Wells Fargo Armored Service Corp. Of Puerto Rico

936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Wells Fargo Armored Service Corporation of Puerto Rico and Congreso de Uniones Industriales de Puerto Rico. Case 24-CA-5524 August 23, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 25, 1988, Administrative Law Judge Donald R. Holley issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed limited exceptions and a brief in support of the judge's decision. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified.I ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Wells Fargo Armored Service Corpora- tion of Puerto Rico, Rio Piedras, San Juan, Puerto Rico, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1(a). "(a) Failing and refusing to recognize and bar- gain collectively concerning rates of pay, wages, hours, and other terms and conditions of employ- ment with any duly certified representative of its employees in the following appropriate unit: i We find merit in the General Counsel's request that the notice be posted in Spanish as well as English We shall modify the recommended Order accordingly On May 20, 1988, the Respondent filed a motion to admit new evi- dence and dismiss the complaint pursuant to a disclaimer of interest dated May 5, 1988, that it had recieved from the Union The Union stated in effect that it no longer was interested in representing the unit employees In its motion, the Respondent contends the Union's disclaimer relieves it of any obligation to bargain with the Union and that the present contro- versy is moot The General Counsel's opposition to the motion contends that although the Union's disclaimer i elieves the Respondent of bargain- ing with that particular Union, it does not negate the judge's finding that the Respondent violated the Act and that it has an obligation to bargain in good faith with any other labor oiganization that is duly selected by the unit employees to represent them The General Counsel also states that the unit employees are entitled to a Board order and the posting of a notice for without such their Sec 7 rights will have been chilled In this regard, the General Counsel requests that the judge's recommended Order be modified to require the Re.pondent to bargain with any duly certified representative of its employees in the designated appropriate unit. We find ment to the Respondenr,'s motion only to the extent that it requests admission of the Union's disclaimer However, in agreement with the General Counsel, we find that the issues are not moot and the complaint should not be dismissed Furthermore, in order to effectuate the purposes of the Act, we shall order the Respondent to bargain with any duly certified representative of its unit employees All mechanics and mechanic helpers employed by Respondent at its Rio Piedras facility in San Juan, Puerto Rico, excluding all other em- ployees, guards and supervisors as defined in the Act." 2. Substitute the following for paragraphs 2(a) and (b). "(a) On request, recognize and bargain with any duly certified representative of the employees in the aforesaid appropriate unit with respect to rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement. "(b) Post at its Rio Piedras, San Juan, Puerto Rico facility copies of the attached notice marked "Appendix."10 Copies of the notice, on forms pro- vided by the Regional Director for Region 24, 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 custom- arily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material." 3. Substitute the attached notice for that of the adminstrative law judge. 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 fail and refuse to recognize and bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with any duly certified representative of the employees in the following appropriate unit: All mechanics and mechanic helpers employed at our Rio Piedras facility in San Juan, Puerto Rico, excluding all other employees, guards and supervisors as defined 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, recognize and bargain col- lectively with any duly certified representative of all employees in the appropriate unit with respect 290 NLRB No. 110 WELLS FARGO ARMORED SERVICE CORP. to rates of pay, hours of employment, and other terms and conditions of employment and, if an un- derstanding is reached, embody such understanding in a signed agreement. WELLS FARGO ARMORED SERVICE CORPORATION OF PUERTO RICO Virginia Milan Gfol, Esq., for the General Counsel. Thomas Franklin, Esq., of Atlanta, Georgia, for the Re- spondent. Arturo Figueroa, for the Union. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge. On an original charge filed by Congreso de Uniones Indus- triales de Puerto Rico (the Union) on 10 February 1987 and an amended charge filed on 31 March 1987 , the Re- gional Director for Region 24 of the National Labor Re- lations Board issued a complaint on 31 March 1987 that alleged, in substance, that by withdrawing its recognition of the Union as the exclusive collective-bargaining repre- sentative of specified employees on or about 11 August 1986, Wells Fargo Armored Service Corporation of Puerto Rico (the Respondent) violated Section 8(aX5) and (1) of the National Labor Relations Act. By timely answer, Respondent denied it had violated the Act as al- leged. Although Respondent admitted in its answer that it withdrew recognition from the Unon on or about 11 August 1986, it pleaded affirmatively that "1. The six month statute of limitations has expired on the basis of this charge. 