Johnson Rents, Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1980

253 N.L.R.B. 690 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson Rents, Inc. and General Teamsters, Chauf-
feurs and Helpers Local 249 a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 6-CA-
13551
December 10, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JtNKINS ANI) PENELLO
Upon a charge filed on June 18, 1980, by Gener-
al Teamsters, Chauffeurs and Helpers Local 249 a/
w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on John-
son Rents, Inc., herein called Respondent, the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 6,
issued a complaint on July 22, 1980, against Re-
spondent, 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 and 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 March 26,
1980, following a Board election in Case 6-RC-
8649, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about May 30, 1980, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On August 1, 1980, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On September 2, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September
5, 1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
Ollicial notlice is taken of the record in the representation prlceed
ing. Case h RC 8649, as the term "record" is defined in Sees. 102h and
102 6
9
(g) of the Board's Rules and Regulations. Series 8, as amended Sec
LI7 Ectroyvtcm., Inc., 166 NlRB 938 (1967), enfd 388 F2d 683 (4th
Cir 1968): Golden Age Beverage (o., 167 N.RI1 151 (1967), enfd 415
F 2d 26 (5th Cir 1969): Intertvpe Co. v. Pencllo. 269 F Supp 573
(D.CVa 1967); Ioblll (Corp., 164 NI.RH 378 (1967), enfd 397 F 2d 91
(7th Cir. 1968) Sec 9(d) of the NI.RA, a amended
253 NLRB No. 100
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 response to
the Board's Notice To Show Cause, Respondent
admits the Union's request and its refusal to bar-
gain but contends it was denied its due process
rights because: (1) the Acting Regional Director
failed to provide Respondent or the Board with the
affidavits upon which he relied in rejecting Re-
spondent's postelection objections; (2) the Board
failed to review the entire investigative record
when it denied Respondent's request for review; 2
and (3) the Acting Regional Director and the
Board failed to direct a hearing on postelection ob-
jections in which substantial and material issues of
fact existed concerning alleged union promises of
financial inducement for employees who voted for
the Union.
In response to Respondent's "Opposition to the
Motion for Summary Judgment," the General
Counsel argues in substance that Respondent's due
process argument is without merit because the issue
is governed by Southwest Color Printing Corpora-
tion, 247 NLRB No. 127 (1980), wherein the Board
held that it is within the Board's discretion to de-
termine whether to review the entire investigative
record, and, further, that Respondent has not raised
any litigable issue. We agree.
Review of the record herein, including the
record in Case 6-RC-8649, reveals that on Novem-
ber 27, 1979, the Union filed a petition seeking to
represent certain employees of Respondent. On
January 9, 1980, the Regional Director for Region
6 issued a Decision and Direction of Election find-
ing the Union to be a labor organization within the
meaning of the Act and the following unit of em-
ployees appropriate for purposes of collective bar-
gaining:
All full-time and regular part-time truck-
drivers, technicians and warehousemen em-
ployed by the Employer at its Pittsburgh,
Pennsylvania, facility; excluding all other em-
ployees, respiratory therapists and guards, pro-
In'r supportl fI is first and second conrent ions. Respondenlt relics on
N 1 RB. the( (amrnbridg Wire Cloth (Company, Inc., 622 F 2d 1195 (4th
Cir 198()
9()
JOHNSON RENTS. INC
fessional employees and supervisors as defined
in the Act.
Thereafter, Respondent filed with the Board a re-
quest for review of the Regional Director's deci-
sion which was denied.
On February 8, 1980, a secret-ballot election was
conducted among employees in the aforementioned
unit. The tally was four for, and two against, the
Union with no challenged ballots. Thereafter, Re-
spondent filed timely objections and on March 26,
1980, after a complete investigation of the objec-
tions, the Acting Regional Director issued a Sup-
plemental Decision and Certification of Representa-
tive in which he overruled the objections and certi-
fied the Union as the bargaining representative for
the unit described herein. Respondent filed a re-
quest for review of the Supplemental Decision
which was denied because it raised no substantial
issues warranting either a review or a need for an
evidentiary hearing.
As noted above, Respondent cites the Fourth
Circuit decision in N.L.R.B. v. Cambridge Wire
Cloth Company, supra, as support for its contention
that the Board's denial of Respondent's request for
review without having the entire investigative
record before it constitutes an abuse of discretion
and denial of due process. In reaching that conclu-
sion, however, the Fourth Circuit relied on the
Sixth Circuit's holding to this effect in Prestolite
Wire Division v. N.L.R.B., 592 F.2d 302 (6th Cir.
1979), which the Board, in Southwest Color Printing
Corporation, supra, respectfully declined to follow.
Moreover, we note that neither of those cases has
any application here. Section 3(b) of the Act au-
thorizes the Board to delegate to its regional direc-
tors its powers under Section 9, and places review
of any such delegated action by the regional direc-
tor within the Board's discretion. Where, as here, it
appears from the Regional Director's decision and
the Respondent's brief in support of its request for
review that no substantial and material issues exist,
we find that it is a proper exercise of our discretion
to deny the request for review on that basis. Such
finding is supported by the Board's policy of expe-
ditiously resolving questions concerning representa-
tion.3
As to Respondent's contention that it was denied
due process by the Board's refusal to order a hear-
ing on Respondent's objections in the underlying
representation case, it is well established that a
party is not entitled to a hearing on objections
absent a showing of substantial and material
issues.4 Here, it is implicit that the Board, in deny-
a Truoteei ofBoton Univervity, 242 NLRB 110 (1979).
