Compagnie Industrielle de Travaux

COMPAGNIE INDUSTRIELLE DE TRAVAUX 785 Compagnie Industrielle de Travaux (CITRA) and United Steelworkers of America , AFL-CIO. Case 24-CA-2633 June 18, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On May 9, 1969, Trial Examiner Robert Cohn issued his Decision in the above-entitled proceeding, finding that the 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 Decision. 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed .' The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Regional Director for Region 24, issued a complaint and notice of hearing on December 30 , 1968, alleging that Compagnie Industrielle de Travaux (Citra), herein called the Respondent, had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(l), (2), and (5) of the National Labor Relations Act, as amended (herein the Act). Thereafter, the Respondent filed an answer to the complaint , admitting certain jurisdictional and factual allegations, but denying the commission of any unfair labor practices. The matter came on before me for hearing in Hato Rey, Puerto Rico, on February 14, 1969, at which all parties were present and represented,' and were given all rights to be heard respecting the issues in the case. Based upon a second amended charge against the Respondent (G.C. Exh. 2), counsel for the General Counsel moved to file an amended complaint (G.C. Exh. 3), which, in essence , deleted the 8(aX2) allegation of the original complaint leaving only the issue of the alleged refusal to bargain by the Respondent in violation of Section 8(a)(5) of the Act. The Respondent was given leave to file an oral answer to the amended complaint in which the jurisdictional allegations thereof were admitted. Respondent also conceded that it had refused to bargain with the Steelworkers but for the reason that the certification of that labor organization by the Board on March 11, 1968 (Case 24-RC-3107), was defective and invalid. Accordingly, the only issue for decision is whether the Respondent unlawfully refused to bargain with the Steelworkers in violation of Section 8(a)(5) of the Act. _ Upon the entire record, and after full and careful consideration of the parties' positions as stated on the record, I make the following: FINDINGS AND CONCLUSIONS 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, Compagnie Industrielle De Travaux (CITRA), St. Croix, Virgin Islands, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'At the hearing, Seafarers international Union de Puerto Rico sought to intervene in this proceeding on the basis of an alleged interest in the employees of Respondent, as evidenced by authorization cards. The Trial Examiner, noting that the Board had denied a motion to intervene by this organization based upon the same ground in the representation case, similarly denied the motion in the instant case. Thereafter , Seafarers International Union de Puerto Rico filed a motion for special permission to appeal ruling of Trial Examiner, and a motion to intervene. Those motions are hereby denied as lacking in merit. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT COHN, Trial Examiner : Upon an original charge filed by United Steelworkers of America, AFL-CIO (herein the Steelworkers), on November 7, 1968 (subsequently amended December 6, 1968), the General Counsel of the National Labor Relations Board, by the 1. COMMERCE The Respondent is, and has been at all times material, a corporation engaged in the construction business at St. Croix, Virgin Islands, and Puerto Rico, and also in the furnishing of services in connection with the operation of an alumina producing plant of the Harvey Alumina Virgin Islands, Inc., located on the said island of St. Croix, U.S. Virgin Islands. During the calendar year 1968, Respondent purchased and caused to be shipped from points located outside of the Virgin Islands to the island of St. Croix, Virgin Islands, construction materials and other equipment necessary for its construction operations which were valued in excess of $50,000. During the same period of time, it furnished services to Harvey Alumina Virgin 'Virgin Islands Labor Union , AFL-CIO, was permitted to intervene in the proceeding on the basis of a contractual interest with the Respondent. 'At the hearing, Seafarers International Union de Puerto Rico, through its counsel, sought to intervene in the proceedings on the basis of an interest which it assertedly had among the employees of the Respondent. The Trial Examiner noted that the Board had denied a similar motion by the same organization based upon the same reason in the representation matter, and therefore similarly denied its motion in the instant case. Counsel for the Seafarers indicated that he would file a special appeal to the Board from the Trial Examiner's ruling. Accordingly, at the close of the hearing, I left open the record to give counsel and the Board time to dispose of that motion. However, on March 17, 1969, having received no notice respecting disposition of the matter, I issued an order closing the hearing and giving the parties until March 31 , 1969, for the filing of briefs. No briefs from either party have been received. 