Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Mar 13, 1963

141 N.L.R.B. 384 (N.L.R.B. 1963)

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
might possibly be violative of Section 8 (a) (1) of the Act was when Zick told them
he did not know the answers to their questions and suggested that they talk the matter
over with Attorney Miltner. Insofar as this incident is concerned the testimony of
both Zick and Kolarik in this regard is clear and to the point, their story of what
happened is fully corroborated by the testimony of the employees themselves. There
is nothing in this record to indicate that the Respondent subtly and cleverly mesmer-
ized and maneuvered the employees into filing the decertification petitions, as sug-
gested by the General Counsel in his brief. The Trial Examiner rejects the General
Counsel's "suggestive" argument in this regard for the same reasons he has rejected
his theory that Kolarik was the "carrier" of the "germ" that contaminated the minds
of the employees back in the days that Zale was the owner of Molded Shapes. To
the Trial Examiner, the facts herein hazy as they are, particularly as regards the
8(a) (5) issue, create only a suspicion that the Respondent engaged in conduct viola-
tive of Section 8(a) (1). Since suspicion is not evidence he will recommend that this
allegation be likewise dismissed.
After deep reflection and with due consideration of the position of all the parties
involved herein, the Trial Examiner feels compelled to make this comment. Would
it not have served all involved herein, the better, if this entire proceeding had been
left to the employees themselves for decision by way of an election, under Board
auspices?
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law, the Trial
Examiner recommends that the complaint herein be dismissed in its entirety.
Overnite Transportation Company and Lodge 1725, International
Association of Machinists, AFL-CIO. Case No. 11-CA-2010.
March 13, 1963
DECISION AND ORDER
On December 14, 1962, Trial Examiner Wellington A. Gillis issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent and the Intervenors
filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions thereto, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.2
1 The Trial Examiner permitted 26 of the Respondent's employees, who had been ex-
cluded from the unit involved in this proceeding, to intervene through counsel for the
purpose of stating their position.
2 We do not adopt footnote 6 of the Intermediate Report. The Board has held (see, for
example, Sav-On Drugs, Inc., 138 NLRB 1032) with court approval (see, for example,
Texas Pipe Line Company v. N.L.R B., 296 F. 2d 208, 212-214 (CA. 5)) that although
under Section 9(c) (5) extent of organization is not to be "controlling" in making an
141 NLRB No. 33.
OVERNITE TRANSPORTATION COMPANY 385
ORDER
The Board adopts the Recommended Order of the Trial Examiner 3
as its Order.
appropriate unit determination, it is not ruled out as a factor to be given weight by the
Board See also The Berger Brothers Company, 116 NLRB 439, 441, and Whittaker
Controls Division of Telecomputting Corporation, 123 NLRB 708, 710, footnote 5. We do
not agree with the Trial Examiner that the decision of the Fourth Circuit Court of
Appeals in N L.R B. v. Glen Raven Knitting Mills, Inc, 235 F. 2d 413, represents a con-
trary holding As we read the Glen Raven opinion, the court found, on the facts of that
case, that the unit was inappropriate because the Board had given controlling weight in
its determination to the extent of union organization. In the instant case, unlike the
Board's decision in Glen Raven, the Regional Director found this a craft unit which is
one of the types presumptively appropriate under Section 9(b) and proviso 2 thereof.
3 The paragraph of the Recommended Order following paragraph 2(c) is hereby deleted.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge , a first amended charge, and a second amended charge , filed on
August 6, 21, and 28 , 1962 , respectively, by Lodge 1725 , International Association
of Machinists , AFL-CIO, hereinafter referred to as the Union , the General Counsel
of the National Labor Relations Board issued a complaint on September 28, 1962,
against Overnite Transportation Company, hereinafter referred to as the Respondent
or the Company , alleging that the Respondent since on or about July 30 , 1962, has
refused to bargain with the Union in violation of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the National Labor Relations Act, as amended ( 61 Stat.
136), hereinafter referred to as the Act. Thereafter, on October 4, 1962, the
Respondent filed an answer to the complaint denying the commission of any unfair
labor practice.
Subsequently , on November 5, 1962 , pursuant to notice , a hearing was held in
Charlotte , North Carolina , before Trial Examiner Wellington A. Gillis, at which
both parties were represented by counsel 1 and were afforded full opportunity to be
heard and to introduce relevant evidence . Although apprised of their rights to do so,
neither party chose to file a brief.
Upon the entire record in this case , I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Overnite Transportation Company, a Virginia corporation with its principal office
located in Richmond, Virginia, is engaged in the business of hauling and handling
freight by motor carrier within and through the States of Virginia, North Carolina,
South Carolina, and Georgia. It is authorized and licensed to do business by the
Interstate Commerce Commission, and during the 12-month period immediately pre-
ceding the issuance of the complaint it had a gross revenue in excess of $1,000,000.