Natrional Beryllia Corporation, 222 NLRB 1289 (1976), and cases cited
therein
hearing was warranted. Further, the Board has
held, with judicial approval, that evidentiary hear-
ings are not required in unfair labor practice cases
and summary judgment cases where, as here, there
are no substantial or material facts to be deter-
mined.5 It thus appears that Respondent is attempt-
ing to relitigate issues raised and resolved in the
underlying representation case.6
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 7
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 Respondent has not raised any
issue which is properly 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
I. THE BUSINESS OF RESPONDI)ENT
At all times material herein, Respondent, a cor-
poration duly organized and existing by virtue of
the laws of the Commonwealth of Pennsylvania,
with a place of business and warehouse in Pitts-
burgh, Pennsylvania, has been engaged in the retail
rental of outpatient hospital equipment. During the
12 months preceding issuance of the complaint, a
representative period at all times material herein,
Respondent in the course and conduct of its busi-
ness operations received gross revenues in excess of
$500,000 and purchased and received at its Pitts-
burgh facility goods and materials valued in excess
of $50,000 directly from points located outside the
Commonwealth of Pennsylvania.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
I Handy Hardware Wholesale. Inc., 222 NLRB 373 (19761. and cae.i
cited therein.
6 The General Counsel erroneously alleged that Respondent did not
follow the procedures outlined in Sec 102 11
7(c)( 2 )(ii), as amended, of
the Board's Rules and Regulations, in seeking a review o the Reglional
Director's denial of Respondent's request for information under the Free-
dom of Information Act Nevertheless, Respondent's request is merely
another attempt to rehligate a previously resolved issue
7 See Pittsburgh Plate Glao Co. v N.L.R.., 313 !S 146. 162 (1q41),
Rules and Regulations of the Board, Secs 102 7(n and 102 h9(c)
h91
DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
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 I.ABOR ORGANIZATION INVOLVE I
General Teamsters, Chauffeurs and Helpers
Local 249 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time truck-
drivers, technicians and warehousemen em-
ployed by the Employer at its Pittsburgh,
Pennsylvania, facility; excluding all other em-
ployees, respiratory therapists and guards, pro-
fessional employees and supervisors as defined
in the Act.
2. The certification
On February 8, 1980, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Acting Regional Director for Region 6, designated
the Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on March
26, 1980, and the Union continues to be such exclu-
sive representative within the meaning of Section
9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about April 3, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining reprtesentative of all
the employees in the above-described unit. Com-
mencing on or about May 30, 1980, and continuing
at all times thereafter to date, Respondent has re-
fused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit. Accordingly, we find that Respondent
has, since May 30, 1980, 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, Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
IV. THE FFECT OF THE UNFAIR L.ABOR
PRACTICES UPON COMMIERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction 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:
CONCLUSIONS OF LAW
1. Johnson Rents, Inc., is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. General Teamsters, Chauffeurs and Helpers
Local 249 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3.All full-time and regular part-time truckdrivers,
technicians and warehousemen employed by the
Employer at its Pittsburgh, Pennsylvania, facility;
692
JOHNSON RENTS, INC.
excluding all other employees, respiratory thera-
pists and guards, professional employees and super-
visors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since March 26, 1980, 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 May 30, 1980, 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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
meaning 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 Re-
lations Board hereby orders that the Respondent,
Johnson Rents, Inc., Pittsburgh, Pennsylvania, its
officers, 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 General Teamsters,
Chauffeurs and Helpers Local 249 a/w Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time truck-
drivers, technicians and warehousemen em-
ployed by the Employer at its Pittsburgh,
Pennsylvania, facility; excluding all other em-
ployees, respiratory therapists and guards, pro-
fessional employees and supervisors as defined
in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Pittsburgh, Pennsylvania, facility
copies of the attached notice marked "Appendix."H
Copies of said notice, on forms provided by the
Regional Director for Region 6, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
" In he event that this Order is enfoirced by Judgment orf a United
States Court of Appeal,. the words in the notice reading "Posted by
()rder of the Natitonal Labor Relations Board" hall read Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of tilhe Natinal l.abor Relations HBard
APPENDIX
NOTICE To EMPILOYES
POSTED BY ORDER OF THE
NATIONAL LABOR REIATIONS BOARD
An Agency of the United States Government
WE WI I. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with General Teamsters, Chauffeurs and Help-
ers Local 249 a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILI., upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
693
DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time truck-
drivers, technicians and warehousemen em-
ployed by the Employer at its Pittsburgh,
Pennsylvania, facility; excluding all other
employees, respiratory therapists and guards,
professional employees and supervisors as
defined in the Act.
JOHNSON RENTS, INC.
694