Fox Hostler's Inc.

National Labor Relations Board - Board Decisions

May 25, 1982

261 N.L.R.B. 1487 (N.L.R.B. 1982)

FOX HOSTLER'S, INC.
Fox Hostler's, Inc. and Brotherhood Railway
Carmen of the United States and Canada, AFL-
CIO, CLC. Case 5-CA-13962
May 25, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on December 24, 1981, and
a first amended charge, filed on January 8, 1982,
by Brotherhood Railway Carmen of the United
States and Canada, AFL-CIO, CLC, herein called
the Union, and duly served on Fox Hostler's, Inc.,'
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 5, issued a complaint on
February 10, 1982, 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 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 October 22,
1981, following a Board election in Case 5-RC-
11493,2 the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;
and that, commencing on or about December 18,
1981, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On February
26, 1982, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
On March 22, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 30,
' On January 14, 1982, the Union filed a petition in Case 5 AC-40.
seeking to amend the certification in Case 5-RC-11493 by deleting the
name Foxhurley and by substituting the name Fox Hostler's, Inc After
an investigation, the Acting Regional Director for Region 5 amended the
certification in accordance with the petition The December 24, 1981,
charge was served on Foxhurley, Inc. Thereafter, on January 8, 1982, the
first amended charge was served on Fox Hostler's, Inc.
2 Official notice is taken of the record in the representation proceed-
ing, Case 5 RC-11493, as the term "record" is defined in Sees. 10268
and 102. 69(g) of the Board's Rules and Regulations, Series 8, as amended
See LTV Electrosystems Inc., 166 NLRB 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); Intertype Co. v. Penello, 269 F.Supp 573
(D.C.Va. 1967); Follett Corp., 164 NL.RB 378 (1967), enfd 397 F. 2d 91
(7th Cir. 1968); Sec 9(d) of the NLRA, as amended.
1982, 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. Respondent
thereafter filed a response to the Notice To Show
Cause.
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
In its answer to the complaint, Respondent
denies that the Board certification of the Union as
the exclusive representative of the aforesaid em-
ployees was valid. Respondent also contends that it
was never legally required to bargain with the
Union. The General Counsel argues that there are
no factual issues present which would require a
hearing, since the issues underlying Respondent's
position were previously litigated and decided in
the companion representation proceeding. In its re-
sponse to the Notice To Show Cause, Respondent
contends that it is not attempting to relitigate mat-
ters since it was never granted a hearing to litigate
alleged activities of the Union which form the basis
for its election objections. Thus, Respondent claims
that the denial of a hearing violated its due process
rights.
Review of the record herein reveals that, in Case
5-RC-11493, the petition was filed by the Union
on April 6, 1981. The parties entered into a Stipula-
tion for Certification Upon Consent Election agree-
ment. The election was held on May 20, 1981. At
the conclusion of the balloting, the tally revealed
that 10 ballots had been cast for and 7 votes had
been cast against the Union, with 1 void ballot and
no challenged ballots. Respondent filed objections
to the conduct of the election. On July 6, 1981, the
Acting Regional Director issued and served on the
parties a Report on Objections in which he recom-
mended that the objections be overruled and that a
Certification of Representative be issued. Respond-
ent, on July 17, 1981, filed exceptions to the Re-
gional Director's Report on Objections. On Octo-
ber 22, 1981, the Board adopted the conclusions
and recommendations of the Acting Regional Di-
rector and issued a Decision and Certification of
Representative.
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
261 NLRB No. 195
1487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to relitigate issues which were or could have been
litigated in a prior representation proceeding.3
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we 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 RESPONDENT
Respondent is a Virginia corporation engaged in
the movement of truck trailers and the perform-
ance of maintenance and tire repairs at the Poto-
mac yard in Alexandria, Virginia. In the course
and conduct of its business, Respondent annually
furnishes goods and services valued in excess of
$50,000 to customers located inside the Common-
wealth of Virginia which customers in turn pur-
chased goods and services valued in excess of
$50,000 from points located outside the Common-
wealth of Virginia.
We find, on the basis of the foregoing, that Re-
spondent 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
Brotherhood Railway Carmen of the United
States and Canada, AFL-CIO, CLC, is a labor or-
ganization 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 Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
3 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
All full-time and regular part-time employees
including jockeys, mechanics, drivers, mainte-
nance employees, tire repairmen, plant clerical
employees and helpers employed by the Em-
ployer at its Alexandria, Virginia, location, but
excluding all office clerical employees, guards
and supervisors as defined in the Act.
2. The certification
On May 20, 1981, 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 5, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on October 22, 1981, 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 8, 1981, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about December 18, 1981, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
December 18, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 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.
1488
FOX HOSTLER'S, INC.
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 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 Respondent com-
mences 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).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Fox Hostler's, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Brotherhood Railway Carmen of the United
States and Canada, AFL-CIO, CLC, a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time employees
including jockeys, mechanics, drivers, maintenance
employees, tire repairmen, plant clerical employees
and helpers employed by the Employer at its Alex-
andria, Virginia, location, but excluding all office
clerical employees, guards and supervisors as de-
fined 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 October 22, 1981, 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 December 18, 1981,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) 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 Respondent,
Fox Hostler's, Inc., Alexandria, Virginia, its offi-
cers, 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 Brotherhood Rail-
way Carmen of the United States and Canada,
AFL-CIO, CLC, as the exclusive bargaining repre-
sentative of its employees in the following appro-
priate unit:
All full-time and regular part-time employees
including jockeys, mechanics, drivers, mainte-
nance employees, tire repairmen, plant clerical
employees and helpers employed by the Em-
ployer at its Alexandria, Virginia, location, but
excluding all office clerical employees, guards
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 its Alexandria, Virginia, facility
copies of the attached notice marked "Appendix." 4
4 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 L.ahor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National l.abor Relations Board "
1489
DECISIONS OF NATIONAL LABOR REI ATIONS BOARD
Copies of said notice, on forms provided by the
Regional Director for Region 5, 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 Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI ATIONS 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 Brotherhood Railway Carmen of the
United States and Canada, AFL-CIO, CLC,
as the exclusive representative of the employ-
ees in the bargaining unit described below.
WE 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 WILL., 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 full-time and regular part-time employ-
ees including jockeys, mechanics, drivers,
maintenance employees, tire repairmen,
plant clerical employees and helpers em-
ployed by the Employer at its Alexandria,
Virginia, location, but excluding all office
clerical employees, guards and supervisors
as defined in the Act.
Fox HOSTIIER'S, INC.
1490