Air Express International Corp.

608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Air Express International Corporation and Freight Drivers, Warehousemen and Helpers Local Union No. 390, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , AFL-CIO. Case 12-CA-12758 June 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 15, 1987, the General Counsel of the National Labor Relations Board issued a com- plaint alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Rela- tions Act by refusing the Union's request to bar- gain following the Union's certification in Case 12- RC-6715. (Official notice is taken of the "record" in the representation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed its answer admitting in part and denying in part the allegations in the com- plaint. On January 25, 1988, the General Counsel filed a Motion for Summary Judgment. On January 27 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed an opposition to the General Counsel's Motion for Summary Judgment and cross-motion for revocation of the certification. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Respondent denies its alleged refusal to bar- gain,' and also attacks the validity of the certifica- i In its answer the Respondent denies that it has information sufficient to admit or deny the allegations of the complaint concerning the filing and service of the charge The answer further denies that the Union is the exclusive bargaining representative of employees in the unit , that the Union has requested bargaining, and that the Respondent has violated the Act by refusing to bargain. Concerning the Respondent 's qualified denial of the allegations of the complaint relating to the filing and service of the charge, we note that the exhibits accompanying the General Counsel's motion include (I) a copy of the Regional Director's letter to the Respondent, dated Novem- ber 13, 1987, and marked, "CERTIFIED MAIL-RETURN RECEIPT REQUESTED," stating that the charge in this case has been filed and that a copy of the charge is enclosed; and (2) a copy of a letter from the Respondent's counsel to the Regional Office, dated December 11, 1987 (4 days prior to the issuance of the complaint), stating (inter alia) that "the instant charge is without merit." Although the exhibits contain no return receipt establishing that service of the charge was perfected , neither is there any indication that the charge was not delivered to the Respondent Moreover, the Respondent does not specifically deny having been served with the charge , it denies having information sufficient to admit or deny either the filing or the service of the charge (or the dates thereof) Al- tion on the basis of its objections to the election in the representation proceeding. Specifically, the Re- spondent alleges that during the critical period be- tween the filing of the petition and the election, rumors circulated among employees in the unit falsely attributing to Silver, the Respondent's oper- ations manager, statements indicating animus toward persons of Cuban origin (who made up a majority of the unit employees). Thus, according to the credited testimony, Silver was alleged to have said, inter alia, that "these four f- Cubans won't do this to me"; "the f- Cubans were not going to put the Union in there," and even that he "[Silver] was going to terminate all the f- Cubans." The Respondent contends that those rumors, by inflam- ing ethnic animosities and making the employees believe that Silver would retaliate against them, de- stroyed the "laboratory conditions" necessary for a valid election.2 All representation issues raised by the Respond- ent were or could have been litigated in the prior representation proceeding. The Respondent does not offer to adduce at a hearing any newly discov- ered and previously unavailable evidence, nor does it allege any special circumstances that would re- quire the Board to reexamine the decision made in the representation proceeding. However, the Respondent, citing the Eleventh Circuit's recent decision in M & M Supermarkets v. NLRB, 3 contends that the Board in the representa- though the Respondent may lack first-hand, personal knowledge of the filing of the charge, or of the date of filing, the matter of the service of the charge surely is within its knowledge, and therefore it is not unrea. sonable to suppose that, if the charge had not been served , the Respond- ent would have explicitly so stated in its answer or would have pursued this denial further in response to the Motion for Summary Judgment On the basis of all the foregoing, we conclude that there is no genuine issue of fact concerning the service of the charge Concerning the Respondent's denial of having received a request to bargain and having refused to do so, we note that the exhibits appended to the motion include (1) a copy of a certified letter from the Union's counsel to the Respondent, dated October 27, 1987, demanding bargain- mg; (2) a copy of a letter from the Respondent's counsel to the Union's counsel, dated November 5, 1987, stating that the Respondent "declines" to recognize and bargain with the Union, and (3) counsel for the Re- spondent's December 11, 1987 letter to the Board Office (discussed above), stating that the Respondent "declines" to recognize and bargain with the Union The Respondent's answer also admits that the Respond- ent issued "a document dated November 5, 1987, to which the Board is referred for a true and accurate recitation of its contents " From all the above, we conclude there is no genuine issue of fact that the Union did, indeed, make a demand for bargaining that was refused by the Respond- ent Although the Respondent denies that the Union has been the exclusive representative pursuant to Sec. 9(a) of the unit employees since August 20, 1987, it has admitted the appropriateness of the unit and the issuance and correction of the certification In any event, in its opposition to the Motion for Summary Judgment, the Respondent does not rely on any of the above denials, but instead argues only that the election should be set aside because of certain alleg- edly inflammatory remarks of an ethnic nature made during the critical period before the election Accordingly, we find that the Respondent's denials raise no material issues of fact warranting a hearing. 2 General Shoe Corp, 77 NLRB 124, 127 (1948) 3 818 F.2d 1567 (1987) 289 NLRB No. 78 AIR EXPRESS INTERNATIONAL CORP. tion proceeding erred in failing to apply the stand- ard for evaluating potentially inflammatory state- ments based on race, as set forth in Sewell Mfg. Co.4 We disagree, because we are satisfied that the hearing officer, whose report was adopted by the Board in all relevant respects , did apply Sewell to the rumors at issue here . After summarizing the Sewell standard set forth in footnote 4, the hearing officer found that those rumors were based on a statement actually made by Silver;5 that the Union did not make the statement part of its campaign; that there was no systematic attempt to inject the "racial" issue into the campaign ; but that the em- ployees probably had blown the statement out of proportion in the retelling of it. Thus, the hearing officer not only applied the Sewell standard 6 but also properly found that, under that standard, the rumors imputing ethnic prejudice to Silver did not warrant setting aside the election.? 4 138 NLRB 66 (1962). In Sewell the Board announced that So long, therefore, as a party limits itself to truthfully setting forth another party's position on matters of racial interest and does not de- liberately seek to overstress and exacerbate racial feelings by irrele- vant, inflammatory appeals, we shall not set aside an election on this ground . However, the burden will be on the party making use of a racial message to establish that it was truthful and germane, and where there is doubt as to whether the total conduct of such party is within the described bounds, the doubt will be resolved against hum. Id at 71-72 (emphasis in original). 6 The Respondent contends that the hearing officer held that Silver did not make any anti-Cuban remarks. That contention misstates some- what the hearing officer's actual findings, which were, in pertinent part. It is the finding of the undersigned that Silver did make a state- ment in effect stating what has been imparted (sic] to him. I do not feel it was borne of malice but merely an attempt by Silver to respond to a question as to who was involved in the organizing drive 24 24 The thrust of the Employer's argument at the hearing and in its brief was that it would be implausible and illogical for Silver to make an anti-Cuban , bigoted remark , and I agree. I find the intent was not anti-Cuban. In effect, Silver by responding in this manner conveyed to the person who asked the question, that he was aware of who was behind the organizing drive, as identified as Cuban and his displeasure with them for this activity. (Emphasis added ) It is apparent that the hearing officer found that, irre- spective of Silver's attitude toward Cubans , Silver was overheard to make a remark that was interpreted as anti-Cuban. 6 The hearing officer did set forth the Board's standard for determin- ing whether to invalidate an election because of "third party" conduct, i.e., whether the conduct created a general atmosphere of fear and repris- al, rendering a free choice of representative impossible See, e g., Price Bros Co, 211 NLRB 822, 823 (1974) However, the hearing officer made no finding concerning whether such an atmosphere of fear and reprisal had been created in this case Instead, he turned to a discussion of Sewell and found the conduct in question here to have been unobjectionable under the Sewell analysis. 7 We also reject the Respondent's contention that M & M Supermar- kets requires that the election in this case be set aside . In M Bc M Super- markets, a prounion employee deliberately injected the subject of religion into the campaign by making gratuitous remarks concerning the employ- er's religion; the court of appeals found those remarks to be so inflamma- tory as to invalidate the election Here, by contrast, the employees merely repeated (with varying degrees of accuracy) the claim by Vas- quez, an employee of another company, that he had overheard Silver say that he had no problems with Puerto Ricans, and that the only problems he had were with the "f- Cubans" who were trying to cause problems with the union matter in the warehouse . Thus, to the extent ethnic con- cerns were introduced into the campaign , they were introduced by Silver himself, not by the employees See Singer Co, 191 NLRB 179, 180 (1971) 609 We therefore find that the Respondent has not raised any representation issue that is properly liti- gable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent, a Delaware corporation, en- gages in the business of air freight forwarding at its facility in Miami, Florida, where in the 12 months preceding the issuance of the complaint , it derived revenues in excess of $50,000 from the transporta- tion of freight and commodities from the State of Florida directly to points outside the State. 