Granite State Minerals, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1981

254 N.L.R.B. 1047 (N.L.R.B. 1981)

Granite Local
Upo11
AFL-CIO,
Labor
a:lleging
engaging
8(a)(5)
( I . ] 2(6)
adminia,trative
I-RC-
c:mployees
and
exc:lusive
Summu-y
the
why
thereafter
ntakes
'
Secs.
102.69(1g) 8.
E~ectmsystems. (1967), F.2d
191%); Bevemge (1967),
F.2d Inrertyp Penello, F.Supp.
(D.C.Va. 1!157); Foliett Corp., (1967), F.2d
1908): Sec. 9(d)
8(a)(l) 2(6)
102.69(g)
F.2d
~ e v i e w
C
1980,
Chal-
NLIZB
GRANITE STATE MINERALS. INC. 1047
State Minerals, Inc. and 1947, Inter-
national Longshoremen's Association, AFL-CIO.
Case I-CA-17911
March 4, 198 1
DECISION A N D ORDER
a charge filed on September 30, 1980, by
Local 1947, International Longshoremen's Associ-
ation, herein called the Union, and duly
served on Granite State Minerals, Inc., herein
called :Respondent, the General Counsel of the Na-
tional Relations Board, by the Regional Di-
rector for Region 1, issued a complaint and notice
of healing on October 21, 1980, against Respon-
dent, that Respondent had engaged in and
was in unfair labor practices affecting
commerce within the meaning of Section
and and Section and (7) of the National
Labor Relations Act, as amended. Copies of the
charge, complaint, and notice of hearing before an
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 September
19, 1980, following a Board election in Case
16802, the Union was duly certified as the exclu-
sive col lective-bargaining representative of Respon-
dent's in the unit found appropriate;'
and that, commencing on or about September 19,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to recog-
nize to bargain collectively with the Union as
the bargaining representative, although
the Union has requested and is requesting it to do
so. On October 29, 1980, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On November 24, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Judgment. Subsequently, on December 2,
1980, Board issued an order transferring the
proceeding to the Board and a Notice T o Show
Cause the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
filed a response to the Notice T o Show
Cause.
Upon the entire record in this proceeding, the
Board the following:
Official notice is taken of the record in the representation proceed-
ing, Case I-RC-16802. as the term "record" is defined in 102.68
and of the Board's Rules and Regulations. Series as amended.
See LTV Inc., 166 NLRB 938 enfd. 388 683
(4th Cir. Golden Age Co.. 167 NLRB 151 enfd. 415
26 (5th Cir. 1969); Co. v. 269 573
164 NLRB 378 enfd. 397 91
(7th Cir. of the NLRA, as amended.
254 No. 133
Ruling on the Motion for Summary Judgment
In its answer to the complaint Respondent ad-
mitted that the Union was certified as the exclusive
collective-bargaining representative of the employ-
ees in the appropriate unit, and that the Union re-
quested it to bargain with respect to rates of pay,
wages, hours, and other terms and conditions of
employment. Respondent denied that the Union
has been the exclusive representative for the pur-
poses of collective bargaining for the unit employ-
ees, Respondent also denied that it violated Section
and (5) and Section and (7) of the Act,
as amended. In its response to the Notice T o Show
Cause, Respondent contended that the election in
the underlying representation proceeding was
invalid because of the Union's objectionable con-
duct and that the challenge to Ronald Nadeau's
ballot should have been sustained. Respondent also
contended that it was improperly denied a hearing
to resolve substantial and material issues of fact
raised in its objections to the conduct of the elec-
tion. Finally, Respondent contends that the Board
abused its discretion and denied Respondent due
process of law by rendering its decision in the un-
derlying representation proceeding without having
before it the entire record as required by Section
of the Board's Rules and Regulations and
Ptestolite Wire Division v. N.L.R.B., 592 302
(6th Cir. 1979).
of the record herein, including the
record in Case 1-RC-16802, reveals that on March
27, 1980, the Acting Regional Director for Region
1 approved the parties' Stipulation for Certification
Upon Consent Election in a unit of all employees
who regularly work at Respondent's Market Street,
Portsmouth, New Hampshire, location, including
machine operators, crane operators, truckdrivers,
laborers and bagging men, mechanics and dispatch-
er-weighers, excluding casual employees (defined
as employees employed only when a ship is docked
at the Employer's plant), office clerical employees,
guards, and supervisors as defined in the Act. Sub-
sequently, on May 2 and 9, 1980, a secret-ballot
election was held among the unit employees. On
May 9, the Regional Director issued a tally
of ballots which showed that of approximately 13
eligible voters, 3 voted for, and 2 voted against Pe-
titioner, and 8 ballots were challenged, a sufficient
number to affect the election results. On May 16,
1980, Respondent filed timely objections to the
conduct of the election. The Regional Director
conducted an investigation of Respondent's objec-
tions and of the challenged ballots. As a result of
said investigation, on July 2, 1980, the Regional Di-
rector issued a Report on Objections and
lenged
1r1
th~:
Ck~allenged
h a r d
rairled
Desision
Rel$onal
revised
Dirtxtor
!ieptember
e:nployment
reprtsentative
Respmdent
recog:nize
thc
the
reliti-
Rules
]'or
Wire ,Pivision,
i t 2 Section 3(b)
discretion
in
fmding
8(a)(5)
litigable
2(6)
11.
2(5)
' Pirrsburgh Plore G lm Co, N.LR.B.. 146,
Regulat~ons Sen. 102.67(0 102.69(c). a Soirthwest
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ballots in which he recommended that Re-
spondent's objections be overruled in their entirety.
his report, the Regional Director further recom-
mended that the challenges to the ballots of six of
the eight employees be sustained, that the chal-
lenges to the remaining two ballots be overruled,
and that the latter two ballots be opened and
counted.
On July 15, 1980, Respondent filed exceptions to
Regional Director's Report on Objections and
Ballots. On September 8, 1980, the
issued a Decision and Direction in which it
adopted the findings and recommendations of the
Regional Director and found that the exceptions
no material or substantial issues warranting a
hearing. Pursuant to the Board's above-mentioned
and Direction, on September 15, 1980, the
Director opened and counted the two re-
maining determinative challenged ballots and issued
a tally of ballots showing that the Union
had received a majority of the valid votes cast in
the election. On September 19, 1980, the Regional
issued a Certification of Representative
certifying the Union as the exclusive bargaining
representative of the employees of Respondent.
The complaint alleges and the answer admits that
on 19, 1980, the Union requested that
Respondent bargain collectively with respect to
pay, wages, hours, and other terms and conditions
of with the Union as the exclusive
of all the employees of Respondent.
On September 19, 1980, and at all times thereafter,
did refuse and continues to refuse to
and bargain collectively with the Union
as exclusive representative of all the employees
in appropriate unit. It thus appears that Re-
spondent is attempting in this proceeding to
gate issues fully litigated and finally determined in
the representation proceeding.
As noted, supra, Respondent contends that the
Board renders its decision in the underlying repre-
sentation proceeding without having before it the
entire record as required by Section 102.69 (g) of
the and Regulations and the Court of Ap-
peals the Sixth Circuit's decision in Prestolite
supra. We reject this contention.
With all due respect to the court, we disagree with
its holding in that case and we decline to follow
of the Act authorizes the Board to
delegate to its regional directors its powers under
Section 9, and places review of any such delegated
action by a regional director within the Board's
discretion. We find that it was a proper exercise of
our to adopt the Regional Director's de-
cision the underlying representation matter inas-
See Color Printing Corporation. 247 NLRB No. 127 (1980).
much as Respondent's exceptions thereto raised no
substantial or material issues to warrant a hearing.
This is supported by the Act's policy of ex-
peditiously resolving questions concerning repre-
sentation.
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 is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.'
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 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:
I. THE BUSINESS OF RESPONDENT
Granite State Minerals, Inc., is a New Hampshire
corporation with its principal place of business in
Portsmouth, New Hampshire, and is engaged in the
importation, sale, and distribution of raw salt and
related products. The Employer annually receives
goods valued in excess of $50,000 from points out-
side the State of New Hampshire and from foreign
countries.
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 and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
THE LABOR ORGANIZATION INVOLVED
Local 1947, International Longshoremen's Asso-
ciation, AFL-CIO, is a labor organization within
the meaning of Section of the Act.
Trustees of Boston University, 242 NLRB 110 (1979).
See v . 313 U.S. 162 (1941):
Rules and of the Board, and

