Burns Motor Freight, Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1979

242 N.L.R.B. 712 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burns Motor Freight, Inc. and Chauffeurs, Teamsters
and Helpers Local Union No. 175, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and elpers of America. Case 9-CA-13301
June 1, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge filed on December 22, 1978, by
Chauffeurs, Teamsters and Helpers Local Union No.
175, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
called the Union, and duly served on Burns Motor
Freight, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 9, issued a com-
plaint and notice of hearing on January 26, 1979,
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 Na-
tional Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing before
an administrative 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 November 6, 1978,
following a Board election in Case 9-RC-12581, 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 December 19, 1978, 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 or about March 5, 1979, Respondent filed its an-
swer to the complaint admitting in part and denying
in part the allegations in the complaint.
On March 21, 1979, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on March 29, 1979,
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 s taken of the record in the representation proceeding.
Case 9 RC 12581, as the term "record" is defined in Secs. 102.68 and
10
2.69{g) of the Board's Rules and Regulations. Series 8, as amended. See
LT' Eleciro.svsiems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968): Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Interitpe Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967):
Foller Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec.
9(d) of the NLRA, as amended.
should not be granted. Respondent 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 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 and reply to the No-
tice To Show Cause, Respondent in substance con-
tends that it is not obligated to bargain with the
Union because the bargaining unit certified by the
Board is inappropriate.
A review of the record in the representation pro-
ceeding, Case 9-RC-12581, discloses that the Union
filed a petition on August 10, 1978, seeking to repre-
sent all drivers and mechanics employed at Respon-
dent's Rupert, West Virginia, facility. On September
22, 1978, the Regional Director for Region 9 issued a
Decision and Direction of Election finding that a
question affecting commerce existed concerning the
representation of certain of Respondent's employees
and directing an election. In his Decision and Direc-
tion of Election, the Regional Director found a sub-
stantial degree of autonomy in the daily operation of
Respondent's Rupert facility, a considerable geo-
graphic distance separating Respondent's facilities, a
lack of significant interchange of personnel between
Respondent's facilities, a separate seniority list for
Respondent's Rupert operation, and no bargaining
history affecting driver and mechanic employees for
Respondent's facilities. On the basis of those findings,
the Regional Director concluded that a single-loca-
tion unit consisting of employees at the Respondent's
Rupert operation was appropriate.
Thereafter, Respondent filed a request for review of
the Regional Director's Decision and Direction of
Election. In its request for review Respondent con-
tended that there was insufficient evidence to estab-
lish that its Rupert, West Virginia, operation is func-
tionally distinct from its other operations and
asserted that the designation of the employees at the
Rupert facility as an appropriate unit was improper
because it arbitrarily isolated the Rupert employees
from employees employed at Respondent's other fa-
cilities and because it constituted a designation of
unit solely on the basis of the extent of union organi-
zation. Respondent also challenged the Regional Di-
rector's findings on the employee status of certain in-
dividuals.
On October 26, 1978, the Board denied Respon-
dent's request for review since it raised no substantial
242 NLRB No. 113
712
BURNS MOTOR FREIGHT. INC.
issues warranting review, except as to the supervisory
status of Thomas Kimberlin.2
Pursuant to the Decision and Direction of Election,
on October 27, 1978, an election was conducted
among the unit employees. The result showed that of
22 eligible voters there were 12 votes for, and 8
against, the Union; there were 2 challenged ballots.
Respondent did not file any objections to the conduct
of the election and on November 6, 1978, the Union
was certified as the collective-bargaining representa-
tive of the unit employees.
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 relitigate
issues which were or could have been litigated in a
prior representation proceeding.3
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 previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we 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 RESPONDENT
Respondent, a West Virginia corporation. is en-
gaged in the transportation of freight by truck from
various locations in West Virginia, including its Ru-
pert, West Virginia, terminal, the only facility in-
volved in this proceeding. During the past year, a rep-
resentative period, Respondent received revenues in
excess of $50,000 from the interstate transportation of
freight from points within the State of West Virginia
directly to points outside the State of West Virginia.
We find, on the basis of the foregoing, that Respon-
dent 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 jurisdiction
herein.
2 Member Jenkins dissented from the Board's refusal to grant review. The
Board ordered that Kimberlin. an alleged supervisor, be allowed to ote
subject to challenge.
ISee Pittsburgh Plate Glass Co v. NL REB.. 313 U.S. 146. 162 (1941):
Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c).
II. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters and Helpers Local Union
No. 175, International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America,
is a labor organization within the meaning of Section
2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation 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 truck drivers and mechanics employed by the
Respondent at its Rupert, West Virginia opera-
tion, excluding all office clerical employees, pro-
fessional employees, and all supervisors as de-
fined in the Act.
2. The certification
On October 27, 1978. a majority of the employees
of Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 9 designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on November 6, 1978, 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 Refusal
Commencing on or about November 14, 1978, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about December 19, 1978, 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 collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
December 19, 1978, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
713
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRA("I('ES
UPON COMMERCE
The activities of 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 com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. IIE REMEI)Y
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 by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company. Inc., 136 NLRB
785 (1962); Commerce Company d/b/a Lamar Hotel.
140 NLRB 226, 229 (1962), entfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817; Burnett Con-
struction Company, 149 NLRB 1419, 1421 (1964).
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CON(I.USIONS ()F LAW
I. Burns Motor Freight, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Chauffeurs, Teamsters and Helpers Local Union
No. 175, 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 truck drivers and mechanics employed by
Respondent at its Rupert, West Virginia, operation.
excluding all office clerical employees, professional
employees, and all supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since November 6, 1978, 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 December 19, 1978, 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 them in Sec-
tion 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 Rela-
tions Board hereby orders that Respondent, Burns
Motor Freight, Inc., Rupert, West Virginia, its offi-
cers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Chauffeurs. Teamsters
and Helpers Local Union No. 175, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, s the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate unit:
All truck drivers and mechanics employed by the
Respondent at its Rupert. West Virginia opera-
tion, excluding all office clerical employees, pro-
fessional employees, and all supervisors as de-
fined 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 understand-
ing is reached, embody such understanding in a
signed agreement.
714
BURNS MOTOR FREIGHT, INC.
(b) Post at its Rupert, West Virginia, facility copies
of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional
Director for Region 9 after being duly signed by Re-
spondent's representative, shall be posted by Respon-
dent 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 he 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 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER JENKINS, dissenting:
Because I regard the unit here as inappropriate, I
would dismiss the petition instead of granting the
Motion for Summary Judgment.
4 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 L.ahr Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enlorcing an Order of the National
l.ahr Relations Board"
APPENDIX
NOTICE To EMPI.()YES
POSIED BY ORDER OF IIiE
NATIONAL LABOR REIAII()ONS BOARI)
An Agency of the United States Government
WE Wl. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with
Chauffeurs, Teamsters and Helpers Local Union
No. 175, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE wsl.l. NO 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.
Wi. wii., 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
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All truck drivers and mechanics employed by
the Respondent at its Rupert, West Virginia,
operation, excluding all office clerical employ-
ees, professional employees, and all supervi-
sors as defined in the Act.
BURNS MIO()R FRII0(;II, IN(.
715