Locust Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1975

221 N.L.R.B. 604 (N.L.R.B. 1975)

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Locust Industries , Inc. and Freight Drivers and
Helpers Local Union No. 557, affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 5-CA-7391
November 12, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on July 15, 1975, by Freight
Drivers and Helpers Local Union No. 557, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, • Warehousemen and Helpers of America,
herein called the Union, and duly served on Locust
Industries, Inc., herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 5, issued
a complaint on July 30, 1975, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 Adminis-
trative 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 20, 1975,
following a Board election in Case 5-RC-8999, 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 July 11, 1975, 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 8, 1975, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On September 2, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September 11,
1975, 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. Respon-
dent thereafter filed a response to Notice To Show
1 Official notice is taken of the record in the representation proceeding,
Case 5-RC-8999, 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 Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
221 NLRB No. 85
Cause, entitled "Statement in Opposition to General
Counsel's Motion for Summary Judgment."
Pursuant to the provisions of Section 3(b) of the
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:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause, the Respondent admits the
basic facts of the complaint but asserts that it is
entitled to a hearing on an issue which arose in the
underlying representation case pertaining to an
unauthorized checklist of eligible voters maintained
by a union representative. The General Counsel
contends that Respondent is raising issues which
were considered and resolved in the representation
case, and this it may not do. We agree.
Review of the record herein, including the record
in Case 5-RC-8999, reveals that, pursuant to the
Regional Director's Decision and Direction of
Election, an election was conducted on August 22,
1974, which the Union won. Respondent filed timely
objections, alleging, in substance, that the Union
misleadingly. promised benefits and misrepresented
that the employees would, secure 'economic benefits
by voting for the Union, and that a union supporter
electioneered and campaigned in violation of the
Board's Milchem rule.2
After investigation, the Regional Director, on
October 25, 1974, issued a Supplemental Decision,
Order Consolidating Cases, and Notice of Hearing in
which he overruled all Respondent's objections
except as to the Milchem rule, and consolidated for
hearing Case 5-RC-8999 with a related pending
unfair labor practice proceeding. Thereafter, Re-
spondent filed a Request for Review of Regional
Director's Supplemental Decision, Order Consolidat-
ing Cases, and Notice of Hearing. By telegraphic
order of November 20, 1974, as amended November
21, 1974, a Board panel (former Chairman Miller
dissenting in part) denied the request. At the hearing
before the Administrative Law Judge, Respondent,
for the first time, raised the issue of an unauthorized
check-list maintained by a union representative, but
did not seek to adjourn the hearing in order to
adduce additional evidence thereof. By decision
issued January 31, 1975, the Administrative Law
Judge overruled Respondent's Milchem objection
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follett Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
2 Milchem, Inc, 170 NLRB 362 (1968).
LOCUST INDUSTRIES, INC.
and found that, even assuming that the checklist
issue was properly before him and that the checklist
was unauthorized, any alleged checklist violation
would have been de minimis. Respondent filed
exceptions and a brief in support thereof, in which it
specifically reiterated, inter alia, its checklist objec-
tion, but did not request a hearing thereon. The
Board considered Respondent's exception and brief
in this regard and, on June 20, 1975, the Board issued
a Decision, Order, and Certification of Representa-
tive, in which it, inter alia, affirmed the Administra-
tive Law Judge's overruling of Respondent's check-
list objection and certified the Union.3
In its Statement in Opposition to General Coun-
sel's Motion for Summary Judgment, Respondent,
for the first time, contends that under Section 10(b)
of the Act, section 5 of the Administrative Procedure
Act, and Section 101.10 of the Board's Statements of
Procedure, Respondent is entitled to a further
hearing with respect to the possible maintenance of
an unauthorized checklist by a union representative.
We disagree. It is well settled that in the absence of
newly discovered or previously unavailable evidence
or special circumstances a respondent in a proceed-
ing 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.4
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and the 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 the Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Neither Section 10 of the Act,
nor the Administrative Procedure Act, nor, our
Statements of Procedure require a hearing where, as
her, there are no properly litigable issues,of fact to
be resolved, Respondent, having had the opportunity
to litigate the checklist issue. in the representation
case.5 We shall, accordingly, grant the 'Motion for
Summary Judgment-
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Maryland corporation, is engaged at
Baltimore, Maryland, in the operation of warehous-
3 218 NLRB No. 113 (1975).
4 See Pittsburgh Plate Glass Co v. NLRB.; 313 US. 146, 162 (1941);
Rules and Regulations of the Board , Secs . 102.67(f) and 102.69(c).
605
ing facilities and in the intrastate transportation of
freight as a link in interstate commerce. During the
preceding 12 months, a representative period, Re-
spondent received in excess of $50,000 for services
furnished to enterprises which either sell or ship
goods and materials or purchase and receive goods
and materials, in interstate commerce, valued at
more than $50,000 per year.
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
Freight Drivers and Helpers Local Union No. 557,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen 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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All truckdrivers and mechanics, including truck
mechanics, trailer mechanics, and fork lift me-
chanics employed by Respondent at its Balti-
more, Maryland locations at Light Street, Fort
Avenue, and Boston Street, but excluding all
office clerical employees, guards, and supervisors
as defined in the Act.
2. The certification
On August 22, 1974, 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 bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on June 20, 1975, and the Union
continues to be such- exclusive representative within
the meaning of Section 9(a) of the Act.
5 See Janler Plastic Mold Corporation, 191 NLRB 162 (1971); Crest
Leather Manufacturing Corporation, 167 NLRB 1085 (1967).
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The ' Request To Bargain and Respondent's
Refusal
Commencing on or about July 7, 1975, 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 July 11, 1975, 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 July 11, 1975, 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 1, 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 com-
mences 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 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 ( 1964), enfd . 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Locust Industries, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Freight Drivers and Helpers Local Union No.
-557, 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 and mechanics, including
truck mechanics, trailer mechanics, and fork lift
mechanics employed by Respondent at its Baltimore,
Maryland locations at Light Street, Fort Avenue,
and Boston Street, but excluding all office clerical
employees, guards, 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 20, 1975, 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 July 11, 1975; 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 aforesaid 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 the Respondent,
Locust Industries, Inc., Baltimore, Maryland, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from: -
LOCUST INDUSTRIES, INC.
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Freight Drivers and
Helpers Local Union No. 557, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All truck drivers and mechanics, including truck
mechanics, trailer mechanics, and fork lift me-
chanics employed by Respondent at its Balti-
more, Maryland locations at Light Street, Fort
Avenue, and Boston Street, 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 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 facilities at Light Street, Fort
Avenue, and Boston Street, in Baltimore, Maryland,
copies of the attached notice marked "Appendix."6
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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other, material.
6 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 "
607
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what stepsi have been taken to comply herewith.
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 Freight
Drivers and Helpers Local Union No. 557,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, as the exclusive representa-
tive 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
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 truck drivers and mechanics, including
truck mechanics, trailer mechanics, and fork
lift mechanics employed by Respondent, at
its Baltimore, Maryland locations at Light
Street, Fort Avenue, and Boston Street,-but
excluding all office clerical employees,
guards, and supervisors as defined in the
Act.
LOCUST ' INDUSTRIES, INC.