Hickman Harbor Service, a Division of Flowers Transportation Company

National Labor Relations Board - Board Decisions

Mar 10, 1983

266 N.L.R.B. 476 (N.L.R.B. 1983)

HICKMAN HARBOR SERVICE
Hickman Harbor Service, a Division of Flowers
Transportation Company and National Mari-
time Union of America, AFL-CIO. Case 9-
CA- 18643
March 10, 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
Upon a charge filed on August 20, 1982, by Na-
tional Maritime Union of America, AFL-CIO,
herein called the Union, and duly served on Hick-
man Harbor Service, a Division of Flowers Trans-
portation Company, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 9,
issued a complaint on August 31, 1982, against Re-
spondent, 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 and the 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 5, 1982,
following a Board election in Case 9-RC-13875,
the Union was duly certified as the exclusive col-
lective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about May 7, 1982, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representa-
tive, although the Union has requested and is re-
questing it to do so. On September 9, 1982, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On September 20, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September
23, 1982, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
I Official notice is taken of the record in the representation proceed-
ing, Case 9-RC-13875, 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 Electrosystems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
266 NLRB No. 71
thereafter filed a response to the Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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
admits the Union's request and its refusal to bar-
gain, but in substance attacks the validity of the
Union's certification on the basis of its objections
to the election in the underlying representation
proceeding. The General Counsel argues that all
material issues have been previously decided. We
agree with the General Counsel.
A review of the record, including the record in
Case 9-RC-13875, discloses that, on October 16,
1981, pursuant to a Decision and Direction of Elec-
tion by the Regional Director, an election was held
among the employees in the unit found appropriate.
The tally of ballots shows that, of approximately 25
eligible voters, 14 cast valid ballots in favor of, and
13 against, the Union, there were no challenged
ballots. On October 22, 1981, Respondent filed
timely objections to the election. Following an in-
vestigation, the Regional Director, on November
20, issued a "Supplemental Decision, Order Direct-
ing Hearing, and Notice of Hearing," in which he
overruled Respondent's Objection 3 and that por-
tion of Objection 2 relating to statements and con-
duct attributed to supporters of the Union, but or-
dered that a hearing be held on Objection 1, in-
volving alleged misrepresentations of fact, and an-
other portion of Objection 2 relating to statements
of physical violence allegedly made in the presence
of a representative of the Union. Thereafter, Re-
spondent filed a timely request for review. On Jan-
uary 11, 1982, the Board, by telegraphic order,
granted Respondent's request for review with re-
spect to that portion of Respondent's Objection 2
relating to statements and conduct attributed to
supporters of the Union, and ordered that these
issues be consolidated for hearing with those raised
by Objection 1, and the other portion of Objection
2 which the Regional Director ordered be set for
hearing (Member Jenkins, dissenting, would have
denied review). After the hearing, the Hearing Of-
ficer issued his report, in which he recommended
that Respondent's Objections 1 and 2 be overruled,
and that a Certification of Representative be issued
in favor of the Union. On May 5, 1982, the Region-
al Director issued his Second Supplemental Deci-
sion and Certification of Representative, in which
476
HICKMAN HARBOR SERVICE
he adopted the Hearing Officer's report and certi-
fied the Union as the collective-bargaining repre-
sentative of the employees in the unit found appro-
priate. Subsequently, Respondent filed a timely re-
quest for review. On July 14, 1982, the Board
denied Respondent's request for review (Member
Hunter, dissenting, would have granted review
with respect to Respondent's Objection 2, and
would have set aside the election).
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial,circumstances a respondent in a proceeding al-
leging 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 Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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.
The Board recently announced in Midland Na-
tional Life Insurance Company, 263 NLRB 127
(1982), a reformulation of the Board's policy con-
cerning election campaign misrepresentations to the
approach enunciated in Shopping Kart Food Market,
Inc., 228 NLRB 1311 (1977), overruling General
Knit of California, Inc., 239 NLRB 619 (1978), and
thereby Hollywood Ceramics Company, Inc., 140
NLRB 221 (1962). The Board in Midland National
determined that it will no longer probe into the
truth or falsity of the parties' campaign statements,
and that it will not set elections aside on the basis
of misleading campaign statements. The Board will
