Staiman Brothers

National Labor Relations Board - Board Decisions

Mar 25, 1971

189 N.L.R.B. 314 (N.L.R.B. 1971)

314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Staiman Brothers and Local Union No. 764, an
Affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America (Ind.). Case 4-CA-5307
March 25, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
Upon a charge filed on July 27, 1970, by Local
Union No. 764 an affiliate of the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (Ind.), herein called the
Union, and duly served on Staiman Brothers, herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 4, issued a complaint on August
25, 1970, 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 a
Trial Examiner 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 April
20, 1970, following a Board election in Case
4-RC-8552 the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate; i
and that, commencing on or about May 5, 1970, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is
requesting it to do so. On September 8, 1970,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in the
complaint.
On November 5, 1970, the Union filed with the
Regional Director a Motion for Summary Judgment,
contending that on the contents of the Respondent's
answer, the allegations of the complaint should be
deemed to be admitted, and requesting that a Trial
Examiner's Decision and Recommended Order be
issued. Subsequently, the Regional Director referred
the Union's motion to the Chief Trial Examiner for
ruling, and on November 16, 1970, the Chief Trial
Examiner referred the Union's motion to the Board.
In the interim, on November 9, 1970, the General
i Official notice is taken of the record in the representation proceeding,
Case 4-RC-8552, as the term "record" is defined in Secs 102 68 and
102 69 (f) of the Board's Rules and Regulations. Series 8, as amended See
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4,
Counsel filed his Motion for Summary Judgment,
alleging that the Respondent's answer to the com-
plaint raised no issues which were not raised and
decided in Case 4-RC-8552, and praying the Board to
grant the Motion for Summary Judgment. Thereafter,
on November 19, 1970, the Respondent filed with the
Board an opposition to the motions filed by the
General Counsel and the Union, accompanied by a
Cross Motion for Summary Judgement. Subsequent-
ly, on November 25, 1970, the Board issued an Order
Transferring Proceeding to the Board and a Notice
To Show Cause why the General Counsel's and the
nion's Motions for Summary Judgment should not be
granted. Respondent thereafter filed a brief in support
of its prior Opposition and Cross Motion for
Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
Upon the entire record in this proceeding, the Board
makes the following:
RULING ON THE MOTIONS FOR SUMMARY
JUDGMENT
In its opposition to the Motions for Summary
Judgment filed by the General Counsel and the
Union, the Respondent contends that it is entitled as
a matter of due process to an evidentiary hearing to
allow the introduction of evidence concerning
Clifford Mitchelltree, whose ballot was determinative
of the results of the election conducted on March 16,
1970, and who was subsequently determined by the
Regional Director to be an eligible voter. In support
of this contention the Respondent advances the same
allegations and arguments which it proffered to the
Regional Director and the Board in the underlying
representation case, and the Respondent additionally
avers that it has newly discovered evidence bearing
on Mitchelltree's status on the eligibility date and the
date of the election.
Upon the record before us, including the record in
Case 4-RC-8552, we find no merit in the
Respondent's contention. The election in the repre-
sentation case was conducted pursuant to an Agree-
ment for Consent Election, and upon conclusion of
the election the parties were served with a tally of
ballots which reflected that of approximately 36
eligible voters, 35 cast ballots, of which 17 were cast
for and 17 against the Union, and the ballot of
Clifford Mitchelltree was challenged by the Board
1968), Golden Age Beverage Co, 167 NLRB 151 /ntert)peCo v Penello,
269 F Supp 573 (D C Va , 1967), Follett Corp, 164 NLRB 378, enfd 397
F 2d 91 (C A 7. 1968), Sec 9(d) of the NLRA
189 NLRB No. 44
STAIMAN BROTHERS 315
agent on grounds that Mitchelltree's name did not
appear on the eligibility list.
Inasmuch as Mitchelltree's ballot was determina-
tive of the results of the election, the Regional
Director conducted an investigation and on April 10,
1970, he issued and caused to be served on the
parties his Report on Challenged Ballot. In his report
the Regional Director determined, contrary to the
contentions of the Respondent, that Mitchelltree was
employed on both the eligibility date and the date of
the election and, accordingly, was eligible to partici-
pate in the election. Having determined that Mit-
chelltree was an eligible employee, the Regional
Director directed that Mitchelltree's ballot be opened
and counted. A revised tally of ballots served on the
parties on April 17, 1970, reflected that a majority of
the valid votes had been cast in favor of the Union,
and on April 20, 1970, the Regional Director
certified the Union as the collective-bargaining
representative of the employees in the unit herein
found appropriate.
In a brief in support of its request to appeal which
was filed on April 24, 1970, the Respondent
reiterated the various contentions advanced to the
Regional Director during the course of the investiga-
tion on Mitchelltree's eligibility status, and addition-
ally contended that Mitchelltree had terminated his
employment by filing for social security benefits.
Treating the Respondent's brief as a motion for
reconsideration, the Regional Director considered
the Respondent's several allegations and arguments
concerning Mitchelltree's status, and on May 8, 1970,
issued a supplemental report in which he denied the
Motion for Reconsideration. Thereafter, on May 13,
1970, the Respondent filed with the Board a request
for a 10-day extention of time in which to file an
appeal to the Regional Director's denial of the
Respondent's Motion for Reconsideration. On May
14, 1970, the Board denied the Respondent's request
on grounds that the election in Case 4-RC-8552 was
conducted pursuant to an Agreement for Consent
Election and, accordingly, the Board would not
entertain an appeal from the Regional Director's
determinations.
In its response and Cross Motion for Summary
Judgment the Respondent again raises all of the
contentions and arguments which it raised in the
underlying representation case, and which were
previously decided by the Regional Director. In
addition the Respondent contends that through
access to the Board's subpena powers in the instant
unfair labor practice proceeding, it now has available
