A. S. Horner, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1979

246 N.L.R.B. 393 (N.L.R.B. 1979)

A. S. Horner, Inc. and New Mexico District Council
of Carpenters, AFL-CIO. Case 28-CA-5255
November 8, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENI.LO
AND TRUESDAIL
Upon a charge filed on March 9, 1979, by New
Mexico District Council of Carpenters, AFL-CIO,
herein called the Union, and duly served on A. S.
Horner, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Acting Regional Director for Region 28, issued a
complaint and notice of hearing on April 6, 1979,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge, complaint, and notice to hearing before
an administrative law judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on January 16, 1979,
following a Board election in Case 28-RC-3517, the
Union was duly certified as the exclusive in the unit
found appropriate;' and that, commencing on or
about January 19, 1979, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
April 16, 1979, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On April 25, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 1, 1979, 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 should not
be granted. Respondent thereafter filed a "Statement
in Reply to the Notice To Show Cause and in opposi-
tion to the General Counsel's Motion for Summary
Judgment." Respondent additionally filed a motion
to remand and reopen the record and the General
Counsel filed an opposition to the motion to remand
' Official notice is taken of the record in the representation proceeding.
Case 28 RC 3517, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations. Series 8. as amended. See
LTV Elecrosystems, Inc.. 166 NI.RB 938 (1967). enfd 388 F.2d 683 (4th Cir.
1968); Golden 4ge Beverage Co. 167 NLRB 151 (1967). enfd. 415 F.2d 26
(5th Cir. 1969): Iniertype Co. v. Penello. 269 F.Supp. 573 (D.C Va. 1967).
Follerl Corp., 164 NLRB 378 1967), enfd. 397 F.2d 91 (7th Cir. 1968). Sec.
9(d) of the NLRA, as amended
A. S. HORNER. INC
and to the statement in reply to the 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 its statement in reply to the Notice To Show
Cause, Respondent contended that the certification of
the Union in the underlying representation proceed-
ing is invalid for the following reasons. First, Respon-
dent argued that the Regional Director's failure to
direct a hearing on its objections to the election was
in error because the objections raised substantial fac-
tual issues warranting a hearing. As a corollary to this
contention, Respondent also argued that the state-
ments of witnesses taken by the Regional Office dur-
ing the representation case investigation should now
be made part of the current record as the representa-
tion case is now closed and the inclusion of such
statements here would insure that the Board has be-
fore it a complete record upon which to determine the
instant matter. Respondent further asserted that the
Regional Director prejudiced Respondent's right of
appeal in the representation proceeding by writing a
Decision and Certification of Representation in lieu
of a Report on Objections as the former limits consid-
eration by the Board to the request for review proce-
dure, an abbrieviated form of review. Finally, Re-
spondent contends that its initial failure to request
review of the Regional Director's unit finding and
voter eligibility formula set forth in his Decision and
Direction of Election did not constitute a waiver of its
right to later contest these findings as objections to
the election.
In its motion to remand, Respondent argues that
the record before the Board in this proceeding is pres-
ently incomplete as it does not contain the statements
and affidavits of employees interviewed by the Re-
gional Director in the investigation of the objections.
Respondent seeks inclusion of these documents in the
record.
In opposition to Respondent's various motions, the
General Counsel argues that the import of Respon-
dent's motion to remand is contrary to the Board's
Rules and Regulations and its statement in opposi-
tion to the summary judgment motion is generally an
attempt to relitigate issues already decided adversely
to Respondent. We find merit in the General Coun-
sel's position and we shall enter summary judgment
against Respondent for reasons described below.
Our review of the record herein, including the rec-
246 NLRB No. 49
393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ord in Case 28-RC-3517, reveals that on August 23,
1978, the Regional Director for Region 28 issued a
Decision and Direction of Election in Case 28-RC-
3517 in which he found appropriate a unit of all con-
struction employees, including timekeepers, em-
ployed by Respondent in the State of New Mexico
with various exclusions. In his decision, the Regional
Director found, inter alia, that in view of the immi-
nent completion of Respondent's construction ac-
tivity near Costilla, New Mexico, no useful purpose
would be served by directing an election in a unit
limited to the employees involved therein, the unit
initially sought by the Union. However, as the Union
had indicated a willingness to proceed to an election
in a statewide unit, a unit found appropriate by the
Regional Director, an election in that unit was di-
rected by the Regional Director provided that the
Union submitted an adequate showing of interest in
the broader unit. Respondent did not seek review of
the Regional Director's decision. Thereafter, on Sep-
tember 22, 1978, pursuant to the Decision and Direc-
tion of Election, a secret-ballot election was con-
ducted. The tally of ballots revealed that a majority
of the valid ballots had been cast for the Union and
that the one challenged ballot was not determinative.
