The Aetna Freight Line, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1974

209 N.L.R.B. 850 (N.L.R.B. 1974)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Aetna Freight Lines, Incorporated and Fraternal
Association of Special Haulers, Local Union 100.
Case 6-CA-6836
March 26, 1974
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on July 18, 1973, by Fraternal
Association of Special Haulers, Local Union 100,
herein called the Union, and duly served on The
Aetna Freight Lines, Incorporated, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 6, issued a complaint on August 8, 1973,
against Respondent, alleging that Respondent 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
complaint alleges in substance that on June 1, 1973,
following a Board election in Case 6-RC-5456 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commenc-
ing on or about June 11, 1973, 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 August 17, 1973, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On September 13, 1973, counsel for the General
Counsel filed directly with the Board a motion for
summary judgment. Subsequently, on September 24,
1973, the Board issued an order transferring the
proceeding 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 the notice to show cause
entitled "Opposition in behalf of Employer to
General Counsel's Motion for Summary Judgment,
Responsive to Board's Notice To Show Cause."
Pursuant to the provisions of Section 3(b) of the
i Official notice is taken of the record in the representation proceeding,
Case 6-RC-5456, as the term "record" is defined in Sees. 102.68 and
102.69(f) of the Board's Rules and Regulations , Series 8, as amended. See
LTV Electrosystemr, Inc, 166 NLRB 9 8, enfd. 388 F.2d 683 (C.A. 4, 1968);
Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (C.A. 5, 1969);
Intertype Co v. Penello, 269 F.Supp. 573 (D.C Va., 1967), Follett Corp., 164
209 NLRB No. 124
Ruling on the Motion for Summary Judgment
In its answer to the complaint and its response to
the notice to show cause, Respondent attacks
determinations made in the underlying representa-
tion case. Thus, it basically contends that the
truckdrivers involved herein are not employees of
Respondent but are instead either independent
contractors or employees of independent contractors.
It further contends that the Union is not a labor
organization, that the unit is inappropriate for
collective bargaining, and that the certification
herein was invalid. In addition, Respondent states it
did not refuse to bargain and contends that a further
hearing is warranted on the employee status of the
truckdnvers because of special circumstances and
because of newly discovered and previously unavail-
able evidence, as to which it makes an offer of proof.
Our review of the record in Case 6-RC-5456
indicates that a hearing was held on the Union's
petition and on June 23, 1971, the Regional Director
issued his Decision and Direction of Election in
which he found that the truckdrivers involved were
employees of Respondent. Respondent then filed a
timely request for review in which it disputed the
Regional Director's conclusion and additionally
contended that the Union was disqualified from
representing the truckdrivers. By telegraphic order
dated August 17, 1971, the Board granted the request
for review and, on December 23, 1971, issued its own
Decision on Review 2 in which it decided these issues
adversely to Respondent.
Pursuant to a motion by the Intervenor,3 on
January 27, 1972, the Regional Director issued his
Notice of Further Hearing to receive evidence
regarding the voter eligibility of the truckdrivers and,
on September 29, 1972, issued his Supplemental
Decision, in which he fashioned a more equitable
eligibility formula. Respondent filed a request for
review, in which is contested the revision of the
eligibility formula, urged that a new showing of
interest be required, and also renewed its contentions
concerning the independent contractor status of the
truckdrivers. However, by telegraphic order dated.
NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
2 194 NLRB 740.
3 International Brotherhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America had been permitted to intervene at the preelection
hearing.
AETNA FREIGHT LINES
October 31, 1972, the Board denied the request for
review.
A mail ballot election was then conducted herein,
with ballots due to be received on December 29,
1972. The tally of ballots indicated that of approxi-
mately 333 eligible voters, 84 cast ballots for the
Union, 87 for the Intervenor, and 51 for no union.
Two ballots were void and 46-a number sufficient
to make them determinative-were challenged.
Respondent filed timely objections in which it
renewed its contentions that the truckdrivers were
not its employees. On February 28, 1973, the
Regional Director issued his Supplemental Decision
and Direction of Runoff Election, in which he
overruled Respondent's objections and resolved
certain of the challenges.
A second mail ballot election was then conducted,
with ballots due to be received on May 2, 1973. The
tally of ballots indicated that of approximately 300
eligible voters, 106 cast ballots for the Union, 70 for
the Teamsters, 25 were challenged, and I was void.
Respondent filed timely objections in which it
disputed the eligibility rules and requested reconsid-
eration of the Board's determination that the
truckdrivers were Respondent's employees. On June
1, 1973, the Regional Director issued his Third
Supplemental Decision and Certification of Repre-
sentative in which he overruled the objections and,
inasmuch as the challenges were insufficient to affect
the results of the election, certified the Union.
Thereupon, Respondent filed a timely request for
review in which it urged dismissal of the petition on
the ground that newly discovered evidence demon-
strated that the truckdrivers were not Respondent's
employees.4 However, by telegraphic order dated
July 2, 1973, the Board again denied the request for
review.