2. The Union's certification year expired on 9 January 1986. 3. The Union made no effort to repre- sent the employees from October 1985 until March 1986." The case was heard in Hato Rey, Puerto Rico, on 26 October 1987. All parties appeared and were afforded full opportunity to participate. On the entire record, in- cluding posthearing briefs filled by the parties, and from my observation of the demeanor of the witnesses who appeared to give testimony, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a Tennessee corporation authorized to do business in the Commonwealth of Puerto Rico , engages in the transportation of money and valuables by means of armored trucks and related security services, and oper- ates a facility located in Rio Piedras, San Juan, Puerto Rico. In the normal course of its business operations, it annually performs services valued in excess of $50,000 for banks and other enterprises within the Common- wealth of Puerto Rico which are engaged in interstate commerce, such as Banco Popular de Puerto Rico and Banco de Ponce. It is admitted, and I find, that Respond- ent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. II. STATUS OF LABOR ORGANIZATION 937 It is admitted, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The facts in the instant case are not in dispute." Sum- marized, the record reveals the following On 9 January 1985 the Union was certified by the Board as the exclusive collective-bargaining representa- tive of employees in the following unit: All mechanics and mechanic helpers employed by the Employer [Respondent] at its San Juan Branch located at Rio Piedras, Puerto Rico, excluding all other employees, guards and supervisors as defined in the Act.2 At the time of the certification, Respondent employed two mechanics and one mechanic helper . The unit con- sisted of two employees at the time of the hearing be- cause one mechanic had left Respondent's employ. After an exchange of correspondence, the parties en- gaged in negotiations in Puerto Rico on 19 , 20, 21, and 22 August 1985, and 1, 2, and 3 October 1985 . Thomas Franklin, assistant vice president of labor relations, and Luis A. Berrios, vice president-general manager of Puerto Rico operations, represented Respondent. Arturo Figueroa, the Union's president, and Charles E. Ayala, an employee and a member of the bargaining unit, repre- sented the Union. Disagreement on undisclosed economic and noneco- nomic matters prevented the parties from reaching agree- ment on a contract during negotiations. On 7 October 1985 Respondent, through Franklin, sent the Union a final offer. The letter transmitting the final offer was placed in the record, but the final offer was not. The body of Franklin's letter states:3 Enclosed you will find a completed copy of the final offer of Wells Fargo in our collective bargain- ing. This copy represents the entire contract which includes agreed upon language and nonagreed upon final positions of Wells Fargo. It has become very evident to me that you do not know how to conduct the art to negotiations. Your continual refusal to make counter proposals or to change positions leaves us at impasse. This is Wells Fargo's final position on all issues. You are naturally free to pursue whatever course of action you choose. A copy of the final offer has been given to each of the mechanics . Please let Mr. ' Counsel for the General Counsel conducted her case -in-chief by ad- ducing testimony through two union representatives and one employee, and through the introduction of certain documentary evidence. The wit- nesses testified in a straightforward manner and I credit their uncontro- verted testimony. Respondent elected to rest without presenting a defense at the conclusion of the General Counsel 's case. 7 Appropriateness of the unit is not in dispute. 3 G.C. Exh. 11. 938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Berrios know what the decision is regarding accept- ance or rejection of this contract. On 10 October 1985, Franklin sent the Union a second letter, which contained essentially the same verbage con- tained in the above-quoted letter.' The Union did not immediately respond in writing to Franklin's October letters. Instead, its president, A. Fi- gueroa, contacted Respondent General Manager Berrios in November and December 1985, and in January and February 1986, to request that Respondent schedule a meeting at which negotiations whould be continued. The record fails to reveal that the Union made any counter- proposals to Respondent's last offer. A. Figueroa credi- bly testified that Berrios "intertained" him during the above described telephone conversations by telling him negotiations were Franklin's problem and he would at- tempt to contact Franklin. By letter dated 10 March 1986, the Union demanded in writing that Respondent meet with it to continue ne- gotiations. Berrios forwarded the letter to Franklin. By letter dated 7 April 1986, Franklin responded to the Union's 10 March letter stating, inter alia: letter on 7 April, 1986 explaining the company's po- sition. I will remind you of the facts. Your union's certi- fication began on January 9, 1985. The one year of presumed certification expired seven (7) months ago. The company presented you with a final offer and heard nothing from you. If you were willing to accept that offer, you should have signed the con- tract and returned it. You did not do so. All issues have been discussed and negotiated. There would be no point in further negotiations. In considering the factors present here: 1. The union did not accept the final offer. 