Southwestern Portland Cement Co.

SOUTHWESTERN PORTLAND CEMENT CO. Southwestern Portland Cement Company and United Cement, Lime and Gypsum Workers Inter- national Union, AFL-CIO, Local 476. Case 16-CA-3043 January 11, 1968 DECISION AND ORDER By MEMBERS BROWN, JENKINS, AND ZAGORIA On October 30, 1967, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceeding, finding that 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 Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. I Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has considered the Trial Examiner's Decision, the exceptions, brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer. 123 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THE REPRESENTATION PROCEEDING' PAUL E. WEIL, Trial Examiner: Pursuant to a Stipula- tion for Certification upon Consent Election in Case 16-RC-4415, a rerun election was conducted by the Re- gional Director of Region 16 on February 9, 1967, in which a majority of the employees of Respondent in a unit described as all production, production utility, and maintenance employees employed at the Respondent's Odessa, Texas, plant, excluding all clerical employees, storeroom clerk, professional and technical employees, guards and supervisors as defined in the Act, as amended, designated and selected United Cement, Lime and Gyp- sum Workers International Union, AFL-CIO, Local 476, herein called the Union, the petitioner therein, as their representative for the purposes of collective bar- gaining.2 Respondent filed timely objections to conduct affecting the result of the election, requesting that the election be set aside and a new election be ordered. The Regional Director on March 31, 1967, issued his report, recom- mending that the Board overrule Respondent's objections in their entirety, and that the Union be certified pursuant to the petition. Respondent filed timely exceptions to the Regional Director's report on objections, and on June 20, 1967, the Board issued its Decision and Certification of Representative. The Board therein found that the Em- ployer's exceptions raised no material or substantial is- sues of fact or law which would warrant reversal of the Regional Director's findings and recommendations. THE COMPLAINT CASE ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that Respondent, Southwestern Portland Ce- ment Company, Odessa, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Recommended Order of the Trial Ex- aminer. ' Respondent filed, along with its brief, a motion to reconsider deter- minations previously made in the representation case and to reconsider Board policy and procedure in cases of this nature. Respondent's position in the representation case was previously considered by the Board which found that there were no material or substantial issues of fact or law which would warrant reversal of the Regional Director's findings and recom- mendations. We, therefore, deny the motion. We also find no ment in Respondent's contention concerning Section 102.67(f) of the Board's Rules and Regulations, as amended. The principle embodied in that Sec- tion has been historically followed by the Board in cases decided by or subject to appeal to the Board, rather than subject to decision by the Re- gional Director That Section was not intended as a limitation upon the ap- plicability of that principle in cases decided by or directly appealable to the Board See, e g., Pittsburgh Plate Glass Company v. N L.R B., 313 U.S. 146, 162; Capitan Drilling Company, Inc., 167 NLRB 144, and cases cited in fn 2 and 3, of the Trial Examiner's Decision therein On August 10, 1967, pursuant to a charge filed prior thereto by the Union, the Regional Director issued a complaint alleging that Respondent had committed unfair labor practices in violation of Section 8(a)(1) and (5) of the Act by refusing to bargain with the Union upon request. In its duly filed answer Respondent admitted most of the allegations in the complaint but denied the service of the charge, the representative status of the Union, and the conclusionary allegations that it was in violation of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act.3 In addition Respondent in its answer raised the validity of the certification complaining that it was sum- marily denied a heanng on its objections to the election and was therefore denied procedural and substantive due process, and further that in the event it had such a hearing it would show that the Union made misstatements of im- portant facts at a time when the Company did not have a fair chance to reply. Respondent therefore prayed that the complaint be dismissed. ' Administrative notice is taken of the representation proceeding, Case 16-RC-4415. See Section 9(d) of the National Labor Relations Act. 2 Prior proceedings in the representation case between August 23, 1966, when the petition was filed, and February 9, 1967, when the rerun election was conducted, appear irrelevant to the instant proceeding 3 The General Counsel, after the filing of the answer, amended para- graph 1 of the complaint changing the dates therein from the month of June to the month of July. Thereafter Respondent filed no amended answer. Accordingly I deem the complaint, as amended, admitted in that regard. 169 NLRB No. 39 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 14 the General Counsel filed a motion to strike portions of Respondents' answer and motion for judgment on the pleadings, pointing out that Respondent is attempting to relitigate an issue raised and decided in the representation case and in view of Respondent's ad- mission to the allegation of the complaint which alleges that a majority of the employees in the unit designated and selected the Union in the election that Respondent's denial of the Union's representative status is a sham and is frivolous. General Counsel's motion was duly referred to the Trial Examiner for ruling by the Regional Director and the motion was referred to Trial Examiner Charles W. Schneider, who issued an order to show cause as to whether or not the motions should be granted. Respond- ent duly filed its response to the order to show cause together with a motion to rule on its motion to stay previ- ously filed, a motion to consider further affidavits of Respondent and a motion for judgment on the pleadings. Counsel for the General Counsel then moved to strike Respondent's response contending that Respondent's response constituted nothing more than a reiteration of the contentions advanced in the representation proceedings, and that Respondent's request to present evidence by affidavit is improper and does not constitute material evidence newly discovered. On this state of the record the matter was assigned to me for ruling. RULING ON MOTION FOR JUDGMENT ON THE PLEADINGS Respondent contends that the motion of the General Counsel should not be granted because the matters con- tained in its answer raised substantial and material factual issues which can be resolved only after a hearing, and which constituted a complete defense to the complaint if sustained. However, those issues upon which Respond- ent depends in this argument are the issues raised by Respondent's objections in the representation case, and dealt with by the Board in its decision therein. There is no showing by Respondent that it has any newly discovered evidence with regard to its objections nor does it so plead other than its statement (paragraph V of its answer) that "Respondent would further show that the Union made misstatements of important facts at a time when the Com- pany did not have a fair chance to reply." Whether by this allegation Respondent means that it