Ploof Transfer Co., Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1973

201 N.L.R.B. 828 (N.L.R.B. 1973)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ploof Transfer Company , Inc. and Independent Work-
ers Union, Inc. Case 12-CA-5646
February 13, 1973
SUPPLEMENTAL DECISION AND
AMENDED ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 18, 1972, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding.' In its Decision, the Board
granted the General Counsel's Motion for Partial
Summary Judgment and concluded, on the basis of
the findings set forth therein, that the Respondent
violated Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended, by refusing, on or
about March 18, 1972, and thereafter, to bargain
collectively with the Union as the exclusive bargain-
ing representative of the employees of the Respon-
dent in the appropriate unit. The Board further
remanded the case to the Regional Director for
Region 12 for the sole purpose of holding a hearing
before an Administrative Law Judge2 to determine
whether or not the strike, which commenced on April
23, 1972, was an unfair labor practice strike as
alleged in the complaint.
Pursuant to the remand, a hearing was held in this
matter on September 19, 1972. On November 9,
1972, Administrative Law Judge Henry L. Jalette
issued the attached Supplemental Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed cross-exceptions, and amended cross-
exceptions.
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.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions, cross-exceptions, and brief, and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge, with the
following additions and modifications:
The Administrative Law Judge found, and we
agree, that the strike herein, which began on April
23, 1972, and continues to date, was caused and
prolonged by the Respondent's refusal to honor the
certification and to bargain with the Union, and was,
therefore, an unfair labor practice strike. The
General Counsel, however, filed cross-exceptions to
the failure of the Administrative Law Judge to
provide the usual Board remedy in this situation;
namely, to require reinstatement of unfair labor
201 NLRB No. 127
practice strikers upon their unconditional application
for reinstatement . We find merit in the General
Counsel 's cross-exceptions.3
Accordingly, we shall amend our previous Order in
this case ( 198 NLRB No. 125) in the following
respects:
AMENDED ORDER
1. Insert the following as paragraphs 2(b) and 2(c)
of the Order, and reletter the subsequent paragraphs
accordingly:
"(b) Upon their unconditional application, offer
strikers not heretofore reinstated immediate and full
reinstatement to their former jobs or , if their jobs no
longer exist , to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make whole for any loss of
earnings strikers who have made themselves availa-
ble for employment on an unconditional basis but
who were refused reinstatement.
"(c) Preserve and, upon request, make available to
the Board and its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary in determining the
amount due as backpay."
2. Substitute the attached notice for the notice in
the original Decision of the Board.
1 198 NLRB No. 125.
2 The title of "Tnal Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
3 See D 'Arnugene, Inc, 148 NLRB 2
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,
PLOOF TRANSFER COMPANY 829
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 his Jacksonville, Florida, termi-
nal; but excluding road drivers, office
clerical employees, guards and supervisors
as defined in the Act.
WE WILL, upon their unconditional application,
offer strikers not heretofore reinstated immediate
and full reinstatement to their former jobs or, if
their jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or other rights and privileges, and make whole for
any loss of earnings strikers who have made
themselves available for employment on an
unconditional basis but who were refused rein-
statement.
WE WILL preserve and, upon request, make
available to the Board and its agents, for
examination and copying, all payroll records,
social security payment records, timecards, per-
sonnel records and reports, and all other records
necessary in determining the amount due as
backpay.
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 813-288-7711, Extension 227.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: Pursuant
to a charge filed on May 1, 1972,1 by Independent Workers
Union, Inc., a complaint issued on May 16, alleging that
the above-named Company had engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act. The gravamen of the complaint was that following
a Board election in Case 12-RC-3998 the Union had been
duly certified as the exclusive collective -bargaining repre-
sentative of Respondent 's employees in an appropriate unit
and that following such certification Respondent had
refused to recognize and bargain with the Union as it had
been requested to do.
After answer duly filed on July 1, counsel for the
General Counsel filed a motion with the Board for partial
Summary Judgment request that Summary Judgment be
granted on the 8(axl) and (5) allegations of the complaint
and that the case thereafter be remanded to the Regional
Director for the sole purpose of holding a hearing before a
Trial Examiner2 to determine whether a strike which
commenced on April 23, was caused or prolonged by the
Respondent's unfair labor practices and was therefore an
unfair labor practice strike . In a Decision and Order dated
August 18, 1972, the Board granted the General Counsel's
motion for partial Summary Judgment,3 and ordered that
the proceeding be remanded to the Regional Director for
Region 12 for the sole purpose of holding a hearing to
determine whether or not the strike which commenced on
April 23, 1972, was an unfair labor practice strike as
alleged in the complaint herein . Pursuant to such order and
notice of hearing issued on August 22, hearing was held in
Jacksonville, Florida, on September 19.
