Flagler Memorial Park

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 660 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flagler Memorial Park, Miami Memorial Association,
Dade Memorial Park, Mirror Lake Corp. and
District 2A, Transportation, Technical, Ware-
house, Industrial and Service Employees Union,
affiliated with District 2, M.E.B.A.-A.M.O., AFL-
CIO. Case 12-CA-7650
September 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on March 30, 1977, by District
2A, Transportation, Technical, Warehouse, Industri-
al and Service Employees Union, affiliated with
District 2, M.E.B.A.-A.M.O., AFL-CIO, herein
called the Union, and duly served on Flagler
Memorial Park, Miami Memorial Association, Dade
Memorial Park, Mirror Lake Corp., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 12, issued a complaint and notice of hearing
on April 29, 1977, against Respondent, 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, 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
record shows that on January 6, 1977, following a
Board election in Case 12-RC-5109 the Union was
duly certified as the exclusive collective-bargaining
representative of Respondent's employees in the unit
found appropriate;' and that, commencing on or
about March 10, 1977, and at all times thereafter,
Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
May 10, 1977, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On May 20, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 16, 1977, 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 Judgment should not
i Official notice is taken of the record in the representation proceeding,
Case 12-RC-5109, as the term "record" is defined in Secs. 102.68 and
102.
6 9
(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
232 NLRB No. 101
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
National Labor Relations Board has delegated its
authority 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 submissions herein, Respondent reiterates its
election objections and its contention that the denial
of a hearing thereon was a denial of due process and
also requests a hearing on its denial of the Union's
status as a statutory labor organization. In addition,
Respondent contends that any bargaining order
should be effective only to the end of the certification
year since the Union does not represent a majority of
unit employees. In her Motion for Summary Judg-
ment, counsel for the General Counsel contends that
summary judgment should be granted since Respon-
dent has raised no new issues and presents no triable
issues warranting a hearing. We agree.
Review of the record, including that in the
underlying representation proceeding, Case 12-RC-
5109, establishes that, pursuant to a Stipulation for
Certification Upon Consent Election in which the
Union's status as a labor organization under the Act
was stipulated, an election was held on July 29, 1976,
and was won by the Union. Respondent filed timely
objections to the election alleging (1) that the Union
had deprived voters of essential information (a) by
failing to file with the Department of Labor certain
forms required by the Labor-Management Reporting
and Disclosure Act and (b) by providing Respondent
with an incomplete copy of its constitution and (2)
that certain employees had been threatened with
violence if they did not vote for the Union.
Respondent requested either that the election be set
aside on the basis of its objections or that a hearing
be held on the factual disputes raised by its
objections. After an investigation, the Regional
Director issued his Report on Objections and
Recommendations to the Board on September 30,
1976, recommending that (1) in the absence of any
material and substantial factual conflict, Respon-
dent's request for a hearing be denied as the
investigation had adequately developed all relevant
facts necessary to dispose of the objections; (2) the
objections be overruled in their entirety; and (3) the
Union be certified. With respect to the first objection
the Regional Director concluded that Board prece-
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7 1968); Sec.
9(d) of the NLRA, as amended.
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FLAGLER MEMORIAL PARK
dent established (a) that compliance with the
provisions of the Labor-Management Reporting and
Disclosure Act is not a material matter for consider-
ation in Board proceedings 2 and (b) that a union
may not be denied the right to participate in an
election because of its failure to furnish copies of its
constitution to other parties.3 With respect to the
second objection, the Regional Director found that
there was no evidence that the employee who had
made the alleged threat was an agent of the Union
and that the remark in question was typical employee
bantering, not sufficiently coercive to warrant setting
aside the election. Respondent filed exceptions to the
Regional Director's report, basically reiterating its
objections and requesting that the election be set
aside or a hearing be held on the material and
substantial issues of fact raised by its objections. On
January 6, 1977, the Board issued its Decision and
Certification of Representative, specifically finding
that Respondent's exceptions raised no material and
substantial issues of fact or law which would warrant
reversal of the Regional Director's recommendations
or require a hearing and, accordingly, adopting the
Regional Director's findings and recommendations
and certifying the Union.
It is well settled that in the absence of newly
discovered or 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 which were or could have been
litigated in a prior representation proceeding.4
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered 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.5 We there-
fore find that Respondent has not raised any issue
which is properly litigable in this unfair labor
practice proceeding.6 We shall, accordingly, grant
the Motion for Summary Judgment.
2 Buckeye Village Market, Inc., 175 NLRB 271, 272 (1969).
3 Central Bus Lines, Inc., 88 NLRB 1223, 1225 (1950).
See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
5 In its answer and response, Respondent denies that the Union is a labor
organization under the Act, contending that, at the time it stipulated to the
Union's labor organization status in the underlying representation case, it
"had every right to assume that the (Union) was in compliance with the
statutory requirements for labor organization status" and that its discovery
subsequent to the stipulation that no employees participate in the Union to
the extent required by Sec. 2(5) of the Act entitles it to a hearing on labor
organization status in this proceeding. We find no merit in Respondent's
contention. It is well established that, having stipulated to this issue in the
underlying representation proceeding. Respondent may not litigate the
Union's status in this proceeding. Handy Hardaare Wholesale. Inc., 222
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Flagler Memorial Park, Miami Memorial Associa-
tion, and Dade Memorial Park are Florida corpora-
tions with offices and places of business in Dade
County, Florida, where each is engaged in the
business of operating a cemetery. Mirror Lake Corp.,
is also 'a Florida corporation located in Dade
County, Florida, where it is engaged in performing
equipment maintenance services for the aforemen-
tioned corporations. These four corporations, herein
called Respondent, are, and at all times material
herein have been, affiliated businesses with common
officers, ownership, directors, and operators and
constitute a single integrated enterprise; the said
directors and operators formulate and administer a
common labor policy for the aforementioned compa-
nies, affecting the employees of said companies.
