Dixie Lime and Stone Company

National Labor Relations Board - Board Decisions

Jun 10, 1983

266 N.L.R.B. 972 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dixie Lime and Stone Company and International
Chemical Workers Union, Joint Council #1 and
its Local 1011. Case 12-CA-10426
10 June 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
Upon a charge filed on 12 November 1982 by
International Chemical Workers Union, Joint
Council #1 and its Local 1011, herein called the
Union, and duly served on Dixie Lime and Stone
Company, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 12, issued a com-
plaint and notice of hearing on I December 1982
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices 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 proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on 24 Septem-
ber 1982, following a Board election in Case 12-
RC-6017, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about 9 Novem-
ber 1982, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On 13 De-
cember 1982 Respondent filed its answer to the
complaint admitting in part, and denying in part,
the allegations in the complaint.
On 10 January 1983 counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached. Subse-
quently, on 19 January 1983 the Board issued an
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. Respondent thereafter filed as its response
to the Notice To Show Cause a document entitled
Official notice is taken of the record in the representation proceed-
ing, Case 12-RC-6017, 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 Elecrrosystems, 166 NLRB 938 (1967), enfd 388 F 2d 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
(DC.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968), Sec. 9(d) of the NLRA, as amended.
266 NLRB No. 174
"Motion in Opposition to General Counsel's
Motion for Summary Judgment."
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 denies the
request and refusal to bargain and asserts that the
Union's certification was improper on the basis of
Respondent's objections to the election and its ex-
ceptions to the Hearing Officer's report and recom-
mendations and supplemental report and recom-
mendations in the underlying representation pro-
ceeding.
Review of the record herein, including the
record in Case 12-RC-6017, reveals that an elec-
tion, conducted pursuant to a Stipulation for Certi-
fication Upon Consent Election on 5 March 1981
resulted in a vote of 39 to 25 in favor of the Union,
with 5 ballots challenged, and I void ballot. There-
after, Respondent filed timely objections to con-
duct affecting the results of the election, alleging,
in substance, that (1) a union representative made
threatening, coercive, and inflammatory comments
which contained threats of physical violence, in-
cluding death, to employees who did not join the
Union; (2) that a union representative threatened
that the Union would take any and all steps to pre-
vent any employee from crossing any picket line or
working during any strike at Respondent's premises
and that no person would be permitted to cross
any picket line of the Union; and (3) that union
representatives communicated throughout the elec-
tion campaign that Respondent would fire all em-
ployees who had indicated support for the Union if
the Union did not win the election.
After an investigation, the Regional Director
issued his Report on Objections on 6 April 1981 in
which he recommended that Respondent's objec-
tions be overruled in their entirety and that the
Union be certified. Thereafter, Respondent filed ex-
ceptions to the Regional Director's report. On 14
September 1981 the Board, having considered the
Regional Director's report, Respondent's excep-
tions thereto, and the entire record, ordered that
the matter be remanded to the Regional Director
for Region 12 for a hearing on Respondent's Ob-
jections 1 and 2 (the alleged threats of physical vio-
lence and threats to prevent any employee from
crossing a union picket line in the event of a
strike). Thereafter, a hearing was held before a
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DIXIE LIME AND STONE COMPANY
duly designated Hearing Officer, and on 17 No-
vember 1981 the Hearing Officer issued his report
and recommendations on objections, in which he
recommended that Respondent's Objections I and
2 be overruled. Respondent filed exceptions to the
Hearing Officer's report and recommendations, in
which it contended that it was denied a fair and
impartial hearing and that the Hearing Officer
failed to resolve the substantial questions raised re-
garding the validity of the election in his report
and recommendations. On 12 February 1982 the
Board issued an order remanding the proceeding
for the purpose of issuing a supplemental report
containing specific credibility resolutions, findings
of fact concerning the testimony of witnesses, and
recommendations on Respondent's Objections I
and 2. Thereafter, a supplemental hearing was held,
and on 11 May 1982 the Hearing Officer issued his
supplemental report and recommendations on ob-
jections, in which he recommended that Respond-
ent's Objections I and 2 be overruled and the
Union be certified. On 24 September 1982 the
Board, having considered the Hearing Officer's
supplemental report and recommendations, Re-
spondent's exceptions, and the entire record in the
case, adopted the findings and recommendations of
the Hearing Officer and certified the Union as the
exclusive bargaining agent of the employees in the
unit stipulated to be appropriate. It thus appears
that Respondent is attempting in this proceeding to
relitigate issues fully litigated and finally deter-
mined in the representation proceeding.
It is well settled that, in the absence of newly
discovered or 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 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-
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. 3
2 See Pirtshurgh Plate Glass Co. v .NI.RB, 313 US. 146., 162 (1941);
Rules and Regulations of the Board, Secs 102 67(f) and 102.069c)
3 In its answer to the complaint. Respondent denies pars 7 and 8 of
the complaint. which allege that, on 25 October 1982 the Union request-
ed that Respondent bargain collectivel: with it, and that since onl or
about 9 November 1982 Respfondent has failed and refused to recognize
or bargain with the Union Counsel for the General Counsel. however.
has submitted a copy of a letter. sent h. the Union and dated 25 October
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation engaged
in the mining and processing of limerock and relat-
ed products at its office and place of business in
Sumterville, Florida. In the course of its business
operations during the 12 months preceding issuance
of the complaint, Respondent sold and shipped
products, goods, and materials valued in excess of
$50,000 from its Sumterville, Florida, facility to
