A. G. Parrott Co.

National Labor Relations Board - Board Decisions

Jul 31, 1978

237 N.L.R.B. 191 (N.L.R.B. 1978)

A. G. PARROTT COMPANY
A. G. Parrott Company and Laborers' District Council
of Baltimore and Vicinitv, Laborers' International
Union of North America, AFL-CIO. Case 5-CA
9256
July 31, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MrAEIRBRS JENKINS
AND PFNELLO
Upon a charge filed on February 27. 1978. by I a-
borers' District Council of Baltimore and Vicinitr,.
Laborers' International Union of North America,
AFL-CIO, herein called the Union, and duly served
on A. G. Parrott Company. herein called Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region 5,
issued a complaint and notice of hearing on March
13, 1978, against Respondent, alleged that Respon-
dent had engaged in and was engaging in unfair la-
bor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Cop-
ies of the charge, complaint, and notice of hearing
before an Administrative Law Judge were duls
served on the parties to this proceeding.
With respect to the unfair labor practices. the com-
plaint alleges in substance that on Februar\ 3, 1978,
following a Board election in Case 5 RC 10111. the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; ' and that. commenc-
ing on or about February 16, 1978, and at all times
thereafter, 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 March 16, 1978, Respondent filed its answer to
the complaint admitting in part, and denying in part.
the allegations in the complaint.
On April 7, 1978, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 17, 1978, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
Official notice is taken of the record In the representation proceeding.
Case 5 R( 10111, as the term "recrdl i defined in Sees 10268 and
102.69(g) of the Board's Rules and Regulallti, ns. Serie, 8. ias amended See
LT' Electrros tems, In, 166 NLRB 908 1 19t7), enfd 188 F 2d 68 (( A 4
1968); (,lden Age Beverage (i , 1h7 NLRB 151 1I967., enfd 415 F 2d 26
(.A. 1969).; Intrtrl/ ( ' Pc mffrli,. 269 f Supp. 573 tD )( \;t. 19t'i
f,l/irtt ( orp. 164 NLRB 178 (1967). enfd 397 F2d 91 ( 7. 1968): Sec
9(d) of the NL.RA. as amended
should not be granted. Respondent thereafter 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.
tipon the entire record in this proceeding. the
Board makes the following:
Ruling on the Motion for Summary Judgment
In opposing the Motion for Summary Judgment,
Respondent acknowledges that at the conclusion of
the August 12, 1977. election in Case 5 RC--10111,
the Board agent in charge declared void a ballot
which could have affected the outcome of the elec-
tion on the grounds that it was signed; that the Act-
ing Regional Director for Region 5, in his Report on
Objections. affirmed the correctness of the Board
agent's conduct: and that in its subsequent Decision
and C(ertification of Representative of February 3,
1978. the Board stated that it had examined the
signed ballot in camera and affirmed its invalidity.
Respondent alleges. however, that after the Board
agent ruled the ballot void, without permitting Re-
spondent to determine whether or not it was signed,
he failed to take proper precautions for segregating
and safeguarding the ballot, placing it instead with
loose papers in his briefcase. It therefore contends
that, when the Board later affirmed the invalidity of
the ballot, it had no way of determining whether or
not the ballot it was examining was the same one that
was previously in the Board agent's custody,. and it
demands a hearing in that regard. We reject the con-
tention as without merit, as Respondent, in its excep-
tions to the Acting Regional Director's Report on
Objections, placed this same custody issue before
both the Acting Regional Director and the Board,
stating that the means adopted by the Board agent
for safeguarding the ballot would henceforth pre-
clude either of them from authenticating the ballot.
Furthermore, we have reexamined the postelection
procedures which were observed by Region 5 with
respect to the ballot and are satisfied that the ballot
was properly safeguarded.
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.2
The ballot issue raised by Respondent was fullv
litigated in the prior representation proceeding, and
See Pilihirh. P/ are (hsi s ( I \1. R R. 3 11 1 4h6 162 t1941}:
R.les tnd Re vtdlitn, .f the fi ,rd Se,. 1112 t-(r) arid 102 691)(
237 NLRB No. 29
191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent does not offer to adduce at a hearing
any newly discovered or previously unavailable evi-
dence which would require the Board to reexamine
the decision made in the representation case in re-
gard to this issue.'
