Texas Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1968

173 N.L.R.B. 978 (N.L.R.B. 1968)

978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texas Industries , Inc. and Local 819, International
Union of Operating Engineers , AFL-CIO. Case
16-CA-3365
November 26, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On September 25, 1968, Trial Examiner Charles W.
Schneider issued his Decision on a Motion for
Judgment on the Pleadings 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 Trial Examiner's
Decision and a supporting brief.
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 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 brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that Texas Industries, Inc., Dallas, Texas, and
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
hereinafter, of the employees of Texas Industries , Inc., Fort
Worth, Texas, herein called the Respondent.
Pursuant to the Decision and Direction of Election, an
election by secret ballot was conducted on March 15, 1968,
under the supervision and direction of the Regional Director.
The Tally of Ballots disclosed that of approximately 75 eligible
voters, 73 cast ballots, of which 46 were for, and 26 were
against the Union, with 1 ballot challenged. On March 25,
1968, the Respondent filed timely Objections to the Election
alleging.
"That on March 14 or 15, immediately preceding the
balloting in the election held in the captioned case at the
Arlington Batch Plant, a group of employees who were
eligible voters in such election were threatened with bodily
harm and injury if they failed to support the union or cast
their votes against the union in the election. Such threats
not only had a coercive effect upon the group of employees
actually hearing the same but was also reasonably calculated
to and probably did reach the ears of other eligible voters
prior to the balloting."
The Respondent moved for an investigation of the objections,
a hearing thereon, the setting aside of the election and the
direction of a new election
Thereafter, Respondent filed Employer's Motion for Deci-
sion or Formal Hearing on Objections to Election, with
attached affidavit of an employee as evidence in support of the
Respondent's objections. In this motion the Respondent
reiterated its position that the election should be set aside or in
the alternative that a hearing be held to resolve the issue.
On May 20, 1968, the Regional Director issued his
Supplemental Decision and Certification of Representative in
which he found the evidence submitted by the Respondent
insufficient to invalidate the Election. Consequently, the
Regional Director overruled Respondent's objections to the
election, denied Respondent's request for hearing thereon and
certified the Union as the exclusive bargaining representative
of the employees. On May 31, 1968, Respondent timely filed
with the Board in Washington, D.C., a Request for Review of
the Regional Director's Supplemental Decision and Certifica-
tion of Representative.
On June 13, 1968, the Board issued an order denying
Respondent's request for review of the Regional Director's
Supplemental Decision and Certification of Representative, on
the ground that it raised no substantial issues warranting
review.
THE UNFAIR LABOR PRACTICE CASE
TRIAL EXAMINER'S DECISION
THE REPRESENTATION PROCEEDING1
Upon petition filed under Section 9 (c) of the National
Labor Relations Act (29 U.S.C.A. 159 (c )) by Local 891,
International Union of Operating Engineers , AFL-CIO, herein
called the Union , the Regional Director for Region 16 of the
Board on February 21, 1968, issued a Decision and Direction
of Election in an appropriate bargaining unit, described
On July 2, 1968, the Union filed the unfair labor practice
charge involved in the instant case, in which it alleged, inter
aka, that the Respondent has refused to bargain with the
Union.
On July 12, 1968, the General Counsel, by the Regional
Director of Region 16, issued a Complaint and Notice of
Hearing alleging that Respondent has committed unfair labor
practices in violation of Section 8(a)(1) and (5) and Section
2(6) and (7) of the Act, by refusing to bargain with the Union
upon request. In due course, the Respondent filed its answer
I Administrative or official notice is taken of the record in the Electrosystems , Inc , 166 NLRB No 81 , enfd. 388 F 2d 683 (C.A. 4,
representation proceeding , Case No . 16-RC -4816 , as the term 1968) Golden Age Beverage Co , 167 NLRB No. 24, Intertype Co V
"record " is defined in Section 102 68 and 102.69 ( f) of the Board's Penello , 269 F Supp 573 (D C Va , 1967 ), Follett Corp., 164 NLRB
Rules and Regulations and Statements of Procedure , National Labor 378, enfd 397 F 2d 91 (C A 7, 1968), Section 9 (d) of the NLRA
Relations Board , Series 8, as revised January 1, 1965 See LTV
173 NLRB No. 142
TEXAS INDUSTRIES 979
to the complaint in which certain allegations of the complaint
were admitted and others denied.
