O.K. Van and Storage, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1960

127 N.L.R.B. 1537 (N.L.R.B. 1960)

O.K. VAN AND STORAGE, INC. 1537
O.K. Van and Storage, Inc. and International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America,
Truckdrivers , Chauffeurs , Warehousemen and Helpers, Local
Union 941. Case No. 33-CA-553. June 08, 1960
DECISION AND ORDER
On July 21, 1959, Trial Examiner Wallace E. Royster issued his
Intermediate Report 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, with the following additions.
The Trial Examiner found that the Respondent refused to bargain
with the Union in violation of Section 8 (a) (5) and (1) of the Act.
The Respondent admits that it refused to bargain with the Union but,
asserting that the Board's certification of the Union was invalid,
contends that its refusal was justified. We agree with the Trial
Examiner.
Upon a petition filed by the Union, the Board on June 27, 1958,
directed an election in an appropriate unit.' The election, held on
July 19, 1958, resulted in a vote (10 to 8) favorable to the Union.
The Respondent filed, on July 24, timely objections to the conduct of
the election alleging :
1. The Board directed an election over Company protest during
the pendency of a CA charge.
2. Certain employees were not adequately instructed in voting
mail ballots (2 mail ballots were not timely received) and a Board
agent was biased in favor of the Union.
3. The election started late and the voting booth was dismantled
prior to the end of the scheduled closing time.
4. Prior to the closing of the polls a Board agent reached into
the ballot box and removed a ballot which he discussed with the
observers.
5. A former employee and union leader threatened bodily in-
jury to any employee who voted against the union.
' Case No 33-RC-679 (unpublished).
127 NLRB No. 168.
560940-61--vol. 127-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 15, 1958, the Regional Director issued his report on
-objections, recommending the overruling of the objections and the
certification of the Union. The Respondent then filed exceptions to
the Regional Director's report, alleging that the report contained con-
clusions based on evidence to which the Respondent did not have
access.
The Respondent never directly requested a hearing in the exceptions.
Instead it commented on the lack of such hearing and noted Respond-
ent's inability to examine witnesses.
On December 31, 1958, the Board issued a Supplemental Decision
.and Certification overruling the objections to the election .2 Each of
the five objections, supra, was considered and ruled upon as follows:
Objection 1: It was held that it was for the Petitioner to decide
whether to proceed with an election where one of its adherents had
filed an unfair labor practice charge. Herein the Petitioner had
waived any objection and it was proper to proceed absent any
evidence of prejudice being shown by the Respondent.
Objection 2: Although two employees charged inadequate vot-
ing instructions were given, a copy of the instructions received by
the employees was deemed adequate absent any evidence the two
employees were unable to read or understand the instructions.
Objection 3: Although the election began late and the voting
both was dismantled early, the Board agent and the observers
remained at the polls until closing. There was no evidence that
any eligible voter was deprived of an opportunity to cast his
ballot.
Objection 4: Although the Board agent did reach into the
ballot box prior to the closing of the polls and removed a ballot
to explain to the observers how it should be marked valid, there
was no evidence that the secrecy of the ballot was impaired.
Objection 5: The objection that a former employee threatened
injury to anyone who voted against the Union was held without
merit in the absence of any evidence that the petitioning union
was responsible for the former employee's conduct, or that an
atmosphere was created which would render impossible a free
election.
On February 24, 1959, the Union made a bargaining request. The
Respondent specifically rejected bargaining on the ground that it did
not "feel that the Union actually represent[ed] the employees because
-the election was not properly conducted."
At the hearing in the instant case the Respondent attempted to
Telitigate the earlier objections to the election by offering into evi-
,dence: (1) A copy of the Respondent's objection to the election;
2122 NLRB 795. -c
O.K. VAN AND STORAGE, INC. 1539
(2) a copy of the Regional Director's report on objections; (3) a
copy of the Respondent's exceptions to report on objections; and
(4) testimony of four witnesses.
The Trial Examiner refused to admit this material and testimony
into evidence on the grounds that the Board's overruling of the
objections and the issuing of a certification was dispositive of the
issues. He thereafter concluded that Respondent's conduct was vio-
lative of Section 8 (a) (1) and (5) of the Act.
In a brief filed with the Board, Respondent stresses primarily the
Board's failure to grant any form of hearing on the objections to the
election.
