Zeglers Refuse Collectors, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1980

248 N.L.R.B. 1166 (N.L.R.B. 1980)

1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zeiglers Refuse Collectors, Inc. and Chauffeurs,
Teamsters, and Helpers Local Union No. 430,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 4-CA-10610
April 16, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed on November 5, 1979, by
Chauffeurs, Teamsters, and Helpers Local Union
No. 430, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served
on Zeiglers Refuse Collectors, Inc., herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 4, issued a complaint and notice of
hearing on November 21, 1979, against Respon-
dent, 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 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 September
27, 1979, following a Board election in Case 4-RC-
13292 the Union was duly certified as the exclusive
collective-bargaining representative of Respon-
dent's employees in the unit found appropriate;'
and that, commencing on or about October 23,
1979, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On November
30, 1979, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
On December 26, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and for Issuance of Board De-
cision and Order. On January 4, 1980, Respondent
filed an "Opposition to General Counsel's Motion
I Official notice is taken of the Board's Decision and Certification of
Representatives, 245 NLRB No. 60 (1979), and the record in the repre-
sentation proceeding, Case 4-RC-13292, 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); Interrype Co. v. Penello, 269
F.Supp. 573 (D.C.Va. 1967); Follelr Corp., 164 NLRB 378 (i967), enfd.
397 F.2d 91 (7th Cir. 198); Sec. 9(d) of the NLRA, as amended
248 NLRB No. 154
for Summary Judgment and Cross-Motion for
Summary Judgment" and a memorandum in sup-
port thereof. Subsequently, on January 8, 1980, 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 Judg-
ment should not be granted.
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, its opposition to
General Counsel's Motion for Summary Judgment,
and its Cross-Motion for Summary Judgement, Re-
spondent contests the Board's certification of the
Union. The General Counsel argues that all materi-
al issues have been previously decided and there
are no litigable issues of fact requiring a hearing.
We agree with the General Counsel.
Review of the record herein, including that in
Case 4-RC-13292, establishes that, pursuant to a
Stipulation for Certification Upon Consent Elec-
tion, an election was held on September 15, 1978,
with 16 voting for and 14 against the Petitioner
with no challenged ballots. Respondent timely filed
four objections to conduct affecting the results of
the election. The Regional Director directed a
hearing on Objections 1 and 2 which alleged that
union supporters threatened other employees with
physical and economic harm and he recommended
that Objections 3 and 4 be overruled. On January
22, 1979, the Hearing Officer filed his report rec-
ommending that the election be set aside and that a
second election be directed because threats by
rank-and-file employees created a general atmo-
sphere of fear and reprisal which warranted setting
aside the election.
On September 27, 1979, the Board issued a Deci-
sion and Certification of Representative, supra,
footnote 1, which reversed the Hearing Officer and
found the allegedly objectionable incidents did not
relate directly to the election vote or create a gen-
eral atmosphere of fear and confusion. In so finding
the Board noted that the Hearing Officer had
found only "minimal" evidence connecting in any
way the campaign incidents with the Petitioner.
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
ZEIGLERS REFUSE COLLECTORS, INC. 1167
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. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment, and deny Respon-
dent's Cross-Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Pennsylvania corporation en-
gaged in the business of collecting residential and
commercial refuse from its York, Pennsylvania, fa-
cility. During the past 12 months, Respondent pur-
chased and received goods and materials in excess
of $50,000 directly from points located outside the
Commonwealth of Pennsylvania.
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
Chauffeurs, Teamsters, and Helpers Local Union
No. 430, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing 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 rear load drivers and loaders employed at
the Employer's Rear Load Division located at
1020 N. Hartley Street, York, Pennsylvania;
2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f and 102.69(c).
but excluding all front end and roll off drivers,
office clerical employees, guards and supervi-
sors as defined in the Act.
2. The certification
On September 15, 1978, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 4 designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining represen-
tative of the employees in said unit on September
27, 1979, and the Union continues to be such exclu-
sive representative within the meaning of Section
9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 23, 1979, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about October 23, 1979, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
October 23, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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.
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
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. Zeiglers Refuse Collectors, Inc., is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Chauffeurs, Teamsters, and Helpers Local
Union No. 430, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All rear road drivers and loaders employed at
the Employer's Rear Load Division located at 1020
N. Hartley Street, York, Pennsylvania; but exclud-
ing all front end and roll off drivers, office clerical
employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since September 27, 1979, 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 October 23, 1979, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive 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) of the
Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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
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,
Zeiglers Refuse Collectors, Inc., York, Pennsylva-
nia, 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 Chauffeurs, Team-
sters, and Helpers Local Union No. 430, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All rear load drivers and loaders employed at
the Employer's Rear Load Division located at
1020 N. Hartley Street, York, Pennsylvania;
but excluding all front end and roll off drivers,
office clerical employees, guards and supervi-
sors 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 Respondent's York, Pennsylvania,
office copies of the attached notice marked "Ap-
pendix."3 Copies of said notice, on forms provided
by the Regional Director for Region 4, 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
a 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."
ZEIGLERS REFUSE COLLECTORS, INC. 1169
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Chauffeurs, Teamsters, and Helpers
Local Union No. 430, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the ex-
clusive 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 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 represen-
tative 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 bargaining unit is:
All rear load drivers and loaders employed
at the Employer's Rear Load Division locat-
ed at 1020 N. Hartley Street, York, Pennsyl-
vania; but excluding all front end and roll
off drivers, office clerical employees, guards
and supervisors as defined in the Act.
ZEIGLERS REFUSE COLLECTORS, INC.