Ploof Transfer Co., Inc.

PLOOF TRANSFER COMPANY, INC. 965 Ploof Transfer Company, Inc. and Independent Work- ers Union, Inc. Case 12-CA-5646 August 18, 1972 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on May 1, 1972, by Independ- ent Workers Union, Inc., herein called the Union, and duly served on Ploof Transfer Company, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12, issued a complaint on May 16, 1972, 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 14, 1972, following a Board election in Case 12-RC-3998, the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate;' and that, commencing on or about March 18, 1972, and more specifically by letters dated March 22 and 28, 1972, and April 19, 1972, 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 May 25, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 1, 1972, counsel for the General Counsel filed with the Regional Director a Motion for Partial Summary Judgment which was referred to and filed directly with the Board on June 5, 1972. The motion requested that summary judgment be granted on the 8(a)(1) and (5) allegations of the complaint and that this case thereafter be remanded to the Regional Director for the sole purpose of holding a hearing before the Trial Examiner to determine whether the strike which commenced on April 23, 1972, was caused or prolonged by the Respondent's unfair labor practices and whether such strike is an unfair labor practice strike. Subsequently, on June 15, 1972, I Official notice is taken of the record in the representation proceeding, Case l2-RC-3998, 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 Electrosystemr, Inc, 166 NLRB 938, enfd 388 F.2d the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Partial Summary Judgment should not be granted, and if granted, why the case should not be remanded to the Regional Director for the sole purpose of conducting a hearing before a Trial Examiner to determine whether the April 23, 1972, strike was an unfair labor practice strike as alleged in the complaint. Respondent thereafter filed a response (called Answer) 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 and response to the Notice To Show Cause, the Respondent contends that the General Counsel's Motion for Partial Summary Judgment should be denied because the Regional Director's bargaining unit determination in Case 12-RC-3998 allegedly was improper, arbitrary, and/or capricious, and, therefore, the Union is not the exclusive bargaining representative of the unit employees. We find no merit in the Respondent's contention. The record in Case 12-RC-3998 reflects that after a hearing, the Regional Director on February 2, 1972, issued his Decision and Direction of Election finding appropriate a unit limited to employees at the Respondent's Jacksonville, Florida, terminal rather than a unit of the Respondent's five terminals. In so finding, the Regional Director considered the allega- tion of functional integration of all the terminals, as well as the earlier decisions in Cases 12-RC-1928 and 12-RC-3665 where petitions for single terminal units were dismissed. Thereafter, the Respondent timely filed with the Board a request for review of the Regional Director's Decision specifically raising the same unit issues . On February 23, 1972, the Board denied the request as it raised no substantial issues warranting review. The Union won the ensuing election held on March 2, 1972. The Respondent then filed with the Regional Director timely objections, seeking in effect, reconsideration of the Regional Director's unit determination. On March 14, 1972, the Regional Director issued his Supplemental Decision on Objec- 683 (CA 4, 1968), Golden Age Beverage Co, 167 NLRB 151; Intertype Co v. Penello, 269 F Supp 573 (DC Va, 1967); Follett Corp, 164 NLRB 378, enfd 397 F 2d 91 (C.A 7, 1968), Sec 9(d) of the NLRA 198 NLRB No. 125 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions, Order, and Certification of Representative in which he: (1) overruled the objections as being without merit because they alleged nothing new and not previously raised or considered; (2) denied the Respondent's request for reconsideration; and (3) certified the Union. The Respondent timely filed with the Board a request for review of the Regional Director's Supplemental Decision on Objections, Order, and Certification of Representative. On April 5, 1972, the Board denied the request as not raising 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.2 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 circumstances3 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.4 We shall, accordingly, grant the Motion for Partial Summary Judgment. As we have granted the General Counsel's Motion for Partial Summary Judgment, and no good cause to the contrary being shown, we shall remand the instant case to the Regional Director for the sole purpose of holding a hearing before a Trial Examiner to determine whether or not the strike which commenced on April 23, 1972, was an unfair labor practice strike as alleged in the complaint. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Florida corporation with its office and principal place of business in Jacksonville, Florida, where it is engaged in the transportaiton of freight between and through the States of the United States. During the past 12 months, the Respondent Y See Pittsburgh Plate Glass Co v. NLRB, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102.69(c) 3 The Respondent's contention that the petitioning union in Case 12-RC-4141 allegedly agrees with the Respondent that the Regional Director's unit determination herein in Case 12-RC-3998 was erroneous does not constitute special circumstances and is irrelevant and immaterial to the unit determination herein. 