Ploof Transfer Co., Inc.

PLOOF TRANSFER COMPANY, INC. Ploof Transfer Company, Inc. and General Truck Drivers, Chauffeurs, Warehousemen & Helpers Lo- cal No. 270, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind. Case 15-CA-5528 September 25, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO Upon a charge filed on November 25, 1975, by General Truck Drivers, Chauffeurs, Warehousemen & Helpers Local No. 270, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., 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 Re- gional Director for Region 15, issued a complaint on December 31, 1974, 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 and complaint were duly served on the parties to this proceeding. The complaint alleges in substance that on No- vember 4, 1974, following a Board election in Case 15-RC-5435, the Union was duly certified as the ex- clusive collective-bargaining representative of Respondent's employees in the unit found appropri- ate;' and that, commencing on or about November 14, 1974, and at all times thereafter, Respondent has tefused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On January 10, 1975, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint, and setting forth five affirmative de- fenses. On January 17, 1975, counsel for the General Counsel filed directly with the Board a motion to transfer the case to the Board and a Motion for Sum- 'Official notice is taken of the record in the representation proceeding, Case I5-RC-5435, 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 LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F 2d 683 (C A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F 2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F. Supp. 573 (D C. Va., 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968), Sec 9(d) of the NLRA. 719 mary Judgment. Subsequently, on April 1, 1975, 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 Na- tional Labor Relations Board has delegated its• au- thority 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 It is the General Counsel's basic position that all issues in dispute were decided in the representation proceeding and that he is entitled to summary judg- ment as a matter of law. As reflected in its affirma- tive defenses to the complaint, and in its opposition to the General Counsel's motion, Respondent's basic defenses to the alleged 8(a)(5) and (1) violations are as follows: 1. The Board agent supervising the June 21, 1974, election failed to properly secure and seal the ballot bag and failed to permit the Respondent's represen- tative to insure that the ballot bag was empty prior to the casting of ballots by the bargaining unit employ- ees. 2. The Union, through its International organiza- tion and individually, has engaged in and is presently engaged in a pattern and practice of race and sex discrimination, thereby breaching its duty of fair rep- resentation. 3. The Board improperly ignored patent misrepre- sentations of material facts made by the Union dur- ing the critical period prior to the June 21, 1974, elec- tion, which misrepresentations were made at a time when Respondent did not have an adequate opportu- nity to respond. 4. The Regional Director, Region 15, abused his discretion by ignoring substantial and material factu- al allegations concerning the improper conduct of the June 21, 1974, election and concerning conduct affecting the results of said election, and by failing to grant Respondent a hearing at which a full record could be developed. These matters were fully considered by the Board in the representation proceeding and resolved ad- versely to the Respondent. It is well settled that in the absence of newly discovered or previously un- available evidence or special circumstances a respon- dent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were 220 NLRB No. 110 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or could have been litigated in a prior representation proceeding.2 All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it adduce that any special circumstances exist herein which would require the Board to reexamine the de- cision 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.' We shall, accordingly, grant the Motion for Summary Judgment.4 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent con- stitute a unit appropriate for collective -bargaining purposes within the meaning of Section 9(b) of the Act. All over-the-road truckdrivers, mechanics, me- chanic helpers, yardmen, and plant clerical em- ployees employed by Respondent at its Harvey, Louisiana, terminal; excluding office clerical employees, professional employees, salesmen, watchmen, guards, and supervisors as defined in the Act. 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation doing business in the State of Florida with its principal offices in Jacksonville, Florida, and a terminal in Harvey, Louisiana, the lat- ter of which is the only facility involved herein, where it is engaged in the interstate transportation of goods and materials. During the past 12 months, in the conduct of its business operations, Respondent received gross revenues in excess of $50,000 for its interstate transportation services. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED General Truck Drivers, Chauffeurs, Warehouse- men & Helpers Local No. 270, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, Ind., is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2 See Pittsburgh Plate Glass Co v. N LR B, 313 U.S. 146, 162 (1941), National Labor Relations Board Rules and Regulations, Series 8, as amend- ed Secs. 102.67(f) and 102.69(c) Since the General Counsel moved to transfer this certification test pro- ceeding to the Board , his failure to issue a notice of hearing with the com- plaint, pursuant to Sec. 102.15 of the Board's Rules and Regulations , Series 8, as amended, had no prejudicial effect. Therefore, Respondent's fifth affir- mative defense requesting dismissal of the complaint on this ground is de- nied as lacking in merit, ° Member Penello, for the reasons set forth in the dissenting opinion in Bekins Moving & Storage Co, of Florida, Inc., 211 NLRB 138 (1974), con- curs in the result herein. Chairman Murphy concurs in the result inasmuch as the same conclusion is reached under any view of the holding in the Bekins decision, supra 2. The certification On June 21, 1974, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 15, 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 November 4, 1974, 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 November 14, 1974, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive representative, al- though the Union has requested and is requesting it to do so. Accordingly, we find that the Respondent has, since November 14, 1974, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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, inti- mate, and substantial relationship to trade, traffic, PLOOF TRANSFER COMPANY, INC. 721 and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce 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 mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their scheduled bargaining agent for the period provided by law, we shall construe the initial period of certifi- cation as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). 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. General Truck Drivers, Chauffeurs, Ware- housemen & Helpers Local Union No. 270, a/w In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind., is a la- bor organization within the meaning of Section 2(5) of the Act. 3. All over-the-road truckdrivers, mechanics, me- chanic helpers, yardmen, and plant clerical employ- ees employed by the Employer at its Harvey, Louisi- ana, terminal ; excluding office clerical employees, professional employees, salesmen, watchmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since November 4, 1974, the above-named la- bor 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 November 14, 1974, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices 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 mean- ing 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 Re- lations Board hereby orders that Respondent, Ploof Transfer Company, Inc., Harvey, Louisiana, its offi- cers, 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 con- ditions of employment with General Truck Drivers, Chauffeurs, Warehousemen & Helpers Local Union No. 270, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, Ind., as the exclusive bargaining represen- tative of its employees in the following appropriate unit: All over-the-road truckdrivers, mechanics, me- chanic helpers, yardmen, and plant clerical em- ployees employed by the Employer at its Har- vey, Louisiana, terminal; excluding office clerical employees, professional employees, salesmen, watchmen, 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 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Harvey, Louisiana, terminal copies of the attached notice marked "Appendix." S Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representative shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices 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 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5In the event that 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 read "Posted Pursuant to a Judgment of the United States 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 Gen- eral Truck Drivers, Chauffeurs, Warehousemen & Helpers Local No. 270, a/w International Brotherhood of Teamsters, Chauffeurs, Ware- house & Helpers of America, Ind., as the exclu- sive representative of the employees in the bar- gaining 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All over-the-road truckdrivers, mechanics, mechanic helpers, yardmen, and plant clerical employees employed by the Employer at its Harvey, Louisiana, terminal; excluding office clerical employees, professional employees, salesmen, watchmen, guards, and supervisors as defined in the Act. PLOOF TRANSFER COMPANY, INC.