Colorado Aggregate Co., Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1980

260 N.L.R.B. 1365 (N.L.R.B. 1980)

COLORADO AGGREGATE COMPANY, INC.
Colorado Aggregate Company, Inc. and UBC South-
western Council of Industrial Workers, AFL-
CIO. Case 27-CA-6676
August 4, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDAI E
Upon a charge filed on April 14, 1980, by UBC
Southwestern Council of Industrial Workers,
AFL-CIO, herein called the Union, and duly
served on Colorado Aggregate Company, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 27, issued a complaint
on April 22, 1980, 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 March 3,
1980, following a Board election in Case 27-RC-
5965, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about April 7, 1980, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On May 2, 1980, Respondent
filed its answer to the complaint, and on May 13,
1980, Respondent filed an amended answer, admit-
ting in part, and denying in part, the allegations in
the complaint.
On May 29, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 6, 1980, the
Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent thereafter
filed a response to Notice To Show Cause.
Official notice is taken of the record in the representation proceed-
ing, Case 27-RC-5965, 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 F2d 683
(4th Cir 1968); Golden 4ge 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): Folletr Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
250 NLRB No. 169
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 response to
the Notice To Show Cause, Respondent essentially
contests the validity of the Union's certification.
Although Respondent admits its refusal to bargain,
Respondent denies that it thereby violated Section
8(a)(5) and (1) of the Act. Specifically, Respondent
contends that the Union should not have been cer-
tified because the Regional Director directed an
election in an inappropriate unit. In the Motion for
Summary Judgment, the General Counsel main-
tains that Respondent is attempting to relitigate the
issues it raised in the related representation pro-
ceeding. We agree with the General Counsel.
Review of the record herein, including the
record in Case 27-RC-5965, reveals that on Janu-
ary 18, 1980, after a hearing and the submission of
a brief by Respondent, the Regional Director
issued a Decision and Direction of Election. On
February 1, 1980, Respondent filed with the Board
a request for review of the Decision and Direction
of Election, contending that the unit was inappro-
priate in that it included employees at Respondent's
two separate and distinct facilities, and that the em-
ployees at those facilities lacked a community of
interest. On February 12, 1980, the Board denied
the request for review. An election was conducted
on February 14, 1980, which resulted in a vote of
30 to 22 in favor of the Union, with no challenged
ballots. No objections were filed to the conduct of
the election. Thereafter, on March 3, 1980, the Re-
gional Director issued a Certification of Repre-
sentative. It thus appears that Respondent is at-
tempting to raise herein issues which were raised
and determined in the underlying representation
case.
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. 2
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-
2 See Pittsburgh Plate Gloss Co v. N.L.R.B, 313 US. 146. 162 (1941);
Rules and Regulations of the Board. Secs 102 67(n and 102 6
9 (c)
1365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
I. THE BUSINESS OF RESPONDENT
Respondent is a Colorado corporation with its
principal office and place of business located in
Mesita, Colorado. Respondent is engaged at its
plant in Mesita, Colorado, in the mining, packag-
ing, and shipping of artificial charcoal, and at its
plant in Blanca, Colorado, in the preparation, pack-
aging, and shipping of landscaping material. Re-
spondent, in the course and conduct of its business
operations, annually sells and ships goods valued in
excess of $50,000 directly to points outside the
State of Colorado.
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.
II. THE LABOR ORGANIZATION INVOLVED
UBC Southwestern Council of Industrial Work-
ers, 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 production and maintenance employees
employed by Respondent at its facilities locat-
ed in Blanca and Mesita, Colorado, including
the mine in Mesita, but excluding professional
employees, office clerical employees, guards
and supervisors as defined in the Act.
2. The certification
On February 14, 1980, 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 27, 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 March 3, 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 March 3, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 7, 1980, and continuing
at all times thereafter to date, Respondent has re-
fused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
April 7, 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 (I)
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 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-
1366
COLORADO AGGREGATE COMPANY, INC.
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. Colorado Aggregate Company, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. UBC Southwestern Council of Industrial
Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees
employed by Respondent at its facilities located in
Blanca and Mesita, Colorado, including the mine in
Mesita, but exluding professional employees, office
clerical employees, and guards and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since March 3, 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 April 7, 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)(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,
Colorado Aggregate Company, Inc., Blanca and
Mesita, Colorado, 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 UBC Southwestern
Council of Industrial Workers, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees
employed by Respondent at its facilities locat-
ed in Blanca and Mesita, Colorado, including
the mine in Mesita, but excluding professional
employees, office clerical employees, guards
and supervisors 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.
(b) Post at its facilities located in Blanca and
Mesita, Colorado, copies of the attached notice
marked "Appendix."3 Copies of said notice, on
forms provided by the Regional Director for
Region 27, 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 27,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
t 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"
1367
DECISIONS ()F NATIONAL ILABOR RELATIONS BOARD
APPENDIX
NorI CiE To EMPI .OYIES
POSTID) BY ORDER OF THE
NATIONAL LABOR REL ATIONS BOARD
An Agency of the United States Government
WE WIlll. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with UBC Southwestern Council of Industrial
Workers, AFL-CIO, as the exclusive repre-
sentative of the employees in the bargaining
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 Wli.l., 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 production and maintenance employees
employed by Respondent at its facilities lo-
cated in Blanca and Mesita, Colorado, in-
cluding the mine in Mesita, but excluding
professional employees, office clerical em-
ployees, guards and supervisors as defined in
the Act.
COLORADO AGGREGATE COMPANY,
INC.
1368