Flagler Memorial Park

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Flagler Memorial Park, Miami Memorial Association, Dade Memorial Park, Mirror Lake Corp. and District 2A, Transportation, Technical, Ware- house, Industrial and Service Employees Union, affiliated with District 2, M.E.B.A.-A.M.O., AFL- CIO. Case 12-CA-7650 September 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on March 30, 1977, by District 2A, Transportation, Technical, Warehouse, Industri- al and Service Employees Union, affiliated with District 2, M.E.B.A.-A.M.O., AFL-CIO, herein called the Union, and duly served on Flagler Memorial Park, Miami Memorial Association, Dade Memorial Park, Mirror Lake Corp., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12, issued a complaint and notice of hearing on April 29, 1977, 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 an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the record shows that on January 6, 1977, following a Board election in Case 12-RC-5109 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 March 10, 1977, 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 10, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 20, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 16, 1977, 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 i Official notice is taken of the record in the representation proceeding, Case 12-RC-5109, as the term "record" is defined in Secs. 102.68 and 102. 6 9(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, 232 NLRB No. 101 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 submissions herein, Respondent reiterates its election objections and its contention that the denial of a hearing thereon was a denial of due process and also requests a hearing on its denial of the Union's status as a statutory labor organization. In addition, Respondent contends that any bargaining order should be effective only to the end of the certification year since the Union does not represent a majority of unit employees. In her Motion for Summary Judg- ment, counsel for the General Counsel contends that summary judgment should be granted since Respon- dent has raised no new issues and presents no triable issues warranting a hearing. We agree. Review of the record, including that in the underlying representation proceeding, Case 12-RC- 5109, establishes that, pursuant to a Stipulation for Certification Upon Consent Election in which the Union's status as a labor organization under the Act was stipulated, an election was held on July 29, 1976, and was won by the Union. Respondent filed timely objections to the election alleging (1) that the Union had deprived voters of essential information (a) by failing to file with the Department of Labor certain forms required by the Labor-Management Reporting and Disclosure Act and (b) by providing Respondent with an incomplete copy of its constitution and (2) that certain employees had been threatened with violence if they did not vote for the Union. Respondent requested either that the election be set aside on the basis of its objections or that a hearing be held on the factual disputes raised by its objections. After an investigation, the Regional Director issued his Report on Objections and Recommendations to the Board on September 30, 1976, recommending that (1) in the absence of any material and substantial factual conflict, Respon- dent's request for a hearing be denied as the investigation had adequately developed all relevant facts necessary to dispose of the objections; (2) the objections be overruled in their entirety; and (3) the Union be certified. With respect to the first objection the Regional Director concluded that Board prece- 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, as amended. 660 FLAGLER MEMORIAL PARK dent established (a) that compliance with the provisions of the Labor-Management Reporting and Disclosure Act is not a material matter for consider- ation in Board proceedings 2 and (b) that a union may not be denied the right to participate in an election because of its failure to furnish copies of its constitution to other parties.3 With respect to the second objection, the Regional Director found that there was no evidence that the employee who had made the alleged threat was an agent of the Union and that the remark in question was typical employee bantering, not sufficiently coercive to warrant setting aside the election. Respondent filed exceptions to the Regional Director's report, basically reiterating its objections and requesting that the election be set aside or a hearing be held on the material and substantial issues of fact raised by its objections. On January 6, 1977, the Board issued its Decision and Certification of Representative, specifically finding that Respondent's exceptions raised no material and substantial issues of fact or law which would warrant reversal of the Regional Director's recommendations or require a hearing and, accordingly, adopting the Regional Director's findings and recommendations and certifying the Union. 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.4 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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.5 We there- fore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.6 We shall, accordingly, grant the Motion for Summary Judgment. 2 Buckeye Village Market, Inc., 175 NLRB 271, 272 (1969). 3 Central Bus Lines, Inc., 88 NLRB 1223, 1225 (1950). See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 5 In its answer and response, Respondent denies that the Union is a labor organization under the Act, contending that, at the time it stipulated to the Union's labor organization status in the underlying representation case, it "had every right to assume that the (Union) was in compliance with the statutory requirements for labor organization status" and that its discovery subsequent to the stipulation that no employees participate in the Union to the extent required by Sec. 2(5) of the Act entitles it to a hearing on labor organization status in this proceeding. We find no merit in Respondent's contention. It is well established that, having stipulated to this issue in the underlying representation proceeding. Respondent may not litigate the Union's status in this proceeding. Handy Hardaare Wholesale. Inc., 222 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Flagler Memorial Park, Miami Memorial Associa- tion, and Dade Memorial Park are Florida corpora- tions with offices and places of business in Dade County, Florida, where each is engaged in the business of operating a cemetery. Mirror Lake Corp., is