Jacksonville Warehouse Company

VJZ 264 NLRB No. 84 D 9232 Jacksonville, FL UNITED STATES OF AMERICA_ BEFORE THE NATIONAL LABOR RELATIONS 30ARD JACKSONVILLE WAREHOUSE COMPANY and Case 12--CA-10181 UNITED FOOD AND COMMERCIAL WOR"ERS, DISTRICT UNION 433, AFFILIATED WITH THE U.F.C.W. INTERNATIONAL UNION, AFL-CIO & CLC DSeptember 30, 1982 TEByChairman Upon a charge filed on May 13, 1982, by United Food and Zimmenmon T4 Van 01 DECISION ce water AND and ORDER members Jenkins and Commercial Workers, District Union 433, affiliated with the U.F.C.W. International Union, AFL-CIO at & CLC, herein called the Union, and duly served on Jacksonville Warehouse Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12, issued a complaint on May 26, 1982, 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 8 (d) and Section 2 (6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. 264 NLRB No. 84 D--9232 With respect to the unfair labor practices, the complaint alleges that on March 31, 1982, following a Board election in Case 12--RC-L6109, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about April 22, 1982, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive collective-bargaining representative of its employees, although the Union has requested and is requesting it to do so. On June 4, 1982, Respondent filed an answer to the complaint admitting in part, and denying in part, the allegations in the complaint. 11 On June 28, 1982, counsel for the General Counsel filed directly with the Board a ''Motion to Transfer Case to Board and for Summary Judgment. Subsequently, on July 2, 1982, 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 order transferring the proceeding to the Board and Notice To Show Cause. 11 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations 1 Official notice is taken of the record in the representation proceeding, Case 12-RC-6109, 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 (4th Cir. 1968) ; T3 Golden Age Beverage Co. 167 NLRB 51 1967) enfd. 415 F.2d 26 (5th Cir. 1969 Intertype Co Penello 269 F. Supp. 573 (D.C. Va. 1967); follett Corp. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9 (d) of the NLRA, as amended. 9232 Board has delegated its authority in this proceeding to a threemember panel. 11 Upon the entire record in this proceeding, the Board makes the following: OS Ruling on the Motion for Summary Judgment 1 In its answer to the complaint, and its response to the Board's order transferring the proceeding to the Board and Notice To Show Cause, Respondent admits its refusal to bargain with the Union, but denies that the Union is the properly certified exclusive collective-bargaining representative of the employees in the unit described below. Our review of the record herein, including the record in Case 12 RC 6109, reveals that on May 18, 1981, the Union filed a petition seeking to represent certain employees of Respondent. The parties executed a Stipulation for Certification Upon Consent Election which was approved by the Regional Director for Region 12 on June 4, 1981. 11 On July' 2, 1981, a secret-ballot election was conducted among Respondent's employees in the following appropriate unit: QD4 13 All warehouse employees, including fork truck operators, shipping and receiving clerks, recoupers and janitors employed by the Employer at its facility located at 1501 E. Haines St., Jacksonville, Florida, but excluding all security auditors, office clerical employees, guards and supervisors as defined in the Act. 04 11 The tally of ballots was 11 for, and 7 against, the Union. 2 On July 9, 1981, Respondent timely filed objections to conduct affecting the results of the election, alleging in substance 2 There were no challenged or void ballots. D--9232 that: (1) the Union, through its agents or others under its control, misrepresented the level of wages and benefits received by employees of other employers whom it represents by circulating a newspaper article which contained inaccurate information about such wage and benefit levels, (2) the Union improperly promised or.guaranteed improved wages and benefits upon a union victory in the election, (3) the Union threatened eligible voters with retaliation if they did not vote in favor of the Union in the election, and (4) the Union, its members and agents or others under its control, engaged in various acts of polling area misconduct, including maintaining a list of voters, conducting group meetings, and engaging in electioneering. Thereafter, a hearing was held and on September 30, 1981, Hearing Officer Dolores M. Peer issued a 'Report and Recommendation to the Board on Issues Raised by Objections'' in which she concluded that Respondent's objections, whether considered separately or collectively, were insufficient to warrant setting aside the election, and recommended that the Board overrule the objections in their entirety and certify the Union. Respondent filed exceptions to the Hearing Officer's report in which it contended, 13 11 inter alia, that the Hearing Officer's substantive findings and recommendations on its objections were in error, and that certain procedural deficiencies in the hearing deprived it of its right to a full and fair hearing. On March 31, 1982, the Board adopted the Hearing Officer's report, with minor modifications, and D--9232 certified the Union as the exclusive collective-bargaining representative of the employees in the unit described above. 