United Cement Co.

National Labor Relations Board - Board DecisionsFeb 28, 1979

240 N.L.R.B. 1047 (N.L.R.B. 1979)

UNITED CEMENT COMPANY 1047 United Cement Company and United Cement, Lime and Gypsum Workers International Union, AFL- CIO. Case 26 CA--7406 February 28, 1979 DECISION AND ORDER BY, CIIAIRMA 9 FANNING AN[) MSIBHFRS J NKINS AND ML:RPII Upon a charge filed on September 8. 1978. bh United Cement, Lime and Gypsum Workers Interna- tional Union, AFL CIO, herein called the Union, and duly served on United Cement Company, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 26. issued a complaint on Septem- ber 19, 1978, against Respondent, alleging that Respondent had engaged in and was engaging in un- fair labor practices affecting commerce within the meaning of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Relations Act. as amended (the Act). Copies of the charge and conm- plaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices. the com- plaint alleges in substance that on July 31. 1978. fol- lowing a Board election in Case 26 RC 5566, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate and that, commencing on or about August 15, 1978. and at all times thereaf- ter, Respondent has refused. and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On October 2, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On October 20. 1978. counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently. on October 27. 1978, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sumary Judg- ment should not be granted. Respondent thereafter Officlal notice is taken of the record in the representaiion procceeding. (ase 26 R( 5566 .as the term "record" is defined in Sec, 1(I028 nd 102 6 9 (g) of the NLRB Rules and Reulation, and Statements of Procedurer Series K, as amended See 1.J I /ecrosi tn, Inc.. 166 NL RB 938 19671. enfd. 388 I.-2d 683 (4lh (r. 196XI; (,lden 4c 1l<.r .g ( . It7 N I.RB I 1 1967). enfd 415 2d 26 (5th (r 19691. Inrltript (Co ; t'cci/ . 26h9 F.Supp 73 D)('. a 1967): ,/letit C(,rip 164 NlRB 78 ( 967). enfd 'u F 2d 91 i71h (it 196 ): Se 9(d) of the Ac.. 240 NLRB No. 156 filed a response to Notice To Show Cause. 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 response to the Notice To Show Cause, Respon- dent renews its attack on the validity of the Union's certification in Case 26 RC 5566. Respondent con- tends that substantive fact issues continue to exist concerning the supervisory status of personnel called "brown hats." Thus, Respondent contends that the "brown hats" are statutory supervisors, that they en- gaged in improper prounion activities during the election campaign. and that they were used improp- erly by the Union as election observers. In addition. Respondent contends that it was denied its right to litigate additional issues because the Regional Direc- tor failed to investigate certain additional objections. The General Counsel contends that all matters sought to be litigated herein were disposed of by the Regional Director in his Supplemental Decision and Order and in his Second Supplemental Decision and Certification of Representative. We agree with the General Counsel. Our review of the record in Case 26 RC-55662 discloses that an election by secret ballot was con- ducted on September 15. 1977.3 There were determi- native challenged ballots, and the Union filed objec- tions. Thereafter. the Regional Director directed that a hearing be held on the challenged ballots and the objections. On December 21. 1977, the Hearing Offi- cer issued his report. in which he, inter alia, ( ) found that the employees in the disputed classifications (the personnel Respondent refers to as "brown hats") were not supervisors within the meaning of the Act and that their challenged ballots should be opened and counted: (2) sustained certain of the Union's ob- jections: and (3) recommended that the election be set aside and a second election be held in the event that the revised tally of ballots revealed that a major- ity of the valid votes counted had not been cast for the Union. On February 2. 1978, the Regional Direc- -Ihe petitln in Ca,.e 26 R( 5566h as filed h the International Broth- erhlood f lea.iters. local I nion No 891 (eamsters Local 891). on Janu- alrs 7. 1977 hereafter. the I nion was permitted to intervene and Team- 'Iers .cal 8S91 as permitted to withdraw from the ballot. he lectiloi wad conducted pursuant to a Declslion and Direction of [lection issued h the Regional Director on August 17. 1977. hereafter. the IIoII filed .I request for revleA with the Board objecting to the Region- a.1 )rector's exclusion from he unit of the emplosees whom the Respon- deiit here efers to a "bro, wn hat,." ()n September 9. 1977. the Board direct- ed tha the eniploi\ees he lo,ed im soe h challened hballot UNITED CEMENT COMPANY 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tor issued his Supplemental Decision and Order, in which he adopted the Hearing Officer's Report on Challenged Ballots and Objections and directed that a second election be held. On June 2, 1978, the Board denied Respondent's request for review of the Re- gional Director's Supplemental Decision and Order. On July 13, 1978, a second election was conducted in the appropriate unit. The tally of ballots showed that 55 votes were cast for, and 33 votes were cast against, the Union. Respondent filed timely objections to conduct affecting the results of the second election. On July 31, 1978, the Regional Director overruled Respondent's objections in his Second Supplemental Decision and Certification of Representative. There- after, Respondent filed, inter alia, a request for re- view of the Regional Director's Second Supplemental Decision. On October 20, 1978, the Board denied Re- spondent's request for review. On August 8, 1978, the Union requested bargain- ing. Respondent has refused to bargain with the Union since August 15, 1978. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding. 4 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or pre- viously 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 proper- ly 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: FINDINGS OF FACI 1. THE BUSINESS OF THE RESPONDENI Respondent, a wholly owned subsidiary of Texas Industries, Inc., is now, and has been at all times 4See Pittshurgh Plate Glass (Co v. N. L R.B.. 313 UIS. 146. 