Roadbuilders Inc. of Tennessee

National Labor Relations Board - Board Decisions

Aug 17, 1979

244 N.L.R.B. 293 (N.L.R.B. 1979)

ROADBLIILDERS, IN('. Of1: INNESSEL
Roadbuilders, Inc. of Tennessee and Teamsters Local
515, affiliated ,with International Brotherhood of
Teamsters. Chauffeurs, Warehousemen & Helpers
of America. Case 10-CA 14412
August 17. 1979
DECISION AND ORDER
BY MEMBERS PENEI.LO, MURPHY. ANI) TRIESI)AIE
Upon a charge filed on February 23, 1979. and an
amended charge filed on March 14, 1979, by Team-
sters Local 515, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, herein called the Union, and
duly served on Roadbuilders, Inc. of Tennessee.
herein called Respondent, the General Counsel of the
National Labor Relations Board. by the Regional Di-
rector for Region 10, issued a complaint and notice of
hearing on March 15, 1979, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (I) 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 proceed-
ing.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on November 1, 1978,
following a Board election in Case 10-RC- 11418 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 December 12, 1978, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
On March 26, 1978, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On April 30, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 7, 1979, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
I Official notice is taken of the record in the representation proceeding,
Case 10-RC-11418, as the term "record" is defined in Sees. 102.68 and
10
2.69(g) of the Board's Rules and Regulations. Series 8, as amended. See
LTV Electrosystems, 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).
Foller Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec.
9(d) of the NLRA, as amended.
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed a response to
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) ol 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 its response to
the Notice To Show Cause, Respondent admits most
of the operative factual allegations of the complaint 2
but denies the conclusionary averments on the basis
that irregularities surrounded the election which
tainted its results. The General Counsel contends that
Respondent is improperly seeking to relitigate issues
which were raised and decided on, which could have
been raised in the underlying representation case. We
agree with the General Counsel.
Review of the record herein, including that in the
underlying representation proceeding (Case 10- RC
11418), shows that the election in this matter was held
on June 21. 1978, pursuant to a Stipulation for Certi-
fication Upon Consent Election, approved on June
13, 1978, and resulted in a vote of 18 for, and none
against, the Union. There were 16 challenged ballots.
an insufficient number to affect the results of the elec-
tion. Respondent thereafter filed timely objections to
the conduct affecting the results of the election. On
August 28, 1978, the Regional Director recommend-
ed that these objections be overruled.
In his report. the Regional Director rejected Re-
spondent's contention that an alleged voting irregu-
larity warranted the setting aside of the election. The
Regional Director found that a voter, who had been
challenged. had placed his ballot in the ballot box
without first having placed the ballot into a chal-
lenged ballot envelope. Nevertheless, the Regional
Director found that under the particular circum-
stances of the election tally the Employer's objection
was without merit.3 The Regional Director further
2 See fn. 7. infra.
The Regional Director concluded as follows on the objections
As the tall) of ballots shows, all votes counted were cast for the
Petitioner Thus, under the particular circumstances herein, it is known
that the ballot which should have been placed In a challenged ballot
envelope was cast for the Petitioner.. If. as the Employer argues,. the
voter had properl) placed his ballot in a challenged ballot envelope, the
election would have resulted in 17 votes for the Petitioner and 17 chal-
lenged ballots. A subsequent investigation of challenged ballots would
have then been required and would have resulted in a finding that the
voter who is the subject of the Employer's objection is either eligible or
ineligible to vote. If the voter was found to be eligible, the reised iall>
of ballots would be 18 votes having been cast for the Petitioner and 16
(('onntued
244 NLRB No. 40
293
Dl)('ISIONS OF NA11TONAI. I./BOR RELA1IONS BOARI)
noted that later disposition oft the status of three other
challenged voters "fu'ther [weakened the Employer's
arguments in support of its objection."4
Respondent filed timely exceptions to the Regional
Director's report, arguing only that the Board agent's
acti,ns ran counter to Section 102.69 of the Board's
Rules and Regulations requiring that the ballots of
challenged voters be "impounded," which was not
done in the election. On November 1, 1978, the Board
issued its Decision and certification of Representa-
tive5 in which it adopted the Regional Director's re-
port.
In its response to the Notice To Show Cause. Re-
spondent again asserts that a voting irregularity oc-
curred, which is sufficient to set aside the results of
the election. Respondent now contends it is entitled
to a hearing on the issue. Respondent also interjects
for the first time the argument that there was the pos-
sibility of "chain voting" or a "similar vote fraud" in
the election. 6 Respondent argues thus:
[T]here was no inquiry to whether the ballot
given to the challenged voter in this case was the
same ballot marked and cast by him, or whether
he left the election area with the blank ballot,
and with the challenged ballot envelope as well
(if an investigation would have developed that
one was, indeed, prepared as might be presumed
to have been the case because of the specific pro-
cedural requirements that it be done), thus leav-
ing untouched the possibility for chain voting or
a similar fraud.
In support of its argument on the "possibility for
'chain voting,'" Respondent has presented no facts
and no supporting evidence other than its assertions.
The issue appears not to have been addressed by the
Regional Director or the Board in the representation
proceeding simply because it was not raised there. It
challenged ballots. If. on the other hand. this voter was found to be
ineligible. the revised tally of ballots would be 17 votes having been cast
for the Petitioner and 16 challenged ballots. In either event, this voter's
ballot could not have affected the results of the election.
4With regard to this finding, the Regional Director noted that three em-
ployees whose ballots were challenged were later found (without objection)
not to be employees employed in the stipulated unit at the time of the elec-
tion and hence were ineligible to vote.
5 Not reported in bound volumes of Board Decisions.
' As stated by the Board in Farrell-Cheek Steel Company, 115 NLRB 926.
927. fn. 3 (1956):
By "chain voting," a voter secretes a ballot upon his person without
having placed it in the ballot box and takes it from the voting room to
a place where it is marked by someone, who, in turn, gives the ballot to