3 In its answer to the complaint 4 herein and its response to the Board's order transferring the proceeding to the Board and Notice To Show Cause, Respondent merely reiterates the contentions which it raised in Case 12--RC--6109, and argues that the previously raised issues regarding the alleged procedural deficiencies in the hearing constitute ''new evidence' and 'special circumstances'' within the meaning Qf Pittsburgh Plate Glass Co. V. W.L.R.B 313 U.S. 146 (1941). 5 N 3 The Board's Decision and Certification of Representative in Case 12-JRC-J6109 was not reported in bound volumes of Board Decisions. 4 In its TI answer Respondent relies on Hollywood Ceramics Co. Inc 140 NLRB 221 (1962), and General Knit of California, Inc 239 NLRB 619 (1978), to support its argument that the Union's alleged wage misrepresentations destroyed the requisite laboratory conditions of the election. We note that in Midland National Life Insurance Co TI 263 NLRB No. 24 (1982), the Board recently ruled that the Board will no longer probe into the truth or falsity of the parties' campaign statements, and that elections will no longer be set aside on the basis of misleading campaign statements. In accordance with his dissenting opinion in Midland National Life Insurance Member Jenkins adheres to the standard for evaluating campaign misrepresentations set forth in General Knit. 5 In this connection, Respondent contends that the Hearing Officer's rejection of its offer of proof concerning the testimony of the Board agent who conducted the election in some way transforms such testimony into new evidence which was previously unavailable with due diligence. Respondent's contention has no merit. As set forth clearly in the Board's Decision and Certification of Representative in Case 12 RC 6109, the Board fully considered Respondent's offer of proof with respect to the Board agent's testimony in deciding to adopt the Hearing Officer's ultimate findings as to Respondent's objections to the election. Moreover, Respondent's argument that the Hearing Officer should have recused herself and the hearing should have been conducted before an administrative law judge is equally without merit. The Board fully considered and conclusively ruled on this contention in the underlying representation case. D--9232 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. 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 representational proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: Findings of Fact 05 1T /I. The Business of Respondent At all times material herein, Respondent, a Florida corporation, with an office and place of business located in Jacksonville, Florida, has been engaged in the business of public warehousing. During the past year, which period is representative of its operations during all times material hereto, Respondent, in the course and conduct of its business operations, has received goods and materials valued in excess of $50,000 from 6 See Pittsburgh Plate Glass Co.v. N.L.R.B., supra to at 162. D--9232 points located outside the State of Florida, and during the same period of time has shipped goods valued in excess of $50,000 directly to points located outside the State of Florida from its Jacksonville, Florida, facility. /1 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. IT. The Labor Organization Involved 11 United Food and Commercial Workers, District Union 433, affiliated with the United Food and Commercial Workers International Union, AFL CIO & CLC, is a labor organization within the meaning of Section 2 (5) of the Act. III. The Unfair Labor Practice 05 A. 13ke Representation Proceeding 1. The unit 11 The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9 (b) of the Act: QCY 13 All warehouse employees, including fork truck operators, shipping and receiving clerks, recoupers and janitors employed by the Employer at its facility located at 1501 E. Haines St., Jacksonville, Florida, but excluding all security auditors, office clerical employees, guards and supervisors as defined in the Act. 04 2. The certification il On July 2, 1981, a majority of employees of Respondent in said unit, in a secret-ballot election conducted under the D--9232 supervision of the Regional Director for Region 12, designated the Union as their representative for the purpose of collective bargaining with Respondent. 13 The Union was certified as the exclusive collectivebargaining representative of the employees in the unit described above on March 31, 1982, and the Union continues to be such exclusive representative within the meaning of Section 9 (b) of the Act. B. The Request To Bargain and Respondent's Refusal 11 Commencing on or about April 15, 1982, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about April 22, 1982, 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 April 22, 1982, 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. 