Overland Hauling, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1970

187 N.L.R.B. 245 (N.L.R.B. 1970)

OVERLAND HAULING, INC.
Overland Hauling, Inc., and Teamsters, Chauffeurs,
Warehousemen and Helpers Local No. 385 , affiliat-
ed with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 12-CA-4767
December 14, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 14, 1970, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, granting General Counsel's Motion for
Summary Judgment; finding no merit in the various
contentions urged by Respondent in its Response to
the Trial Examiner's Order to Show Cause why the
Motion for Summary Judgment should not be
granted; further finding on the pleadings that Res-
pondent had engaged in and was engaging in certain
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the National Labor Relations Act,
as amended; and recommending that Respondent
cease and desist from such unfair labor practices and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Overland Hauling, Inc., Ocoee, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
i In its exceptions Respondent contends , as it did at the several stages
of the underlying representation matter , that the Regional Director's unit
and eligibility determinations and his disposition of the objections in Case
12-RC-3317 are erroneous and contrary to law, and that the Board erred
in failing to grant Respondent 's requests for review Respondent also
contends that it is entitled , as a right of due process , to a hearing on the
issues raised by its objections to conduct affecting the results of the
election We find no ment in Respondent 's contentions We have reviewed
245
the entire record in the underlying representation case and are satisfied
that the Regional Director 's disposition of the issues in his Decision and
Direction of Election and Supplemental Decision , Order and Certification
of Representative is fully supported by the evidence, and is correct Like
the Trial Examiner , we find no unresolved issues necessitating a hearing,
and, accordingly , we shall adopt the Tnal Examiner 's findings, conclusions,
and recommendations
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THE ISSUE
CHARLES W. SCHNEIDER, Trial Examiner: The case arises
on a motion of counsel for the General Counsel for
summary judgment based upon an admitted refusal by the
Respondent to bargain with the certified Charging Union,
the Respondent contesting the validity of Board rulings in
the representation proceeding in which the Union was
certified.
The Representation Proceeding'
Upon a petition filed in Case 12-RC-3317 under Section
9(c) of the National Labor Relations Act (29 U.S.C.A. 159)
by Teamsters , Chauffeurs , Warehousemen & Helpers Local
Union No. 385, affiliated with the International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , herein called the Union , the Acting
Regional Director for Region 12 of the Board issued a
Decision and Direction of Election dated July 10, 1969,
among employees of Overland Hauling , Inc., herein called
the Respondent . Disagreeing to some extent with the unit
found appropriate by the Acting Regional Director, the
Respondent filed a request for review of that decision with
the Board in Washington , D.C. On August 5, 1969, the
Board denied the Respondent 's request for review in
substantial part.
Pursuant to the Decision and Direction of Election, an
election by secret ballot was conducted on August 8, 1969,
under the direction and supervision of the Acting Regional
Director . A revised tally of ballots showed the following
election results:
Approximate number of eligible voters 108
Void ballots 0
Votes cast for Petitioner 51
Votes cast against participating labor organization 49
Valid votes counted 100
Challenged ballots I
Valid votes counted plus challenged ballots 101
i Administrative or official notice is taken of the record in the
representation proceeding , Case 12-RC-3317, as the term "record" is
defined in Section 102 68 and 102 69(1) of the Board's rules (Rules and
Regulations and Statements of Procedure , National Labor Relations
Board , Series 8 as amended ) See LTV Electrosysienw, Inc, 166 NLRB 938,
enfd 388 F 2d 683 (C A 4), cert denied 393 U S 843, Golden Age Beverage
Co, 167 NLRB No 24, enfd . 415 F 2d 26 (C A 5), Intertype Co v Penello,
269 F Supp 573 (D C Va ), Intertype Co v N L.R B, 401 F 2d 41 (C A 4),
cert denied 393 U S 1049, Follett Corp, et al, 164 NLRB 378, enfd 397
F 2d 91 (C A 7), Sec 9( d) of the National Labor Relations Act
187 NLRB No. 40
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The challenged ballot was insufficient to affect the results
of the election.
On August 18, 1969, the Employer timely filed objections
(subsequently expanded on August 26, 1969) to conduct
affecting results of election alleging , in sum, that prior to
and during the election union representatives engaged in
certain specified conduct interfering with the election, that
the election was improperly conducted, and that the
Respondent was prejudiced by actions of a Board agent in
investigating unfair labor practice charges in June 1969.
