W. F. Lane & Associates, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1975

218 N.L.R.B. 391 (N.L.R.B. 1975)

W. F. LANE & ASSOCIATES, INC. 391
W. F. Lane & Associates, Inc. and Chauffeurs,
Teamsters & Helpers Local No. 391 , affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case I1-CA-5774
June 10, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on June 6, 1974, by Chauf-
feurs, Teamsters & Helpers Local No. 391, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on W. F.
Lane & Associates, Inc., herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 11, issued a complaint on June 28, 1974,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Sections 8(a)(5) and (1) and 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing
before an Administrative 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 May 15, 1974,
following a Board election in Case I I-RC-3868 the
Union was duly certified as°the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;" and that, commenc-
ing on or about May 29, 1974, 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 July I1 and 22, 1974, respectively, Respondent
filed its answer and amended answer to the com-
i Official notice is taken of the record in the representation proceeding,
Case 11-RC-3868, 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
(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 On or about July 11, 1974, the Respondent, pursuant to Sec . 102.24 of
the Board's Rules and Regulations , filed with the Board's Chief Admnustra-
tive Law Judge a motion to dismiss the complaint herein (on the grounds
that the Board had no jurisdiction over the ' subject matter and over the
Respondent; that the complaint fails to state a claim upon which relief can
be granted ; that the complaint fails , to join an indispensable party, the State
of North Carolina; and that the Board violated the Administrative
Procedure Act by purporting to assertJurisdiction in Case 11-RC-3868). On
August 23, 1974, counsel for the General Counsel filed opposition to the
Respondent's motion to dismiss (alleging, in substance , that (1) the issue of
218 NLRB No. 74
plaint admitting in part, and denying in part, the
allegations in the complaint.
On August 2, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. On August 5, 1974, the Respon-
dent filed a motion to quash General Counsel's
Motion for Summary Judgment or, in the alternative,
to defer consideration of said motion until Respon-
dent's motion to dismiss, addressed to the Board's
Chief Administrative Law Judge, has been ruled
upon.2 Subsequently, on March 3, 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. Respondent thereafter filed a response to
Notice To Show Cause and Motion for Summary
Judgment in favor of the Respondent or for
dismissal.
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 and amended answer to the com-
plaint and response to the Notice To Show Cause,
the Respondent contends basically that the' General
Counsel's Motion for Summary Judgment should be
denied-and the complaint herein dismissed because
the Board improperly asserted jurisdiction over the
Respondent which, because its operations are so
intimately connected with that of the State of North
Carolina's Alcoholic Beverage Commission, herein
called ABC, is exempt by virtue of Section 2(2) of the
Act.3 The General Counsel contends that the
Respondent is attempting to relitigate an issue which
the Board has considered and determined in the
underlying representation Case 11-RC-3868 and
jurisdiction over the subject matter and over the Respondent had been
decided by the Board in Case 11-RC-3868 and the admitted allegations of
the complaint state a sufficient basis in support thereof ; (2) the complaint
states a clear claim under the Act upon which relief can be granted; the
State of North Carolina , expressly excluded from the Board's jurisdiction,
cannot be an indispensable party; (3) the Board correctly asserted
jurisdiction in Case I I-RC-3868 and fully complied with the provisions of
the Administrative Procedure Act; and (4) the Respondent's motion to
dismiss is tantamount to the Motion for Summary Judgment which, under
Sec. 102.24 of the Board's Rules and Regulations, should be filed directly
with the Board before which the General Counsel's Motion for Summary
Judgment is pending). On September 25, 1974, Administrative Law Judge
Schneider issued his Order Denying the Respondent 's Motion to Dismiss
for the reasons stated in the General Counsel 's opposition.
3 Sec. 2(2) of the Act provides that the term "employer" includes any
person acting as an agent of an employer, directly or indirectly, but shall not
include any State or political subdivision thereof.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which it may not do so, herein. We agree with the
General Counsel.
