Steamship Trade Association Of Baltimore, Inc.

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Steamship Trade Association of Baltimore , Incorpo- rated; Atlantic & Gulf Stevedores, Inc.; Balti- more Stevedoring Company, Inc.; Chesapeake Operating Company; Ceres Corporation; The Cottman Company; I.T.O. Corporation of Balti- more; John T. Clark & Son of Maryland, Inc.; Maersk Container Service Co., Inc.; Maher Ter- minals, Inc. and Local No. 953, International Longshoremen's Association, AFL-CIO. Cases 5-CA-14658 and 5-RC-117051 21 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN Upon a charge filed by the Union 30 August 1982, a first amended charge filed on 27 September 1982, and a second amended charge filed on 6 Oc- tober 1982, the General Counsel of the National Labor Relations Board issued a complaint 21 Octo- ber 1982 against the Respondent, 2 alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 30 July 1982, fol- lowing a Board election in Case 5-RC-11705 the Union was certified as the exclusive collective-bar- gaining representative of the Respondent's employ- ees in the unit3 found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and 102.69(g), amended Sept. i As discussed , infra, the Board has decided to reopen the proceedings in Case 5-RC-11705 to correct an inadvertent error Accordingly, Cases 5-CA-14658 and 5-RC-11705 are consolidated z The Respondent, Steamship Trade Association of Baltimore, Incor- porated (STA), is a membership corporation whose members, Atlantic & Gulf Stevedores, Inc (Atlantic), Baltimore Stevedoring Co, Inc (Balti- more), Chesapeake Operating Company (Chesapeake), Ceres Corporation (Ceres), The Cottman Company (Cottman), I T 0 Corporation of Balti- more (I.T.O ), John T. Clark & Son of Maryland, Inc. (John T. Clark); Maersk Container Service Co, Inc (Maersk), and Maher Terminals, Inc, (Maher), are various steamship lines, steamship agents, stevedoring firms, terminal operators, and service companies in the Baltimore, Maryland port area STA and its members are collectively referred to as the Re- spondent 8 The Regional Director found that the following employees of the Employers constituted an appropriate voting group, rather than an appro- priate unit All cashiers, imports clerks, truck billing clerks, truck loading clerks and window clerks who perform the plant clerical duties of prepa- ration and/or computation of truck billing documentation, demurrage re- ceipts, dock receipts and truck service tickets, cash collection and/or credit verification, employed by the stevedoring companies in the Port of Baltimore who comprise, the multiemployer bargaining unit represented for collective-bargaining purposes by Steamship Trade Association of Baltimore, Incorporated, but excluding all other employees, guards and supervisors as defined in the Act. The Regional Director directed that an election be conducted among the employees in this voting group Thereafter, a majority of valid ballots were cast for the Union and it was certified as their representative The Regional Director, however, inadvertently described the voting group as a unit rather than as part of the existing unit, as the employees had voted Accordingly, having reopened the record, this error in Case 5-RC-11705 is corrected 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 19 August 1982 the Respondent re- fused to bargain with the Union. Between 2 Octo- ber 1982 and 1 November 1982, STA and its member filed answers admitting in part and deny- ing in part the allegations in the complaint. On 4 February 1983 the General Counsel filed a Motion for Summary Judgment. On 9 February 1983 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. STA and its members each filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment Our review of the record herein, including the record in Case 5-RC-1 1704, discloses that the Re- gional Director for Region 5 issued a Decision and Direction of Election on 26 May 1982, holding that the petitioned-for employees constituted an appro- priate voting group allocable to the existing plant clerical unit represented by the Union. Thereafter, Respondents STA, Maher, and Maersk filed re- quests for review of the Regional Director's Deci- sion and Direction of Election. The Board4 on 7 July 1982 amended the decision to permit two indi- viduals, Sylvia Smith and Kathy Heckman, to vote, subject to challenge on the ground that the issues with respect to the placement of those employees were best resolved by the challenge procedure. An election was conducted on 16 July 1982. The tally of ballots showed five votes for, and no votes aganist the Union, with two challenged ballots. On 30 July 1982 the Regional Director for Region 5 issued a Certification of Representative, certifying the Union as the collective-bargaining representa- tive of the unit found appropriate. In the Motion for Summary Judgment, the Gen- eral Counsel argues that the Respondent has failed to present any evidence or to assert any issues, if any exist, in addition to those which it offered in the representation proceedings.6 Noting that 4 None of the Panel members participated in the underlying representa- tion proceeding S In the representation Case 5-RC- 11705, the Union filed a petition for an election among employees in various unrepresented classifications The Union sought to include these employees as the last remaining plant clericals employed by the Member-Employers of STA in the existing multiemployer plant clerical