111.
purposs 9(b)
M~uket
location,
op:rators,
ofice
liespondent
1,
collecti\e
certified
oi'
rep]-esentative
9(a) the
Zie
al,
Respondent
empl'3yees
)on
refustxl,
ror
UIII
Septembeln
bargain
8(a)(5)
Act.
111, occurring
V.
8(a)(5)
a p
Inc.,
Company
(1962),
F.2d 1964), cert.
Burnett
(1964), F.2d
2(6)
2(5)
ofice
1049 GRANITE STATE MINERALS, INC.
THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
within the meaning of Section of the
Act:
All employees who regularly work at the
Street, Portsmouth, New Hampshire,
including machine operators, crane
truckdrivers, laborers and bagging
men, mechanics and dispatcher-weighers, ex-
cluding casual employees (defined as employ-
ees employed only when a ship is docked at
the Employer's plant), clerical employ-
ees, guards, and supervisors as defined in the
Act.
2. The certification
On May 2 and 9, 1980, a majority of the employ-
ees of in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region designated the
Union as their representative for the purpose of
bargaining with Respondent. The Union
was as the collective-bargaining represen-
tative the employees in said unit on September
19, 1980, and the Union continues to be such exclu-
sive within the meaning of Section
of Act.
B. Request To Bargain and Respondent's
Refusal
Commencing on or about September 19, 1980,
and at times thereafter, the Union has requested
to bargain collectively with it as the
exclusive collective-bargaining representative of all
the in the above-described unit. Com-
mencing or about September 19, 1980, and con-
tinuing at all times thereafter to date, Respondent
has and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative collective bargaining of all employees
in said t.
Accordingly, we find that Respondent has, since
19, 1980, and at all times thereafter, re-
fused to collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section and
(1) of the
IV. THE EFFECT OF THE UNFAIR LABOR