In further opposition to the Motion for Summary
Judgment, Respondent alleges that during the nearly
8 months which have elapsed between the August 12,
1977, election in Case 5 RC' 10111 and the le hruar'
27, 1978, charge herein filed. 15 of the 39 eligible
employees left Respondent's employ and were re-
placed by 16 other employees who have not had an
opportunity to express their desires as to representa-
tion, and it contends that to deny them this opportu-
nity without a hearing would be violative of their
Section 7 rights. We find the contention without mer-
it, it being well established that postelection turnover
is an insufficient ground to set aside an election.
Henderson Trulmbull Sufpp!v Corporation, 205 NLRB
245 (1973). Respondent therefore does not allege that
any new or special circumstances exist herein which
would require the Board to reexamine the decision
made in the representation case.
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:
FINI)INGS Oi- :ACT I
rI ll iBUSININSS OF RI-SP(NI)E NI
A. G. Parrott Company, a Maryland corporation,
is engaged in the business of grading, paving, and
laying of concrete for streets and roadways in the
State of Maryland and the District of Columbia.
During the past 12 months, a representative period,
the Employer's gross volume of business exceeded
$500,000, and during the same period, the Employer
purchased goods and materials valued in excess of
$50,000 from firms within the State of Maryland
which qualify under one of the Board'sjurisdictional
standards other than the indirect inflow or indirect
outflow standard.
We find, on the basis of the foregoing, that Re-
lOn April 17. 197g. Respi ndelnt served a mlhl/pecnl hdi h,, m rn O the
Regional L)irector Ifor Region 5 anid a ilhporna ad wtiaintlfidunl ton the
Board agent in chairge of the Au[usl 12 1977. election. directilig thiemln
Iesllf with respect t, matters c,.ncerning the ballot issue helliin raised hb'
Respondent. On April 2S. counsel for Region 5 filed petitions to re\oke tihe
subpenas and an iorder referring the peittionll to an administrative ;law udge
for ruling. In icu of our finding herein Ihil Re.spondent has not ri;,sed iani
issue which is properil litigable in this proceeding, we griant the pietonll ti
revoke the suhpenas
spondent 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 juris-
diction herein.
II 1t1Ill I BiOR ()R(\NIZAIIN INVOIVII)
Laborers' District Council of Baltimore and Vicin-
ity, Laborers' International Union of North Amer-
ica. AFI, CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
111 Ii1 tI NI AIR I AHOR PRACI I(ES
A. 7h1 Re/presentation Proceeding
1. Ihe 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 employees of A. G. Parrott Company, in-
cluding laborers, form setters, grade checkers,
equipment operators, finishers, and leadmen,
but excluding office clerical employees, mechan-
ics, truckdrivers. guards, and supervisors as de-
fined in the Act.
2. l'he certification
On August 12, 1977, 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 5, 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 February 3, 1978, and the Union con-
tinues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. Lhe Request To Bargain and Respondent's Refusal
Commencing on or about February 9, 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 February 16, 1978, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with
the Union as the exclusive representative for collec-
tive bargaining of all employees in said unit.
Accordingly. we find that Respondent has. since
192
A. G. PARROT' COMPANY'
February 16. 1978. and at all times thereafter. re-
fused to bargain collectiv el, with the nlion as the
exclusive representative of the emplo)ees in the ap-
propriate unit. and that, bh such refusal. Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) alnd (I) of
the Act.
IV ItitF:I FlI- OF I 11F I Nl:' IR I \Bi()R PRA( l IS I t'(\x
( OM i FR( AI
The activities of Respondent, set forth in section
III, above, occurring in connection with the opera-
tions described in section I. aboxe, have a close, inti-
mate. and substantial relationship to trade. traffic.
and commerce among the se:eral States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
\. I Fill RI MI [1)5
Having found that Respondent has engaged inl and
is engaging in unfair labor practices within the mealn-
ing of Section 8(a)(5) and (I) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, bargain collectively with the ['nion 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 proxided hb
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenlc-
es to bargain in good faith with the Lnion as the
recognized bargaining representative in the appropri-
ate unit. See .ar-J c Pou(lri' Comlpa,In Inc., 136
NLRB 785 (1962): Commelrce Comlpan d l a Ilarl
Hotel, 140 NLRB 226. 229 1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964): Bur-
nett Construction Compatn, 149 NI RB 1419. 1421
(1964), enfd. 350 F.2d 57 (C.A. 10. 1965).
