Decatur Transfer & Storage, Inc.

National Labor Relations Board - Board Decisions

Aug 14, 1969

178 N.L.R.B. 63 (N.L.R.B. 1969)

DECATUR TRANSFER & STORAGE, INC.
Decatur Transfer & Storage , Inc. and Retail,
Wholesale & Department Store Union , AFL-CIO.
Case 10-CA-7695
August 14, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On June 30, 1969, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, granting General Counsel's Motion for
Summary Judgment, on the ground that there are
no unresolved issues requiring an evidential hearing
and finding that the Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act,
as amended. The Trial Examiner recommended that
the Respondent cease and desist from such unfair
labor practices and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
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 case to a
three-member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Decatur
Transfer & Storage, Inc., Huntsville, Alabama, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Issue
CHARLES W.SCHNEIDER,Trial Examiner:The case arises
on a motion for summary judgment by the General
Counsel upon an admitted refusal by the Respondent to
bargain with a certified union on the ground that the
Respondent's objections to the election had been
improperly overruled.
63
The Representation Proceeding'
Upon a petition filed July 29, 1968, by Retail,
Wholesale & Department Store Union, AFL-CIO, the
Union, and a stipulation for certification upon consent
election dated August 21, 1968, an election was conducted
on September 18, 1968, under the supervision of the
Board's Regional Director, among employees of Decatur
Transfer & Storage, Inc., the Respondent, in an
appropriate unit described hereinafter. Of 58 eligible
voters in the unit 48 cast ballots, of which 32 were cast for
the Union, 15 against the Union, and I was void. No
ballots were challenged.
Pursuant to timely objection to conduct affecting the
results of the election filed by Respondent on September
23, 1968, an investigation was conducted by the Regional
Director in accordance with Section 102.69 of the Board's
Rules. The grounds for the objection were that a
supervisor of the Respondent had engaged in organizing
activities and had campaigned for the Union prior to the
election and had induced, encouraged, and coerced
employees to vote for the Union, thereby interfering with
a free and fair choice in the election.
On November 19, 1968, the Regional Director issued
his report on objection in which he recommended that the
objection be overruled and that the Union be certified as
collective-bargaining representative of the employees in
the appropriate unit. In the report the Regional Director
found that the alleged supervisor referred to, Clarence
Roy Estrumse, was "very active" on behalf of the Union
during the union campaign. The Regional Director further
found, however, that the Respondent was aware of
Estrumse's union sympathies prior to the election, that the
Respondent had heard rumors that Estrumse was working
on behalf of the Union, and that Respondent was
informed by Estrumse that he would be an observer at the
election.' Further, the Regional Director found that the
Respondent took no action to disavow any improper
conduct by Estrumse, included his name on the eligibility
list to vote in the election, did not challenge Estrumse's
ballot, and apparently did not object to Estrumse's
activity as union observer. In these circumstances the
Regional Director held that because of the Respondent's
action in permitting the election to proceed and in failing
to take appropriate steps to dissipate the alleged coercive
effects of the conduct of its supervisors, the Respondent,
in effect, was estopped from contesting the election on the
ground stated by the Respondent. The Regional Director
did not find it necessary to decide whether Estrumse's
conduct was coercive or whether he was a supervisor. The
Regional Director concluded that:
If Estrumse was not a supervisor, his conduct was
clearly permissible, if he was a supervisor, the
Employer, by reason of its knowledge and acquiesence
may not now invalidate the election because of the
alleged misconduct of its own representative. [Citing
Talladega Cotton Factory, Inc., 91 NLRB 470, and
Hadley Manufacturing Corp., 106 NLRB 620.]
'Administrative or official notice is taken of the record in the
representation proceeding , Case 10-RC-7488, as the term "record" is
defined in Sec. 102 68 and 102.69( f) of the Board ' s Rules (Rules and
Regulations and Statements of Procedure, National Labor Relations
Board , Series 8 as amended). See LTV Electrosystems, Inc., 166 NLRB
No 81, enfd 388 F.2d 683 (C.A. 4); Golden Age Beverage Co, 167
NLRB No. 24; Intertype Co, v. Penello, 269 F.Supp 573 (D.C.Va.);
Intertype Co v N L R B, 401 F.2d 41 (C.A. 4); Follett Corp., et al, 164
NLRB No. 47, enfd. 397 F 2d 91 (C.A 7); Sec. 9(d) of the NLRA
'Estrumse did not, however, serve as an observer.