During the past 12 months, a representative period,
Respondent in the course and conduct of its business
operations had a gross volume of business exceeding
$500,000; and during that same period of time, it
received and purchased at its Dade County, Florida,
places of business, goods and materials valued in
excess of $50,000 which were shipped to them from
points located outside the State of Florida.
We find, on the basis of the foregoing, that
Respondent is, and has 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 effecutate the policies of the Act to assert
jurisdiction herein.
II1. THE LABOR ORGANIZATION INVOLVED
District 2A, Transportation, Technical Warehouse,
Industrial and Service Employees Union, affiliated
with District 2, M.E.B.A.-A.M.O., AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
NLRB 373 (1976). Further, Respondent does not set forth any evidentiary
support for its conclusion as to the absence of employee participation in the
Union nor does Respondent allege that any such evidence it would present
at a hearing could not, with due diligence, have been discovered and raised
prior to the conclusion of the representation proceeding.
6 In its response, Respondent contends that it is entitled to a hearing in
this proceeding on its objections and the Union's status as a labor
organization under the Rules and Regulations of the Board, the Administra-
tive Procedure Act, and the constitution. Contrary to Respondent's view.
neither the Board's Rules and Regulations, the Administrative Procedure
Act, nor constitutional due process mandate a hearing in an unfair labor
practice proceeding where, as here, there are no issues of fact on which to
hold a hearing. Globe Security Services, Inc., 221 NLRB 5% (1975).
enforcement denied on other grounds 548 F.2d 1115 (C.A. 3, 1977). and
cases cited therein.
661
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All backhoe operators, set-up men, sod men,
marker setters, mechanics, and general mainte-
nance employees'employed by Respondent at its
Dade County, Florida, facilities, excluding all
other employees, including office clerical employ-
ees, switchboard operators, receptionists, sales-
men, watchmen, guards and supervisors as
defined in the Act.
2. The certification
On July 28, 1976, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 12, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on January 6, 1977, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 10, 1977, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about March 10, 1977, and continuing at all times
thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
March 10, 1977, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
T We reject Respondent's request that the bargaining order herein run
only until a year from the date on which the Union was certified by the
Board. Respondent contends that such a limitation is warranted because the
Union no longer represents a majority of unit employees. We find no merit
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 opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing 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
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law,7 we shall construe the initial period of certifica-
tion as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Flagler Memorial Park, Miami Memorial
Association, Dade Memorial Park, and Mirror Lake
Corp., a single integrated enterprise, is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. District 2A, Transportation, Technical Ware-
house, Industrial and Service Employees Union,
affiliated with District 2, M.E.B.A.-A.M.O., AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All backhoe operators, set-up men, sod men,
marker setters, mechanics, and general maintenance
employees employed by Respondent at its Dade
in this contention inasmuch as Respondent alleges no "unusual circum-
stances" to rebut the presumption of the Union's continued majority status
for I year following its certification. Brooks v. N.L.R.B., 348 U.S. 96 (1954).
662
FLAGLER MEMORIAL PARK
County, Florida, facilities, excluding all other em-
ployees, including office clerical employees, switch-
board operators, receptionists, salesmen, watchmen,
guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since January 6, 1977, 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 March 10, 1977, 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 practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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
Relations Board hereby orders that the Respondent,
Flagler Memorial Park, Miami Memorial Associa-
tion, Dade Memorial Park, and Mirror Lake Corp., a
single integrated enterprise in Dade County, Florida,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with District 2A, Trans-
portation, Technical Warehouse, Industrial and
Service Employees Union, affiliated with District 2,
M.E.B.A.-A.M.O., AFL-CIO, as the exclusive bar-
gaining representative of its employees in the
following appropriate unit:
All backhoe operators, set-up men, sod men,
marker setters, mechanics, and general mainte-
nance employees employed by Respondent at its
Dade County, Florida, facilities, excluding all
other employees, including office clerical employ-
ees, switchboard operators, receptionists, sales-
men, watchmen, guards and supervisors as
defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Dade County, Florida, facilities
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the
Regional Director for Region 12, 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I 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 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
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with District
2A, Transportation, Technical Warehouse, Indus-
trial and Service Employees Union, affiliated with
District 2, M.E.B.A.-A.M.O., AFL-CIO, 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 employees
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 representa-
663
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All backhoe operators, set-up men, sod men,
marker setters, mechanics, and general
maintenance employees employed at our
Dade County, Florida, facilities, excluding
all other employees, including office clerical
employees, switchboard operators, recep-
tionists, salesmen, watchmen, guards and
supervisors as defined in the Act.
FLAGLER MEMORIAL
PARK, MIAMI MEMORIAL
ASSOCIATION, DADE
MEMORIAL PARK,
MIRROR LAKE CORP.
664