On October 16, 1969, the Regional Director issued a
Supplemental Decision, Order and Certification of Repre-
sentative. In this Decision the Regional Director stated that
an investigation of the Respondent's objections had been
conducted, during which all parties were afforded opportu-
nity to submit and present evidence bearing on the issues.
After discussion of the evidence, the Regional Director
concluded in his Decision that the Respondent had raised
no substantial or material issues of fact or law which would
warrant setting aside the election . Consequently, the
Regional Director overruled the Respondent's objections in
their entirety and certified the Union as the exclusive
bargaining representative of the employees in the appropri-
ate unit . At the same time the Regional Director denied the
Respondent's motion for a hearing on its objections.
Thereafter on November 1, 1969, the Respondent timely
filed with the Board in Washington, D.C., its request for
review of the Regional Director's Supplemental Decision,
Order and Certification of Representative, in which
Respondent urged that the Regional Director erred in not
setting aside the election, and in denying the Respondent's
request for a hearing on the objections.
On November 18, 1969, the Board by telegraphic order
denied the Respondent's request for review for the reason
that ". . . it raises no substantial issues warranting review.
11
The Unfair Labor Practice Case
On February 9, 1970, the Union filed the instant unfair
labor practice charge alleging that since the certification the
Respondent had refused and continues to refuse to bargain
with the Union.
On March 6, 1970, the Regional Director issued a
complaint and notice of hearing alleging that the Respon-
dent had committed unfair labor practices in violation of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act
by refusing to meet and negotiate with the Union as the
bargaining representative of the employees in the certified
unit, though requested to do so since the certification.
Thereafter, the Respondent filed its answer (subsequently
amended) in which it denied, inter alia, the validity of the
certification and the commission of unfair labor practices,
but admitted some allegations of the complaint, such as the
fact of the certification and its refusal to bargain with the
2 Pepsi-Colo Buffalo Bottling Company v N L R B, 409 F.2d 676 (C A. 2,
1969), cert . denied 396 U.S. 904 (1969)
3 Krieger-Ragsdale & Co, Inc, 159 NLRB 490, enfd 379 F.2d 517 (C A
7, 1967), cert denied 389 U S. 1041. See Pittsburgh Plate Glass Co v
N.L R B, 313 U.S. 146, 162 (1941); NLRB Rules and Regulations, Secs
102.67(f) and 102 69(c)
4 0 K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F.2d 74 (C A
Union. At the same time the Respondent filed a motion to
dismiss (subsequently amended) or to stay the unfair labor
practice proceeding and to reopen the representation
proceeding. On April 3, 1970, counsel for the General
Counsel filed a motion for summary judgment, in which the
Charging Party concurred, and on April 8, 1970, I issued an
Order to Show Cause returnable April 29, 1970, on the
Respondent's motion to dismiss, to stay, and to reopen and
on the General Counsel's motion for summary judgment.
The Respondent has filed a response to the Order to Show
Cause. No other responses have been received.
Ruling on Motion for Summary Judgment
Counsel for the General Counsel contends that all issues
in dispute were decided by the Board in the representation
case and that he is therefore entitled to summary judgment
as a matter of law.
The Respondent opposes summary judgment on statuto-
ry and constitutional grounds and asserts that due process
requires that a full hearing be held on all issues, including
the issues raised in the representation proceeding. In
addition the Respondent has provided evidence which it
asserts is newly discovered and was previously unavailable
bearing on its objections to the election.
The basic position of the Respondent is that the Board's
unit determination was incorrect in the representation case,
and that the election was invalid and should have been set
aside on the basis of the Respondent's objections to the
election. Alternatively, the Respondent contends that its
objections raised substantial and material issues requiring a
hearing, and that the Regional Director erroneously refused
to issue investigative subpenas requested by the Respon-
dent in connection with the objections. All these issues were
raised by the Respondent in the representation proceeding,
and were found by the Regional Director and the Board to
raise no substantial or material issues affecting the validity
of the unit, the election, and the certification. Finally, the
Respondent contends that in accordance with the opinion
in the Pepsi-Cola case2 the Board may not find an unfair
labor practice on the basis of a unit determination by a
Regional Director.