162 (1941}: Board's Rules and Regulations. Sees. 102.67(f) and 10 2.69(c). The Charging Party has filed a motion for additional relief. Specilficall. the Charging Party asks that the unit employees be made whole for the loss of wages and fringe benefits that they have suffered as a result of Respon- dent's unlawful refusal to bargain. We find no merit in the Charging Part's motion and hereby deny it. See Tuidee Producti. Inc. 194 NI.RB 1234. 1235 (1972). material herein, a corporation doing business in the State of Mississippi with an office and place of busi- ness located in Artesia, Mississippi, where it is en- gaged in the manufacture and distribution of cement. During the past 12 months, Respondent, in the course and conduct of its business operations, pur- chased and received at its Artesia, Mississippi. loca- tion, products valued in excess of $50,000 directly from points located outside the State of Mississippi, and during the same period of time, Respondent sold and shipped from its Artesia, Mississippi, location products valued in excess of $50,000 directly to points located outside the State of Mississippi. We find on the basis of the foregoing that Respon- dent 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. 1. HE LABOR ORGANIZATION INVOLVED United Cement, Lime and Gypsum Workers Inter- national Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. IHE I.NFAIR ABOR PRA('IICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, laboratory employees, packing and loading de- partment employees employed by the Employer at its Artesia, Mississippi, location; excluding all office clerical employees, watchmen, guards and supervisors as defined in the Act. 2. The certification On July 13, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 26. designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on July 31, 1978, and the Union contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. UNITED CEMENT COMPANY 1049 B. The Request To Bargain and Re.spondent s Refusal Commencing on or about August 8, 1978, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about August 15, 1978, and continuing at all times thereafter to date, Respondent has refused, and con- tinues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since August 15, 1978, and at all times thereafter. refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate unit and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. tiE [ '.FtE'(' OF ]H-i. I N -AIR I.ABOR PRA('1l('S I P'()ON ('OMM ER(-. The activities of Respondent set forth in section IIlI, above, occurring in connection with its opera- tions described in section I, above, have a close, inti- mate, 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. V I FE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit and if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultrri Company, In(., 136 NLRB 785 (1962): Commerce Company d h, a Lamnar Hotel, 140 NLRB 226, 229 (1962). enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817: Burnett Construction Companr , 149 NIRB 1419. 1421 (1964). enfd. 350 F.2d 57 (lOth Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CON('I.[ SIONS OF- L 1. United Cement Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Cement, Lime and Gypsum Workers International Union. AFL CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees. laboratory employees. packing and loading depart- ment employees employed by the Employer at its Artesia, Mississippi, location: excluding all office clerical employees, watchmen, guards and supervis- ors as defined in the Act, constitute a unit appropri- ate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since July 31, 1978, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 15, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining. and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)( ) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing 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 the Respondent, United Cement Company, Artesia, Mississippi, 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 con- ditions of employment with United Cement, Lime and Gypsum Workers International Union, AFL UNITED CEMENT COMPANY The Board, upon the basis of the foregoing facts 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees. laboratory employees, packing and loading de- partment employees employed by the Enmploer at its Artesia, Mississippi, location; excluding all office clerical employees, watchmen, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with. restraining, or coercing employees in the exercise 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Artesia, Mississippi, facility copies of the attached notice marked "Appendix." 6 Copies of said notice. on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof. and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. ' In the event that this ()rder is enforced h a Judgmient ii i a lted Staltes ( ourt of Appeals. the words in the nollce readlllg lPosted h Older of the N:tiional l.abor Relations B,ord*' shall read "Poled Pursilalll oi Judgment f the nitled Sia;les (Court of Appeals t.nforcinel a ()rdctl the National I abor RciaioTis Board." (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX Now IC To Ep1r1 Oy riSs PosItI) BY' ORD)ER ()I lt NAII()N LABO()R R.AIIONS BOARD An Agency of the United States Government Wit :i. ol refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with United Cement. Lime and Gypsum Workers In- ternational Union. AFL (CIO. as the exclusive representative of the employees in the bargain- ing unit described below. WiL w.l. NoI in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. Wi. wivll upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below. with respect to rates of pay, wag- es, hours, and other terms and conditions of employment and if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All production and maintenance employees, laboratory employees, packing and loading department employees employed by the Em- ployer at its Artesia, Mississippi, location; ex- cluding all office clerical employees, watch- men, guards and supervisors as defined in the Act. INIIII) C'Ml. NI CMPANY