PRACTICES UPON COMMERCE

The activities of Granite State Minerals, Inc., set
forth in section above, in connection
with its operations described in section I, 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.
THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section and (I) 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
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); Commerce d/b/a
Lamar Hotel, 140 NLRB 226, 229 enfd. 328
600 (5th Cir. denied 379 U.S. 817;
Construction Company, 149 NLRB 14 19,
1421 enfd. 350 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
1. Granite State Minerals, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion and (7) of the Act.
2. Local 1947, International Longshoremen's As-
sociation, AFL-CIO, is a labor organization within
the meaning of Section of the Act.
3. All employees who regularly work at the
Market Street, Portsmouth, New Hampshire, loca-
tion, including machine operators, crane operators,
truckdrivers, laborers and bagging men, mechanics
and dispatcher-weighers, excluding casual employ-
ees (defined as employees employed only when a
ship is docked at the Employer's plant),
clerical employees, guards, and supervisors as de-
fined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9@) of the Act.
1050 DEClSlONS
liibor
iuld
aloresaid collec-
ti,,e 9(a)
01'
prxtices 8(a)(S)
C .
em1,loyees
them
8(a)(l)
"Ap-
p e n d i ~ . " ~
1,
2(6) "n tbet Ordu is e n f o r d n Coun
Appeds m
the
l a c )
Gran~te
succe:zaors,
1. C'kase
of
clusivc
i'ollowing
Mi~rket
op:rators,
Tak~:
Board
NOTICE EMPLOYEFS
ORDER
NATIONAL
'
Longhore-
Hamg
OF NATIONAL LABOR RELATIONS BOARD
4. Since September 19, 1980, the above-named
organization has been and now is the certified
exclusive representative of all employees in the
appropriate unit for the purpose of
bargaining within the meaning of Section
the Act.
5. By refusing on or about September 19, 1980,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ee; of Respondent in the appropriate unit, Respon-
dent has engaged in and is engaging in unfair labor
within the meaning of Section of
the Act.
By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
in the exercise of the rights guaranteed
in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section and (7) of the Act.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended,. the National Labor Re-
lations Board hereby orders that the Respondent,
State Minerals, Inc., its officers, agents,
and assigns, shall:
and desist from:
(a) Refusing to bargain collectively concerning
rates pay, wages, and other terms and conditions
of employment with Local 1947, International
Longs boremen's Association, AFL-CIO, as the ex-
bargaining representative of its employees
in the appropriate unit:
All employees who regularly work at the
Street, Portsmouth, New Hampshire,
location, including machine operators, crane
truck drivers, laborers and bagging
men, mechanics and dispatcher-weighers, ex-
cluding casual employees (defined as employ-
ees employed only when a ship is docked at
the Employer's plant), office clerical employ-
ees, 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. the following affirmative action which
the 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 Portsmouth, New Hampshire, fa-
cility copies of the attached notice marked
Copies of said notice, on forms provided
by the Regional Director for Region 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 Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
the event this by Judgment of a United
States of Appeals, the words in the notice reading "Posted By
Order of the National Labor Relations Board" shall read "Ported Pursu-
ant to a Judgment of the United States Court of Enforcing
Order of National Labor Relations Board."
APPENDIX
T o
POSTED BY OF THE
ABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Local 1947, International
men's Association, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing 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 represen-
tative of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions
of employment, and, if an understanding is
reached, embody such understanding in a
signed agreement. The bargaining unit is:
All employees who regularly work at the
Market Street, Portsmouth, New
shirc, o f ice
crai~e de-
1051 GRANITE STATE MINERALS. INC.
location, including machine operators, ship is docked at our plant), clerical
operators, truck drivers, laborers and employees, guards, and supervisors as
bagging men, mechanics and dispatcher- fined in the Act.
weighers, excluding casual employees (de-
fined as employees employed only when a GRANITE STATE MINERALS, INC.