Silver Sand Co. of Leesburg, Inc.

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Silver Sand Co. of Leesburg, Inc. and Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 385, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 12-CA-5171 September 10, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on April 28, 1971, by Team- sters, Chauffeurs, Warehousemen and Helpers Local Union No. 385, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, and duly served on Silver Sand Co. of Leesburg, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 12, issued a complaint on May 21, 1971, 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 a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on March 29, 1971, following a Board election in Case 12-RC-3698 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about April 1, 1971, and at all times thereafter, Respondent has refused, and contin- ues 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. The complaint also alleged that on or about May 3, 1971, certain of the Respondent's employees went on strike and that this strike was caused and/or prolonged by the Respondent's refusal to bargain with the Union. On May 28 and 29, 1971, respectively, Respondent filed its answer and amended answer to the complaint admitting in part, and denying in part, the allegations in the complaint. The Respondent specifically admitted that the aforesaid strike was caused and/or prolonged by the Respondent 's refusal to bargain with the Union. I Official notice is taken of the record in the represen tation proceeding, Case 12-RC-3698, as the term "record" is defined in Secs 102 68 and 102 69(f) of the Board's Rules and Regulations , Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, On July 6, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, praying the Board to grant the motion and, further, moving that a Decision and Order be entered, providing an appropriate remedy for the unfair labor practices found, including the unfair labor practice strike provisions. Subsequently, on July 9, 1971, 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. No response to the Notice To Show Cause was received from the Respondent. In a response filed July 12, 1971, the Union expressed its agreement with the General Counsel's motion. 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 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 The record in Case 12-RC-3698 shows that, pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on November 13, 1970, in which a majority of the employees in the stipulated unit selected the Union as their collective-bargaining representative. Thereafter, the Respondent filed timely objections to the election and to conduct affecting the results of the election. Although 15 objections were presented, the Respondent offered evidence with respect to only 7 of them. These 7 objections alleged in substance that: (1) The Union threatened employees with discharge if they did not join the Union; (2) the Union threatened employees with such "serious consequences" if they did not sign union cards that some employees had resigned from the Respondent's employ; (3) the Union coerced employees by telling them that, if it got in, it would have certain supervisors terminated; (4) the Union coerced and threatened employees; (5) the Regional Director denied the Respondent due process by applying the Excelsior case; (6) the Union made material misrepresentations; and (7) a prospective employee was denied employment because he was against the Union. The Regional Director investigated the objections and on December 21, 1970, issued and served on the parties his Report on Objections. In that Report, he found no need for a hearing, as requested by the 1968), Golden Age Beverage Co, 167 N LRB 15 I, Intertype Co v Penello, 269 F Supp 573 (D.C. Va, 1967); Follett Corp, 164 NLRB 378, enfd. 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA. 193 NLRB No. 20 SILVER SAND CO. Respondent, and recommended that the objections be overruled in their entirety, on the grounds that the alleged threats were not attributable to the Union, there was no evidence to show that an atmosphere of fear and repression had been created, the prospective employee involved in Objection 7 was denied employ- ment because of poor performance as a student driver, and the application of Excelsior was appropri- ate. Accordingly, he recommended that the Union be certified. Thereafter, the Respondent filed with the Board exceptions to the Regional Director's Report, again advancing the arguments and contentions raised in its objections. After thorough consideration, the Board, on March 29, 1971, issued its Decision and Certifica- tion of Representative in which it adopted the Regional Director's recommendation that the Res- pondent's objections be overruled in their entirety and the Union be certified. In its answer and amended answer to the complaint the Respondent reiterates the position set forth in its objections and exceptions. Although the parties were given an opportunity to show cause why the Motion for Summary Judgment should not be granted, the Respondent has not replied. 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.2 All issues raised by the Respondent in this proceed- ing 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.3 We shall, accordingly, 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 THE RESPONDENT Respondent is now, and has been at all times material herein, a corporation duly organized under 8 See Pittsburgh Plate G l a s s C o v N.L R B, 313 U S 146, 162 (1941); Rules and Regulations of the Board, Secs . 102.67(f) and 102.69(c) 3 In its answer and amended answer to the complaint, the Respondent admits all the factual allegations of the complaint except that it denies the status of the Union as a labor organization, stating that it is without 99 and existing by virtue of the laws of the State of Florida. At all times material herein, Respondent has maintained operations in Leesburg, Brooksville, and Orlando. Florida, and is engaged in the sale and distribution of sand, gravel, and other related aggre- gates. During the past 12 months Respondent purchased and received goods and materials valued in excess of $50,000 at its Florida operations, directly from points outside the State of Florida and/or from Florida suppliers who received said goods and materials directly from points outside the State of Florida. 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. II. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs , Warehousemen and Help- ers Local Union No. 385 , affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen 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 the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All local and long distance truck drivers, including owner operators , mechanics and center sand employees employed by the Respondent at its facilities located at Leesburg , Brooksville, and Orlando, Florida ; but excluding office clerical employees, heavy equipment operators , guards and supervisors as defined in the Act. 2. The certification On November 13, 1970, 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 12, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the knowledge as to such status. As this issue was already raised and determined by the Board in the underlying representation proceeding, Case 12-RC-3698, it is not subject for litigation in the instant unfair labor practice proceeding. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining representative of the employees in said unit on March 29, 1971, 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 March 31, 1971, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about April 1, 1971, 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 representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since April 1, 1971, 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, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. C. The Unfair Labor Practice Strike The Respondent's employees struck on May 3, 1971. The complaint alleges and the Respondent's amended answer admits that, the strike was caused and/or prolonged by its refusal to bargain with the Union . As the Respondent's refusal to bargain was an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act, we find that the strike which was caused and/or prolonged thereby is an unfair labor practice strike and that the striking employees are unfair labor practice strikers. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section 1, 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 com- merce and the free flow of commerce. 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 take certain affirmative action designed to effectuate the policies of the Act. As the Respondent on or about April 1, 1971, and at all times thereafter, refused and still refuses to bargain with the Union as the representative of its employees in an appropriate unit, we shall order that the Respondent, 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 certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). It has also been found that the strike by the Respondent's employees which began on May 3, 1971, was caused and prolonged by the Respondent's refusal to bargain. The striking employees were, therefore, entitled to reinstatement upon application, irrespective of whether or not their positions were later filled by the Respondent's hire of other employ- ees. Accordingly, in order to restore the status quo as it existed prior to the time the Respondent engaged in the unfair labor practices and thereby to effectuate the policies of the Act, we shall order that the Respondent, upon unconditional application, offer reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all its employees who went on strike on May 3, 1971, or thereafter, dismissing, if necessary, any persons hired on or after that date. We shall also order the Respondent to make whole those employees who went on strike on May 3, 1971, or thereafter, for any loss of pay they may have suffered or may suffer by reason of the Respondent's refusal, if any, to reinstate them, by payment to each of them a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date on which he applies for reinstatement to the date of the Respondent's offer of reinstatement. Loss of pay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Interest shall be added at the rate of 6 percent per annum in accord with the decision of the Board in Isis Plumbing & Heating Co., 138 NLRB 716. We reserve the right to modify the backpay and SILVER SAND CO. reinstatement provisions herein if made necessary by circumstances not now apparent. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Silver Sand Co. of Leesburg, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 385, 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 local and long distance truck drivers, including owner operators, mechanics and center sand employees employed by the Respondent at its facilities located at Leesburg, Brooksville, and Orlan- do, Florida; but excluding office clerical employees, heavy equipment operators, 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 March 29, 1971, 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 April 1, 1971, 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees 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, 4 In the event that the Board's 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" 101 Silver Sand Co. of Leesburg, Inc., 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 Teamsters, Chauffeurs, Ware- housemen and Helpers Local Union No. 385, affiliat- ed 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 local and long distance truck drivers, including owner operators, mechanics and center sand employees employed by the Respondent at its facilities located at Leesburg, Brooksville, and Orlando, Florida; but excluding office clerical employees, heavy equipment operators, 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. 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Upon unconditional application, offer immedi- ate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all those employees who went on strike on May 3, 1971, or thereafter, dismissing, if necessary, any person hired on or after that date, and make them whole in the manner set forth in the section of this Decision entitled "The Remedy" for any loss of pay which they may have suffered or may suffer by reason of the Respondent's refusal, if any, to reinstate them. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and to determine reinstatement rights under the terms of this Order. (d) Post at its Leesburg, Brooksville, and Orlando, Florida, operations copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 12, shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after being duly signed by Respondent's representa- tive, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Team- sters,. Chauffeurs, Warehousemen and Helpers Local Union No. 385, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers 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 representative 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 under- standing in a signed agreement. The bargaining unit is: All local and long distance truck drivers, including owner operators, mechanics and center sand employees employed by the Respondent at its facilities located at Lees- burg, Brooksville, and Orlando, Florida; but excluding office clerical employees, heavy equipment operators, guards and supervisors as defined in the Act. WE WILL, upon application, offer to all employ- ees who went on strike on or about May 3, 1971, or thereafter, immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may suffer as a result of our refusal to reinstate them upon such application. SILVER SAND CO. OF LEESBURG, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 813-228-7227.