S.C.A. Services, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1976

227 N.L.R.B. 322 (N.L.R.B. 1976)

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S.C.A. Services, Inc., Tampa Division and Team-
sters, Chauffeurs and Helpers Local Union No. 79,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Case 12-CA-7310
December 16, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
Upon a charge and amended charge filed on
August 10 and 17, 1976, respectively, by Teamsters,
Chauffeurs and Helpers Local Union No. 79, affili-
ated with The International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served on
S.C.A. Services, Inc., Tampa Division, 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 August 20, 1976, 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
complaint alleges in substance that on May 11, 1976,
following a Board election in Case 12-RC-4974 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about August 2, 1976, 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 August 25, 1976, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On August 27, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September 9,
1976, 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
Official notice is taken of the record in the representation proceeding,
Case 12-RC-4974, as the term "record" is defined in Secs. 102 68 and
102 69(g) of the Board 's Rules and Regulations , Series 8, as amended. See
LTV Electrosystenis, Inc, 166 NLRB 938 (1967), enfd. 388 F 2d 683 (C A 4,
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),
227 NLRB No. 48
Judgment should not be granted. Respondent did not
file 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 answer to the complaint, Respondent denies
the validity of the Union's certification. Counsel for
the General Counsel contends in his Motion for
Summary Judgment that Respondent's answer raises
no triable issues warranting a hearing and that
summary judgment should be granted as all material
issues have been previously presented and decided in
the underlying representation case. We agree.
Review of the record, including the representation
proceedings, Case 12-RC-4974, indicates that, pursu-
ant to a Stipulation for Certification Upon Consent
Election, an election was held on January 9, 1976,
which the Union won, 8 votes to 6 with I challenge.
Respondent timely filed seven objections to the
election alleging, inter alia, that (1) at least three
employees had misunderstood the ballot and intend-
ed to vote against union representation; (2) nine of
the eligible voters signed a petition requesting a
second election; (3) the Union had spread a rumor
that employees would be fired if the Union did not
win; and (4) one ballot marked both yes and no
should have been voided. After an investigation, the
Regional Director on February 20, 1976, issued his
Report on Objections recommending that the objec-
tions be overruled in their entirety and that the Union
be certified. He found, inter alia, regarding (1) and (2)
above, that of 11 employees interviewed, including
the 9 employees who signed the petition,2 all but 1
had understood the ballot and had voted as they
intended and that the confusion of the remaining
employee was not due to any objective fact other than
his failure to read the question on the ballot;
regarding (3) above that the rumor that employees
would be fired if the Union lost was started by
employees and began far enough in advance of the
election that employees had ample time to ascertain
its truth; and regarding (4) above that all the ballots
were clearly marked as to the intent of the voters.
Respondent filed exceptions, and a brief in support,
to the overruling of Objections 1, 3, and 4, above, but
Follett Corp, 164 NLRB 378 (1967), enfd 397 F.2d 91 (C.A 7, 1968), Sec
9(d) of the NLRA, as amended.
2 In substance, the petition stated that several employees had not
understood the difference between a yes and no vote and requested a second
election because of this misunderstanding.
S.C.A. SERVICES,,INC., TAMPA DIVISION 323 ,
not with respect to the four remaining objections. On
May 11, 1976, the Board, after reviewing the record in
light of the exceptions and brief, adopted the Region-
al Director's findings and recommendations and
certified 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.3
All issues raised by the Respondent in this- proceed-
ing, 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 circumstances 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. We shall, accordingly, grant the Motion
for Summary Judgment. -
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a corporation licensed to do business
in Florida, has an office and place of business in
Tampa, Florida, where it is engaged in the business of
handling waste material. During the past 12 months,
a representative period, Respondent received goods
valued in excess of $10,000 directly from points
outside the State of Florida and performed services
valued in excess of $50,000 for the city of Tampa,
Florida, which city during the same period purchased
and received goods, supplies, and materials valued in
excess of $50,000 from points 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 effectuate the policies of the Act to assert
jurisdiction herein. - - -
H. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs and Helpers Local Union
No. 79, affiliated with The International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America , 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 consti-
tute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All drivers, helpers, mechanics, mechanic helpers,
and welders employed by Respondent at its
Tampa, Florida facility, but - excluding office
clerical employees , salesmen , guards and supervi-
sors as defined in the Act.
2. The certification -
On January 9, 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 the Respondent. The Union was certified as
the, collective-bargaining representative of the em-
ployees in said unit on May 11, 1976, 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 July 7, 1976, and at all
times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described -unit. Com-
mencing on or about August 2, 1976, 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 representa-
tive for collective bargaining of all employees in said
unit. -
Accordingly, we find that the Respondent has,
since August 2, 1976, -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. -
3 See Pittsburgh Plate Glass Co. v. NLRB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(1) and 102.69(c).
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 operations
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 com-
merce and the free flow of commerce.
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 (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. S.C.A. Services, Inc., Tampa Division, is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Teamsters, Chauffeurs and Helpers Local
Union No. 79, affiliated with The International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America , is a labor organization
within the meaning of Section 2(5) of the Act.
3. All drivers, helpers, mechanics, mechanic help-
ers, and welders employed by Respondent at its
Tampa, Florida, facility, but excluding office clerical
employees, salesmen , 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 May 11, 1976, 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 August 2, 1976, 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
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 the Respondent,
S.C.A. Services, Inc., Tampa Division, Tampa, Flori-
da, 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 Teamsters, Chauf-
feurs and Helpers Local Union No. 79, affiliated with
The International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All drivers, helpers, mechanics, mechanic helpers,
and welders employed by Respondent at its
Tampa, Florida facility, but excluding office
clerical employees, salesmen , guards and supervi-
sors 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:
S.C.A. SERVICES, INC., TAMPA DIVISION 325
(b) Post at its Tampa, Florida, facility copies of the
attached notice marked "Appendix."4 Copies of said
notice, on forms provided by the Regional Director
for Region 12, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable 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.
4- 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 Team-
sters, Chauffeurs and Helpers Local Union No.
79, affiliated with The International Brotherhood
of Teamsters, Chauffeurs, Warehousemen _ and
Helpers of America, as the exclusive representa-
tive 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 representative 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 agreement. The bar-
gaining unit is:
All drivers, helpers, mechanics, mechanic
helpers, and welders employed by Respon-
dent at its Tampa, Florida facility, but
excluding office clerical employees, sales-
men, guards and supervisors as defined in
the Act.
S.C.A. SERVICES, INC.,
TAMPA DIVISION