Silver Sand Co. of Leesburg, Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1971

193 N.L.R.B. 98 (N.L.R.B. 1971)

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Silver Sand Co. of Leesburg , Inc. and Teamsters,
Chauffeurs , Warehousemen and Helpers Local
Union No. 385 , affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Case
12-CA-5171
September 10, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on April 28, 1971, by Team-
sters, Chauffeurs, Warehousemen and Helpers Local
Union No. 385, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the Union,
and duly served on Silver Sand Co. of Leesburg, Inc.,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Acting
Regional Director for Region 12, issued a complaint
on May 21, 1971, 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 a Trial Examiner were duly served
on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 29,
1971, following a Board election in Case 12-RC-3698
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about April 1, 1971, and at all
times thereafter , Respondent has refused, and contin-
ues 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. The complaint also alleged that on or about
May 3, 1971, certain of the Respondent's employees
went on strike and that this strike was caused and/or
prolonged by the Respondent's refusal to bargain
with the Union. On May 28 and 29, 1971, respectively,
Respondent filed its answer and amended answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint. The Respondent
specifically admitted that the aforesaid strike was
caused and/or prolonged by the Respondent 's refusal
to bargain with the Union.
I Official notice is taken of the record in the represen tation proceeding,
Case 12-RC-3698 , as the term "record" is defined in Secs 102 68 and
102 69(f) of the Board ' s Rules and Regulations , Series 8, as amended See
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4,
On July 6, 1971, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, praying the Board to grant the motion and,
further, moving that a Decision and Order be entered,
providing an appropriate remedy for the unfair labor
practices found, including the unfair labor practice
strike provisions. Subsequently, on July 9, 1971, 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 Judgment
should not be granted. No response to the Notice To
Show Cause was received from the Respondent. In a
response filed July 12, 1971, the Union expressed its
agreement with the General Counsel's motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with 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
The record in Case 12-RC-3698 shows that,
pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on November 13, 1970, in which a majority
of the employees in the stipulated unit selected the
Union as their collective-bargaining representative.
Thereafter, the Respondent filed timely objections to
the election and to conduct affecting the results of the
election. Although 15 objections were presented, the
Respondent offered evidence with respect to only 7 of
them. These 7 objections alleged in substance that: (1)
The Union threatened employees with discharge if
they did not join the Union; (2) the Union threatened
employees with such "serious consequences" if they
did not sign union cards that some employees had
resigned from the Respondent's employ; (3) the
Union coerced employees by telling them that, if it got
in, it would have certain supervisors terminated; (4)
the Union coerced and threatened employees; (5) the
Regional Director denied the Respondent due process
by applying the Excelsior case; (6) the Union made
material misrepresentations; and (7) a prospective
employee was denied employment because he was
against the Union.
The Regional Director investigated the objections
and on December 21, 1970, issued and served on the
parties his Report on Objections. In that Report, he
found no need for a hearing, as requested by the
1968), Golden Age Beverage Co, 167 N LRB 15 I, Intertype Co v Penello,
269 F Supp 573 (D.C. Va, 1967); Follett Corp, 164 NLRB 378, enfd. 397
F 2d 91 (C A 7, 1968 ), Sec 9(d) of the NLRA.
193 NLRB No. 20
SILVER SAND CO.
Respondent, and recommended that the objections be
overruled in their entirety, on the grounds that the
alleged threats were not attributable to the Union,
there was no evidence to show that an atmosphere of
fear and repression had been created, the prospective
employee involved in Objection 7 was denied employ-
ment because of poor performance as a student
driver, and the application of Excelsior was appropri-
ate. Accordingly, he recommended that the Union be
certified.
Thereafter, the Respondent filed with the Board
exceptions to the Regional Director's Report, again
advancing the arguments and contentions raised in its
objections. After thorough consideration, the Board,
on March 29, 1971, issued its Decision and Certifica-
tion of Representative in which it adopted the
Regional Director's recommendation that the Res-
pondent's objections be overruled in their entirety
and the Union be certified.
In its answer and amended answer to the complaint
the Respondent reiterates the position set forth in its
objections and exceptions. Although the parties were
given an opportunity to show cause why the Motion
for Summary Judgment should not be granted, the
Respondent has not replied.
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.2
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.3 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 is now, and has been at all times
material herein, a corporation duly organized under
8 See Pittsburgh Plate G l a s s C o 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)
3 In its answer and amended answer to the complaint , the Respondent
admits all the factual allegations of the complaint except that it denies the
status of the Union as a labor organization , stating that it is without
99
and existing by virtue of the laws of the State of
Florida. At all times material herein, Respondent has
maintained operations in Leesburg, Brooksville, and
Orlando. Florida, and is engaged in the sale and
distribution of sand, gravel, and other related aggre-
gates. During the past 12 months Respondent
purchased and received goods and materials valued in
excess of $50,000 at its Florida operations, directly
from points outside the State of Florida and/or from
Florida suppliers who received said goods and
materials directly 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.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs , Warehousemen and Help-
ers Local Union No. 385 , affiliated with the Interna-
tional Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers 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 local and long distance truck drivers,
including owner operators , mechanics and center
sand employees employed by the Respondent at
its facilities located at Leesburg , Brooksville, and
Orlando, Florida ; but excluding office clerical
employees , heavy equipment operators , guards
and supervisors as defined in the Act.
