Martin-Marietta Corp.

DEWEY PORTLAND CEMENT COMPANY, ETC. 951 Dewey Portland Cement Company, Division of Martin -Marietta Corporation and United Cement, Lime and Gypsum Workers International Union, AFL-CIO. Case No. 16-CA-1759. June 5, 1963 DECISION AND ORDER On March 28, 1963, Trial Examiner Wellington A. Gillis issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case,2 and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER The Board adopts the Recommended Order of the Trial Examiner as its Order. 1 We find Respondent's exceptions to the Intermediate Report based on the rejection of testimony relating to the unit issue to be without merit. Respondent's motion to remand the case to the Trial Examiner is therefore denied. Respondent offered to prove an asserted change in the activities of the disputed em- ployees subsequent to the close of the hearing in the prior representation hearing (see 137 NLRB 944). Examination of the proffered testimony shows It is a continuation of the same matters previously litigated and that it reveals no substantial change that would affect the unit determination. The Trial Examiner's ruling was therefore correct. Royal McBee Corp., 133 NLRB 1450, 1451 , footnote 2. 2 An examination of the record of the earlier representation proceeding shows that, con- trary to Respondent's contention in its brief, the facts set forth in the Supplemental Decision and Direction of Election (137 NLRB 944) accurately reflect the testimony. Re- spondent objects to the conclusion that the employees found by the Board to be technicals should be included in the unit because they have interests which appear to be closely allied with those of the production and maintenance employees , contending that no adequate basis is stated therefor. We note, however , this finding was based on the entire record in the representation case, which , as summarized in the decision therein, clearly includes the fact that these technical employees are intrinsically connected to the production process. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge, a first amended charge, and a second amended charge , filed on November 5, November 26, and December 10, 1962 , respectively, by United Cement, Lime and Gypsum Workers International Union , AFL-CIO, hereinafter referred to 142 NLRB No. 104. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the Union, the General Counsel of the National Labor Relations Board issued a complaint on December 21, 1962, against Dewey Portland Cement Company, Divi- sion of Martin-Marietta Corporation, hereinafter referred to as the Respondent or the Company, alleging that the Respondent since on or about October 22, 1962, has refused to bargain with the Union in violation of Section 8(a)(5) and (1) and Section 2(6) and (7) of the, National Labor Relations Act, as amended (61 Stat. 136), hereinafter referred to a3 the Act. Thereafter, on December 31, 1962, the Respondent filed an answer to the complaint denying the commission of any unfair labor practices. Subsequently, on February 5, 1963, pursuant to notice, a hearing was held in Tulsa, Oklahoma, before Trial Examiner Wellington A. Gillis, at which all parties were represented by counsel, and were afforded full opportunity to be heard and to introduce relevant evidence.' Timely briefs were subsequently filed by counsel for the Respondent and the General Counsel. Upon the entire record in this case,2 and from my observation of the witness, I make the following: FINDINGS AND CONCLUSIONS 3 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Maryland corporation maintaining its principal office and place of business in New York, New York, operates a plant in Tulsa, Oklahoma, where it is engaged in the manufacture of cement. During the 12-month period immediately preceding the issuance of the complaint, the Respondent manufactured, sold, and distributed at its Tulsa, Oklahoma, plant, products valued in excess of $500,000, of which amount products valued in excess of $50,000 were shipped directly to points located outside the State of Oklahoma. The parties admit, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act H. THE LABOR ORGANIZATION INVOLVED The parties agree, and I find, that United Cement, Lime and Gypsum Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE The undisputed facts disclose that on April 12, 1961 , the Union filed a representa- tion petition in Case No. 16-RC-2899, seeking to represent the production and main- tenance employees of the Company , including, inter alia, laboratory technicians. Pursuant to a hearing held on May 17, 1961, at which the parties placed in issue the question of whether certain employees, including a chemical analyst, a physical analyst, laboratory technicians, an instrumentation technician , and console room tech- nicians, should be included in the unit, the Board , after due consideration , issued its Decision and Direction of Election on November 1, 1961, finding , in agreement with the Company's position , that the employees in question were technical employees, and, as such, that properly within the unit, and directing an election in an appropri- ate unit consisting of "All production and maintenance employees including quarry truckdrivers and yard truckdrivers, but excluding all office clerical employees , labora- tory technicians, console room technicians , instrumentation engineer, instrumentation technician, guards, watchmen, and supervisors as defined in the Act." Thereafter, on November 7, 1961, the Union filed with the Board a motion for reconsideration, and, after having considered said motion and the Respondent's opposition thereto,4 the Board , "in light of its Decision in The Sheffield Corporation, I Subsequent to the close of the hearing, the Respondent, by counsel, moved the Trial Examiner to (1) reconsider a ruling made at the hearing excluding certain evidence offered by the Respondent, and (2 ) to reopen the record for the purpose of receiving such evidence. Having duly considered the Respondent's motion and the General Counsel's response thereto, I hereby grant said motion as to (1) and, for reasons hereinafter set forth, deny the motion as to (2). 