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence or special
circumstances, not to permit litigation before a Trial
Examiner in an unfair labor practice case of issues which
were or could have been litigated in a prior related
representation proceeding.3 Such a hearing is not a matter
of right unless substantial and material issues were raised in
the representation case.4
The New Evidence
We come now to the Respondent's new evidence. If the
evidence is indeed new, meets the standard required in such
cases, and a prima facie showing is made of cause for not
5, 1961). See N L R B v Air Control Window Products, Inc, 335 F.2d 245,
249 (C A 5, 1964). " If there is nothing to hear, then a hearing is a senseless
and useless formality " See also N LR B v. Bata Shoe Co, 377 F 2d 821,
826 (C.A. 4, 1967 ), cert. denied 389 U S. 917. ". . there is no requirement,
constitutional or otherwise, that there be a hearing in the absence of
substantial and material issues crucial to determination of whether NLRB
election results are to be accepted for purposes of certification
OVERLAND HAULING, INC.
having previously produced it, the dismissal of the
Respondent's objections to the election must be reconsid-
ered, and hearing will be required.
In determining whether the evidence is adequate to
require hearing on the objections issues at this stage of the
proceeding, the standard or test is more rigorous than it was
in the representation case. For to be entitled to a hearing on
objections to a Board election a party is required only to
produce specific evidence prima facie warranting setting
aside the election (O.K. Van & Storage, Inc., supra at 75),
that is to say, enough evidence to raise a substantial and
material issue as to the probity of the election results.
However, at the stage in which we find ourselves, the
evidence must be such as is likely to require reversal of the
prior decision. Thus, in the case of Red-More Corp., d/b/a
Disco Fair, 169 NLRB No. 63, the Board in a comparable
situation stated the rule as follows:
... motions based on newly discovered eviden-
ce will not be granted unless such evidence will
probably change the outcome of the litigation.
Analysis of the new evidence submitted by the Respondent
indicates that it is not, in my opinion, of such nature as
probably to change the outcome of the litigation. Nor do I
believe that probable cause has been shown for not having
produced the evidence in the representation proceeding.
In support of its position in this respect the Respondent
has attached to its motion to dismiss and reopen the
representation proceeding copies of several affidavits, and
has attached to its response to Order To Show Cause a
number of copies of additional affidavits. Four of the
affidavits attached to the motion to dismiss and to reopen,
all dated March 30, 1970, are related to the issues raised by
the objections to the election. Each refers to the conduct of
one Witt, a representative of the Union. Affiants in these
instances are, respectively, Harvard Patrick, the proprietor,
at the time of the election, of a tavern in the vicinity of the
Respondent's establishment; Frank Richards, Jr., a driver
for the Respondent; Jimmy Meadors, a lease operator for
the Respondent; and Gene Stephenson, a former employee
of one of the Respondent' s lease operators. If credited, and
possible discrepancies disregarded, one or more of these
affidavits could be construed to establish the following: (1)
prior to the election and during the time the polls were open
Witt bought beer for employees of the Respondent at the
tavern; (2) Witt said in the presence of employees of the
Respondent that the Union could "guarantee" a raise of
some kind, and "quoted" rates of $3.25 to $4.50 per hour,
when the Respondent's rate was $1.85 or $1.90 per hour; (3)
when one employee told Witt that he would "have to work"
if there were a picket line, Witt, indicating a scar on his eye,
said that he had got the scar "trying to keep someone from
crossing the picket line"; and (4) Witt, fingering his scar,
told another employee that he (the employee) "wouldn't
want to look like this."
Eight other affidavits, one dated March 23, 1970, the
others dated April 14, 1970, are attached to the Respon-
dent's response to the Order To Show Cause. Except for
two of these (discussed more specifically hereinafter) in so
far as the affidavits accompanying the response to the
5 Coopers, Inc, 94 NLRB 1554, The Zeller Corp, 115 NLRB 762, Albion
Malleable Iron Co, 104 NLRB 225, Wagner Electric Corp, Chatham
247
Order To Show Cause contain material relevant to the
issues , they recite hearsay , or refer to incidents not
attributable to the Union, or are otherwise nonprobative.
Those six therefore do not constitute, or contain an offer of,
evidence warranting reexamination of the Respondent's
objections to the election.
The other two affidavits filed with the response are by D.
