Hydro Conduit Corp.

HYDRO CONDUIT CORPORATION Hydro Conduit Corporation and Chauffeurs, Team- sters and Helpers Local Union #492 (Ind.); and Laborers' International Union of North America, Local #16, AFL-CIO. Case 28-CA-5115 May 10. 1979 DECISION AND ORDER BY MEMBERS PENELI.O. MURPHY. AND TRUSI)SAI.L Upon a charge filed on November 16, 1978, by Chauffeurs, Teamsters and Helpers Local Union #492 (Ind.) and Laborers' International Union of North America, Local : 16. AFL-CIO, herein called the Unions, and duly served on Hydro Conduit Cor- poration, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 28. issued a complaint and notice of hearing on December 15. 1978, 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, 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 com- plaint alleges in substance that on September 25. 1978, following a Board election in Case 28 RC 3456, the Unions were duly certified as the exclusive joint collective-bargaining representatives of Respon- dent's employees in the unit found appropriate' and that, commencing on or about October 2, 1978, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Unions as the exclusive joint bargaining rep- resentatives, although the Unions have requested and are requesting it to do so. On December 19, 1978, Respondent filed its answer to the complaint, admit- ting in part, and denying in part, the allegations in the complaint. On January 19, 1978, Respondent filed its first amended answer to the complaint, admitting in part, and denying in part, the allegations in the com- plaint and raising an "affirmative defense." On February 9, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached. Subse- quently, on February 15, 1979, the Board issued an I Official notice is taken of the record n the representation proceeding. Case 28-RC-3456, as the term "record" s defined in Sees. 102.68 and 102.69(g) of the Board's Rules and Regulations. Series 8, as amended. See LTV Electrosysrrem Inc.. 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th ('ir. 1968): Golden Age Beverage Co, 167 NLRB 151 (1967). enfd 415 F2d 26 (5th Cir. 1969): Intervype Co. v. Penello. 269 F.Supp. 573 (D.C.Va. 1967): Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA, as amended. 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 the 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 answer and first amended answer to the com- plaint, Respondent denies the request and refusal to bargain. Furthermore, Respondent asserts as an "af- firmative defense" that the Unions' certification was invalid as a matter of law on the basis of its objections to the election in the underlying representation pro- ceeding. Therefore, Respondent asserts it is not law- fully obligated to bargain with the Unions. Review of the record herein, including the record in Case 28- RC-3456, reveals that an election conducted pursuant to a Stipulation for Certification Upon Con- sent Election on April 27. 1978.2 resulted in a vote of 53 to 37 in favor of the Unions, with 4 challenged ballots. Thereafter, Respondent filed timely objec- tions to conduct affecting the results of the election, alleging, in substance, that (I) an employee engaged in electioneering at the entrance to the polling place; (2) agents of the Unions promised that if they were successful in winning the election, employees would receive wage increases and other benefits, no em- ployee could be discharged. and Respondent would be required to sign a contract within 6 to 7 days: and (3) the Unions had engaged in unspecified campaign trickery and made misleading statements. thereby im- properly influencing or coercing employees in their right to cast their ballots in an atmosphere free of such conduct. During the course of the investigation, Respondent also alleged as additional objectionable conduct that (I) authorization cards procured by the Unions in support of the petition were obtained in violation of Respondent's no-solicitation rule, (2) the purpose of the authorization cards was not made clear to the employees, and (3) the waiver by the Unions of a portion of the Unions' initiation fees was improper. After investigation the Regional Director issued a Report and Recommendations on Objections to Con- duct Affecting the Results of the Election on June 2, 1978, in which he recommended that Respondent's 'The Motion flor SummarD Judgment Inadvertentl) states that the election was held on Januar) 26. 1978. rather than on April 27, 1978 242 NLRB No. 33 171 I)E('ISIONS OF NAIlIONAI. IABOR RELAlIONS BOAR[) numbered objections he overruled in their entirety, that the other conduct alleged as objectionable by Respondent be overruled, and that the Unions be cer- tified as the exclusive joint representatives. There- after. Respondent filed timely exceptions to the Re- gional Director's report. On September 25. 1978. the Board, having considered the Regional Director's re- port, Respondent's exceptions thereto, and the entire record, adopted the findings, conclusions, and recom- mendations of the Regional Director and certified the Unions as the exclusive joint bargaining representa- tives of the employees in the unit stipulated to be appropriate.) Thereafter, on October 18. 