9232 14 1V. The Effect of the Unfair Labor Practice Upon Commerce 11 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 commerce and the free flow of commerce. 05014 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 collectivley 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. 11 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 recognized bargaining representative in the appropriate unit. 13 TI See Mar-Jac Poultry Company, Inc. 136 NLRB 785 (1962) ; Commerce Company d/b/a Lamar Hotel TI 140 NLRB 226, 229 (1962); enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett 71 Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). D--9232 1 The Board, upon the basis of the foregoing facts and the entire record, makes the following: Conclusions of Law 1. Jacksonville Warehouse Company is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. fl 2. United Food and Commercial Workers, District Union 433, affiliated with the United Food and Commercial Workers International Union, AFL--CIO & CLC, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The following employees constitute an appropriate unit for collective-bargaining purposes within the meaning of Section 9 (b) of the Act: Q04 13 All warehouse employees, including fork truck operators, shipping and receiving clerks, recoupers and janitors employed by the Employer at its facility located at 1501 E. Haines St., Jacksonville, Florida, but excluding all security auditors, office clerical employees, guards and supervisors as defined in the Act. 11 4. Since March 31, 1982, 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 collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or about April 22, 1982, 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. D--9232 11 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 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 meaning of Section 2 (6) and (7) of the Act. ORDER 11 Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Jacksonville Warehouse Company, Jacksonville, 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 United Food and Commercial Workers, District Union 433, affiliated with the United Food and Commercial Workers International Union, AFL CIO & CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: 13 All warehouse employees, including fork truck operators, shipping and receiving clerks, recoupers and janitors employed by the Employer at its facility located at 1501 E. Haines St., Jacksonville, Florida, but excluding all security auditors, office clerical employees, guards and supervisors as defined in the Act. 05 D--9232 (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: H (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 understanding is reached, embody such understanding in a signed agreement. (b) Post at its Jacksonville, Florida, facility copies of N 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. 7 2m 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. 57 We are of the opinion that the policies of the Act will best be served if the notice that Respondent is required to sign and post also includes an introductory paragraph explaining to employees their rights under the Act, and by what process their rights have been upheld. D 9232 #1 (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. Dated, Washington, D.C. September 30, 1982 John R. Van de Water, Chairman Howard Jenkins, Jr. , Member Don A. Zimmerman, Member NATIONAL LABOR RELATIONS BOARD (SEAL) D--9232 65 APPENDIX 91 NOT/ICE TO EMPLOYEES 91 Posted by Order of the 91 National Labor Relations Board 91 TI An Agency of the United States Government 12 The National labor Relations Act gives employees the following rights: 15 To engage in self-organization To form, join, or assist any union 15 To bargain collectively through representatives of their own choice 11 To engage in activities together for the purpose of collective bargaining or other mutual aid or protection is To refrain from the exercise of any or all such activities. 04 13 74 WE WILL NOT IL efuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with United Food and Commercial Workers, District Union 433, affiliated with the U.F.C.W. International Union, AFL-CIO & CLC, as the exclusive representative of the employees in the following appropriate bargaining unit: Q04 15 All warehouse employees, including fork truck operators, shipping and receiving clerks, recoupers and janitors employed by the Employer at its facility located at 1501 E. Haines St., Jacksonville, Florida, but excluding all security auditors, office clerical employees, guards and supervisors as defined in the Act QOY 3 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. D 9232 Bard Union, as the exclusive representative of all WE WILL upon request, bargain with the aboveemployees in the bargaining unit described above, 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. 04 Hy ACKSONVILLE WAREHOUSE COMPANY (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, Federal Office Building, Room 706, 500 Zack Street, P.O. Box 3322, Tampa, Florida 33602, Telephone 813--228--2662.