also 'a Florida corporation located in Dade County, Florida, where it is engaged in performing equipment maintenance services for the aforemen- tioned corporations. These four corporations, herein called Respondent, are, and at all times material herein have been, affiliated businesses with common officers, ownership, directors, and operators and constitute a single integrated enterprise; the said directors and operators formulate and administer a common labor policy for the aforementioned compa- nies, affecting the employees of said companies. During the past 12 months, a representative period, Respondent in the course and conduct of its business operations had a gross volume of business exceeding $500,000; and during that same period of time, it received and purchased at its Dade County, Florida, places of business, goods and materials valued in excess of $50,000 which were shipped to them from points located 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 effecutate the policies of the Act to assert jurisdiction herein. II1. THE LABOR ORGANIZATION INVOLVED District 2A, Transportation, Technical Warehouse, Industrial and Service Employees Union, affiliated with District 2, M.E.B.A.-A.M.O., AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. NLRB 373 (1976). Further, Respondent does not set forth any evidentiary support for its conclusion as to the absence of employee participation in the Union nor does Respondent allege that any such evidence it would present at a hearing could not, with due diligence, have been discovered and raised prior to the conclusion of the representation proceeding. 6 In its response, Respondent contends that it is entitled to a hearing in this proceeding on its objections and the Union's status as a labor organization under the Rules and Regulations of the Board, the Administra- tive Procedure Act, and the constitution. Contrary to Respondent's view. neither the Board's Rules and Regulations, the Administrative Procedure Act, nor constitutional due process mandate a hearing in an unfair labor practice proceeding where, as here, there are no issues of fact on which to hold a hearing. Globe Security Services, Inc., 221 NLRB 5% (1975). enforcement denied on other grounds 548 F.2d 1115 (C.A. 3, 1977). and cases cited therein. 661 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All backhoe operators, set-up men, sod men, marker setters, mechanics, and general mainte- nance employees'employed by Respondent at its Dade County, Florida, facilities, excluding all other employees, including office clerical employ- ees, switchboard operators, receptionists, sales- men, watchmen, guards and supervisors as defined in the Act. 2. The certification On July 28, 1976, 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 Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on January 6, 1977, 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 10, 1977, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about March 10, 1977, and continuing at all times thereafter to date, 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 Respondent has, since March 10, 1977, 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. T We reject Respondent's request that the bargaining order herein run only until a year from the date on which the Union was certified by the Board. Respondent contends that such a limitation is warranted because the Union no longer represents a majority of unit employees. We find no merit 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,7 we shall construe the initial period of certifica- tion as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate 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. Flagler Memorial Park, Miami Memorial Association, Dade Memorial Park, and Mirror Lake Corp., a single integrated enterprise, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 2A, Transportation, Technical Ware- house, Industrial and Service Employees Union, affiliated with District 2, M.E.B.A.-A.M.O., AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All backhoe operators, set-up men, sod men, marker setters, mechanics, and general maintenance employees employed by Respondent at its Dade in this contention inasmuch as Respondent alleges no "unusual circum- stances" to rebut the presumption of the Union's continued majority status for I year following its certification. Brooks v. N.L.R.B., 348 U.S. 96 (1954). 662 FLAGLER MEMORIAL PARK County, Florida, facilities, excluding all other em- ployees, including office clerical employees, switch- board operators, receptionists, salesmen, watchmen, 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 January 6, 1977, 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 10, 1977, 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)(l) 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 the Respondent, Flagler Memorial Park, Miami Memorial Associa- tion, Dade Memorial Park, and Mirror Lake Corp., a single integrated enterprise in Dade County, Florida, 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 District 2A, Trans- portation, Technical Warehouse, Industrial and Service Employees Union, affiliated with District 2, M.E.B.A.-A.M.O., AFL-CIO, as the exclusive bar- gaining representative of its employees in the following appropriate unit: All backhoe operators, set-up men, sod men, marker setters, mechanics, and general mainte- nance employees employed by Respondent at its Dade County, Florida, facilities, excluding all other employees, including office clerical employ- ees, switchboard operators, receptionists, sales- men, 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 and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Dade County, Florida, facilities copies of the attached notice marked "Appendix."" 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent 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. I In 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 District 2A, Transportation, Technical Warehouse, Indus- trial and Service Employees Union, affiliated with District 2, M.E.B.A.-A.M.O., AFL-CIO, 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- 663 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 backhoe operators, set-up men, sod men, marker setters, mechanics, and general maintenance employees employed at our Dade County, Florida, facilities, excluding all other employees, including office clerical employees, switchboard operators, recep- tionists, salesmen, watchmen, guards and supervisors as defined in the Act. FLAGLER MEMORIAL PARK, MIAMI MEMORIAL ASSOCIATION, DADE MEMORIAL PARK, MIRROR LAKE CORP. 664