B. F. Goodrich Co.

National Labor Relations Board - Board Decisions

Jul 28, 1980

250 N.L.R.B. 1139 (N.L.R.B. 1980)

B. F. GOODRICH COMPANY
B. F. Goodrich Company and Industrial Personnel
Corporation and General Drivers and Helpers
Local Union 823, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 16-
CA-8925
July 28, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI.LO, AND
TRUESDALE
Upon a charge filed on February 1, 1980, by
General Drivers and Helpers Local Union 823, af-
filiated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served
on B. F. Goodrich Company and Industrial Per-
sonnel Corporation, herein called Respondents,
Goodrich, or IPC, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 16, issued a complaint on March
12, 1980, against Respondents, alleging that Re-
spondents have engaged in and were 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December
31, 1979, following a Board election in Case 16-
RC-8003, the Union was duly certified as the ex-
clusive collective-bargaining representative of em-
ployees employed by Respondents as joint employ-
ers in the unit found appropriate;2 and that, com-
mencing on or about December 31, 1979, and at all
times thereafter, Respondents have refused, and
continue to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting them to do so. On March 18 and 21,
1980, Respondents filed their answers to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
I The complaint erroneously refers to the Union as General Drivers
and Helpers Local Union 828, rather than as General Drivers and Help-
ers Local Union 823. On April 8, 1980, an erratum to the complaint was
issued which corrected this error
Official notice is taken of the record in the representation proteed-
ing, Case 16-RC-8003. 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 Electrosystem. Inc., 166 NL RB 938 (1967), enfd 388 F. 2d 683
(4th Cir 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir 1969); Interryps Co v. Penello. 269 F.Supp. S73
(DC Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd 397 F 2d 91
(7th Cir 1968)}; Sec 9(d) of the NLRA, as amended
250 NLRB No. 119
On April 28, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on May 1,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Thereafter,
Goodrich filed a memorandum in opposition to the
General Counsel's Motion for Summary Judgment,
and IPC filed a response to Notice To Show Cause
and memorandum in support thereof.
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
Goodrich is engaged in the manufacture of tires
and other products. IPC is engaged in operating
tractor trailer vehicles owned or leased by custom-
ers. Since November 1978, IPC has provided such
services for Goodrich at a Tulsa, Oklahoma, loca-
tion. On November 11, 1978, IPC and the Union
entered into a collective-bargaining agreement
which was to expire May 22, 1980, covering 12
drivers employed at the Tulsa facility. On August
24, 1979, the Union filed its representation petition
seeking certification as the collective-bargaining
representative of these employees and naming both
Goodrich and IPC as the Employer.
In its answer to the complaint, Goodrich admits
it has informed the Union it will not bargainwith it,
but denis the validity of the Union's certification.
Specifically, Goodrich denies it is either an em-
ployer or a joint employer with IPC of the em-
ployees in the unit which the Union was certified
to represent. Goodrich also denies that on or about
December 31, 1979, the Union requested bargain-
ing.3 IPC, in its answer, admits it is an employer of
' Goodrich alleges in its answer that it is without knowledge concern-
ing the truth of the complaint's jurisdictional allegations regarding IPC,
and is without knowledge whether IPC was served with the charge in
this proceeding However. service of the charge on Goodrich as a joint
employer with IPC constitutes service on IPC. Ref-Chernm Company and
El Paso Products Co.. Individually and as Co-Employers, 169 NLRB 376
(1968), and IPC in its answer admits the jurisdictional allegations con-
cerning it Goodrich also alleges that it is without knowledge of the
status of the Union as a labor organization within the meaning of Sec
2(5) of the Act. and of the appropriateness of the unit determined to he
appropriate by the Acting Regional Director. Goodrich. however. both
participated in the representation hearing in Case It-RC 8003 and has
stipulated that the Union is a labor organization within the meaning of
Sec 2(5) of the Act. Goodrich further alleges it is without knowledge
that on December 6. 1979, the Union became the exclusive collectise-har-
gaining representative of employees in the appropriate unit through a
Board-conducled electionl and that IPC has refused to bargain with the
Union In this regard. the General Counsel has attached to the Motion
Continued
1139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees in the unit, but denies that it pro-
vides labor services for, or is a joint employer
with, Goodrich. 4 IPC also denies that it was
served with the charge in this proceeding, that the
Union has requested bargaining, that neither it nor
Goodrich has refused to bargain with the Union,
and that the Union is the exclusive collective-bar-
gaining representative of its employees in an appro-
priate unit. 5 In its response to the Notice To Show
Cause, IPC additionally argues that the Union's
representation petition in Case 16-RC-8003 did not
raise a question concerning representation, and that
it has bargained, and is continuing to bargain, with
the Union. IPC requests a hearing to determine
whether it has breached its bargaining obligation.