2A motion filed by counsel for the Respondent after the close of the hearing to correct the transcript in several particulars, to which motion no objections were filed, is hereby granted, and is received in evidence as Trial Examiner's Exhibit No. 1. 'As hereinafter reflected, judicial notice has been accorded the representation proceed- ing involving the instant parties in Case No. 16-RC-2899. 4 inicus curiae briefs in support of the Union's motion were filed by a number of inter- national unions, including the Chemical Workers, the Steelworkers, the Boot & Shoe Workers, the Woodworkers, and the Pulp, Sulphite and Paper Mill Workers. DEWEY PORTLAND CEMENT COMPANY, ETC. 953 134 NLRB 1101,"5 issued its order granting motion on December 8, 1961, remanding the case to the Regional Directoi for further hearing "for the purpose of adducing additional evidence with respect to the job categories in dispute " On January 24 and February 7 and 8, 1962, a further hearing was held and, after both parties had filed, extensive briefs in support of their respective positions, the Board, on June 27, 1962, issued its Supplemental Decision and Direction of Election, in which it vacated its earlier Decision and Direction of Election, and found that the disputed employees properly belonged in the appropriate unit.6 On July 5, 1962, the Company filed a motion for reconsideration which, by order of the Board dated July 13, 1962, was denied "on the ground that it contains nothing not previously considered by the Board." Thereafter, on July 17, 1962, an election was held among the employees in the appropriate unit, at the conclusion of which a tally of ballots was issued by the Regional Director disclosing that, of approximately 69 eligible voters, 49 ballots were cast for the Union and 20 against. On July 19, 1962, the Employer filed with the Regional Director timely objections to the conduct of election? Subsequently, on August 1, 1962, the Regional Director issued his report on objections, in which he concluded that the objections did not raise substantial or material issues and recommended that the objections be overruled and that the Union be certified. Fol- lowing the filing of exceptions to the Regional Director's report on objections by the Employer on August 7, 1962, in which the Employer again raised the precise unit issue concerning the 12 disputed employees, the Board, on September 24, 1962, issued its Supplemental Decision and Certification of Representatives, adopting the Regional Director's findings and recommendations, overruling the Employer's objections, and certifying the Union as the exclusive bargaining representative for the employees in the unit found appropriate by the Board.8 Shortly after the Union was certified, the parties agreed to meet on October 25 and 26, 1962, for the purpose of commencing bargaining negotiations. By letter dated October 22, 1962, however, the Company advised the Union as follows: The Company by agreeing to this meeting is only agreeing to collective bar- gaining with the Union for employees in the unit originally found appropriate by the National Labor Relations Board in its decision dated November 1, 1961. 5 The Board, in its Sheffield Corporation decision , issued on December 7, 1961 , and pub- lished in the Board s bound volume at 134 NLRB 1101, overruled its prior practice of automatically excluding all technical employees from production and maintenance units when their unit placement is in issue , and, in lieu thereof, set forth certain additional criteria upon which, in the future on a case-by-ease basis, a determination would be made as to whether technical employees should be excluded from a production and maintenance unit 6 Specifically, the Board found, contrary to its prior determination, that the physical analyst, the four laboratory technicians, and the instrumentation technician were not technical employees, and, for this reason, included them in the production and mainte- nance unit. As to the chemical analyst and the console room technicians, the Board re- iterated its earlier determination that such employees were technical employees, but, rely- ing upon the Sheffield criteria, found their interests "to be closely allied with those of the production and maintenance employees," and that, therefore, they properly belonged in the unit. Accordingly, the unit as found appropriate by the Board in Its Supplemental Decision and Direction of Election, reported in 137 NLRB 944 consists of All production and maintenance employees at the Employer's Tulsa, Oklahoma, plant, including quarry truckdrivers and yard truckdrivers, chemical analyst, physical analyst, laboratory technicians, staff utility man, instrumentation technician, and console room technicians ; but excluding office clerical employees, machine shop fore- man, oiling supervisor, electrical foreman, instrumentation engineer, guards, watch- men, and supervisors as defined in the Act. 7 The Company's objections, which were based upon the fact that the Board agent had refused 'to permit the Employer to challenge the ballots of the 12 employees in the dis- puted categories, again raised the unit issue and reiterated the Company's position as to the alleged improper unit inclusion of the disputed employees , a position it had steadily maintained at both representation hearings, argued in extensive briefs submitted to the Board after both hearings, and urged in support of its July 5 motion for reconsideration. 