The parties agree, and I find, that the Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act .2
H. THE LABOR ORGANIZATION INVOLVED
The parties agree, and I find, that Lodge 1725, International Association of
Machinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
I At the opening of the hearing, Robert G Sanders, an attorney, moved to intervene on
behalf of some 26 employees who had allegedly been denied the right to vote or, in some
instances, to have their ballots counted in a recent Board election because of It having
been determined that their work classifications placed them outside the unit found appro-
priate in an earlier representation proceeding. In order that their position with respect
to the sole issue in this proceeding might be made known, a position which in essence
appears to be identical with that of the Respondent, I permitted the requested Inter-
vention on a very limited basis.
3 In Case No. 11-RC-1624, the Board recently asserted jurisdiction over the Respondent's
Charlotte, North Carolina, terminal, the only operation Involved in this proceeding.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent in this proceeding seeks, in effect, to test the Board's repre-
sentation procedures and its certification of the Union as the exclusive bargaining
representative of certain of its employees, by denying the appropriateness of the unit
as set forth by the Board through its Regional Director's Decision and Direction of
Election (Case No. 11-RC-1624), and challenging the validity of that decision and
a Supplemental Decision and Certification of Representatives subsequently issued by
the Regional Director for the Eleventh Region.
The facts disclose that, pursuant to a representation petition having been filed on
March 21, 1962,3 a hearing was held on April 13. Thereafter, on April 27, pursuant
to the Board's delegation of authority under Section 3(b) of the Act, the Regional
Director issued a Decision and Direction of Election, finding that "all mechanics,
mechanic helpers and mechanic trainees at the Employer's Charlotte, North Carolina,
shop, excluding office clerical employees, all other employees, guards and supervisors
as defined in the Act" constitute an appropriate unit for the purposes of collective
bargaining within Section 9(b) of the Act. On May 18 an election was conducted
among the Company's employees in the unit found appropriate, which resulted in
18 ballots having been cast for the Union, 10 against, and 9 challenged, the latter
sufficient in number to be determinative. Accordingly, after an investigation of the
challenged ballots, the Regional Director, on June 20, issued a Supplemental Decision
and Certification of Representatives, in which, having sustained eight of the chal-
lenged ballots and thus determining that the Union had received a majority of the
valid ballots cast, the Union was certified as the exclusive bargaining representative
for the employees in the appropriate unit. Subsequently, on June 27, the Respondent
filed a request for review of the Supplemental Decision and Certification, which was
denied by direction of the Board on July 17. By letter dated July 27, the Union
requested that the Company enter into bargaining negotiations, which request was
denied by written communique from the Company on July 30.
In contending that its admitted refusal to bargain with the Union does not con-
stitute an unfair labor practice within the meaning of Section 8(a)(5) of the Act,
the Respondent asserts that the Regional Director erred in his unit determination
in the representation case. The Respondent's overall assertion in this regard is
that an appropriate unit should have been one which includes all of the Company's
shop employees, and that, because the unit found appropriate (a) is not a true
craft unit, and (b) was based upon the extent of the Union's organization among
the Respondent's employees, the Regional Director's action is unlawful.
A review of the documents relating to the representation proceeding, and intro-
duced into the record in this proceeding, discloses that these arguments were advanced
at the representation hearing and subsequently were raised before the Board in the
Respondent's request for review of the Regional Director's Supplemental Decision
and Certification. Apart from the procedural infirmity indicating that the Respondent
did not avail itself of the right to request a review of the Regional Director's Decision
and Direction of Election, which failure, under Section 102.67(f) of the Board's
Rules and Regulations, Series 8, as amended, precludes a party "from relitigating, in
an unfair labor practice proceeding, any issue which was, or could have been, raised
in the representation proceeding," the Board consistently has held that, absent evidence
which is newly discovered or unavailable to the Respondent at the time of the repre-
sentation proceeding, the relitigation of issues disposed of in the representation case
will not be permitted in an unfair labor practice proceeding involving a refusal to
bargain.4
During the course of the instant proceeding, the Respondent (a) in support of
its contention that, contrary to the prohibition contained in Section 9(c)(5) of the
Act,5 the appropriate unit determination had been based upon the extent of organi-
zation , attempted to introduce newly discovered or theretofore unavailable evidence
to show that the Union initially had attempted, and failed, to organize all of the
Respondent's shop employees, and (b) sought to introduce other evidence, which the
Respondent admitted had not "for the most part" been unavailable, in support of
its assertion that the unit found appropriate is not a true craft unit. As it appeared
that the Respondent was in fact attemping to relitigate the unit question, and because,
in my opinion , the newly discovered evidence proffered, even if undisputed, would not
3A11 dates refer to 1962.
4 National Carbon Company, etc., 110 NLRB 2184
5 Section 9(c) (5) provides: "In determining whether a unit is appropriate for the pur-
poses specified in subsection (b) the extent to which the employees have organized shall
not be controlling "
OVERNITE TRANSPORTATION COMPANY 387
have borne out the Respondent's assertion,6 I refused to receive such evidence and
refused to allow the introduction of testimony as to matters contained in the Re-
spondent's offer of proof, in which the Intervenors had joined.