In its Answer the Respondent admits the following allega-
tions of the complaint: (1)filing and service of the charge,
(2)the jurisdictional allegations, (3)that the unit involved is
appropriate, (4)that the election was held, and a majority of
the determinative votes were cast in favor of the Union,
(5)that the Union has requested Respondent to bargain
collectively, and (6)that the Respondent has refused and
continues to refuse to bargain. Respondent denies the allega-
tions in the complaint to the effect: (1)that the Union has
been and is now the exclusive representative for purposes of
collective bargaining of the majority of the employees in the
appropriate unit, (2)that by refusing to bargain, the Respon-
dent did engage in, and is engaging in unfair labor practices
affecting commerce within the meaning of the Act.
The Respondent affirmatively asserts in its Answer that the
Union engaged in conduct violative of the Act and precluding a
fair and impartial election, and, further, that the Regional
Director's refusal to grant a hearing was arbitrary and
capacious and resulted in the denial of due process of law in
violation of the United States Constitution.
On July 25, 1968, the General Counsel issued an Amend-
ment to the Complaint in which he alleged that on or about
June 12, 1968, Respondent, without prior notice to or
consultation with the Union, granted wage increases and an
increased wage rate for work in excess of 8 hours per day. On
August 2, 1968, Respondent filed an Answer admitting the
allegations of the Amendment to the Complaint.
Under date of August 5, 1968, counsel for the General
Counsel filed a Motion to Strike Respondent's Answers to the
original and amended complaints and motion for judgment on
the pleadings, contending that the pleadings, considered
together with the official Board record in the underlying
representation proceeding, Case 16-RC-4816, raised no issues
requiring a hearing, that Respondent's defense set forth in its
answer raises no litigable questions of fact, and that as a matter
of law, Respondent has no valid defense to the complaint.
On August 8, 1968, I issued an order directing the parties to
show cause as to whether or not General Counsel's motion
should be granted On September 3, 1968, counsel for the
Respondent filed a Reply to General Counsel's motion. No
other responses have been received.
RULING ON MOTION TO STRIKE ANSWERS AND
FOR JUDGMENT ON THE PLEADINGS
Respondent contends that General Counsel's motion should
be denied for the following reasons (1)that the Union is not
the legally certified representative of Respondent's employees,
(2)that Respondent filed timely objections to the conduct of
the election, which objections raised material and substantial
issues of fact which could be resolved only after an evidentiary
hearing, (3)and that the Regional Director's actions in denying
Respondent a hearing were arbitrary and capricious and an
abuse of discretion. In sum, Respondent seeks to litigate
before the Trial Examiner the correctness of the prior
representation determinations by the Regional Director and
the Board.
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence or special
circumstances, not to permit litigation before a trial examiner
in an unfair labor practice case of issues which were or could
have been litigated in a prior related representation
proceeding 2
The Respondent offers no evidence not previously tendered
or any indication of special circumstances.
A hearing is not a matter of right in connection with the
disposition of objections to the election, unless substantial and
material issues are raised by the objections.3 The cases cited by
Respondent4 do not negate this proposition; they merely hold
that where there are substantial and material issues a hearing is
required. That there are no such issues here has already been
decided by the Board.
There being no unresolved issues requiring an evidentiary
hearing, or newly discovered or previously unavailable evidence
or special circumstances, the certification of the Board
constitutes the law of the case at this stage of the proceeding.
The motion for judgment on the pleadings is therefore granted.
However General Counsel's motion to strike the Respond-
ent's Answers is denied. There is no ground or evidence from
which to conclude that the Respondent's denial of the Union's
representative status is sham or false. Indeed absent a traverse
of that status the Respondent would have no issue to contest
before the Board or the Courts.