8 The Board, in Its September 24 Supplemental Decision and Certification of Representa- tives, stated that it had considered the Employer 's objections , the Regional Director's report , and the Employer's exceptions thereto, and was of the opinion that the Employer's exceptions did not raise any material issues of fact or law which would require a reversal of the Regional Director's recommendations. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company refuses to bargain , upon advice of counsel, with respect to the disputed employees , for the reason stated in the employer's Motion for Recon- sideration dated July 5, 1962, in the employer's Objections date July 19, 1962, and in the employer's Exceptions dated August 7, 1962. The Company will discuss the Union proposals and demands only on the basis that they are not applicable to, and do not include , the employees in the disputed job categories. On October 25, 1962, after the Union had replied to the Company's letter indicating that it intended to bargain for all of the employees in the certified unit, representatives of the parties met. At this meeting the Company remained firm in its determination not to bargain with respect to the disputed employees, a position it adhered to right up to the instant hearing on February 5, 1963. The Respondent admits that it has refused to bargain with the Union with respect to the employee unit as ultimately found appropriate by the Board in the representa- tion proceeding, and, in challenging the Board's certification, predicates its refusal solely on the ground that the Board improperly included in such unit the 12 em- ployees in the above-noted disputed classifications. Specifically, and without attempt- ing to set forth its procedural as well as substantive assertions as to the manner in which the Board allegedly erred in determining the appropriate unit, the Respondent maintains that all of the disputed employees are technical employees and should not have been included in the production and maintenance unit. A perusal of the documents contained in the record of the representation proceeding, including the transcripts of both hearings, discloses that at various stages between May 17, 1961, the date of the first representation hearing, and September 24, 1962, when the Board issued its Supplemental Decision and Certification, the unit issue was the subject of litigation by the Respondent before the Board, and that the arguments here asserted by the Respondent in support of its position as to the inappropriateness of the unit were repeatedly raised and adversely ruled upon by the Board. During the course of the instant hearing, the Respondent, which admits that the facts, as then existing, were fully developed at the two representation hearings and adequately reflected by the respective records thereof, did not seek to introduce any evidence which was newly discovered or unavailable to the Respondent at the time of the hearings per- taining to matters occurring prior to February 8, 1962. In an unacknowledged attempt to relitigate the precise issue disposed of by the Board in the representation proceeding, the Respondent did, however, seek to adduce supplemental or "new evidence" relating to matters concerning the disputed em- ployees which allegedly occurred since February 8, 1962, the last day of the second representation hearing. Based upon the Board's currently followed and well-estab- lished policy that, absent evidence which is newly discovered or unavailable to the Respondent at the time of the representation proceeding , the relitigation of issues disposed of in an earlier representation case will not be permitted in an unfair labor practice proceeding involving a refusal to bargain,9 I refused to receive this evidence or to allow the introduction of testimony as to matters, contained in the Respondent's offer of proof pertaining thereto.io e Ideal Laundry and Dry Cleaning Co, 140 NLRB 1412; National Carbon Company, 110 NLRB 2184, Psttsburgla Plate Class Co v N L R.B , 313 US 146, 157, 158; N.L R B v. American Steel Buck Corp, 227 F 2d 927, 929 (CA 2) ; N.L R.B v. Botany Worsted Mills, 133 F 2d 876, 882 (C A. 3) ; N.L R.B v West Kentucky Coal Company, 152 F. 2d 198, 200-201 (CA 6), cert. denied 328 U S. 866; Quaker City Life Insurance Company, 138 NLRB 61 ; Esquire, Inc., 109 NLRB 530, 539, enfd. 222 F. 2d 253 (,CA 7) 10 In the Respondent's motion and supporting brief filed subsequent to the close of the hearing, alluded to above, the Respondent, in requesting that I reconsider my ruling ex- cluding this evidence, asserts that evidence originating after the representation hearing is "newly discovered" or constitutes evidence which was "unavailable" at the hearing, and, as such, falls within the exception to the Board's principle relied upon by the Trial Examiner in excluding the proffered evidence. Certainly such evidence, none of which indicated a change in the Employer's plant operations, but all of which, with one im- material exception, pertained to matters strictly under the control of the Respondent, could not qualify as "newly discovered " Assuming, arguendo, the validity ,of the Re- spondent's contention with respect to its "availability," based upon a consideration of the record in the representation proceeding and the Respondent's offer of proof, it appears, contrary to the Respondent's assertion, that the "new evidence," a substantial portion of which was, or could have been, raised before the Board between the date of the repre- sentation hearing and the Board's issuance of its Supplemental Decision and Certification of Representatives on September 24, 1962, is cumulative and essentially the same as that previously presented