Sanitas Service Corp.

SANITAS SERVICE CORP 119 United Sanitation Services, Division of Sanitas Serv- ice Corp. and Southern Conference of Team- sters, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Case 12-CA-10694 18 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER Upon a charge filed by the Union 28 April 1983, the General Counsel of the National Labor Rela- tions Board issued a complaint 31 May 1983 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act The complaint alleges that on 27 July 1982, fol- lowing a Board election in Case 12-RC-5772, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit 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 9, 1981, 46 Fed Reg 45922 (1981), Frontier Hotel, 265 NLRB 343 (1982) ) The complaint further al- leges that since 5 November 1982 the Company has refused to bargain with the Union On 13 June 1983 the Company filed its answer admitting in part and denying in part the allegations in the com- plaint On 28 July 1983 the General Counsel filed a Motion for Summary Judgment On 1 August 1983 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 opposition to the General Counsel's Motion for Summary Judg- ment, the Respondent admits the refusal to bargain with the Union regarding employees in the unit de- scribed in the complaint, but contends that it did not violate the Act because the Union is not the exclusive bargaining representative of those em- ployees 1 In its first affirmative defense, the Re- 1 The Respondent also admits the factual and legal allegations pertain ing to service of the charge and complaint, that in its Decision and Order dated 27 July 1982 the Board certified the Union as the exclusive bar gaining representative of the employees in the unit described in the corn plaint, that it is an employer engaged in commerce within the meaning of spondent predicates its refusal to bargain on the al- leged existence of special circumstances, nullifying the propriety of the Certification of Representative contained in the Order of the Board in Case 12- RC-5772 including (1) deviation by the Board from its standard of review of Regional Director's ac- tions without prior notice to the Respondent and without granting the Respondent an opportunity to be heard as to the revised standard, (2) the taking of notice by the Board in Case 12-RC-5772 of cer- tain facts which were significant to its decision which were not contained in or were contrary to the record, without prior notice to the Respondent and without granting the Respondent an opportuni- ty to be heard as to the propriety of taking notice and the accuracy of the facts to be noticed, and (3) sufficient turnover of employees in the bargaining unit, prior to the Board's certification of the Union, to call into question the majority status of the Union In its second affirmative defense, the Re- spondent contends that it has no enforceable duty to recognize or bargain with the Union because it has been denied a full and fair hearing on signifi- cant issues in Case 12-RC-5772 The record, including the record in Case 12- RC-5772, reveals that on 19 November 1979 the Union filed with the Regional Director a petition for certification as the exclusive bargaining repre- sentative of all employees of the Respondent On 26 December 1979, after a hearing, the Regional Director issued a Decision and Direction of Elec- tion, directing an election in a unit of the Respond- ent's employees On 25 January 1980 an election was conducted The tally of ballots shows 69 cast ballots for and 63 against the Union, there were 12 determinative challenged ballots The Union and the Respondent timely filed objections to the elec- tion and the Union filed unfair labor practice charges against the Respondent On 26 August 1980 the Regional Director consolidated the repre- sentation and unfair labor practice charge cases 2 Hearings were held before an administrative law judge to resolve, inter aim, the determinative chal- lenged ballots and alleged objectionable conduct to the election in Case 12-RC-5772 On 4 December 1981 the judge issued his decision, after which the General Counsel, the Respondent, and the Union timely filed exceptions On 27 July 1982 the Board issued its Decision, Order, and Certification of Representative in the unit found appropriate The Board's Decision is reported at 262 NLRB 1369 the Act, that the Union is a labor organization within the meaning of the Act, and that the unit is appropriate 2 Cases 12-CA-8876, 12-CA-9071, 12-CA-9266, and 12-RC-5772 272 NLRB No 25 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (27 July 1982) 3 On 26 August 1982 the Respond- ent filed with the Board a Motion for Reconsider- ation and/or Reopening of the Record On 13 Sep- tember 1982 said motion was denied by the Board 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 rehtigate 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(f) and 102 69(c) of the Board's Rules and Regulations The Respondent urges that certain errors committed by the judge and the Board during consideration of one of its objections to the election present such special circumstances as to entitle the Respondent to a hearing on the propriety of the certification in Case 12-RC-5772 We do not agree In this objection to election the Respondent con- tended, inter aim., that prior to the election the Re- spondent advised the Regional Office of the neces- sity to make accommodations for between 20 and 50 illiterate voters Further, that despite this notice, no arrangements were made to accommodate illit- erate voters and, therefore, the holding of a fair election was prevented The judge considered this objection and concluded that the Respondent had not proved the necessity of making provisions for illiterate individuals In its first affirmative defense, the Respondent alleges that this conclusion was based on an erroneous standard of review The Re- spondent's allegation is without merit The Respondent, as a party challenging the out- come of a representation election, bore the burden of showing by specific evidence that the alleged improprieties occurred Emerson Electric Co v NLRB, 649 F 2d 589, 592 (8th