points outside the State of Florida.
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
International Chemical Workers Union, Joint
Council #1 and its Local 1011, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR I ABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
1982 requesting that Respondent meet and negotiate in good faith with
the Union Furthermore. Respondent acknowledged its receipt of the
Union's letter in a response letter sent to the Union. dated 9 November
1982 In this letter of response. Respondent declined the Union's request
to bargain "at [that] time" on the basis of its disagreement with the certi-
fication of the Union. Respondent also noted therein its intention to seek
review of the Board's certification of the Union in the Court of Appeals
for the Eleventh Circuit Although Respondent contends in its response
to the Notice To Show Cause that substantial or material factual issues
exist with respect to its objections, it does not argue that a factual issue
has been raised regarding the request and refusal to bargain Further. it
has not at any material time herein expressed a willingness to bargain
with the Union Finally, it is clear from its position set forth in its re-
sponse to the Notice To Show Cause that Respondent contends that it is
under no legal obligation to bargain with the Union on the grounds that
the certification of the Union was invalid Accordingly, we find that Re-
spondent's denials of pars 7 and 8 of the complaint raise no substantial or
material issue of fact warranting further hearing in this case. We also find
that Respondent's remaining denials in its answer raise no substantial or
material issues of fact warranting a hearing.
Member Hunter notes that he did not participate in the Board proceed-
ings in the underlying representation case He further notes that he would
not adiopt the Hearing Officer's reliance oin Iickory Springs Manufaczur-
ing Co. 239 NLRB 641 11978). which in any event has since been over-
ruled in IHome' and Industrial Dlsploal Serrice. 266 NLRB 100 (1983). Fi-
nally. Member Hunter notes and relies on the Hearing Officer's further
finding that in fact no threats were made bh the Union or its representa-
Iites
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes within the meaning of Section 9(b) of the
Act:
Included: All full-time and regular part-time
employees, including production and mainte-
nance employees, construction division em-
ployees, laboratory employees, lime plant em-
ployees, ag-lime employees, mining employees,
warehouse employees, janitor and leadmen em-
ployed by the Employer at its Sumterville,
Florida facility.
Excluded: Office clerical employees, lime plant
foremen, professional employees, guards and
supervisors as defined in the Act.
2. The certification
On 5 March 1981 a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 12, 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 24 September 1982, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about 25 October 1982, 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 9 November 1982, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
9 November 1982, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit and that, by such refusal, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) 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 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 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-
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, 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; Burnett Construction Co., 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. Dixie Lime and Stone Company is an employ-
er engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Chemical Workers Union, Joint
Council #1 and its Local 1011, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The following unit constitutes a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
Included: All full-time and regular part-time
employees, including production and mainte-
nance employees, construction division em-
ployees, laboratory employees, lime plant em-
ployees, ag-lime employees, mining employees,
warehouse employees, janitor and leadmen em-
ployed by the Employer at its Sumterville,
Florida facility.
Excluded: Office clerical employees, lime plant
foremen, professional employees, guards and
supervisors as defined in the Act.
4. Since 24 September 1982 the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
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DIXIE LIME AND STONE COMPANY
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 9 November 1982,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent has engaged in and is engaging in unfair
labor practices 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 Respondent, Dixie
Lime and Stone Company, Sumterville, Florida, 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
conditions of employment with International
Chemical Workers Union, Joint Council #1 and its
Local 1011, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
Included: All full-time and regular part-time
employees, including production and mainte-
nance employees, construction division em-
ployees, laboratory employees, lime plant em-
ployees, ag-lime employees, mining employees,
warehouse employees, janitor and leadmen em-
ployed by the Employer at its Sumterville,
Florida facility.
Excluded: Office clerical employees, lime plant
foremen, professional 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 Sumterville, Florida, office and
place of business copies of the attached notice
marked "Appendix."4 Copies of said notice, on
forms provided by the Regional Director for
Region 12, 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 conspic-
uous places, including all places where notices to
employees customarily are posted. Reasonable steps
shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 12,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
4 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States of
Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with International Chemical Workers Union,
Joint Council #1 and its Local 1011, as the ex-
clusive representative 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 WILL, 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
975
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
Included: All full-time and regular part-time
employees, including production and mainte-
nance employees, construction division em-
ployees, laboratory employees, lime plant
employees, ag-lime employees, mining em-
ployees, warehouse employees, janitor and
leadmen employed by the Employer at its
Sumterville, Florida facility.
Excluded: Office clerical employees, lime
plant foremen, professional employees,
guards and supervisors as defined in the Act.
DIXIE LIME AND STONE COMPANY
976