Carroll Contracting and Ready-Mix, Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1980

247 N.L.R.B. 890 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carroll Contracting and Ready-Mix, Inc. and Team-
sters, Chauffeurs, Warehousemen and Helpers Lo-
cal Union No. 385, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Case 12-CA-8708
February 6, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND Mi.MBERS JENKINS
AND TRUESDAI.E
Upon a charge filed on July 5, 1979, by Teamsters,
Chauffeurs, Warehousemen and Helpers Local Union
No. 385. affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, and duly served
on Carroll Contracting and Ready-Mix, Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Direc-
tor for Region 12, issued a complaint and notice of
hearing on July 30, 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 National Labor Relations Act, as
amended. Copies of the charge, complaint, and notice
of hearing before an administrative law judge were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on April 16, 1979,
following a Board election in Case 12-RC-5536, 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 May 2, 1979, 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
August 9, 1979, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On September 18, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September 21,
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 thereaf-
ter filed a response to the Notice To Show Cause.
' Official notice is taken of the record in the representation proceeding, Case
12-RC-5536, as the term "record" is defined in Sees. 102.68 and 102.69(g) of
the kard's Rules and RegulationS. Series 8, as amended See LV
Ehlctrosyte s, Inc.. 166 NLRB 938 (1967). enfd. 38 1F.2d 6h.1 (4th Cir.
247 NLRB No. 95
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 answer to the complaint and opposition to the
Motion for Summary Judgment, Respondent denies
its refusal to bargain on the basis that there was no
effective bargaining demand. Respondent also con-
tends that the complaint should be dismissed or, in the
alternative, that an unfair labor practice hearing
should be conducted because: the unit is inappropri-
ate; the Union is not a labor organization under
Section 2(5) of the Act; the Employer is not engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act; union supporters engaged in a
slowdown to force Respondent to bargain with the
Union; the Regional Director improperly permitted
persons who were no longer employees to vote in the
election; the Board improperly overruled Respon-
dent's objection concerning alleged misrepresentations
and failed to explain the basis for its holding; the
Board improperly overruled Respondent's objections
concerning the conduct of the Union's election observ-
er; the Board improperly overruled Respondent's
other objections that it had raised in the underlying
representation proceeding; and the Union no longer
represents a majority of Respondent's employees.
An examination of the entire record, including the
record in Case 12-RC-5536, reveals that, pursuant to
a Stipulation for Certification Upon Consent Election,
the Union received a majority of the votes cast in an
election held on August 28, 1978. On September 5,
1978, Respondent filed timely objections to conduct
affecting the results of the election and to the conduct
of the election. After a hearing, the Regional Director,
on October 10, 1978, issued his Report on Challenged
Ballots and Objections to Election and Recommenda-
tions to the Board wherein he recommended that
Respondent's objections be overruled in their entirety.
Respondent filed timely exceptions to the Regional
Director's report reiterating its objections. On April
16, 1979, the Board issued its Decision and Certifica-
tion of Representative in which it adopted the Region-
al Director's findings and recommendations and
certified the Union as the collective-bargaining repre-
sentative of Respondent's employees.
1968); Golden Age Beveruge Co.. 167 NI.RB 151 (1967), cfd. 415 F.2d 26
(5th Cir. 1969): Inrrvyp Co . Penllo. 269 F.Supp 573 (D.C.Va. 1967):
Iltrt Corp.. 164 NLRBI 378 (1967). enled. 397 F.2d 91 (7th Cir. 1968); Sec.
9)(d) ofthe NI.RA,. s aended
890
CARROLL CONTRACTING
It is well settled that in the absence of newly
discovered 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.'
Except as follows, all issues raised by Respondent in
this proceeding were or could have been litigated in
the prior representation proceeding,' and Respondent
does not offer to adduce at a hearing any newly
discovered or previously 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.
As an affirmative defense, Respondent asserts that
employees who are supporters and agents of the Union
have engaged in a slowdown to compel Respondent to
bargain with the Union and that "[such a slowdown
suspends any Employer obligation to bargain." As-
suming, arguendo, that such a slowdown occurred,
that the employees engaged in the slowdown were
union agents, and that the slowdown would constitute
unlawful conduct, the bargaining obligation would be
suspended only so long as the unlawful conduct
continued.' Here, not only does Respondent make a
bare allegation of unlawful conduct, it does not even
assert that such alleged conduct has continued at all
times material to this complaint. Accordingly, we find
that Respondent's affirmative defense raises no litiga-
ble issues.
