Martin Marietta Cement

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin Marietta Cement, Southern Division and United Cement, Lime and Gypsum Workers Inter- national Union, AFL-CIO, Local No. 537. Case 10-CA-10787 December 4, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on July 5, 1974, by United Ce- ment, Lime, and Gypsum Workers International Union, AFL-CIO, Local No. 537, herein called the Union, and duly served on Martin Marietta Cement, Southern Division, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, is- sued a complaint on July 19, 1974, against Re- spondent, 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)(7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Ad- ministrative 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 conducted pursuant to an Agreement for Consent Election in Case 10-RC-9901, the Union was duly certified as the exclu- sive collective-bargaining representative of Respon- dent's employees in the unit found appropriate;' and that, commencing on or about June 18, 1974, and at all times thereafter, Respondent has refused, and contin- ues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, and to provide the Union with certain pertinent informa- tion although the Union has requested and is request- ing it to do so. On July 31, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and requesting a hearing. On August 14, 1974, counsel for the General Coun- sel filed directly with the Board a Motion for Summary Judgment asserting that Respondent was attempting to relitigate issues previously litigated in the representa- tion proceeding. Subsequently, on August 26, 1974, the I Official notice is taken of the record in the representation proceeding, Case 10-RC-9901, as the term "record" is defined in Secs 102.68 and 102 69(1) of the Board's Rule and Regulations, Series 8, as amended See 'LTVElectrosystems, 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, 1957); Follett Corp, 164 NLRB 378 (1967), enfd. 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, entitled Answer 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 answers to the complaint and to the Notice To Show Cause, the Respondent attacks the validity of the Union's majority status and certification on the ground that the Regional Director arbitrarily and capriciously overruled its election objections and its request for a hearing on the factual issues raised thereby. Our review of the record in the representation case, 10-RC-9901, indicates that, in an election conducted pursuant to an Agreement for Consent Election, the vote was 86 to 81 in favor of the Union, with 5 ballots challenged. The Respondent filed timely objections al- leging, in substance, that the day before the election, the Union distributed a handbill containing numerous misrepresentations of material facts concerning, inter alia, wages rates, bonuses, and sick and accident bene- fits; and that the Respondent did not have time to reply to such matters, which were within the Union's special knowledge, and that therefore it was entitled to a hear- ing thereon. Following an administrative investigation, on June 11, 1974, the Regional Director issued a Re- port on Challenged Ballots' and Objections and Cer- tification of Representative in which he found, inter aliq, that, while the union handbill did contain mis- representations, their impact on the voting em- ployees was not so substantial to justify setting aside the election, and therefore he certified the Union. Respondent now reasserts its objections, arguing that a hearing is necessary to assess the impact of the Union's handbill on the voting employees. Respondent, however, does not allege special circumstances and does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence in support of its contention, but rather it basically disagrees with the Regional Director's resolution of the objections and denial of a hearing thereon. Having raised and litigated before the Regional Director the objections, and the 2 The Regional Director ruled that the challenges to two of the five challenged ballots should be sustained and that therefore the remaining three challenged ballots, as to which challenges were overruled , could not affect the results of the election This ruling is not contested by the Respond- ent in this proceeding 215 NLRB No. 42 MARTIN MARIETTA CEMENT necessity of a hearing thereon, Respondent' may not relitigate those issues before the Board in this proceeding.' Further, the election was conducted pur- suant to an Agreement for Consent Election which specifies that the Regional Director's determinations are final and binding. It is Board policy not to under- take the review of the merits of such determinations unless it is shown that there has been fraud, miscon- duct, or such gross mistakes as to imply bad faith and support a conclusion that the Regional Director's rul- ings were arbitrary and capricious.' On the record herein and contrary to the contentions of the Respond- ent, we are unable to conclude that the Regional Direc- tor's determinations in the underlying representation case were arbitrary or capricious. Thus it appears that Respondent is attempting to relitigate issues which it raised and litigated, or could have raised and litigated, in the representation case before the Regional Director, without offering newly discovered or previously unavailable evidence or alleg- ing special circumstances. Further, it does not show that the Regional Director's determinations, which it agreed were final and binding, were arbitrary or capri- cious. Accordingly, the General Counsel's Motion for Summary Judgment is granted. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Martin Marietta Cement, Southern Division, is a Delaware corporation with an office and plant located in Roberta, Alabama, where it is engaged in the manu- facture of cement. During the past calendar year, which period is representative of all times material hereto, Respondent sold and shipped from its Roberta, Alabama, plant, cement and cement products valued in excess of $50,000 directly to customers outside the State of Alabama. We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. 