Pacific Intermountain Express

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 769 (N.L.R.B. 1979)

PACIFIC INTERMOUNTAIN EXPRESS
Pacific Intermountain Express and Brotherhood of
Teamsters and Auto Truck Drivers, Local No. 70,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America. Case
32-CA- 1920
September 28, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
Upon a charge filed on July 9, 1979, by Brother-
hood of Teamsters and Auto Truck Drivers, Local
No. 70, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on Pacific
Intermountain Express, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
32, issued a complaint and notice of hearing on July
17, 1979, against Respondent, alleging that Respon-
dent 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 administrative law judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on May 24, 1979, fol-
lowing a Board election in Case 32-RC-420, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about June 13, 1979, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
July 26, 1979, Respondent filed its answer to the com-
plaint, in which it admitted the filing and service of
the charge, the jurisdictional conclusions as to Re-
spondent, and the labor organization status of the
Union, but denied all other allegations of the com-
plaint without providing any affirmative defense.
On August 10, 1979, counsel for the General Coun-
sel filed directly with the Board a motion to strike
portions of Respondent's answer and Motion for
I Official notice is taken of the record in the representation proceeding.
Case 32-RC-420, as 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 Electro-
sytems, 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): Intertype Co. v. Penello, 269 F. Supp. 573 (D.C. Va. 1967); Follett
Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec. 9(d) of
the NLRA. as amended.
Summary Judgment with exhibits attached, and a
memorandum in support thereof, alleging, inter alia,
that Respondent's answer to the complaint failed to
raise factual issues warranting an evidentiary hearing,
and therefore requesting the Board to grant the Mo-
tion for Summary Judgment. Subsequently, on Au-
gust 17, 1979, 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
thereafter filed a response to the 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
Notice To Show Cause, Respondent attacks the valid-
ity of the Union's certification on the ground that the
election was not a free and secret election in accord-
ance with the purposes and policies of the National
Labor Relations Act. The General Counsel contends
that Respondent's answer raises no issue of fact war-
ranting a hearing, and that, accordingly, he is entitled
to summary judgment as a matter of law. We agree
with the General Counsel.
Our review of the record, including that in Case
32-RC-420, shows that an election was conducted
pursuant to a Stipulation for Certification Upon Con-
sent Election on September 15, 1978, in a unit of all
sales representatives. The tally was three for, and two
against, the Union; there were no challenged ballots.
Respondent filed its objections to the election, assert-
ing, inter alia, improper conduct by the Board agent
conducting the election in failing to shake up the bal-
lots in the ballot box before opening the counting the
ballots, thereby allegedly making it possible for
"everyone," including management officials, to know
how eligible employees voted. On October 13, 1978,
the Regional Director, having duly investigated the
matters raised by Respondent's objections, issued his
Report on Objections wherein he recommended that
the objections be overruled in their entirety and that
an appropriate certification of representative issue.
Respondent timely filed with the Board its exceptions
to the Regional Director's Report on Objections, to-
gether with a brief in support thereof, urging the same
arguments and contentions that it now advances as
grounds for denying the General Counsel's Motion
for Summary Judgment. After considering the record
in light of Respondent's exceptions, the Board, on
245 NLRB No. 97
769
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 24, 1979, issued a Decision and Certification of
Representative 2 in which it adopted the Regional Di-
rector's findings and recommendations contained in
his report, and certified the Union as the collective-
bargaining representative of the employees in the ap-
propriate unit. On June 11, 1979, Respondent moved
the Board for reconsideration of its Decision and Cer-
tification of Representative. On June 21, 1979. the
Board rejected the motion as untimely filed. It thus
appears that Respondent is attempting to relitigate
issues in this proceeding which were decided in the
underlying representation case.
It is well settled that in the absence of newly dis-
covered 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.3
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously 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 prop-
erly litigable in this unfair labor practice proceeding.4
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 RESPONDENT
Respondent, a California corporation with an office
and principal place of business located in Emeryville,
California, is engaged in the business of warehousing
and transportation of goods. During the past 12
months, Respondent, in the course and conduct of its
2 Not reported in volumes of Board Decision.
'See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941).
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
4 By its answer, Respondent denies the appropriateness of the unit. the
election results, and the certification of the Union. Respondent also denies
that the Union has requested it to bargain and that it has refused to do so.
However, attached to the General Counsel's Motion for Summary Judgment
are three letters dated June 5, 15, and 26, 1979, requesting Respondent to
bargain, and two letters dated June 13 and 25, 1979, in which Respondent
stated that it would not bargain. Respondent presents nothing to controvert
these documents. Accordingly, we deem these allegations of the complaint to
be true. The May Department Stores Company, 186 NLRB 86 (1970); and
Carl Simpson Buick, Inc., 161 NLRB 1389 (1966). As for its other denials,
Respondent stipulated to the appropriateness of the unit in the representa-
tion proceeding and therefore may not relitigale that issue herein; and the
record reveals an undisputed tally of ballots showing a vote in favor of the
Union and the certification of the Union by this Board.
5 In view of the result reached herein, we find it unnecessary to rule on the
General Counsel's motion to strike Respondent's answer to the complaint.
business operations, purchased and received goods or
services valued in excess of $50,000 directly from the
suppliers located outside the State of California.
We find, on the basis of the foregoing, that Respon-
dent 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 I.ABOR OR(iANIZA()ON INVO()I.VEI)
Brotherhood of Teamsters and Auto Truck Driv-
ers, Local No. 70. International Brotherhood of
Teamsters, 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 PRACII(LES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All sales representatives employed by Respon-
dent at its 5500 Eastshore Highway. Emeryville,
California, terminal; excluding all other employ-
ees, all office clerical employees, guards and su-
pervisors as defined in the Act.
2. The certification
On September 15, 1978, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region 32, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on May 24, 1979, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about June 5, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
June 13, 1979, and continuing at all times thereafter
to date. Respondent has refused, and continues to re-
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PACIFIC INTERMOUNTAIN EXPRESS
fuse, 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
June 13. 1979, 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, Respondent has en-
gaged in and is engaging in unfair labor practices
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
111, above, occurring in connection with its operations
described in section I, above, have a close, intimate.
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
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 Con-
struction 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. Pacific Intermountain Express is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Brotherhood of Teamsters and Auto Truck
Drivers, Local No. 70, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All sales representatives employed by Respon-
dent at its 5500 Eastshore Highway, Emeryville, Cali-
fornia, terminal, excluding all other employees, all of-
fice clerical 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 May 24, 1979, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about June 13, 1979, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 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 Rela-
tions Board hereby orders that Respondent, Pacific
Intermountain Express, Emeryville, California, its of-
ficers, 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 con-
ditions of employment with Brotherhood of Team-
sters and Auto Truck Drivers, Local No. 70, Interna-
tional Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America, as the exclu-
sive bargaining representative of its employees in the
following appropriate unit:
All sales representatives employed by Respon-
dent at its 5500 Eastshore Highway. Emeryville,
California, terminal: excluding all other employ-
771
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees, all office clerical employees, guards and su-
pervisors 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 unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Emeryville, California, facility copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 32, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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 32, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I 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 Broth-
erhood of Teamsters and Auto Truck Drivers.
Local No. 70, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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 de-
scribed 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
agreement. The bargaining unit is:
All sales representatives employed by the Em-
ployer at its 5500 Eastshore Highway, Emery-
ville, California, terminal; excluding all other
employees, all office clerical employees, guards
and supervisors as defined in the Act.
PACIFIC INTERMOUNTAIN EXPRESS
772