Clement-Blythe Companies

118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clement-Blythe Companies, A Joint Venture and International Union of Operating Engineers, Local Union No. 470, AFL-CIO. Case I 1-CA-3371 November 7, 1967 DECISION AND ORDER BY MEMBERS FANNING,JENKINS, AND ZAGORIA Upon a charge filed by International Union of Operating Engineers, Local Union No. 470, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board by the Regional Director for Region 11, issued a com- plaint, dated July 21, 1967,1 and an amendment thereto on August 4, against Clement-Blythe Com- panies, A Joint Venture, herein called Respondent or the Employer, alleging that Respondent had en- gaged 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, amend- ment thereto, and notice of hearing before a Trial Examiner were duly served upon Respondent. With respect to the unfair labor {ractices, the complaint alleges, in substance, that on June 23 the Union was duly certified by the Regional Director for Region 1 1 as the exclusive bargaining represent- ative of Respondent's employees in the unit found appropriate,' and that, since on or about July 10, Respondent has refused and is refusing to recognize or bargain with the Union as such exclusive bar- gaining representative, although the Union has requested and is requesting it to do so. On July 26 and August 21, Respondent filed its answers to the complaint and its amendment, in which it admitted in part and denied in part the allegations contained therein, and requested that the complaint be dismissed. On August 25, the General Counsel filed with the Board a motion for summary judgment, alleging that no factual issues had been raised that had not been litigated in the representation proceeding, and requesting, in view of the admissions contained in Respondent's answers, that the Board enter judgment against Respondent on the pleadings, making findings of fact as alleged and admitted in the answers and concluding that, as a matter of law, Respondent has violated Section 8(a)(1) and (5) of the Act, as alleged in the complaint and the amend- ment thereto, and denied in the answers, and order an appropriate remedy therefor. Respondent filed an amendment to answer, dated August 24, and received by the General Counsel on August 25. On August 28, the General Counsel filed a motion to amend his motion for summary judgment, to include Respondent's amendment to answer. On August 28, the Board issued an order granting the General Counsel's motion to amend, and a notice to show cause. On September 8, Respondent filed its mo- tion to overrule the General Counsel's motion for summary judgment, requesting that the matter be remanded for a hearing. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connec- tion with this case to a three-member panel. Upon the entire record in this case, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT In its statement in opposition to the General Counsel's motion, Respondent contends that it is entitled to a evidentiary hearing as a matter of right, and, alternatively, that it is entitled to a hearing, at least in the circumstances of this case. We find these contentions without merit. On June 15, following a Decision and Direction of Election by the Regional Director for Region 11, a request for review by Respondent, and a denial of the request by the Board, a majority of Respond- ent's employees in the appropriate unit, by secret ballot, designated the Union as their representative for the purposes of collective bargaining. No objec- tions were filed to conduct affecting the results of that election and, on June 23, the Union was cer- tified as the exclusive bargaining representative of the employees in the appropriate unit. In its answers and amendment thereto, Respond- ent admits that on or about July 5 the Union by letter requested that Respondent meet with it for the purpose of collective bargaining, and that on or about July 10, and at all time thereafter, Respond- ent refused to meet for that purpose. Respondent contended only that the Regional Director and the Board erred in directing an election at Respondent's Keowee-Toxaway project, and that it refused to bargain in order to obtain judicial review of those decisions. At the representation hearing, evidence was taken with regard to the expected expansion of Respondent's Keowee-Toxaway project. At the time of the hearing (April 28), there were 37 em- ployees working3 at the project. Respondent's own projected figures showed an expected level of 60 at the end of May, 80 at the end of June, 90 at the end of July, 100 at the end of August, 125 at the end of September, about 140 at the end of February 1968, All dates refer to 1967 z Decision and Direction of Election in Case I I-RC-2528 (not published in NLRB volumes), request for review of which denied by the BoardonJune 13 3 The unit found appropriate was a unit of "All employees . exclud- ing office clerical employees, professional and technical employees, guards, and supervisors as defined in the Act." 168 NLRB No. 24 CLEMENT-BLYTHE COMPANIES 119 and about 180-190 by April 1969. Respondent's project manager testified that the employees to be hired in the future would be of the same categories as those employed at the time of the hearing. The Regional Director, finding that Respondent's operations were "sufficiently established and stabil- ized and that they are manned by a substantial and representative segment of the Employer's ultimate working complement," directed an election. The Board denied the Employer's request for review of the Regional Director's decision. The complaint of July 21 also gave notice of hearing to be held on August 24. On August 24, Respondent was served with a copy of the Regional Director's order postponing hearing indefinitely, dated August 22, and thereafter, on August 28, received the General Counsel's motion for summa- ry judgment. Respondent contends that it is entitled as a matter of right to a hearing, at least in the cir- cumstances of this case because: (1) the Federal Rules of Civil Procedure require that a motion for summary judgment be served at least 10 days be- fore the time fixed for hearing, and (2) Respondent was prepared to introduce at the hearing evidence ,unavailable to it at the time of the representation hearing. The "unavailable" evidence Respondent offers is that, since the time of the representation hearing the number of employees at its project has in- creased and there now are more than "double the number" of classification in existence at the time of the hearing. However, we note that the number of employees is in keeping with Respondent's own projected figures. Further, by its own testimony Respondent did not expect to have categories of employees dissimilar to those it had at the time of the representation hearing. Respondent offers no details with regard to its statement as to an in- creased number of classifications. It does not state that the work performed by employees in new clas- sifications is dissimilar to that performed by em- ployees in classifications existing at the time of the hearing. Whether an election was warranted at the time directed, necessarily depended upon the facts and circumstances then existing. What Respondent predicted - expansion of its work force - has oc- curred. Respondent, however, offers nothing that was not before the Board when the representation case was decided.4 Respondent is not entitled to a hearing