Corum & Edwards, Inc.

668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Madisonville Concrete Co., A Division of Corum & Edwards, Inc. and Chauffeurs, Teamsters and Help- ers, Local No. 215, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case 9-CA-8900 September 25, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO Upon a charge filed on October 29, 1974, by Chauffeurs, Teamsters and Helpers, Local No. 215, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Madisonville Concrete Co., A Division of Corum & Edwards, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a complaint on December 13, 1974, against Respon- dent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, com- plaint, and notice of hearing before an Administra- tive Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on June 11, 1974, fol- lowing a Board election in Case 9-RC-10219 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about October 17, 1974, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On December 23, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and on April 11, 1975, filed its amended answer? Official notice is taken of the record in the representation proceeding, Case 9-RC-10219, as the term "record " is defined in Secs 102.68 and 102 69(g) of the Board 's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd 388 F 2d 683 (C.A 4, 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), Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A 7, 1968), Sec 9(d) of the NLRA 2 The parties stipulated to incorporate by reference in the record of this case the transcript of the proceedings in Case 9-RC-10219, the stipulation further provides that if the instant case is presented to a United States On June 17, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 30, 1975, 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 statement opposing the Motion for Summary Judg- ment and subsequently a response 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 In its amended answer to the complaint and plead- ings opposing summary judgment and in response to the Notice To Show Cause, Respondent contests the validity of the certification on the basis that the labo- ratory conditions prior to and during the election were disturbed by union conduct outlined in Respondent's objections to the election and that the material issues of fact surrounding the objectionable conduct still remain and must be resolved by afford- ing Respondent a fair administrative hearing. Our review of the record, including that of the rep- resentation case, reveals that an election was held on September 26, 1973, pursuant to a Stipulation for Certification Upon Consent Election. The tally of ballots showed there were five votes cast for the Union and two against, and one challenged ballot. Respondent filed timely objections, alleging in sub- stance that the Union had offered financial induce- ment to employee Phillips by taking care of a traffic ticket issued to him immediately following his depar- ture from the union hall; that the Union's actions toward Phillips represented to other unit employees that the Union could secure other benefits for them outside of work; that the Union represented if it won the election a union shop would result; and that the Union offered to waive initiation fees for all mem- bers of the unit who joined the Union prior to the election. Respondent also alleged that by these and other acts the Union misled employees and instilled fear of reprisal all of which impaired a free choice in the election. Following an investigation, the Acting Regional Director for Region 9 issued on January 2, 1974, a circuit court of appeals for enforcement such transcript shall be filed as a part of the record of this case . Respondent amended its answer to omit its prior reference to attaching the transcript to its answer. 220 NLRB No. 100 MADISONVILLE CONCRETE CO. Report on Election, Objections to Election and Rec- ommendation to the Board in which he recommend- ed all the objections be overruled and the appropri- ate certification issue . Respondent filed with the Board exceptions asking that the election be set aside and a new election conducted. Respondent also re- quested a hearing be held on its objections and ex- ceptions. On February 5, 1974, the Board ordered a hearing be conducted on the issues raised by Respondent's objection that the Union offered finan- cial inducement to employee Phillips. Thereafter, an evidentiary hearing was held at which the Respon- dent was represented by counsel. On April 9, 1974, the Hearing Officer issued his Report and Recom- mendations on Objections to Election in which he concluded the Union had not engaged in conduct which interfered with the employees' free and un- trammeled choice in the election and recommended the Respondent's objection be overruled and the Union certified. The Respondent then filed with the Board exceptions and a brief to the Hearing Officer's report. On June 11, 1974, the Board issued a Deci- sion and Certification of Representative in which, af- ter reviewing the Hearing Officer's rulings, the Board found they were free from prejudicial error and af- firmed them, and in which, after reviewing the entire record, it adopted the findings, conclusions, and rec- ommendations of the Acting Regional Director and the Hearing Officer, who between them recommend- ed that all the objections be overruled. The Board then certified the Union. Thereafter, Respondent filed with the Board a mo- tion to reconsider its Decision and Certification of Representative, contending that the Board must re- consider the case in the light of the Supreme Court decision in N.L.R.B. v. Savair Manufacturing Com- pany.3 On June 28, 1974, this motion was denied by the Board as it raised no matters not previously con- sidered and, therefore, lacked merit. It thus appears that Respondent has raised contentions with respect to all its objections in the representation proceeding and has participated with counsel in a hearing with respect to the objection concerning union financial assistance to employee Phillips. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior '414 U.S. 270 (1973). 4See Pittsburgh Plate Glass Co v. N.L.RB., 313 U.S 146, 162 (1941); Rules and Regulations of the Board , Secs 102.67(f) and 102.69(c). 