2. The employees did not strike the company. 3. The best offer was made in October 1985 and you did not contact the company again until April 1986. Your union abandoned the unit. 4. The union's certification year expired in Jan- uary 1986. Thus, union no longer represents the mechanics. I hope this clairifies [sic] the issue and our posi- tion in this matter. I have been informed that you have contacted our San Juan office and that you wish to continue negotiations between your union and our company. I would like to point out a few factors to you: Your certification began on January 9, 1985. Clear- ly, one year of presumed representation has expired. Additionally, we last met in October at which time, in essence, you refused to bargain and we declared impasse. We presented you with our final offer in October and heard nothing from you as to whether or not your people had accepted it or not. I do not see that anything has changed between now and then. I do not see what could be accomplished nor do I understand the purpose of continuing negotia- tions. You have our final offer. If you wish, you can let me know your opinion as to these items. The Union responded to Franklin's 7 April 1986 letter by demanding in writing on 15 July 1986 that Respond- ent meet with the Union to conclude negotiations within 20 days. Respondent admits in its answer that it withdrew rec- ognition from the Union on or about 11 August 1986. Withdrawal of recognition was accomplished by a letter from Franklin to A. Figueroa dated 8 August 1986. A. Figueroa credibly testified he did not receive the letter until on or after II August 1986.5 The body of Frank- lin's letter states:6 A copy of your 15 July , 1986 letter has been re- ferred to me. As you are aware, I wrote you a 4 G.C. Exh. 12. 5 The date of 8 August was a Friday. The letter was mailed in Atlanta, Georgia, on 8 August, and Figueroa testified his office is closed on Satur- day and Sunday and he could not have received the letter until Monday, 11 August, at the earliest. 6 G.C. Exh. 16(a). By letter dated 19 August 1986 A. Figueroa informed Franklin he did not agree with the allegations and or po- sition of Respondent set forth in Franklin's 8 August 1986 letter, and he demanded that Respondent meet with the Union within 15 days to continue negotiations. Re- spondent did not respond. Subsequently, by letters dated 14 October 1986, 17 February 1987, 13 March 1987, the Union requested that Respondent meet to continue nego- tiations. Respondent did not reply until 3 April 1987. At that time, Franklin informed the Union, that Respondent would not meet further with it until ordered to do so by the Board.' The original charge was filed in the instant case on 10 February 1987. It alleges that Respondent violated Sec- tion 8(a)(1) and (5) of the Act by "refusing to meet to negotiate a collective bargaining agreement alleging the Union no longer represents the employees." The charge was amended on 31 March 1987 to allege specifically that Respondent violated Section 8(a)(5) of the Act on 11 August 1986 by "unlawfully withdrawing recognition from the . . . Union and thereafter refusing to meet to negotiate a collective bargaining agreement." Analysis and Conclusions Respondent interposes two defenses in the instant case, i.e., it claims the complaint is time barred by Section 10(b) of the Act and it claims it possessed a good-faith doubt that the Union represented a majority of the unit employees when it withdrew recognition by the letter dated 8 August 1986. I find both contentions to be with- out merit. Respondent's contention that the complaint is time barred by Section 10(b) of the Act is grounded on a con- tention that the original charge, which was filed on 10 February 1987, failed to specifically allege that it had ' G.C. Exh. 22. WELLS FARGO ARMORED SERVICE CORP. 939 violated Section 8(a)(5) by withdrawing recognition from the Union during the 6-month period preceding the filing of the charge. Respondent contends, in effect, that the complaint is based on the amended charge, which did specifically allege withdrawal of recognition, and was not filed until 31 March 1987, a date more than 6 months after 11 August 1985. In National Licorice v. NLRB., 309 U.S. 350 (1940), and in NLRB v. Fant Milling Co., 360 U.S. 301 (1959), the Supreme Court rejected contentions that the Board is limited in framing complaints to specific matters alleged in a charge. In Fant Milling, the Court addressed the issue now before me stating (at 307): A charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit . Its purpose is merely to set in motion the machinery of an inquiry. Labor Board I. I & M Electric Co., 318 U.S. 9, 18. The responsibil- ity of making that inquiry, and of framing the issues in the case is one that Congress has imposed upon the Board, not the charging party. To confine the Board in its inquiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of private rights. This would be alien to the basic purpose of the Act. More recently, in NLRB v Antonio's Restaurant, 648 F.2d 1206 (9th Cir. 1981), the court discussed sufficiency of a complaint and applicability of Section 10(b), stating (at 1210): Actions before the Board are not subject to the technical pleading requirements of a private lawsuit. North American Rockwell Corp. V. NLRB, 389 F.2d 866, 870 (10th Cir. 1968). The charge need not be technically precise so long as it generally informs the party charged of the nature of the alleged viola- tions, and the general allegations in the charge may later be supplemented or amplified by more specific allegations which "relate back" to the date the charge was filed. In sum, it is clear that the complaint allegation that Re- spondent unlawfully withdrew recognition from the in- stant Union on 11 August 1986 is closely related to the allegation in the original charge, which asserted Re- spondent had violated Section 8(axl) and (5) by "refus- ing to meet and negotiate a collective-bargaining agree- ment alleging the Union no longer represents the em- ployees." The filing of the amended charge, which al- leged specifically that Respondent violated Section 8(a)(1) and (5) by withdrawing recognition from the Union, constituted proper, but unnecessary action. Con- trary to Respondent, the more specific allegation related back to the date the original charge was filed. Accord- ingly, Section 10(b) of the Act is not applicable here. Remaining for resolution is Respondent's claim that the Union's actions from the time Respondent made a final offer on 7 October 1985, until 10 March 1986, the date the Union requested in writing that negotiations be resumed, legally entitled it to withdraw recognition from the Union by letter dated 8 August 1986 . As noted, supra, Respondent admits in its answer that it withdrew recognition from the Union on or about 11 August 1986. In Terrell Machine Co., 173 NLRB 1480 (1969), enfd. 427 F.2d 1088 (4th Cir. (1990)), the Board set forth the legal principles to be applied in situations when an em- ployer seeks to withdraw recognition from an established bargaining representative, stating, inter alia: It is well settled that a certified union , upon expira- tion of the first year following its certification, enjoys a rebuttable presumption that its majority representative status continues. This presumption is designed to promote stability in collective-bargain- ing relationships, without impairing the free choice of employees. Accordingly, once the presumption is shown to be operative, a prima facie case is estab- lished that an employer is obligated to bargain and that its refusal to do so would be unlawful. The prima facie case may be rebutted if the employer af- firmatively establishes either (1) that at the time of the refusal the union in fact no longer enjoyed ma- jority representative status; or (2) that the employ- er's refusal was predicated on a good -faith and rea- sonably grounded doubt of the union's continued majority status. As to the second of these. As to the second of these, i.e., "good faith doubt," two pre- requisites for sustaining the defense are that the as- serted doubt must be based on objective consider- ations and it must not have been advanced for the purpose of gaining time in which to undermine the Union. In the instant case, the considerations, which allegedly caused Respondent to withdraw recognition from the Union, are set forth in Franklin's 8 August 1986 letter. They are: 1. The union did not accept the final offer. 2. The employees did not strike the company. 3. The best offer was made in October 1985 and you did not contact the company again until April 1986. Your union abandoned the unit. 4. The union's certification year expired in Janu- ary 1986. Thus, union no longer represents the me- chanics. In its brief (at 4), Respondent clarifies its position con- cerning the first three numbered items set forth above by contending "The Company believed that the union's lack of action on the final offer and the lapse of time between the final offer on 7 October 1985 and the letter on 10 March 1986 indicated that the union lacked support of its unit members." I find the contention to be without merit. Similar contentions were made and rejected by Judge Michael O. Miller, with subsequent Board approval, in Flex Plastics, 262 NLRB 651 (1982). There, it was ob- served that the Board discussed the duty of an employer during a period of impasse in International Medication Systems, 253 NLRB 863 (1980), stating, inter alia, at fn. 3: 940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD We have long held that, while an impasse may sus- pend bargaining for a time, it "does not relieve an employer from the continuing duty to take no action ... which