Compagnie Industrielle de Travaux

National Labor Relations Board - Board Decisions

Jun 18, 1969

176 N.L.R.B. 785 (N.L.R.B. 1969)

COMPAGNIE INDUSTRIELLE DE TRAVAUX 785
Compagnie Industrielle de Travaux (CITRA) and
United Steelworkers of America , AFL-CIO. Case
24-CA-2633
June 18, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On May 9, 1969, Trial Examiner Robert Cohn
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action , as set forth in
the attached Trial Examiner ' s Decision . Thereafter,
the Respondent filed exceptions to the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed .' The rulings are
hereby affirmed . The Board has considered the Trial
Examiner' s Decision , the exceptions , and the entire
record in the case , and hereby adopts the findings,
conclusions , and recommendations of the Trial
Examiner.
Regional Director for Region 24, issued a complaint and
notice of hearing on December 30 , 1968, alleging that
Compagnie Industrielle de Travaux (Citra), herein called
the Respondent , had engaged in and was engaging in
unfair labor practices within the meaning of Section
8(a)(l), (2), and (5) of the National Labor Relations Act,
as amended (herein the Act). Thereafter, the Respondent
filed an answer to the complaint , admitting certain
jurisdictional and factual allegations, but denying the
commission of any unfair labor practices.
The matter came on before me for hearing in Hato
Rey, Puerto Rico, on February 14, 1969, at which all
parties were present and represented ,' and were given all
rights to be heard respecting the issues in the case. Based
upon a second amended charge against the Respondent
(G.C. Exh. 2), counsel for the General Counsel moved to
file an amended complaint (G.C. Exh. 3), which, in
essence , deleted the 8 (aX2) allegation of the original
complaint leaving only the issue of the alleged refusal to
bargain by the Respondent in violation of Section 8(a)(5)
of the Act. The Respondent was given leave to file an
oral answer to the amended complaint in which the
jurisdictional allegations thereof were admitted.
Respondent also conceded that it had refused to bargain
with the Steelworkers but for the reason that the
certification of that labor organization by the Board on
March 11, 1968 (Case 24-RC-3107), was defective and
invalid . Accordingly , the only issue for decision is
whether the Respondent unlawfully refused to bargain
with the Steelworkers in violation of Section 8(a)(5) of the
Act. _
Upon the entire record, and after full and careful
consideration of the parties ' positions as stated on the
record , I make the following:
FINDINGS AND CONCLUSIONS
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Compagnie
Industrielle De Travaux (CITRA), St. Croix, Virgin
Islands, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order.
'At the hearing , Seafarers international Union de Puerto Rico sought to
intervene in this proceeding on the basis of an alleged interest in the
employees of Respondent, as evidenced by authorization cards . The Trial
Examiner , noting that the Board had denied a motion to intervene by this
organization based upon the same ground in the representation case,
similarly denied the motion in the instant case. Thereafter , Seafarers
International Union de Puerto Rico filed a motion for special permission
to appeal ruling of Trial Examiner, and a motion to intervene. Those
motions are hereby denied as lacking in merit.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN , Trial Examiner : Upon an original
charge filed by United Steelworkers of America,
AFL-CIO (herein the Steelworkers), on November 7, 1968
(subsequently amended December 6, 1968), the General
Counsel of the National Labor Relations Board, by the
1. COMMERCE
The Respondent is, and has been at all times material,
a corporation engaged in the construction business at St.
Croix , Virgin Islands , and Puerto Rico , and also in the
furnishing of services in connection with the operation of
an alumina producing plant of the Harvey Alumina Virgin
Islands, Inc., located on the said island of St. Croix, U.S.
Virgin Islands.
During the calendar year 1968, Respondent purchased
and caused to be shipped from points located outside of
the Virgin Islands to the island of St. Croix, Virgin
Islands , construction materials and other equipment
necessary for its construction operations which were
valued in excess of $50,000 . During the same period of
time , it furnished services to Harvey Alumina Virgin
'Virgin Islands Labor Union , AFL-CIO, was permitted to intervene in
the proceeding on the basis of a contractual interest with the Respondent.
'At the hearing , Seafarers International Union de Puerto Rico , through
its counsel , sought to intervene in the proceedings on the basis of an
interest which it assertedly had among the employees of the Respondent.
The Trial Examiner noted that the Board had denied a similar motion by
the same organization based upon the same reason in the representation
matter, and therefore similarly denied its motion in the instant case.
Counsel for the Seafarers indicated that he would file a special appeal to
the Board from the Trial Examiner's ruling . Accordingly, at the close of
the hearing , I left open the record to give counsel and the Board time to
dispose of that motion . However, on March 17 , 1969, having received no
notice respecting disposition of the matter, I issued an order closing the
hearing and giving the parties until March 31 , 1969, for the filing of briefs.
No briefs from either party have been received.
