W. S. Hatch Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsMay 28, 1971190 N.L.R.B. 613 (N.L.R.B. 1971) Copy Citation 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. Copy with citationCopy as parenthetical citation