Section 102.69 of the Board's Rules and Regulations sets forth elec-
tion procedures, including the handling of objections. It provides for
the holding of a hearing when it appears to the Board that exceptions
to the report of a Regional Director on objections raise substantial and
material factual issues. In accordance therewith, the Board has held
that unless substantial and material issues of fact are raised a request
for a hearing will be denied.' The Board has rejected the contention
that a Respondent is entitled as a matter of right to a hearing on ob-
jections to an election.' In order to prevent delay in election proce-
dure the Board has uniformly refused to direct a hearing on objec-
tions unless the party supplies specific evidence of conduct which
prima facie would warrant setting aside the election. The speculative
possibility advanced by a party that evidence to support its allega-
tions might be developed at a hearing is insufficient to warrant delay.5
The Administrative Procedure Act 6 does not require a hearing as
a matter of course on objections to an election. Section 5 thereof,
with sections 7 and 8, governs the procedure in formal administrative
adjudication. The formal procedural requirements for a hearing
under the Administrative Procedure Act are invoked only where a
hearing is required by some other statute. Expressly exempted there-
from is certification of employee representatives under Section 9 (c)
of the National Labor Relations Act.7
Implicit in reaching the decision to overrule the Respondent's
exceptions to the Regional Director's report on the objections and in
the certification of the Union was the conclusion with due regard to
the requirements of our Rules and Regulations that no hearing was
necessary because there was no issue to decide that could not be
decided on the evidence then before the Board.
The crux of the issue raised by the Respondent's offer of proof lies
in its response in the representation case, by way of its exceptions and
8 Ormet Corporation, 122 NLRB 159, 162
}Plant City Welding and Tank Company. 123 NLRB 1146
Orleans Manufacturing Company, 120 NLRB 630, 631-632
e Administrative Procedure Act, 60 Stat 237, 243 ; 5 U S.C. 1001 et seq.
Id , Section 5 (exec )ted adjudications).
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brief, to the Regional Director's report on objections. This specific
offer therefore constitutes an attempt by the Respondent to cause the
Board to pass for a second time upon the legal effect of matters which
have already been decided. This, in the interest of finality of adjudi-
cation, we are now unwilling to do.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent, O.I. Van and Storage, Inc.,
El Paso, Texas, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Truckdrivers, Chauffeurs, Warehousemen and Helpers, Local Union
941, as the exclusive representative of its employees in the unit found
appropriate herein.
(b) In any like or related manner, interfering with the efforts of
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, Truckdrivers, Chauffeurs and Helpers, Local
Union 941, to bargain collectively.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Preserve and, upon request, bargain collectively with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Truckdrivers, Chauffeurs, Warehousemen and
Helpers, Local Union 941, as the exclusive bargaining representative
of the employees in the appropriate unit consisting of all truckdrivers,
warehousemen, craters, packers, and helpers employed by the Re-
spondent at its El Paso, Texas, operation, excluding office and plant
clerical employees, all other employees, and supervisors as defined in
the Act, and embody any understanding reached in a signed contract.
(b) Post at its operations where employees in the appropriate unit
are employed, copies of the notice attached hereto marked "Ap-
pendix." 8 Copies of said notice, to be furnished by the Regional
Director for the Sixteenth Region, shall, after being duly signed by
an authorized representative of the Respondent, be posted by the
Respondent immediately upon receipt thereof and 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.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of AppealVEnforcing an Order."
O.K. VAN AND STORAGE, INC. 1541
(c) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Truckdrivers, Chauffeurs, Warehousemen and
Helpers, Local Union 941, as the exclusive representative of all
truckdrivers, warehousemen, craters, packers, and helpers em-
ployed by us in our El Paso, Texas, operation, excluding office
and plant clerical employees, all other employees, and super-
visors as defined in the Act, and embody any understanding
reached in a signed contract.
WE WILL NOT in any like or related manner interfere with the
efforts of International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Truckdrivers, Chauffeurs,
Warehousemen and Helpers, Local Union 941, to bargain
collectively.
