Monier Roof Tiles

National Labor Relations Board - Board Decisions

Mar 9, 1981

254 N.L.R.B. 1191 (N.L.R.B. 1981)

MONIER TILES 1191
and
&
&
8(a)(5)
2(6)
'
delined
Secs. 102.69(g) R u l e
Electmsystems Inc.. 166 (1967),
F.2d Cir. Bewmge
(1967). F.2d lnferfyp Penello.
F.Supp. (D.C.Va. Folleff Corp., 164 (1967).
F.2d Sec. 9(d)
nonde-
8(a)(5)
pro~eeding.~
Piusburgh Glarc 146.
Secs. 102.67(0 102.69(c).
ROOF

Monier Roof Tiles Cement, Quarry Workers,
Ready Mix Dump Truck Drivers, Local 681,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 37-CA-1666
March 9, 1981
DECISION AND ORDER
Upon a charge filed on June 25, 1980, by
Cement, Quarry Workers, Ready Mix Dump
Truck Drivers, Local 681, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, and duly served on Monier Roof
Tiles, herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 20, issued a com-
plaint on July 24, 1980, against Respondent, alleg-
ing that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section and (1) and
Section and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative 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 May 22,
1980, following a Board election in Case 37-RC-
2513, 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 June 20, 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 August 4, 1980, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On November 25, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 2,
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 Sum-
mary Judgment should not be granted. Respondent
The Board's Decision and Certification of Representative is reported
at 249 NLRB 703. Official notice is taken of the record in the representa-
tion proceeding. Case 37-RC-2513, as the term "record" is in
102.68 and of the Board's and Regulations. Series 8,
as amended. See LTV NLRB 938 enfd.
388 683 (4th 1968); Golden Age Co., 167 NLRB 151
enfd. 415 26 (5th Cir. 1969): Co. v. 269
573 1967); NLRB 378 enfd.
397 91 (7th Cir. 1968): of the NLRA, as amended.
254 NLRB No. 162
thereafter filed an opposition to the Motion for
Summary Judgment and response to the Notice T o
Show Cause.
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 its opposition
and response to the Motion for Summary Judg-
ment, Respondent denies that it has unlawfully re-
fused to bargain with the Union contending that
the Union's certification upon which the complaint
in this matter is based is invalid and unenforceable
for the reasons set forth in its objections to the
election and conduct affecting the results of the
election which it previously had filed in the repre-
sentation proceeding.
Review of the record herein, including the
record in Case 37-RC-2513, reveals that, on De-
cember 18, 1979, pursuant to a Stipulation for Cer-
tification Upon Consent Election, an election was
held in the stipulated appropriate unit resulting in a
vote of 29 to 7 in favor of the Union with 1
terminative challenged ballot. Respondent filed
timely objections to the election with Subregion
37. Respondent argued, in pertinent part, that the
Union interfered with the election by making mate-
rial misrepresentations, including falsely informing
employees that Respondent had engaged in unfair
labor practices, and that the Union made further
statements which improperly involved the Board
and its processes.
On February 25, 1980, the Acting Regional Di-
rector issued a Report on Objections recommend- *
ing that the objections be dismissed or overruled in
their entirety and that the Union be certified. Re-
spondent filed timely exceptions to the Acting Re-
gional Director's recommendations, and filed a
brief in support thereof. On May 22, 1980, the
Board issued a Decision and Certification of Repre-
sentative adopting the Acting Regional Director's
findings and recommendations.
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
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
See Plate Co. v. N.L.R.B., 313 U.S. 162 (1941):
Rules and Regulations of the Board. and
$200,000,
$50,000
2(6)
11.
2(5)
111.
1.
9(b)
secret-
9(a)
8(a)(5)
IV. UNFAIR
111,
8(a)(5)
1192 DECISIONS O F NATIONAL LABOR RELATIONS BOARD
it allege that any special circumstances exist herein 2. The certification
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:
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent has
been a corporation duly organized under and exist-
ing by virtue of the laws of Hawaii with an office
and principal place of business in Honolulu,
Hawaii, where it is engaged in the manufacture and
nonretail sale and distribution of roof tiles and re-
lated products. During the calendar year ending
December 31, 1979, Respondent, in the course and
conduct of its business, derived gross revenues in
excess of and purchased and received at
its Honolulu, Hawaii, facility products, goods, and
materials valued in excess of directly from
points outside the State of Hawaii.