to the Board in the representation proceeding. Accordingly, upon DEWEY PORTLAND CEMENT COMPANY, ETC. 955 As I view the Board's prior unit determination and certification of the Union in the representation proceeding as conclusive and binding upon me," rendering the unit issue other than properly the subject of litigation in this proceeding, I am com- pelled to find, as I do, that the Union, since September 24, 1962, has been the ex- clusive bargaining representative of all of the employees in the unit heretofore certified by the Board as appropriate, and that the Respondent, since October 22, 1962, has refused to bargain with the Union as to all of the employees in the unit within the meaning of Section 8(a) (5), and derivatively, Section 8(a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in an unfair labor practice, it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Dewey Portland Cement Company, Division of Martin-Marietta Corporation, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Cement, Lime and Gypsum Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Since September 24, 1962, United Cement, Lime and Gypsum Workers Inter- national Union, AFL-CIO, has been the exclusive bargaining representative within the meaning of Section 9(a) of the Act for all production and maintenance employees at the Employer's Tulsa, Oklahoma, plant, including quarry truckdrivers and yard truckdrivers, chemical analyst, physical analyst, laboratory technicians, staff utility man, instrumentation technician, and console room technicians; but excluding office clerical employees, machine shop foreman, oiling supervisor, electrical foreman, instrumentation engineer, guards, watchmen, and supervisors as defined in the Act. 4. By refusing to bargain collectively on October 22, 1962, and thereafter, with United Cement, Lime and Gypsum Workers International Union, AFL-CIO, as the exclusive representative of all its employees in the above-described appropriate unit, Dewey Portland Cement Company, Division of Martin-Marietta Company, has engaged in and is engaging in an unfair labor practice within the meaning of Sec- tion 8 (a) (5) and (1) of the Act. 5. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that the Respondent, Dewey Portland Cement Company, Division of Martin-Marietta Corporation, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Cement, Lime and Gypsum Workers International Union, AFL-CIO, as the exclusive bargaining representative of all of its production and maintenance employees at its Tulsa, Oklahoma, plant, in- cluding quarry truckdrivers and yard truckdrivers, chemical analyst, physical analyst, laboratory technicians, staff utility man, instrumentation technician, and console room technicians, excluding office clerical employees, machine shop foreman, oiling supervisor, electrical foreman, instrumentation engineer, guards, watchmen, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. reconsideration of my ruling in this regard , it Is hereby reaffirmed. See Royal McBee Corporation, 133 NLRB 1450. "Air Control Products of St. Petersburg, Inc., 139 NLRB 413; Allis-Chalmers Manu -facturing Company , 120 NLRB 644; Wytherilte Knitting Mills, Inc, 117 NLRB 1719; Shoreline Enterprises of America, Inc., 117 NLRB 1619. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with United Cement, Lime and Gypsum Workers International Union, AFL-CIO, as the exclusive bargaining representative of the employees in the certified appropriate unit , and embody in a signed agree- ment any understanding reached. (b) Post in a conspicuous place at its place of business in Tulsa, Oklahoma, copies of the attached notice marked "Appendix ." 12 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region , shall, upon being duly signed by the Respondent's representative , be posted by it, as aforesaid, im- mediately upon receipt thereof and maintained for at least 60 consecutive days thereafter . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Sixteenth Region , in writing , within 20 days from the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith.13 i2 In the event that this Recommended Order is adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals , the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 11 In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read : "Notify said Regional Director , In writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL bargain collectively , upon request, with United Cement, Lime and Gypsum Workers International Union , AFL-CIO, as the exclusive bar- gaining representative of all our employees in the certified bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment , and embody in a signed agree- ment any understanding reached The bargaining unit is. All production and maintenance employees at the Employer's Tulsa, Oklahoma, plant, including quarry truckdrivers and yard truckdrivers, chemical analyst, physical analyst , laboratory technicians, staff utility man, instrumentation technician , and console room technicians; but excluding office clerical employees, machine shop foreman , oiling super- visor, electrical foreman, instrumentation engineer , guards, watchmen, and supervisors as defined in the Act WE WILL NOT, by refusing to bargain collectively with United Cement, Lime and Gypsum Workers International Union , AFL-CIO, or in any like or related manner, interfere with, restrain , or coerce our employees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act. OF MARTIN-MARIETTA CORPORATION, DEWEY PORTLAND CEMENT COMPANY, DIVISION Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 110 West. Fifth Street, Fort Worth, Texas, 76102, Telephone No Edison 5-4211, Extension 2131, if they have any questions concerning this notice or compliance with its provisions.