W. S. Hatch Co., Inc.

National Labor Relations Board - Board Decisions

May 28, 1971

190 N.L.R.B. 613 (N.L.R.B. 1971)

W S HATCH CO.
W. S. Hatch Co ., Inc. and General Truckdrivers,
Warehousemen , Helpers & Automotive Employees,
Local 315 , International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America . Case 20-CA-6493
May 28, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Upon a charge filed on December 23, 1970, by Gen-
eral Truckdrivers, Warehousemen, Helpers & Au-
tomotive Employees, Local 315, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, and duly
served on W. S. Hatch Co., Inc., herein called the
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for Re-
gion 20, issued a complaint on January 26, 1971,
against Respondent, alleging that Respondent had en-
gaged 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 Exam-
iner were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on November 18, 1970,
following a Board election in Case 20-RC-9441, 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 8, 1970, and at all times there-
after, Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the Un-
ion has requested and is requesting it to do so. On
February 5, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint' and alleging as a "Sepa-
rate and Further Defense" that no duty to bargain has
' Official notice is taken of the record in the representation proceeding,
Case 20-RC-9441, as the term "record" is defined in Secs 102 68 and
102 69 (t) 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,
1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co. 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
' The Respondent 's answer to the complaint neither admits, denies, nor
seeks to explain the first six allegations of the complaint relating to the filing
and service of the charge, the Respondent's business operations, the Board's
jurisdiction, the Union 's status as a labor organization , and the status of
Samuel L Holmes as an agent of the Respondent, as well as the allegations
of request and refusal to bargain Inasmuch as the Respondent has neither
admitted , denied, nor explained these allegations of the complaint , we shall,
pursuant to the provisions of Sec 102 20 of the Board 's Rules and Regula-
tions, Series 8, as amended , deem these allegations to be admitted
190 NLRB No. 122
613
arisen because no bargaining representative has been
lawfully certified.
On March 18, 1971, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, with documents attached thereto and incor-
porated therein. The General Counsel submits, in
effect, that the Respondent has raised no issue which
was not previously raised and decided by the Board in
the representation proceeding in Case 20-RC-9441
and that there are no issues of fact or law requiring a
hearing in the instant proceeding. He, therefore, moves
that the Board find that the Respondent has violated
Section 8(a)(5) and (1) of the Act and issue a Decision
and Order in conformity with the allegations of the
complaint. Subsequently, on March 24, 1971, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a response
to Notice To Show Cause, called Affidavit in Response,
with a memorandum in opposition to Motion for Sum-
mary Judgment.
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 powers
in connection with 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
The Respondent's answer to the complaint denies
the validity of the Union's certification, and by its re-
sponse to the Notice To Show Cause the Respondent
contends, in effect, that the Regional Director and the
Board erred in vacating the Stipulation for Certification
Upon Consent Election, nullifying the first election,
and conducting a second election. We find no merit in
the Respondent's position.
The record in Case 20-RC-9441 reflects that, pursu-
ant to a Stipulation for Certification Upon Consent
Election approved by the Acting Regional Director, an
election by secret manual ballot was conducted in the
stipulated unit on August 10, 1970. As only 7 of the 13
eligible employees were able to vote and as the Regional
Director found that a substantial number of the re-
maining eligible employees were prevented by the Re-
spondent's work assignments from voting in the elec-
tion, the ballots were impounded and not counted. The
Respondent was requested, but it refused, to amend the
Stipulation to permit the remaining eligible employees
to vote by mail ballot. Finding that a substantial num-
ber of eligible employees did not have the opportunity
to vote and following Board policy to certify election
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
results only when a representative number of em-
ployees are able to vote, the Acting Regional Director,
on August 19, issued an Order Declaring Election a
Nullity, Order Rescinding Approval of Stipulation for
Certification Upon Consent Election, and Notice of
Hearing.