178 NLRB No. 12
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 29, 1968, the Respondent filed
Employer's exceptions to Regional Director's conclusions
with the Board in Washington, D.C., and requested a
hearing on the ground that the matter involved substantial
and material factual issues.
On January 23, 1969, the Board issued its Decision and
Certification of Representative in which it adopted the
Regional Director's findings, conclusions, and
recommendations and certified the Union as the
representative in the appropriate unit. The Board said in
part:
The Employer's exceptions, in our opinion, raise no
material or substantial issues of fact or law which
would warrant reversal of the Regional Director's
findings and recommendations. We agree with the
Regional Director's conclusion that the Employer's
failure to act on the basis of rumors that Estrumse had
been working on behalf of the Union and its knowledge
of Estrumse's union sympathies is sufficient to establish
that the Employer acquiesced in any supervisory
misconduct, irrespective of whether the Employer
possessed actual knowledge that Estrumse engaged in
coercive organizational activities during the preelection
period.
The Unfair Labor Practice Case
On March 19, 1969, the Union filed an unfair labor
practice charge alleging that the Respondent had refused
to bargain with the Union on or about February 15, 1969.
On March 20, 1969, the Regional Director issued a
complaint upon the charge in which the Regional Director
asserted, inter alia , that on or about February 15, 1969,
and specifically on February 25, 1969, the Union
requested the Respondent to bargain and that on or about
February 25, March 3, and March 11, 1969, the
Respondent refused to bargain and continues to so refuse.
This conduct is alleged in the complaint as violative of
Section 8(a)(1) and (5) of the Act.
On March 27, 1969, the Respondent filed its answer in
which it admits all the material facts alleged in the
complaint except the following, which it denied: (1) that
the Union is the representative of the employees, (2) that
the Respondent's refusal to bargain was "continuing," and
(3) that the Respondent committed unfair labor practices.
Affirmatively, Respondent asserts in its answer that the
certification is null and void, and states that its sole
reason to decline to meet and bargain with the Union is in
order to obtain judicial review of the certification. In
addition the answer requests a hearing on the complaint
pursuant to Section 101.10 of the Board's rules in order to
afford the Respondent an opportunity to present evidence
in the representation case on what the Respondent terms
"substantial and material factual issues in dispute."
On April 11, 1969, Counsel for the General Counsel
filed a motion for summary judgment on the ground that
in view of the Board's action in the representation case
and the state of the pleadings there were no issues of fact
or law requiring a hearing, and prayed issuance of a
Decision finding the violations alleged in the complaint.
On this motion an order to show cause was issued
returnable May 7, 1969.
On April 30, 1969, the Respondent filed a response to
the Order to Show Cause. In its response the Respondent
opposes the motion for summary judgment and moves for
hearing on the issues raised on its objections on the
grounds (1) that the Regional Director's determinations in
the representation proceeding and the Board's adoption of
them was based on an ex parse investigation without
hearing in denial of due process in violation of the
Administrative Procedure Act, and not in compliance with
the Board's Rules and Regulations, Section 102.69(c);3 (2)
that the objections raised substantial and material issues
requiring hearing before entrance of judgment on the
complaint, and (3) that a hearing is required to provide
the Board with a proper evidentiary record for review of
the Regional Director's decision. With the exception of
ground no. 3, Respondent's contentions in its response to
the Order To Show Cause are essentially a restatement of
its positions stated previously in the representation case
and in its answer to the complaint.
On May 7, 1969, the Union filed a response to the
Order To Show Cause in support of the motion for
summary judgment.