Cir 1981) The Re- spondent was required to prove every aspect of its prima facie case, including the existence of illiterate employees in the unit The Respondent did not carry that burden 4 Absent a prima facie showing of impropriety, the balloting is found to have re- flected the free and untrammeled choice of the em- ployees in the unit 5 3 Chairman Dotson did not participate in the underlying representation proceeding 4 In this proceeding the Respondent has submitted affidavits of unit employees in order to establish that the employees are unable to read and that their ballots did not express their true intent The Respondent has not demonstrated that these affidavits were previously unavailable and thus is attempting in this proceeding to rehtigate Issues which were fully and finally settled in the representation proceeding 5 We rely solely on the judge's conclusion that the Respondent has failed to evidence the existence of illiterate unit employees Any notice taken by the judge of facts which the Respondent contends are con- trary to the record was not necessary to the ultimate conclusion of this issue and therefore, even if incorrect, would be harmless error As part of its first affirmative defense the Re- spondent alleges that employee turnover prior to the issuance of the Certification of Representative was sufficient to call into question the majority status of the Union This issue was not raised by the Respondent in its exceptions to the judge's de- cision nor in its Motion for Reconsideration and/or Reopening of the Record, at which time the Re- spondent either knew or should have known of the alleged turnover The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence While the Respon- dent alleges that special circumstances exist that would require the Board to reexamine the decision made in the representation proceeding, as previous- ly noted, the allegations are without merit 6 We therefore find that the Respondent has not raised any issue that is properly litigable in this unfair labor practice proceeding In this proceeding, the Respondent contends that it is entitled to present evidence at a hearing on the issues raised by it We note that the Respondent had a hearing on its objection in the prior consoli- dated proceeding, submitted a brief to the Board in the Motion to Reconsider and/or Reopening of the Record and submitted a brief in this proceeding We therefore find its contention to be without merit as evidentiary hearings are not required in unfair labor practice cases and summary judgment against a respondent is appropriate where, as here, there are no properly litigible issues of fact to be resolved Woods Schools, 222 NLRB 1124 (1976), Locust Industries, 221 NLRB 604 (1975) Accord- ingly, we grant the Motion for Summary Judg- ment On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Company is a Connecticut corporation with an office and place of business in Miami, Florida During the 12-month period preceding issuance of the complaint, the Company provided services valued in excess of $50,000 to customers located within the State of Florida who meet a direct juris- dictional standard of the Board We find that the Company 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 6 We deny the Respondent's request that we reopen the record in Case 12-RC-5772, reconsider our Decision and Order in Case 12-RC-5772 revoke the Union s certification, and direct a rerun election SANITAS SERVICE CORP 121 II ALLEGED UNFAIR LABOR PRACTICES A The Certification Following the election held 25 January 1980 the Union was certified 27 July 1982 as the collective- bargaining representative of the employees in the following appropriate unit All drivers, vehicle mechanics, hydraulic me- chanics, fabrication employees, compaction employees, yard maintenance employees, tire changers, land fill operators, land fill mechan- ics, land fill factory clericals, safety men and parts department employees employed by the Respondent at its Miami, Florida and Medley, Florida facilities, excluding all sales department employees, dispatchers, office clericals, 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 1 November 1982 the Union has requested the Company to bargain, and since 5 November 1982 the Company 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 5 November 1982 to bargain with the Union as the exclusive collective- bargaining representative of employees in the ap- propriate 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) ORDER The National Labor Relations Board orders that the Respondent, United Sanitation Services, Divi- sion of Sanitas Service Corporation, Miami, Flori- da, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain with Southern Confer- ence of Teamsters, 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 drivers, vehicle mechanics, hydraulic me- chanics, fabrication employees, compaction employees, yard maintenance employees, tire changers, land fill operators, land fill mechan- ics, land fill factory clericals, safety men and parts department employees employed by the Respondent at its Miami, Florida and Medley, Florida facilities, excluding all sales department employees, dispatchers, office clericals, guards and supervisors as defined in the Act (b) Post at its facility in Miami, Florida, copies of the attached notice marked "Appendix "7 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 7 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' 122 DECISIONS OF 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 Southern Conference of Teamsters, International Brother- hood 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 drivers, vehicle mechanics, hydraulic me- chanics, fabrication employees, compaction employees, yard maintenance employees, tire changers, land fill operators, land fill mechan- ics, land fill factory clericals, safety men and parts department employees employed by the Employer at its Miami, Florida and Medley, Florida facilities, excluding all sales department employees, dispatchers, office clericals, guards and supervisors as defined in the Act UNITED SANITATION SERVICES, DIVI- SION OF SANITAS SERVICE CORP