Our review of the record herein reveals that, at, the
hearing on the petition in Case 11-RC-3868, the
Respondent, which is engaged solely in the business
of transporting by motor truck alcoholic,beverages
for the State of North Carolina's Alcoholic Beverage
Commission, moved to dismiss the petition on the
ground that the Respondent comes within the
exemption of Section 2(2) of the Act. In his Decision
and Direction of Election, the Acting Regional
Director, after carefully considering the record facts
concerning the Respondent's operations and the
Respondent's extensive brief, concluded that the 2(2)
exemption did not apply to the Respondent and
therefore he denied the Respondent's motion to
dismiss on jurisdictional grounds. The Respondent
then filed with the Board a timely request for review,
for a stay, and for oral argument reiterating its
jurisdictional contentions. ,On April 10, 1974, the
Board denied the request as raising no substantial
issues warranting review.
In the election conducted on April 19, 1974, eight
ballots were cast for, and four against,,.the Union,
with two ballots challenged. The Respondent filed
timely objections to the election raising again its
jurisdictional arguments and alleging, in substance,
that the, Board abused its statutory authority and
contravened established policy by its assertion of
jurisdiction which unconstitutionally interferes with
the State of North Carolina and with the_Respondent
which is an integral part of, and intimately related to,
the state alcoholic beverage monopoly. On ,May 15,
1974, the Regional Director issued his Supplemental
Decision and Certification of Representative in
which he, found that the Respondent's objections
raised no substantial or material issues warranting a
contrary determination on the jurisdictional ques-
tion, overruled the objections, and certified the
Union.
The Respondent filed with the Board a timely
request for review and motion for stay of the
Regional Director's Supplemental Decision and
Certification of Representative, in which, in sub-
stance, it reiterated its jurisdictional contentions and
moved again to dismiss the representation case
petition. On June 20, 1974, the Board denied the
request as it raised no substantial issues warranting
review.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
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
proceeding were or could have-been litigated- in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered 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.
In its response to the Notice To Show Cause, the
Respondent also argues that the Board's assertion of
jurisdiction over its operations, which are intimately
related to the exempt ABC, is inconsistent with the
recent, precedent in Rural Fire- Protection Company,
216 NLRB No. 95 (1975), where the Board, with
Member Fanning dissenting, found that an employer
providing firefighting services to a municipality
shared the city's 2(2) exemption from Board jurisdic-
tion. It argues, in effect, that the transportation of
intoxicating liquors was an essential part -of the
State's intent to establish a uniform control over the
sale, purchase, transportation,- manufacture, and
possession ,of intoxicating liquors, and that, there-
fore, the performance of the transportation functions
by the Respondent is so intimately connected with
the State's exempted, operations as to warrant
granting the State's-2(2) exemption to the Respon-
dent..We do not agree.,
In .the Rural case, the Board - stated as follows:
"Where the services are intimately connected with
the exempted operations of the institution, the Board
has found that the contractor shares the exemption;
on the other hand, where the services are not
essential to such operations the Board has found that
the contractor is not exempt and asserts jurisdiction
over the _ contractor's activities" (citing Herbert
Harvey, Inc., 171 NLRB 238, 240 (1968)). There was
no intent to establish a per se rule.. Thus, the Board,
in granting the 2(2) exemption under the particular
circumstances, noted not only that the firefighting
service was intimately related to the city's municipal
function, but also that, the employer rather than the
city was performing this essential municipal function.
In the instant case , we do not believe that the
State's control of intoxicating liquors is a function
comparable to the firefighting service 'in the Rural
case which is a universally recognized governmental
function. Further, we note that the Respondent is
performing only the transportation phase of 'the
State's control over intoxicating liquor, whereas in
4 See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S . 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102.67(1) and 102.69(c).
W. F. LANE & ASSOCIATES, INC.
Rural the employer seeking the exemption was itself
performing the very municipal function involved.
