Valley Rock Products, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Valley Rock Products, Inc. and Operating Engineers Local Union No. 3, International Union of Operat- ing Engineers, AFL-CIO. Case 20-CA-12494 December 5, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY Upon a charge filed on February 18, 1977, by Operating Engineers Local Union No. 3, Interna- tional Union of Operating Engineers, AFL-CIO, herein called the Union, and duly served on Valley Rock Products, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint and notice of hearing on March 28, 1977, against Respondent, alleging that 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, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on November 19, 1976, following a Board election in Case 20-RC- 13334 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about November 24, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represen- tative, although the Union has requested and is requesting it to do so. On April 5, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent denied that it has refused upon request to bargain with the Union since November 24, 1976, within the meaning of Section 8(a)(1) and (5) of the Act. Respondent also denied that a majority of its employees in the unit found appropriate selected the Union as their representative for the purposes of collective bargaining in the secret ballot election held on July 27, 1976, and contends that the said election in any event was invalid. Respondent denied that on or about November 24, 1976, when it refused to bargain collectively with the Union, and continuous- ly thereafter, the Union was, and continues to be, the duly designated exclusive collective-bargaining rep- ' Official notice is taken of the record in the representation proceeding, Case 20-RC 13334. as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Senes 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4, 233 NLRB No. 142 resentative of the employees in the unit found appropriate. Respondent further asserts that the Board improperly certified the Union as the exclu- sive collective-bargaining representative of the em- ployees in the unit found appropriate since the Board failed to uphold Respondent's meritorious objections to the election and/or failed to hold a hearing on the objections and challenged ballots determinative of the results of the election in dispute. On April 22, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 16, 1977, 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 its response to the Notice To Show Cause, Respondent attacks the Union's certification on the basis of preelection conduct by the Union, which Respondent alleges improperly influenced the results of the election, and also alleges that the challenge to the ballot of a voter was improperly sustained. Review of the record herein reveals that, pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 20 in Case 20-RC-13334, an election was held on February 27, 1976, in which a majority of the votes cast were against the Union. The Union filed timely objections to the conduct of the election and conduct affecting the results of the election. Thereaf- ter, the Regional Director approved a stipulation entered into by Respondent and the Union which provided that the election held on February 27, 1976, be set aside and a new election be conducted in the appropriate unit. Pursuant to the stipulation, a rerun election was conducted on July 27, 1976, in which the challenged ballots were sufficient in number to affect the results of the election. On August 2, 1976, Respondent filed timely objections to conduct affecting the results of the election. Following an investigation the Regional Director issued and served on the parties a report on objections and challenged 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follen Corp., 164 NLRB 378 (196%7), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 962 VALLEY ROCK PRODUCTS, INC. ballots that recommended the objections be over- ruled in their entirety, that the challenges to the ballots be sustained, and that the Union be certified as bargaining representative of Respondent's em- ployees. Thereafter, Respondent filed exceptions and supporting brief and the Union filed a brief in support of the Regional Director's report and recommendations with the Board. On November 19, 1976, a three-member panel of the Board issued a Decision and Certification of Representative in the unit found appropriate. Following a request by the Union on or about November 24, 1976, that Respondent bargain collec- tively in good faith with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, Respondent refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of its employees in the certified bargaining unit. In response to a Motion for Summary Judgment, an adverse party may not rest upon denials in its pleadings, but must present specific facts which demonstrate that there are material facts in issue which require a hearing. 2 Respondent in the instant case presented no material issues or facts not admitted or previously determined. 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.3 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 2 Western Electric Company, Hawthorne Works, 198 NLRB 623 (1972). 3 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(0 and 102.69(c). 