Rosehill Cemetery Association

National Labor Relations Board - Board Decisions

Sep 10, 1986

281 N.L.R.B. 425 (N.L.R.B. 1986)

ROSEHILL CEMETERY ASSN.
Rosehill Cemetery Association and Cemetery Work-
ers and Greens Attendants Union, Local 365,
Service Employees International Union, AFL-
CIO. Case 22-CA-14273
10 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
Upon a charge filed by the Union 18 February
1986, the General Counsel of the National Labor
Relations Board issued a complaint 4 April 1986
against Rosehill Cemetery Association, the Re-
spondent, alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations
Act.
The complaint alleges that on 30 September
1985, following a Board election in Case 22-RC-
8643, the Union was certified as the exclusive col-
lective-bargaining representative of the Respond-
ent's employees in the unit found appropriate. (Of-
ficial notice is taken of the "record" in the repre-
sentation proceeding as defined in the Board's
Rules and Regulations , Secs. 102.68 and 102.69(g),
amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981);
Frontier Hotel, 265 NLRB 343 (1982).) The com-
plaint further alleges that since 15 October 1985
the Respondent has refused to bargain with the
Union . Subsequently, the Respondent filed its
answer admitting in part and denying in part the
allegations in the complaint.
On 14 May 1986 the General Counsel filed a
Motion for Summary Judgment. On 16 May 1986
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 Respondent
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
The Respondent 's answer admits its refusal to
bargain with the Union, but attacks the validity of
the certification based on its objections to the elec-
tion and its position regarding two employees' su-
pervisory status . The Respondent denies that the
unit is appropriate because it anticipates a merger
which will change its operations and increase the
work force size significantly . The General Counsel
argues that all material issues have or could have
been decided previously. We agree with the Gener-
al Counsel.
The record, including the record in Case 22-
RC-8643, reveals that an election was held 6 No-
425
vember 1981 pursuant to a Stipulated Election
Agreement. The tally of ballots shows that of ap-
proximately 14 eligible voters , 5 cast valid ballots
for and 6 against the Union ; there were 3 determi-
native challenged ballots . The Respondent and the
Union filed objections to the election. On 29 Janu-
ary 1982 the Regional Director issued his report
recommending that the challenges to two ballots be
sustained and that the third challenged ballot
remain unopened and uncounted as it was no
longer determinative . He also recommended that
the Respondent's and the Union's objections be
overruled. Further, the Regional Director directed
a hearing to receive evidence concerning unalleged
objectionable conduct discovered during the inves-
tigation.
The Respondent and the Union filed timely ex-
ceptions to the Regional Director 's recommenda-
tions and on 26 July 1982 the Board issued a Deci-
sion and Direction,' directing a hearing on the su-
pervisory status of Manuel Luiz and Jose Elvir and
on the objectionable conduct uncovered during the
Region's investigation.
On 2 May 1983 the hearing officer's Report and
Recommendations on Challenged Ballots and Ob-
jections issued, recommending overruling the chal-
lenges to Luiz' and Elvir's ballots and opening and
counting their ballots . Having found that the Re-
spondent engaged in objectionable conduct, the
hearing officer further recommended that, if the
Union did not receive a majority of the valid votes
cast after opening and counting Luiz' and Elvir's
ballots, the election be set aside and a new election
directed . On 22 April 1985 the Board issued a De-
cision and Direction 2 affirming the hearing offi-
cer's findings and conclusions and adopting his rec-
ommendations, with some modifications . Thereaf-
ter, on 6 May 1985 a revised tally of ballots issued
revealing a majority of valid ballots cast for the
Union.
The Respondent filed timely objections to con-
duct affecting the election results, alleging that the
Region improperly handled the challenged ballots,
thereby compromising the ballots' integrity. On 5
June 1985 the Regional Director issued a Second
Report on Objections, recommending overruling
the Respondent 's objections and certifying the
Union. The Respondent filed exceptions to the
Second Report on Objections, which the Regional
Director treated as a motion for reconsideration,
and on 9 July 1985 the Regional Director issued an
Order denying the Respondent's Motion. On 30
September 1985 the Board , in an unpublished deci-
1 262 NLRB 1289 ( 1982).
2 275 NLRB 180 (1985).
281 NLRB No. 66
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion, certified the Union as the exclusive bargaining
representative of the employees in the unit de-
scribed below.3
On 9 October 1985 the Union requested in writ-
ing that the Respondent bargain. On 15 October
1985 the Respondent informed the Union , by letter,
of its intent to test the Union's certification and has
since refused to bargain with the Union.
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 relitigate issues that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Respondent were or
could have been litigated in the prior representa-
tion proceeding . The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence , nor does it allege any
special circumstances that would require the Board
to reexamine the decision made in the representa-
tion proceeding .4 We therefore find that the Re-
spondent has not raised any issue that is properly
litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the entire record , the Board makes the fol-
lowing
FINDINGS OF FACT
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 6 November 1981
the Union was certified 30 September 1985 as the
collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regular part-time employees
including grave diggers , foundation persons,
truck and machine operators , and grounds
keepers employed by the Employer at its
Linden, New Jersey location but excluding
office clerical employees, professional employ-
ees, guards, interment supervisors, and all
other 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 9 October 1985 the Union has requested
the Respondent to bargain , and since 15 October
1985 the Respondent 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.5
CONCLUSION OF LAW
By refusing on and after 15 October 1985 to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appro-
priate unit, the Respondent 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.
1. JURISDICTION
The Respondent, a New Jersey corporation, is
engaged in the operation of a cemetery providing
burial services, burial plots , crypt spaces, and relat-
ed items, located in Linden, New Jersey, where it
annually derives gross revenues in excess of
$500,000 and purchases and receives products,
goods, and materials valued in excess of $50 ,000 di-
rectly from points outside the State. We find that
the Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
8 Member Babson did not participate in the underlying representation
proceeding.
* Although the Respondent admits a merger with Rosedale Cemetery
has been contemplated since 1977 , it now claims that events in 1985 make
the merger likely Even in its 12 June 1986 response, however , the Re-
spondent does not assert affirmatively that the merger has occurred, and
we therefore find the claimed merger too speculative a basis upon which
the Respondent could lawfully refuse to bargain with the Union.
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).
We deny the General Counsel 's request that we order the Respond-
ent to reimburse the Board and the Union for expenses related to this
proceeding.
ROSEHILL CEMETERY ASSN.
ORDER
The National Labor Relations Board orders that
the Respondent, Rosehill Cemetery Association,
Linden, New Jersey, its officers , agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Cemetery Workers
and Greens Attendants Union , Local 365, Service
Employees International Union , AFL-CIO as the
exclusive bargaining representative of the employ-
ees 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 full-time and regular part-time employees
including grave diggers, foundation persons,
truck and machine operators , and grounds
keepers employed by the Employer at its
Linden, New Jersey location but excluding
office clerical employees , professional employ-
ees, guards, interment supervisors, and all
other supervisors as defined in the Act.
(b) Post at its facility in Linden, New Jersey,
copies of the attached notice marked "Appendix."e
Copies of the notice , on forms provided by the Re-
gional Director for Region 22, 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.
427
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 Cemetery
Workers and Greens Attendants Union, Local 365,
Service Employees International Union , AFL-CIO
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 full-time and regular part-time employees
including grave diggers, foundation persons,
truck and machine operators, and grounds
keepers employed by the Employer at its
Linden, New Jersey location but excluding
office clerical employees, professional employ-
ees, guards, interment supervisors, and all
other supervisors as defined in the Act.
ROSEHILL CEMETERY ASSOCIATION
s 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 Nation-
al 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."