Pacific Intermountain Express, 769 (1979)

PACIFIC INTERMOUNTAIN EXPRESS

Pacific Intermountain Express and Brotherhood of Teamsters and Auto Truck Drivers, Local No. 70,

International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 32-CA- 1920

September 28, 1979 DECISION AND ORDER

BY MEMBERS JENKINS, MURPHY, AND TRUESDALE Upon a charge filed on July 9, 1979, by Brotherhood of Teamsters and Auto Truck Drivers, Local No. 70, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Pacific Intermountain Express, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 32, issued a complaint and notice of hearing on July 17, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an 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 24, 1979, following a Board election in Case 32-RC-420, the Union was duly certified as the exclusive collectivebargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about June 13, 1979, 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 26, 1979, Respondent filed its answer to the complaint, in which it admitted the filing and service of the charge, the jurisdictional conclusions as to Respondent, and the labor organization status of the Union, but denied all other allegations of the complaint without providing any affirmative defense.

On August 10, 1979, counsel for the General Counsel filed directly with the Board a motion to strike portions of Respondent's answer and Motion for IOfficial notice is taken of the record in the representation proceeding.

Case 32-RC-420, as 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 Electrosytems, 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.C. Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA. as amended.

Summary Judgment with exhibits attached, and a memorandum in support thereof, alleging, inter alia, that Respondent's answer to the complaint failed to raise factual issues warranting an evidentiary hearing, and therefore requesting the Board to grant the Motion for Summary Judgment. Subsequently, on August 17, 1979, 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 the Notice To Show Cause.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended. the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

Upon the entire record in this proceeding, the Board makes the following:

Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent attacks the validity of the Union's certification on the ground that the election was not a free and secret election in accordance with the purposes and policies of the National Labor Relations Act. The General Counsel contends that Respondent's answer raises no issue of fact warranting a hearing, and that, accordingly, he is entitled to summary judgment as a matter of law. We agree with the General Counsel.

Our review of the record, including that in Case 32-RC-420, shows that an election was conducted pursuant to a Stipulation for Certification Upon Consent Election on September 15, 1978, in a unit of all sales representatives. The tally was three for, and two against, the Union; there were no challenged ballots.

Respondent filed its objections to the election, asserting, inter alia, improper conduct by the Board agent conducting the election in failing to shake up the ballots in the ballot box before opening the counting the ballots, thereby allegedly making it possible for 'everyone,' including management officials, to know how eligible employees voted. On October 13, 1978, the Regional Director, having duly investigated the matters raised by Respondent's objections, issued his Report on Objections wherein he recommended that the objections be overruled in their entirety and that an appropriate certification of representative issue.

Respondent timely filed with the Board its exceptions to the Regional Director's Report on Objections, together with a brief in support thereof, urging the same arguments and contentions that it now advances as grounds for denying the General Counsel's Motion for Summary Judgment. After considering the record in light of Respondent's exceptions, the Board, on 245 NLRB No. 97

769

DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 24, 1979, issued a Decision and Certification of Representative 2 in which it adopted the Regional Director's findings and recommendations contained in his report, and certified the Union as the collectivebargaining representative of the employees in the appropriate unit. On June 11, 1979, Respondent moved the Board for reconsideration of its Decision and Certification of Representative. On June 21, 1979. the Board rejected the motion as untimely filed. It thus appears that Respondent is attempting to relitigate issues in this proceeding which were decided in the underlying representation case.

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.3

All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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...