Kellogg Ave-
nue terminals of the Employer's Cincinnati, Ohio,
operations, but excluding office clerical employees,
guards, multiple owner-nondrivers, and all other
supervisors as defined in the Act, and all other
employees.
2. The certification
A majority of the employees of Respondent in said
unit, in a secret mail ballot election conducted under
the supervision of the Regional Director for Region 9,
designated 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 August
10, 1970, 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 in September 1970, and at all times
thereafter, the Union has requested the Respondent to
bargain collectively with it as the exclusive collective-
bargaining representative of all the employees in the
above-described unit. Commencing on or about Sep-
tember 28, 1970, and continuing 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.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that the Respondent has, since
September 28, 1970, 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 commerce 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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate 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 begin-
ning on the date Respondent commences 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; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (CA. 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. Ace Doran Hauling & Rigging Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Truck Drivers, Chauffeurs and Helpers Local
Union No. 100, an affiliate of the International Broth-
erhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2 (5) of the Act.
3. All single owner-drivers and all nonowner-drivers
operating equipment under lease to the Employer, and
all drivers operating the Employer 's equipment out of
its Blue Rock Road and Kellogg Avenue terminals of
the Employer's Cincinnati, Ohio, operations, but ex-
cluding office clerical employees, guards, multiple own-
er-nondrivers, and all other supervisors as defined in
the Act, and all other employees, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since August 10, 1970, the above-named organiza-
tion has been and now is the certified and exclusive
representative of all employees in the aforesaid appro-
priate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about September 28, 1970, 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 Respond-
ent 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 in-
terfering 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 engag-
ing 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 meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Ace Doran
Hauling & Rigging Company, 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 Truck Drivers, Chauffeurs, and
Helpers Local Union No. 100, an affiliate of the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All single owner-drivers and all nonowner-drivers
operating equipment under lease to the Employer,
and all drivers operating the Employer's equip-
ment out of its Blue Rock Road and Kellogg Ave-
nue terminals of the Employer's Cincinnati, Ohio,
operations, but excluding office clerical employees,
guards, multiple owner-nondrivers, and all other
supervisors as defined in the Act, and all other
employees.
ACE DORAN HAULING & RIGGING COMPANY
(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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its Cincinnati , Ohio , terminals copies of
the attached notice marked "Appendix ."5 Copies of
said notice , on forms provided by the Regional Direc-
tor for Region 9 , after being duly signed by Respond-
ent's representative, shall be posted by Respondent im-
mediately 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 al-
tered , defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
CHAIRMAN MILLER , dissenting:
Because it appears to me that the Board erred, as a
matter of law, in holding that persons situated similarly
to those in Greyvan Lines v. Harrison, 156 F.2d 412
(C.A. 7, 1946), affd. 331 U .S. 704 (1947), and in Na-
tional Van Lines v. N..L.R.B., 273 F .2d 402 (C.A. 7,
1960), were employees , rather than finding them to be
independent contractors as the law established in those
cases would require, I respectfully dissent from my
colleagues' decision to grant the Motion for Summary
Judgment herein.
5 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
431
concerning rates of pay , wages , hours, and other
terms and conditions of employment with Truck
Drivers, Chauffeurs and Helpers Local Union No.
100, an affiliate of the International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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 Sec-
tion 7 of the Act.
WE WILL , upon request , bargain with the
above-named Union , as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below , with respect to rates of pay , wages,
hours, and other terms and conditions of employ-
ment , and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All single owner-drivers and all nonowner-
drivers operating equipment under lease to
the Employer, and all drivers operating the
Employer 's equipment out of its Blue Rock
Road and Kellogg Avenue terminals of the
Employer's Cincinnati, Ohio, operations, but
excluding office clerical employees , guards,
multiple owner-nondrivers , and all other
supervisors as defined in the Act , and all
other employees.
ACE DORAN HAULING
& RIGGING COMPANY
(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, Federal Office Building , Room 2407 , 550 Main
Street, Cincinnati , Ohio 45202, Telephone 513-684-
3686.
WE WILL NOT refuse to bargain collectively