Modesti Brothers, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1981

255 N.L.R.B. 828 (N.L.R.B. 1981)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Modesti Brothers, Inc. and Local 807, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 29-
CA-8186
April 10, 1981
DECISION AND ORDER
Upon a charge filed on July 31, 1980, by Local
807, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein called the Union, and duly served on
Modesti Brothers, Inc., herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
29, issued a complaint on August 28, 1980, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional 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 or about
July 2, 1980, following aBoard election in Case 29-
RC-4711, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about July 23,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. Subsequently,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint; submitting an affirmative defense;
and requesting that the complaint be dismissed in
its entirety.
On October 27, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment with exhibits attached. Subse-
quently, on October 31, 1980, the Board issued an
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. Respondent thereafter filed an "Affidavit
I Official notice is taken of the record in the representation proceed-
ing, Case 29-RC 4711, as the term "record" is defined in Secs. 10268
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electrosystens. ,Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Interrype Co, v. Penrello, 269 F.Supp. 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA. as amended.
255 NLRB No. 109
In Opposition To Motion for Summary Judgment"
with exhibits attached.
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, Respondent as-
serts as an affirmative defense that the Union's cer-
tification was illegal and improper because of the
Board's failure to hold a hearing with respect to
material issues of fact in dispute and accordingly
Respondent does not possess any duty to bargain.
Nonetheless, Respondent admits all of the opera-
tive factual allegations of the complaint except for
its denial that the Union was properly certified and
that the Union is the exclusive bargaining repre-
sentative of employees in the unit described
below.2 Apparently, based on its denials, Respond-
ent also denies the conclusionary averments of the
complaint that it has violated Section 8(a)(5) and
(1) of the Act by refusing to bargain with the
Union. In its Affidavit in Opposition to Motion For
Summary Judgment, Respondent attacks the
Union's certification on the basis that "substantial
and material factual and legal issues" exist which
necessitate a hearing pursuant to Section 102.69 of
the Board's Rules and Regulations, Series 8, as
amended, and make summary judgment inappropri-
ate and improper. In support of this contention,
Respondent's affidavit repeats evidence it previous-
ly submitted to the Regional Director and to the
Board in the representation proceeding. It also
refers to allegedly new evidence that it would at-
tempt to adduce at a hearing as well as certain
"evidence" it presently offers in its affidavit. Based
on these contentions and evidence, Respondent's
affidavit denies allegations in the General Counsel's
Motion for Summary Judgment that Respondent
(1) does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence nor
does it allege that any circumstances exits which
would require the Board to reexamine its decisions
on the representation proceeding, (2) has not raised
an issue which is properly litigated in an unfair
labor practice proceeding, and (3) merely seeks to
relitigate issues in the representation case already
decided by the Board.
2 In its answer, Respondent specifically denies the allegations in par. 8,
II11, and 12 o the complaint Respondent does not specifically deny any
other allegations of the complaint or indicate a lack of knowledge as to
any of the complaint allegations. Accordingly. the remaining paragraphs
of the complaint are deemed to be admitted since Sec. 102.20 of the
Board's Rules and Regulations. Series 8 as amended, indicates, inter alia,
that. "[A]ll allegations in the complaint, if no answer is filed, or any alle-
gation in the complaint not specifically denied or explained in an answer
riled unless the Respondent shall state in the answer that he is without
knowledge. shall be deemed to be admitted to be true and shall be so
found by the Board. unless good cause to the contrary is shown."
MODESTI BROTHERS, INC. 829
Review of the record herein, including the
record in Case 29-RC-4711, reveals that, pursuant
to a Stipulation for Certification Upon Consent
Election, an election was conducted on November
5, 1979, which resulted in a vote of 5 for, 3 against,
the Union, with 2 challenged ballots, sufficient in
number to affect the results of the election. There-
after, Respondent filed two timely objections to
conduct affecting the results of the election, alleg-
ing in substance that the Board agent conducting
the election failed to inform Respondent's observer
of the proper procedure for challenging a ballot
and, accordingly, an employee that Respondent in-
tended to challenge voted in the election; and that
the Union improperly induced Respondent's em-
ployees to vote for the Union by wining and dining
employees on several occasions and promising em-
ployees benefits if they voted for the Union.