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
Cement, Quarry Workers, Ready Mix & Dump
Truck Drivers, Local 681, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section of
the Act.
THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section of the
Act:
All production and maintenance employees
employed on the Island of Oahu, Hawaii; ex-
cluding office clerical employees, professional
employees, salesmen, guards, and supervisors
as defined in the National Labor Relations
Act, as amended, and installers.
On December 18, 1979, a majority of the em-
ployees of Respondent in said unit, in a
ballot election conducted under the supervision of
the Regional Director for Region 20, 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 May 22, 1980, and the Union continues to be
such exclusive representative within the meaning of
Section of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about June 18, 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 June 20, 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
June 20, 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 and (1) .
of the Act.
THE EFFECT OF THE LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
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 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
e
Znc.,
140 (1962),
F.2d 1964),
Burnett
(1964), F.2d
1.
2(6)
&
2(5)
9(b)
9(a)
8(a)(5)
8(a)(l)
2(6)
10(c)
&
office
"Appendi~ ."~
copies provided
posted ~espondent
coosecutive
including
Nat~onal
1193 MONIER ROOF TILES
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); Commerce Company d/b/a
Lamar Hotel, NLRB 226, 229 enfd. 328
600 (5th Cir. cert. denied 379 U.S. 817;
Construction Company, 149 NLRB 1419,
1421 enfd. 350 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
Monier Roof Tiles is an employer engaged in
commerce within the meaning of Section and
(7) of the Act.
2. Cement, Quarry Workers, Ready Mix
Dump Truck Drivers, Local 681, affiliated with
the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section
of the Act.
3. All production and maintenance employees
employed on the Island of Oahu, Hawaii; excluding
office clerical employees, professional employees,
salesmen, guards, and supervisors as defined in the
National Labor Relations Act, as amended, and in-
stallers, constitute a unit appropriate for the pur-
poses of collective bargaining within meaning of
Section of the Act.
4. Since May 22, 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-
tiv bargaining within the meaning of Section
of the Act.
5. By refusing on or about June 20, 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 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 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,
Monier Roof Tiles, Oahu, Hawaii, 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 Cement, Quarry
Workers, Ready Mix Dump Truck Drivers,
Local 681, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All production and maintenance employees
employed on the Island of Oahu, Hawaii; ex-
cluding office clerical employees, professional
employees, salesmen, guards, and supervisors
as defined in the National Labor Relations
Act, as amended, and installers.
(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 Oahu, Hawaii, and plant
copies of the attached notice marked
of said notice, on forms by the
Regional Director for Region 20, after being duly
signed by Respondent's representative, shall be
by immediately upon receipt
thereof, and be maintained by it for 60
days thereafter, in conspicuous places, all
In the event that this Order i s enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the 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."
(1980),
&
WILL
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
CHAIRMAN FANNING, dissenting:
As stated in my dissent to the Board's Decision
in the underlying representation proceeding report-
ed at 249 NLRB 703 I would have set the
election aside based on Respondent's Objections 8
and 9. I agree with Respondent's contentions here
that the Union's certification is invalid and that Re-
spondent has not unlawfully refused to bargain
with the Union as alleged in the complaint. Ac-
cordingly, I dissent from my colleagues' grant of
the present Motion for Summary Judgment.
APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR 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 Cement, Quarry Workers, Ready Mix
Dump Truck Drivers, Local 681, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive representative of
the employees in the bargaining unit described
below.
WE 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
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employees
employed on the Island of Oahu, Hawaii;
excluding office clerical employees, profes-
sional employees, salesmen, guards, and su-
pervisors as defined in the National Labor
Relations Act, as amended, and installers.