Arrowhead Building Materials

I)E.CISIONS OF NATIONAL. LABOR RELATIONS BOARi) Arrowhead Building Materials and Building Materi- als, Excavating, Heavy Haulers, Drivers, Ware- housemen and Helpers Ilocal No. 541, affiliated with International Brotherhood of Teamsters, Chauffeurs, and Helpers of America. Case 17- CA-9707 November 12, 1980 DECISION AND ORDER BY CIIAIRM1AN FANNIN ANI) M EMliRS JIENKINS ANI) '1 NT1.1 O Upon a charge filed on May 30, 1980, by Build- ing Materials, Excavating, Heavy Haulers, Drivers, Warehousemen and Helpers Local No. 541, affili- ated with International Brotherhood of Teamsters, Chauffeurs, and Helpers of America, herein called the Union, and duly served on Arrowhead Build- ing Materials, herein called Respondent, the Gener- al Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint on June 10, 1980, against Respondent, and an amendment to the complaint on June 12, 1980, alleging that Respondent had engaged in and was engaging in unfair labor practices aflfecting 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 the 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 complaint as amended alleges in substance that on April 14, 1980, following a Board election in Case 17-RC-8892, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropri- ate;' and that, commencing on or about May 13, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining repesentative, although the Union has re- quested and is requesting it to do so. On June 20, 1980, Respondent filed its answer to the complaint as amended admitting in part, and denying in part, the allegations in the complaint. On July 8, 1980, counsel for the General Counsel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on July 10, 1980, the Board issued an order transferring the proceed- ' ()ficial nlitie is lalken of the recird in the reprcsentatirl proceed- irig Case 17 RC- X 92. as he term "record" is defile in Sccs 10(2 68 and I02 6 9 (g) of ithe I oardl' Rule, and Regulatliill. Series X. a imendedl See LT4 E/Ietrmny.lemr. Inc. 166 NIRH '93 (967), enfd 388 12d 68.3 (4th Cir 19hX8) Golden Age lelroage (o. 167 NIRH 151 (h7), enfd 41, F 2d 26 (5th C'ir 1969): Inrtrp ' (C, Ptlch,. 269 FSupp 573 (t)C.Va 1 96 7); illet (',orp.. 164 NI.Rt 178 (19)67) cnfd 3'7 d 91 (7th Cir 1968): See 9(d) of the NLRAls aarnended 253 NLRB No. 32 ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. 2 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 to the amended complaint, Re- spondent admits that on or about May 8, 1980, the Union requested by letter that Respondent bargain collectively with it as the exclusive representative of the employees in an appropriate unit; however, Respondent denies that the Union is the exclusive representative of its employees, or that the Union has at any time represented an uncoerced majority of the employees in the unit. Additionally, in its May 13, 1980, letter to the Union, and in its re- sponse to the Notice To Show Cause, Respondent admits that it has refused to recognize or bargain collectively with the Union in order to test the Board's certification of the Union in Case 17-RC- 8892 as the exclusive representative of certain em- ployees at its Kansas City, Kansas, facility. Re- spondent denies, however, that it thereby violated Section 8(a)(5) and (1) of the Act. Respondent contends in its response to the Notice To Show Cause that it is in possession of newly discovered evidence which indicates that the unit certified by the Board on April 14, 1980, is im- proper under Board law. Respondent argues that during the hearing in Case 17-CD-264,3 another case involving both Respondent and the Union, it learned that the Union was disclaiming a major portion of the work traditionally performed by Re- spondent's employees; namely, the transportation of drywall materials at cnstruction sites from the point at which such materials have been removed from Respondent's trucks (the "first drop") to the locations designated for delivery by the contractors or subcontractors purchasing the materials. Re- spondent argues that the Union's position in Case 17-CD-264 that employees represented by Labor- ers Local Union No. 264, rather than those of Re- spondent's employees which it represents, are enti- tled to do this work under a 1947 jurisdictional agreement between the Teamsters and Laborers In- ()rn Jul 7 17 1980. the Hiard issued an order correcting aill rror in its rri gial[ (rder ' Case 17 C1)CD 264 is currceini pending deci.iion before the Board 272 ARROWH()EIAD LUILDING MATERIAL.S ternational Unions, makes it obvious that the Union cannot represent a large number of Respondent's employees who were performing this work at the time of the Union's certification. Respondent fur- ther argues that the Union misled the employees in the unit as to its ability to represent them in the performance of their regular work. Respondent re- quests that a hearing be held, and claims that it will thereby prove that the unit is improper under Board law, since the 1947 agreement and the Union's disclaimer would "effectively require that the Board sanction the carving out of a small splin- ter group of employees" from an otherwise appro- priate unit. A review of the record herein, including the record in Case 17-RC-8892, reveals the following: On November 9, 1979, pursuant to a Stipulation for Certification Upon Consent Election, an election was held in the appropriate unit. The tally of bal- lots showed that 10 votes were cast for and 3 votes against the Union, with no challenged ballots. On November 14, 1979, Respondent filed objections to conduct affecting the results of the election. Pursu- ant to an Order Directing Hearing on Objections and Notice of Hearing issued by the Regional Di- rector for Region 17, a hearing was held before Hearing Officer Roy L. Wimpey on December 5, 1979. The Hearing Officer's Report and Recom- mendations on Objections found no merit in Re- spondent's objections. The Hearing Officer there- fore recommended that the objections be over- ruled, and that the Union be certified. On April 14, 1980, the Board issued a Decision and Certification of Representative in which it adopted the Hearing Officer's report and certified the Union as the exclusive bargaining representa- tive of the employees in the appropriate unit. On July 14, 1980 (after the issuance of the com- plaint as amended in this case, and the filing of Re- spondent's answer thereto), Respondent filed a Motion To Revoke Certification in Case 17-RC- 8892. Respondent's arguments in support of its motion were generally those which it now ad- vances