Gilvin-Terrill, Inc.

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 In view of my findings set forth above that Respondents , Winn-Dixie Stores, Inc., and Winn-Dixie Louisville, Inc., have engaged in unfair labor practices defined in Section 8 (a) (1) and (5) of the Act, it will be recommended that the Respondents be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of my finding that Respondents engaged in an unlawful refusal to bargain with the Union, I shall recommend that Respondent be required to bargain upon request with the Union as the exclusive representative of the employees in the unit found appropriate herein . I shall recommend the posting of an appropriate notice at the Owensboro location signed by both Respondents. 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. All employees of Winn-Dixie Louisville, Inc., employed at its retail store located in Owensboro, Kentucky, exclusive of guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the mean- ing of Section 9 (b) of the Act. 2. At all material times the Union has been and is the exclusive representative of all employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9 of the Act. 3. By refusing to bargain collectively with the Union as the exclusive representative of its employees in the unit found appropriate , Respondents have engaged in and are engaging in unfair labor practices defined in Section 8(a) (5) and (1) of the Act. 4. By interrogation of employees concerning their own sympathies concerning union representation and the sympathies of other employees concerning union repre- sentation, by threatening employees with reprisal if they joined, assisted, or supported the Union or if the Union became the exclusive representative of employees, and by demanding copies of written statements given Board agents in connection with the investigation in the instant case, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication.] Gilvin-Terrill, Inc. and International Union of Operating En- gineers, Local 191, AFL-CIO. Case No. 16-CA-1789. July 29, 1963 DECISION AND ORDER On May 23, 1963, Trial Examiner Ivar H. Peterson 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 brief in support thereof. 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 Rodgers, 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. 143 NLRB No. 93. GILVIN-TERRILL, INC. 869 The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modification : To paragraph 1(a) add the following sentence: All employees at the Respondent 's shop at 2000 Bolton St., Amarillo, Texas, including the timekeeper, but excluding all other employees, office clerical employees , truckdrivers, professional em- ployees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bar- gaining within the meaning of Section 9 (b) of the Act. 1 At the hearing, the Trial Examiner excluded evidence by which Respondent attempted to show that the unit determination in the original representation proceeding was arbi- trarily restricted to the shop employees, that a great degree of integration existed and continues to exist between the employees within the unit and the "production" employees outside the unit, and that the sole basis of the unit determination was extent of organiza- tion in violation of Section 9(c) (5) of the Act. Respondent contends that it has been denied due process of law because it was unduly precluded from introducing such evidence in the representation case. However, we have closely examined the representation pro- ceeding, and it clearly appears that Respondent was given ample opportunity to present all relevant evidence in that proceeding. Moreover, there is no showing that the evidence excluded by the Trial Examiner was newly discovered or that it was evidence unavailable to the Respondent in the original representation case. The Board, therefore, rejects Respondent's contention that it has been denied due process of law. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed on February 4, 1963, by International Union of Operating Engineers, Local 191, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Sixteenth Region, issued a complaint on February 14, 1963, against Gilvin-Terrill, Inc., herein called the Respondent, alleging that it had engaged in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the Act. In its answer, the Respondent admitted that it had refused to bargain with the Union as the exclusive representative of employees in a unit theretofore found appropriate by the Regional Director, but denied the commission of any unfair labor practice on the ground that the unit for which the Union had been certified was inappropriate. Pursuant to notice, a hearing was held in Amarillo, Texas, on April 11, 1963, before Trial Examiner Ivar H. Peterson. All parties were represented and par- ticipated in the hearing. Counsel for the General Counsel and the Respondent presented oral argument at the conclusion of the hearing. A brief filed by the Respondent has been duly considered. Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Texas corporation, is engaged in the construction of highway bridges and highways, and has its principal office and a maintenance shop in Amarillo, Texas. During the year preceding the issuance of the complaint, the Respondent purchased materials and supplies valued at in excess of $50,000 which 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were transported to the maintenance shop, the only facility involved herein, from States of the United States other than the State of Texas. The Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local 191, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On December 14, 1962, the Regional Director, after hearing, issued his Decision and Direction of Election in Case No. 16-RC-3249 , in which he found that the following employees of the Respondent constituted an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: "All employees at the Employer's shop at 2000 Bolton, Amarillo , Texas, including the timekeeper, but excluding all other employees, office clerical employees, truck drivers, professional employees , guards, watchmen, and supervisors as defined in the Act." In so doing , the Regional Director considered and rejected the position of the Respondent that the above-described unit was too restricted in scope and that only a companywide unit was appropriate. In an election held on January 10, 1963, a majority of the employees in the unit found by the Regional Director to be appropriate designated and selected the Union as their representative for the pur- poses of collective bargaining, and on January 18, 1963, the Regional Director certi- fied the Union as such representative . In the meantime , the Respondent filed with the Board a request for review of the Decision of the Regional Director , contend- ing that his unit determination was erroneous . The Board denied the request for review on January 8 , 1963, as raising no substantial issues of fact or law warranting review. On January 25, 1963, the Union requested the Respondent to bargain; the Respondent refused and in a letter dated January 28 , to the Union stated that its refusal was based upon its contention that the unit