1978. Re- spondent filed a motion for reconsideration and re- opening the record concerning the Board's certifica- tion of representative. On November 16, 1978. the Board issued an order denying the motion. It thus appears that Respondent is attempting in this pro- ceeding to relitigate issues that were fully resolved and finally determined in the prior representation proceeding. 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 Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding.s In the Board's Decision and (ertification it Representatie. Member Penello indicated that he agreed with the dccilion to overrule Respondent's timely written iobjections and to certify he L nions However. he further indicated that he would not have considered the merits of ohjections alleged by Respondent during the course of Ihe Regional Director's investigation. hut not contained in specific timely objections, for reasons set forth in his dissenting opinion in Dtatnm 7Tire & Ruhher Co , 234 NL.RB 504 1978). 'See Piltlhurgl Phlite Glss Co. s . NL.R B. 313 U.S 146. 162 1941): Rules and Regulations of' the Board. Sees. 102.67(f1) and 102.69(c). 5 In its answer and first amntended answlr to the complaint. Respondent denies pars. 10 and II of the complaint. which allege that the L nions. coml- mencing on or about October 2. 1978. have requested and are requesting Respondent to bargain collectively ith them and that since oin or a;bout that date Respondent has refused toi bargain with them Hlowever. counsel for the General Counsel has submitted a cop) of a letter requesting that Respondent meet and negotiate in goIod faith with the Unions. which was sent b Iabohr- ers on behalf of' it and 'rellmsters to Respondent and was dated October 2. 1978. Respondent does not dispute the salidity of the letter and does not contend that it did not receive the letter. Furthermore. although Respondent contends in its resplonse to the Notice 'o Show (Cause that substantial or material tactual issues exitst with respect to its obhiections. it does not argue that a factll issue has been raised ias t t the request and refusal Io ba;rga;in Further. it has not at any material time herein expressed a willingness to bargain with the nions. Finalll it is clear fromn it, psitlionll set forth in It, In this proceeding, Respondent contends that it is entitled to a hearing on its objections to the election and the matters previously raised in its motion for reconsideration. Prior to adopting the findings, con- clusions, and recommendations of the Regional Di- rector's Report on Objections. the Board considered the report. the Employer's exceptions thereto, and the entire record in that case. By its adoption of the re- port recommending that the Employer's objections be overruled, the Board necessarily found that the objec- tions raised no substantial or material issues warrant- ing a hearing.' Additionally. the Board, by denying Respondent's motion for reconsideration on the grounds that evidence sought to be adduced b Re- spondent had not been shown to have been previ- ousl unavailable and, in any event, lacked merit. necessarily found that the matters alleged therein raised no substantial or material issues warranting a hearing. Further, it is well established that the parties do not have an absolute right to a hearing on objec- tions to an election. It is only when the moving party presents a primatlcie showing of substantial or mate- rial issues which would warrant setting aside the elec- tion that it is entitled to an evidentiary hearing. It is clear that, absent arbitrary action, this qualified right to a hearing satisfies the constitutional requirements of due process.7 Accordingly', we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINI)IN(;S ()o FACTI I. III1: IlLSINI:SS ()I RSPO)NI)ENI' Responident. a l)elaware corporation. maintains its principal office and place of business in Albuquerque New Mexico. where it is engaged in the manufacture sale. andi distribution of pipe and related products. During the past 12-month period, which period is representative of its operations at all times material herein. Respondent. in the course and conduct of its business operations, purchased goods and materials valued in excess of $50.000 which were transported in interstate commerce and delivered to its place of busi- ness in New Mexico directly from States of the United States other than the State of New Mexico. "alffrmatie delense" ad ilts respilnse to the Notlice To Show ('ause tha Respondent contends that it is under no legal obligation to bargain with the inlln, siel on ile grounds that the certlfication of the Unions was inlalid, Accordingl. we filld that Respondenl's denials of pa rs. 10 and I oif the complaint raise n,, substantial or material issue of 'act warranling a hearing. ,Ui irr utillh ( /ti rte (ro.. Dim i tiol I (f C'oruo & Ed/h trd,l Ir 220 Nl.RB 668 1975): :lansi'lh' At, Prt. I.. 217 NL.RB 660 19751. ? ( i r:' ., rt. It(.rls 'rjatd, 218 NRB 929 1975): Ileuten/i lallci Stw -. rc ai. a ('a /l i a/ ( rrliai atnl I/ mcat len/i 't~lht. a P'iretr ilrsq,. 215 NI.RB 734 (19741i. I Iitniamatied (0 tin 'tlitlg 4'rker f 'I , A r la /H ii/til ,ipioi tix ( . iipat/ s S I. RB . 424 F2d 818. 828 D).