Groendyke Transport, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1970

181 N.L.R.B. 683 (N.L.R.B. 1970)

GROENDYKE TRANSPORT, INC. 683
Groendyke Transport, Inc. and Southern Conference
of Teamsters , affiliated with International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America. Case
16-CA-3686
March 13, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 26, 1969, Trial Examiner Charles
W. Schneider issued his Decision in the
above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices and recommending
that it cease and desist therefrom 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 reviewed the rulings of the Trial
Examiner made in this proceeding and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this proceeding, 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 adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Groendyke
Transport, Inc., Enid, Oklahoma, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
'We note and correct an inadvertent error in the Trial Examiner's
Decision where he lists March 3, 1969, as the date Respondent filed its
answer tc the complaint rather than the correct date of August 21, 1969
Labor Relations Act (29 U.S.C 159(c)) in Cases
16-RC-4660 and 16-RC-4661 concerning the
representation of employees of Groendyke Transport, Inc.,
the Respondent The Respondent operates 26 trucking
terminals in 6 states: Colorado, New Mexico, Kansas,
Oklahoma, Texas, and Louisiana.
The cases were consolidated and a hearing held The
Union requested a regional unit consisting of drivers and
owner drivers of the Respondent at the terminals (15 in
number) located in Texas, Oklahoma, and Louisiana, or
in the alternative separate units at each of such terminals.
The Respondent contended that only a systemwide unit
was appropriate.
On or about June 5, 1968, the Board issued a Decision
and Direction of Elections.' The Board found the
proposed regional unit inappropriate as based on the
extent of the Union's organization It further found the
factors favoring a systemwide unit not to be so compelling
as to require a finding that only that unit was appropriate.
The Board found the single terminal units in Texas,
Oklahoma and Louisiana presumptively appropriate and
directed elections in them conditioned upon the Regional
Director's making a finding in each instance that the
Union had an adequate showing of interest at the
particular terminal. Inter alia, over objection by the
Respondent, the Board excluded dispatchers, mechanics
and servicemen from the unit - the dispatchers because
they responsibly directed the work of the drivers, the
others because their skills and interests were substantially
different from those of the drivers
Pursuant to the Decision and Direction of Elections,
elections by secret ballot were conducted by the Regional
Director on or about August 29 and 30, 1968, among the
employees in the appropriate units to determine the
questions concerning representation Upon conclusion of
the balloting, the parties were furnished tallies of ballots.
The elections at only 5 of the terminals are material here.
Those terminals and the results of the balloting at them
are as follows:
Duncan, Oklahoma - Out of approximately 16
eligible voters, 16 ballots were cast, ten for the Union and
six against the Union. There were no challenged or void
ballots.
Ardmore, Oklahoma - Out of approximately 23
eligible voters, 21 ballots were cast, 17 for and 3 against
the Union. There was one challenged ballot and no void
ballots.
Wichita Falls, Texas - Out of approximately eight
eligible voters, eight ballots were cast, six for and two
against the Union. There were no void or challenged
ballots.
Irving, Texas - Out of approximately 19 eligible
voters, 19 ballots were cast, 12 for and 7 against the
Union. There were no challenged or void ballots.
Angleton, Texas - Out of approximately 19 eligible
voters, 19 ballots were cast, 10 for and nine against the
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
CHARLES W. SCHNEIDER , Trial Examiner : On or about
June 6, 1967, Southern Conference of Teamsters,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, the
Union, filed petitions under Section 9(c) of the National
'Official notice is taken of the record in the representation proceeding
Case 16-RC-4660 and 16-RC-4661 as the term "record" is defined in
Section 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, enfd
415 F 2d 26 (C A 5), Intertype Co v Penello, 269 F Supp 573 (D C Va
1967), 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); Section 9(d) of the
National Labor Relations Act
'Groendyke Transport, Inc, 171 NLRB No 143
181 NLRB No. 99
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. There were no challenged or void ballots
On September 5, 1968, the Respondent filed objections
to the above elections in which it alleged, variously, that
union representatives and supporters had electioneered
during the elections and the 24 hours preceeding them, or
near the polling places. In addition the Respondent urged
that the Board had erred in excluding dispatchers,
mechanics and maintenance men from the unit The
Respondent further contended that the individual terminal
units were inappropriate and were based on the Union's
extent of organization. The Respondent requested that the
elections be set aside, the petitions dismissed, or in the
alternative new elections directed, and additionally that a
hearing be held on the Respondent's objections.
