R.W. Harmon & Sons, Inc.

National Labor Relations Board - Board Decisions

Nov 13, 1979

246 N.L.R.B. 454 (N.L.R.B. 1979)

DECISIONS OF NATIONAL. .ABOR RELATIONS BOARD
R. W. Harmon and Sons, Inc. and Service Employees
Union Local 513, AFL-CIO. Case 17-CA 9067
November 13, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on July 18, 1979, and amended
on August 22, 1979, by Service Employees Union Lo-
cal 513, AFL-CIO, herein called the Union, and duly
served on R. W. Harmon and Sons, Inc., herein called
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 17, issued a complaint and notice of hearing
on August 22, 1979, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair 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 29, 1979, fol-
lowing a Board election in Case 17-RC-8641, 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 11, 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
September 4, 1979, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint. Respondent admits that
it meets the Board's jurisdictional standards, but de-
nies that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. It denies that the Union has been, at all times
since May 29, 1979, and is now, the exclusive repre-
sentative of all employees in the unit found appropri-
ate, but admits that on May 29, 1979. the Regional
Director for Region 17 certified the Union as the ex-
clusive collective-bargaining representative of the em-
ployees in the unit found appropriate. Respondent
admits the allegation that it refused, and continues to
I Official notice is taken of the record in the representation proceeding.
Case 17 RC 8641. as the 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 Electrosystems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th ('ir.
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.
refuse, to meet and bargain with the Union as the
collective-bargaining representative, but denies the
conclusory 8(a)(5) and () allegations. It alleges that
its operations are devoted to providing schoolbus
transportation and charter bus transportation for
public school districts in the State of Kansas and as
such, Respondent is "intimately connected" with pro-
viding public school education service. Respondent
further alleges that the terms of its contract with the
applicable school district so restricts its operations
and discretion as to preclude collective bargaining
and to make it an instrumentality of a governmental
unit of the State of Kansas and thus outside the juris-
diction of the Board.
On September 18, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September 25,
1979, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after 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 its response to
the Notice To Show Cause, Respondent attacks the
Union's certification on the basis that the Board lacks
jurisdiction over its operations.
Review of the record herein reveals that in Case
17 RC-8641 the petition was filed by the Union on
October 25, 1978. On April 20, 1979, the Regional
Director issued his Decision and Direction of Elec-
tion in which he found, inter alia, that the Employer
retained sufficient control of its employees to engage
in meaningful bargaining over conditions of employ-
ment with the Union. Accordingly, the Regional Di-
rector asserted jurisdiction over the Employer in this
matter. On or about May 2, 1979, Respondent filed a
request for review of the Regional Director's Decision
and Direction of Election, which was denied by the
Board on May 15, 1979, as it raised no substantial
issues warranting review. The election was held on
May 18, 1979. At the conclusion of the balloting, the
tally revealed that 150 votes had been cast for, and
105 votes against, the Union. There were two chal-
lenged ballots, an insufficient number to affect the
results. On May 29, 1979, the Regional Director certi-
fied the Union as the exclusive collective-bargaining
246 NLRB No. 74
454
R. W. HARMON AND SONS. INC(',
representative of the employees in the unit found ap-
propriate.
Following a request by the Union on or about June
11, 1979, that Respondent engage in collective-bar-
gaining negotiations with the Union, Respondent, by
letter dated June 15, 1979, refused to recognize and
bargain in good faith with the Union as the exclusive
bargaining representative of its employees in the cer-
tified unit.
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.'
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding,3 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.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FAC'I
1. THE BUSINESS OF RESPONDI)ENT
Respondent is a Missouri corporation engaged in
providing schoolbus transportation and related char-
ter services to public school districts, including four
facilities providing such services to Unified School
District 259 in Wichita, Kansas, as well as a public
charter service. In the course of its business opera-
tions within the State of Kansas, Respondent annu-
ally purchases goods and services valued in excess of
$50,000 directly from sources located outside the
State of Kansas, and annually derives gross revenues
in excess of $250,000.
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
2See 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(g).
in its response to the Notice To Show Cause, Respondent also argues, for
the first time, that the Board improperly altered its jurisdictional tests as the
result of an adjudicative proceeding in National Transportation Service. Inc.,
240 NLRB 565 (1979). Respondent contends that the issue should have been
the subject of a "rule-making" procedure pursuant to Sec. 6 of the Act and
sec. 4 of the Administrative Procedure Act. We find no merit to Respon-
dent's contention.
of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. IF [ARt)R ()R(iNIAIION IN()I Viil)
Service Employees Union Local 513. AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
1. THE UNFAIR I.AB()R PRA('II(CES
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(h) of the Act:
All full-time and regular part-time drivers of ve-
hicles transporting students of Unified School
District 259 to and from schools and to and from
school related activities, and charter drivers em-
ployed by R. W. Harmon and Sons. Wichita,
Kansas, EXCLUDING office clerical employ-
ees, mechanics, and guards and supervisors as
defined in the Act, and all other employees.
2. The certification
On May 18, 1979. 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 17, 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 29, 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 Re/iisal
Commencing on or about June 11, 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 15, 1979, and continuing at all times thereafter
to date, Respondent has refused, and continues to re-
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 15, 1979, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
455
DECISIONS OF NATIONAL LABOR REL.ATIONS BOARD
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 (I) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON C'OMMER('E
The activities of Respondent set forth in section
III, 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 REM.I)Y
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/h/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
I. R. W. Harmon and Sons, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Service Employees Union Local 513, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time drivers of ve-
hicles transporting students of Unified School District
259 to and from schools and to and from school-re-
lated activities, and charter drivers employed by
R. W. Harmon and Sons, Wichita, Kansas, excluding
office clerical employees, mechanics, and guards and
supervisors as defined in the Act, and all other em-
ployees, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
4. Since May 29, 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 15, 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 the Respondent,
R. W. Harmon and Sons, Inc., Wichita, Kansas, 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 con-
ditions of employment with Service Employees Union
Local 513, AFL-CIO, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All full-time and regular part-time drivers of ve-
hicles transporting students of Unified School
District 259 to and from schools and to and from
school related activities, and charter drivers em-
ployed by R. W. Harmon and Sons, Wichita,
Kansas, EXCLUDING office clerical employ-
ees, mechanics, and guards and supervisors as
defined in the Act, and all other employees.
(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:
456
R. W. HARMON AND SONS. INC.
(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 Wichita, Kansas, place of business
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the Re-
gional Director for Region 17, 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER PENELLO, dissenting:
I would not assert jurisdiction over Respondent, in-
asmuch as its schoolbus operations are intimately
connected with the activities of a governmental entity
that is statutorily exempt from our jurisdiction. See
the dissenting opinion in National Transportation Ser-
vice, Inc., 240 NLRB 565 (1979). Accordingly, I
would deny the General Counsel's Motion for Sum-
mary Judgment, and I would dismiss the complaint in
its entirety.
4In 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
NOTI(E 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 Ser-
vice Employees Union Local 513, AFL-CIO, as
the exclusive representative of the employees in
the bargaining 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,
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 full-time and regular part-time drivers of
vehicles transporting students of Unified
School District 259 to and from schools and to
and from school related activities, and charter
drivers employed by R. W. Harmon and Sons,
Wichita, Kansas, EXCLUDING office clerical
employees, mechanics, and guards and super-
visors as defined in the Act, and all other em-
ployees.
R. W. HARMON AND SONS, INC.
457