unit of all checkers (talleymen), ship run- ners, ship planners, and timekeepers The Member-Employers had con- sented to bargaining with the Union on a multiemployer basis regarding the existing unit, but had not expressly given such consent regarding the petitioned-for employees In his Decision and Direction of Election, the Regional Director found that the employees shared a sufficient communi- ty of interest with the existing plant clerical unit to justify their inclusion in the existing unit 279 NLRB No. 45 STEAMSHIP TRADE ASSN. 339 Chesapeake, Ceres, I.T.O., and Maersk raise as a defense that they allegedly do not employ any em- ployees in the voting group named in the com- plaint and that STA and Atlantic raise as a defense the argument that STA is not authorized to bargain on behalf of the other companies with regard to the employees described in the complaint, the Gen- eral Counsel contends that these issues were ad- dressed during the representation case already de- cided by the Board. In responses to the Notice to Show Cause, STA and its members argue that summary judgment is inappropriate as substantial issues exist which have not been resolved in the representation case. STA repeats its argument that it has no authority to bar- gain with respect to the employees in the voting group found appropriate in the underlying repre- sentation case . In separate responses to the Notice to Show Cause, Cottman, John T. Clark, Atlantic, Baltimore, Maher, Chesapeake, I.T.O., Ceres, and Maersk argue that they did not grant STA author- ity to bargain on their behalf as to the employees in the voting group.6 Additionally, John T. Clark, Atlantic, Chesapeake, I.T.O., and Ceres maintain that as only STA was requested to bargain and re- fused, the record does not establish that the indi- vidual employers were requested to bargain nor that they refused. Chesapeake, I.T.O., and Ceres also argue that they cannot be ordered to bargain because they do not employ any employees in the voting group.7 They argue that summary judgment is therefore inappropriate because the issue of whether they are even required to bargain under these circumstances has not been resolved by the Board." STA joins these parties in contending that each Respondent should be treated separately. Maher, Maersk, and Atlantic each argue that sum- mary judgment is inappropriate. They contend that the placement in the unit of Maher employee Kathy Heckman and Maersk employee Sylvia Smith has not been resolved.9 Finally, John T. Clark and Baltimore repeat arguments raised in the representation case that some of the employees who were erroneously included in the unit should be excluded because they are office, not plant, cler- icals. It is well settled that in the absence of newly dis- covered and 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 that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representa- tion proceeding. We therefore find that the Re- spondent has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing 6 Although mutual consent is required to establish multtemployer bar- gaining, such consent relates to the formation of the multiemployer unit and not to the scope of the duty to bargain once the multiemployer unit is formed This duty is "measured by the requirements of the Act, one of which is that bargaining must be conducted in an appropriate unit To hold otherwise would lodge all authority over the composition of the unit in the parties and, in effect, deprive the Board of its duty under Sec- tion 9 to decide in each case the appropriate unit that will assure employ- ees the fullest freedom in exercising the rights guaranteed by the Act " Steamship Trade Assn of Baltimore, 155 NLRB 232, 234 (1965), Sacramen- to Automotive Assn , 193 NLRB 745 (1971) In the representation Case 5- RC- 11705, the Board found that the voting group was properly allocable to the existing unit As the Member-Employers have consented to multi- employer bargaining in that unit, we find that the Respondent is obligat- ed to bargain with respect to the employees in the voting group 7 It should be noted that in his Decision and Direction of Election, the Regional Director found that Coltman did not employ any employees in the unit Cottman did not raise this issue in its response to the Notice to Show Cause 8 As noted above, mutual consent is not required as it relates to the scope of the duty to bargain once the multiemployer unit is formed Al- though they allege that they do not have employees in the voting group, Chesapeake, I T 0, and Ceres have consented to multiemployer bargain- ing in the existing unit Therefore , in view of the fact that the voting group was properly included as an addition to the existing unit, the obli- gation of Chesapeake , I T O , and Ceres to bargain extends to the voting group as well FINDINGS OF FACT 1. JURISDICTION The Respondent, a Maryland incorporated asso- ciation and its members, is engaged in maritime commerce at the Baltimore, Maryland port area. During the preceding 12 months, STA, Atlantic, Baltimore, Chesapeake, Ceres, I.T.O., John T. Clark, Maersk, and Maher, respectively, in the course and conduct of their business operations purchased and received at their Baltimore, Mary- land facilities, products, goods, and materials valued in excess of $50,000 directly from points 9 The Board amended the Regional Director 's Decision and Direction of Election in the underlying representation case to permit these employ- ees to vote subject to challenge Subsequently, Maher and Maersk filed unit clarification petitions which were pending at the time the responses to the Notice to Show Cause were filed On 18 August 1983 the Board affirmed the Regional Director's conclu- sions that Heckman and Smith be included in the unit 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD outside the State of Maryland. 