L. Bloebaum , the Respondent's vice president and general
manager , and J . W. Earwood , the Respondent's terminal
manager . These the Respondent offers in support of its
contention that the evidence was not previously available to
the Respondent , stating as reason that employees had been
intimidated by union threats which have apparently since
been dissipated (response pp. 3-4). Mr. Bloebaum's and
Mr. Earwood 's affidavits state, in that connection , that the
Respondent 's objections to the election were based upon
information that the Respondent had received from
employees and lease operators prior to the election and
thereafter . Mr. Bloebaum says that when the Respondent
attempted to get information from employees and lease
operators concerning these incidents , "either they claimed
they knew nothing at that time or were unwilling to furnish
the information ." Mr. Earwood , similarly , states that the
Respondent was unable to get information about these
reported incidents after the election, because the employees
and lease operators would not talk or discuss the matter
and "seemed scared." Mr. Earwood further says that it was
not until the last 4 to 6 weeks that employees and lease
operators have been willing to discuss the incidents.
The subject matter of the new evidence had been alleged
in the Respondent's objections to the election, and some
evidence had apparently been submitted by the Respon-
dent in connection therewith or had been unearthed by the
Regional Office in its investigation of the objections. Thus,
among the Respondent 's objections to the election was one
to the effect that Witt had been buying drinks for
employees the night before and during the election
(Objections 3 and 6). Another was that at the same time
Witt made "exorbitant and insincere promises to the
employees knowing such statements to be false" and
knowing that the Respondent would have no chance to
refute them (Objection 6). Another objection was that the
Union had "threatened, coerced and restrained .. .
employees by statements and conduct" and had thus
interfered with free choice in the election (Objection 8). In
his Supplemental Decision disposing of the objections the
Regional Director found that the Respondent had submit-
ted no evidence nor had "the investigation disclosed any
evidence" in support of Objections 3 and 8 (Supplemental
Decision). He found similarly with respect to Objection 6
(Supplemental Decision). Furthermore the Regional Direc-
tor, citing authorities , ruled that the furnishing of alcoholic
beverages prior to an election is permissible electioneering
(Supplemental Decision).5 Additionally the Regional
Director held that electioneering away from the polling
area is permissible under Board authority (Supplemental
Decision).6 Both propositions correctly state Board law. As
has been seen, the Respondent filed a request with the
Board to review the Regional Director 's failure to sustain
Division, 167 NLRB 532
6 Phelps Dodge Copper Products Corp., I I 1 NLRB 950.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these and the Respondent's other objections to the election,
but the Board found that the Respondent raised no
substantial issues warranting review.
Substantiality of the New Evidence
Insofar as I find its new evidence of any degree of
probativeness, the Respondent might thus be able to show
at a hearing (1) evidence that Witt bought beer for
employees prior to and during the election, (2) evidence
that Witt made statements construable as threats, and (3)
that Witt "guaranteed" employees a raise, referring to rates
of pay far in excess of the Respondent's scale. The question
then is whether this evidence is, in the circumstances, of
sufficient weight to warrant reexamination of the objec-
tions.
1. The purchase of beer: Assuming the truth of the first
proposition-Witt's purchase of beer for employees-that
evidence would not warrant overturning the election. As
has been stated, such action away from the voting area is
permissible electioneering.
2. The asserted threats: With respect to the second
proposition-threats-the evidence submitted does not
appear substantial enough in the circumstances as to
probably change the decision on the merits of the
Respondent's objections to the election. This evidence
consists of what appear to be two incidents related in the
affidavits of Driver Richards and Lease Operator Meadors.
Richards' affidavit states in this respect that on the night
before the election Witt engaged a group of employees in
conversation outside the Glass Lounge. Richards says:
During the conversation the subject of strikes and
picket lines came up, and I said that even if there were a
picket line I would have to work. Witt, who had been
rubbing the scar on his eye, said he got that scar from
trying to keep someone from crossing the picket line.
Meadors' affidavit says, apparently wit'i respect to the
same incident:
Someone mentioned that Florida had a right to work
law and if there were a strike what would happen to
those who might try to work and cross the picket line.
Witt's reply was to the effect that the way he got his scar
was when someone tried to cross a picket line when he
was on picket duty as to what could happen.
Richards relates the second incident as follows
A little later [the same] evening we went inside the
Glass Lounge and continued to drink some more beer. I
sat at a booth different from the one Witt was sitting at.
During the conversation I overheard Witt say to one of
the Overland employees concerning crossing a picket
line during a strike that "you wouldn't want to look like
this," pointing to his scar again.