669 representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision 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. Respondent now urges that, before it can be found to have engaged in unfair labor practices, due pro- cess requires that it be afforded an adversary hearing before an Administrative Law Judge, that summary judgment may not be entered because there are is- sues of material fact remaining to be determined, and that it has not yet had a fair hearing.' During the course of the representation proceeding all parties were afforded the opportunity to be heard. Prior to adopting the findings, conclusions, and recommen- dations of the Acting Regional Director and the Hearing Officer, the Board considered the Acting Regional Director's report, the Respondent's excep- tions thereto, the Hearing Officer's report based on an evidentiary hearing, the exceptions, the briefs, and the entire record in the case. In adopting the recom- mendations of both the Acting Regional Director and the Hearing Officer, the Board necessarily found that Respondent's objections and exceptions had not raised substantial or material issues warranting fur- ther hearing. Respondent now raises those same is- sues raised in the representation case in an attempt to obtain a hearing, but it is well settled that there is no requirement that an evidentiary hearing must be held where there are no substantial or material issues .6 In situations such as this, where the issues raised have been previously considered and there are no other material issues of fact warranting a hearing, summary judgment is appropriate.' We shall accord- ingly grant the Motion for Summary Judgment. There is no merit in Respondent's contention that the hearing before a Hearing Officer is not sufficient and that it has not had a fair and impartial hearing on its objections. The Hearing Officer made recommendations to the Board following an administrative hearing comporting with the Board's Rules and Regulations. See Board Rules and Regulations, Secs. 102.69(f) and 102.64-66. Prior to certifying the Union the Board found that the par- ties were afforded full opportunity to be heard, to examine and cross-exam- ine witness, and to introduce evidence In the representation proceeding the Hearing Officer was the appropriate person to hear the issues. See Interna- tional Telephone & Telegraph Corp., Communications Equipment & Systems Division v. Local 134, International Brotherhood of Electrical Workers, AFL- CIO, et al 419 U.S 428 (1975). 6 Respondent must make a prima facie showing of substantial and materi- al issues to be entitled to a hearing before an Administrative Law Judge in an unfair labor practice proceeding Respondent's objections and excep- tions raised below were not substantial or material issues and they do not become substantial or material merely by being raised in this unfair labor practice proceeding . Respondent's due process claim is therefore without merit. Janler Plastic Mold Corporation, 191 NLRB 162 (1971) 7 Wells Fargo Alarm Services, a Division of Baker Industries, Inc., 218 NLRB No. 25 (1975). 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the entire record , the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Madisonville Concrete Co., A Division of Corum & Edwards, Inc., is a Kentucky corporation engaged in the production and sales of concrete at its Madi- sonville, Kentucky, plant. During the last 12 months, a representative period, Respondent purchased goods valued in excess of $50,000 from suppliers lo- cated within the State of Kentucky who received such supplies in interstate commerce directly from suppliers located outside the State of Kentucky. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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. If. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters and Helpers, Local No. 215, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the mean- ing 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 truck drivers, mechanics, loader operators and batch plant operators, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On September 26, 1973, a majority of the employ- ees of Respondent in said unit , in a secret ballot elec- tion conducted under the supervision of the Regional Director for Region 9, 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 June 11, 1974, 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 October 6, 1974, 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 October 17, 1974, 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 October 17, 1974, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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, inti- mate, 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 mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected 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 MADISONVILLE CONCRETE CO. Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett 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. Madisonville Concrete Co., A Division of Co- rum & Edwards, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters and Helpers, Local No. 215, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All truck drivers, mechanics, loader operators and batch plant operators, excluding all office cleri- cal employees, 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. Since June 11, 1974, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 October 17, 1974, 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 Re- spondent in the appropriate unit, Respondent has en- gaged 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees 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 mean- ing 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 Re- 671 lations Board hereby orders that Respondent, Madi- sonville Concrete Co., A Division of Corum & Ed- wards, Inc., Madisonville, Kentucky, 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 con- ditions of employment with Chauffeurs, Teamsters and Helpers, Local 215, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All truck drivers, mechanics, loader operators and batch plant operators, excluding all office clerical employees, professional employees, guards, 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 Madisonville, Kentucky, plant cop- ies of the attached notice marked "Appendix." 8 Cop- ies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able 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 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 8In the event that this Order is enforced by a Judgment of a United States Court of Appea!s, 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." 672 DECISIONS OF 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 Chauffeurs, Teamsters and Helpers, Local No. 215, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive repre- sentative 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, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All truck drivers, mechanics, loader operators and batch plant operators, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. MADISONVILLE CONCRETE CO., A DIVISION OF CORUM & EDWARDS, INC.