On October 16, 1968, the Regional Director issued his
Report on Objections in which he recommended, to the
extent material here, that the objections as to 5 named
terminals be overruled and the Union certified as
collective- bargaining representative in such units. To this
Report the Respondent filed timely exceptions
On February 24, 1969, the Board issued its Decision,
Certification of Representatives, Order and Direction of
Second Elections in which the Board, so far as material
here, adopted the Regional Director's recommendations
and certified the Union as the bargaining representative at
the five terminals here involved.'
value to Respondent's employees so as to influence their
vote, (3) that union representatives made material
misrepresentations of fact shortly before the election
which could not be answered by Respondent prior to the
election and (4) the units found appropriate were in fact
inappropriate, and based on the extent of the Union's
organization, and (5) that the Board erred in excluding
dispatchers, mechanics and maintenance men from the
units.
Under date of August 22, 1969, counsel for the General
Counsel filed a Motion to Strike Portions of Respondent's
Answer to Complaint and Motion for Judgment on the
Pleadings in which he contends that the pleadings,
considered together with the official Board record in the
underlying representation proceeding (Cases 16-RC-4660
and 16-RC-4661) raise no issues requiring a hearing, that
Respondent's defense set forth in its answer raises no
litigable questions of fact and to the extent of the Motion
to Strike is "sham" and "frivolous," and concluding that
as a matter of law Respondent has no valid defense to the
complaint.
Under date of August 26, 1969, 1 issued an Order to
Show Cause on the General Counsel's motions. The
Respondent has filed an Opposition to General Counsel's
motions and a supporting brief. No other responses or
briefs have been received.
The Unfair Labor Practice Case
On August 5, 1969, the Union filed the unfair labor
practice charge involved in the instant case, in which it
alleged that the Respondent has refused to bargain
collectively with the Union
On August 12, 1969, the General Counsel, by the
Regional Director for Region 16, issued a Complaint and
Notice of Hearing alleging that Respondent had
committed unfair labor practices in violation of Section
8(a)(I) and (5) and Section 2(6) and (7) of the Act by
refusing to bargain with the Union upon request In due
course, on March 3, 1969, the Respondent filed its answer
to the complaint in which certain allegations of the
complaint were admitted and others denied.
In its Answer, the Respondent admits the following
allegations of the complaint: (1) filing and service of the
charge, (2) certain jurisdictional facts, (3) that the Union
is a labor organization within the meaning of Section 2(5)
of the Act, (4) that the above described elections were
held, and that the Board certified the Union as the
representative in the 5 terminals here involved; and (5)
that the Respondent refused to bargain with the Union
"for the reason that the Board's certification . . is in
error." Respondent denied allegations in the complaint to
the effect that (1) Respondent's attorney is its agent
within the meaning of Section 2(13) of the Act, as alleged
in paragraph 6 of the Complaint, (2) the units are
appropriate, and (3) that the Respondent is engaging in
unfair labor practices affecting commerce within the
meaning of the Act.
