Texas Industries, Inc.

TEXAS INDUSTRIES, INC. 671 Texas Industries, Inc. and Laborers' International Un- ion of North America, Local Union No. 648, AFL- CIO and International Union of Operating Engi- neers, Local Union No. 819, AFL-CIO. Case 16-CA-4807 October 11, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge and amended charge filed on June 2 and 26, 1972, respectively, by Laborers' Inter- national Union of North America, Local Union No. 648, AFL-CIO and International Union of Operating Engineers, Local Union No. 819, AFL-CIO, herein called the Union, and duly served on Texas Indus- tries, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16, issued a com- plaint on June 30, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning 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, 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 alleges in substance that on May 16, 1972, following a Board election in Case 16-RC-5921, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about June 30, 1972, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Un- ion has requested and is requesting it to do so. Subse- quently, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 14, 1972, counsel for the General Coun- sel filed directly with the Board a Motion for Summa- ry Judgment. Subsequently, on July 20, 1972, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- 'Official notice is taken of the record in the representation proceeding, Case 16-RC-5921, 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 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. eral Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a re- sponse to Notice To Show Cause. 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 au- thority 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 The Respondent's answer and response admits, in substance, all the factual allegations of the com- plaint, including its refusal to recognize and bargain with the Union, but denies, in effect, the appropriate- ness of the Chalk Hill plant unit and the propriety of the joinder of Local 819 with Local 648 in the repre- sentation case, 16-RC-5921. The, General Counsel contends that all issues raised by the Respondent have been decided by the Board in the underlying repre- sentation case and may not be relitigated here. Ac- cordingly, he argues that he is entitled to summary judgment as a matter of law. We agree. The record in the underlying representation case shows that, following a hearing, the Regional Director in his Decision and Direction of Election of April 12, 1972, affirmed the Hearing Officer's findings that joinder of Locals 819 and 648 was proper since there was a sufficient showing of interest and since there was no showing of any harm to the Respondent by the joinder. As to the unit, Respondent's position, in effect, was that four separate department units in the Chalk Hill plant, rather than a single-plant unit, would be appropriate especially in view of the fact that Local 819 had been previously certified for the four separate department units. In finding appropriate a single- plant unit, the Regional Director found, in effect, that the separate department certifications did not make such plant unit inappropriate in view of the facts that the certifications arose from a consent-election agree- ment, there was no effectual bargaining on a separate department basis, and no labor organization sought a separate department unit. The Respondent timely filed with the Board a Request for Review in which it again raised the join- der and unit issues. By telegraphic order, dated April 27, 1972, the Board denied the request because it failed to raise substantial issues warranting review. Thereafter, a secret ballot election was held on May 8, 1972, in which the Union received a majority of the votes cast by the employees in the single-plant unit. On May 16, 1972, the Union was certified as the ex- clusive bargaining representative of the employees in the appropriate Chalk Hill plant unit. 199 NLRB No. 103 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is well settled that in the absence of newly discovered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding alleg- ing a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigat- ed in a prior representation proceeding .2 All issues raised by the Respondent in this pro- ceeding 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 al Union of Operating Engineers, Local Union No. 819, 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 The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Employer's Chalk Hill Road plant, Dallas, Texas, including laboratory employees and in- spectors, exclusive of all office clerical employ- ees, fleet truckdrivers, truck mechanics, temporary employees, part-time students, and guards, watchmen, and supervisors as defined in the Act. I. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and ex- isting by virtue of the laws of, the State of Delaware, maintaining its principal office and places of business in Dallas, Texas, and various other plants, places of business, warehouses, and other facilities in the States of Texas, Louisiana, and Oklahoma, and is, and has been at all times material herein, engaged at said plants and locations in the manufacture, sale, and distribution of building materials including ready-mix concrete, masonry products, structural concrete, and related products. During the past 12 months, Respon- dent, in the course and conduct of its business opera- tions, manufactured, sold, and distributed at its facilities products valued in excess of $500,000, of which products valued in excess of $50,000 were ship- ped from said facilities to States other than Texas. We find, on the basis of the foregoing, that Re- spondent 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 juris- diction herein. H. THE LABOR ORGANIZATION INVOLVED Laborers' International Union of North Ameri- ca, Local Union No. 648, AFL-CIO and Internation- 2 See Pittsburgh Plate Glass Co. v. NLR.B., 313 U.S. 146, 162 (1941); NLRB Rules and Regulations, Secs. 102.67(1) and 102.69(c). 2. The certification On May 8, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 16, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit of May 16, 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 June 19, 1972, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about June 30, 1972, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since June 30, 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, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. TEXAS INDUSTRIES, INC. 673 N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce 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 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 appro- priate unit, and, if an understanding is reached, em- body such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Texas Industries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Laborers' International Union of North America, Local Union No . 648, AFL-CIO and Inter- national Union of Operating Engineers, Local Union No. 819, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Employer's Chalk Hill Road plant, Dallas, Texas, including laboratory employees and inspectors , exclu- sive of all office clerical employees , fleet truckdrivers, truck mechanics, temporary employees, part-time stu- dents, and guards, watchmen and supervisors as de- fined 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 May 16, 1972 , the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 30, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respon- dent 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 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 Rela- tions Board hereby orders that Respondent, Texas Industries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and condi- tions of employment, with Laborers' International Union of North America, Local Union No. 648, AFL-CIO and International Union of Operating En- gineers, Local Union No. 819, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees at the Employer's Chalk Hill Road plant, Dallas, Texas, including laboratory employees and in- spectors, exclusive of all office clerical employ- ees, fleet truckdrivers, truck mechanics, temporary employees, part-time students, and guards, watchmen, 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 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Chalk Hill Road plant, Dallas, Texas, copies of the attached notice marked "Appen- dix.", Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be post- ed by Respondent immediately upon' receipt thereof, and be maintained by it for 60 consecutive days there- after, 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 date of this Order, what steps the Respondent has taken to comply here- with. 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." 819, 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 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 de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, em- body such understanding in a signed agreement. The bargaining unit is: All production and maintenance employ- ees at the Employer's Chalk Hill Road plant, Dallas, Texas, including laboratory employees and inspectors, exclusive of all office clerical employees, fleet truckdrivers, truck mechanics, temporary employees, part-time students, and guards, watchmen, and supervisors as defined in the Act. TExAS INDUSTRIES, INC. (Employer) 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 terms and conditions of employment with Labor- ers' International Union of North America, Lo- cal Union No. 648, AFL-CIO and International Union of Operating Engineers, Local Union No. Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 8A24, 819 Taylor Street, Fort Worth, Texas 76102, Tele- phone 817-334-2921.