Harry T. Campbell Sons' Corp.

HARRY T. CAMPBELL SONS' CORP. 247 Harry T. Campbell Sons' Corporation and Local No. 37, International Union of Operating Engineers , AFL-CIO, and Laborers' District Council of Baltimore and Vicinity, Laborers' International Union of North America, AFL-CIO. Case 5-CA-3629. May 2,1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA Upon a charge filed by Local No. 37, International Union of Operating Engineers, AFL-CIO, and Laborers' District Council of Baltimore and Vicinity, Laborers' International Union of North America, AFL-CIO, herein collectively called the Unions, the General Counsel of the National Labor Relations Board by the Regional Director for Region 5, issued a complaint, dated November 3, 1966,' against Harry T. Campbell Sons' Corporation, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 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 upon the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that on or about September 26, the Unions were duly certified by the Regional Director for Region 5 as the exclusive bargaining representative of the Respondent's employees in the unit found appropriate2 and that since on or about October 7, the Respondent has refused and is refusing to recognize or bargain with the Unions as such exclusive bargaining representative, although the Unions have requested and are requesting it to do so. On November 14, the Respondent filed its answer, admitting in part, and denying in part, the allegations of the complaint, and requesting that the complaint be dismissed. On November 23, the General Counsel filed with the Board a motion for summary judgment, alleging that no factual issues have been raised that had not been litigated in the representation proceeding' and requesting, in view of the admissions contained in the Respondent's answer, that the Board enter judgment against the Respondent on the pleadings, making findings of fact as alleged and admitted in the answer and concluding that, as a matter of law, the Respondent has violated Section 8(a)(1) and (5) of the Act, as alleged in the complaint and denied in the answer, and order an appropriate remedy therefor. Thereafter, on November 25, the Board issued an order transferring proceeding to the Board and notice to show cause. On December 9, the Respondent filed a statement in opposition to General Counsel's motion for summary judgment, requesting that the motion be denied and that either the complaint be dismissed or the matter be renoticed for hearing. 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 case to a three- member panel. RULINGS ON THE MOTION FOR SUMMARY JUDGMENT In its statement in opposition to the General Counsel's motion for summary judgment, the Respondent contends, inter alia, that as a matter of right, it is entitled to an evidentiary hearing on the matters raised in the instant complaint. This contention is without merit for the following reasons. On or about September 17, following a Decision and Direction of Election by the Regional Director for Region 5, a request for review by the Respondent, and a denial of that request by the Board, a majority of the employees of the Respondent in the appropriate unit, by secret ballot, designated the Unions as their representative for the purpose of collective bargaining. No objections were filed to conduct affecting the results of the election and, on or about September 26, the Unions were certified as the exclusive bargaining representative of the employees in the appropriate unit. In its statement in opposition to the General Counsel's motion, the Respondent does not contend that the Unions did not request bargaining as the certified representative of the Respondent's employees in the unit found appropriate. Nor does the Respondent deny that it declined to bargain with the Unions.4 In defense, the Respondent contends that in the representation proceeding the Regional Director erred in that he (1) affirmed certain erroneous rulings by the Hearing Officer; (2) concluded that the Unions as Joint Petitioners were labor organizations within the meaning of Section 2(5) of the Act; and (3) directed an election in an inappropriate unit. The Respondent also contends that the Board acted improperly in summarily denying its request for review and that the Regional Director and the Board exceeded their authority under the Act by requiring the Respondent ' Unless otherwise noted, all dates are in 1966 2 Decision and Certification of Representative in Case 5-RC-5634 (unpublished) S Ibtd 4 The General Counsel has attached to the motion for summary judgment copies of letters purporting to show that the Unions requested bargaining with Respondent by letter dated September 27, and that Respondent declined to bargain with the Unions by letter dated October 7 The Respondent does not question the authenticity of these documents or deny that it declined to bargain with the Unions by its letter of October 7 164 NLRB No. 36 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to comply with the Board's Excelsior rule.5 The Respondent's statement in opposition to the General Counsel's motion makes it clear that with respect to the alleged erroneous rulings of the Regional Director, the Respondent is seeking to relitigate matters decided by the Board in the prior representation proceeding.6 Likewise, in challenging the Board's application of the Excelsior rule, the Respondent is seeking to raise an issue that properly should have been raised in the representation proceeding.' It is well-settled that in the absence of newly discovered or previously unavailable evidence, a respondent is not entitled to the relitigation in a Section 8(a)(5) proceeding of issues which were, or could have been, raised in a related representation proceeding." Here, the Respondent did not offer to adduce at a hearing any newly discovered or previously unavailable evidence. Nor did the Respondent allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. Inasmuch as the Respondent has either fully litigated or had the opportunity to litigate these issues in the representation case, we find that the Respondent has not raised any issue which is properly triable in this unfair labor practice proceeding. All material issues having been either decided by the Board or admitted in the answer to the complaint, there are no matters requiring a hearing before a Trial Examiner. Accordingly, the General Counsel's motion for summary judgment is granted.9 On the basis of the record before it, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT production and sale of rock, stone, and various quarry products, concrete, and allied products. In the course and conduct of its business operations the Respondent, during the preceding 12-month period, a representative period, produced, sold, and shipped. products valued in excess of $50,000 directly from its plants in and about Baltimore, Maryland, to points outside the State of Maryland. The Respondent admits, and we find, that it 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. II. THE LABOR ORGANIZATION INVOLVED Local No. 37, International Union of Operating Engineers , AFL-CIO, and Laborers' District Council of Baltimore and Vicinity, Laborers' International Union of North America, AFL-CIO, are labor organizations within the meaning of Section 2 (6) and (7) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit At all times material herein the following employees have constituted and now constitute a unit appropriate for purposes of collective bargaining within the meaning of the Act: All hourly rated production and maintenance employees employed by the Respondent at its calcite plant at Texas, Maryland, including plant clerical employees, truckdrivers, and laboratory technicians, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. The Respondent is and all times material herein has been, a Maryland corporation having a principal place of business in Towson, Maryland, with a number of production facilities in and about Baltimore, Maryland, where it is engaged in the ' Excelsior Underwear Inc , 156 NLRB 1236 In essence, the Board's Excelsior rule provides that within 7 days after the Regional Director or the Board directs an election, an employer must file with the Regional Director an election eligibility list, containing the names and addresses of all eligible voters This information is thereupon made available to all parties to the proceeding Upon proper objection , the Board will consider the failure to comply with this requirement as sufficient grounds for setting aside an election. 