Respondent affirmatively asserts in its answer that (1)
union representatives engaged in electioneering to small
groups within 24 hours of the election in violation of
Board rules and decisions, (2) that union representatives,
as part of the Union's election campaign, gave things of
'The Board said that the Respondent's exceptions,
.. raise no material or substantial issues of fact or law which would
warrant reversal of the Regional Director's findings and
recommendations
Ruling on Motions to Strike and for Judgment on the
Pleadings
In its Response and brief the Respondent opposes the
Motion to Strike and for Judgment on the Pleadings The
Respondent's basic position is that it is entitled to a
hearing on its objections. The Respondent further moves
to strike paragraph 6 of the complaint to the effect that
the Respondent's attorney is its agent. The Respondent
further contends, citing N L R B v. Idea! Laundry and
Dry Cleaning, 330 F 2d 712 (C.A 10), that in an unfair
labor practice proceeding it is entitled as a matter of law
to a hearing on its objections to the elections. Merit is
found in the Respondent's motion to strike paragraph 6 of
the Complaint. The Respondent's other contentions are
not sustained.
In the light of the pleadings and the admissions of the
Respondent the allegations of paragraph 6 of the
Complaint are of no apparent relevance to the issues. The
Respondent's motion to strike paragraph 6 is therefore
granted.
It is established Board policy, in 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.' The Ideal Laundry and Dry Cleaning case is not
authority to the contrary.
'Krieger-Ragsdale & Co, Inc, 159 NLRB 490, enfd 379 F 2d 517
(C A 7), cert denied 389 U S 1041, N L R B v Macomb Pottery, 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 U S 146, 162, NLRB Rules and
Regulations, Section 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, 355 F 2d 245, 249 (C A 5)
"If there is nothing to hear, then 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
GROENDYKE TRANSPORT, INC. 685
The Regional Director found that the Respondent's
objections to the elections lacked merit, and the Board
found that the Respondent's exceptions to that conclusion
raised "no substantial or material issues of fact or law."
At this stage of the proceedings those findings are the law
of the case and binding on the Trial Examiner - though
the Respondent is free to request the Board for
reconsideration, and if the decision is adverse to seek
review in the Court of Appeals.
Respondent does not present any newly discovered or
previously unavailable evidence, nor does it claim to. The
allegations in the Answer to the effect that Union
representatives made material misrepresentations of fact
and gave things of value to employees to influence their
vote are belatedly raised. No explanation is given for their
not having been previously stated In such circumstances
the Board's rules preclude consideration of those
allegations (Section 102.67(f) and 102 69(c))
There thus being no unresolved matters requiring an
evidential hearing, the General Counsel's Motion for
Judgment on the Pleadings is granted.
However, the General Counsel's Motion to Strike
Portions of the Answer is denied That motion is to strike
the Respondent's answer to paragraphs 6, 7, 18, and 19 of
the complaint, and further paragraphs 7, 10, 11, and 12 of
the answer. Except as to the answer to paragraph 6 of the
complaint this motion is denied.
Paragraph 6 of the complaint has been stricken from
the complaint. The answer to it is likewise stricken as no
longer relevant.
Paragraph 7 of the complaint states the appropriate
units involved, which the answer denies. Paragraphs 18
and 19 of the complaint allege that the Respondent's
conduct constituted unfair labor practices within the
meaning of Section 2(6) and (7) and 8(a)(1) and (5) of tie
Act. Paragraphs 7, 10, 11, and 12 of the answer reiterate
objections raised by the Respondent in the representation
proceeding and there disposed of. These are, respectively,
(1) that union representatives engaged in electioneering
within 24 hours of the election in violation of Board rules
and decisions (paragraph 7); (2) that the election units are
inappropriate (paragraph 10) and based on the extent of
union organization (paragraph 11); and, (3) that the Board
erred in excluding dispatchers, mechanics and
maintenance men from the unit.
The issues raised by the Respondent in the portions of
its answer referred to represent the Respondent's basic
position, which it is entitled to pursue through the courts.
Though in my view unsubstantiated they are nevertheless
genuine issues which the Respondent is required to plead
if it is to have any issue to contest. The motion to strike
them is therefore without evident merit and is denied.