176 NLRB No. 104 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Islands, Inc., in connection with the operation of the latter's alumina producing plant, which services were valued in excess of $50,000. Said Harvey Alumina Virgin Islands, Inc., is engaged in the manufacturing and shipment in interstate commerce of alumina products, and its operations come within the Board's jurisdictional standards applicable to manufacturing enterprises. On the basis of the foregoing, I find, as the Respondent admits, that the Respondent is and has been at all times material engaged in commerce or in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATIONS INVOLVED Thereafter, on June 6, 1968, the Steelworkers requested the Respondent to meet and confer for the purposes of commencing negotiations for a contract. On June 20, 1968, the Respondent's attorney addressed a letter to the Steelworkers advising that the Respondent refused to bargain citing as reasons. (1) existence of a 3-year collective-bargaining agreement executed between the Respondent and the Virgin Islands Labor Union, and (2) that the certification issued to the Steelworkers by the Board in Case 24-RC-3107 was invalid and that the Respondent would like to have the validity of such certification tested.' Analysis and Concluding Findings The amended complaint alleges , the answer admits, and I find that Steelworkers and the Virgin Islands Labor Union , AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Pursuant to a Decision on Review, and Direction of Election dated September 8, 1967, in Case 24-RC-3107 (not published in NLRB volumes),' an election by secret ballot was conducted under the direction and supervision of the Regional Director for Region 24 on January 15, 1968, among all production and maintenance employees employed by the Respondent at the alumina plant of Harvey Alumina V.I., Inc., located at St. Croix, U.S. Virgin Islands, including bonded aliens or H(2) employees, crane operators, welders, laborers, truckdrivers, heavy equipment operators, electricians, and mess hall employees, excluding all office clerical employees, timekeepers, professional employees, guards, and supervisors as defined in the Act.' The tally of ballots, which was duly served on each of the parties, revealed that of the approximate 330 eligible voters, 179 cast valid votes for the Steelworkers and that the number of challenged ballots was not sufficient to affect the results of the election. Therefore, it was found that a majority of the valid votes counted had been cast for the Steelworkers. However, thereafter, objections to the conduct of the election were timely filed by both the Respondent and the Intervenor, and the Regional Director thereupon caused an investigation to be made concerning said objections. On March 11, 1968, the Regional Director issued his supplemental decision and certification of representatives, finding, in essence, that the objections raised by the Respondent and the Intervenor were without merit and that the Steelworkers should be certified as representative of the employees in the appropriate unit.' Thereafter, on May 9, 1968, the Board denied the separate requests for review of the Regional Director's supplemental decision and certification of representatives filed by the Respondent and the Intervenor.' 'See G.C. Exh. 5-B, herein. 'The foregoing unit was found by the Board to be appropriate in the representation case, and is so alleged in the complaint herein. Although Respondent, on the record herein, denied this allegation of the complaint, I deem myself bound by the Board's findings in the representation matter, and therefore find that the above-described unit is appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 'See G .C. Exh. 5-H, herein. 'On the same date, the Board also denied as lacking in merit the separate request of the Seafarers International Union de Puerto Rico for a review of the Board's denial of its earlier motion to intervene in the As previously noted, the Respondent in this case admits its refusal to bargain, basing such refusal upon an alleged invalid certification, which in turn is based upon alleged errors and irregularities committed during the election process. The record shows that these contentions were thoroughly investigated and ruled upon initially by the Regional Director whose rulings were subsequently affirmed by the Board. It is well settled that such questions as to the validity of the election and the merit of the Respondent's objections thereto, having been decided by the Board in the representation proceeding, are not relitigable before a Trial Examiner in an unfair labor practice proceeding, in the absence of newly discovered or previously unavailable evidence.' The Respondent, not claiming to nor producing any evidence to come within the aforementioned exception, has no legitimate ground for its refusal to bargain. Accordingly, I find and conclude that at all times since June 20, 1968, the Respondent has refused to bargain collectively with the Steelworkers concerning its employees in an appropriate unit, thereby engaging in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act.' proceeding (see G .C Exh. 5-I). 'In the representation case, Respondent claimed , inter a/ia, that its contract with the Virgin Islands Labor Union was a bar to the Steelworkers petition . The Board overruled this contention and directed an election. 'See Stuart Wilson, Inc. 174 NLRB No. 49, and cases cited in fn. I thereof. 