Assuming that these incidents occurred as described, it is
not apparent how they could have influenced employees to
vote for the Union in the election. If anything, it would
seem that, if Witt's statements constituted threats against
employees who might wish to cross a picket line around the
Respondent's establishment, the statements would be more
likely to produce votes against the Union than for it. For if
the Union did not win the election the possibility of a picket
line being established became more remote-and the
necessity of having to cross it more unlikely. I therefore
cannot find in these purported statements of Witt evidence
of conduct likely to affect the outcome of the election in a
manner advantageous to the Union.
3. The promises of wage increases: The new evidence as
to this, to the extent probative prima facie, is found in the
affidavits of Richards, Meadors, and Stephenson, and
apparently relate to statements of Witt made in the same
conversation outside the Glass Lounge referred to above.
They state respectively:
Richards: While the group of us were outside the Glass
Lounge I asked Witt what could the union guarantee us,
and he said that they would go for a round figure of
$3.50 to $3.75 and would advise on a one year contract.
The average rate for a company driver at Overland
Hauling at that time was approximately $1.90 an hour.
Witt said that they, the union, could set one price and
that the company would have to pay it if the union were
voted in. I asked him to repeat that and he did because I
wasn't sure I understood it the first time. He said the
company would have to pay it and would have no
choice.
Meadors: During this discussion someone asked what
could the union guarantee, and Witt said that the union
could guarantee a raise, but he couldn't quote a figure.
Stephenson: [Witt] was speaking for the union, but
said he was not trying to tell anyone there how to vote.
He said that the union would set a price that the
company would have to pay if everybody went union.
The company would have no choice. The price he
quoted was between $3.25 and $3.75 for the first year
and after a year or two, it would be between $4.00 and
$4.50 an hour. At that time I understood the Overland
starting rate to be $1.65 with an increase to $1.75 at the
end of thirty days, and to $1.85 at the end of ninety
days.
After appraising this evidence, I do not believe that it can
be said to warrant the conclusion that Witt made false
statements to employees as to the amount of wage increases
the Union could obtain for them. In sum, Witt's statements
as to wage increases do not appear, in the circumstances, to
be anything more than permissible election propaganda,
whose reliability must be left to the voters to evaluate.
Prior Unavailability of the New Evidence
However, even if I were to find that the Respondent's
new evidence was substantial enough in character as to
warrant hearing if previously unavailable, the Respondent
has made no adequate showing that it was previously
unavailable.
The first of the new affidavits was executed in March
1970, over 7 months after the election; the latest ones in
April 1970, 8 months after the election. The Respondent
contends that it had no access to this evidence previously
because employees were intimidated by union threats. If
prima facie support is shown for such contention, the
present tender should be regarded as timely. However, I
have found no probative evidence of such threats or
coercion as to influence employees to vote for the Union.
The only evidence submitted in this regard is the inferences
suggested in the affidavits of the Respondent's vice
OVERLAND HAULING, INC.
president, Mr. Bloebaum, and its terminal manager, Mr.
Earwood, referred to above.
I also find no evidence to support a conclusion that
employees may have withheld their information previously
out of fear. None of the affidavits of employees or lease
operators submitted refers to such a consideration. The
affidavit of Mr. Bloebaum and Mr. Earwood do not refer to
any particular employee or lease operator as having
expressed any such fears. I think it unlikely that if
intimidation had been a factor, the present affidavits would
not have contained a reference to it. In these circumstances
I cannot find that the evidence now offered was not
previously in the possession of the Respondent or
unavailable to it with the exercise of due diligence.
Conclusions as to the New Evidence
On this state of the record I conclude that the new
evidence offered by the Respondent, both that which I have
discussed above, and that which-though considered-has
not been specifically detailed, is not of such nature as will
probably, if accepted, change the outcome of the litigation.
In addition, I cannot find the evidence to have been
previously unavailable.
The Respondent's motion to dismiss and to reopen
representation proceeding is therefore now denied.
With respect to the Respondent's contention that the
Board may not find an unfair labor practice on the basis of
a unit determination by a Regional Director, the Respon-
dent will have another opportunity, in exceptions to this
Decision, to request the Board to review that deternuna-
tion. The Trial Examiner has no authority to review. Iowa
Beef Packers, 144 NLRB 615. In any event, the Board has
not indicated that it has accepted the Pepsi-Cola opinion,
cited by the Respondent, (fn. 2, supra) for all future cases.