evidence pertaining to Mitchelltree's application and
subsequent award of disability benefits by the Social
= See Pittsburgh Plate Glass Co v NLRB , 313 U S 146, 162 (1941),
Rules and Regulations of the Board. Secs 102 67(f) and 102 69(c)
Security Administration. However, contrary to the
Respondent's assertion, we do not consider its
proffer of the information concerning Mitchelltree's
application and award of social security benefits to
constitute newly discovered or previously unavaila-
ble evidence. This issue was raised by the Respon-
dent in the representation case, and was considered
and rejected by the Regional Director in his
Supplemental Report denying the Respondent's
Motion for Reconsideration.
It is well settled that in the absence of newly
discovered 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.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding. Respondent does
not allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. The
election in Case 4-RC-8552 was conducted under
the terms of an Agreement for Consent Election,
pursuant to which the parties agreed that the
determinations of the Regional Director upon any
question raised by any party, relating in any manner
to the election, would be final and binding. We find
no evidence to sustain the Respondent's allegation
that the Regional Director's determinations on
Mitchelltree's status were arbitrary or capricious.3
We, therefore, find that the Respondent has not
raised any issue which is properly litigable in this
unfair labor practice proceeding. We shall, accord-
ingly, grant the General Counsel's and Union's
Motions for Summary Judgment, and deny the
Respondent's Cross Motion.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times
material herein, a corporation duly organized under,
and existing by virtue of, the laws of the Common-
wealth of Pennsylvania, and is engaged in the
purchasing and selling of sundry scrap materials at
its Williamsport, Pennsylvania, facility. During the
past year, the Respondent, in the course and conduct
of its business operations, sold and shipped products
valued in excess of $50,000 to customers located
outside the Commonwealth of Pennsylvania.
We find, on the basis of the foregoing, that
I M,uhnorh, Uieda, d/b/a Udaco Manufacturing Company, 164 NLRB
700
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 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 Union No. 764, an affiliate of the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Ind.), is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The parties have agreed and we find that the
following employees of the Respondent constitute a
unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All employees of Staiman Brothers, Williamsport,
Pennsylvania, including over-the-road and local
truckdrivers, crane operators, baler operators,
burners, warehousemen, mechanics, yardmen and
weighmasters, and laborers, but excluding fore-
men, watchmen, janitors, office clerical employ-
ees, guards and supervisors as defined in the Act.
2. The certification
On March 16, 1970, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted, pursuant to an Agreement for Consent
Election, under the supervision of the Regional
Director for Region 4 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on April 20, 1970, 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 May 1, 1970, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about May 5, 1970, and continuing at
all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since May 5, 1970, 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, Respon-
dent has engaged 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 the Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing 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
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Staiman Brothers is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local Union No. 764, an affliliate of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Ind.), is a
labor organization within the meaning of Section
2(5) of the Act.
3. All employees of Staiman Brothers, Williams-
port, Pennsylvania, including over-the-road and local
STAIMAN BROTHERS 317
truckdrivers, crane operators, baler operators, bur-
ners, warehousemen, mechanics, yardmen and
weighmasters, and laborers, but excluding foremen,
watchmen, janitors, office 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 April 20, 1970, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive argaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about May 5, 1970, 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 practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
in 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.
(b) In any like or related manner interfering with,
restraining, or coercing employees in 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 Williamsport, Pennsylvania, facility
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 4, 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
+ 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 be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD"
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Staiman Brothers, 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 Union No. 764, an affiliate
of the International Brotherhood of Teamsters
Chauffeurs, Warehousemen and Helpers of America
(Ind.), as the exclusive bargaining representative of its
employees in the following appropriate unit:
All employees of Staiman Brothers, Williams-
port, Pennsylvania, including over-the-road and
local truckdrivers, crane operators, baler opera-
tors, burners, warehousemen, mechanics, yardmen
and weighmasters, and laborers, but excluding
foremen, watchmen, janitors, office clerical em-
ployees, guards, and supervisors as defined in the
Act.
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
Union No. 764, an affiliate of the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America (Ind.), 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 representative of all
317A DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the bargaining unit described below,
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and if
an understanding is reached, embody such under-
standing in a signed agreement . The bargaining
unit is:
All employees of Staiman Brothers, Wil-
liamsport, Pennsylvania, including over-the-
road and local truckdrivers, crane operators,
bailer operators, burners, warehousemen,
mechanics, yardmen, and weighmasters, and
laborers, but excluding foremen, watchmen,
janitors, office clerical employees, guards and
supervisors as defined in the Act.
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 1700 Bankers Security Building, Walnut &
Juniper Streets, Philadelphia, Pennsylvania 19107,
Telephone 215-597-7601.
STAIMAN BROTHERS
(Employer)