3 See Pittsburgh Plate Glass Co v NL RB., 313 U S 146 , 162 (1941), Rules and Regulations of the Board , Secs 102 67(1) and 102 69(c) Re- spondent also asserts that the Regional Director did not rule on whether the statement in the union handbill that the Union never levied an assessment on any of its members was true or false This was a matter that could have been raised before the Regional Director but was not and therefore may not be relitigated 4 Vanella Buick Opel, Inc, 196 NLRB 215 (1972), and cases cited in fn 4 therein II THE LABOR ORGANIZATION INVOLVED 249 United Cement, Lime and Gypsum Workers Inter- national Union, AFL-CIO, Local No. 537, 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 consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding truck drivers, laboratory employees, plant clerical employees and storeroom employees em- ployed at the Employer's Roberta, Alabama, plant, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On March 21, 1974, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 10, designated the Union as their represen- tative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective- bargaining representative of the employees 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 June 18, 1974, and at all times thereafter, the Union has requested the Respond- ent to bargain collectively with it as the exclusive col- lective-bargaining representative of all the employees in the above-described unit and to provide it with a list of classifications, the number of employees in each clas- sification, and the rates of pay of the employees in the unit set forth above. Commencing on or about June 27, 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, and to supply the pertinent information requested by it. Accordingly, we find that the Respondent has, since June 27, 1974, and at all times thereafter, refused to 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit and refused to supply pertinent information requested by it, 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. 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 operations de- scribed 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, bar- gain collectively with the Union as the exclusive rep- resentative of all employees in the appropriate unit, and, if an understanding is reached, embody such un- derstanding in a signed agreement., In order to insure that the employees in the appropri- ate 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 begin- ning on the date 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 (1962); Com- merce 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 Com- pany, 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. Martin Marietta Cement, Southern Division, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Cement, Lime and Gypsum Workers In- ternational Union, AFL-CIO, Local No. 537, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, in- cluding truck drivers, laboratory employees, plant clerical employees and storeroom employees employed at the Employer's Roberta, Alabama, plant, but ex- cluding all office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since June 11, 1974, the above-named labor organ- ization has been and now is the certified and exclusive representative of all employees in the aforesaid appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 27, 1974, 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, and supply the pertinent informa- tion requested, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain and supply information, Respondent has interfered with, re- strained, and coerced, and is interfering with , restrain- ing, 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 meaning of Section (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 Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Martin Marietta Cement, Southern Division, 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 United Cement, Lime and Gyp- sum Workers International Union, AFL-CIO, Local No. 537, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, in- cluding truck drivers, laboratory employees, plant clerical employees and storeroom employees em- ployed at the Employer's Roberta, Alabama, plant, but excluding all office clerical employees, professional employees , guards, and supervisors as defined in the Act. (b) Refusing to provide the Union with pertinent information regarding the list of classifications, the MARTIN MARIETTA CEMENT 251 number of employees in each classification, and the rates of pay of the employees in the unit described above. (c) 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect 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. (b) Post at its Roberta, Alabama, facility copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 10 after being duly signed by Respon- dent's representative, 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 al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 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 con- cerning rates of pay , wages, hours, and other terms and conditions of employment with United Ce- ment, Lime and Gypsum Workers International Union, AFL-CIO, Local No. 537, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to provide the Union with pertinent information regarding the list of classifi- cations, the number of employees in each classifi- cation, and the rates of pay of the employees in the appropriate unit. WE WILL NOT in any like or related manner inter- fere 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 representative 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 under- standing in a signed agreement . The bargaining unit is: All production and maintenance employees, in- cluding truck drivers, laboratory employees, plant clerical employees and storeroom em- ployees employed at the Employer's Roberta, Alabama, plant, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. MARTIN MARIETTA CEMENT, SOUTHERN DIVISION