Burnett Construction Co.

National Labor Relations Board - Board Decisions

Dec 8, 1964

149 N.L.R.B. 1419 (N.L.R.B. 1964)

BURNETT CONSTRUCTION COMPANY 1419
Burnett Construction Company and International Union of
Operating Engineers, Local No. 9, AFL-CIO. Case No. 27-CA-
1490. December 8, 1964
DECISION AND ORDER
On August 4, 1964, Trial Examiner Wallace E. Royster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached 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, the Board has delegated its powers in connection with
this case to a three-member panel [Chairmen McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, brief, and the, entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(6) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommended by the Trial Examiner, and orders
that the Respondent, Burnett Construction Company, its officers,
agents, successors , and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This matter was tried before Trial Examiner Wallace E. Royster in Durango, Colo-
rado, on April 7, 1964.1 At issue is whether Burnett Construction Company, herein
called the Respondent , refused unlawfully to bargain with International Union of
Operating Engineers , Local No. 9, AFL-CIO, herein called the Union , in violation
of Section 8(a)(1) and ( 5) of the National Labor Relations Act, herein the Act.
Upon the entire record in the case, from my observation of the witnesses, and in
consideration of the briefs filed, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Colorado corporation with its principal office and place of
business at Durango , Colorado, where it is and has been engaged as a general con-
tractor and in the sale and distribution of ready-mix concrete and gravel.
1 The charge was filed November 12, 1963. The complaint is dated January 20, 1964.
149 NLRB No. 128.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for the Respondent contends that the business operation described is retail
in character and that because its annual receipts are less than $500,000 the Board
should refrain under applicable jurisdictional standards from entering the complaint.
Gordon Burnett, Respondent's president, testified that the Respondent performs
excavation, trenching and land leveling work, and sells ready-mix concrete of its
manufacture and gravel to individuals, industrial users, commercial users, and gov-
ernmental bodies, including the Highway Department of the State of Colorado.
The evidence established that in 1963 the Respondent purchased cement at a net cost
of about $51,500 which was shipped to its plant in Durango from the State of New
Mexico. It is obvious, and I find, that the Respondent is engaged in an operation
affecting commerce within the meaning of Section 2(6) and (7) of the Act. As the
Respondent's business encompasses both the manufacture and sale of a product,
ready-mix concrete, to ultimate consumers without the intervention of a wholesaler,
it is obvious that its sales to nonbusiness consumers have the aspect of retail transac-
tions. However, the Respondent is also a manufacturer and sells to commercial,
industrial, and governmental users. Thus it is something more than a retail enter-
prise. The Board has in a similar situation held it to effectuate the policies of the
Act to assert jurisdiction if such an employer meets either the retail or nonretail
standard. As the importation of cement having a value in excess of $50,000 is suffi-
cient to satisfy the nonretail standard, I find that it will effectuate the policies of the
Act to assert jurisdiction here.2
it. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of Section 2(5) of the Act
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
On April 2, 1963, the Respondent and the Union entered into a consent -election
agreement in a unit described as:
All equipment operators and oilers , mechanics, welders, mechanic helpers,
and welder helpers used in operation and maintenance of construction equipment;
excluding laborers, truckdrivers, supervisors, office clerical , guards and all other
employees.
On May 13 following, an election was held in which the Union received a majority
and, on May 21, the Regional Director of the National Labor Relations Board at
Denver, Colorado, certified the Union as the exclusive bargaining representative for
the employees in the described unit . Because of the agreement of April 2 and because
there is nothing to indicate or suggest a contrary holding, I find that the unit described
is and at all times material herein has been appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
On June 20, representatives of the Union met with the Respondent and offered a
collective-bargaining agreement for signatures. Respondent's superintendent, John
Schoser, testified, and I credit him, that the Union representatives said, in effect, that
there would be no bargaining; that the Respondent must accept the contract terms
submitted. No agreement was reached. On July 30, other representatives of the
Union met with Burnett. When Burnett said that on June 20 he was told that he must
accept the contract offered to him, he was told that the Union had several different
types of agreements and copies of four such were left with Burnett for his examination.
One of the Union representatives, Edward F. Blatnick, testified credibly and without
contradiction that he told Burnett on this occasion that the Union would be glad to
discuss with him the agreement that would work best in his operation. Blatnick
testified he attempted unsuccessfully to arrange another meeting with Burnett in
August and September. Carl Blomquist, another Union representative, testified
that on July 30 he told Burnett that if the latter would pick out the agreement from
those submitted that seemed most appropriate to Burnett's operation, the Union would
try to negotiate with him Blomquist testified that he tod Burnett, "I wouldn't come
along and throw the agreements on [your] desk and say that is it , you have to sign one
of them." I credit Blomquist.
On October 24 Union representatives met with Gordon Burnett in the office of
Respondent's counsel, Harold B. Wagner, in Denver. The Union was also represented
by counsel. Discussions came to a halt, Blatnick testified when Attorney Wagner said
2 Man Prodnct,s. Inc, 128 NLRB 546, 547
BURNETT CONSTRUCTION COMPANY 1421
that the Respondent was unwilling to make any counterproposals to the Union until
the question of jurisdiction of the National Labor Relations Board was determined.
Blatnick's testimony is undenied and I credit it. I find that on and since October 24
the Respondent has refused to bargain collectively with the Union and has refused to
recognize the Union as the bargaining representative of the employees in the appro-
priate unit.
Although the Respondent at no time questioned the authority of the Union repre-
sentatives to act for the Union, in the answer filed in this proceeding and at the hear-
ing, counsel for the Respondent asserted that the union officers, and presumably the
negotiators who took office in early July, perhaps did so unlawfully. In support of
this position , the Respondent offered in evidence a complaint filed in the U.S. District
Court for the District of Colorado, by W. Williard Wirtz, Secretary of Labor, denom-
inated as Civil Action No. 8325, making substantially this same assertion . This last-
mentioned action appears to have been filed on December 30, 1963. I find that the
refusal by the Respondent to bargain with the Union was not based upon any doubt as