not set aside elections on the basis of substance, but
will look to the deceptive manner in which the
misrepresentation was made.
Respondent's objections in the underlying repre-
sentation case were decided under General Knit.
Absent special circumstances, the Board has tradi-
tionally applied the pronouncement of a new rule
of law to the case in which it arose and to all
pending cases. 3 We shall, therefore, apply the rule
of law expressed in Midland National to the present
case.4
2 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146. 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102 69(c).
I see, e.g., Thomas E. Gates d Sons, Inc., 229 NLRB 705 (1977) (ap-
plying Shopping Kart); H. d F Binch Co., 188 NLRB 720 (1971) (apply-
ing the principles of The Laidlaw Corporation, 171 NLRB 1366 (1968)),
enfd. 456 F.2d 357 (2d Cir. 1972); Deluxe Metal Furniture Company, 121
NLRB 995, 1006 (1958); Pacific Coast Association of Pulp and Paper Man-
ufacturers, 121 NLRB 990. 994 (1958). Cf. Excelsior Underwear Inc. 156
NLRB 1236, fn. 5 (1966).
* Member Jenkins adheres to the rule set forth in General Knit for the
reasons given in his dissent in Midland National.
In these circumstances, we therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceed-
ing. Accordingly, we grant the Motion for Sum-
mary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Mississippi corporation, is en-
gaged in the operation of harbor fleeting services,
and maintains an office and place of business in
Hickman, Kentucky. During the 12-month period
preceding issuance of the complaint, a representa-
tive period, Respondent purchased and received at
its Hickman, Kentucky, facility goods and services
valued in excess of $50,000 directly from points
outside the Commonwealth of Kentucky.
We find, on the basis of the foregoing, that Re-
spondent 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.
II. THE LABOR ORGANIZATION INVOLVED
National Maritime Union of America, AFL-
CIO, 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 Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All deckhands, mates, welders, welders' help-
ers and mechanics employed by Respondent at
its Hickman, Kentucky operations, excluding
all master/pilots, all office clerical employees,
and all professional employees, guards and su-
pervisors as defined in the Act.
2. The certification
On October 16, 1981, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 9, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on May 5, 1982, 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 May 7, 1982, and at all
times thereafter, the Union has requested Respond-
ent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing
on or about May 7, 1982, and continuing at all
times thereafter to date, 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 Respondent has, since
May 7, 1982, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Hickman Harbor Service, a Division of Flow-
ers Transportation Company, is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. National Maritime Union of America, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All deckhands, mates, welders, welders' help-
ers and mechanics employed by Respondent at i',
Hickman, Kentucky operations, excluding all
master/pilots, all office clerical employees, and all
professional employees, 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 5, 1982, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about May 7, 1982, 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 prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 Re-
lations Board hereby orders that the Respondent,
Hickman Harbor Service, a Division of Flowers
Transportation Company, Hickman, Kentucky, 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 National Maritime
Union of America, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
478
HICKMAN HARBOR SERVICE
All deckhands, mates, welders, welders' help-
ers and mechanics employed by Respondent at
its Hickman, Kentucky operations, excluding
all master/pilots, all office clerical employees,
and all professional employees, guards and su-
pervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Hickman, Kentucky, facility copies
of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 9, 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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER HUNTER, dissenting:
I would not grant the Motion for Summary
Judgment inasmuch as I stated in the telegram,
dated July 14, 1982, wherein the Board denied Re-
spondent's request for review of the Regional Di-
rector's Second Supplemental Decision and Certifi-
cation of Representation, that I would have grant-
ed review with respect to Respondent's Objection
2 and set aside the election.
' 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 Pursu-
ant 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 National Maritime Union of America,
AFL-CIO, as the exclusive representative of
the employees in the following appropriate
unit:
All deckhands, mates, welders, welders'
helpers and mechanics employed by us at
our Hickman, Kentucky operations, exclud-
ing all master/pilots, all office clerical em-
ployees, and all professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement.
HICKMAN HARBOR SERVICE, A DIVI-
SION OF FLOWERS TRANSPORTATION
COMPANY
479