Since it appears that the Respondent's transportation
service plays a relatively minor role in the implemen-
tation of the State's responsibility and control over
intoxicating liquors and since this role is not so
essential to the State's function as -to necessarily
deprive employees of their statutory right, under our
Act, to be represented by their duly designated and
certified representative, in all the circumstances
herein we find' that the Rural precedent is distin-
guishable and that the Respondent is not entitled to
share the North Carolina 'ABC's 2(2) exemption.5
Accordingly, we shall grant the General Counsel's
Motion for Summary Judgment .6
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a North Carolina corporation, is
engaged in the transportation of alcoholic beverages
by motor truck from the State of North Carolina's
Alcoholic Beverage Commission's warehouse in
Raleigh, North Carolina, to local Alcoholic Beverage
Commission warehouses throughout the State of
North Carolina. During the past 12 months, the
Respondent rented trucks for which it paid fees in
excess of $100,000 to Ryder Truck Rental, Inc., an
interstate truck rental enterprise which received
revenues in excess of $50,000 directly from customers
located outside the State of North Carolina. During
this same period, Respondent received revenues in
excess of $500,000 from the North Carolina Alcohol-
ic Beverage Commission for the transportation of
alcoholic beverages valued in excess of $189 million,
all of which beverages were shipped to the said
Alcoholic Beverage Commission directly from points
outside the State of North Carolina.
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.
5 Chairman Murphy did not participate in the Rural decision. However,
without expressing an opinion about the relative merits of the majority and
dissenting positions therein , she agrees that this case is distinguishable from
Rural. '
In its answer to the complaint, the Respondent denies the request and
refusal to bargain as alleged in the complaint . Attached to the General
Counsel's Motion for Summary Judgment , as Exits. M, N, and 0, are an
exchange of correspondence between the Union and Respondent and a
letter from the Respondent to the Region. The contents of these letters are
not controverted and are found to be true . In its letter of May 22, 1974, the
Union made a request to the Respondent for a negotiating meeting. In its
May 29, 1974, letter to the Union, the Respondent refused the request on
II. THE LABOR ORGANIZATION INVOLVED
393
Chauffeurs, Teamsters & Helpers Local No. 391,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
M. 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 shifters at the Employer's
Raleigh, North Carolina, facility, excluding all
clerical employees, guards and supervisors as
defined in the Act.
2. The certification
On April 19, 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 11 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 May -15, 1974, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about May 22, 1974, 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 May 29, 1974, 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-
the ground that it was defemng action on the request pending Board ruling
on the Respondent's request for review . In its letter of June 24, 1974, the
Respondent advised the Regional Office that it had received the Board's
denial of its request for review and reiterated its position that-the Board has
no jurisdiction , thereby indicating that its refusal of May 29, 1974, was
continuing . On the basis of these uncontroverted letters, we find that the
allegations of the complaint with respect to the request and refusal to
bargain have been established.
6 In view of our determination herein , we find it unnecessary to rule
upon the General Counsel's motion to strike portions of the Respondent's
answer. -
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since May 29, 1974, 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 I, 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 (CA. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. W. F. Lane & Associates, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Chauffeurs, Teamsters & Helpers Local No.
391, affiliated with the 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 truckdrivers and shifters at the Employer's
Raleigh, North Carolina, facility, excluding all
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 May 15, 1974, 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 May 29, 1974, 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 Respondent, W.
F. Lane & Associates, Inc., Raleigh, North Carolina,
its officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Chauffeurs, Team-
sters & Helpers Local No. 391, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All truckdrivers and shifters at the Employer's
Raleigh, North Carolina; facility, excluding all
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.
W. F. LANE & ASSOCIATES, INC.
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 Raleigh, North Carolina, facility
copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the
Regional Director for Region 11, 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.
(c) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
7 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."
APPENDIX
395
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 Chauf-
feurs, Teamsters & Helpers Local No. 391,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, as the exclusive 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 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 truckdrivers and shifters at the ' Employer's
Raleigh, North Carolina, facility, excluding all
clerical employees, guards and supervisors as
defined in the Act.
W. F. LANE &
ASSOCIATES, INC.