Upon the entire record, including my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE FACTS
On March 14, the Union was certified as the exclusive
bargaining representative of Respondent 's employees in an
appropriate unit. Thereafter, on March 17 , the Union
made a written request upon Respondent for certain
information respecting job classifications , insurance cover-
age and profit-sharing plan for employees in the unit found
appropriate . On March 22 , Respondent replied to this
letter by advising the Union that it was in the process of
filing a Request for Review of the Regional Director's
Supplemental Decision on Objections , Order and Certifica-
tion of Representatives . On March 24, the Union notified
Respondent in writing that it was ready and desired to
enter into negotiations for a collective-bargaining agree-
ment , and Respondent replied on March 28 with the same
reply it had given earlier.
Respondent 's Request for Review was denied by the
Board on April 5, and on April 6 the Union renewed its
request in writing that Respondent enter into negotiations
for a contract . Respondent did not reply to this request and
the Union renewed the request on April 14. On April 19,
Respondent replied to the Union's request of April 14,
stating that it disagreed with the bargaining unit determi-
nation made by the Board in Case 12-RC-3998 and that it
was therefore declining to abide by it.
During this period of exchange of correspondence the
Union was conducting meetings among the employees in
the unit . Meetings were held on March 18 and 25 and April
1, 8, 15, 19, and 23.
I Unless otherwise indicated, all dates appearing hereinafter are in 1972.
2 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19.
3 198 NLRB No. 125.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At these meetings, the union representative read the
correspondence with Respondent and the employees
discussed the probability that Respondent would refuse to
meet with the Union and negotiate, and that the employees
might have to strike. At the April 19 meeting, Union
President Kennedy advised the employees that he had not
yet received a reply to the Union's April 14 letter and he
proposed a vote on a resolution reading as follows
"Resolved by the employees present that the president of
the Union be authorized to call a strike at such time
deemed necessary in order to force the management of
Ploof Transfer Company to the bargaining table as ordered
by the certification of the NLRB." A secret ballot vote was
taken with 21 votes in favor of the resolution and I
opposed. In order to permit-employees who had not been
able to attend the April 19 meeting to vote on the
resolution, another meeting was held on the 20th where the
resolution was read and a vote taken with eight employees
voting in favor of the resolution and none opposed.
At the meeting held on April 23, Kennedy read the
Respondent's letter of April 19, indicating that it was not
accepting the Board's determination of the appropriate
unit and, in effect , refusing to meet and negotiate with the
Union. Thereupon, the employees went on strike.
On August 25, in view of the Board's Decision and Order
granting General Counsel's motion for Summary Judg-
ment on the 8(a)(5) and ( 1) allegations , the Union renewed
its request for negotiation and on September 14 Respon-
dent replied that it was adhering to its view that the unit
for which the Union had been certified was inappropriate
and, in effect , declining to meet and negotiate.
The strike which began on April 23 was still in progress
on the date of the hearing.
II. ANALYSIS AND CONCLUSIONS
The sole issue presented in this case is whether or not the
strike which began on April 23 was an unfair labor practice
strike caused and prolonged by Respondent's unfair labor
practices. Whether or not Respondent was in fact guilty of
an unfair labor practice is not in issue herein . The Board
has found that Respondent was guilty of a violation of
Section 8(a)(5) and (1) of the Act when it refused to honor
the certification and to bargain with the Union as it had
been requested to do. That this refusal to bargain was the
cause of the strike which occurred on April 23 is a
conclusion which is so obvious that it requires no
discussion . The facts presented in the foregoing were
uncontradicted and are based on the credited testimony of
Kennedy. The only suggestion of a defense offered by the
Respondent was testimony of one of the employees present
at the meetings that at the meetings the employees
discussed contract proposals to be submitted to the
Respondent . Such testimony hardly militates against a
finding that the strike was an unfair labor practice strike. If
anything, it buttresses the conclusion that the strike was an
unfair labor practice strike, because contract benefits
cannot be obtained if preliminary thereto the bargaining
representative chosen by the employees is unable to get to
the bargaining table . Accordingly, I find and conclude that
the strike which began on April 23 was an unfair labor
practice strike which was caused by Respondent's refusal
to honor the certification and to recognize and bargain
with the Union and that such strike has been prolonged by
Respondent's continued refusal to honor the certification.
CONCLUSION OF LAW
The strike which began on April 23, 1972, and continued
thereafter to date , was caused and prolonged by the
Respondent's refusal to honor the certification and to
bargain with the Union and is an unfair labor practice
strike.