'In his motion to intervene, counsel for the Seafarers International Union de Puerto Rico asserted in support of the motion , inter alia, that a Steelworkers representative had engaged in misconduct on the day of the election (which had affected the results of the election ), in that such representative was stationed outside the plant gate of the Respondent, and that his purpose was to intimidate and turn away employees who were known not to be in favor of the Steelworkers Union. It was asserted that knowledge of this conduct came to the Seafarers subsequent to the time the request for review was filed with the Board, although it was intunated that the Board's agents investigating the objections did learn of the circumstances during the investigation. Due to the mere assertion of these circumstances without any semblance of evidentiary support, plus the fact that it appears that the facts probably came to the attention of the Board's agents during this investigation and were found not to be sufficiently probative of misconduct, the Trial Examiner did not consider this assertion sufficient to warrant intervention. However, subsequent to the Trial Examiner's denial of the Seafarers motion to intervene, the counsel for the Intervenor Virgin Islands Labor Union, AFL-CIO (an affiliate of the Seafarers ), took up the cudgel and requested subpenas directed to the Respondent , the General Counsel, aqd the Steelworkers, seeking , in essence, evidence in support of such assertion (Intervenor's Exhs. 1, 2, and 3). The Trial Examiner granted the several parties' motions to squash the subpenas on the grounds that , at this juncture in the overall proceedings , such were in the nature of a "fishing expedition," and, in the circumstances, did not warrant a further delay of the proceedings . Compare Paul Ublich & Co, Inc, 26 NLRB 679, 681; COMPAGNIE INDUSTRIELLE DE TRAVAUX 787 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section I, above, occurring in connection with Respondent's operations described in section III, 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 Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend 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. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law , it shall be construed that the initial year of certification begins on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10); Amax Aluminum Extrusion Products, Inc., 174 NLRB No. 163. CONCLUSIONS OF LAW 1. United Steelworkers of America, AFL-CIO, and Virgin Islands Labor Union, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 2. Compagnie Industrielle de Travaux (Citra) is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. All production and maintenance employees employed by the Employer at the alumina plant of Harvey Alumina V.I., Inc., located at St. Croix, U.S. Virgin Islands, including bonded aliens or H(2) employees, crane operators, welders, laborers, truckdrivers, heavy equipment operators, electricians, and mess hall employees, but excluding all office clerical employees, timekeepers, 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. By virtue of a Board certification dated March 11, 1968, United Steelworkers of America, AFL-CIO, has been, and now is, the certified and exclusive representative of all of the employees in the appropriate unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on and after June 20, 1968, to bargain in good faith with the United Steelworkers of America, AFL-CIO, concerning wages, rates of pay, hours, and other terms and conditions of employment, Respondent has engaged in and is engaging in unfair labor practices Morrison Turning Company, inc., 83 NLRB 687, 689. within the meaning of Section 8 (a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is hereby ordered that the Compagnie Industrielle de Travaux (Citra), its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its place of business in St. Croix copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 24, after being duly signed by its representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its 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 the Regional Director for Region 24, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." "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 Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 24, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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, upon request, bargain with United Steelworkers of America , AFL-CIO, as the exclusive collective-bargaining representative of the employees in the appropriate unit described below , with respect to 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All production and maintenance employees employed by Campagnie Industrielle de Travaux (Citra) at the alumina plant of Harvey Alumina V.I., Inc., located at St. Croix, U.S. Virgin Islands, including bonded aliens or H(2) employees, crane operators, welders, laborers, truckdrivers, heavy equipment operators, electricians, and mess hall employees, but excluding all office clerical employees, timekeepers, professional employees, guards, and supervisors as defined in the Act. Dated By COMPAGNIE INDUSTRIELLE DE TRAVAUX (CITRA) (Employer) (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, 7th Floor, Pan Am Building, 255 Ponce De Leon Avenue, Hato Rey, Puerto Rico 00919, Telephone 809-765-0404.