New Enterprise Stone and Lime Co., Inc.

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New Enterprise Stone and Lime Co., Inc. and United Cement, Lime and Gypsum Workers International Union, AFL-CIO. Case 6-CA-4174 June 11, 1969 DECISION AND ORDER 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 June 28, 1968, against the New Enterprise Stone and Lime Co., herein called the Respondent, alleging that the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (5), and Section 2(6) and (7) of the National Labor Relations Act, as amended . Subsequently, the Respondent filed its answer, admitting in part, and denying in part, the allegations of the complaint, and filed a Motion for Summary Judgment of Dismissal, alleging that Court review of Case 6-CA-4038' will be dispositive not only of the Respondent's bargaining obligation in that case but also of its bargaining obligation in the instant case. On July 15, 1968, the Regional Director referred the Motion for Summary Judgment of Dismissal to the Trial Examiner designated to conduct the hearing, for ruling. The General Counsel filed opposition to the Respondent' s motion . By Order dated July 25, 1968, Trial Examiner Sidney Sherman denied the Respondent's Motion for Summary Judgment of Dismissal. Thereafter, on August 26, 1968, the General Counsel filed a Motion to Board for Summary Judgment, moving that all the material allegations in the complaint , in view of the admission contained in the Respondent' s answer, be deemed to be admitted to be true, that the Respondent be found to have violated Section 8(a)(5) and (1) of the Act, and that the Board make findings of fact and conclusions of law in conformity with the allegations of the complaint. On August 28, 1968, the Board issued an Order Transferring Proceeding to the Board and a Notice to Show Cause. On September 11, 1968, the Respondent filed with the Board an opposition to General Counsel' s Motion for Summary Judgment. Upon the entire record in this case, the Board makes the following: FINDINGS OF FACT 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 maintenance work for its various plants and divisions, the majority of which are located in Pennsylvania. During the past year 12-month period, Respondent purchased supplies and materials valued in excess of $50,000 for use at its Pennsylvania facilities, directly from points outside the Commonwealth of Pennsylvania . During the same period, Respondent shipped from its Pennsylvania facilities goods and materials valued in excess of $50,000, directly to points outside the Commonwealth of Pennsylvania . We find that Respondent is 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 A. The Representation Proceeding 1. The unit At all times material herein the following employees of the Respondent have constituted a unit appropriate for collective bargaining within the Act: All production and maintenance employees of New Enterprise Stone & Lime Company, Inc., at its Concrete Products Division plant in Roaring Spring, Pennsylvania, including prestressed concrete employees, but excluding all other employees, office clerical employees, technical employees and guards, professional employees and supervisors as defined in the Act. 2. The certification On August 16, 1967, a majority of the employees of Respondent in said unit, in a secret election conducted 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 representative of the employees in said unit and the Union continues 'o be such representative of all employees in said unit. 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized and existing by New Enterprise Stone and Lime Co.. Inc.. 168 NLRB No. 95. B. The Respondent's Alleged Violations of Section 8(a)(5) and (1) The Respondent , in its answer to the complaint herein, admits : ( 1) that on or about August 27, 176 NLRB No. 71 NEW ENTERPRISE STONE AND LIME CO. 587 1967, it unilaterally and without prior notice to or consultation with the Union, discontinued weekday overtime of its employees employed in the aforesaid unit, and as a result of the elimination of such overtime transferred approximately eight employees employed in the aforesaid unit from the day shift to the afternoon shift; and (2) that on or about November 6, 1967, it unilaterally and without notice to or consultation with the Union, converted the positions of four hourlypaid leadmen, who had heretofore been included in the aforesaid unit, into nonbargaining unit positions. The record discloses that the events covered by the allegation of the complaint referred to above, as to the unilateral discontinuance of daily overtime, occurred prior to the filing of the charge and issuance of the complaint in the earlier Section 8(a)(5) proceedings.' We have determined as a matter of sound judicial administration of the Act to dismiss the allegation of the instant complaint alleging unilateral change, by the Respondent, in the overtime hours worked by its employees. Unlike the situation in Quaker Tool and Die, Inc.,' the events covered by the instant allegation occurred prior to the issuance of the complaint in the aforementioned Section 8(a)(5) proceeding and were apparently known to have occurred by the parties. As no special circumstances have been shown here to now justify making the alleged violation the subject of a separate Section 8(a)(5) proceeding, we shall, accordingly, deny the Motion for Summary Judgment and order dismissal of this allegation of the complaint. As noted, the other allegation of the instant complaint asserts that Respondent violated Section 8(a)(5) of the Act by unilaterally converting, on or about November 7, 1967, the positions of four hourly-paid leadmen, who theretofore had been included in the bargaining unit, to nonbargaining unit positions. Respondent' s answer, however, while admitting such unilateral conduct, raises a question whether by doing so the Respondent eliminated any unit work. The meager record before us is factually insufficient to resolve the legal issues raised. A material issue of fact having been raised , the Motion for Summary Judgment must be denied. However, although the normal procedure would be to remand the case for further hearing, we have determined that no useful purpose would be served by doing so. Even if this alleged violation was factually established , we would not in the circumstances of this case require the Respondent to do more than fulfill its bargaining obligation in the appropriate unit as required by our earlier order. This would add nothing of substance to the remedy provided in the earlier case. Accordingly, we shall order dismissal of this allegation of the complaint. ORDER 'See fn. T. '169 NLRB No. 166. and it hereby is, dismissed. It is hereby ordered that the complaint herein be,