the second person in the chain who then goes into the polling room.
picks up a blank ballot, goes to the polling booth. deposits the ballot
marked outside the polling room and secretes the blank ballot on his
person and by this means takes the blank ballot from the voting room.
This is repeated again and again until all of those voters who take part
in the "chain voting" have voted.
is well settled that in the absence of newly discovered
or previously unavailable evidence or special circum-
stances a respondent in a proceeding alleging a viola-
tion of Section 8(a)(5) is not entitled to relitigate is-
sues which were or could have been litigated in a
prior representation proceeding.7 Clearly., the argu-
ment Respondent raises was available to it in the rep-
resentation proceeding and there are no special cir-
cumstances excusing its failure to raise it then.
Moreover, Respondent has now presented no evi-
dence on the issue other than its unsupported asser-
tions. Those assertions do not, contrary to Respon-
dent's argument, add up to a "reasonable likelihood"
that chain voting occurred. Respondent has also pre-
sented no evidence warranting a hearing on the issue.
In summary then, all issues raised by Respondent
in this proceeding were or could have been litigated
in the prior representation proceeding, and Respon-
dent 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 would require the Board to reexamine the de-
cision made in the representation proceeding. We
therefore find that Respondent has not raised any is-
sue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the Gen-
eral Counsel's Motion for Summary Judgment.'
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a Tennessee corporation, with an office and
place of business located at Rossville. Georgia, where
it is engaged in the building of roads. Respondent,
during the calendar year preceding issuance of the
complaint, which period is representative of all times
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).
I The complaint alleges, and Respondent admits, the Union requested bar-
gaining on November 17, 1978. The complaint further alleges Respondent's
refusal to bargain on or about December 12, 1978. Respondent concedes that
on December 12. 1978, "it employed labor counsel to advise it with respect
to the validity of the underlying representation proceedings .... " Respon-
dent denies, however, that it refused to bargain on that date, rather, asserts
that it refused to bargain with the Union on February 22. 1979.
We conclude the record establishes December 12, 1978. the date alleged in
the complaint, as the date on or about which Respondent refused to bargain
with the Union in violation of Sec. 8(a{5) and (1) of the Act. Thus, as
indicated above, the Union was duly certified on November I. 1978. and
demanded bargaining on November 17. 1978. Although on December 12.
1978. Respondent undertook to secure the advice of labor counsel "with
respect to the validity" of the Union's outstanding certification and did not
formally communicate to the Union its refusal to bargain until February 22.
1979, it could not thereby lawfully postpone or excuse its statutory obliga-
tion to bargain with the duly certified representative of' its employees.
294
ROADBUILDERS. INC. OF TENNESSEE
material herein, purchased and received goods valued
in excess of $50,000 directly from suppliers located
outside the State of Georgia.
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, an
emp!oyer 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 INVOI.VED.
Teamsters Local 515, affiliated with International
Brotherhood of Teamsters Chauffeurs, Warehouse-
men & Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
1II. THE UNFAIR LABOR PRA('TIC(ES
A. The Representation Proceeding
I. 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 truckdrivers employed at Respondent's facil-
ity located at the corner of McFarland Avenue
and Salem road, Rossville, Georgia, but exclud-
ing professional, office clerical, and technical em-
ployees, supervisors, and guards as defined in the
Act.
2. The certification
On June 21, 1978, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 10, 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 November , 1978, and the Union con-
tinues 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 November 17, 1978, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about December 12, 1978, 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
December 12, 1978, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and ( 1) of
the Act.
IV. THE EFFEC(' OF 1tHE UNFAIR IABOR IPRA( I('IS
UPON (O()MMER('CE
The activities of Respondent set forth in section
Ill, above, occurring in connection with its operations
described in section 1, 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. HE 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 (I) 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 57410th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Roadbuilders, Inc. of Tennessee is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters Local 515, affiliated with Interna-
tional Brotherhood of Teamsters. Chauffeurs, Ware-
29S
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
housemen & Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All truckdrivers employed at Respondent's facil-
ity located at McFarland Avenue and Salem Road,
Rossville, Georgia, but excluding professional, office
clerical, and technical employees, supervisors and
guards as defined in the Act constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since November 1, 1978, the above-named labor
organization has been and now is the certified and
exclusive 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 December 12, 1978, 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 the Respondent,
Roadbuilders, Inc. of Tennessee, Rossville, Georgia,
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 con-
ditions of employment with Teamsters Local 515, af-
filiated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All truckdrivers employed at Respondent's facil-
ity located at the corner of McFarland Avenue
and Salem Road, Rossville, Georgia, but exclud-
ing professional, office clerical, and technical em-
ployees, supervisors and guards 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 Rossville, Georgia, facility copies of
the attached notice marked "Appendix."9 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 10, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
9 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 ro 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 Team-
sters Local 515, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, as the exclu-
sive representative of the employees in the bar-
gaining unit described 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,
296
ROADBUIDERS. INC. OF TENNESSEE
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 truckdrivers employed at our facility lo-
cated at the corner of McFarland Avenue and
Salem Road, Rossville, Georgia, hut excluding
professional, office clerical, and technical em-
ployees, supervisors and guards as defined in
the Act.
ROADBUIILDERS, INC. OF TENNESSIEE
297