Sanitas Service Corp.

National Labor Relations Board - Board Decisions

Sep 18, 1984

272 N.L.R.B. 119 (N.L.R.B. 1984)

SANITAS SERVICE CORP 119
United Sanitation Services, Division of Sanitas Serv-
ice Corp. and Southern Conference of Team-
sters, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America Case 12-CA-10694
18 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by the Union 28 April 1983,
the General Counsel of the National Labor Rela-
tions Board issued a complaint 31 May 1983 against
the Company, the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National
Labor Relations Act
The complaint alleges that on 27 July 1982, fol-
lowing a Board election in Case 12-RC-5772, the
Union was certified as the exclusive collective-bar-
gaining representative of the Company's employees
in the unit found appropriate (Official notice is
taken of the "record" in the representation pro-
ceeding as defined in the Board's Rules and Regu-
lations, Secs 102 68 and 102 69(g), amended Sept
9, 1981, 46 Fed Reg 45922 (1981), Frontier Hotel,
265 NLRB 343 (1982) ) The complaint further al-
leges that since 5 November 1982 the Company has
refused to bargain with the Union On 13 June
1983 the Company filed its answer admitting in
part and denying in part the allegations in the com-
plaint
On 28 July 1983 the General Counsel filed a
Motion for Summary Judgment On 1 August 1983
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 Company
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
In its answer to the complaint and opposition to
the General Counsel's Motion for Summary Judg-
ment, the Respondent admits the refusal to bargain
with the Union regarding employees in the unit de-
scribed in the complaint, but contends that it did
not violate the Act because the Union is not the
exclusive bargaining representative of those em-
ployees 1 In its first affirmative defense, the Re-
1 The Respondent also admits the factual and legal allegations pertain
ing to service of the charge and complaint, that in its Decision and Order
dated 27 July 1982 the Board certified the Union as the exclusive bar
gaining representative of the employees in the unit described in the corn
plaint, that it is an employer engaged in commerce within the meaning of
spondent predicates its refusal to bargain on the al-
leged existence of special circumstances, nullifying
the propriety of the Certification of Representative
contained in the Order of the Board in Case 12-
RC-5772 including (1) deviation by the Board from
its standard of review of Regional Director's ac-
tions without prior notice to the Respondent and
without granting the Respondent an opportunity to
be heard as to the revised standard, (2) the taking
of notice by the Board in Case 12-RC-5772 of cer-
tain facts which were significant to its decision
which were not contained in or were contrary to
the record, without prior notice to the Respondent
and without granting the Respondent an opportuni-
ty to be heard as to the propriety of taking notice
and the accuracy of the facts to be noticed, and (3)
sufficient turnover of employees in the bargaining
unit, prior to the Board's certification of the Union,
to call into question the majority status of the
Union In its second affirmative defense, the Re-
spondent contends that it has no enforceable duty
to recognize or bargain with the Union because it
has been denied a full and fair hearing on signifi-
cant issues in Case 12-RC-5772
The record, including the record in Case 12-
RC-5772, reveals that on 19 November 1979 the
Union filed with the Regional Director a petition
for certification as the exclusive bargaining repre-
sentative of all employees of the Respondent On
26 December 1979, after a hearing, the Regional
Director issued a Decision and Direction of Elec-
tion, directing an election in a unit of the Respond-
ent's employees On 25 January 1980 an election
was conducted The tally of ballots shows 69 cast
ballots for and 63 against the Union, there were 12
determinative challenged ballots The Union and
the Respondent timely filed objections to the elec-
tion and the Union filed unfair labor practice
charges against the Respondent On 26 August
1980 the Regional Director consolidated the repre-
sentation and unfair labor practice charge cases 2
Hearings were held before an administrative law
judge to resolve, inter aim, the determinative chal-
lenged ballots and alleged objectionable conduct to
the election in Case 12-RC-5772 On 4 December
1981 the judge issued his decision, after which the
General Counsel, the Respondent, and the Union
timely filed exceptions On 27 July 1982 the Board
issued its Decision, Order, and Certification of
Representative in the unit found appropriate The
Board's Decision is reported at 262 NLRB 1369
the Act, that the Union is a labor organization within the meaning of the
Act, and that the unit is appropriate
2 Cases 12-CA-8876, 12-CA-9071, 12-CA-9266, and 12-RC-5772
272 NLRB No 25
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(27 July 1982) 3 On 26 August 1982 the Respond-
ent filed with the Board a Motion for Reconsider-
ation and/or Reopening of the Record On 13 Sep-
tember 1982 said motion was denied by the Board
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 rehtigate issues that were or could have been
litigated in a prior representation proceeding See
Pittsburgh Glass Co v NLRB, 313 US 146, 162
(1941), Secs 102 67(f) and 102 69(c) of the Board's
Rules and Regulations The Respondent urges that
certain errors committed by the judge and the
Board during consideration of one of its objections
to the election present such special circumstances
as to entitle the Respondent to a hearing on the
propriety of the certification in Case 12-RC-5772
We do not agree
In this objection to election the Respondent con-
tended, inter aim., that prior to the election the Re-
spondent advised the Regional Office of the neces-
sity to make accommodations for between 20 and
50 illiterate voters Further, that despite this notice,
no arrangements were made to accommodate illit-
erate voters and, therefore, the holding of a fair
election was prevented The judge considered this
objection and concluded that the Respondent had
not proved the necessity of making provisions for
illiterate individuals In its first affirmative defense,
the Respondent alleges that this conclusion was
based on an erroneous standard of review The Re-
spondent's allegation is without merit
The Respondent, as a party challenging the out-
come of a representation election, bore the burden
of showing by specific evidence that the alleged