176 NLRB No. 104
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Islands, Inc., in connection with the operation of the
latter's alumina producing plant, which services were
valued in excess of $50,000. Said Harvey Alumina Virgin
Islands , Inc., is engaged in the manufacturing and
shipment in interstate commerce of alumina products, and
its operations come within the Board's jurisdictional
standards applicable to manufacturing enterprises.
On the basis of the foregoing, I find, as the Respondent
admits, that the Respondent is and has been at all times
material engaged in commerce or in a business affecting
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.
11. THE LABOR ORGANIZATIONS INVOLVED
Thereafter, on June 6, 1968, the Steelworkers requested
the Respondent to meet and confer for the purposes of
commencing negotiations for a contract. On June 20,
1968, the Respondent's attorney addressed a letter to the
Steelworkers advising that the Respondent refused to
bargain citing as reasons. (1) existence of a 3-year
collective-bargaining agreement executed between the
Respondent and the Virgin Islands Labor Union, and (2)
that the certification issued to the Steelworkers by the
Board in Case 24-RC-3107 was invalid and that the
Respondent would like to have the validity of such
certification tested.'
Analysis and Concluding Findings
The amended complaint alleges , the answer admits, and
I find that Steelworkers and the Virgin Islands Labor
Union , AFL-CIO, are labor organizations within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Pursuant to a Decision on Review, and Direction of
Election dated September 8, 1967, in Case 24-RC-3107
(not published in NLRB volumes),' an election by secret
ballot was conducted under the direction and supervision
of the Regional Director for Region 24 on January 15,
1968, among all production and maintenance employees
employed by the Respondent at the alumina plant of
Harvey Alumina V.I., Inc., located at St. Croix, U.S.
Virgin Islands, including bonded aliens or H(2) employees,
crane operators, welders, laborers, truckdrivers, heavy
equipment operators, electricians, and mess hall
employees, excluding all office clerical employees,
timekeepers, professional employees, guards, and
supervisors as defined in the Act.' The tally of ballots,
which was duly served on each of the parties, revealed
that of the approximate 330 eligible voters, 179 cast valid
votes for the Steelworkers and that the number of
challenged ballots was not sufficient to affect the results of
the election. Therefore, it was found that a majority of the
valid votes counted had been cast for the Steelworkers.
However, thereafter, objections to the conduct of the
election were timely filed by both the Respondent and the
Intervenor, and the Regional Director thereupon caused
an investigation to be made concerning said objections.
On March 11, 1968, the Regional Director issued his
supplemental decision and certification of representatives,
finding , in essence , that the objections raised by the
Respondent and the Intervenor were without merit and
that the Steelworkers should be certified as representative
of the employees in the appropriate unit.' Thereafter, on
May 9, 1968, the Board denied the separate requests for
review of the Regional Director's supplemental decision
and certification of representatives filed by the
Respondent and the Intervenor.'
'See G .C. Exh. 5-B, herein.
'The foregoing unit was found by the Board to be appropriate in the
representation case , and is so alleged in the complaint herein . Although
Respondent , on the record herein, denied this allegation of the complaint, I
deem myself bound by the Board's findings in the representation matter,
and therefore find that the above-described unit is appropriate for
collective bargaining within the meaning of Section 9(b) of the Act.
'See G .C. Exh. 5-H, herein.
'On the same date , the Board also denied as lacking in merit the
separate request of the Seafarers International Union de Puerto Rico for a
review of the Board ' s denial of its earlier motion to intervene in the
As previously noted, the Respondent in this case admits
its refusal to bargain, basing such refusal upon an alleged
invalid certification, which in turn is based upon alleged
errors and irregularities committed during the election
process. The record shows that these contentions were
thoroughly investigated and ruled upon initially by the
Regional Director whose rulings were subsequently
affirmed by the Board. It is well settled that such
questions as to the validity of the election and the merit of
the Respondent's objections thereto, having been decided
by the Board in the representation proceeding, are not
relitigable before a Trial Examiner in an unfair labor
practice proceeding, in the absence of newly discovered or
previously unavailable evidence.' The Respondent, not
claiming to nor producing any evidence to come within
the aforementioned exception, has no legitimate ground
for its refusal to bargain. Accordingly, I find and conclude
that at all times since June 20, 1968, the Respondent has
refused to bargain collectively with the Steelworkers
concerning its employees in an appropriate unit, thereby
engaging in unfair labor practices in violation of Section
8(a)(5) and (1) of the Act.'
proceeding (see G .C Exh. 5-I).
'In the representation case, Respondent claimed , inter a/ia, that its
contract with the Virgin Islands Labor Union was a bar to the
Steelworkers petition . The Board overruled this contention and directed an
election.
'See Stuart Wilson, Inc. 174 NLRB No. 49, and cases cited in fn. I
thereof.
