New Enterprise Stone & Lime Co., Inc.

NEW ENTERPRISE New Enterprise Stone & Lime Company, Inc. and United Cement, Lime and Gypsum Workers Inter- national Union, AFL-CIO. Case 6-CA-4038 December 1, 1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon a charge filed by United Cement, Lime and Gypsum Workers International Union, AFL-CIO, herein called the Union, the General Counsel for the National Labor Relations Board, by the Acting Regional Director for Region 6 issued a complaint and notice of hearing dated September 28, 1967, against New Enterprise Stone & Lime Company, Inc., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in un- fair 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 were duly served on the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges in substance, that on August 24, 1967, the Union was duly certified by the Regional Director for Region 61 as the exclusive collective- bargaining representative of Respondent's em- ployees in an appropriate unit, and that, since on or about September 6, 1967, Respondent has refused to recognize or bargain with the Union as such ex- clusive bargaining representative, although the Union has requested it to do so. On October It, 1967, the General Counsel filed with the Board a motion for summary judgment requesting, in view of the admission contained in the Respondent's answer, that the allegations of the complaint be found to be true, and that the Board make findings of fact and conclusions of law in con- formity with the allegations of the complaint. On October 26, 1967, Respondent filed with the Board a response to General Counsel's motion for summa- ry judgment. 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 response to General Counsel's motion for summary judgment, Respondent contends that the unit found to be appropriate in 6-RC-4293 is in fact I Decision and certification of representative issued August 16, 1967, in Case 6-RC-4293 (not published in NLRB Volumes) 2 Pittsburgh Plate Glass Company v. N L R.B., 313 U.S 146; Solis Theatre Corp & Interboro Circuit, Inc., 166 NLRB 572; Metropolitan 168 NLRB No. 95 STOVE & LIME CO. 673 inappropriate. This contention is without merit. The Respondent's answer to the complaint and its response to General Counsel's motion for summary judgment establish that the Respondent is seeking to relitigate matters decided in the prior representa- tion proceeding. The record before us establishes that on Februa- ry 10, 1967, following a hearing, the Regional Director for Region 6 of the National Labor Rela- tions Board issued a Decision and Direction of Election in Case 6-RC-4293. The Respondent thereafter filed a request for review with the Board, in which it challenged the Regional Director's find- ing of the appropriateness of the unit. On July 26, 1967, the Board issued an Order denying Respond- ent's request for review on the ground that it raised no substantial issues warranting review. On August 16, in a secret-ballot election con- ducted under the direction of the Regional Director for Region 6, a majority of the employees of the Respondent designated and selected the Union as their representative for the purposes of collective bargaining with the Respondent. On August 24, 1967, the Regional Director issued a decision and certification of representative which certified the Union as the exclusive collective-bargaining representative of the employees in the unit found to be appropriate. Respondent admits in its answer to the complaint that the Petitioner has requested it to bargain col- lectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. While Respondent does not deny that it has failed and refused to bargain with the Peti- tioner upon request as alleged in the complaint, it does allege in its answer that it has no legal obliga- tion to do so. In its answer to the complaint, the Respondent denies it has any legal obligation to bargain with the Union, but neither asserts any affirmative defenses, nor relies on newly discovered or previously unavailable evidence in support of its refusal to bar- gain. In the absence of newly discovered or previously unavailable evidence, issues which were or could have been raised in the representation proceeding may not be relitigated in the related unfair labor practice proceeding.2 Admittedly, the issues which Respondent seeks to raise in the instant proceeding relate to the correctness of the Regional Director's findings as to the appropriateness of the unit. There is no allegation that special circumstances exist herein which require the Board to reexamine the determination which was made in the representa- tion proceeding. Inasmuch as the Respondent has already litigated these issues, it has not raised any Life Insurance Company, 163 NLRB 579, Collins & Aikman Corpora- tion, 160 NLRB 1750, and United States Rubber Company, 155 NLRB 1298. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issue which is properly triable in the instant unfair labor practice proceeding. All material issues thus having been decided by the Board or admitted in the answer to the com- plaint, there are no matters requiring a hearing be- fore a Trial Examiner. Accordingly, the General Counsel's motion for summary judgment is granted. On the basis of the record before it, the Board makes the following: FINDINGS OF FACT 2. The Certification On August 16, 1967, a majority of the employees of Respondent in said unit, in a secret election con- ducted under the supervision of the Regional Director for Region 6, designated the Union as their representative for the purposes of collective bargaining with Respondent; and on August 24, 1967, the Regional Director for Region 6 certified the Union as the collective-bargaining representa- tive of the employees in said unit and the Union continues to be such representative. 