Ruling on Motion for Summary Judgment
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence, not to
permit litigation before a Trial Examiner in a complaint
case of issues' which were or could have been litigated in a
prior related representation proceeding.' This policy is
applicable even though no formal hearing on objections
has been provided by the Board. Such a hearing is not a
matter of right unless substantial and material issues are
raised;' and that there are not such issues here has been
effectively decided by the Board.
With the exception of the contention in the response to
Order To Show Cause referred to above as No. 3, all the
Respondent's contentions in the representation case and in
this unfair labor practice case, including the Respondent's
right to hearing on the issues, were urged before the
Regional Director and/or the Board and were denied.
Those denials are binding on the Trial Examiner. The
Respondent is free to request the Board to reconsider its
determination and in the event of adverse decision to seek
review in an appropriate court of appeals. The Board's
dispositions are not, however, reviewable by the Trial
Examiner. There are thus no unresolved matters requiring
an evidential hearing. Though the Respondent contends
that a hearing is necessary for a proper evidentiary record
in order to review the correctness of the Regional
Director's decision, the representation record as defined
by the Board's rules has been officially noted and is to be
considered as incorporated herein. See fn. 1, supra, and
the cases there cited. The Motion of the General Counsel
for summary judgment is therefore granted, and I hereby
'Sec 102 69(c) provides in part.
if it appears to the regional director that substantial and material
factual issues exist which can be resolved only after a hearing , he shall
issue and cause to be served on the parties a notice of hearing on said
issues before a hearing officer
Presumably this is the portion of the rule to which the Respondent refers.
'Krieger-Ragsdale & Co . Inc. 159 NLRB 490, enfd 379 F 2d 517
(C.A. 7), cert. denied 389 U .S. 1041, Macomb Pottery Co v N.L R B.,
376 F 2d 450 (C A. 7); Howard Johnson Company, 164 NLRB No. 121,
Metropolitan Life Insurance Company, 163 NLRB No 71 See Pittsburgh
Plate Glass Co. v. N.L R.B. 313 US 146, 162, NLRB Rules and
Regulations , Sec. 102.67(f) and 102 69(c).
'O K Van and Storage , Inc, 127 NLRB 1537, enfd . 297 F.2d 74 (C A.
5) See Air Control Window Products, Inc., 335 F 2d 245, 249 (C.A. 5)
"If there is nothing to hear , than a hearing is a senseless and useless
formality " See also N.L R.B. v. Bata Shoe Co, 377 F.2d 821, 826 (C.A.
4). ". . . there is no requirement , constitutional or otherwise , that there be
a hearing in the absence of substantial and material issues crucial to
determination of whether NLRB election results are to be accepted for
purposes of certification."
DECATUR TRANSFER & STORAGE, INC 65
make the following further
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, an Alabama corporation, with places of business
located at Decatur and Huntsville, Alabama, where it is
engaged in long distance and local moving and storage of
household goods
Respondent, during the past calendar year, which
period is representative of all times material herein,
derived gross revenue in excess of $50,000 from the
interstate transportation of household goods
Respondent is, and has been at all times material
herein, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
lI THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act
III THE UNFAIR LABOR PRACTICES
The following employees of the Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
All truck drivers and warehouse employees, including
packers, loaders, warehousemen and utility and service
men at the Respondent's Decatur and Huntsville,
Alabama establishments, but excluding temporary
summer employees, office clerical employees,
professional employees, guards, and supervisors as
defined in the Act
At all times since January 23, 1969, the Union has been
the representative of a majority of the employees in the
appropriate unit for the purposes of collective bargaining,
and by virtue of Section 9(a) of the Act is the exclusive
representative of all the employees in said anit for the
purposes of collective bargaining
On or about February 15, 1969, including specifically
on or about February 25, 1969 and March 3, 1969, the
Union requested Respondent to bargain collectively with
the Union as the exclusive representative of all the
employees in the aforesaid unit
The Respondent's answer, while admitting the specific
refusals to bargain, denies the allegation of the complaint
that the Respondent "continues to refuse" to bargain
However, the Respondent's correspondence with the
Union, and its stated position in its answer to the effect