found by the Regional Director was inappropriate and that the action of the Regional Director in deter- mining that the shop employees constituted an appropriate unit , and of the Board in denying the Respondent's request for review of that determination , were arbitrary and capricious . The Respondent admits, and I find, that it continues to refuse to meet with the Union and bargain with the Union as the exclusive representative of the employees in the unit determined to be appropriate. In the hearing before me, the parties stipulated , and I find, that during the course of its organizational efforts the Union did attempt to organize employees of the Respondent other than those in the unit found to be appropriate , and met with some success. Contending that the Regional Director 's determination gave con- trolling weight to the extent of organization, in violation of Section 9(c)(5) of the Act, and that other factors, such as the degree of integration of operations and interchange of employees between the shop and the field, demonstrate that a unit confined to the shop employees is inappropriate , the Respondent sought in this proceeding to relitigate these matters. Evidence proffered with respect thereto, not being newly discovered or shown to have been unavailable to Respondent at the representation stage, was rejected. It is not the function nor the right of the Trial Examiner to review the deter- minations made by the Board in the prior representation proceeding . The law is settled that, absent newly discovered or previously unavailable evidence , issues raised and determined in the prior representation proceeding may not be relitigated in the complaint proceeding . Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146, 157-158; N.L.R.B. v. American Steel Buck Corp., 227 F. 2d 927, 929 (C.A. 2); Allis Chalmers Manufacturing Company v. N.L.R.B., 162 F. 2d 435, 440-441 (C.A. 7); The Mountain States Telephone and Telegraph Company, 136 NLRB 1612 , at 1614-1615; Realist, Inc., 142 NLRB 573. Accordingly, on the basis of the Board's determination in the representation pro- ceeding, I find that during all times material herein , the Union has been, and now is, the certified collective-bargaining representative of the Respondent's employees in the appropriate unit hereinbefore described. I further find that the Respondent has, since January 25 , 1963, refused to bargain collectively with the Union as the exclusive representative of its employees in the unit, and that, by such refusal, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(5) and, derivatively, also Section 8(a)(1) of the Act. GILVIN-TERRILL, INC. 871 Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Gilvin-Terrill, Inc., is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 191, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All employees at the Respondent's shop at 2000 Bolton Street, Amarillo, Texas, including the timekeeper, but excluding all other employees, office clerical em- ployees, truckdrivers, professional employees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since January 18, 1963, the Union has been and continues to be the exclusive bargaining representative of all the employees in the aforementioned unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing, on and after January 25, 1963, to bargain collectively with the Union as the exclusive representative of all the employees in the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By refusing to bargain with the Union, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in an unfair labor practice within the meaning of Section 8(a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, 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 the case, it is recommended that the Respondent, Gilvin-Terrill, Inc., Amarillo, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Union of Operating En- gineers, Local 191, AFL-CIO, as the exclusive representative of all its employees in the appropriate unit with respect to wages, rates of pay, hours of employment, or other conditions of employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with International Union of Operating Engineers, Local 191, AFL-CIO, as the exclusive bargaining representative of all the employees in the aforesaid appropriate unit with respect to wages, rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached embody such understanding in a signed agreement. (b) Post at its offices and shop in Amarillo, Texas, copies of the attached notice marked "Appendix." I Copies of said notice, to be furnished by the Regional Direc- tor for the Sixteenth Region, shall, after being duly signed by the Respondent's repre- sentative, be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to its employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. I In the event that this Recommended Order be adopted by the Board, the words "A De- cision 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 "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order" 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for the Sixteenth Region, in writing, within 20 days from the date of receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply herewith? 2In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps it 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 Relations Act, as amended , we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with International Union of Operating Engineers, Local 191 , AFL-CIO, as the exclusive representative of all 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 their right to bargain collectively through said union. WE WILL, upon request, bargain collectively with International Union of Operating Engineers, Local 191 , AFL-CIO, as the exclusive bargaining repre- sentative of all employees in the bargaining unit described below with respect to wages, rates of pay , hours of employment, 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 employees at the Employer 's shop at 2000 Bolton, Amarillo, Texas, including the timekeeper , but excluding all other employees , office clerical employees, truckdrivers, professional employees, guards, watchmen, and supervisors as defined in the Act. GILVIN-TERRILL, INC., Employer. Dated-------------------- By----------------------------------------- (Representative) (Title) 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. Employees may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, 76102, Tele- phone No. Edison 5-4211, Extension 2131 , if they have any question concerning this notice or compliance with its provisions. Cuyahoga, Lake, Geauga and Ashtabula Counties Carpenters District Council United Brotherhood of Carpenters and Join- ers of America, AFL-CIO ; Local 11, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Local 182, United Brotherhood of Carpenters and Joiners of America, AFL-CIO ; Local 105, United Brotherhood of Carpenters and Joiners of America, AFL-CIO ; Local 404, United Brotherhood of Carpenters and Joiners of America , AFL-CIO and The Berti Company. Case No. 8-CC-162. July 29, 1963 DECISION AND ORDER On February 25, 1963, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that 143 NLRB No. 92.