Ploof Transfer Co., Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1972

198 N.L.R.B. 965 (N.L.R.B. 1972)

PLOOF TRANSFER COMPANY, INC. 965
Ploof Transfer Company, Inc. and Independent Work-
ers Union, Inc. Case 12-CA-5646
August 18, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed on May 1, 1972, by Independ-
ent Workers Union, Inc., herein called the Union,
and duly served on Ploof Transfer Company, Inc.,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 12, issued a complaint
on May 16, 1972, 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 a Trial Examiner were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 14,
1972, following a Board election in Case
12-RC-3998, the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate;'
and that, commencing on or about March 18, 1972,
and more specifically by letters dated March 22 and
28, 1972, and April 19, 1972, 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 25, 1972, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On June 1, 1972, counsel for the General Counsel
filed with the Regional Director a Motion for Partial
Summary Judgment which was referred to and filed
directly with the Board on June 5, 1972. The motion
requested that summary judgment be granted on the
8(a)(1) and (5) allegations of the complaint and that
this case thereafter be remanded to the Regional
Director for the sole purpose of holding a hearing
before the Trial Examiner to determine whether the
strike which commenced on April 23, 1972, was
caused or prolonged by the Respondent's unfair
labor practices and whether such strike is an unfair
labor practice strike. Subsequently, on June 15, 1972,
I Official notice is taken of the record in the representation
proceeding, Case l2-RC-3998, as the term "record" is defined in Secs
102.68 and 102 69(f) of the Board's Rules and Regulations , Series 8, as
amended See LTV Electrosystemr, Inc, 166 NLRB 938, enfd 388 F.2d
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Partial Summary
Judgment should not be granted, and if granted, why
the case should not be remanded to the Regional
Director for the sole purpose of conducting a hearing
before a Trial Examiner to determine whether the
April 23, 1972, strike was an unfair labor practice
strike as alleged in the complaint. Respondent
thereafter filed a response (called Answer) 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 answer to the complaint and response to the
Notice To Show Cause, the Respondent contends
that the General Counsel's Motion for Partial
Summary Judgment should be denied because the
Regional Director's bargaining unit determination in
Case 12-RC-3998 allegedly was improper, arbitrary,
and/or capricious, and, therefore, the Union is not
the exclusive bargaining representative of the unit
employees. We find no merit in the Respondent's
contention.
The record in Case 12-RC-3998 reflects that after
a hearing, the Regional Director on February 2,
1972, issued his Decision and Direction of Election
finding appropriate a unit limited to employees at the
Respondent's Jacksonville, Florida, terminal rather
than a unit of the Respondent's five terminals. In so
finding, the Regional Director considered the allega-
tion of functional integration of all the terminals, as
well as the earlier decisions in Cases 12-RC-1928
and 12-RC-3665 where petitions for single terminal
units were dismissed. Thereafter, the Respondent
timely filed with the Board a request for review of the
Regional Director's Decision specifically raising the
same unit issues . On February 23, 1972, the Board
denied the request as it raised no substantial issues
warranting review.
The Union won the ensuing election held on
March 2, 1972. The Respondent then filed with the
Regional Director timely objections, seeking in
effect, reconsideration of the Regional Director's
unit determination. On March 14, 1972, the Regional
Director issued his Supplemental Decision on Objec-
683 (CA 4, 1968), Golden Age Beverage Co, 167 NLRB 151; Intertype
Co v. Penello, 269 F Supp 573 (DC Va, 1967); Follett Corp, 164
NLRB 378, enfd 397 F 2d 91 (C.A 7, 1968), Sec 9(d) of the NLRA
198 NLRB No. 125
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, Order, and Certification of Representative in
which he: (1) overruled the objections as being
without merit because they alleged nothing new and
not previously raised or considered; (2) denied the
Respondent's request for reconsideration; and (3)
certified the Union. The Respondent timely filed
with the Board a request for review of the Regional
Director's Supplemental Decision on Objections,
Order, and Certification of Representative. On April
5, 1972, the Board denied the request as not raising
substantial issues warranting review.
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.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances3 exist
herein which would require the Board to reexamine
the decision made in the representation proceeding.
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.4 We shall, accordingly,
grant the Motion for Partial Summary Judgment.
