Georgia, Florida, Alabama Transportation Co.

National Labor Relations Board - Board Decisions

Apr 11, 1977

228 N.L.R.B. 1321 (N.L.R.B. 1977)

GEORGIA, FLORIDA, ALABAMA TRANSPORTATION CO. 1321
Georgia, Florida, Alabama Transportation Company
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen , and Helpers of Amer-
ica, Local Union No. 612. Case 15-CA-6265
April 11, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on October 28, 1976, by
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, Local
Union No. 612, herein called the Union, and duly
served on Georgia, Florida, Alabama Transportation
Company, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 15, issued a
complaint on November 8, 1976, against Respon-
dent, 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 Adminis-
trative 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 July 21, 1976,
following a Board election in Case 15-RC-5487 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about September 30, 1976, 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 November 22, 1976, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On December 17, 1976, counsel for the General
Counsel filed directly with the Board a motion to
strike portions of Respondent's answer and a Motion
for Summary Judgment. Subsequently, on January
26, 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. Respon-
dent thereafter filed a response to Notice To Show
Cause entitled "Employer's Response to Board's
' Official notice is taken of the record in the representation proceeding,
Case 15-RC-5487, 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,
228 NLRB No. 163
Notice To Show Cause," and a response to the
General Counsel's motions entitled "Respondent's
Response to General Counsel's Motion to Strike,
Motion to Transfer and Continue Case Before the
Board and Motion for Summary Judgment," togeth-
er with supporting briefs.
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, the Respondent contends
that the pleadings in the instant case establish that
substantial and material issues of fact exist which
were not present in the underlying representation
case, that it is entitled to relitigate the issues
presented in the representation proceeding, and that
it will be denied due process if not allowed to present
evidence at a hearing conducted by an Administra-
tive Law Judge.
Our review of the record herein, including the
record in Case 15-RC-5487, reveals that, after a
hearing, the Regional Director issued his Decision
and Direction of Election on August 16, 1974. The
Respondent filed a timely request for review of the
Regional Director's Decision and Direction of
Election, which alleged that the Regional Director
departed from Board precedent and made a clearly
erroneous decision when he excluded dual-function
employee John Henderson from a unit composed of
dockworkers and local drivers since Henderson
spends a sufficient amount of time performing unit
work to be included in the unit found appropriate.
The Respondent's request for review was denied by
telegraphic order of the Board on September 10,
1974.
In accordance with the Decision and Direction of
Election, an election was conducted on September
11, 1974, and resulted in a five-to-four vote for the
Umon, with two challenged ballots. The challenged
ballots were sufficient in number to affect the results
of the election. Thereafter, the Respondent filed
timely objections to conduct affecting the results of
the election contending that dual-function employee
Henderson, who was excluded from the unit found
appropriate, was deprived of an opportunity to cast a
ballot even on a challenged basis.
1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd. 415 F 2d 26
(C A 5, 1969); Intertype Co v Penello, 269 F.Supp 573 (D C Va , 1967),
Follett Corp, 164 NLRB 378 (1967), enfd. 397 F 2d 91 (C A 7, 1968); Sec.
9(d) of the NLRA, as amended.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Regional Director conducted an investigation
of the challenges and objections and on November 5,
1974, issued his Supplemental Decision and Order
Directing Counting of Challenged Ballot and Over-
ruling Objections. In his report, the Regional
Director overruled the objections, overruled the
challenge to one ballot, and deferred ruling on the
eligibility of the remaining challenged ballot pending
disposition of a previously issued complaint wherein
Fred Jenkins, the challenged voter, was alleged to
have been discharged in violation of Section 8(a)(3)
and (1) of the Act. The Respondent filed a timely
request for review of the Regional Director's Supple-
mental Decision and Order, which was denied on
November 26, 1974, by telegraphic order of the
Board.
Pursuant to the Regional Director's Supplemental
Decision and Order, the overruled challenged ballot
was opened and counted on December 19, 1975. The
revised tally of ballots showed that five votes were
cast for the Union, and five against the Union, with
one challenged ballot.
On August 1, 1975, the Board issued its Decision
and Order,2 affirming the Administrative Law
Judge's ruling that Fred Jenkins had been discharged
in violation of Section 8(a)(3) of the Act. On April
20, 1976, the Court of Appeals for the Fifth Circuit
issued its judgment enforcing the Board's Order in
that case.3 Thereafter, on May 19, 1976, the Regional
Director issued his Second Supplemental Decision
and Order Directing Counting of Challenged Ballot,
from which the Respondent filed a request for
review. The Board denied Respondent's request for
review by telegraphic order on July 2, 1976, on the
ground that it raised no substantial issues warranting
review.
Pursuant to the Regional Director's Second Sup-
plemental Decision and Order, the remaining chal-