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 organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held May 8, 1986, the Union was certified August 20, 1987, as the collec- tive-bargaining representative of the employees in the following appropriate unit: All drivers and warehousemen; excluding all supervisors, office clerical employees, manage- rial, confidential employees, and guards as de- fined in the Act. On October 8, 1987, the Board issued an order cor- recting the certification by striking the unit just de- scribed and substituting the following appropriate unit: (declining to set aside election on the basis of inaccurate rumors that the employer's attorney was anti-Spanish, when the rumors arose out of a misunderstanding concerning the attorney 's precipitous ejection of a Spanish-language interpreter from the polling area) In NLRB Y. Bancroft Mfg. Co., 516 F.2d 436 (5th Cir. 1975), cart denied 424 U S 914 (1976), a union organizer warned black employees on several occasions that "if the blacks did not stay together and the Union lost the election , all the blacks would be fired." 516 172d at 440 The court of appeals found those statements, although untrue, not to be racially inflammatory, or even to constitute attempts to incite racial pas- sions, id at 442-443, and therefore that they did not invalidate the elec- tion Here, a fortiori, we found not only that no systematic attempt was made to inject ethnic issues into the campaign, but also that rumors about the Respondent's attitudes or intentions concerning Cubans actually origi- nated in a statement by one of the Respondent's own high-ranking man- agers The actions of the employees in circulating such rumors do not constitute the kind of gratuitous appeal to ethnic prejudice that Sewell brands as objectionable conduct See Beatrice Grocery Products, 287 NLRB 302 (1987) 610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All warehousemen employed by [Air Express] at its facility located at 2652-2658 N.W. 74th Avenue, Miami, Florida, excluding all other employees including drivers, office clerical employees, professional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since October 27, 1987, the Union has requested the Respondent to bargain, and since November 5, 1987, 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 November 5, 1987, to bargain with the Union as the exclusive collective- bargaining representative of employees in the ap- propriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (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. 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).8 ORDER The National Labor Relations Board orders that the Respondent, Air Express International Corpo- ration, Miami, Florida, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from a The General Counsel requests that the remedy include a visdatonal clause authorizing the Board, for compliance purposes, to obtain discov- ery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to include such a clause, and we deny the General Counsel 's request Chero- kee Marine Terminal, 287 NLRB 1080 ( 1988). (a) Refusing to bargain with Freight Drivers, Warehousemen and Helpers Local Union No. 390, an affiliate of International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, 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 employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All warehousemen employed by [Air Express] at its facility located at 2652-2658 N.W. 74th Avenue, Miami, Florida, excluding all other employees including drivers, office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) Post at its facility in Miami, Florida, copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Re- gional Director for Region 12, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately 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. 9 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. AIR EXPRESS INTERNATIONAL CORP. WE WILL NOT refuse to bargain with Freight Drivers, Warehousemen and Helpers Local Union No. 390, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America AFL-CIO as the exclusive representative of the employees in the bargaining unit. 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 611 on terms and conditions of employment for our employees in the bargaining unit: All warehousemen employed by us at our fa- cility located at 2652-2658 N.W. 74th Avenue, Miami, Florida, excluding all other employees including drivers, office clerical employees, professional employees, guards and supervisors as defined in the Act. AIR EXPRESS INTERNATIONAL COR- PORATION