improprieties occurred Emerson Electric Co v
NLRB, 649 F 2d 589, 592 (8th Cir 1981) The Re-
spondent was required to prove every aspect of its
prima facie case, including the existence of illiterate
employees in the unit The Respondent did not
carry that burden 4 Absent a prima facie showing
of impropriety, the balloting is found to have re-
flected the free and untrammeled choice of the em-
ployees in the unit 5
3 Chairman Dotson did not participate in the underlying representation
proceeding
4 In this proceeding the Respondent has submitted affidavits of unit
employees in order to establish that the employees are unable to read and
that their ballots did not express their true intent The Respondent has
not demonstrated that these affidavits were previously unavailable and
thus is attempting in this proceeding to rehtigate Issues which were fully
and finally settled in the representation proceeding
5 We rely solely on the judge's conclusion that the Respondent has
failed to evidence the existence of illiterate unit employees Any notice
taken by the judge of facts which the Respondent contends are con-
trary to the record was not necessary to the ultimate conclusion of this
issue and therefore, even if incorrect, would be harmless error
As part of its first affirmative defense the Re-
spondent alleges that employee turnover prior to
the issuance of the Certification of Representative
was sufficient to call into question the majority
status of the Union This issue was not raised by
the Respondent in its exceptions to the judge's de-
cision nor in its Motion for Reconsideration and/or
Reopening of the Record, at which time the Re-
spondent either knew or should have known of the
alleged turnover The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence While the Respon-
dent alleges that special circumstances exist that
would require the Board to reexamine the decision
made in the representation proceeding, as previous-
ly noted, the allegations are without merit 6 We
therefore find that the Respondent has not raised
any issue that is properly litigable in this unfair
labor practice proceeding
In this proceeding, the Respondent contends that
it is entitled to present evidence at a hearing on the
issues raised by it We note that the Respondent
had a hearing on its objection in the prior consoli-
dated proceeding, submitted a brief to the Board in
the Motion to Reconsider and/or Reopening of the
Record and submitted a brief in this proceeding
We therefore find its contention to be without
merit as evidentiary hearings are not required in
unfair labor practice cases and summary judgment
against a respondent is appropriate where, as here,
there are no properly litigible issues of fact to be
resolved Woods Schools, 222 NLRB 1124 (1976),
Locust Industries, 221 NLRB 604 (1975) Accord-
ingly, we grant the Motion for Summary Judg-
ment
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Company is a Connecticut corporation with
an office and place of business in Miami, Florida
During the 12-month period preceding issuance of
the complaint, the Company provided services
valued in excess of $50,000 to customers located
within the State of Florida who meet a direct juris-
dictional standard of the Board We find that the
Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act
6 We deny the Respondent's request that we reopen the record in Case
12-RC-5772, reconsider our Decision and Order in Case 12-RC-5772
revoke the Union s certification, and direct a rerun election
SANITAS SERVICE CORP 121
II ALLEGED UNFAIR LABOR PRACTICES
A The Certification
Following the election held 25 January 1980 the
Union was certified 27 July 1982 as the collective-
bargaining representative of the employees in the
following appropriate unit
All drivers, vehicle mechanics, hydraulic me-
chanics, fabrication employees, compaction
employees, yard maintenance employees, tire
changers, land fill operators, land fill mechan-
ics, land fill factory clericals, safety men and
parts department employees employed by the
Respondent at its Miami, Florida and Medley,
Florida facilities, excluding all sales department
employees, dispatchers, office clericals, guards
and 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 1 November 1982 the Union has requested
the Company to bargain, and since 5 November
1982 the Company 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
CONCLUSIONS OF LAW
By refusing on and after 5 November 1982 to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the ap-
propriate unit, the Company 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
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)
ORDER
The National Labor Relations Board orders that
the Respondent, United Sanitation Services, Divi-
sion of Sanitas Service Corporation, Miami, Flori-
da, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain with Southern Confer-
ence of Teamsters, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representa-
tive of the employees 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 drivers, vehicle mechanics, hydraulic me-
chanics, fabrication employees, compaction
employees, yard maintenance employees, tire
changers, land fill operators, land fill mechan-
ics, land fill factory clericals, safety men and
parts department employees employed by the
Respondent at its Miami, Florida and Medley,
Florida facilities, excluding all sales department
employees, dispatchers, office clericals, guards
and supervisors as defined in the Act
(b) Post at its facility in Miami, Florida, copies
of the attached notice marked "Appendix "7
Copies of the notice, on forms provided by the Re-
gional Director for Region 12, 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
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
7 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 Na
tional Labor Relations Board' shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board'
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Southern
Conference of Teamsters, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, 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 drivers, vehicle mechanics, hydraulic me-
chanics, fabrication employees, compaction
employees, yard maintenance employees, tire
changers, land fill operators, land fill mechan-
ics, land fill factory clericals, safety men and
parts department employees employed by the
Employer at its Miami, Florida and Medley,
Florida facilities, excluding all sales department
employees, dispatchers, office clericals, guards
and supervisors as defined in the Act
UNITED SANITATION SERVICES, DIVI-
SION OF SANITAS SERVICE CORP