D. J. W. Cartage

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1163 (N.L.R.B. 1977)

D. J. W. CARTAGE
John Warner d/b/a D. J. W. Cartage and Local No.
544, Over-The-Road, City Transfer, Cold Storage,
Grocery and Market Drivers and Helpers, Inside
Employees, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Case 18-CA-5298
August 31, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
Upon a charge filed on March 11, 1977, by Local
No. 544, Over-The-Road, City Transfer, Cold Stor-
age, Grocery and Market Drivers and Helpers,
Inside Employees, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the
Union. and duly served on John Warner d/b/a D. J.
W. Cartage, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 18,
issued a complaint on March 25, 1977, 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, 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
complaint alleges in substance that on February 8,
1977. following a Board election in Case 18-RM-
954,1 issuance of the Board's Decision and Order in
the related unfair labor practice proceeding,2 and
issuance of a revised tally of ballots, the Union was
duly certified as the exclusive collective-bargaining
representative of Respondent's employees in the unit
found appropriate;3 and that, commencing on or
about February 19, 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.
' The election was directed pursuant to the expedited procedures of Sec.
8(h147HC) and a petition filed by Respondent on March 15. 1976. The only
challenged ballot. that cast by Wesley Warner, was sufficient in number to
affect the election results.
On Mav 12, 1976. the heanng on the challenged ballot of Wesley
Warner in the representation proceeding in Case 18-RM-954 was
consolidated with the hearing before an Administrative Law Judge in the
related unfair labtxr practice proceeding in Case 18-A-4926 in which
complaint had issued alleging Warner was an employee who had been
discharged in violation of the Act. On January 31, 1977, the Board issued a
Decision and Order in the unfair labor practice proceeding adopting the
Administrative Law Judge's conclusions and recommendations that Warner
231 NLRB No. 188
Subsequently, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On May 16, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 25, 1977, 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. 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
National Labor Relations Board has delegated its
authority 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 response to the
Notice To Show Cause, Respondent contends that
the Union was unlawfully certified inasmuch as
Wesley Warner's determinative challenged ballot
was improperly counted. Respondent contends that
Warner's ballot should not have been counted
because: (1) he was an independent contractor and
not an employee; (2) even assuming that he was an
employee, he was a relative of management who
enjoyed special status; and (3) he "terminated" his
relationship with Respondent before his ballot was
counted. Respondent maintains, moreover, that its
refusal to recognize the Board's certification of
representative in Case 18-RM-954 affords the only
available means by which to obtain judicial review of
the Union's certification. The General Counsel,
however, contends that there are no material factual
matters that require a hearing or an Administrative
Law Judge's Decision. The first two defenses raised
by Respondent were before the Board in the
consolidated proceeding involving Cases 18-CA-
4926 and 18-RM-954. With respect to Respondent's
third defense, the General Counsel asserts that it is
Board policy that an employee is eligible to vote if he
is an employee on the payroll date for eligibility and
on the election date, even though he intends to quit
was an employee of Respondent, not an independent contractor, and that
Warner was discharged in violation of Sec. 8(aX3) of the Act. (227 NLRB
1757(1977).)
a Official notice is taken of the record in the representation proceeding,
Case 18-RM-954, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations. Series 8. as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5. 1969); Iniertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967):
Foilerr Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C.A. 7. 1968); Sec.
9(d) of the NLRA, as amended.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the day of the election or after the election "and
does in fact quit."4 We agree with the General
Counsel.
Our review of the record here reflects that an
election was held on March 19, 1976.5 Of five eligible
voters, two cast votes for the Union, two against, and
one was challenged, a sufficient number to affect the
election's results. On March 22, the Union filed a
charge alleging that Warner, who cast the determina-
tive challenged ballot, was discharged in violation of
Section 8(a)(3) and (1). On May 11, the Regional
Director for Region 18 issued a complaint and notice
of hearing in Case 18-CA-4926 and, on May 12, the
Regional Director issued his Report on Challenged
Ballot, Order Directing Hearing, Order Consolidat-
ing Cases and Notice of Hearing in which he ordered
that Case 18-CA-4926 be consolidated with the
underlying representation proceeding, Case 18-RM-
954, for the purposes of hearing, ruling, and decision
by an Administrative Law Judge.
The Administrative Law Judge, in his Decision
issued October 1, found that Respondent violated
Section 8(a)(l) and (3) by discharging Warner and
refusing to return him to work after March 16. In
making this determination, the Administrative Law
Judge concluded that Warner was an employee
rather than an independent contractor and that his
relationship to Respondent's owner did not warrant
his exclusion from the bargaining unit. The Adminis-
trative Law Judge recommended, moreover, that the
challenge to Warner's ballot be overruled and that
his ballot be opened and counted. Thereafter,
Respondent filed timely exceptions which reasserted,
inter alia, that Warner was an independent contrac-
tor, not a statutory employee, and that his special
status as brother to Respondent's owner required his
exclusion from the unit. On January 31, 1977, the
Board issued a Decision which adopted the Adminis-
trative Law Judge's rulings, findings, and conclu-
sions. The Regional Director for Region 18 thereafter
notified the parties that the ballot of Wesley Warner
would be opened and counted on February 3, 1977.