A review of the record reveals that on Septem-
ber 18, 1979, a hearing was conducted in Case 16-
RC-8003 to determine whether Goodrich and IPC
were joint employers of the employees in the unit
the Union sought to represent, and whether the
election was barred by an existing collective-bar-
gaining agreement between IPC and the Union
covering these employees. On October 26, 1979,
the Acting Regional Director for Region 16 issued
a Decision and Direction of Election in which he
found that there was no bar to the election and
that Goodrich and IPC were joint employers. 6 On
November 8, 1979, Goodrich and IPC filed re-
quests for review of the Decision and Direction of
Election which were denied by the Board on No-
vember 28, 1979. 7 Thereafter, on December 6,
1979, an election was conducted pursuant to the
Decision and Direction of Election, in which the
eight employees who voted cast ballots for the
Union. 8
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
for Summary Judgment a tally of ballots and certification of conduct of
election signed by W. W. Allport for both Goodrich and IPC. Also at-
tached to the Motion for Summary Judgment is a letter from IPC to the
Union dated January 23, 1980, discussed infra, denying that IPC and
Goodrich are joint employers.
IPC denies in its answer that Goodrich and IPC are joint employers
engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act
IPC admits that it is itself engaged in interstate commerce, and that
Goodrich is engaged in manufacturing and had during the past 12 months
shipped goods in excess of $50,000 directly to customers located outside
Ohio, its principal place of business. We therefore deem IPC's denial as a
denial of joint employer status.
b IPC alleges in its answer it is without knowledge of certain jurisdic-
tional information alleged concerning Goodrich. Goodrich has admitted
this information.
6 In reaching these conclusions the Acting Regional Director relied in
part on General Box Company, 82 NLRB 678 t1949); Floyd Epperson and
United Dairy Farmers Inc., 202 NLRB 23 (1973).
7 A motion for reconsideration filed by IPC on December 12, 1979.
was denied on December 27. 1979
6 The election was a mail ballot election. The ballots vere mailed on
November 21, 1979, and counted on December 6, 1979
to relitigate issues which were or could have been
litigated in a prior representation proceeding."
Both Respondents deny that the Union has re-
quested bargaining. Although the General Counsel
has presented no evidence of such a request, it has
attached to the Motion for Summary Judgment
copies of two letters to the Union in which Re-
spondents state that Goodrich is not an employer
of employees in the unit which the Union was cer-
tified to represent. In one letter, dated January 17,
1980, Goodrich informed the Union it had no duty
to bargain with it because Goodrich believed the
Acting Regional Director's findings concerning its
joint employer status were erroneous. In the other
letter, dated January 23, 1980, IPC responded to a
grievance filed by the Union which named IPC
and Goodrich as joint employers. IPC stated that it
would process the grievance "in its capacity as [the
grievant's] sole employer." (Emphasis supplied.) On
the basis of these letters we find that the Respond-
ents placed the Union on notice that a request for
bargaining by the Union would have been futile
and was therefore unnecessary. 1 0 Furthermore,
each letter constitutes a refusal to bargain on the
part of both Respondents for which each is jointly
and severally liable.1 We therefore find without
merit IPC's argument that it has not refused to bar-
gain with the Union because it has at all times bar-
gained with it on an individual basis. Also without
merit is IPC's denial that it was served with the
charge in this proceeding. Goodrich admits in its
answer that Goodrich was served with the charge,
and service on one joint employer constitutes serv-
ice on the other. ' 2
All issues raised by Respondents in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and the Respondents do
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor do
they allege that any special circumstances exist
herein which would require the Board to reexa-
mine the decision made in the representation pro-
ceeding. We therefore find that Respondents have
not raised any issue which is properly litigable in
this unfair labor practice proceeding. Accordingly,
we shall deny IPC's request for a hearing and
grant the Motion for Summary Judgment.
9 See Pittsburgh Plate Glass Co. s L. R.B.. 313 US. 146, 162 (1941);
Rules and Regulations of the Board. Secs. 10)267(f) and 102.69(c)
"' GAF Corporarion. 218 NLRB 265 (1975)
I t is well settled that joint bargaining entities. whether employers or
unions, are treated by the Board as single de jure entities, and that the
conduct and knowledge of one is imputed to the other U. S. Pipe &
Foundrv Company and Winfrvy intrerprsev, Inc , 247 NL.RB No. 12
(1980). Thus. IPC's denial of Goodrich's status as an employer is equiva-
lent to a statement by Goodrich that it has no duty to bargain with the
Union. Such a statement by Goodrich violates Sec 8(a)(5) of the Act.