As we have granted the General Counsel's Motion
for Partial Summary Judgment, and no good cause
to the contrary being shown, we shall remand the
instant case to the Regional Director for the sole
purpose of holding a hearing before a Trial Examiner
to determine whether or not the strike which
commenced on April 23, 1972, was an unfair labor
practice strike as alleged in the complaint.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Florida corporation with its office
and principal place of business in Jacksonville,
Florida, where it is engaged in the transportaiton of
freight between and through the States of the United
States. During the past 12 months, the Respondent
Y See Pittsburgh Plate Glass Co v. NLRB, 313 U S 146, 162 (1941),
Rules and Regulations of the Board, Secs 102 67(f) and 102.69(c)
3 The Respondent 's contention that the petitioning union in Case
12-RC-4141 allegedly agrees with the Respondent that the Regional
Director's unit determination herein in Case 12-RC-3998 was erroneous
does not constitute special circumstances and is irrelevant and immaterial to
the unit determination herein.
4 In its answer to the complaint , the Respondent alleges that it
specifically requested the Regional Director for a hearing to submit
additional evidence in support of its objections and that the failure to grant
received annual income derived from the interstate
transportation of freight, in excess of $50,000.
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 effectuate the policies of the Act to assert
jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
Independent Workers Union, Inc., is a labor
organization 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 the Respondent
constitue a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All local drivers, helpers, mechanics and other
shop employees, riggers and yard employees, fuel
and tire employees, and warehouse employees
employed by the Employer at its Jacksonville,
Florida, terminal; but excluding road drivers,
office clerical employees, guards, and supervisors
as defined in the Act.
2. The certification
On March 2, 1972, 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 the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on March 14, 1972, 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 17, 1972, and
a hearing constitutes sufficient error to have the instant complaint
dismissed We do not agree The objections alleged nothing new and not
previously raised by the Respondent or considered by the Regional Director
prior to the issuance of his Decision and Direction of Election . Further,
prior to the election , the Respondent raised the same issue of inappropriate
unit in its request for review which the Board denied as not raising any
substantial issues warranting review As the Respondent's submission did
not raise material or substantial issues of fact warranting a hearing, none
was required . See O S Walker Company, Inc, 195 NLRB No. 180, and cases
cited therein
PLOOF TRANSFER COMPANY, INC.
specifically by letters dated March 17 and 24, 1972,
and April 6 and 14, 1972, and at all times thereafter,
the Union has requested the Respondent to bargain
collectively with it as the exclusive collective-bar-
gaining representative of all the employees in the
above-described unit. Commencing on or about
March 18, 1972, and more specifically by letters
dated March 22 and 28, 1972, and April 19, 1972,
and continuing at all times thereafter to date, the
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 the Respondent has,
since March 18, 1972, 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, Respon-
dent has engaged in and is engaging in unfair labor
practices 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 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, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit . See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd . 328 F.2d 600 (C.A. 5),
cert . denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd . 350 F.2d 57
(C.A. 10).
967
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Ploof Transfer Company, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Independent Workers Union, Inc., is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All local drivers, helpers, mechanics and other
shop employees, riggers and yard employees, fuel
and tire employees, and warehouse employees
employed by the Employer at its Jacksonville,
Florida, terminal; but excluding road drivers, office
clerical employees, guards, and supervisors as de-
fined 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 March 14, 1972, 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 18, 1972, 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)(1) 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 Respondent,
Ploof Transfer Company, Inc., 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 Independent Work-
ers Union, Inc., as the exclusive bargaining repre-
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative of its employees in the following appropri-
ate unit:
All local drivers, helpers, mechanics and other
shop employees, riggers and yard employees, fuel
and tire employees, and warehouse employees
employed by the Employer at its Jacksonville,
Florida, terminal; but excluding road drivers,
office clerical employees, 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 Jacksonville, Florida, terminal copies
of the attached notice marked "Appendix."5 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 thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent 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.
IT IS FURTHER ORDERED that the instant proceeding
be, and it hereby is, remanded to the Regional
Director for Region 12 for the sole purpose of
holding a hearing before a Trial Examiner to
determine whether or not the strike which com-
menced on April 23, 1972, was an unfair labor
practice strike as alleged in the complaint herein.
5 In the event 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 be changed to read "Posted
Pursuant to a Judgment of the United Sates 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 Inde-
pendent Workers Union, Inc., 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-
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 local drivers, helpers, mechanics and
other shop employees, riggers and yard
employees, fuel and tire employees, and
warehouse employees employed by the
Employer at its Jacksonville, Florida, termi-
nal; but excluding road drivers, office
clerical employees, guards, and supervisors
as defined in the Act.
PLOOF TRANSFER
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 706, Federal Office Building,
500 Zack Street, P.O. Box 3322, Tampa, Florida
33602, Telephone 813-228-7711, Extension 227.