4 In its answer to the complaint , the Respondent alleges that it specifically requested the Regional Director for a hearing to submit additional evidence in support of its objections and that the failure to grant received annual income derived from the interstate transportation of freight, in excess of $50,000. 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. H. THE LABOR ORGANIZATION INVOLVED Independent Workers Union, Inc., 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 constitue a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All local drivers, helpers, mechanics and other shop employees, riggers and yard employees, fuel and tire employees, and warehouse employees employed by the Employer at its Jacksonville, Florida, terminal; but excluding road drivers, office clerical employees, guards, and supervisors as defined in the Act. 2. The certification On March 2, 1972, 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 bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on March 14, 1972, 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 17, 1972, and a hearing constitutes sufficient error to have the instant complaint dismissed We do not agree The objections alleged nothing new and not previously raised by the Respondent or considered by the Regional Director prior to the issuance of his Decision and Direction of Election . Further, prior to the election, the Respondent raised the same issue of inappropriate unit in its request for review which the Board denied as not raising any substantial issues warranting review As the Respondent's submission did not raise material or substantial issues of fact warranting a hearing, none was required. See O S Walker Company, Inc, 195 NLRB No. 180, and cases cited therein PLOOF TRANSFER COMPANY, INC. specifically by letters dated March 17 and 24, 1972, and April 6 and 14, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bar- gaining representative of all the employees in the above-described unit. Commencing on or about March 18, 1972, and more specifically by letters dated March 22 and 28, 1972, and April 19, 1972, 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 March 18, 1972, 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 commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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). 967 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Ploof Transfer Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Independent Workers Union, Inc., is a labor organization within the meaning of Section 2(5) of the Act. 3. All local drivers, helpers, mechanics and other shop employees, riggers and yard employees, fuel and tire employees, and warehouse employees employed by the Employer at its Jacksonville, Florida, terminal; but excluding road drivers, office clerical employees, guards, and supervisors as de- fined 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 14, 1972, 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 March 18, 1972, 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, Ploof Transfer Company, 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 Independent Work- ers Union, Inc., as the exclusive bargaining repre- 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentative of its employees in the following appropri- ate unit: All local drivers, helpers, mechanics and other shop employees, riggers and yard employees, fuel and tire employees, and warehouse employees employed by the Employer at its Jacksonville, Florida, terminal; but excluding road drivers, office 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. 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 Jacksonville, Florida, terminal copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 12, 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 thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) 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. IT IS FURTHER ORDERED that the instant proceeding be, and it hereby is, remanded to the Regional Director for Region 12 for the sole purpose of holding a hearing before a Trial Examiner to determine whether or not the strike which com- menced on April 23, 1972, was an unfair labor practice strike as alleged in the complaint herein. 5 In the event 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 be changed to read "Posted Pursuant to a Judgment of the United Sates Court of Appeals Enforcing an Order of the National Labor Relations Board " 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 Inde- pendent Workers Union, Inc., 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 local drivers, helpers, mechanics and other shop employees, riggers and yard employees, fuel and tire employees, and warehouse employees employed by the Employer at its Jacksonville, Florida, termi- nal; but excluding road drivers, office clerical employees, guards, and supervisors as defined in the Act. PLOOF TRANSFER COMPANY, 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 compli- ance with its provisions may be directed to the Board's Office, Room 706, Federal Office Building, 500 Zack Street, P.O. Box 3322, Tampa, Florida 33602, Telephone 813-228-7711, Extension 227.