The denial of certiorari in the Pepsi-Cola case contains no
implication regarding the views of the Supreme Court on
the merits of the case. See Maryland v. Baltimore Radio
Show, 338 U.S. 912 at 919 (1950) Additionally it may be
noted that the Court of Appeals for the First Circuit has
declined to follow the Pepsi-Cola opinion and has held to
the contrary. N.L.R.B. v. Magnesium Casting Co, 427 F.2d
114 (C.A. 1, 1970).
There thus being no unresolved issues requiring an
evidential hearing, summary judgment is appropriate and
the General Counsel's motion for summary judgment is
granted.
Upon the basis of the record before me I make the
following further-
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Florida corporation whose office and
principal place of business is in Ocoee, Florida, where it
engaged in hauling stone and other materials for other
construction companies. During the past 12 months,
Respondent has received in excess of $50,000 for these
r The purpose of this provision is 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 See Mar-Jac Poultry Co, 136 NLRB
249
services performed in connection with the construction of
Federal highways.
Respondent , at all times material herein , has been
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2 (5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All truckdnvers, including owner-operators, dispatched
by Respondent's Ocoee terminal, and dispatchers there
assigned, but excluding mechanics, shop employees,
office clerical employees, guards, and supervisors as
defined in the Act.
On October 16, 1969, the Regional Director, on behalf of
the Board, certified the Union as the exclusive collective-
bargaining representative of the employees in the appropri-
ate unit for the purposes of collective bargaining. By virtue
of Section 9(a) of the Act, the Union is the exclusive
representative of all the employees in the said unit with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
By letter from its attorney dated February 3, 1970, the
Respondent refused to bargain with the Union as the
collective-bargaining representative of said employees. By
such refusal Respondent engaged in unfair labor practices
in violation of Section 8(a)(5) of the Act and interfered
with, restrained, and coerced its employees in violation of
Section 8(a)(1) of the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions, and
pursuant to Section 10(c) of the Act, I recommend that the
Board issue the following:
ORDER
A. For the purpose of determining the duration of the
certification, the initial year of certification shall be deemed
to begin on the date the Respondent commences to bargain
in good faith with the Union as the recognized exclusive
bargaining representative in the appropriate unit.?
B. Overland Hauling, Inc., its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Teamsters,
Chauffeurs, Warehousemen and Helpers Local No. 385,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate bargaining unit:
785, Commerce Co, d/b/a Lamar Hotel, 140 NLRB 226, 229, 328 F 2d 600
(C A 5, 1964), cert denied 379 U S 817, Burnett Construction Co, 149
NLRB 1419, 1421, enfd 350 F 2d 57 (C A 10, 1965)
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All truckdrivers, including owner-operators, dispatched
by Respondent's Ocoee terminal, and dispatchers there
assigned , but excluding mechanics, shop employees,
office clerical employees, guards, and supervisors as
defined in the Act.
(b) Interfering with the efforts of said Union to negotiate
for or represent employees as exclusive collective-bargain-
ing representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with Teamsters,
Chauffeurs, Warehousemen and Helpers Local No. 385,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the
exclusive representative of all employees in the appropriate
unit with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment , and embody in a signed agreement any understand-
ing reached.
(b) Post at its place of business in Ocoee, Florida, copies
of the attached notice marked "Appendix."8 Copies of said
notice , on forms provided by the Regional Director for
Region 12 , after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof and be
maintained by the Respondent for a period of 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from receipt of this recommended
Order, what steps the Respondent has taken to comply
herewith.9
8 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, recommendations , and recommended Order herein
shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted
by the Board and become its findings , conclusions , and order, and all
objections thereto shall be deemed waived for all purposes In the event
that the Board's 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 "
9 In the event this recommended Order is adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 12, in writing, within 10 days from re. eipt of this Order , what steps
the Respondent has 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 with
Teamsters, Chauffeurs, Warehousemen and Helpers
Local No. 385, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive collective-bargain-
ing representative of all the following employees:
All truckdrivers, including owner-operators, dis-
patched by us at our Ocoee terminal, and
dispatchers there assigned, but excluding mechan-
ics, shop employees, office clerical employees,
guards, and supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of the Union
to negotiate for or represent employees as exclusive
collective-bargaining representative.
WE WILL bargain collectively with the Union as the
exclusive collective-bargaining representative of the
employees in the above described unit, and if an
understanding is reached we will sign a contract with
the Union.
OVERLAND HAULING, 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, Room
706, Federal Office Building, 500 Zack Street, Tampa,
Florida 33602, Telephone 813-228-7227.