Round Rock Lime Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Round Rock Lime Company and International Union of Operating Engineers, Local 819, AFL- CIO. Case 16-CA-10141 February 25, 1982 BY MIMBIRS FANNING, JIENKINS, ANI) ZIMMERMAN DECISION AND ORDER Upon a charge filed on October 23, 1981, by In- ternational Union of Operating Engineers, Local 819, AFL-CIO, herein called the Union, and duly served on Round Rock Lime Company, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 16, issued a complaint on No- vember 10, 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 September 11, 1981, following a Board election in Case 16- RC-8266, 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 October 15, 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 Novem- ber 20, 1981, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On December 10, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 15, 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. I official notice is taken of the record in the representation proceed- ing. Case 16-RC-8266, 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), Interrype Co. v Pencillo. 269 F.Supp 573 (D.C.Va. 1967); Follett Corp.. 164 NLRB 378 (1967), enfd. 197 F2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended 260 NLRB No. 57 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 answer to the complaint and its response to the Notice To Show Cause, Respondent attacks the validity of the Union's certification because of the alleged erroneous resolution of its objections to the election in Case 16-RC-8266. Review of the record herein, as well as that of Case 16-RC-8266, reveals that on March 6, 1981, an election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally of ballots showed that 38 votes were cast for, and 37 votes were cast against, the Union. There was one challenged ballot which was sufficient to affect the results of the election. Respondent timely filed objections to conduct affecting the results of the election, alleging that, the Union and its agents threatened employees with physical violence, finan- cial harm, and deportation, and made material mis- representations which warranted setting aside the election. After an investigation, the Regional Di- rector issued a Report on Objections and Chal- lenged Ballot in which he sustained the challenge to the one outstanding ballot, overruled Respond- ent's objections, and recommended that the Union be certified. In overruling Respondent's objections, the Regional Director found, inter alia, that the evidence of objectionable threats presented by Re- spondent could not be attributed to the Union. The Regional Director also found that the Union had made no material misrepresentations but that, even if it had, the Employer had time to rebut those statements. Thereafter, Respondent timely filed exceptions to the Report on Objections and Challenged Ballot, alleging that the Regional Director erred in deter- mining that the Union had not engaged in threats and material misrepresentations and contending that the Regional Director's failure to order a hear- ing on its objections constituted a denial of due process. On September 11, 1981, the Board issued a Decision and Certification of Representative in which it adopted the findings and recommenda- tions of the Regional Director. 2 I2 he Board disavowed the Regional Director's reliance on the subjec- tise effect on the employees' state of mind in finding that the alleged ob- jectionahle conduct did not interfere with the employees' free choice in the election. The Board further noted that the Employer's exceptions did not raise material or substantial issues of fact which would warrant either a reversal of the Regional Director's findings and recommendations, or a Continued 448 ROUND ROCK LIME COMPANY As reflected in its answer to the complaint, and its response to the Notice To Show Cause, Re- spondent's defense to the alleged violations of Sec- tion 8(a)(5) and (1) is that the Board erroneously overruled its objections to conduct affecting the re- sults of the election or, in the alternative, errone- ously failed to order a hearing thereon. However, these matters were raised and fully considered by the Board in the underlying representation pro- ceeding and were resolved adversely to Respond- ent. 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. ' 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, 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 1. THE BUSINESS OF RESPONDENT Respondent, a Texas corporation with its princi- pal place of business in Blum, Texas, is engaged in the operation of a lime processing plant. During the past 12-month period, Respondent, in the course and conduct of its business operations at its Blum, Texas, facility, has shipped and sold goods valued in excess of $50,000 to customers within the State of Texas who, in turn, have shipped and sold goods or services valued in excess of $50,000 di- rectly to customers located outside the State of 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 jurisdiction herein. hearing. (Decision and Certification of Represeltaive not included in volumes of Board Decisions) 3 See Pittrburgh Plate Glass Co v N-L. R., 313 US 146, 162 (1941). Rules and Regulations of the Board, Sees 102 67() and 102 69(c) I1. THE L ABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local 819, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. IlI. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. 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 full-time production and maintenance em- ployees including laboratory employees em- ployed by the Employer at its Blum, Texas fa- cility, excluding all clerical, office and profes- sional employees, guards, watchmen and su- pervisors as defined in the Act. 2. The certification On March 6, 1981, 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 16, 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 September 11, 1981, 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 May 5, 1981, and at all times thereafter, the Union has requested Respond- ent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about October 15, 1981, 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 representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since October 15, 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. 449 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 1, 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: CONCI USIONS OF LAW I. Round Rock Lime Company is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 819, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time production and maintenance em- ployees including laboratory employees employed by the Employer at its Blum, Texas facility, ex- cluding all clerical, office and professional employ- ees, guards, watchmen and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since September 11, 1981, 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 October 15, 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)(l) 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, Round Rock Lime Company, Blum, Texas, its offi- cers, 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 conditions of employment with International Union of Operating Engineers, Local 819, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All full-time production and maintenance em- ployees including laboratory employees em- ployed by the Employer at its Blum, Texas fa- cility, excluding all clerical, office and profes- sional employees, guards, watchmen and su- pervisors as defined 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. 450 ROUND ROCK LIME COMPANY (b) Post at its Blum, Texas, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Di- rector for Region 16, 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 notices to employees are customarily posted. Rea- sonable 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 have been taken to comply here- with. 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 other terms and conditions of employment with International Union of Operating Engi- neers, Local 819, 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 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 full-time production and maintenance employees including laboratory employees employed by the Employer at its Blum, Texas facility, excluding all clerical, office and professional employees, guards, watch- men and supervisors as defined in the Act. ROUND ROCK LIME COMPANY WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and 451