in its response to the Notice To Show Cause in this case; namely, that the Union's certifi- cation should be revoked because it has disclaimed an interest in representing certain of the employees in the unit. By order dated July 28, 1980, the Acting Regional Director for Region 17 denied Respondent's motion. In his order, the Acting Re- gional Director stated, in relevant part: "After duly considering the Employer's Motion, I find no fac- tual or egal basis to support the Employer's posi- tion. I note that no authority is cited in support of the Motion. The mere fact that the Union may have disclaimed a portion of the work does not in- dicate that the Union has disclaimed an interest in representing the unit employees." On August 11, 1980, Respondent filed a request for review of the Acting Regional Director's denial of its motion, in which it restated its argument that the Union's dis- claimer of certain work in Case 17-CD-264 re- quires the revocation of the Union's certification. By telegraphic order, dated November 4, 1980, we denied Respondent's request for reviewof the Acting Regional Director's order as raising no sub- stantial issues warranting review. Thus, our April 14, 1980, certification of the Union as the exclusive representative of Respondent's employees in an ap- propriate unit remains unaltered. 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.4 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 is a Delaware corporation engaged in the warehousing and distribution of drywall ma- terials at a facility located at 2820 Roe Lane, Kansas City, Kansas, herein called the facility. In the course and conduct of its business operations within the State of Kansas, Respondent annually receives goods and services valued in excess of $50,000 directly from sources located outside the State of Kansas. We find, on the basis of the t'oregoing, 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. I See Pilbhurgh Plalc Glh. (, x .AL R. B 313 U S 146. h62 (194 1) Rules and Regui;lion, of he Hoard. Sec, 102 67(f) and 102 6q(c) I)ECISIONS OF NAIO()NAL ILABOR RELATIONS 3()ARD II. T1Hl LABOR ORGANIZA IION INVOI.VI.I) Building Materials, Excavating, Heavy Haulers, Drivers, Warehousemen and Helpers Local No. 541, affiliated with International Brotherhood of Teamsters, Chauffeurs, and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. TIFl- UNIFAIR I ABOR PRACTICES A. he 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 full-time and regular part-time drivers, helpers and yardmen employed by the Em- ployer at its facility located at 2820 Roe Lane, Kansas City, Kansas, but excluding office clerical employees, watchmen, guards and su- pervisors as defined in the Act, and all other employees. 2. The certification On November 9, 1979, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 17 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 April 14, 1980, 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 May 8, 1980, 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 May 13, 1980, 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 May 13, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate 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. HE E:FI:FCT OF THE UNFAIR ABOR PRACTICIS UPON COMMEIRCE The activities of Respondent, set forth in section 11I, 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 REMIDY 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 1. Arrowhead Building Materials is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Building Materials, Excavating, Heavy Haul- ers, Drivers, Warehousemen and Helpers Local No. 541, affiliated with International Brotherhood of Teamsters, Chauffeurs, and Helpers of America, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. All full-time and regular part-time drivers, helpers and yardmen employed by the Employer at its facility located at 2820 Roe Lane, Kansas City, Kansas, but excluding office clerical employees, watchmen, guards and supervisors as defined in the Act, and all other employees, constitute a unit ap- 274 ARROWHEAD BUILDING MATERIAL.S propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 14, 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 May 13, 1980, 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, 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, Arrowhead Building Materials, Kansas City, Kansas, 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 conditions of employment with Building Materials, Excavating, Heavy Haulers, Drivers, Warehouse- men, and Helpers Local No. 541, affiliated with In- ternational Brotherhood of Teamsters, Chauffeurs, and Helpers of America, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All full-time and regular part-tie drivers, help- ers and yardmen employed by the Employer at its facility located at 2820 Roe Lane, Kansas City, Kansas, but excluding office clerical em- ployees, watchmen, guards and supervisors as defined in the Act, and all other employees. (b) I 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Kansas City, Kansas, facility copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent'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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 1i Ihe c\ enI thai this ( )rdcr iS cnfrccd h .a Judgncrlln I (T i nllcd Slatels C(our l iof Appceal, the %kord, ill the lollt - rtadlling "t'rtCd ria Order f te Nllonal I.ahor RLilllons 1tioard III r tea, oted P'ursu ;ilt t . Jgm nl l Of tlh tnitd Sl ats (., url lof Appeal, Enforcln g :In Ordcl vI1 h NRilon Iabor RcLIoilS oard APPENDIX Norici. To EMPI.OYE. EiS POSIl:D) BY ORDI)R OF1 IH: NATIONAI LABOR REIATIONS BOARD An Agency of the United States Government WE WIll.L NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Building Materials, Excavating, Heavy Haulers, Drivers, Warehousemen and Helpers Local No. 541, affiliated with International Brotherhood of Teamsters, Chauffeurs, and Helpers of America, as the exclusive repre- sentative of the employees in the bargaining unit described below. Wi. wt.i. 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. WiE wlli., upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining 275 DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD 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 and regular part-time drivers, helpers and yardmen employed by the Em- ployer at its facility located at 2820 Roe Lane, Kansas City, Kansas, but excluding office clerical employees, watchmen, guards and supervisors as defined in the Act, and all other employees. ARROWHEAD BUIL.DING MATERIALS 276