Bokum Resources Corporation

BOKUM RESOURCES CORPORATION Bokum Resources Corporation and International Union of Operating Engineers, Local 953, AFL- CIO. Case 28 CA 5284 September 28. 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on April 4, 1979, by the Inter- national Union of Operating Engineers. Local 953, AFL-CIO,' herein called the Union, and duly served on Bokum Resources Corporation, herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 28, issued a complaint on April 25, 1979, 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 (I) 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 adminis- trative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on March 21, 1979, following a Board election in Case 28-RC-3504, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate:2 and that, commencing on or about March 27, 1979, and at all times there- after, 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 April 30, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 20, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 2, 1979, 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 I The Charging Party was certified as a joint petitioner with the Laborers International Union of North Amenca, Union 16. AFL-CIO Accordingly, references herein to "the Union" signify both joint petitioners. 2Official notice is taken of the record in the representation proceeding, Case 28-RC-3504. 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): Follet Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA. be granted. Respondent thereafter filed a response to 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 that the Union requested recognition and bargaining, but denies the lawfulness of the request and that it refused to bargain. However, attached to the General Counsel's motion is a letter dated March 29, 1979, in which Respondent's counsel advised the Joint Peti- tioner's counsel that the demand to bargain was "pre- mature." Neither this letter nor its import is contro- verted by Respondent in its response to the Notice To Show Cause. Accordingly, we shall deem the allega- tions that Respondent refused to recognize or bargain with the Union to be true, and Respondent's denial of its refusal to bargain is hereby stricken.' Respondent also contends that the Board erred in not sustaining its objections regarding alleged misrep- resentations and the posting of a blank notice I week before the August 3, 1979, election, and by denying its Motion for Reconsideration of the Board's Certifi- cation of Representative in Case 28-RC-3504 with- out discussing the issues raised in the motion. In foot- note 2 of the Board's Decision and Certification of Representative, the Board, in adopting the Regional Director's recommendation that Objection I be over- ruled, notes that even if the official election notice had been posted as alleged by the Employer, a differ- ent result is not warranted. Further, the Board notes that the alleged misrepresentations were considered under the standard of review articulated in General Knit of California, Inc., 239 NLRB 619 (1978), and found insufficient to set the election aside. In its April 2, 1979, Motion for Reconsideration, Respondent again raised the issue of the alleged misrepresenta- tions. On May 10, 1979, the Board denied the motion as lacking in merit and containing nothing not previ- ously considered. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.4 I Schwartz Brothers, Inc. and District Records, Inc., 194 NLRB 150 (1971): The May Department Stores Comnpany. 186 NLRB 86 (1970). 'See Pirshburgh Plate Glass Co VN I..R, 313 U.S 146, 162 (1941): Rules and Regulations of the Board Sees. 102.67(1) and 102 69(c). 245 NLRB No. 84 681 I)E'8'ISIONS OF NATIONAL LABOR RELATIONS BOARI) All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FAC(I I. THE BUSINESS OF RESPONDEINIF Respondent Bokum Resources Corporation is a Delaware corporation engaged in sinking a mine shaft for a uranium mining operation. During a rep- resentative 12-month period, Respondent purchased goods and materials valued in excess of $50,000, which were transported in interstate commerce and delivered to its place of business in New Mexico, di- rectly from suppliers in States other than New Mex- ico. We find, on the basis of foregoing, that Respondent is, and has been at all times material herein, an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectu- ate the policies of the Act to assert jurisdiction herein. II1. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local 953, AFL-CIO, and Laborers International Union of North America, Local 16, AFL-CIO, are labor or- ganizations within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRA('TI('ES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a union appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All construction and shaft sinking employees employed by the Employer at the mine shaft sinking operation located at Marquez, New Mexico; but excluding all office clerical employ- ees. guards, watchmen, and supervisors as de- fined by the Act. 2. The certification On August 3, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 28, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on March 21, 1979, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain nd Respondet'S ReJisalI Commencing on, or about March 27, 1979, and at all times thereafter, the Union has requested 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 March 27, 1979, and continuing at all times thereafter to date, Respondent has refused. and con- tinues 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 March 27, 1979, 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 en- gaged 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 Bokum Resources Corporation set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce 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 mean- ing of Section 8(a)(5) and (1) of the Act, we shall 682 BOKllM RESOtURCIS (ORPORATION order that it cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit, and if an understanding is reached. embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided hy law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Pourlt Company, Inc., 136 NlRB 785 (1962): Commerce CompanyI db/h/ LLamar Hote., 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (th Cir. 1964), cert. denied 379 U.S. 817 (1964): 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: CNUSIoNS OF L.AN I. Bokum Resources Corporation is an emploNer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers. Local 953, AFL-CIO, and Laborers International Union of North America, Local 16, AFL CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. All construction and shaft sinking employees employed by the Employer at the mine shaft sinking operation located at Marquez, New Mexico: but ex- cluding all office clerical employees, guards, watch- men, and supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since March 21, 1979, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 27, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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 them in Sec- tion 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I ) of the Act. 7. The aforesaid unfair labor practices are untfair labor practices affecting commerce within the mean- Ing of Section 2(6) and (7) of the Act. OR DER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent. Bokum Resources Corporation. Marquez, New Mex- ico, its officers, agents, successors, and assigns. shall: 1. ('ease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with International Union of Operating Engineers. Local 953, AFL ('IO. and l.a- borers International Union of North America. Local 16. ALFI ('10. as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All construction and shaft sinking employees employed by the Employer at the mine shaft sinking operation located at Marquez. New Mexico. but excluding all office clerical employ- ees, guards. watchmen. and supervisors as de- fined h) 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. embod' such understanding in a signed agreement. (b) Post at its Marquez, New Mexico. facility cop- ies of' the attached notice marked "Appendix."' Cop- ies of said notice, on forms provided by the Regional Director for Region 28, after being dulb signed by Respondent's representative, shall be posted bh Re- spondent immediately upon receipt thereof. and bh maintained by it for 60 consecutive da\,s thereafter. n conspicuous places, including all places here notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said 5 in the event Ihat Ihl Order is entrted hb\ a Judgment il a t nixed Sate ('ourt (f ippeals. the ,ords in the not,ice re.aing [',otcd h ()rlder at the National .ahbor Relitltns Board" shall read "Posted iPurslT.a t .l Judgment of the United States (ourl t Appeall I.nlo.rclng .ii (rdCr Ot he Naliolal l.aNhr Relations Board" h683 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order. what steps have been taken to comply herewith. APPENDIX NorcI(' To EMPI.OYEES POSTED BY ORDER OF THE NAI()ONAI. LABOR REI.AI IONS 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 Inter- national Union of Operating Engineers, Local 953, AFL-CIO, and Laborers International Union of North America, Local 16, AFL CIO, as the exclusive representatives 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 WIn.L upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed 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 construction and shaft sinking employees emploved by the Employer at the mine shaft sinking operation located at Marquez, New Mexico; but excluding all office clerical em- ployees. guards, watchmen, and supervisors as defined by the Act. BOKUM RSOUR('ES CORPORArTION 684