On September 19, 1978, Respondent timely filed ob-
jections to conduct affecting the results of the elec-
tion. On November 14, 1978, the Regional Director
issued a Supplemental Decision on Objections to
Conduct Affecting the Results of the Election and
Certification of Representative wherein he overruled
the Employer's objections in their entirety and issued
a Certification of Representative to the Union. Re-
spondent's four objections alleged that (1) the Union
had mischaracterized and misrepresented Board pro-
cedures; (2) the Union had improperly extended a
waiver of initiation fees to eligible voters; (3) the unit
in which the election was conducted was inappropri-
ate; and (4) the Regional Director had used an inap-
propriate voter eligibility formula in his Decision and
Direction of Election, resulting in the disenfranchise-
ment of potential voters. The Regional Director over-
ruled Objection 1, finding that the Union's statement
did not constitute a misrepresentation under the
Board's Decision in Shopping Kart Food Market, Inc.2
The Regional Director also found Objection 2 with-
out merit, noting that his investigation had failed to
produce any evidence which indicated that the
Union's offer to waive initiation fees was tied to the
signing of an authorization card or becoming a mem-
ber of the Union prior to the election. With respect to
Objections 3 and 4, regarding the unit issue and voter
eligibility formula, the Regional Director found these
objections raised issues which were discussed in his
2228 NLRB 1113 (1977).
Decision and Direction of Election and as to which
Respondent had not sought review. Thereafter, he
concluded that Respondent was precluded from rais-
ing these issues at this stage of the proceeding.
On December 5, 1978, Respondent filed a request
for review of the Regional Director's Supplemental
Decision, alleging that the Regional Director had er-
roneously overruled Respondent's four objections. On
January 16, 1979, the Board, by telegraphic order,
denied Respondent's request for review, but granted
Respondent's motion, filed December 29, 1978, to
stay the effective date of the certification and ordered
that the certification would be effective as of January
16, 1979. 3
We have reviewed the contentions raised by Re-
spondent in this proceeding and find that they raise
no issues warranting a stay of a grant of summary
judgment. Respondent avers that a hearing is neces-
sary to resolve key factual issues raised in Objection I
involving allegedly misleading statements concerning
the identity of the union or unions that would be par-
ticipating in negotiations on behalf of the employees.
Respondent unsuccessfully raised this argument in its
request for review and we again find it without merit
inasmuch as the Regional Director, in making this
recommendation, assumed the facts as alleged by Re-
spondent and nevertheless found the conduct unob-
jectionable. Respondent raises the same argument as
previously raised and rejected in the representation
proceeding with respect to Objection 2 involving an
allegedly improper offer to employees to waive initi-
ation fees. With respect to Respondent's request that
statements of witnesses obtained by the Region dur-
ing the representation case be incorporated into the
instant unfair labor practice proceeding, we note that
in a recent decision4 the Board was confronted with a
similar request and denied it. The Board stated there
"such material is not part of record in either an unfair
labor practice case or its underlying representation
case 'within the meaning of Sections 102.68 and
102.45(b) of the Rules and Regulations of the Board,
nor are such documents [materials relating to the rep-
resentation case] encompassed within the require-
ments of Section 9(d) of the Act.' "5 We reach the
same conclusion here.6
With respect to Repondent's contention that the
Regional Director limited Respondent's right of ap-
peal by the manner in which he disposed of Respon-
In its telegraphic decision denying Respondent's request for review, the
Board noted that Objection I did not constitute a misrepresentation under its
recent decision in General Knit cf California, Inc., 239 NLRB 619 (1978).
Member Penello indicated he would deny review under Shopping Kart, supra.
' Harvey Engineering & Manufacturing Corprarion, 240 NLRB 699 (1979).
Id at fn. I and cases cited therein.
'As noted, Respondent has also filed motion to remand and reopen the
record to admit these statements into the record. For the reason discussed
immediately above, Respondent's motion is hereby denied.