(' (Cir. 19701 172 HYIRO (ON DL I'T CORPORATION We find. on the basis of the foregoing., that Respon- dent 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. TIIE I.ABOR ORGANIZATIONS INVOI VEI) Chauffeurs, Teamsters and Helpers Local Union t492 (Ind.) and Laborers' International Union of North America, Local =: 16, AFL-CIO. are labor or- ganizations within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR L.ABOR PRAC'ICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees in- cluding truck drivers employed by the Employer at its Albuquerque, New Mexico, operations: ex- cluding all office clerical employees, guards. watchmen and supervisors as defined by the Act, as amended. 2. The certification On April 27, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 28, designated the Unions as their joint representatives for the purpose of collective bar- gaining with Respondent. The Unions were certified as the joint collective-bargaining representatives of the employees in said unit on September 25, 1978, and the Unions continue to be such exclusive joint representatives within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about October 2, 1978, and at all times thereafter, the Unions have requested Re- spondent to bargain collectively with them as the ex- clusive joint collective-bargaining representatives of all the employees in the above-described unit. Com- mencing on or about October 2, 1978, and continuing at all times thereafter to date, Respondent has re- fused, and continues to refuse, to recognize and bar- gail with the Unions as the exclusive joint represen- tatives for collective bargaining of all employees in said unit. Accordingl. we find that Respondent has, since October 2, 1978, and at all times thereafter, refused to bargain collectively with the Unions as the exclusive joint representatives of the employees in the appropri- ate unit and that. by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. lilt EIFFC(I OF lill LNFAIR I ABOR PRA('TI('IS ULPON ('OMMMER('I The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce 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 Unions as the exclusive joint representatives 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 appro- priate unit will be accorded the services of their se- lected joint bargaining agents for the period provided by law. we shall construe the initial period of certifi- cation as beginning on the date Respondent com- mences to bargain in good faith with the Unions as the recognized joint bargaining representatives in the appropriate 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. Hydro Conduit Corporation is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters and Helpers Local Union 173 D)E('ISIONS OF NATIONAL LABOR RELATIONS BOARD ~492 (Ind.) and Laborers' International Union of North America, Local X 16, A FL-. CIO. are labor or- ganizations within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, in- cluding truckdrivers, employed by the Employer at its Albuquerque, New Mexico, operations and excluding all office clerical employees, guards, watchmen, and supervisors as defined by the Act, as amended, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since September 25, 1978, the above-named la- bor organizations have been and now are the certified and exclusive joint representatives of all employees in the aforesaid appropriate unit for the purpose of col- lective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 2, 1978, and at all times thereafter, to bargain collectively with the above-named labor organizations as the exclusive joint bargaining representatives 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(I) 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 Rela- tions Board hereby orders that the Respondent, Hy- dro Conduit Corporation, Albuquerque, New Mex- ico, its officers, agents, successors, and assigns, shall: I. 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 Union 492 (Ind.) and Laborers' International Union of North America, Local 16, AFL-CIO, as the exclusive joint bargaining represen- tatives of its employees in the following appropriate unit: All production and maintenance employees in- cluding truck drivers employed by the Employer at its Albuquerque, New Mexico. operations: ex- cluding all office clerical employees, guards. watchmen and supervisors as defined by the Act, as amended. (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 organizations as the exclusive joint representa- tives 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 understand- ing in a signed agreement. (b) Post at its offices and facilities located at Albu- querque, New Mexico, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 28, af- ter being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 8 In the event that this Order is enlorccd 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 ULnited 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 Chauffeurs, Teamsters and Helpers Local Union #492 (Ind.) and Laborers' International Union of North America, Local = 16, AFL-CIO, as the exclusive joint representatives of the employees in the bargaining unit described below. WE W.l 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. WI: WILL, upon request, bargain with the 174 HYDRO CONDUIT CORPORATION above-named Unions, as the exclusive joint rep- resentatives 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 production and maintenance employees including truck drivers employed by the Em- ployer at its Albuquerque. New Mexico, op- erations; excluding all office clerical employ- ees, guards, watchmen and supervisors as defined by the Act, as amended. HYIDRO CONDUIIl CORPORATION 175