On the basis of the record I make the following:
FURTHER FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation, having an office and
place of business in Dallas, Texas, and various other plants,
places of business, warehouses, and other facilities in the States
of Texas, Louisiana, and Oklahoma, where it is engaged in the
manufacture, sale, and distribution of building materials
including ready-mix concrete, masonry products, structural
concrete, and related products. During the past 12 months,
Respondent, in the course and conduct of its business
operations, manufactured, sold, and distributed at its facilities,
products valued in excess of $500,000, of which products
valued in excess of $50,000 were shipped from said facilities
directly to States of the United States other than the State of
Texas. Only the Respondent's Tarrant County, Texas batch
plants were involved in this proceeding.
II THE LABOR ORGANIZATION INVOLVED
The Union is now and has been at all times material herein a
labor organization within the meaning of Section 2(5) of the
Act.
2 Howard Johnson Company, 164 NLRB 801, Metropolitan Life
Insurance Company, 163 NLRB 579 See Pittsburgh Plate Glass Co v.
N.L.R B, 313 U.S. 146 , 162 (1941 ), Rules and Regulations and
Statements of Procedure , National Labor Relations Board, Series 8, as
revised January 1, 1965, Sec 102.67 (f) and 102.69(c).
3 As the Court of Appeals said in the case of Air Control Window
Products of St. Petersburg, Inc., 335 F.2d 245, 249 (C.A. 5, 1964) "If
there is nothing to hear, then a hearing is a senseless and useless
formality "
4N.L.R.B. v. Sidran, 181 F.2d 671 (C.A. 5, 1950), N.L.R.B. V.
Dallas City Packing Company, 230 F.2d 708 (C.A. 5, 1956),NL.R.B.
v. West Texas Utilities Co., 214 F.2d 732 (C.A. 5, 1954), N L.R.B. v.
Pointsett Lumber & Mfg. Co., 221 F.2d 121 (C.A. 4, 1955),N.L.R.B.
v. Capital Bakers, Inc., 351 F.2d 45, 50 (C.A. 3, 1965), Home Town
Foods, Inc. v. N.L.R.B., 379 F.2d 241 (C.A. 5, 1967).
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE UNFAIR LABOR PRACTICES
The following employees constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act
All production and maintenance employees employed at
the Respondent's Tarrant County ready-mix batch plants,
including all truckdrivers employed by the Respondent at
its Tarrant County ready-mix plants including specifically
Sakrete and masonry truck drivers, plant maintenance
employees, clam shell operators, raw material handlers,
laborers and yardmen working at the Tarrant County batch
plants and including specifically mechanics, auto parts men,
truck service men and laborers working out of the Respond-
dent's Riverside shop, but excluding all office employees,
salesmen, warehouse employees located at Hurst, Texas,
professional employees, guards, watchmen and supervisors
as defined in the Act.
On March 15, 1968, a majority of Respondent's employees
in the appropriate unit selected the Union as their collective
bargaining representative in a secret-ballot election conducted
under the supervision of the Regional Director for Region 16
of the National Labor Relations Board. At all times since
March 15, 1968, and continuing to date, the Union has been
the representative for purposes of collective bargaining of the
employees in the said unit, and by virtue of Section 9(a) of the
Act, has been, and is now, the exclusive representative of all
employees in the said unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment
On or about June 12, 1968, Respondent without prior
notice to or consultation with the Union granted employees in
the unit wage increases and an increased wage rate for work in
excess of 8 hours per day. On or about July 1, 1968, and at all
times thereafter, Respondent refused, and continues to refuse,
to bargain collectively with the Union as the bargaining
representative of the employees in the appropriate unit,
although requested so to bargain by the Union By the
foregoing action the Respondent has refused to bargain
collectively in violation of Section 8(a)(5) of the Act and has
interfered with, restrained, and coerced its employees in
violation of Section 8(a)(l) of the Act.
