S.C.A. Services, Inc.

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S.C.A. Services, Inc., Tampa Division and Team- sters, Chauffeurs and Helpers Local Union No. 79, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 12-CA-7310 December 16, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Upon a charge and amended charge filed on August 10 and 17, 1976, respectively, by Teamsters, Chauffeurs and Helpers Local Union No. 79, affili- ated with The International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on S.C.A. Services, Inc., Tampa Division, 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 August 20, 1976, 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 complaint alleges in substance that on May 11, 1976, following a Board election in Case 12-RC-4974 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about August 2, 1976, 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 August 25, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 27, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 9, 1976, 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 Official notice is taken of the record in the representation proceeding, Case 12-RC-4974, 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 Electrosystenis, 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), 227 NLRB No. 48 Judgment should not be granted. Respondent did not file 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 validity of the Union's certification. Counsel for the General Counsel contends in his Motion for Summary Judgment that Respondent's answer raises no triable issues warranting a hearing and that summary judgment should be granted as all material issues have been previously presented and decided in the underlying representation case. We agree. Review of the record, including the representation proceedings, Case 12-RC-4974, indicates that, pursu- ant to a Stipulation for Certification Upon Consent Election, an election was held on January 9, 1976, which the Union won, 8 votes to 6 with I challenge. Respondent timely filed seven objections to the election alleging, inter alia, that (1) at least three employees had misunderstood the ballot and intend- ed to vote against union representation; (2) nine of the eligible voters signed a petition requesting a second election; (3) the Union had spread a rumor that employees would be fired if the Union did not win; and (4) one ballot marked both yes and no should have been voided. After an investigation, the Regional Director on February 20, 1976, issued his Report on Objections recommending that the objec- tions be overruled in their entirety and that the Union be certified. He found, inter alia, regarding (1) and (2) above, that of 11 employees interviewed, including the 9 employees who signed the petition,2 all but 1 had understood the ballot and had voted as they intended and that the confusion of the remaining employee was not due to any objective fact other than his failure to read the question on the ballot; regarding (3) above that the rumor that employees would be fired if the Union lost was started by employees and began far enough in advance of the election that employees had ample time to ascertain its truth; and regarding (4) above that all the ballots were clearly marked as to the intent of the voters. Respondent filed exceptions, and a brief in support, to the overruling of Objections 1, 3, and 4, above, but Follett Corp, 164 NLRB 378 (1967), enfd 397 F.2d 91 (C.A 7, 1968), Sec 9(d) of the NLRA, as amended. 2 In substance, the petition stated that several employees had not understood the difference between a yes and no vote and requested a second election because of this misunderstanding. S.C.A. SERVICES,,INC., TAMPA DIVISION 323 , not with respect to the four remaining objections. On May 11, 1976, the Board, after reviewing the record in light of the exceptions and brief, adopted the Region- al Director's findings and recommendations and certified 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.3 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. 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, a corporation licensed to do business in Florida, has an office and place of business in Tampa, Florida, where it is engaged in the business of handling waste material. During the past 12 months, a representative period, Respondent received goods valued in excess of $10,000 directly from points outside the State of Florida and performed services valued in excess of $50,000 for the city of Tampa, Florida, which city during the same period purchased and received goods, supplies, and materials valued in excess of $50,000 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. - - - H. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs and Helpers Local Union No. 79, affiliated with The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers 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 drivers, helpers, mechanics, mechanic helpers, and welders employed by Respondent at its Tampa, Florida facility, but - excluding office clerical employees, salesmen, guards and supervi- sors as defined in the Act. 2. The certification - On January 9, 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 the Respondent. The Union was certified as the, collective-bargaining representative of the em- ployees in said unit on May 11, 1976, 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 July 7, 1976, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described -unit. Com- mencing on or about August 2, 1976, 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 representa- tive for collective bargaining of all employees in said unit. - Accordingly, we find that the Respondent has, since August 2, 1976, -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. - 3 See Pittsburgh Plate Glass Co. v. NLRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(1) and 102.69(c). 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 operations 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 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, 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 (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. S.C.A. Services, Inc., Tampa Division, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs and Helpers Local Union No. 79, affiliated with The International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All drivers, helpers, mechanics, mechanic help- ers, and welders employed by Respondent at its Tampa, Florida, facility, but excluding office clerical employees, salesmen, 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 May 11, 1976, 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 August 2, 1976, 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 the Respondent, S.C.A. Services, Inc., Tampa Division, Tampa, Flori- da, 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, Chauf- feurs and Helpers Local Union No. 79, affiliated with The International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America as the exclusive bargaining representative of its employees in the following appropriate unit: All drivers, helpers, mechanics, mechanic helpers, and welders employed by Respondent at its Tampa, Florida facility, but excluding office clerical employees, salesmen, guards and supervi- sors 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: S.C.A. SERVICES, INC., TAMPA DIVISION 325 (b) Post at its Tampa, Florida, facility copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous 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. (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. 4- 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 Team- sters, Chauffeurs and Helpers Local Union No. 79, affiliated with The International Brotherhood of Teamsters, Chauffeurs, Warehousemen _ and Helpers of America, as the exclusive representa- tive 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 understanding in a signed agreement. The bar- gaining unit is: All drivers, helpers, mechanics, mechanic helpers, and welders employed by Respon- dent at its Tampa, Florida facility, but excluding office clerical employees, sales- men, guards and supervisors as defined in the Act. S.C.A. SERVICES, INC., TAMPA DIVISION