On that date, Warner's ballot was opened and
counted and a revised tally of ballots issued,
reflecting that a majority of the valid votes counted
were cast for the Union. The Union was certified on
February 8, 1977.
' Citing Personal Products Corporarion, 114 NLRB 959, 961 (1955). See
also Pl ,mouth Towing Company, Inc., 178 NLRB 651 (1969).
;Unless otherwise indicated, all dates herein refer to 1976.
' See Rules and Regulations of the Board, Sec. 102.69(h).
Even assuming that Respondent had contested the counting of Warner's
ballot. our conclusion would not be affected. When Respondent refused to
return Warner to work on March 16, 1976, after a 2-day strike, he became a
discriminatee who retained his employee status. Accordingly, he occupied
that status when he voted in the election on March 19. See Grand Lodge
International Association of Machinists and Aerospace Workers. AFL-CIO.
It thus appears that, with respect to its first two
affirmative defenses, Respondent here is attempting
to relitigate issues raised and determined adversely to
it in the underlying Board proceeding. Regarding the
third defense relative to Warner's termination of his
relationship with Respondent before his ballot was
counted, Respondent is seeking to litigate an issue
which could have been raised before. The Regional
Director made a final ruling on Warner's challenged
ballot when he notified the parties that Warner's
ballot would be opened and counted on February 3,
1977. Respondent had a right to seek special
permission of the Board to appeal that ruling but did
not do so.6
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.'
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation 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 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 RESPONDENT
Respondent, an individual business owned and
operated by John Warner, is engaged in the local
cartage business and has its principal place of
business at Minneapolis, Minnesota. During the year
ending December 31, 1976, which period is represen-
tative of its operations at all times material here,
Respondent derived revenues in excess of $50,000
from Airborne Freight Corporation for the perfor-
mance of local cartage services. Airborne Freight
Corporation, which conducts business throughout
159 NLRB 137. 143 (1966). The parties agreed. moreover, that Warner could
vote a challenged ballot in the election and that his disputed status could be
resolved through the challenge procedure. That Warner terminated his
employment with Respondent after the election is irrelevant to a determina-
tion of his voting eligibility. See cases cited in fn. 4. supra. See also National
Medical Hospital of Modesto, Inc., d/b/a Doctors Hospital of Modesto, 210
NLRB 894, 895, fn. 3 (1974), emphasizing the necessity of examining the
situation "as it is at the time of the election."
I See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
1164
D. J. W. CARTAGE
the United States, has revenues in excess of $1
million annually, and derives more than $50,000 of
such revenues from services outside the State of
Minnesota.
We find, on the basis of the foregoing, that
Respondent 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.
1. THE LABOR ORGANIZATION INVOLVED
Local No. 544, Over-The-Road, City Transfer,
Cold Storage, Grocery and Market Drivers and
Helpers, Inside Employees, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen 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
i. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All regular full-time and regular part-time drivers
of D. J. W. Cartage; excluding managers, supervi-
sors, guards and relatives of management as
defined by the Act,8 as amended.
2. The certification
On March 19, 1976, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 18, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on February 8, 1977, 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 on or about February 18, 1977, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
I In defining the term "employee," Sec 2(3) of the Act excludes "an)
individual emplosed by his parent or spouse."
the employees in the above-described unit. Com-
mencing on or about February 19, 1977, 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.
Accordingly, we find that the Respondent has,
since February 19, 1977, 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, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
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,
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 com-
merce.
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, 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 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):
Burnett 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:
1165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. John Warner d/b/a D. J. W. Cartage is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local No. 544, Over-The-Road, City Transfer,
Cold Storage, Grocery and Market Drivers and
Helpers, Inside Employees, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All regular full-time and regular part-time
drivers of D. J. W. Cartage; excluding managers,
supervisors, guards, and relatives of management as
defined by the Act, as amended, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since February 8, 1977, 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 February 19, 1977, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
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 the Respondent,
John Warner d/b/a D. J. W. Cartage, Minneapolis,
Minnesota, his 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
conditions of employment with Local No. 544, Over-
The-Road, City Transfer, Cold Storage, Grocery and
Market Drivers and Helpers, Inside Employees,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All regular full-time and regular part-time drivers
of D. J. W. Cartage; excluding managers, supervi-
sors, guards and relatives of management as
defined by the Act, as amended.
(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 place of business in Minneapolis,
Minnesota, copies of the attached notice marked
"Appendix." 9 Copies of said notice, on forms
provided by the Regional Director for Region 18,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
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
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 18, 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 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
I WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Local
No. 544, Over-The-Road, City Transfer, Cold
Storage, Grocery and Market Drivers and Help-
ers, Inside Employees, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive representative of the employees in the
bargaining unit described below.
1166
D. J. W. CARTAGE
I WILL NOT in any like or related manner
interfere with, restrain, or coerce my employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
I WILL, upon request, bargain with the above-
named Union, as the exclusive representative of
all 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
understanding in a signed agreement. The bar-
gaining unit is:
All regular full-time and regular part-time
drivers of D. J. W. Cartage; excluding
managers, supervisors, guards and relatives
as defined by the Act, as amended.
JOHN WARNER D/B/A
D. J. W. CARTAGE
1167