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized and existing by virtue of the laws of the State of Delaware and is engaged in New Enterprise, Pennsylvania, in the operation of quarries, the manufacture and sale of concrete products, and in construction and main- tenance work for its various plants and divisions, the majority of which are located in Pennsylvania. During the past year, which period is representative of all material times herein, Respondent shipped directly to points located outside of the Common- wealth of Pennsylvania goods valued in excess of $50,000. During the same period Respondent purchased supplies and materials valued in excess of $50,000, which it received directly within the Commonwealth of Pennsylvania from points out- side the Commonwealth. Respondent admits, and we find, that Respond- ent 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 United Cement, Lime and Gypsum Workers Union, AFL-CIO, is a labor organization 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 of the Respondent have constituted a unit appropriate for collective bargaining within the meaning of the Act: All production and maintenance employees of New Enterprise Stone & Lime Co., Inc., at its Concrete Products Division plant in Roar- ing Spring, Pennsylvania, including prestressed concrete employees, but excluding all other employees, office clerical employees, technical employees and guards, professional em- ployees, and supervisors as defined in the Act. B. The Request to Bargain and the Respondent's Refusal Commencing on or about August 31, 1967, and continuing to date, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about September 6, 1967, and con- tinuing to date, Respondent did refuse, and con- tinues to refuse, to bargain collectively with the Union as the exclusive collective-bargaining representative of all employees in said unit. Accordingly, we find that the Union was duly certified as the collective-bargaining representative of the employees of the Respondent in the ap- propriate unit described above, and that the Union, at all times since August 24, 1967, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act. We further find that Respondent has, since September 6, 1967, refused to bargain collectively with the Union as the exclusive bargaining representative of its em- ployees in the appropriate unit, and that, by such refusal, the Respondent has engaged in, and is en- gaging 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 sec- tion III, above, occurring in connection with its 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 com- merce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom , and, upon request, bar- NEW ENTERPRISE STOVE & LIME CO. 675 gain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and embody in a signed agreement any un- derstanding reached. CONCLUSIONS OF LAW 1. New Enterprise Stone & Lime Company, Inc., is an employer 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 or- ganization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Employer's Concrete Products Division, Roar- ing Spring, Pennsylvania, including prestressed concrete employees, but excluding all other em- ployees, office clerical employees, technical em- ployees and guards, professional employees and guards, professional employees, 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 August 24, 1967, and at all times thereafter, the above-named labor organization has been and is the certified and 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 September 6, 1967, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the em- ployees of Respondent in the appropriate unit, 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, 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 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 hereby orders that the Respond- ent, New Enterprise Stone & Lime Company, Inc., Roaring Spring, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of em- ployment with United Cement, Lime and Gypsum Workers International Union, AFL-CIO, as the exclusive and duly certified bargaining representa- tive of its employees in the above-described ap- propriate unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exer- cise 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 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 embody in a signed agreement any understanding reached. (b) Post at its Roaring Spring, Pennsylvania, Concrete Division plant copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Re- gion 6, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director for Region 6, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 8 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 En- forcing 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 our employees that: WE WILL NOT refuse to bargain collectively with United Cement, Lime and Gypsum Wor- kers International Union, 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 em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 336-845 0 - 70 - 44 676 DECISIONS OF NATIONAL WE WILL, upon request , baragin with the above-named Union as the exclusive represent- ative of all employees in the bargaining unit described below with respect to wages, hours, and other terms and conditions of employment, and embody in a signed agreement any un- derstanding reached. All production and maintenance em- ployees of New Enterprise Stone & Lime Co., Inc., at its Concrete Products Divi- sion plant in Roaring Spring, Pennsyl- vania, including prestressed concrete em- ployees, but excluding all other em- ployees, office clerical employees, techni- cal employees and guards, professional LABOR RELATIONS BOARD employees, and supervisors as defined in the Act. NEW ENTERPRISF STONE & LIME COMPANY, INC. (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, 1000 Liberty Avenue, Pittsburgh, Pennsyl- vania 15222, Telephone 644-2977.