4 Member Murphy notes that in its Opposition to Motion for Summary Judgment, Respondent contends, inter alia, that there is no basis in the legislative history of the Act for summary judgment and the Board's summary judgment procedure is contrary to procedural due process; that it has a statutory right to a hearing in this proceeding; that it has been denied due process; that a quorum of the Board has never considered Respondent's "requests for review"; and that the Board has never reviewed all the evidence submitted by the Respondent to the Regional Director. She finds no ment to any of these contentions. As to the last of these contentions, Respondent apparently has reference to certain affidavits submitted to the Regional Director in support of its objections in the representation case (and to the Board for the first time as attachments to its opposition to the General Counsel's Motion for Summary Judgment). It is well established, with court approval, that affidavits (or other materials) related to the representation matter which were before the Regional Director in his or her disposition of election objections are not part of the record in either the representation case or in the related unfair labor practice proceeding. Prestolite Wire Division, Eltra Corporation, 226 NLRB 327 (1976). See, e.g., Golden Age Beverage Company, 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969), and other court cases cited in fn. I herein. See also Sec. 102.68 and 102.69(g) of the Board's Rules and Regulations, Senes 8, as amended. As for the remaining contentions of the Respondent, in adopting the Regional Director's recommendations concerning the objections and 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. 4 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is a California corporation with facilities located at Orland and Red Bluff, California, and is engaged in both the retail and nonretail business of sand gravel production and sales and land leveling. During the last fiscal calendar year, the Respondent had gross revenues in excess of $500,000 and purchased goods or services valued in excess of $50,000 directly from suppliers located outside the State of California. 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 Operating Engineers Local Union No. 3, Interna- tional Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. challenged ballots, the Board necessarily found that there were no substantial or material issues warranting a hearing. Pointe Enterprises, Inc., 223 NLRB 822 (1976). Furthermore, it is well settled that parties do not have an absolute right to a hearing and the denial of a hearing, where the objections raise no substantial or material issues, does not constitute a denial of due process. Allied Meat Company, 220 NLRB 27 (1975); GTE Lenkurt, Incorporated 218 NLRB 929 (1975). Member Murphy finds that, similarly, Respondent's request for a hearing in this proceeding is without merit, as evidentiary hearings are not required in unfair labor practice cases and summary judgment is appropriate where, as here, there are no properly litigable issues of fact to be resolved. Prestolite Wire Division, Eltra Corporation, 225 NLRB 1 (1976). In this connection, the Board's authonty to utilize summary judgment procedures is well established and no court has questioned the use of these piocedures even in those cases in wvhich, as here, the Board has decided issues relating to objections without holding an evidentiary hearing. Lipman Motors, Inc., 187 NLRB 346, 347 (1970). See also Lyman Printing and Finishing Company, 183 NLRB 1048 (1970), and cases cited therein. Finally, with respect to the quorum argument of Respondent, Member Murphy notes that the Board has statutory authority to delegate to three or more of its members any or all powers which it may itself exercise (Sec. 3(b) of the Act), three members constitute a quorum of the Board (five members), and three members personally participated in the Decision and Certification of Representative that issued in the underlying representation matter. Heavenly Valley Ski Area, a California Corporation, et al., 215 NLRB 734, 735 (1974). 963 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 employees employed by the Respondent at Red Bluff and Orland, California, excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. 2. The certification On July 27, 1976, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 20, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on November 19, 1976, 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 November 24, 1976, and at all times thereafter, the Union has requested 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 November 24, 1976, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since November 24, 1976, 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 Valley Rock Products, Inc., 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 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 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 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Valley Rock Products, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Operating Engineers Local Union No. 3, International Union of Operating Engineers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by Respondent at Red Bluff and Orland, California, excluding office clerical employees, salesmen, 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. Since November 19, 1976, 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 November 24, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- 964 VALLEY ROCK PRODUCTS, INC. ees of Respondent in the appropriate unit, Respon- dent 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)( ) 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 the Respondent, Valley Rock Products, Inc., Red Bluff and Orland, California, its officers, agents, successors, and as- signs, 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 Operating Engineers Local Union No. 3, International Union of Operat- ing Engineers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees employed by Respondent at Red Bluff and Orland, California, excluding office clerical employees, salesmen, guards, and supervi- sors 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 Red Bluff and Orland, California, locations copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it 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 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I 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 terms and conditions of employment with Operat- ing Engineers Local Union No. 3, International Union of Operating Engineers, 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 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 employees employed by the Respon- dent Employer at Red Bluff and Orland, California, locations, excluding office cleri- cal employees, salesmen, guards, and super- visors as defined in the Act. VALLEY ROCK PRODUCTS, INC. 965