By letter of August 21, addressed to the National
Labor Relations Board, Region 20, the Respondent's
counsel argued in substance that the Stipulation did not
permit, and neither the Regional Director nor the
Board had authority to permit, the Stipulation to be
amended so as to provide for a continuation of the
election with a change in balloting procedure for some
employees once the election had been concluded in
accordance with the provisions of the Stipulation. He
demanded, therefore, that the ballots be counted and
the results certified according to law and Board proce-
dures. This letter was forwarded to the Board by the
Region, as having been intended for the Board. Treat-
ing the letter as a Request for Review of the Acting
Regional Director's order of August 19, the Board, on
August 26, denied the request without prejudice to
renew the contention in the representation hearing
scheduled for September 3.
After the hearing, the Regional Director, on Septem-
ber 25, issued a Decision and Direction of Election in
which, after considering the Respondent's contention
that the Acting Regional Director lacked authority to
rescind the approval of the Stipulation and to declare
the election a nullity, he approved, for the reasons given
by the Acting Regional Director, the order of August
19 and directed a new election by mail ballot. In the
mail election by secret ballot, conducted between Octo-
ber 26 and November 2, the tally of ballots reflected
that of the 13 eligible voters, 8 voted for, and 4 against,
the Union and there were no challenged ballots.
On or about November 11, the Respondent filed a
Petition for Order Direction Regional Director To
Tally and Certify Results of Election. In the petition,
the Respondent contended that the August 19 order
setting aside the first election of August 10 was a nullity
since it was beyond the Regional Director's authority
to issue and that, under Section 102.62 of the Board's
Rules and Regulations, only the Board can determine
issues raised in an election conducted pursuant to a
Stipulation for Certification Upon Consent Election.
The Respondent argued, therefore, that the August 10
election was valid and urged the Board to direct the
Regional Director to certify the results therein and to
set aside the second election. On November 18, the
Board denied the Respondent's petition as lacking in
merit and the Regional Director then issued a Certifica-
tion of Representative certifying the Union as the ex-
clusive representative of all employees in the appropri-
ate unit.
In its response to the Notice To Show Cause, the
Respondent not only reiterates in effect all the conten-
tions and arguments raised and considered in the repre-
sentation case, 20-RC-9441, but also raised alleged
factual and legal issues. As to the factual issues, the
Respondent now offers to prove, with respect to the
alleged validity of the August 10 election, that (1) "of
eleven [sic] employees unquestionally eligible to vote,
only two can be claimed to have been deprived of an
opportunity to vote by reason" of the Respondent's
action; (2) in a previous manual ballot election among
the unit employees, fewer than all employees had the
opportunity to vote but that election was not chal-
lenged; and (3) the Union filed no challenge to the first
election herein. We do not consider the aforesaid offers
of proof as newly discovered or previously unavailable
evidence warranting relitigation of the issues respecting
the August 10 election, and no special circumstances
have been alleged. Further, we agree with both the
Acting Regional Director and the Regional Director
that the election of August 10 was properly set aside
because a substantial number of eligible employees did
not have the opportunity to vote.
The legal issues raised, which concern the contrac-
tual aspects of the Stipulation for Certification Upon
Consent Election, the alleged invalidity of the second
election under Section 9(c)(1) and (4) of the Act, and
the Regional Director's alleged violation of Section
102.69 of the Board's Rules and Regulations, deal basi-
cally with the Regional Director's authority and were
previously considered and determined in the underly-
ing representation case. The Respondent also argues
that the second election, conducted within 12 months
of the first election on August 10, is invalid under
Section 9(c)(3) of the Act. Since Section 9(c)(3) applies
only when there has been a valid election within the
preceding 12 months, it is inapplicable where, as here,
the first election had been previously set aside and de-
clared to be a nullity. Finally, we find no merit in the
Respondent's contention that the Board has no au-
thority to hear or grant a Motion for Summary Judg-
ment, as the Board's authority to utilize summary judg-
ment procedures, where there are no material issues of
fact or law warranting a hearing, is well established and
the Board has exercised these powers on numerous
occasions.'
