Associated Transport, Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1972

195 N.L.R.B. 704 (N.L.R.B. 1972)

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associated Transport , Inc. and Local 161, Interna-
tional Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Case 4-CA-5720
March 6, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on October 20, 1971, by Local
161, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on Associated
Transport, Inc., herein called the Respondent, the Gen-
eral Counsel of the Nation Labor Relations Board, by
the Regional Director for Region 4, issued a complaint
and notice of hearing on November 5, 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 the charge, com-
plaint, 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 com-
plaint alleges in substance that on October 1, 1971,
following a Board election in Case 4-RC-9164, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about October 11, 1971, and at all times there-
after, 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
November 15, 1971, Respondent filed its anwer to the
complaint admitting in part, and denying in part, the
allegations in the complaint. The Respondent in its
answer admits the factual allegations of the complaint,
including its refusal to bargain with the Union. In addi-
tion, the Respondent by its answer alleged certain
affirmative defenses to the allegations set forth in the
complaint.
On December 6, 1971, counsel for the General Coun-
sel filed directly with the Board a Motion for Summary
Judgment and a memorandum in support thereof sub-
mitting, in effect, that the Respondent raised no issues
in its answer which had not previously been litigated
' Official notice is taken of the record in the representation proceeding,
Case 4-RC-9164, 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 347
F.2d 91 (C A. 7, 1968), Sec 9(d) of the NLRA
and decided in the related representation proceeding,
Case 4-RC-9164, and had raised no substantial issues
which are litigable or require an evidential hearing in
the instant case. It, therefore, requests that the Motion
for Summary Judgment be granted. Subsequently, on
December 20, 1971, the Board issued an order transfer-
ring 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 there-
after filed a response to Notice To Show Cause and
memorandum in opposition to Motion for Summary
Judgment.
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 response as well as its answer, the Respondent
contends, in substance, that the Regional Director was
in error in finding in his Decision and Direction of
Election, issued August 19, 1971, that the dispatchers
involved herein were not supervisors within the mean-
ing of the Act. This unit determination was upheld by
the Board's denial on September 16, 1971, of the Re-
spondent's request for review in the related representa-
tion proceeding.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence of 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:
I 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(1) and 102.69(c).
195 NLRB No. 134
ASSOCIATED TRANSPORT, INC. 705
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and exist-
ing by virtue of, the laws of the State of New York, and
is engaged as a common carrier in the shipment of
general commodities by truck to and from its Phila-
delphia, Pennsylvania, terminal. During the past year,
Respondent, in the course and conduct of its business
operations, sold and provided services valued in excess
of $50,000 to customers located outside the Common-
wealth of Pennsylvania.
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
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
B. The Request To Bargain and Respondent's
Refusal
On or about October 7, 1971, the Union requested
the Respondent, by letter, to bargain collectively with
it as the exclusive collective-bargaining representative
of all the employees in the above-described unit. By
telephonic communication the Respondent informed
the Union that it would not recognize and bargain with
the Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
October 7, 1971, refused to bargain collectively with
the Union as the exclusive representative of the em-
ployees 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
Local 161, 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 city dispatchers and road dispatchers em-
ployed by the Respondent at its Philadelphia,
Pennsylvania, terminal; but excluding all truck-
drivers, platform and dock employees, office cleri-
cal employees, salesmen, guards and supervisors
within the meaning of the Act.
2. The certification
On September 23, 1971, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Direc-
tor for Region 4, designated the Union as their repre-
sentative for the purpose of collective bargaining with
the Respondent. The Union was certified as the collec-
tive-bargaining representative of the employees in said
unit on October 1, 1971, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
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 (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:
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW All city dispatchers and road dispatchers em-
1. Associated Transport, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 161, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All city dispatchers and road dispatchers em-
ployed by the Respondent at its Philadelphia, Pennsyl-
vania, terminal; but excluding all truckdrivers, plat-
form and dock employees, office clerical employees,
salesmen guards and supervisors within the meaning of
the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
4. Since October 1, 1971, the above-named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about October 7, 1971, to bar-
gain collectively with the above-named labor organiza-
tion as the exclusive bargaining representative of all the
employees of Respondent in the appropriate unit, Re-
spondent 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, Associated
Transport , Inc., its officers agents, successors, and as-
signs , 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 Local 161, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining repre-
sentative of its employees in the following appropriate
unit:
ployed by the Respondent at its Philadelphia,
Pennsylvania , terminal ; but excluding all truck-
drivers, platform and dock employees, office cleri-
cal employees, salesmen , guards and supervisors
within the meaning of 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 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 Philadelphia, Pennsylvania , terminal
copies of the attached notice marked "Appendix."3 Co-
pies of said notice, on forms provided by the Regional
Director for Region 4, after being duly signed by Re-
spondent's representative, shall be posted by Respond-
ent immediately upon receipt thereof, and be main-
tained 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 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 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 Local
161, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
ASSOCIATED TRANSPORT, INC.
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 city dispatchers and road dispatchers
employed by the Respondent at its Phila-
delphia , Pennsylvania, Terminal ; but exclud-
ing all truckdrivers , platform and dock em-
ployees, office clerical employees , salesmen,
guards and supervisors within the meaning of
the Act.
ASSOCIATED
TRANSPORT, INC.
(Employer)
707
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, 1700 Bankers Securities Building, Walnut and
Juniper Streets , Philadelphia,, Pennsylvania 19107,
Telephone 215-597-7601.