as a matter of right. Where no litigable issues are raised, the Board may entertain and rule upon motions for judgment on the pleadings or motions for summary judgment.5 Further, Respondent has not been prejudiced herein by the timing of the postpone- ment of the hearing or service of the motion for summary judgment. In postponing the hearing, the Regional Director acted within the discretion granted him by the Board's Rules. Nor do the Board's Rules provide a time limit for the filing of a motion for summary judgment. Such a motion may be made at any time prior to a hearing, during a hearing, or following hearing, so long as made be- fore the issuance of a decision by a duly appointed Trial Examiner. As all material issues have been previously de- cided by the Board, admitted by Respondent's an- swers to the complaint and amendment thereto, or stand admitted by the failure of Respondent to con- trovert the averments of the General Counsel's mo- tion, there are no matters requiring a hearing before a Trial Examiner. Accordingly, the General Coun- sel's motion for summary judgment is hereby granted. On the basis of the record before it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and at all times material herein has been, a joint venture, pooling the resources of two North Carolina corporations, Blythe Brothers Company, Inc., and Clement Brothers Company, Inc., for the purpose of constructing the Keowee- Toxaway Dam for Duke Power Company near Seneca, South Carolina. Since beginning construc- tion at the Keowee-Toxaway project on or about March 6, 1967, Respondent has caused to be shipped to the project in the State of South Carolina, directly from points outside the State of South Carolina, goods and materials valued in ex- cess of $50,000. Respondent admits, and we find, that it is, and at all times material herein has been, an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local Union No. 470, AFL-CIO, is a labor or- ganization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit At all times material herein the following em- ployees have constituted and now constitute a unit ° It is well settled that all issues which were or could have been raised in a related representation proceeding may not be relitigated in an unfair labor practice proceeding Harry T Campbell Sons' Corporation, 164 NLRB 247 5 See, e g , Harry T Campbell Sons' Corporation , supra, and the cases cited in in 9 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate for purposes of collective bargaining within the meaning of the Act: All employees at the Employer's Seneca, South Carolina, jobsite, excluding office cleri- cal employees, professional and technical em- ployees, guards, and supervisors as defined in the Act. 2. The certification On June 15, a majority of the employees of Respondent in said unit , voting in an election con- ducted under the supervision of the Regional Director for Region 11, designated the Union as their representative for the purposes of collective bargaining with Respondent, and on June 23 the Regional Director certified the Union as the exclu- sive bargaining representative of the employees in said unit, and the Union continues to be such representative. B. The Request To Bargain and Respondent's Refusal On or about July 5, the Union requested and is continuing to request Respondent to bargain collec- tively with it as the exclusive bargaining representa- tive of all the employees in the above-described ap- propriate unit. Commencing on or about July 10, Respondent refused, and continues to refuse, to bargain collectively with the Union as exclusive bargaining representative of the employees in said unit. Accordingly, we find that the Union was duly certified as the collective-bargaining representative of the employees of Respondent in the appropriate unit described above; that the Union at all times since July 5 has been and now is the exclusive bar- gaining representative of all the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act; and that Respondent has since July 10 refused to bargain collectively with the Union as the exclusive bargaining representative of its em- ployees in the appropriate unit. By such refusal, Respondent has engaged in, and is engaging in, un- fair 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 set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, in- timate, 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. 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, 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. CONCLUSIONS OF LAW 1. Clement-Blythe Companies, A Joint Venture, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local Union No. 470, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All employees employed by Respondent at its Seneca, South Carolina, jobsite, excluding office clerical employees, professional and technical em- ployees, guards, 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. Since June 23, the above-named labor or- ganization has been and is the exclusive representa- tive 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 July 10, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive representative of all its employees in the ap- propriate unit, 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. 6. By the aforesaid refusal to bargain, Respond- ent 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 en- gaged 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 conmerce 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 hereby orders that the Respond- ent, Clement-Blythe Companies, A Joint Venture, Seneca, South Carolina, its officers, agents , succes- sors, and assigns , shall: CLEMENT-BLYTHE COMPANIES 1. Cease 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 Union No. 470, AFL-CIO, as the exclusive and duly certified bar- gaining representative of its employees in the fol- lowing appropriate unit: All employees employed by Respondent at its Seneca, South Carolina, jobsite, excluding of- fice clerical employees, professional and technical employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in 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 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 un- derstanding is reached, embody such understanding in a signed agreement. (b) Post at its Seneca, South Carolina, jobsite copies of the attached notice marked "Appendix. 116 Copies of said notice, on forms provided by the Re- gional Director for Region 11, 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 by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 6 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 121 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 International Union of Operating En- gineers, Local Union No. 470, AFL-CIO, as the exclusive bargaining 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 em- ployees 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 bargain- ing unit described below with respect to rates of pay, wages, hours, and other terms and con- ditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees employed by us at our Seneca, South Carolina, jobsite, excluding office clerical employees, professional and technical employees, guards, and super- visors as defined in the Act. CLEMENT- BLYTHE COMPANIES , A JOINT VENTURE (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive 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, Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2911.