Intermodal Transportation Services, 1044 (1979)

D)IECISIONS OF NATIONA. LABOR RELATIONS BOARD Intermodal Transportation Services, A Division of GAB Business Services, Inc., andTeamsters Industrial, Technical & Automotive Local Union 255,

International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hlelpers of America. Case 36 CA 3445

September 13, 1979 DECISION AND ORDER

By MItMBsIRS JENKINS MURPIIY, AND TRUIISI)AII;F Upon a charge filed on May 2 1979. by Teamsters Industrial, Technical & Automotive Local Union :255, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Intermodal Transportation Services. A Division of GAB Business Services, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 19,'1 issued a complaint and notice of hearing on May 11, 1979,2 against Respondent alleging that Respondent had engaged in and was engaging in unfair 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 March 26, 1979, following a Board election in Case 36-RC 4133, the Union was duly certified as the exclusive collectivebargaining representative of Respondent's employees in the unit found appropriate: 3 and that, commencing on or about April 25, 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. Thereafter,

Respondent timely filed its answer to the complaint IThe number of the case herein is designated by the subregion in which the charge was filed. The underlying representation matter referred to infra also is designated by its subregion filing number.

I In his Motion lor Summary Judgment counsel for the General Counsel inadvertently misstated the date of the complaint's issuance and the date Respondent filed its answer.

Official notice is taken of the record in the representation proceeding,

Case 36 RC 4133. 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 LT' Electrossstems, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir.

1968): Golden Age Beverage (o., 167 NLRB 151 (1967). enfd. 415 F.2d 26 (5th Cir. 1969): Intertspe Co. v. Penello, 269 F.Supp 573 (D.C. Va. 1967):

Foilett Corp.. 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th (ir. 1968): Sec.

9(d) of the NLRA, as amended.

admitting in part and denying in part the allegations in the complaint.

On June II, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 15, 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 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 Respondent denies the material allegations of the complaint and asserts as affirmative defenses that: (I) the conflict of interest that would be created by the Union's representation of Respondent's employees bars the certification of the Union; (2) the certification of the Union, as applied, violates Section 9(b)(3) of the Act; and (3) the unit certified by the Board is inappropriate for purposes of collective bargaining. Respondent further asserts in its response to the Notice To Show Cause that it is prepared to adduce newly discovered evidence substantiating its claim that union representation of its employees would cause a conflict of interest among its employees and employees of its clients represented by the same union, that the marine survey industry isa novel industry presenting special circumstances which have not previously been considered by the Board, and that the instant case presents substantial and material issues of law and fact which warrant a hearing. The General Counsel asserts that Respondent's general defense that the certification was invalid raised matters which were litigated in the underlying representation proceeding and fully considered by the Board in denying Respondent's request for re' view, and that the Board's decision on these matters is therefore not relitigable in this proceeding.

Our review of the record herein, including the record in Case 36-RC-4133, discloses that an election was directed by the Regional Director for Region 19 on February 14, 1979, in a unit of:

All employees of Intermodal Transportation Services, A Division of GAB Business Services, Inc., employed at its 10801 North Lombard, Portland,

Oregon, facility but excluding all office clerical employees, and guards, professional employees and supervisors as defined in the Act.

244 NLRB No. 159

1044

INTERMODAL TRANSPORTATION SERVICES Thereafter Respondent timely filed a request for review of the Regional Director's Decision and Direction of Election in that case. That request was denied by the Board. On March 16, 1979. the election, as directed, was conducted. and a majority of the votes were cast for the Union.

On March 26, 1979, the Acting Office-in-Charge for Subregion 36 issued a Certification of Representative. Thereafter, on March 27, 1979, Respondent filed a 'Motion To Stay Certification and To Either Reconsider Employer's Request for Review or, Alternatively, To Reopen the Record.' By telegram dated April 19, 1979, the Board denied Respondent's motion in its entirety. In doing so the Board specifically stated that 'It]he purported new evidence, if adduced at a hearing, would not warrant a contrary result.' By letters dated April 6 and 30 the Union made requests that Respondent commence bargaining with it. Respondent, in a letter dated April 25, refused and continues to refuse to bargain with the Union, stating in part that 'a severe conflict of interest is created by the involvement ofyour organization [the Union]...

the Board also erred in determining the scope of the smallest appropriate unit . . . . and] the only procedure to obtain judicial review of a Board decision requires that ITS [Intermodal Transportation Services] decline to bargain with you .... ' In the underlying representation proceeding the Board rejected, inter alia, Respondent's contention that the certification of the Union would case an 'untenable conflict of interest between Intermodal employees and employees of its clients who are represented by the same Union' by twice denying review of the Regional Director's Decision and Direction of Election therein. Indeed, in the second of those actions4 the Board specifically advised Respondent that the holding would remain the same even if the evidence then being proffered in support of its final request for review were adduced at a hearing.5

In urging its conflict-of-interest contention upon the Board in this proceeding Respondent is again offering to adduce evidence of the same nature which the Board rejected in the representation proceeding.

We deem such evidence to be no more convincing as a reason for holding a hearing here than the Board did in the representation proceeding, and consequently we conclude that there is no basis for allowing the relitigation of the conflict-of-interest issue in the instant case. Respondent has...