1 ° We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 16 July 1982 to de- termine whether the employees wished to be in- cluded in the plant clerical unit, the Union was cer- tified 30 July 1982 to bargain for the following em- ployees: All cashiers, imports clerks, truck billing clerks, truck loading clerks and window clerks who perform the plant clerical duties of prepa- ration and/or computation of truck billing documentation, demurrage receipts, dock re- ceipts and truck service tickets, cash collection and/or credit verification, employed by the stevedoring companies in the Port of Balti- more who constitute the multi-employer bar- gaining unit represented for collective-bargain- ing purposes by Steamship Trade Association of Baltimore, Incorporated, but excluding all other employees, guards and supervisors as de- fined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 17 August 1982 the Union has requested the Respondent to bargain, and since 19 August 1982 the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 19 August 1982 to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees properly in- cluded in the appropriate unit, the Respondent has engaged in unfair labor practices affecting com- 10 Although it is not specifically alleged in the complaint that Cott- man, in the course and conduct of its business operations, purchased and received products, goods, and materials valued in excess of $50,000 from outside the State, the Board will assert jurisdiction if, as here, the stand- ards are satisfied by any member of the association Laundry Owners Assn of Greater Cincinnati, 123 NLRB 543 (1959) We note that Cottman stipu- lated in Case 5-RC-11705 that it was engaged in commerce within the meaning of the Act We also note that Cottman was properly served the complaint and notice of hearing to which it filed an answer, the Motion for Summary Judgment, and the Notice to Show Cause to which it filed a response in opposition Accordingly, we find that it will effectuate the policies of the Act to assert jurisdiction over Cottman in this case merce within the meaning of Section 8(a)(5) and (1) and Section (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. We shall further order STA and each of its mem- bers named as Respondent to post the attached notice. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Steamship Trade Association of Baltimore, Incorporated; Atlantic & Gulf Steve- dores, Inc.; Baltimore Stevedoring Company, Inc.; Chesapeake Operating Company; Ceres Corpora- tion; The Cottman Company; I.T.O. Corporation of Baltimore; John T. Clark & Son of Maryland, Inc.; Maersk Container Service Co., Inc.; and Maher Terminals, Inc., Baltimore, Maryland, its of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local No. 953, International Longshoremen's Association, AFL- CIO, as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the following employees properly included in the appropriate unit on terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement: All cashiers, imports clerks, truck billing clerks, truck loading clerks and window clerks who perform the plant clerical duties of prepa- STEAMSHIP TRADE ASSN ration and/or computation of truck billing documentation, demurrage receipts, dock re- ceipts and truck service tickets, cash collection and/or credit verification, employed by the stevedoring companies in the Port of Balti- more who constitute the multi-employer bar- gaining unit represented for collective-bargain- ing purposes by Steamship Trade Association of Baltimore, Incorporated, but excluding all other employees, guards and supervisors as de- fined in the Act. (b) Post at its facilities in of STA, and at each of its members named herein, in Baltimore, Maryland, copies of the attached notice marked "Appen- dix."I I Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 11 If 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 Nation- al 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local No. 953, International Longshoremen's Association, 341 AFL-CIO, as the exclusive representative of the following employees properly included in the bar- gaining unit: All cashiers, imports clerks, truck billing clerks, truck loading clerks and window clerks who perform the plant clerical duties of prepa- ration and/or computation of truck billing documentation, demurrage receipts, dock re- ceipts and truck service tickets, cash collection and/or credit verification, employed by the stevedoring companies in the Port of Balti- more who constitute the multi-employer bar- gaining unit represented for collective-bargain- ing purposes by Steamship Trade Association of Baltimore, Incorporated, but excluding all other employees, guards and supervisors as de- fined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit STEAMSHIP TRADE ASSOCIATION OF BALTIMORE, INCORPORATED; ATLAN- TIC & GULF STEVEDORES, INC.; BAL- TIMORE STEVEDORING COMPANY, INC.; CHESAPEAKE OPERATING COM- PANY; CERES CORPORATION; THE COTTMAN COMPANY; I.T.O. CORPO- RATION OF BALTIMORE; JOHN T. CLARK & SON OF MARYLAND, INC.; MAERSK CONTAINER SERVICE COM- PANY, INC.; MAHER TERMINALS, INC.