Yuba Natural Resources, Inc.

YUBA NATURAL RESOURCES Yuba Natural Resources, Inc. and Operating Engi- neers Local Union No. 3, International Union of Operating Engineers, AFL-CIO. Case 20-CA- 19975 28 March 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN Upon a charge filed by the Union on 31 October 1985,1 the General Counsel of the National Labor Relations Board issued a complaint on 25 Novem- ber against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 26 September, fol- lowing a Board election in Case 20-RC-15666, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 24 October the Company has re- fused to bargain with the Union. On 9 December the Company filed its answer admitting in part and denying in part the allegations in the complaint.2 On 23 December the General Counsel filed a Motion for Summary Judgment. On 26 December the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The General Counsel filed an Amendment to the Motion for Summary Judgment on 3 January 1986. The Com- pany filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Respondent's answer admits its refusal to bargain with the Union, but avers, as an affirmative ' All dates refer to 1985 unless otherwise indicated 2 The Respondent's motion for remand, dismissal , or consolidation with Case 20-CA-18716 is denied . The Respondent states that should a complaint issue on a pending charge in Case 20-CA-18716, it intends to litigate the status of an individual found in the underlying representation case not to be a supervisor On that basis, it seeks to have this proceeding consolidated with that involving the pending charge. The supervisory status issue was fully litigated and resolved in the underlying representa- tion case Merely because evidence will be presented regarding an mdi- vidual's supervisory status in another proceeding does not justify further delay in resolving this case The Respondent's motion to supplement the record is also denied, be- cause the Board takes official notice of the transcripts and documents in the representation case 1 defense, that the Certification of Representative issued by the Board in Case 20-RC-15666 (not re- ported in Board volumes) was improper since the election held 4 November 1983 should have been set aside based on the conduct set forth in the Re- spondent's timely objections to the election. The Respondent's objections alleged that Supervisor Loren Gilmore had instigated the Union's organiz- ing campaign and had, together with Clay Adam- son, solicited, threatened, and coerced employees to vote for the Union. The General Counsel argues that these and all other material issues have previ- ously been decided by the Board. We agree with the General Counsel. The record, including the record in Case 20- RC-15666, reveals that the parties entered into a Stipulation for Certification Upon Consent Election which was approved by the Regional Director on 7 October 1983. On 4 November 1983 a secret- ballot election was held. The tally of ballots showed that of approximately ^3 eligible voters, 12 cast ballots for, and 8 cast ballots against, the Union. There were three challenged ballots, which were not sufficient in number to affect the outcome of the election. On 14 November 1983, the Re- spondent filed timely objections to the election. A hearing was held on the objections on 11 and 12 January and 8 February 1984. In his report, dated 3 May 1984, the hearing officer recommended that the Respondent's objections be overruled and the election results certified. On 24 May 1984 the Re- spondent filed exceptions to the hearing officer's recommendations, and on 26 September the Board issued a Decision and Certification of Representa- tive. It is well settled that in the absence of newly dis- covered and previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly we grant the Motion for Summary Judgment. 279 NLRB No. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Company, a Delaware corporation, is en- gaged in the production and sale of rock and ag- gregate products at its facility in Marysville, Cali- fornia. During the calendar year 1985, a representa- tive period, the Respondent sold and shipped prod- ucts, goods, and materials valued in excess of $50,000 to customers located outside the State of California. We find that the Company is an em- ployer engaged in commerce within the meaning'of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 4 November 1983, the Union was certified as the collective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees employed by the Respondent at its Marysville, California, facilities, excluding employees em- ployed by the Hammonton Company, office clerical employees, managerial employees, guards, and supervisors within the meaning of the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 23 October the Union has requested the Company to bargain, and since 24 October the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 24 October to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Yuba Natural Resources Inc., Marysville, California, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Operating Engineers Local Union No. 3, International Union of Operat- ing Engineers, AFL-CIO as the exclusive bargain- ing representative of the employees in the bargain- ing unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees employed by the Respondent at its Marysville, California facilities, excluding employees em- ployed by the Hammonton Company, office clerical employees, managerial employees, guards, and supervisors within the meaning of the Act. (b) Post at its facility in Marysville, California, copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Re- gional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in 3 If 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 Nation- al 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 " YUBA NATURAL RESOURCES 3 conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Operating Engineers Local Union No. 3, International Union of Operating Engineers, AFL-CIO as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All production and maintenance employees employed by us at our Marysville, California facilities, excluding employees employed by the Hammonton Company, office clerical em- ployees, managerial employees, guards, and su- pervisors within the meaning of the Act. YUBA NATURAL RESOURCES, INC.