that the Respondent's reason for refusal to bargain is its
wish to secure judicial review of the certification, establish
a continuing refusal to bargain It is therefore found that
on or about February 15, 1969, and at all times thereafter,
including specifically on or about February 25, March 3,
and March 11, 1969, Respondent refused , and continues
to refuse, to bargain collectively with the Union
By thus refusing to bargain with the Union the
Respondent has engaged in unfair labor practices in
violation of Section 8(a)(5) of the Act and has interfered
with, restrained and coerced employees in violation of
Section 8 (a)(1) of the Act
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
Upon the foregoing findings and conclusions, pursuant
to Section 10(c) of the Act, I recommend that the Board
issue the following
ORDER
A For the purpose of determining the duration of the
certification, the initial year of certification shall be
deemed to begin on the date the Respondent commences
to bargain in good faith with the Union as the recognized
exclusive bargaining representative in the appropriate unit,
B Decatur Transfer & Storage, Inc , its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively with Retail,
Wholesale & Department Store Union, AFL-CIO, as the
exclusive collective-bargaining representative of the
employees in the following appropriate bargaining unit
All truck drivers and warehouse employees, including
packers, loaders, warehousemen and utility and service
men at the Respondents Decatur and Huntsville,
Alabama establishments, but excluding temporary
summer employees, office clerical employees,
professional employees, guards, and supervisors as
defined in the Act
(b) Interfering with the efforts of said Union to
negotiate for or represent employees as such exclusive
collective bargaining representative
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Upon request bargain collectively with Retail,
Wholesale & Department Store Union, AFL-CIO, as the
exclusive representative of the employees in the
appropriate unit with respect to rates of pay, wages, hours
of employment and other terms and conditions of
employment and embody in a signed agreement any
understanding reached
(b) Post at its plant in Huntsville, Alabama, copies of
the attached notice marked "Appendix "' Copies of said
notice, on forms provided by the Regional Director for
Region 10, shall, after being duly signed by an authorized
representative of the Respondent, be posted by the
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 the Respondent to insure that said notices are
not altered, defaced, or covered by any other material
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this
Recommended Order, what steps the Respondent has
taken to comply herewith '
,The purpose of this provision is 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 See Mar Jac Poultry Co 136
NLRB 785 Commerce Co d/b /a Lamar Hotel 140 NLRB 226 enfd
328 F 2d 600 (C A )) cert denied 379 U S 817 Burnett Construction
Co 149 NLRB 1419 1421 enfd 350 F 2d 57 (C A 10)
'In the event that this Recommended Order is adopted by the Board the
words a Decision and Order shall be substituted for the words the
Recommended Order of a Trial Examiner in the notice In the further
event that the Board s Order is enforced by a decree of a United States
Court of Appeals the words a decree of the United States Court of
Appeals Enforcing an Order shall be substituted for the words a
Decision and Order '
'In the event that this Recommended Order is adopted by the Board
this provision shall be modified to read Notify the Regional Director for
Region 10 in writing within 10 days from the receipt of this Order what
steps the Respondent has taken to comply herewith
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
WE WILL NOT refuse to bargain collectively with
Retail, Wholesale & Department Store Union,
AFL-CIO, as the exclusive collective-bargaining
representative of all our following employees:
All truck drivers and warehouse employees, including
packers, loaders, warehousemen and utility and
service men at our Decatur and Huntsville, Alabama
establishments, but excluding temporary summer
employees, office clerical employees, professional
employees, guards, and supervisors as defined in the
Act.
WE WILL NOT interfere with the efforts of the Union
to negotiate for or represent employees as exclusive
collective-bargaining representative.
WE WILL bargain collectively with the Union as the
exclusive collective-bargaining representative of the
employees in the appropriate unit and if an
understanding is reached we will sign a contract with
the Union.
Dated By
DECATUR TRANSFER &
STORAGE, INC.
(Employer)
(Representative ) (Title)
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 may be directed to
the Board's Regional Office, 730 Peachtree Street, NE.,
Atlanta, Georgia, Telephone 404-526-5760.