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances a respondent in a proceeding alleging a
violation of Section 8(a)(5) is not entitled to relitigate
' Holly Farms Poultry Industries, Inc., 189 NLRB No 100, and cases
cited in fn 5, see also Management Food Systems, Division of Stouffer Foods
Corporation, 188 NLRB No. 79, Alterman Transport Lines, Inc, 187
NLRB No 144, Union Carbide Car, be, Inc, 173 NLRB No 131, and Sec.
102 50 of the Board's Rules and Regulations , Series 8, as amended
W.S. HATCH CO.
issues which were or could have been litigated in a prior
representation proceeding.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation proceeding, and the Respondent 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 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 prop-
erly litigable in this unfair labor practice proceeding.
We shall, accordingly, 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 THE RESPONDENT
Respondent, a Utah corporation with a place of busi-
ness located in Pittsburg, California, is a common car-
rier engaged in the transportation of products by truck.
During the past year, in the course and conduct of
its business operations, Respondent received gross
revenue in excess of $50,000 for transporting products
in interstate commerce.
We find, on the basis of the foregoing, that Respond-
ent is, and has been at all times material herein, an
employer engaged in commerce with the meaning of
Section 2(6) and (7) of the Act, and that it will effectu-
ate the policies of the Act to assert jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
General Truckdrivers, Warehousemen, Helpers &
Automotive Employees, Local 315, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America 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 consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All truck drivers employed by Respondent at its
Pittsburg, California terminal, excluding all other
employees, guards and supervisors as defined in
the Act.
' See Pittsburgh Plate Glass Co. v NL.R.B., 313 U S. 146, 162 (1941),
Rules and Regulations of the Board , Secs . 102 67 (f) and 102 69(c)
2. The certification
615
On November 4, 1970, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Direc-
tor for Region 20, designated the Union as their repre-
sentative for the purpose of collective bargaining with
the Respondent. The Union was certified as the collec-
tive-bargaining representative of the employees in said
unit on November 18, 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 December 1, 1970, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on or
about December 8, 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 representative for collective bar-
gaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
December 8, 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, Respondent 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 operations de-
scribed 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 commerce.
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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate 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. W. S. Hatch Co., Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. General Truckdrivers, Warehousemen, Helpers &
Automotive Employees, Local 315, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act.
3. All truck drivers employed by Respondent at its
Pittsburg, California terminal, excluding all other em-
ployees, guards and supervisors as defined in the Act
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act.
4. Since November 18, 1970, the above-named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about December 8, 1970, 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 Respond-
ent 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, Respondent
has interfered with, restrained, and coerced, and is in-
terfering with, restraining, and coercing, employees in
the exercise of the rights guaranteed to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing 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 meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, W. S. Hatch
Co., Inc., 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 General Truckdrivers, Ware-
housemen, Helpers & Automotive Employees, Local
315, International Brotherhood of Teamsters, Chau-
ffeurs, Warehousemen and Helpers of America as the
exclusive bargaining representative of its employees in
the following appropriate unit:
All truck drivers employed by Respondent at
its Pittsburg, California terminal, excluding
all other employees, guards and supervisors
as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights guaran-
teed 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its Pittsburg, California, terminal copies
of the attached notice marked "Appendix."5 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 20, after being duly signed by Respond-
ent's representative, shall be posted by Respondent im-
mediately 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 al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, 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 "
W.S HATCH CO.
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 General
Truckdrivers, Warehousemen, Helpers & Au-
tomotive Employees, Local 315, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America 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 Sec-
tion 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 employ-
617
ment, and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All truck drivers employed by Respondent
at its Pittsburg, California terminal, exclud-
ing all other employees, guards and super-
visors as defined in the Act.
W. S. HATCH CO., INC.
(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 compliance
with its provisions may be directed to the Board's
Office, 13050 Federal Building , Box 36047, 450 Golden
Gate Avenue, San Francisco, California 94102, Tele-
phone 415-556-3197.