Triangle Express, Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1980

250 N.L.R.B. 1373 (N.L.R.B. 1980)

TRIANGLE EXPRESS, INC
Triangle Express, Inc. and Chauffeurs, Warehouse-
men and Helpers Local Union 886, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of
America. Case 16-CA-9019
August 4, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a charge filed on March 12, 1980, by
Chauffeurs, Warehousemen and Helpers Local
Union 886, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, herein called the Union,
and duly served on Triangle Express, Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 16, issued a complaint and notice
of hearing on March 31, 1980, 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
and complaint and notice of hearing before an ad-
ministrative 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 January 10,
1980, following a Board election in Case 16-RC-
7984, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about January 16 and
March 10, 1980, and at all times thereafter, Re-
spondent 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 April 25, 1980, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On April 25, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on May 14,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
Official notice is taken of the record in the representation proceed-
ing, Case 16-RC-7984, 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
(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.CVa. 1967), Follerr Corp., 164 NLRB 378 (1967). enfd 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended
250 NLRB No. 176
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause. 2
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
admits its refusal to bargain, but, in its answer and
response to the Notice To Show Cause, denies that
it thereby violated Section 8(a)(5) and (1) of the
Act in that the election held on September 7, 1979,
should have been set aside on the ground that four
employees, whose votes could have affected the
outcome of the election, were illegally disenfran-
chised, their names having been excluded from the
Excelsior list because of inadequate Board instruc-
tion. 3 It further asserts that failure to grant a hear-
ing on the "substantial and material" objections it
raised to the election would be a denial of due
process. Counsel for the General Counsel argues
that Respondent's contentions are without merit as
they raised issues which were presented to and de-
cided by the Board in the underlying representa-
tion case. We agree.
A review of the record herein including that in
Case 16-RC-7984 shows the following: On Sep-
tember 7, 1979, an election was held pursuant to a
Stipulation for Certification Upon Consent Election
in which a majority of the unit employees designat-
ed the Union as their representative for the purpose
of collective bargaining. Thereafter, Respondent
filed timely objections to the conduct of the elec-
tion which were overruled in their entirety by the
Regional Director in his Report on Objections,
issued October 22, 1979. Thereafter, Respondent
filed with the Board its exceptions to the Regional
Director's Report on Objections. On January 10,
1980, the Board issued its Decision and Certifica-
tion of Representative 4 in which it adopted the Re-
2 It also filed a motion for oral argument and permission to file amiwuc
briefs. This motion is denied as the record. including Respondent's
answer and the responses to the Notice To Show Cause, adequately pre-
sents the issues and the positions of the parties Respondent further filed
with its response a motion to remand the case to the Regional Director
for a hearing In view of our decision here, we find the motion is without
merit and it is denied
3 In its answer Respondent in opposition to the allegations of the com-
plaint also adverts to certain alleged. preelection, improper mlsrepresenta-
tions and threats by the Union assertedly invalidating the Union's certifi-
cation and. thus, its representative status. These contentionsh uere not
raised in the response to the Notice To Show Cause aind in ans esent
swere considered and rejected by the Regional Direcltor and Board in the
underlying representation case
Not reported in volumes of Board Decisions
137
I)ECISIONS OF NATIONAl. I AO()R REIATIONS BOARD
and certified the Union as the bargaining repre-
sentative of the employees in the appropriate unit.
By letters dated January 14 and March 5, 1980,
the Union requested Respondent to recognize it as
the exclusive collective-bargaining representative
of Respondent's employees in the appropriate unit
and to bargain with it collectively as the exclusive
collective-bargaining representative of such em-
ployees. Since on or about January 16 and specifi-
cally by letter dated March 10, 1980, and at all
times thereafter, Respondent has refused, and is
continuing to refuse, to recognize and bargain with
the Union as the exclusive bargaining representa-
tive of the unit employees.
As noted, Respondent seeks to justify its refusal
to recognize and bargain with the Union on the
grounds that "due to the disenfranchisement of
four employees as a result of inadequate instruc-
tions from the Regional Director to Respondent,
the certification of [the] . . . Union is void as a
matter of law." More specifically it contends that
the Regional Director and the Board improperly
overruled its objections without holding a hearing
on the alleged factual issues raised. In view of
these asserted errors it contends, in effect, that the
Union was not, though certified, the lawful bar-
gaining representative of unit employees.