O.I. VAN AND STORAGE, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by Truckdrivers , Chauffeurs , Warehousemen and Helpers,
Local Union 941, herein called the Union , against O.K. Van and Storage, Inc.,
herein called the Respondent , the General Counsel issued his complaint alleging
that the Respondent had engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and ( 5) and Section 2(6) and ( 7) of the National
Labor Relations Act , 61 Stat. 136 , herein called the Act . The Respondent filed an
answer denying the commission of unfair labor practices . A hearing was held on
June 16, 1959, in El Paso, Texas , before the duly designated Trial Examiner. The
General Counsel and the Respondent were represented by counsel and were afforded
full opportunity to participate in the hearing. Briefs received from the General
Counsel and the Respondent have been considered.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation with its principal office and place of
business in El Paso, Texas, and is engaged in moving and storing household goods and
furniture and the distribution of railcars. During the 12-month period preceding
the issuance of the complaint, the Respondent performed services of transporting
and delivering goods originating outside the State of Texas for which it received
revenues in excess of $50,000. During the same period the Respondent performed
services for various business organizations within the State of Texas earning revenues
in excess of $100,000. Each of the business organizations for which such services
were performed did business outside the State of Texas in amounts in excess of
$50,000. I find that the activities of the Respondent are in commerce and affect
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, an affiliate of International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges, the Respondent's answer admits, and I find as follows:
1. All truckdrivers, warehousemen, craters, packers, and helpers employed by the
Respondent at the El Paso operation, excluding office and plant clerical employees,
all other employees, and supervisory employees, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act.
2 On or about February 24, 1959 the Union requested Respondent to bargain
collectively in respect to rates of pay, wages, hours of employment, or other con-
ditions of employment with the Union as the exclusive representative of all the
employees in the unit described above.
3. On or about April 6, 1959, and at all times thereafter Respondent has refused
and now refuses to bargain collectively with the Union as the exclusive representative
of all the employees in the unit.
Upon a petition filed by the Union in Case No. 33-RC-679, the National Labor
Relations Board, herein called the Board, on June 27, 1958, directed the conduct
of an election among the employees in the appropriate unit. The election, held on
July 19, resulted in a vote favorable to the Union. Thereafter the Respondent filed
timely objections to the conduct of the election. After an investigation of the
objections the Regional Director for the Sixteenth Region found them to be without
merit and recommended to the Board that they be overruled and that a certificate
be issued to the Union as the bargaining representative of Respondent's employees
in the appropriate unit The Respondent filed its exceptions to the report of the
Regional Director. Upon consideration of the Regional Director's report and the
exceptions, the Board on December 31, 1958. adopted the recommendations of the
Regional Director and certified the Union as exclusive bargaining agent of the
employees in the unit.
At the hearing held before me the Respondent attempted to relitigate the
objections it had earlier presented to the Board. I declined to hear evidence bearing
on the objections or to consider them on their merits The Board's action in over-
ruling the objections and issuing a certificate is dispositive on the point. Upon the
basis of the election of July 19, 1958, and the certificate issued by the Board on
December 31, 1958, I find that the Union has been at all times material herein and
now is the exclusive representative of all employees in the appropriate unit for
purposes of collective bargaining with respect to rates of pay, wages, hours of employ-
ment, or other terms and conditions of employment.
Tt follows and I find that by refusing on April 6, 1959, and thereafter to bargain
with the Union as such exclusive representative, the Respondent has engaged in
and is engaging in an unfair labor practice within the meaning of Section 8 (a) (5) of
the Act.
By the refusal to bargain the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights gauranteed in Section 7 of the Act,
and has thereby engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a)( I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section 'III, above, occurring in
connection with its operations described in section I, above, have a close, intimate,
LOS ANGELES CLOAK JOINT BOARD, ETC . 1543
and substantial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
Having found that the Respondent has refused to bargain with the representative
of its employees in an appropriate unit it will be recommended that upon request the
Respondent be ordered to bargain with the Union.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. The Respondent is an employer within the meaning of Section 2(2) of the Act.
3. All truckdrivers, warehousemen , craters, packers, and helpers in Respondent's
employ at the El Paso operation , excluding office and plant clerical employees, all
other employees , and supervisory employees , constitute a unit appropriate for
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
4. On and since July 19, 1958, the Union has been and now is the exclusive
representative of the employees in the bargaining unit described above.
5. By refusing on April 6, 1959, and thereafter to bargain with the Union as the
exclusive representative of the employees in the unit , the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of
the Act.
6. By the refusal to bargain the Respondent has interfered with, restrained, and'.
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act
and has thereby 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 com -
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Los Angeles Cloak Joint Board , affiliated with International.
Ladies' Garment Workers ' Union, AFL-CIO, and Los Angeles
Dress and Sportswear Joint Board , affiliated with Inter -
national Ladies' Garment Workers ' Union, AFL-CIO [Helen
Rose Co., Inc.] and Mrs. Edwin Selvin, Labor Relations Con -
sultant. Case No. f1-CB-1393. Jwne 38, 1960
DECISION AND ORDER
On March 17, 1960, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel filed exceptions to the Intermediate Report and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
127 NLRB No. 179.