The aforesaid unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and the entire
record in the case, and pursuant to Section 10(c) of the Act, I
recommend that the Board issue the following
ORDER
A. For purposes of determining the effective period of
duration of the certification, the initial year of certification
shall be deemed to begin on the date the Respondent
commences to bargain in good faith with the Union as the
recognized bargaining representative in the appropriate unit.5
B Texas Industries, Inc., Dallas, Texas, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from.
(a) Refusing to bargain collectively with Local 819, Inter-
national Union of Operating Engineers, AFL-CIO, as the
exclusive collective bargaining representative of the employees
in the following appropriate unit.
All production and maintenance employees employed at
the Respondent's Tarrant County ready-mix batch plants,
including all truckdrivers employed by the Respondent at
its Tarrant County ready-mix plants including specifically
Sakrete and masonry truck drivers, plant maintenance
employees, clam shell operators, raw material handlers,
laborers and yardmen working at the Tarrant County batch
plants and including specifically mechanics, auto parts men,
truck service men and laborers working out of Respondent's
Riverside shop, but excluding all office employees, sales-
men, warehouse employees located at Hurst, Texas, profes-
sional employees, guards, watchmen and supervisors as
defined in the Act.
(b) Interfering with the efforts of said Union to negotiate
for or represent the employees in said appropriate unit as the
exclusive collective-bargaining representative.
(c) Granting wage increases to or making changes in wage
rates of employees in the appropriate unit without prior
bargaining with the Union concerning the matter.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act.
(a) Upon request bargain collectively with Local 819,
International Union of Operating Engineers, AFL-CIO, as the
exclusive representative of the employees in the appropriate
unit with respect to rates of pay, wages, hours of work, and
other terms and conditions of employment and embody in a
signed agreement any understanding reached.
(b) Post at its Tarrant County, Texas, batch plants and
Riverside, Texas shop, copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms provided by the
Regional Director of Region 16, after being duly signed by an
authorized representative of the Respondent, 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
employees are customarily 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, in writing, within 20 days
from receipt of this Decision, what steps it has taken to
comply herewith.7
5 The purpose of this provision is to ensure that the employees in the
appropriate unit will be accorded the statutorily prescribed services of
their selected bargaining agent for the period provided by law. See
Mar-Jac Poultry Company, Inc, 136 NLRB 783, Commerce Co., d/bla
Lamar Hotel , 140 NLRB 226 , 229, enfd . 328 F.2d 600 (C.A. 5, 1964),
Burnett Construction Company, 149 NLRB 1419 , 1421, enfd. 350 F 2d
57 (C A 10, 1965)
6 In the event 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 the 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."
7 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said Regional
Director , 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-
TEXAS INDUSTRIES
WE WILL NOT refuse to bargain collectively with Local
819, International Union of Operating Engineers, AFL-
CIO, as the exclusive collective bargaining representative of
all our following employees:
All production and maintenance employees employed
at our Tarrant County ready-mix batch plants, in-
cluding all truckdrivers employed at our Tarrant County
ready-mix plants including specifically Sakrete and
masonry truck drivers, plant maintenance employees,
clam shell operators, raw material handlers, laborers and
yardmen working at the Tarrant County batch plants
and including specifically mechanics, auto parts men,
truck service men and laborers working out of our,
Riverside shop, but excluding all office employees,
salesmen, warehouse employees located at Hurst, Texas,
professional employees, guards, watchmen and super-
visors as defined in the Act.
WE WILL NOT interfere with the efforts of the Union to
negotiate for or represent employees as exclusive represen-
tative.
WE WILL NOT grant wage increases to or make changes
in wage rates of employees in the appropriate unit without
prior bargaining with the Union concerning the matter.
981
WE WILL bargain collectively with the Union as exclusive
bargaining representative of the employees in the appro-
priate unit and if an understanding is reached we will sign a
contract with the Union
TEXAS INDUSTRIES, INC.
(Employer)
Dated By
(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 direct-
ly with the Board's Regional Office, Rm. 8A24, Federal Office
Bldg., 819 Taylor Street, Fort Worth, Texas 76102 (Tel. No.
334-3921).