On the basis of the record I make the following further
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Groendyke Transport, Inc , the Respondent, at all
times material herein has been and is a corporation duly
organized under and existing by virtue of the laws of the
State of Oklahoma, having its principal offices in Enid,
Oklahoma. The Respondent has been continuously
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 "
engaged as a motor common carrier in the transportation
of petroleum and petroleum products.
During the past year, which period is representative of
all times material herein, the Respondent, in the course
and conduct of its business operations, furnished
transportation between its terminals; the gross value of
such services exceeded $500,000, of which services valued
in excess of $50,000 were rendered to customers outside
the State of Oklahoma Respondent is now 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.
11. 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
All drivers, owner-drivers, regular part-time drivers,
regular part-time owner-drivers, employed at each of the
Respondent's terminals located in Duncan, Oklahoma,
Ardmore, Oklahoma, Witchita Falls, Texas, Irving, Texas
and Angleton, Texas, but excluding all terminal managers,
dispatchers, mechanics, servicemen, office clericals, casual
part-time drivers, casual part-time owner-drivers, all other
employees, guards and supervisors as defined in the Act,
constitute separate appropriate units within the meaning
of Section 9(b) of the Act.
At all times since February 24, 1969, the Union has
been the certified representative for the purpose of
collective bargaining of the employees in the said units,
and by virtue of Section 9(a) of the Act has been and is
now the exclusive representative of the employees in the
said units for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
It is admitted and found that the Respondent refuses to
bargain with the Union.
By thus refusing to bargain collectively with the Union
the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Sections 8(a)(1)
and (5) and 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and the
entire record in the case, 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
B. Groendyke Transport, Inc., its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
'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 , Inc , 136
NLRB 785; Commerce Co d/b/ a Lamar Hotel, 140 NLRB 226, 229, 328
F 2d 600 (C A. 5), cert denied 379 U S. 817, Burnett Construction Co
149 NLRB 1419, 1421, 350 F 2d 57 (C A 10)
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to bargain collectively with Southern
Conference of Teamsters, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive representative of
the employees in the following appropriate bargaining
units:
All drivers, owner-drivers, regular part-time drivers,
regular part-time owner-drivers, employed at each of
Respondent's terminals located in Duncan and
Ardmore, Oklahoma, and in Witchita Falls, Irving and
Angleton, Texas, but excluding all terminal managers,
dispatchers, mechanics, servicemen, office clericals,
casual part-time drivers, casual part-time owner-drivers,
all other 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 Southern
Conference of Teamsters, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive representative of
the employees in the appropriate units with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment, and embody in
signed agreements any understandings reached
(b) Post at its office and place of business at the
above-said terminals, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms to be
furnished by the Regional Director for Region 16, 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 a period
of 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 16, in
writing, within 20 days from receipt of this Recommended
'In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board ' s 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 "
Order what steps the Respondent has taken to comply
herewith 9
'In the event these recommendations are adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 16, in writing , within 10 days from receipt of this Order what steps
the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted byOrder of the National Labor Relations Board
an Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Southern Conference of Teamsters, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
collective-bargaining representative of all the following
employees:
All drivers, owner-drivers, regular part-time
drivers, regular part-time owner-drivers, employed at
each of our terminals located in Duncan and
Ardmore, Oklahoma, and in Witchita Falls, Irving
and Angleton, Texas, but excluding all terminal
managers, dispatchers, mechanics, servicemen, office
clericals, casual part-time drivers, casual part-time
owner-drivers, all other 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 representatives.
WE WILL bargain collectively with the Union as the
exclusive collective-bargaining representative of the
employees in the appropriate units, and if an
understanding is reached we will sign a contract with
the Union.
Dated By
GROENDYKE TRANSPORT,
INC
(Employer)
(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,
8A24 Federal Office Building, 819 Taylor Street, Fort
Worth, Texas 76102, Telephone 817-334-2921.