McCormick Concrete Co.

MCCORMICK CONCRETE COMPANY 601 Florida Mining & Materials Corp., d/b/a McCormick Concrete Company and Truck Drivers, Warehouse- men & Helpers Local Union No. 512, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 12-CA-5519 July 31, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on February 24, 1972, by Truck Drivers, Warehousemen & Helpers Local Union No. 512, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called the Union, and duly served on McCormick Concrete Co., Inc., the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12, issued a complaint on March 30, 1972, an amend- ment to the complaint on April 12, 1972, and a second amendment to the complaint on April 17, 1972. The complaint, as amended, alleged that Florida Mining & Materials Corp., d/b/a McCor- mick Concrete Company, herein called the Respon- dent,' had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, amendments, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint, as amended, alleges in substance that on January 18, 1972, following a Board election in Case 12-RC-3905 the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate; 2 and that, commencing on or about January 21, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collective- ly with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On April 11, 1972, Respondent filed its answer to the complaint I At the time of the election in the underlying representation proceeding, Case 12-RC-3905, McCormick Concrete Co., Inc, was the Employer of the unit employees For reasons explained , infra, the party identified in the complaint, as amended, as the Respondent in the proceeding is Florida Mining & Materials Corp., d/b/a McCormick Concrete Company. 2 Official notice is taken of the record in the representation proceeding, Case 12-RC-3905, as the term "record" is defined in Secs 102.68 and 102 69(f) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems; Inc, 166 NLRB 938, enfd 388 F 2d 683 (C.A 4, 1968); Golden Age Beverage Co, 167 NLRB 151; Intertype Co v. Penello, 269 F.Supp 573 (D C Va., 1967), Follett Corp., 164 NLRB 378, enfd. 397 F 2d admitting in part, and denying in part, the allegations in the complaint, and thereafter filed an answer to the amendment to the complaint. On May 5, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 11, 1972, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and in its memoran- dum in opposition to the General Counsel's Motion for Summary Judgment, Respondent denies that the Union is the exclusive majority bargaining represent- ative of the employees in the unit found to be appropriate in Case 12-RC-3905.3 Respondent further alleges that the General Counsel's motion seeks to deny it the right to a hearing in violation of due process. We find no merit in Respondent's position. Pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted on September 23, 1971. The tally of ballots showed that of approximately 40 eligible voters, 41 cast ballots of which 21 were for and 15 against the Union with 5 ballots challenged. Thereafter timely objections to conduct affecting the results of the election were filed. The objections alleged in substance that on the day before the election the petitioning local was put into trusteeship by the International Union without the knowledge or consent of the bargaining unit employees; that the Union misrepresented its finan- cial ability to represent the employees; and that officials and agents of the petitioning local were represented to be qualified to give proper representa- tion to employees when in fact they were not so qualified. After investigation, the Regional Director issued a Report on Objections and Recommenda- 91 (C A 7, 1968), Sec. 9(d) of the NLRA 3 The election herein was conducted on September 23, 1971, among employees of McCormick Concrete Co., Inc, herein called McCormick The complaint, as amended, alleges, Respondent's answer admits, and we find that on or about December 1, 1971, Respondent purchased certain assets of McCormick, and has since that date operated the ready-mix business of McCormick in essentially the same business manner and has employed substantially the same employees and supervisors as had been employed by McCormick and, further, that since on or about December 1, 1971, Respondent has been and is a successor to the operation of McCormick involved herein 198 NLRB No. 81 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions to the Board in which he recommended that the objections be overruled and that the Union be certified as the exclusive collective-bargaining repre- sentative of employees in the stipulated unit. Thereafter, timely exceptions to the Regional Director's Report on Objections and Recommenda- tions were filed with the Board in which the merits of the objections were reargued. On January 18, 1972, the Board issued its Decision and Certification of Representative in which, after considering the objections, the Regional Director's report, and the exceptions, it adopted the Regional Director's findings, conclusions, and recommendations and certified the Union. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Florida corporation with its office and principal place of business in Jacksonville, Florida, where it engages in the manufacture and sale of ready-mixed concrete. During the past year it furnished material to contractors engaged in work on federally funded projects and purchased goods, supplies, and materials valued in excess of $50,000 from suppliers who received such goods, supplies, and materials directly from outside the State of Florida. We find, on the basis of the foregoing, that 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, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Truck Drivers, Warehousemen & Helpers Local Union No. 512, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, 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 The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All mixer drivers, concrete, sand and rock truck drivers, maintenance personnel and warehouse deliveryman, employed by the Respondent at its Jacksonville, Florida Plants (6), and Jacksonville Beach, Florida Plant (1), excluding all office clerical employees, guards, professional employ- ees, salesmen, and supervisors as defined in the Act. 2. The certification On September 23, 1971, a majority of the employ- ees in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 12 designated the Union as their representa- tive for the purpose of collective bargaining. The Union was certified as the collective-bargaining representative of the employees in said unit on January 18, 1972, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about January 18, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about January 21, 1972, and continu- ing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- 4 See Pittsburgh Plate Glass Co v. N L R B, 313 U S 146, 162 (1941); Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) MCCORMICK CONCRETE COMPANY 603 tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since January 21, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging 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 Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, an.i 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 Respondent has engaged 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. 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, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Florida Mining & Materials Corp., d/b/a McCormick Concrete Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers, Warehousemen & Helpers Local Union No. 512, affiliated with the Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All mixer drivers, concrete, sand and rock truck drivers, maintenance personnel and warehouse deliveryman, employed by the Respondent at its Jacksonville, Florida Plants (6), and Jacksonville Beach, Florida Plant (1), excluding all office clerical employees, guards, professional employees, sales- men, 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. Since January 18, 1972, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 21, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees 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) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged 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 mean- ing 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 Respondent, Florida Mining & Materials Corp., d/b/a McCor- mick Concrete Company, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Truck Drivers, Warehousemen & Helpers Local Union No. 512, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All mixer drivers, concrete, sand and rock truck drivers, maintenance personnel and warehouse 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deliveryman, employed by the Respondent at its Jacksonville, Florida Plants (6), and Jacksonville Beach, Florida Plant (1), excluding all office clerical employees, guards, professional employ- ees, salesmen, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its plants in Jacksonville and Jackson- ville Beach, Florida, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees 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 12, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. terms and conditions of employment with Truck Drivers, Warehousemen & Helpers Local Union No. 512, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive represent- ative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees 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 representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All mixer drivers, concrete, sand and rock truck drivers , maintenance personnel and warehouse deliveryman, employed by the Respondent at its Jacksonville , Florida Plants (6), and Jacksonville Beach, Florida Plant ( 1), excluding all office clerical em- ployees, guards, professional employees, salesmen, and supervisors as defined in the Act. FLORIDA MINING & MATERIALS CORP., D/B/A MCCORMICK CONCRETE COMPANY (Employer) 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Room 706, Federal Office Building, 500 Zack Street, Post Office Box 3322, Tampa, Florida 33602, Telphone 813-228-7227.