As I view the Board's prior unit determination and certification of the Union in
the representation proceeding as conclusive and binding upon me,7 rendering the unit
issue other than properly the subject of litigation in this proceeding, I am compelled
to find, as I do, that on the basis of the Board's ruling in the representation case,
the Union, since June 20, 1962, has been the exclusive bargaining representative of
all the employees in the unit heretofore found appropriate, and that the Respondent,
since July 30, has refused to bargain with the Union within the meaning of Section
8(a) (5), and, derivately, Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE. UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in an unfair labor practice,
it is recommended that it cease and desist therefrom and that it take certain affirma-
tive action which is necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. Overnite Transportation Company is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Lodge 1725, International Association of Machinists, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. Since June 20, 1962, Lodge 1725, International Association of Machinists,
AFL-CIO, has been the exclusive bargaining representative within the meaning of
Section 9(a) of the Act for all employees employed in a unit comprised of mechanics,
mechanic helpers, and mechanic trainees at the Company's Charlotte, North Carolina,
shop, excluding office clerical employees, all other employees, guards, and supervisors
as defined in the Act.
4. By refusing on July 30, 1962, and thereafter, to bargain collectively with Lodge
1725, International Association of Machinists, AFL-CIO, as the exclusive representa-
tive of all its employees in the above-described appropriate unit, Overnite Transpor-
tation Company has engaged in and is engaging in an unfair labor practice within
the meaning of Section 8(a) (5) and (1) of the Act.
5. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case , it is recommended that the Respondent, Overnite Trans-
portation Company, its officers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Lodge 1725 , International Association
of Machinists , AFL-CIO, as the exclusive bargaining representative of all its mech-
9 Under the Board's interpretation of Section 9(c) (5), notwithstanding a contrary hold-
ing by the Court of Appeals for the Fourth Circuit (N.L.R.B. v. Glen Raven Knitting
Mills, Inc, 235 F. 2d 413), the fact that a unit found appropriate coincides with the
extent of a union's organization does not, assuming the unit determination otherwise
valid, do violence to that section See Berger Brothers Company, 116 NLRB 439, 441 ;
Telecomputing Corporation, 123 NLRB 708, 710. However, as to a phase of industry not
here Involved, see the rationale of Board Member Rodgers in his dissenting opinion in
Sav-On Drugs, Inc., 138 NLRB 1032.
4 Air Control Products of St. Petersburg, Inc, .139 NLRB 413; Allis-Chalmers Manu-
facturing Company, 120 NLRB 644; Wytheville Knitting Mills, Inc., 117 NLRB 1719;
Shoreline Enterprises of America, Inc., 117 NLRB 1619.
708-006-64-vol. 141-26
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anics, mechanic helpers, and mechanic trainees at its Charlotte, North Carolina,
shop, excluding office clerical employees, all other employees, guards, and supervisors
as defined in the Act.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with Lodge 1725, International Association
of Machinists, AFL-CIO, as the exclusive bargaining representative of the employees
in the certified appropriate unit, and embody in a signed agreement any understanding
reached.
(b) Post at its place of business in Charlotte, North Carolina, copies of the attached
notice marked "Appendix." 8 Copies of said notice, to be furnished by the Regional
Director for the Eleventh Region, shall, upon being duly signed by the Respondent's
representative, be posted by it, as aforesaid, immediately upon receipt thereof, and
be maintained for at least 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 the Eleventh Region, in writing, within 20
days from the receipt of this Intermediate Report, what steps the Respondent has
taken to comply herewith.9
It is further recommended that, unless the Respondent shall, within 20 days from
the receipt of this Intermediate Report, notify said Regional Director, in writing,
that it will comply with the foregoing Recommended Order, the National Labor
Relations Board issue an order requiring it to take the aforesaid action.
In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
9In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain collectively, upon request, with Lodge 1725 International
Association of Machinists, AFL-CIO, as the exclusive bargaining representative
of all our employees in the certified bargaining unit described below with respect
to rates of pay, wages, hours of employment, and other terms and conditions
of employment, and embody in a signed agreement any understanding reached.
The bargaining unit is:
All mechanics, mechanic helpers, and mechanic trainees at the Employer's
Charlotte, North Carolina, shop, excluding office clerical employees, all
other employees, guards, and supervisors as defined in the Act.
WE WILL NOT, by refusing to bargain collectively with Lodge 1725, Inter-
national Association of Machinists, AFL-CIO, or in any like or related manner,
interfere with, restrain, or coerce our employees in the exercise of the rights
guaranteed by Section 7 of the National Labor Relations Act.
OVERNITE TRANSPORTATION COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 1831
Nissen Building, Winston-Salem, North Carolina, Telephone No. 724-8356, if
they have any questions concerning this notice or compliance with its provisions.