New Enterprise Stone and Lime Co., Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1969

176 N.L.R.B. 586 (N.L.R.B. 1969)

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New Enterprise Stone and Lime Co., Inc . and United
Cement, Lime and Gypsum Workers International
Union, AFL-CIO. Case 6-CA-4174
June 11, 1969
DECISION AND ORDER
Upon a charge filed by United Cement, Lime and
Gypsum Workers International Union , AFL-CIO,
herein called the Union, the General Counsel for the
National Labor Relations Board, by the Acting
Regional Director for Region 6, issued a complaint
and notice of hearing , dated June 28, 1968, against
the New Enterprise Stone and Lime Co., herein
called the Respondent , alleging that the Respondent
has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(1) and
(5), and Section 2(6) and (7) of the National Labor
Relations Act, as amended . Subsequently, the
Respondent filed its answer , admitting in part, and
denying in part, the allegations of the complaint,
and filed a Motion for Summary Judgment of
Dismissal , alleging that Court review of Case
6-CA-4038' will be dispositive not only of the
Respondent's bargaining obligation in that case but
also of its bargaining obligation in the instant case.
On July 15, 1968, the Regional Director referred the
Motion for Summary Judgment of Dismissal to the
Trial Examiner designated to conduct the hearing,
for ruling. The General Counsel filed opposition to
the Respondent ' s motion . By Order dated July 25,
1968, Trial Examiner Sidney Sherman denied the
Respondent ' s Motion for Summary Judgment of
Dismissal.
Thereafter, on August 26, 1968, the General
Counsel filed a Motion to Board for Summary
Judgment , moving that all the material allegations
in the complaint , in view of the admission contained
in the Respondent ' s answer, be deemed to be
admitted to be true, that the Respondent be found
to have violated Section 8(a)(5) and (1) of the Act,
and that the Board make findings of fact and
conclusions of law in conformity with the allegations
of the complaint. On August 28, 1968, the Board
issued an Order Transferring Proceeding to the
Board and a Notice to Show Cause. On September
11, 1968, the Respondent filed with the Board an
opposition to General Counsel' s Motion for
Summary Judgment.
Upon the entire record in this case, the Board
makes the following:
FINDINGS OF FACT
virtue of the laws of the State of Delaware and is
engaged in New Enterprise , Pennsylvania, in the
operation of quarries , the manufacture and sale of
concrete products , and in construction and
maintenance work for its various plants and
divisions, the majority of which are located in
Pennsylvania. During the past year 12-month
period , Respondent purchased supplies and
materials valued in excess of $50 ,000 for use at its
Pennsylvania facilities, directly from points outside
the Commonwealth of Pennsylvania . During the
same period , Respondent shipped from its
Pennsylvania facilities goods and materials valued in
excess of $50,000, directly to points outside the
Commonwealth of Pennsylvania . We find that
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union 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
At all times material herein the following
employees of the Respondent have constituted a unit
appropriate for collective bargaining within the Act:
All production and maintenance employees of
New Enterprise Stone & Lime Company, Inc., at
its Concrete Products Division plant in Roaring
Spring, Pennsylvania , including prestressed
concrete employees, but excluding all other
employees, office clerical employees, technical
employees and guards, professional employees and
supervisors as defined in the Act.
2. The certification
On August 16, 1967, a majority of the employees
of Respondent in said unit, in a secret election
conducted under the supervision of the Regional
Director for Region 6, designated the Union as their
representative for the purposes of collective
bargaining with Respondent; and on August 24,
1967, the Regional Director for Region 6 certified
the Union as the collective-bargaining representative
of the employees in said unit and the Union
continues 'o be such representative of all employees
in said unit.
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein , a corporation duly organized and existing by
New Enterprise Stone and Lime Co .. Inc.. 168 NLRB No. 95.
B. The Respondent's Alleged Violations of
Section 8(a)(5) and (1)
The Respondent , in its answer to the complaint
herein , admits : ( 1) that on or about August 27,
176 NLRB No. 71
NEW ENTERPRISE STONE AND LIME CO. 587
1967, it unilaterally and without prior notice to or
consultation with the Union, discontinued weekday
overtime of its employees employed in the aforesaid
unit, and as a result of the elimination of such
overtime transferred approximately eight employees
employed in the aforesaid unit from the day shift to
the afternoon shift; and (2) that on or about
November 6, 1967, it unilaterally and without notice
to or consultation with the Union, converted the
positions of four hourlypaid leadmen, who had
heretofore been included in the aforesaid unit, into
nonbargaining unit positions.
The record discloses that the events covered by
the allegation of the complaint referred to above, as
to the unilateral discontinuance of daily overtime,
occurred prior to the filing of the charge and
issuance of the complaint in the earlier Section
8(a)(5) proceedings.'
We have determined as a matter of sound judicial
administration of the Act to dismiss the allegation
of the instant complaint alleging unilateral change,
by the Respondent, in the overtime hours worked by
its employees. Unlike the situation in Quaker Tool
and Die , Inc.,' the events covered by the instant
allegation occurred prior to the issuance of the
complaint in the aforementioned Section 8(a)(5)
proceeding and were apparently known to have
occurred by the parties. As no special circumstances
have been shown here to now justify making the
alleged violation the subject of a separate Section
8(a)(5) proceeding, we shall, accordingly, deny the
Motion for Summary Judgment and order dismissal
of this allegation of the complaint.
As noted, the other allegation of the instant
complaint asserts that Respondent violated Section
8(a)(5) of the Act by unilaterally converting, on or
about November 7, 1967, the positions of four
hourly-paid leadmen, who theretofore had been
included in the bargaining unit , to nonbargaining
unit positions . Respondent ' s answer, however, while
admitting such unilateral conduct, raises a question
whether by doing so the Respondent eliminated any
unit work. The meager record before us is factually
insufficient to resolve the legal issues raised. A
material issue of fact having been raised , the Motion
for Summary Judgment must be denied. However,
although the normal procedure would be to remand
the case for further hearing, we have determined
that no useful purpose would be served by doing so.
Even if this alleged violation was factually
established , we would not in the circumstances of
this case require the Respondent to do more than
fulfill its bargaining obligation in the appropriate
unit as required by our earlier order. This would
add nothing of substance to the remedy provided in
the earlier case. Accordingly, we shall order
dismissal of this allegation of the complaint.
ORDER
'See fn. T.
' 169 NLRB No. 166 . and it hereby is , dismissed.
It is hereby ordered that the complaint herein be,