has further objec- tions which it did not raise in a timely fashion, or whether it is referring to the objections considered by the Board does not appear. In the former event this is neither the time nor the occasion to raise further objections. In the latter it appears that Respondent seeks to litigate in this unfair labor practice proceeding issues which have been finally decided by the Board in the representation proceeding. This Respondent may not do. It is established Board policy in the absence of newly discovered or previously unavailable evidence not to per- mit litigation in a complaint case of issues which were or could have been litigated in a prior related representation proceeding.' Respondent contends that the denial of the formal hear- ing on its objections is a denial of due process. Such a hearing is not a matter of right unless substantial and material issues are raised and the Board has decided that there are no such issues in the instant case.5 The Trial Examiner has no authority to review the 4 Pittsburgh Plate Glass Company v. N L.R.B., 313 U.S. 146, 162, Golden Age Beverage Company, 167 NLRB 151; Capitan Drilling Com- pany, Inc , 167 NLRB 144, and cases therein cited. Board's final disposition of the representation issues or to question its conclusions. The Respondent may request the Board to reconsider the determinations made in the representation case and may request review of the Board's Order and of the determinations of the represen- tation case in an appropriate court of appeals, but at this stage of the proceedings, absent newly discovered evidence, the Board's disposition in the representation case is the law of the case and binds the Trial Examiner.6 Respondent admitted the certification, the demand for bargaining, and the refusal to bargain and therefore no matter requiring a hearing appears since there are no is- sues litigable before a Trial Examiner. Accordingly the General Counsel's motion for summary judgment is granted and I hereby make the following: FINDINGS 1. THE BUSINESS OF THE RESPONDENT A. Respondent is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of West Virginia having an office and place of business in Odessa, Texas, where it is and has been engaged at all times material herein the manufacture, sale, and distribution of Portland cement. B. During the past year Respondent in the course and conduct of its business operations purchased, transferred, and delivered to its Odessa, Texas, plant, goods and material valued in excess of $50,000 which goods and materials were transported to said plant directly from States of the United States other than the State of Texas and sold and shipped finished products valued in excess of $50,000 to points outside the State of Texas. C. Respondent 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 The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES All production, production utility, and maintenance employees employed at the Respondent's Odessa, Texas, plant, excluding all clerical employees, storeroom clerk, professional and technical employees, guards and super- visors as'defined in the Act, as amended, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. On June 20, 1967, the Board issued its Decision and Certification of Representative overruling Respondent's exceptions to the Regional Director's report on objec- tions to an election conducted pursuant to a petition filed by the Union, and certifying the Union as the exclusive bargaining representative of the employees in the unit described above. Then and now the Union is and has been the representative for the purposes of collective bar- gaining of the employees in the unit described above for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Golden Age Beverage Company, supra 6 Golden Age Beverage Company, supra, Capitan Drilling Company Inc, supra, and cases therein cited (particularly in fn. 3) SOUTHWESTERN PORTLAND CEMENT CO. Since on or about June 26 and continuing to date Respondent has refused to bargain and continues to refuse to bargain with the Union respecting the em- ployees in the appropriate unit. By refusing to meet and bargain with the Union the Respondent has refused to bargain collectively in viola- tion of Section 8(a)(5) of the Act and has interfered with, restrained, and coerced its employees in violation of Sec- tion 8(a)(1) of the Act. The aforesaid unfair labor prac- tices affect commerce within the meaning of Section 2(6) and (7) of the Act. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take further affirmative action designed to effectuate the policies of the Act. It has been found that the Respon- dent refuses to bargain collectively with the Union and it will therefore be recommended that the Respondent, upon request, bargain collectively with the Union as the exclusive representative of the unit employees and if an understanding is reached embody such understanding in a signed agreement. Upon the foregoing findings and conclusions and the entire record in the case I recommend that the Board issue the following: RECOMMENDED ORDER A. For the purpose of determining the duration of the certification, the initial year of certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit.7 B. Southwestern Portland Cement Company , Odessa, Texas, its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Ce- ment, Lime and Gypsum Workers International Union, AFL-CIO, Local 476 as the exclusive collective bargain- ing representative of the employees in the following ap- propriate bargaining unit: All production, production utility, and maintenence employees employed at the Odessa, Texas, plant, of Southwestern Portland Cement Company, excluding all clerical employees, storeroom clerk, professional and technical employees , guards and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent employees as an exclusive col- lective-bargaining representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Upon request ,', bargain collectively with United Ce- ment, Lime and Gypsum Workers International Union, AFL-CIO, Local 476, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and embody in a signed agreement any understanding reached. (b) Post at its Odessa, Texas, plant copies of the at- tached notice marked "Appendix."8 Copies of said notice, on forms 'provided by the Regional Director for Region 11, after being duly signed by Respondent's representative , shay) be posted by Respondent im- mediately upon receipt thereof, and be maintained by it 125 for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.9 See Capitan Drilling Company, supra, and cases there cited 8 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 9 In the event that this Recommended Order is 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 Respon- dent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT refuse to bargain collectively with United Cement, Lime and Gypsum Workers, Inter- national Union, AFL-CIO, Local 476, as the exclu- sive bargaining representative of all the following employees: All production , production utility , and main- tenance employees employed at our Odessa, Texas, plant, excluding all clerical employees, storeroom clerk, professional and technical em- ployees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce employees in the exer- cise of their rights under the Act WE WILL bargain collectively with the Union as the exclusive representative of these employees and if an understanding is reached we will sign a contract with the Union. SOUTHWESTERN PORTLAND CEMENT COMPANY (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, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334-2934.