394
A. S. HORNER, INC.
dent's objections, i.e., by a Supplemental Decision
and Certification of Representative, we find that in
rendering his decision the Regional Director pro-
ceeded in a manner authorized by Section 102.69(c)
of the Board's Rules and Regulations, Series 8, as
amended. We therefore find the Regional Director's
action appropriate and not subject to collateral attack
by Respondent. Furthermore, we note that Respon-
dent was entitled to appeal the decision through the
request for review procedure and, in fact, Respondent
exercised that right.
Finally, we find that Respondent's failure to con-
test the Regional Director's unit determination and
voter eligibility formula through the request for re-
view procedure constituted a waiver of its right to
appeal that finding in a subsequent proceeding. The
preelection review process was the appropriate forum
for raising such matters, and by neglecting to utilize it
Respondent is precluded from asserting those issues
now before us.'
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 relitigate
issues which were or could have been litigated in a
prior representation proceeding.8
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 previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly 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 FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a New Mexico corporation, engaged
in the construction industry, and maintains its princi-
pal place of business in Littleton, Colorado. Respon-
dent has been engaged in construction business at
various locations in New Mexico including Costilla,
Folsom, Tucumcari, and Mosquero. During the 12
months preceding the complaint's issuance, a period
which is representative of its operations at all times
7 See, e.g., Walnut Mountain Care Center, 236 NI.RB 284 (1978).
'See Pttsburgh Plate Glass Co v NL..RB , 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board. Secs. 102 67 (f) and 102.69 (c)
material herein, Respondent, in the course and con-
duct of its business, purchased goods and materials in
excess of $50,000 which were delivered to its place of
business in New Mexico directly from locations out-
side the State of New Mexico.
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times 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.
II. HE LABOR OR(;ANIZAI()N INVOLVEI)
New Mexico District Council of Carpenters, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
111. TIHE UNFAIR ABOR PRACTICES
A. The Representation Proceeding
I. 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 construction employees including timekeep-
ers, employed by Respondent in the State of
New Mexico: excluding heavy equipment opera-
tors represented by another labor organization,
job superintendents, general foreman, watch-
men, and guards and supervisors as defined in
the Act.
2. The certification
On September 22, 1978, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region 28 designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on January 16, 1979, and the Union contin-
ues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent s Refusal
Commencing on or about January 19, 1979, 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 employ-
ees in the above-described unit. Commencing on or
about January 19, 1979, and continuing at all times
thereafter to date. Respondent has refused, and con-
395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
January 19, 1979, 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 (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
II1, above, occuring in connection with its operations
described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE 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 commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817; Burnett Con-
struction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. A. S. Horner, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. New Mexico District Council of Carpenters,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All construction employees, including timekeep-
ers, employed by Respondent in the State of New
Mexico; excluding heavy equipment operators repre-
sented by another labor organization, job superinten-
dents, general foreman, watchmen and guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since January 16, 1979, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about January 19, 1979, 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 them in Sec-
tion 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) 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 Rela-
tions Board hereby orders that the Respondent, A. S.
Horner, Inc., Littleton, Colorado, 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 New Mexico District
Council of Carpenters, AFL-CIO, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All construction employees, including timekeep-
ers, employed by Respondent in the State of
New Mexico; excluding heavy equipment opera-
tors represented by another labor organization,
job superintendents, general foreman, watch-
men, and guards and supervisors within the
meaning of the Act.
(b) In any like or related manner interfering with,
396
A. S. HORNER, INC.
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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at construction sites in New Mexico where
Respondent is engaged in construction, including
Costilla, Folsom, Tucumcari, and Mosquero, copies
of the attached notice marked "Appendix."9 Copies
of said notice, on forms provided by the Regional
Director for Region 28, 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 notices
to employees are customarily posted. Reasonable
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 28, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
9 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF Tll
NATIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
WtE Wlll; NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with New
Mexico District Council of Carpenters, AFL-
CIO, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILl. NOT 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.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay,
wages, 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 construction employees, including time-
keepers, employed by the Employer in the
State of New Mexico; excluding heavy equip-
ment operators represented by another labor
organization, job superintendents, general
foreman, watchmen, and guards and supervi-
sors within the meaning of the Act.
A. S. HORNER, IN(C.
397