Centex Construction Company, Inc.

CENTEX CONSTRUCTION COMPANY, INC. 229 Centex Construction Company, Inc. and Internation- al Union of Operating Engineers, Local 624, AFL-CIO. Case 15-CA-8024 May 29, 1981 DECISION AND ORDER Upon a charge filed on February 3, 1981, by In- ternational Union of Operating Engineers, Local 624, AFL-CIO, herein called the Union, and duly served on Centex Construction Company, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 15, issued a complaint on February 6, 1981, 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 and complaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on November 12, 1980, following a Board election in Case 15- RC-6665, the Union was duly certified as the ex- clusive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about January 29, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On Febru- ary 18, 1981, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 23, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 27, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: Official notice is taken of the record in the representation proceed- ing, Case 15-RC-6665, 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 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 256 NLRB No. 41 Ruling on the Motion for Summary Judgment In its response to the Notice To Show Cause, Respondent argues, inter alia, that summary judg- ment should be denied herein inasmuch as no hear- ing was held on its objection that, in the days pre- ceding the election, the Union distributed errone- ous, misleading information regarding the salaries of certain alleged company representatives. We find no merit in this argument. The record in Case 15-RC-6665 clearly establishes that Respondent failed to present a prima facie showing that the al- leged objectionable conduct occurred. According- ly, the Regional Director for Region 15 properly recommended that Respondent's objection be over- ruled. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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.s All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence,3 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation engaged in the construction business, with a jobsite at the NASA Space Technology Laboratory facility in Bay St. Louis, Mississippi. During the past 12 months, a representative period, Respondent pur- chased and received goods and materials valued in excess of $50,000 which were shipped directly to it from points outside the State of Mississippi. 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 2 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 3 Respondent's contention that the completion of one of its projects constitutes "previously unavailable evidence" is hereby rejected. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local 624, 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 Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All operating engineers and mechanics em- ployed by Respondent at its construction site at the NASA Space Technology Laboratory facility in Bay St. Louis, Mississippi, including back hoe operator, crane operator and bobcat operator; excluding truck drivers, office cleri- cal employees, guards and supervisors as de- fined in the Act. 2. The certification On October 2, 1980, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 15, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on November 12, 1980, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about December 19, 1980, 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 January 29, 1981, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 29, 1981, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. 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 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 certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Centex Construction Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 624, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All operating engineers and mechanics em- ployed by Respondent at its construction site at the NASA Space Technology Laboratory facility in Bay St. Louis, Mississippi, including back hoe op- erator, crane operator and bobcat operator; exclud- ing truck drivers, office clerical employees, guards and supervisors as defined in the Act, constitute a CENTEX CONSTRUCTION COMPANY, INC. 231 unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since November 12, 1980, 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 29, 1981, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 Re- lations Board hereby orders that the Respondent, Centex Construction Company, Inc., Bay St. Louis, Mississippi, 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 International Union of Operating Engineers, Local 624, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All operating engineers and mechanics em- ployed by Respondent at its construction site at the NASA Space Technology Laboratory facility in Bay St. Louis, Mississippi, including back hoe operator, crane operator and bobcat operator; excluding truck drivers, office cleri- cal employees, guards and supervisors as de- fined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its construction site at the NASA Space Technology Laboratory facility in Bay St. Louis, Mississippi, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous 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 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 4 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 Pursu- ant 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 International Union of Operating Engi- neers, Local 624, AFL-CIO, as the exclusive representative of the employees in the bargain- ing unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All operating engineers and mechanics em- ployed at our construction site at the NASA Space Technology Laboratory facility in Bay St. Louis, Mississippi, including back hoe operator, crane operator and bobcat op- erator; excluding truck drivers, office cleri- cal employees, guards and supervisors as de- fined in the Act. CENTEX CONSTRUCTION COMPANY, INC.