The Board. upon the basis of the foregoing facts
and the entire record. makes the following:
CONI t SIO()NS ()I l. \
1. Respondent A. G. Parrott Compann is an elli-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Laborers' District Council of Baltimore and Vi-
cinity, Laborers' International Union of North
America, AFL CIO, is a labor organization u-ithin
the meaning of Section 2(5) of the Act.
3. All employees of A. G. Parrott ('onipan, in-
ludingl labor ers. fornll setter-s. grade checkers. equip-
ment operators. finishers. and leadnien. but exclud-
ing office clerica;l emplosees, mechanics. truckdriv-
ers. guards. and super,.isors as defined in the Act,
colstitute ;a unit appropriate for the purposes of col-
lective bariigainig ui within the meaning of Section 9(b)
of tile Act.
4. Since t ehruarx 3, 1978. the above-named labor
organization has been and now is the certified and
excIlisi\e repipresen tatix\e of all employees in the afore-
said appropriate unit for the purpose of collective
hargaining within the meanling of Section 9(a) of the
Act.
5. Bx refusinig on or about l ebruars 16. 1978. and
at all times thereaftcr, to) hargain collectivelx with the
abo\ e-nanied Iabor orgarnization ias the exclusis'e bar-
gaining representative of all the emplo)ees of Re-
spondenlt in the appropriate unit. Respondent has en-
gaiged in and is engagling il unfair labor practices
within the meanirna of Section 8(a)(5) of the Act.
6. B\ the aforesaid refusal to bargain. Respondent
Ihats intei rer ed with.I restra i ned. and coerced, and is
interfering \vith. restraining. and coercing, emplosees
in the exercise of the rights guaranteed to them in
Section 7 of the Act. alnd therebh has engaged in and
is ensgaigmg in iinfaili labor pIract;ies , thin thle iealn-
inl of Sectioil S(ia)( I) of the Act.
I lie aforesaid unfair labor practices are unfaiir
labor prctices aftracting L comm* ierce within the mean-
ing of Section 2(6) and (7) .of the Act.
()R[)I R
Puisulant to Section 1()(c) of the National I.abor
Relations Act, as amenlIded. the National l abor Re-
lations Board herebhs oirdicrs that the Respondent,
A. (G. Parrott ('ompa n. Elk-ridge. MarNland,. its of-
ficers, agents, successors, and assigns. shall:
I. ('ease and desist fronm:
(a) Refusing to bargain collectivel concerning
rates of pa;. ; waigess. hours, and other termis .ald con-
ditions of emplo micnet uitih I ahborers' [)istrict ('oun-
cil of Baltimore and V iciits,. I aborers' International
l nion of North America. llIf: ('(). as the exclusive
bargainilng repireselntatisxe of its cmplo\ecs in the fol-
lowvin apprlopriate unit:
All emplo\eees of . (i. Parrott (Company in-
cluding laborers, form setters. grade checkers.
equipment operators, finishers. and leadmien,
but excludimg office cleirical employees, mechan-
ics. truckdrixers. guards, and superv\isors as de-
filled in tile Act.
(b) In a.in like ar related manilner interfering with.
restraimiing. or coerciLng ernplo ees in the exercise of
193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Elkridge, Maryland, facility copies
of the attached notice marked "Appendix." 4 Copies
of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by Re-
spondent'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.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 In the event that this Order is enforced hb a judgment of a I nited States
Court of Appeals. the words in the notice reading "Posled bh Order of the
National l.ahor Relaltion. Board" shall read "Posted Pted ursuanl to a dp-
ment of the U:nited StateS ( ourt of Appeals inforcing 1In Order of the
National l.ahor Relations Board"
APPENDIX
Noliu(i loT EMPI.OYi- S
POsieI) BY ORDIR OF: ilE
NAIIONAL. LABOR RI l.AlIONS BOARD
An Agency of the United States Government
Wi. An.siI NOi refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with La-
borers' District C('ouncil of Baltimore and Vicini-
ty, [.aborers' International Union of North
America, AFL ('IO, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed below.
Wit wvl t 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.
Wil ii l. 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
agreement. The bargaining unit is:
All employees of A. G. Parrott Company, in-
cluding laborers, form setters, grade checkers.
equipment operators. finishers, and leadmen,
but excluding office clerical employees, mechan-
ics, truckdrivers. guards. and supervisors as de-
fined in the Act.
A. G PARRO()I I COMPANYt
194