'In his motion to intervene , counsel for the Seafarers International
Union de Puerto Rico asserted in support of the motion , inter alia, that a
Steelworkers representative had engaged in misconduct on the day of the
election (which had affected the results of the election ), in that such
representative was stationed outside the plant gate of the Respondent, and
that his purpose was to intimidate and turn away employees who were
known not to be in favor of the Steelworkers Union . It was asserted that
knowledge of this conduct came to the Seafarers subsequent to the time
the request for review was filed with the Board, although it was intunated
that the Board 's agents investigating the objections did learn of the
circumstances during the investigation.
Due to the mere assertion of these circumstances without any semblance
of evidentiary support , plus the fact that it appears that the facts probably
came to the attention of the Board 's agents during this investigation and
were found not to be sufficiently probative of misconduct , the Trial
Examiner did not consider this assertion sufficient to warrant intervention.
However , subsequent to the Trial Examiner's denial of the Seafarers
motion to intervene , the counsel for the Intervenor Virgin Islands Labor
Union , AFL-CIO (an affiliate of the Seafarers ), took up the cudgel and
requested subpenas directed to the Respondent , the General Counsel, aqd
the Steelworkers, seeking , in essence, evidence in support of such assertion
(Intervenor ' s Exhs . 1, 2, and 3). The Trial Examiner granted the several
parties' motions to squash the subpenas on the grounds that , at this
juncture in the overall proceedings , such were in the nature of a "fishing
expedition," and, in the circumstances, did not warrant a further delay of
the proceedings . Compare Paul Ublich & Co, Inc, 26 NLRB 679, 681;
COMPAGNIE INDUSTRIELLE DE TRAVAUX 787
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section I,
above, occurring in connection with Respondent's
operations described in section III, above , have a close,
intimate, and substantial relationship to trade, traffic, and
commerce 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 unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, I shall recommend 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 appropriate
unit will be accorded the services of their selected
bargaining agent for the period provided by law , it shall
be construed that the initial year of certification begins on
the date the Respondent commences to bargain in good
faith with the Union as the recognized bargaining
representative in the appropriate unit. See Mar-Jac
Poultry Company, Inc., 136 NLRB 785; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd.
328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett
Construction Company, 149 NLRB 1419, 1421, enfd. 350
F.2d 57 (C.A. 10); Amax Aluminum Extrusion Products,
Inc., 174 NLRB No. 163.
CONCLUSIONS OF LAW
1. United Steelworkers of America, AFL-CIO, and
Virgin Islands Labor Union, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of the
Act.
2. Compagnie Industrielle de Travaux (Citra) is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
3. All production and maintenance employees employed
by the Employer at the alumina plant of Harvey Alumina
V.I., Inc., located at St. Croix, U.S. Virgin Islands,
including bonded aliens or H(2) employees, crane
operators, welders, laborers, truckdrivers, heavy
equipment operators, electricians, and mess hall
employees, but excluding all office clerical employees,
timekeepers, professional employees, 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. By virtue of a Board certification dated March 11,
1968, United Steelworkers of America, AFL-CIO, has
been, and now is, the certified and exclusive representative
of all of the employees in the appropriate unit described
above for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on and after June 20, 1968, to bargain in
good faith with the United Steelworkers of America,
AFL-CIO, concerning wages, rates of pay, hours, and
other terms and conditions of employment, Respondent
has engaged in and is engaging in unfair labor practices
Morrison Turning Company , inc., 83 NLRB 687, 689.
within the meaning of Section 8 (a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
it is hereby ordered that the Compagnie Industrielle de
Travaux (Citra), its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Steelworkers of America, AFL-CIO, as the exclusive
representative of all its employees in the appropriate unit
with respect to rates of pay, wages, hours of employment,
or other conditions of employment.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with United
Steelworkers of America, AFL-CIO, as the exclusive
representative of the employees in the appropriate unit,
and embody in a signed agreement any understanding
reached.
(b) Post at its place of business in St. Croix copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 24, after being duly signed by its representative,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted.
Reasonable steps shall be taken by the Company to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 24, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 24, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL, upon request , bargain with United
Steelworkers of America , AFL-CIO, as the exclusive
collective-bargaining representative of the employees in
the appropriate unit described below , with respect to
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rates of pay, wages, hours of employment, and other
conditions of employment and, if an understanding is
reached, embody such understanding in a signed
agreement. The appropriate unit is:
All production and maintenance employees
employed by Campagnie Industrielle de Travaux
(Citra) at the alumina plant of Harvey Alumina V.I.,
Inc., located at St. Croix, U.S. Virgin Islands,
including bonded aliens or H(2) employees, crane
operators, welders, laborers, truckdrivers, heavy
equipment operators, electricians, and mess hall
employees, but excluding all office clerical
employees, timekeepers, professional employees,
guards, and supervisors as defined in the Act.
Dated By
COMPAGNIE
INDUSTRIELLE DE
TRAVAUX (CITRA)
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 7th Floor, Pan
Am Building, 255 Ponce De Leon Avenue, Hato Rey,
Puerto Rico 00919, Telephone 809-765-0404.