The issues which Respondent seeks to raise at
this time were raised in Respondent's exceptions to
the Regional Director's report and necessarily
found to be without merit in the Board's Decision
adopting the Regional Director's findings and rec-
ommendations that Respondent's objections to the
election be overruled and the Union certified. It
thus appears that Respondent is attempting to raise
again the issues which were specifically considered
and resolved by the Regional Director and the
Board in the underlying representation case.
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
to relitigate issues which were or could have been
litigated in a prior representation proceeding.5
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
, See Pittsburgh Plate Glass Co. v N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(0 and 102 69(c).
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 RESPONDENTI
Respondent is, and has been at all times material
herein, an Oklahoma corporation with its principal
place of business at Oklahoma City, Oklahoma,
where it is engaged in the business of freight deliv-
ery. In the past year it purchased goods and mate-
rials valued in excess of $50,000 directly from firms
outside the State of Oklahoma, which goods and
materials were delivered at its Oklahoma location.
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
Chauffeurs, Warehousemen and Helpers Local
Union 886, affiliated with International Brother-
hood of Teamsters, 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 Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All regular full-time and regular part-time
truckdrivers, checkers and dockmen employed
by Respondent at its facilities in Oklahoma
City, Shawnee, El Reno, Guthrie and Still-
water, Oklahoma; excluding office clerical em-
ployees, guards, and supervisors as defined in
the Act.
2. The certification
On September 7, 1979, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 16, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on January
1374
TRIANGLE EXPRESS, INC
10, 1980, and the Union continues to be such exclu-
sive representative within the meaning of Section
9(a) of the Act.
B. The Request 7b Bargain and Respondents
Refusal
Commencing on or about January 14 and March
5, 1980, and at all times thereafter, the Union has
requested Respondent to bargain collectively with
it as the exclusive collective-bargaining representa-
tive of all the employees in the above-described
unit. Commencing on or about January 16, and
more specifically by letter dated March 10, and
continuing at all times thereafter to date, Respond-
ent has refused, and continues to refuse, to recog-
nize and bargain with the Union as the exclusive
representative for collective bargaining of all em-
ployees in said unit.
Accordingly, we find that Respondent has, since
January 16 and March 10, 1980, and at all times
thereafter, refused to bargain collectively with the
Union as the exclusive representative of the em-
ployees in the appropriate unit, and that, by such
refusal, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of 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.
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/h/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:
CONCI.USIONS OF LAW
1. Triangle Express, Inc., is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Chauffeurs, Warehousemen and Helpers Local
Union 886, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All regular full-time and regular part-time
truckdrivers, checkers and dockmen employed by
Respondent at its facilities in Oklahoma City.
Shawnee, El Reno, Guthrie, and Stillwater, Okla-
homa; excluding office clerical employees, guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within meaning of Section 9(b) of the Act.
4. Since January 10, 1980, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about January 16 and
March 10, 1980, and at all times thereafter, to bar-
gain collectively with the above-named labor orga-
nization as the exclusive bargaining representative
of all the employees of Respondent in the appropri-
ate unit, Respondent has engaged in and is engag-
ing 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)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Triangle Express, Inc., Oklahoma City, Oklahoma,
its officers, agents, successors, and assigns, shall:
1375
DECISIONS OF NATIONAL .AHBOR RELATI()NS O()ARD
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Chauffeurs, Ware-
housemen and Helpers Local Union 886, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of Amer-
ica, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All regular full-time and part-time truck-
drivers, checkers and dockmen employed by
Respondent at its facilities in Oklahoma City,
Shawnee, El Reno, Guthrie and Stillwater,
Oklahoma; excluding 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 Oklahoma City, Shawnee, El
Reno, Guthrie, and Stillwater, Oklahoma, facilities
copies of the attached notice marked "Appendix."6
Copies of said notice, on forms provided by the
Regional Director for Region 16, 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 insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 16,
in writing, within 20 days from the date of this
I 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Relations Board."
Order, what steps have been taken to comply here-
with.
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 Chauffeurs, Warehousemen and Helpers
Local Union 886, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen, and Helpers of America, as the ex-
clusive representative of the employees 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 regular and full-time and regular part-
time truckdrivers, checkers and dockmen
employed by us at our facilities in Oklahoma
City, Shawnee, El Reno, Guthrie and Still-
water, Oklahoma; excluding office clerical
employees, guards, and supervisors as de-
fined in the Act.
TRIANGLE EXPRESS, INC.
1 37h