Dickerson Florida, Inc

DICKERSON FLORIDA, INC 63 Dickerson Florida, Inc and Teamsters Local Union No 769, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 12-CA-11112 18 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER Upon a charge filed by the Union on 19 March 1984 the General Counsel of the National Labor Relations Board issued a complaint on 16 April 1984 against the Company, the Respondent, alleg- ing that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act The complaint alleges that on 29 February 1984, following a Board election in Case 12-RC-6550, the Union was certified as the exclusive collective- bargaining representative of the Company's em- ployees in the unit found appropriate (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), amended Sept 9, 1981, 46 Fed Reg 45922 (1981), Frontier Hotel, 265 NLRB 343 (1982) ) The complaint fur- ther alleges that since 12 March 1984 the Company has refused to bargain with the Union On 26 April 1984 the Company filed its answer admitting in part and denying in part the allegations in the com- plaint On 15 May 1984 the General Counsel filed a Motion for Summary Judgment On 18 May 1984 the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted The Company 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 In its answer to the complaint and response to the Notice to Show Cause, the Company admits the request and the refusal to bargain It asserts, however, that it is entitled to a hearing because it has discovered new evidence of a threat and an un- lawful offer to waive initiation fees, because the Union lost majority status, and because of a change in the applicable law subsequent to resolution of the Company's objections in the underlying repre- sentation proceeding A review of the record herein, including that of the representation proceeding in Case 12-RC-6550, reveals that an election conducted pursuant to a Stipulation for Certification Upon Consent Election on 25 March 1983 resulted in a vote of 16 to 13 in favor of the Union with 1 challenged ballot which was insufficient to affect the results of the election Following the election the Employer filed objec- tions to conduct affecting the results of the elec- tion, including one alleging that union agents, members, and supporters coercively threatened em- ployees with physical violence A hearing on the objections was held before Administrative Law Judge J Pargen Robertson who recommended that the objections be overruled and that the Union be certified On 29 February 1984 the Board, having considered the decisions and the record in light of the exceptions and briefs, issued its Decision, Order, and Certification of Representative wherein it certified the Union as the exclusive collective- bargaining representative of certain employees of the Respondent i 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 US 146, 162 (1941), Secs 102 67(t) and 102 69(c) of the Board's Rules and Regulations The Company claims that summary judgment is inappropriate in this proceeding on several grounds First, the Company contends that an em- ployee, Doug Bloemendal, recently advised the Company that prior to the March 1983 election a union agent, Paul Bonar, threatened a group of 10 or so employees—approximately one-third of the bargaining unit—stating, "[L]ook what happen to Goldie [Reed]" The Respondent suggests that Bonar was referring to an accident Reed had and the fact that an employee who did not vote for the Union would have a similar "accident" The Re- spondent also contends that Bloemendal advised the Company that the Union offered to waive his initiation fees "if he signed up before the union got in" The Respondent, however, has not demon- strated that the facts of the alleged threat and the unlawful offer of waiver were not previously dis- coverable through the exercise of due diligence Therefore, this evidence does not meet the defini- tion of newly discovered and previously unavail- able evidence Second, the Company contends that it does not have a duty to bargain because the Union has lost its majority status The only fact that the Respond- ent points to in support of its contention, however, is that of the 28 current employees, only 11 voted 1 268 NLRB 1256 272 NLRB No 4 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the election It is well established that employee turnover during the certification year does not alone constitute "unusual circumstances" warrant- ing a refusal to bargain, and that absent unusual circumstances, there is an irrebuttable presumption that the majority status of a certified union contin- ues for 1 year from the date of the certification Carter-Glogau Laboratories, 265 NLRB 116, 117 (1982), Silverman's Men's Wear, 263 NLRB 191, 191 fn 3 (1982) The Company lastly contends that there should be a hearing because subsequent to the Board's de- cision in the underlying representation case there has been a change in the applicable law, citing Georgia Kraft Co v NLRB, 104 S Ct 1673 (1984) That decision, however, involved verbal threats by strikers to a fellow employee and was remanded to the Board for reconsideration in light of the Board's decision in Clear Pine Mouldings, 268 NLRB 1044 (1984) Since Clear Pine Mouldings issued prior to the Board's decision in the underly- ing representation case, and in any event, does not represent a change in the law relevant to this case, 2 the Respondent's contention is without merit Thus, the Company does not offer to adduce at a hearing any newly discovered evidence which it has established was previously unavailable through the exercise of due diligènce, nor does it substanti- ate any special circumstances that wouild require the Board to reexamine the decision made in the representation proceeding We therefore find that the Company has not raised any issue that is prop- erly litigable in this unfair labor practice proceed- ing Accordingly we grant the Motion for Summa- ry Judgment On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Company, a Florida corporation, is engaged in business as a contractor in the building and con- struction industry, constructing highways, matters related thereto, and shopping center developments at its facilities in Stuart and Ft Pierce, Florida, where it annually purchases goods and materials valued in excess of $50,000 directly from points outside the State of Florida We find that the Com- 2 It has long been established that verbal threats may warrant setting aside an election Clearly, nothing in Clear Pine Mouldings changed this rule In any event the Board in the underlying representation case held that the verbal statements forming the basis for the Respondent s objec tions were lighthearted, and made in jest, and therefore could not have affected anyone's vote Thus, the Board did not reach the Issue of wheth er the statements would have been sufficient to set aside the election had they been seriously made pany 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 on 25 March 1983 the Union was certified as the collective-bargaining representative of the employees in the following appropriate unit All truck drivers and truck mechanics, em- ployed by the Employer at its Ft Pierce, Flor- ida division located at Selvitz Road, State Road 611-B, Ft Pierce, Florida, excluding all office clerical employees, dispatcher, plant clerical, 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 9 March 1984 the Union has requested the Company to bargain, and since 12 March 1984 the Company has refused We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW By refusing on and after 12 March 1984 to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appro- priate unit, the Company 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) DICKERSON FLORIDA, INC 65 ORDER The National Labor Relations Board orders that the Respondent, Dickerson Florida, Inc , Stuart and St Pierce, Florida, its officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain with Teamsters Local Union No 769, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive 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 truck drivers and truck mechanics, em- ployed by the Employer at its Ft Pierce, Flor- ida division located at Selvitz Road, State Road 611-B, Ft Pierce, Florida, excluding all office clerical employees, dispatcher, plant clerical, guards and supervisors as defined in the Act (b) Post at its facility in Ft Pierce, Florida, copies of the attached notice marked "Appendix "3 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 3 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 Na tional Labor Relations Board" shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al 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 Teamsters Local Union No 769, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America 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 on terms and conditions of employment for our employees in the bargaining unit All truck drivers and truck mechanics, em- ployed by the Employer at its Ft Pierce, Flor- ida division located at Selvitz Road, State Road 611-B, Ft Pierce, Florida, excluding all office clerical employees, dispatcher, plant clerical, guards and supervisors as defined in the Act DICKERSON FLORIDA, INC