6 Assuming arguendo that the Respondent is correct in its assertion that, in the representation proceeding, the Hearing Officer improperly excluded evidence with respect to the Unions' extent of organization , the Respondent is in no way prejudiced because it is clear from the Regional Director 's Decision in Case 5-RC-5634 that , in making his unit finding , the Regional Director did not accord controlling weight to extent of organization The Respondent 's contention that the Board denied it due process of law by "summarily denying its request for review," is without merit The Board in this case followed its normal 2. The certification On or about September 17, a majority of the employees of the Respondent in said unit, voting in a secret election conducted under the supervision of procedures, as provided in its Rules and Regulations adopted pursuant to the Act 9 Pittsburgh Plate Glass Company v. N L R B , 313 U.S. 146; United States Rubber Company, 155 NLRB 1298, Collins & Aikman Corp., 160 NLRB 1750 9 The Respondent's contention that Section 5 of the Administrative Procedure Act, Section 10(b) of the Labor Management Relations Act , as amended , and the Board's own Rules and Regulations, all guarantee an absolute right to hearing is without merit In circumstances such as these , where no htigable issues have been properly raised, the Board may entertain and rule upon motions for summary judgment or judgment on the pleadings Moreover, the Board has exercised these powers in numerous cases. See Collins & Aikman Corp., 160 NLRB 1750, Brush-Moore Newspapers, Inc , d/b/ a Portsmouth Times , 161 NLRB 1620, E-Z Davies Chevrolet , 161 NLRB 1380, Herbert Harvey, Inc, 162 NLRB 890, Carl Simpson Buick, Inc, 161 NLRB 1389, The Puritan Sportswear Corp., 162 NLRB 13, and Frito-Lay, Inc , 161 NLRB 950 HARRY T. CAMPBELL SONS' CORP. the Acting Regional Director for Region 5, designated the Unions as their joint representative for the purpose of collective bargaining with the Respondent, and on or about September 26, the Regional Director certified the Unions as the exclusive collective-bargaining representative of the employees in said unit, and the Unions continue to be such representative. B. The Request to Bargain and the Respondent's Refusal On or about September 27, the Unions requested and are continuing to request the Respondent to bargain collectively with them as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about October 7, the Respondent refused, and continues to refuse, to bargain collectively with the Unions as exclusive collective- bargaining representative of the employees in said unit. Accordingly, we find that the Unions were duly certified as the collective-bargaining representative of the employees of the Respondent in the appropriate unit described above; that the Unions at all times since September 27 have been and now are the exclusive bargaining representative of all the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act; and that the Respondent has since October 7, refused to bargain collectively with the Unions as the exclusive bargaining representative of its employees in the appropriate unit. By such refusal, the Respondent 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 the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the 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 Unions as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW, 1. Harry T. Campbell Sons' Corporation is an 249 employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 37, International Union of Operating Engineers , AFL-CIO, and Laborers' District Council of Baltimore and Vicinity, Laborers' International Union of North America , AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. All hourly rated production and maintenance employees employed by the Respondent at its calcite plant in Texas , Maryland , including plant clerical employees , truckdrivers , and laboratory technicians , but excluding all office clerical employees , professional employees, 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. On September 27 and at all times thereafter, the above -named labor organizations have been and are the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing, on or about October 7 and at all times thereafter, to bargain collectively with the above -named labor organizations as the exclusive bargaining representative of all its employees in the appropriate unit , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By the aforesaid refusal to bargain, the 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 has thereby 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 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 Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Harry T. Campbell Sons' Corporation, Towson, Maryland, 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 Local No. 37, International Union of Operating Engineers, AFL-CIO, and Laborers' District Council of Baltimore and Vicinity, Laborers' International Union of North America, AFL-CIO, as the exclusive and duly certified bargaining representative of its employees in the following appropriate unit: 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All hourly rated production and maintenance employees employed by the Respondent at its calcite plant at Texas, Maryland, including plant clerical employees, truckdrivers, and laboratory technicians, but excluding all office clerical employees, professional employees, 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 to them by 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 organizations 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 understanding in a signed agreement. (b) Post at its Texas, Maryland, plant, copies of the attached notice marked "Appendix."10 Copies of said notice, to be furnished by the Regional Director for Region 5, 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 posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. 1s In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT refuse to bargain collectively with Local No. 37, International Union of Operating Engineers , AFL-CIO, and Laborers' District Council of Baltimore and Vicinity, Laborers' International Union of North America, AFL-CIO, 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 Unions, as the exclusive representative of all employees in the bargaining unit described below with respect to 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 hourly rated production and maintenance employees employed by the Respondent at its calcite plant at Texas, Maryland , including plant clerical employees, truckdrivers , and laboratory technicians , but excluding all office clerical employees , professional employees, guards, and supervisors as defined in the Act. HARRY T. CAMPBELL SONS' CORPORATION (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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6th Floor, 707 North Calvert Street, Baltimore, Maryland 21202, Telephone 752-8460, Extension 2159. 1\