In furtherance of its contention that the Board
erred in its determination that the truckdrivers herein
are Respondent's employees, Respondent requests
further hearing, asserting that there exist both special
circumstances and newly discovered, previously
unavailable evidence. The purported special circum-
stances as well as the claim of newly discovered and
previously unavailable evidence are premised upon
the decision of the Sixth Circuit Court of Appeals in
Ace Doran Hauling & Rigging Company,5 in which
} The evidence relied on was statistical evidence of driver turnover
5 Ace Doran Hauling & Rigging Company v. N LR B., 462 F .2d 190,
modifying 191 NLRB 428 . There the court agreed with the Board 's findings
that owner-operators purportedly independent contractors were employees
of Ace Doran , but, contrary to the Board , found that multiple owner-
nondrivers were independent contractors rather than Doran's supervisors
and that nonowner-dnvers they paid were their employees rather than
Doran's.
6 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 In its answer to the complaint Respondent also denied that it refused to
851
the court concluded contrary to the Board that
multiple owner-nondrivers were independent con-
tractors and that nonowner-drivers were employees
of such independent contractors and not employees
of Doran. For the reasons detailed hereinafter, we
find no merit in these contentions.
As noted by the Respondent, the court decided Ace
Doran in June 1972, and Respondent adverted to
such decision at length both in its October 1972 and
June 1973 requests for review. The Board was aware
of that decision when it made its determination to
deny review on those occasions. In affirming the
Regional Director's finding that both owner-drivers
and nonowner-drivers were employees, the Board
concluded that the Regional Director had correctly
applied the "right of control" test to the facts of this
case. To the extent, therefore, that Respondent now
wishes to introduce additional evidence that some
owners of trucks are engaged in other businesses, we
concluded it is irrelevant to our determination here
since it is the control factors while such drivers work
for the Respondent which are determinative. Accord-
ingly, Respondent's contentions and offer of proof
are rejected.
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.6
All issues 7 raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it demonstrate that any special circumstances
exist herein which would require the Board to
reexamine the decision made in the representation
proceeding. We therefore find that the Respondent
has not raised any issue which is properly litigable in
this unfair labor practice proceeding. We shall,
accordingly, grant the motion for summary judg-
ment.
On the basis of the entire record, the Board makes
the following:
bargain with the Union However, attached to the General Counsel's
Motion for Summary Judgment are certified letters from the Union's
president dated June II and July 6, 1973. requesting bargaining, and two
responses, dated June 13 and July 11, 1973, from Respondent 's lawyer. In
its June 13 letter, Respondent declines to meet with the Union until the
Board shall have acted on Respondent 's last request for review . The July I I
letter declines to bargain "unless and until [Respondent ] is directed to do
otherwise by court mandate " In these circumstances, we find Respondent's
denial that it refused to bargain frivolous and we deem this allegation of the
complaint to be admitted and true May Department Stores, Co, 186 NLRB
86, and Carl Simpson Buick, Inc, 161 NLRB 1389.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, The Aetna Freight Lines, Incorporat-
ed, is an Ohio corporation with its principal office
located in Warren, Ohio, where it is engaged in the
transportation of special commodities. During the
12-month period immediately preceding the issuance
of the complaint, Respondent's gross volume of
business was in excess of $500,000 and, during this
same period, the Respondent transported across state
lines goods and materials valued in excess of $50,000,
including transportation of goods and materials
valued in excess of $50,000 directly from points
inside the State of Ohio to points outside the State of
Ohio.
We find, on the basis of the foregoing, that
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
Fraternal Association of Special Haulers, Local
Union 100, 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 following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All drivers, including single owner-drivers and
nonowner-dnvers of leased equipment of The
Aetna Freight Lines, Incorporated; but excluding
trip-lease drivers, multiple owner-drivers, office
clerical employees and guards, professional em-
ployees and supervisors as defined in the Act.
2. The certification
On May 3, 1973, a majority, of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 6, 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 June 1, 1973, 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 June 11, 1973, 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 June 13, 1973, 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 June 13, 1973, 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 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,
AETNA FREIGHT LINES
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. The Aetna Freight Lines, Incorporated, is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Fraternal Association of Special Haulers,
Local Union 100, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All drivers, including single owner-drivers and
nonowner-drivers of leased equipment of The Aetna
Freight Lines, Incorporated; but excluding trip-lease
drivers, multiple owner-drivers, office clerical em-
ployees and guards, professional employees 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 June 1, 1973, 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 bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about June 13, 1973, 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 ar'-oresaid 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
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
Relations Board hereby orders that Respondent, The
Aetna Freight Lines, Incorporated, 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
853
conditions of employment, with Fraternal Associa-
tion of Special Haulers, Local Union 100, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All drivers, including single owner-drivers and
nonowner-drivers of leased equipment of The
Aetna Freight Lines, Incorporated; but excluding
trip-lease drivers, multiple owner-drivers, office
clerical employees and guards, professional em-
ployees and supervisors 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Warren, Ohio, office and terminals
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the
Regional Director for Region 6, 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 6, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
8 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 Frater-
nal Association of Special Haulers, Local Union
100, as the exclusive representative of the employ-
ees in the bargaining unit described below.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
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 understanding in a signed agree-
ment . The bargaining unit is:
All drivers , including single owner -drivers
and nonowner-drivers of leased equipment
of The Aetna Freight Lines , Incorporated;
but excluding trip-lease drivers , multiple
owner-drivers, office clerical employees and
guards , professional employees and supervi-
sors as defined in the Act.
THE AETNA FREIGHT
LINES , INCORPORATED
(Employer)
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 compli-
ance with its provisions may be directed to the
Board 's Office , 1536 Federal Building , 1000 Liberty
Avenue , Pittsburgh , Pennsylvania 15222, Telephone
412-644-2977.