Following an investigation, on February 7, 1980,
the Regional Director issued a Report on Chal-
lenged Ballots and Objections in which he recom-
mended to the Board that Respondent's two objec-
tions be overruled; that the challenge to the ballot
cast by Edward Modesti, Jr. (the son of Respond-
ent's president) be sustained since Modesti, Jr., was
not an employee under Section 2(3) of the Act, and
did not share a community of interest with unit em-
ployees; that a revised tally of ballots be issued;
and that the Union be certified as the exclusive
representative of the employees.3
Respondent filed with the Board exceptions to
all the Regional Director's recommendations,
asking that the election be set aside and that a new
election be conducted. Respondent also filed with
the Board a request that a hearing be held on all
issues in its exceptions. On July 2, 1980, the Board
issued a Decision and Certification of Representa-
tive (not published in bound volumes of Board De-
cisions) in which it adopted the Regional Direc-
tor's findings and recommendations, rejected Re-
spondent's request for a hearing, and certified the
Union as the exclusive collective-bargaining repre-
sentative of the employees in the unit described
below.
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. 4
3 Inasmuch as the Regional Director recommended sustaining the chal-
lenge to the ballot of Edward M(desti, Jr., he found it unnecessary to
rule on the remaining challenged ballot as it would not be determinative
of the election.
4 See Pilsburgh Plate Glass Co. . L.R.B., 313 U.S. 146. 1t2 (1941);
Rules and Regulations of the Board, Sees. 102.67(0 and 102.6 9(c).
Contrary to Respondent's contentions, all issues
raised by it in in this proceeding were or could
have been litigated in the prior representation pro-
ceeding, and Respondnet 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 re-
quire 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 pro-
ceeding.
In this proceeding, Respondent contends that
summary judgment may not be entered because
there are substantial and material issues remaining
and therefore a hearing is required according to
Section 102.69 of the Board's Rules and Regula-
tions, Series 8, as amended, to consider the chal-
lenges and its objections to the election.5 During
the course of the representation proceeding, all
parties were afforded the opportunity to be heard.
Prior to adopting the findings and recommenda-
tions of the Regional Director, the Board consid-
ered the Regional Director's Report on Challenged
Ballots and Objections, Respondent's exceptions
thereto, and Respondent's initial request for a hear-
ing. In adopting the recommendations of the Re-
gional Director, the Board necessarily found that
Respondent's objections had not raised substantial
or material issues warranting a hearing. Respondent
now raises the same matters raised in the represen-
tation proceeding in an attempt to obtain a hearing,
but it is well settled that Section 102.69 does not
give a party an absolute right to a hearing on ob-
jections to an election. It is only when the moving
party presents a prima facie showing of substantial
and material issues which would warrant setting
aside the election that it is entitled to an eviden-
tiary hearing.6 Respondent's objections did not
raise substantial or material issues in the underlying
representation proceeding and they do not now
raise substantial or material issues merely by being
raised in the unfair labor practice proceeding. The
same is true with regard to its complaint that the
s Sec 102 69 of the Board's Rules and Regulations states, iter ala,
that:
(d) The action (if the regional director in issuing a report on obiec-
Ilols or challenged ballots, or both . . may he on the basis of an
administrative investigalion or. if it appears to the regional director
that suhstanlial and material factual issues exist which. in the exercise
of his realsonale discretion. he determines ma, more appropriately
be resolved after a hearing. he shall issue and cause to be served on
the parties a otice of hearing on alid issues before a hearing officer.