amounts to a withdrawal of recog- nition of the Union's representative status." Central Metallic Casket Co., 91 NLRB 572, 574 (1950). Thus whether the parties arrived at an impasse is irrele- vant to an evaluation of Respondent's asserted good faith and reasonably grounded doubt of the Union's majority status. Patently, neither the existence of an impasse nor the fail- ure of the Union or the employees to accept the Compa- ny's final offer or strike enabled Respondent to legally withdraw recognition from the Union. Turning to the contention the union inaction entitled Respondent to question the Union's majority status, I reject the argument for two reasons. First, I note that the facts, supra, fail to factually support Respondent's contention. In this regard, I have credited the testimony of the Union's president, which was to the effect that he contacted Respondent's general manager in November and December 1985, and in January and February 1986, to demand a resumption of bargaining. Moreover, I credit the same individual's assertion that Berrios merely "intertained" him by promising to contact Franklin, but accomplishing nothing. Clearly, if there was inaction during the period of impasse, it was respondent rather than union inaction. Assuming, arguendo, however, that the Union was inactive for a period of 4-5 months during late 1985 and early 1986, case precedent reveals that by demanding a resumption of bargaining through its 10 March 1986 letter, which reached Franklin, it en- gaged in activity that negated any inference to be drawn from alleged inactivity. Flex Plastics, supra at 657.8 Finally, the principles enunciated in Terrell Machine clearly reveal the mere expiration of the Union's certifi- cation year could not serve as the basis for Respondent's alleged formation of a good-faith doubt that the Union did not enjoy majority status on or about 11 August 1986. In sum, I find, for the above-stated reasons, that Re- spondent has failed to rebut the presumption that the Union represented a majority of its employees in the unit admitted to be appropriate when Respondent withdrew recognition from the Union on or about 11 August 1986. Accordingly, I find, as alleged, that by engaging in such action, Respondent violated Section 8(a)(5) and (1) of the Act as alleged. CONCLUSIONS OF LAW 1. Wells Fargo Armored Service Corporation of Puerto Rico is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(6) of the Act. 3. All mechanics and mechanic helpers employed by Wells Fargo Armored Service Corporation of Puerto Rico at its Rio Piedras facility in San Juan, excluding all e See also Pioneer Inn, 228 NLRB 1263, 1265 (1979), enfd 578 F 2d 835 (9th Ctr 1978), Road Materials, 193 NLRB 990 (1971) other employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. By withdrawing recognition from Congreso de Un- iones Industriales de Puerto Rico as the exclusive bar- gaining agent of Respondent's employees in the aforesaid appropriate unit on or about It August 1986, Respond- ent violated Section 8(a)(5) and (1) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully withdrew recognition from the Union as the exclusive bargaining agent of employees in the appropriate unit described above, and that it, on request, bargain collectively with the Union regarding the rates of pay, wages, hours of employment, and other conditions of employment of unit employees and, if an understanding is reached, embody such understanding in a signed agreement. Finally, although the General Counsel requests that a visitatorial clause be included in any order issued in this case, I note the Board has declined to include such clauses in cases that do not appear to pose complicated compliance problems. See, for example, Cherokee termi- nal, 287 NLRB 1080 (1988). In my view, the order in this case will pose no significant compliance problems. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Wells Fargo Armored Service Cor- poration of Rio Piedras, San Juan, Puerto Rico, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Congreso de Uniones Industriales de Puerto Rico as the exclusive bargaining representative of employees in the following appropriate unit. All mechanics and mechanic helpers employed by Respondent at its Rio Piedras facility in San Juan, Puerto Rico, excluding all other employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following action necessary to effectuate the policies of the Act. (a) On request, recognize and bargain collectively with the Union as the exclusive representative of all employ- 9 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses WELLS FARGO ARMORED SERVICE CORP. ees in the appropriate unit with respect to rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Rio Piedras, Puerto Rico facility copies of the attached notice marked "Appendix." t ° Copies of 10 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." 941 the notice, on forms provided by the Regional Director for Region 24, after being signed by the Respondent's authorized representative , shall be posted by the Re- spondent 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 Respond- ent 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 Re- spondent has taken to comply.