2. The certification
On November 13, 1970, 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 bargaining
with the Respondent. The Union was certified as the
knowledge as to such status . As this issue was already raised and
determined by the Board in the underlying representation proceeding, Case
12-RC-3698, it is not subject for litigation in the instant unfair labor
practice proceeding.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining representative of the employees
in said unit on March 29, 1971, 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 March 31, 1971, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about April 1, 1971, 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 representative for collective
bargaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
April 1, 1971, 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, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
C. The Unfair Labor Practice Strike
The Respondent ' s employees struck on May 3,
1971. The complaint alleges and the Respondent's
amended answer admits that, the strike was caused
and/or prolonged by its refusal to bargain with the
Union . As the Respondent 's refusal to bargain was an
unfair labor practice within the meaning of Section
8(a)(5) and (1) of the Act, we find that the strike which
was caused and/or prolonged thereby is an unfair
labor practice strike and that the striking employees
are unfair labor practice strikers.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section 1, 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 take
certain affirmative action designed to effectuate the
policies of the Act. As the Respondent on or about
April 1, 1971, and at all times thereafter, refused and
still refuses to bargain with the Union as the
representative of its employees in an appropriate unit,
we shall order that the Respondent, 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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed bargaining representative in the appropriate unit.
See Mar-Jac Poultry Company, Inc., 136 NLRB 785;
Commerce Company d/b/a Lamar Hotel, 140 NLRB
226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379
U.S. 817; Burnett Construction Company, 149 NLRB
1419, 1421, enfd. 350 F.2d 57 (C.A. 10).
It has also been found that the strike by the
Respondent's employees which began on May 3,
1971, was caused and prolonged by the Respondent's
refusal to bargain. The striking employees were,
therefore, entitled to reinstatement upon application,
irrespective of whether or not their positions were
later filled by the Respondent's hire of other employ-
ees. Accordingly, in order to restore the status quo as
it existed prior to the time the Respondent engaged in
the unfair labor practices and thereby to effectuate
the policies of the Act, we shall order that the
Respondent, upon unconditional application, offer
reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, to all its employees who went on
strike on May 3, 1971, or thereafter, dismissing, if
necessary, any persons hired on or after that date. We
shall also order the Respondent to make whole those
employees who went on strike on May 3, 1971, or
thereafter, for any loss of pay they may have suffered
or may suffer by reason of the Respondent's refusal, if
any, to reinstate them, by payment to each of them a
sum of money equal to that which he normally would
have earned as wages during the period from 5 days
after the date on which he applies for reinstatement to
the date of the Respondent's offer of reinstatement.
Loss of pay shall be computed on a quarterly basis in
the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. Interest shall be
added at the rate of 6 percent per annum in accord
with the decision of the Board in Isis Plumbing &
Heating Co., 138 NLRB 716.
We reserve the right to modify the backpay and
SILVER SAND CO.
reinstatement provisions herein if made necessary by
circumstances not now apparent.
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Silver Sand Co. of Leesburg, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen and
Helpers Local Union No. 385, affiliated with the
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 local and long distance truck drivers,
including owner operators, mechanics and center
sand employees employed by the Respondent at its
facilities located at Leesburg, Brooksville, and Orlan-
do, Florida; but excluding office clerical employees,
heavy equipment operators, 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 March 29, 1971, 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 April 1, 1971, 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 Respondent,
4 In the event that the Board's 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"
101
Silver Sand Co. of Leesburg, Inc., 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, Chauffeurs, Ware-
housemen and Helpers Local Union No. 385, affiliat-
ed with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All local and long distance truck drivers,
including owner operators, mechanics and center
sand employees employed by the Respondent at
its facilities located at Leesburg, Brooksville, and
Orlando, Florida; but excluding office clerical
employees, heavy equipment operators, guards
and supervisors 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Upon unconditional application, offer immedi-
ate and full reinstatement to their former positions or,
if those positions no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, to all those
employees who went on strike on May 3, 1971, or
thereafter, dismissing, if necessary, any person hired
on or after that date, and make them whole in the
manner set forth in the section of this Decision
entitled "The Remedy" for any loss of pay which they
may have suffered or may suffer by reason of the
Respondent's refusal, if any, to reinstate them.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due and to determine reinstatement rights
under the terms of this Order.
(d) Post at its Leesburg, Brooksville, and Orlando,
Florida, operations copies of the attached notice
marked "Appendix."4 Copies of said notice, on forms
provided by the Regional Director for Region 12,
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD."
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after being duly signed by Respondent's representa-
tive, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) 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.
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, Warehousemen and Helpers
Local Union No. 385, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive 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 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 under-
standing in a signed agreement. The bargaining
unit is:
All local and long distance truck drivers,
including owner operators, mechanics and
center sand employees employed by the
Respondent at its facilities located at Lees-
burg, Brooksville, and Orlando, Florida; but
excluding office clerical employees, heavy
equipment operators, guards and supervisors
as defined in the Act.
WE WILL, upon application, offer to all employ-
ees who went on strike on or about May 3, 1971, or
thereafter, immediate and full reinstatement to
their former positions or, if those positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make them whole for any loss
of pay they may suffer as a result of our refusal to
reinstate them upon such application.
SILVER SAND CO. OF
LEESBURG, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 706, Federal Office Building, 500 Zack
Street , Tampa, Florida 33602, Telephone
813-228-7227.