' Contrary to Respondent's affidavil. the Board has found in a number
of cases that a respondent is under a duty to bargain ilth a ulnioll sshere
no hearing \was held on1 the obhjections in the underlying representation
proceeding Sec ecg. PerAk, I :rterpris. Inc., 251 NLRB 522 (19(0) Ma-
dsonvillh Contcrete Co.. a Division of Corum & Edwards. Inc., 220 NLRB
668 (19751): Evansillc .lAuto Parrts. Inc . 217 NI.RB 660) (1975)
MODESTI BROTHERS, INC.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director incorrectly sustained the chal-
lenge to the ballot of Edward Modesti, Jr. In its af-
fidavit in opposition to the Motion for Summary
Judgment, Respondent contends, however, that it
has additional evidence on each issue it has raised
warranting a hearing. These contentions are with-
out merit. With respect to the status of Modesti,
Jr., Respondent refers to additional evidence in
Case 29-CA-7571 where Modesti, Jr., is alleged to
be a supervisor under the Act. Respondent con-
tends that at a hearing it would show he is not a
superivsor. However, Modesti, Jr., was not ex-
cluded from the unit in the underlying representa-
tion proceeding because he was a supervisor but
rather because he was not a Section 2(3) employee
who did not share a community of interest with
unit employees. Hence, Respondent's attempt to
show Modesti, Jr., is not a supervisor is irrelevant
to the issues framed here. And with regard to its
two objections, Respondent does not offer any new
evidence but simply asserts what it would prove if
allowed to subpena witnesses and records. Such as-
sertions do not raise issues warranting a hearing.
Lastly, Respondent makes an offer of proof regard-
ing the second voter, whose status the Regional
Director found it unnecessary to resolve in this
proceeding. The Board affirmed that recommenda-
ton and so Respondent's proffer on his status is also
irrelevant to the issues framed here. In sum, Re-
spondent's claim that it is entitled to a hearing and
that summary judgment is improper is without
merit. Accordingly, we grant the Motion for Sum-
mary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation with an
office in Long Island City, New York, is engaged
in performing general freight trucking and related
services. During the past 12 months, a representa-
tive period of all times material herein, Respond-
ent, in the course and conduct of its business oper-
ations, derived gross revenues in excess of $50,000.
During the past 12 months, a representative period
of all times material herein, Respondent, in the
course and conduct of its business operations, de-
rived gross revenues in excess of $50,000 from the
transportation of freight from States outside the
State of New York directly to points inside the
State of New York.
We find, on the basis of the foregoing, that Re-
spondent 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
Local 807, 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.
I1. 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 employees, including truck drivers, em-
ployed by the Employer, but excluding all
office clerical employees, guards and supervi-
sors, as defined in the Act.
2. The certification
On or about November 5, 1979, 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 29, designated
the Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on or about July 2, 1980, 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 July 7, 1980, and at all
times thereafter, the Union has requested Respond-
ent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing
on or about July 23, 1980, and continuing at all
times thereafter to date, 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 Respondent has, since
July 23, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
MODESTI BROTHERS, INC. 831
tices within the meaning of Section 8(a)(5) and (1)
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 oper-
ations described in section I, 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. Modesti Brothers, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 807, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees, including truck drivers, em-
ployed by the Employer, but excluding all office
clerical employees, guards and supervisors, as de-
fined 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 or or about July 2, 1980, the above-
named labor organization has been and now is the
certified and exclusive representative of all employ-
ees in the aforesaid appropriate unit for the purpose
of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By refusing on or about July 23, 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,
Modesti Brothers, Inc., Long Island City, New
York, 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 Local 807, Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen and Helpers of America, as the exclu-
sive bargaining representative of its employees in
the following appropriate unit:
All employees, including truck drivers, em-
ployed by the Employer, but excluding all
office clerical employees, guards and supervi-
sors, 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
MODEST BROTHERS, INC
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its office located in Long Island City,
New York, copies of the attached notice marked
"Appendix."7 Copies of said notice, on forms pro-
vided by the Regional Director for Region 29,
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 29,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
7 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the Naitonal 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 Local 807, 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 WILL, 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-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All employees, including truck drivers, em-
ployed by the Employer, but excluding all
office clerical employees, guards and super-
visors, as defined in the Act.
MODESTI BROTHERS, INC.