Newtown Corp.

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newtown Corporation and Teamsters Local 51, af- filiated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 9-CA-15298 August 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on May 7, 1980, by Team- sters Local 651, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, and duly served on Newton Corporation, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 9, issued a complaint and notice of hearing on May 28, 1980, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on February 7, 1980, following a Board election in Case 9-RC- 13101, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about April 10, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On June 16, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On June 27, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on July 7, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- I Official notice is taken of the record in the representation proceed- ing, Case 9-RC 13101 as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV EIlctrosystemv In.., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968): Golden .4ge Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec 9(d) of the NLRA, as amended. 251 NLRB No. 79 ment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent, in sub- stance, agrees that the Union is the certified bar- gaining representative, and that it has refused the Union's demand for bargaining but attacks the va- lidity of the Union's certification. Respondent as- serts that the Board improperly denied its request for review of the Regional Director's Decision and Direction of Election in the underlying representa- tion proceeding. Respondent admits that it meets the Board's jurisdictional standards, but denies that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent alleges that it provides an essential service, refuse transfer, to a political subdivision of a State, and should therefore share that political subdivision's jurisdictional exemption under Section 2(2) of the Act. Respondent also contends that, since sanitation service is a traditional state and local function, the Board's assertion of jurisdiction exceeds the authority granted Congress, and conse- quently the Board, under the commerce clause of the United States Constitution. Respondent cites for this proposition National League of Cities, et al. v. Usery, Secretary of Labor, 426 U.S. 833 (1976). Respondent further contends that it lacks sufficient control over the employment conditions of its em- ployees to enable it to engage in meaningful collec- tive bargaining with a labor organization. Respondent also contends that the Board im- properly denied its request for review of the Re- gional Director's Supplemental Decision and Certi- fication of Representative, which overruled Re- spondent's objections to the election in the under- lying representation proceeding, and failed to direct a hearing on substantial and material issues of fact raised by the objections. The General Counsel, on the other hand, argues that all material issues have been previously decid- ed and that there are no litigable issues of fact war- ranting a hearing. Review of the record herein reveals that in Case 9-RC-13101 the petition was filed by the Union on October 1, 1979. On November 15, 1979, the Re- gional Director issued his Decision and Direction of Election in which he found, inter alia, that the NFWTOWN' CORPORATION) 537 Employer retained sufficient control of its employ- ees to engage in meaningful bargaining with the Union over conditions of employment. According- ly, the Regional Director asserted jurisdiction over the Employer in this matter. On November 26, 1979, Respondent filed a request for review of the Regional Director's Decision and Direction of Election, which was denied by the Board on De- cember 10, 1979, as it raised no substantial issues warranting review. The election was held on De- cember 14, 1979. At the conclusion of the ballot- ing, the tally revealed that six votes had been cast for, and two votes against, the Union. There were no challenged ballots. On December 21, 1979, Re- spondent filed timely objections to conduct affect- ing the results of the election, alleging that the Union or its agents misrepresented to employees the eligibility status of a former employee at a time so shortly before the election that the Employer was prevented from responding, and that the Union had threatened, intimidated, and coerced employees. On February 7, 1980, the Regional Di- rector having found no merit in the Employer's ob- jections issued his Supplemental Decision and Cer- tification of Representative. On February 25, 1980, Respondent filed a request for review, which was denied by the Board on March 17, 1980. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Kentucky corporation, is engaged in the operation of a solid waste transfer station at Lexington, Kentucky. Respondent is a party to a 2 See Pibuirgh Plateo Glass Co ..NL.R.B. 13 U S 146, I62 (19411: Rules and Regulations of the Board, Secs 102 67(f and 102 6(c) contract with the Lexington-Fayette Urban County Government (herein called the County). which provides, inter alia, that Respondent performs refuse transfer services for the County. During the past year, which is a representative period, Respondent, in the course and conduct of its business operations described above, provided services in excess of $50,000 pursuant to the con- tract described above for the County, which is di- rectly engaged in interstate commerce. We find, on the basis of the foregoing, that Re- spondent is, and alas been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. TH: LABOR ORGANIZAI'ION INVOI \Vi) Teamsters Local 651, affiliated wvith the Interna- tional Brotherhood of Teamsters. Chauffeurs, War- ehousemen and Helpers of America, is a labor or- ganization within the meaning of Section 2(5) of the Act.iii. the unfair labor practices A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collectivc-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Employer at its 1401 Old Frankfort Pike, Lexington, Kentucky facility, including truck drivers, litter pickers. mainte- nance men and traffic controllers, but exclud- ing all office clerical employees and all profes- sional employees, guards and supervisors as defined in the Act. 2. The certification On December 14, 1979, a majority of the em- ployees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 9, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on February 7, 1980, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. NWIOWN CORPORATION 53- 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Request To Bargain and Respondent's Refusal Commencing on or about February 7, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about April 10, 1980, and continu- ing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since April 10, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Newtown Corporation is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 651, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Employer at its 1401 Old Frank- fort Pike, Lexington, Kentucky facility, including truck drivers, litter pickers, maintenance men and traffic controllers, but excluding all office clerical employees and all professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since February 7, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 10, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Newtown Corporation, Lexington, Kentucky, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and NEWTOWN CORPORATION 539 conditions of employment with Teamsters Local 651. affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All production and maintenance employees employed by the Employer at its 1401 Old Frankfort Pike, Lexington, Kentucky facility, including truck drivers, litter pickers, mainte- nance men and traffic controllers, but exclud- ing all office clerical employees and all profes- sional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Lexington, Kentucky, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 In the event that 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 NAtional Labor Relations Board" shall read "Posted Pursu- ant 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 WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Teamsters Local 651, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees employed at our 1401 Old Frankfort Pike, Lexington, Kentucky facility, including truck drivers, litter pickers, maintenance men and traffic controllers, but excluding all office clerical employees and all professional employees, guards and supervisors as de- fined in the Act. NEWTOWN CORPORATION NEWTOWN CORPORATION 539 ..........