to the authority of the union representatives to speak for the Union and that in the
circumstances of this case , at least, the Respondent was not permitted to go behind the
ostensible authority of these agents to act for the Union.
The complaint alleges that the Respondent has refused unlawfully to bargain with
the Union on and since June 20. Rather clearly, the Respondent was dilatory in its
attitude toward meeting with the Union but on the other hand it seems uncertain that
the Union was firmly insistent in the matter. Upon the evidence before me, I find that
the first such refusal occurred on October 24.
I find that the Union at all times since May 13, 1963, has been and now is the exclu-
sive representative of Respondent 's employees in the unit set forth above and that on
and since October 24 the Respondent , by refusing to bargain with the Union, has
engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation 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. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices , it will be
recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
By refusing to bargain for the last 7 months of the Union 's first year as certified-
bargaining representative , the Respondent deprived its employees of representation by
a bargaining agency possessing the status and enjoying the presumptions attaching to
such organizations for the period of a year following certification . To place the
Respondent and the Union in as nearly the same situation as possible to that which
existed before October 24, it will be recommended that upon resumption of bargain-
ing and for 7 months thereafter the Union be regarded as if the initial year of certi-
fication had not yet expired .3
It will be recommended that upon request the Respondent bargain with the Union
concerning rates of pay , wages, hours of work , and other terms and conditions of
employment , and if an understanding is reached, reduce it to writing and sign it.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSION OF LAW
1. Burnett Construction Company, Durango, Colorado , is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act
2 International Union of Operating Engineers , Local No. 9, AFL-CIO, is a labor
organization within the meaning of Section 2 ( 5) of the Act and is the exclusive repre-
sentative of Respondent 's employees in the appropriate unit for purposes of bargaining.
3. All equipment operators and oilers , mechanics , welders, mechanic helpers, and
welder helpers used in operation and maintenance of construction equipment , exclud-
ing laborers , truck drivers , supervisors , office clerical, guards, and all other employees
constitute a unit appropriate for the purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act.
3Mar-Jac Poultry Company , Inc, 136 NLRB 785-787
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By refusing on and since October 24, 1963, to bargain with the Union as the
exclusive representative of employees in the appropriate unit, the Respondent has
engaged in , and is engaging in, unfair labor practices within the meaning of Section
8 (a) (1) and (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact , conclusions of law, and upon the
entire record in the case , I recommend that Burnett Construction Company, Durango,
Colorado, its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain with International Union of Operating Engineers, Local
No. 9, AFL-CIO, as the exclusive representative of employees in the appropriate unit.
(b) In any like or similar manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization , to form labor organiza-
tions, to join or assist International Union of Operating Engineers, Local No. 9,
AFL-CIO, or any other labor organization ; to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to refrain from any or
all such activities except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment as author-
ized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request bargain with the Union as the exclusive representative of the
employees in the appropriate unit and if an understanding is reached reduce it to
writing and sign it. Regard the Union upon resumption of bargaining and for 7
months thereafter as if the initial year following certification had not expired.
(b) Post at its place of business at Durango, Colorado, copies of the attached notice
marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director
for Region 27, shall, after being duly signed by a representative of the Respondent,
be posted and be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 27, in writing, within 20 days from the
date of the receipt of this Decision , what steps have been taken in compliance.5
IIn the event that this Recommended Order be 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 a 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 Deci-
sion and Order"
'In the event that this Recommended Order' be 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 the 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 you that:
WE WILL upon request bargain collectively with International Union of Operat-
ing Engineers , Local No. 9, AFL-CIO, for the unit described below, in respect
to rates of pay, wages , hours of work , and other terms and conditions of employ-
ment and , if an understanging is reached , reduce it to writing and sign it. The
bargaining unit is:
All equipment operators and oilers , mechanics, welders, mechanic help-
ers, and welder helpers used in operation and maintenance of construction
equipment ; excluding laborers, truckdrivers, supervisors , office clerical,
guards, and all other employees.
OHIO CAR & TRUCK LEASING, INC. 1423
WE WILL NOT by refusing to bargain or in any like or similar manner interfere
with, restrain , or coerce our employees in the exercise of their right to self-
organization , to form , join, or assist the above -named Union or any other labor
organizations , to bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection , or to refrain from any or all such
activities except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment as
permitted by Section 8(a)(3) of the Act.
BURNETT CONSTRUCTION COMPANY,
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.
Employees may communicate directly with the Board 's Regional Office, 609 Railway
Exchange Building, 17th and Champa Streets, Denver, Colorado , Telephone No. 297-
3551 , if they have any questions concerning this notice or compliance with its
provisions.
Ohio Car & Truck Leasing, Inc. and General Truck Drivers
Local No. 92, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America . Case No.
8-CA-3375. December 8, 1964
DECISION AND ORDER
On July 16, 1964, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that 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 Decision. 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, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing 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 the brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner , except as noted below.'
i we agree with the Trial Examiner 's conclusion that Treacy 's suggestion to employee
Cirone that the men could secure a contract which would be better and easier to get along
with from the Respondent without the Teamsters constituted an unlawful unilateral
attempt by the Respondent to bypass the Union in dealing with Its employees . However,
we find it unnecessary to determine whether Sampson's remarks to Melott on or about
November 2, 1963, also constituted an unlawful attempt to bypass the Union.
149 NLRB No. 129.