I2 Rj-'Chem Company and El Palo Product Co., supra at fn 3
1140
H F. GOODRICH COMPANY
On the basis of the entire record, the Board
makes the following:
FINDINGS oF FACT
I. THI BUSINESS OF RESPONDENTS
B. F. Goodrich Company is a New York corpo-
ration with its principal place of business in Akron,
Ohio, where it is engaged in the manufacture and
sale of tires, tire products, chemicals, and industrial
products. During the past 12 months it has shipped
goods valued in excess of $50,000 directly to cus-
tomers located outside the State of Ohio.
Industrial Personnel Corporation is a West Vir-
ginia corporation operating in Tulsa, Oklahoma,
where it is engaged in providing labor services.
During the past 10 months it has derived in excess
of $50,000 in gross revenue from said Tulsa busi-
ness for providing driver services as a direct link in
interestate commerce.
We find, on the basis of the foregoing, that Re-
spondents are, and have been at all times material
herein, employers 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 INVOI.VED
General Drivers and Helpers Local Union 823,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondents consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All truck drivers employed from the Joint
Employers' Tulsa, Oklahoma, terminal, exclud-
ing clerks, dispatchers, all other employees and
supervisors as defined in the Act.
2. The certification
On December 6, 1979, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 16, designated the
Union as their representative for the purpose of
collective bargaining with Respondents. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on Decem-
ber 31, 1979, and the Union continues to be such
exclusive representative within the meaning of Sec-
tion 9(a) of the Act.
B. The Request To Bargain and Re.spondent's
Refusal
Commencing on or about January 17, 1980, and
continuing at all times thereafter to date, Respond-
ents have refused, and continue to refuse, to recog-
nize and bargain with the Union as the exclusive
representative for collective bargaining of all em-
ployees in said unit.
Accordingly, we find that Respondents have,
since January 17, 1980, 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, Re-
spondents have engaged in and are engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondents set forth in section
III, above, occurring in connection with their oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. 'THE RFMI I)Y
Having found that Respondents have engaged in
and are engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act,
we shall order that they cease and desist therefrom,
and, upon request, bargain collectively with the
Union as the exclusive representative of all em-
ployees in the appropriate unit, and, if an under-
standing is reached, embody such understanding in
a signed agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondents com-
mence to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
1141
DI:CISIONS O()F NATIONAL LA1OR RELATIONS BOARD
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCL.USIONS OF LAW
I. B. F. Goodrich Company and Industrial Per-
sonnel Corporation are employers engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. General Drivers and Helpers Local Union
823, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All truck drivers employed from the Joint
Employers' Tulsa, Oklahoma, terminal, excluding
clerks, dispatchers, all other employees and super-
visors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since December 31, 1979, 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 January 17, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondents in the appropriate unit, Respond-
ents have engaged in and are engaging in unfair
labor practices within the meaning of Section
8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respond-
ents have interfered with, restrained, and coerced,
and are interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby have en-
gaged in and are 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
meaning 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 Re-
lations Board hereby orders that the Respondents,
B. F. Goodrich Company, Akron, Ohio, and Indus-
trial Personnel Corporation, Tulsa, Oklahoma, sev-
erally and jointly and their respective 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 Drivers
and Helpers Local Union 823, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All truck drivers employed from the Joint
Employers' Tulsa, Oklahoma, terminal, exclud-
ing clerks, dispatchers, all other employees and
supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at their Tulsa, Oklahoma, and Akron,
Ohio, places of operations copies of the attached
notice marked "Appendix."13 Copies of said
notice, on forms provided by the Regional Direc-
tor for Region 16, after being duly signed by Re-
spondents' representatives, shall be posted by Re-
spondents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 16,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
:' In Ihe 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 "Posled Pursu-
ant 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
1142
B. F G(()DRICHt C()MPANY
with General Drivers and Helpers Local
Union 823, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WF- WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WIL.L, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All truck drivers employed from the Joint
Employers' Tulsa, Oklahoma, terminal, ex-
cluding clerks, dispatchers, all other employ-
ees and supervisors as defined in the Act.
B. F. GOODRICH COMPANY AND IN-
DUSTRIAL PERSONNEL CORPORATION
I 143