Pacific Intermountain Express Co., 470 (1968)

Pacific Intermountain Express Company and International Brotherhood of Teamsters , Chauffeurs,

Warehousemen and Helpers of America, Local Union No. 961. Case 27-CA-2544

October 30, 1968 DECISION AND ORDER

BY CHAIRMAN MCCULLOCH AND MEMBERS

FANNING AND BROWN

Upon a charge filed by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 961, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 27 issued a complaint dated August 27, 1968 against Pacific Intermountain Express Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices 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 a Trial Examiner were duly served on the parties to this proceeding.

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 threemember panel.

The complaint alleges, in substance, that on July 9

1968, the Union was duly certified as the exclusive bargaining representative of the Respondent's employees in an appropriate unit, and that, on or about July 1, 1968, and thereafter, the Respondent refused to recognize or bargain with the Union as such exclusive bargaining representative, although on or about July 1 and 19, 1968, the Union requested the Respondent to do so. On September 5, 1968,

Respondent filed its answer to the complaint, in which it admitted in part and denied in part the allegations contained therein, and requested that the complaint be dismissed.

On September 16, 1968, the General Counsel filed with the Board a Motion for Summary Judgment, asserting that there were no issues of fact or law requiring a hearing, and requesting the issuance of a Decision and Order finding the violations as alleged in the complaint and remedying the violations. Thereafter, on September 20, 1968, the Board issued an Order Transferring Proceeding to the Board and Notice to Show Cause why General Counsel's Motion for Summary Judgment should not be granted.

Pursuant thereto, Respondent filed a Response to the Notice to Show Cause with a supporting affidavit.

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

RULING ON THE MOTION FOR SUMMARY JUDGMENT

The record before us establishes that the Union filed a petition in Case 27-RC-3386, seeking to represent the Employer's three line driver dispatchers employed at the Denver Terminal. After a hearing, the Regional Director for Region 27 issued a Decision and Direction of Election on May 23, 1968, in which he found appropriate for bargaining the following unit of employees:

All line dispatchers employed by Pacific Intermountain Express Company, at 3223 East 46th Avenue, Denver, Colorado, but excluding all salesmen, guards, professional employees, and supervisors as defined in the Act and other employees presently covered under a labor agreement.

On June 1, 1968, the Respondent filed a Request for Review of the Decision and Direction of Election.

It contended that the Regional Director's unit finding was inappropriate on the ground that the line dispatchers are supervisors within the meaning of Section 2(11) of the Act. On June 18, 1968 the Board denied review, thereby affirming the correctness of the Regional Director's unit determination.

On June 24, 1968, an election was held, in which a majority of the valid ballots were cast for the Union.

No objections having been filed, the Union was certified on July 9, 1968.

On or about July 1, 1968, and continuing to date, and more particularly on July 1 and 19, 1968, the Union requested, and is requesting that Respondent bargain collectively with it. On or about July 1, 1968, and continuing to date, and more particularly on July 19, 1968, Respondent has refused to bargain collectively with the Union, and the Union filed the charges upon which these proceedings are predicated.

In its Response to the Notice to Show Cause,

Respondent predicates its refusal to bargain upon its contention that line drivers are supervisors within the meaning of the Act. Respondent accordingly contests the validity of the Board-conducted election and the Certification of Representative based thereon.

It is well settled that in the absence of newly discovered or previously unavailable evidence, a respondent in a Section 8(a)(5) proceeding is not entitled to relitigate issues which were or could have been raised in the prior representation proceeding.' As the contentions now made were raised at the 1 Pittsburgh Plate Glass Company v N.L.R.B., 313 U.S. 146, The Sheffield Corporation , 163 NLRB No. 34, and Collins & Aikman Corp., 160 NLRB 1750

173 NLRB No. 75

PACIFIC INTERMOUNTAIN EXPRESS CO earlier hearing in the representation case, and were considered and rejected, and as all factual allegations of the complaint are admitted by Respondent's answer to the complaint or stand admitted by the failure of Respondent to controvert the averments of the General Counsel's motion, there are no matters in issue requiring a hearing before a Trial Examiner.

Accordingly, the General Counsel's Motion for Summary Judgment is granted.

On the basis of the record before it, the Board makes the following.

FINDINGS OF FACT

I THE BUSINESS OF THE RESPONDENT

Respondent is and has been at all times material herein, a corporation duly organized and existing under the laws of the State of Nevada and has maintained its principal place of business in Oakland,

California,...