lenged ballot was opened and counted on July 13,
1976. The revised tally showed a vote of six to five
for the union. On July 21, 1976, the Regional
Director issued a Certification of Representative
certifying the Union as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate.
In its response to the Notice To Show Cause, the
Respondent contends that it is entitled to once again
raise the issues which were presented at the represen-
2 Georgia, Florida, Alabama Transportation Company, 219 NLRB 894
3 N L R B v Georgia, Florida, Alabama Transportation Company, 529
F 2d 1350
4 See Pittsburgh Plate Glass Co v N L R B, 313 US 146, 162 (1941),
Rules and Regulations of the Board, Secs 102 67 (f) and 102 69(c)
s In its answer to the complaint , the Respondent denies the allegations of
the request and refusal to bargain However, attached to the General
Counsel's Motion for Summary Judgment are copies of correspondence
between the Union and the Respondent By undated letter, the Union on or
tation proceeding and in the subsequent objections
and requests for review pertaining thereto.
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.4
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 to strike portions of Respondent's
answer 5 and 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 Alabama corporation located at
636 Howe Street, Montgomery, Alabama, is engaged
in the interstate transportation of goods and materi-
als from its office and warehouse. During the 12-
month period immediately preceding the issuance of
the complaint and notice of hearing in this proceed-
ing, Respondent received in excess of $50,000 for its
interstate transportation services.
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.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local
Union No. 612, is a labor organization within the
meaning of Section 2(5) of the Act.
about September 23, 1976, requested commencement of negotiations. The
Respondent's letter of September 30, 1976, acknowledged receipt of the
Union's request and stated that negotiations would serve no useful purpose
until the legal questions raised by Respondent's objections to the Union's
certification were resolved to its satisfaction . Respondent has submitted
nothing to controvert these documents , or their contents . Accordingly, we
deem these allegations of the complaint to be true . The May Department
Stores Company, 186 NLRB 86 (1970); Carl Simpson Buick, Inc, 161 NLRB
1389 (1966)
GEORGIA, FLORIDA, ALABAMA TRANSPORTATION CO. 1323
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. 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:
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.
All full-time and regular part-time city drivers
and dock workers employed by the Employer at
its Montgomery, Alabama facility; excluding all
over-the-road drivers, office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
2. The certification
On September 11, 1974, a majority of the employ-
ees of Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Regional Director for Region 15 designated the
Union as their representative for the purpose of
collective bargaining with the Respondent.
The Union was certified as the collective-bargain-
ing representative of the employees in said unit on
July 21, 1976, 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 September 23, 1976, 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. Com-
mencing on or about September 30, 1976, 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 September 30, 1976, 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
(1) of the Act.
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:
CONCLUSIONS OF LAW
1. Georgia, Florida, Alabama Transportation
Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 612, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time city drivers
and dock workers employed by the Employer at its
Montgomery, Alabama, facility; excluding all over-
the-road drivers, office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since July 21, 1976, the above-named labor
organization has been and now is the certified and
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 September 30, 1976,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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,
Georgia, Florida, Alabama Transportation Compa-
ny, Montgomery, Alabama, 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 International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union No. 612, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time city drivers
and dock workers employed by the Employer at
its Montgomery, Alabama facility; excluding all
over-the-road drivers, office clerical employees,
professional employees, guards and supervisors as
defined 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 umt 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 Montgomery, Alabama, facility
copies of the attached notice marked "Appendix."6
Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly
signed by Respondent's representative, 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 612, as the exclusive representative of
the employees in the bargaining unit described
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
Section 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
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 agree-
ment. The bargaining unit is:
GEORGIA, FLORIDA, ALABAMA TRANSPORTATION CO. 1325
All full-time and regular part-time city ployees, guards and supervisors as defined in
drivers and dock workers employed by the the Act.
Employer at its Montgomery, Alabama GEORGIA, FLORIDA,
facility; excluding all over-the-road drivers, ALABAMA
office clerical employees, professional em- TRANSPORTATION
COMPANY