In addition, Respondent contends that the Union
did not make a lawful bargaining demand because the
union president, the official who made the demand,
was a convicted felon and was therefore prohibited
from holding a union office under the Labor-Manage-
ment Reporting and Disclosure Act of 1959
(LMRDA).6 Respondent asserts that in the absence of
a "lawful demand" the complaint should be dismissed.
We find no merit to this assertion. The Board has held
'See Pittsburgh Plate Glas Co. v. N.L.R.B.. 313 U.S. 146, 162 (1941): Rules
and Regulations of the Board, Sees. 102.67(f and 102.6 9(cl.
In its answer to the complaint and its opposition to the Motion for
Summary Judgment, Respondent attacks the Union's certification by reiterat-
ing its objections in the underlying representation proceeding and by
contending that: the unit is inappropriate because regular part-time employees
are excluded; the Union is not a labor organization under Sec. 2(5) of the Act;
the Employer is not engaged in commerce within the meaning of Sec. 2(6) and
(7) of the Act: the Regional Director improperly permitted persons who were
no longer employees to vote in the election; and the Board, in adopting a new
standard for reviewing misrepresentations, improperly overruled Respon-
dent's election objection concerning misrepresentations and failed to explain
the basis for its holding. These issues were fully considered by the Board in the
underlying representation proceeding and were found to he without merit.
' Based on evidence obtained subsequent i, the representation proceeding,
Respondent contends that the Board improperly overruled Respondent's
objections concerning the conduct of Gary Todt. the Union's election
observer. The Board found that Todt's conduct was not attributable to the
Union because Todt had no official position with the Union and the Union did
not authorize his conduct. Respondent asserts that Tti's alleged objection-
aible conduct was attributable to the Uniot because suhbsequent to the
certification Todi sent a letter to Respnident's attlorney in which he stated
that violations of the LMRDA do not impair the right
of a labor organization to act as a statutory bargaining
representative, and that the remedy for such violations
lies elsewhere than with the Board.' Thus, Respon-
dent's assertion that the Union has not made a lawful
bargaining demand because the Union is in violation
of the LMRDA does not constitute a defense to a
refusal to bargain and is without merit.
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:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Florida corporation with its principal
place of business at Inverness, Florida, is engaged in
the wholesale and retail sale and distribution of
concrete and asphalt products. During the past 12
months, a representative period, Respondent has
performed services valued in excess of $50,000 for the
State of Florida.
We find, on the basis of the foregoing, that
Respondent 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.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen and Helpers
Local Union No. 385, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
that he was the spokesman for the employees, and on another occasion the
Union apparently sent Todt a copy of the bargaining demand letter. The facts
as alleged by Respondent are insufficient to establish that Todt's actions are
attributable to the Union. anid. therefore, we find Respondent's contentions to
be without merit. Firesrtoe Steel Productrs Company. a Division of Firestone
Tire and Rubber Company. 235 NLRB 548 (1978).
Respondent also contends that, because of a high turnover of employees
subsequent to the election. the Union lost its majority status and that.
therefore, the complaint should be dismissed. The Board has long held that.
"in the absence of 'unusual circumstances." a union must be recognized for a
full year following certification. Ray Brorks v. N.L.R... 348 U.S. 96. 98
(1954): Celane Corporation of.4merica. 95 NLRB 664. 672 (1951). An
alleged turnover of employees in the bargaining unit subsequent to the
representation proceeding does not constitute "unusual circumstances." Ajax
Magnethermic Corporation.. 229 NLRB 317. 318 (1977). enfd. 591 F.2d 1210
(6th Cir. 1979). Accordingly, we find this contention by Respondent to be
without merit.
' See Criptex. Inc.. er a. 211 NLRB 855. 857 (1974): International Shoe
Corporation of Puerto Rico. 152 NLRB 699. 702 (1965). enfd. 423 F.2d 503
(Ist Cir. 1970).
'29 U.S C. Sec 504.
Al/ro Plautics .aouiljuarinr g Coripnration. I .6 NLRB 850. 853-854 (1962).
891
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
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 em-
ployed by Carroll Contracting and Ready-Mix,
Inc., at its Inverness and Crystal River Area
facilities; excluding all part-time, all office per-
sonnel, clerks, guards, and supervisors, as defined
in the Act.
2. The certification
On August 28, 1978, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 12, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on April 16, 1979, and the Union
continues 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 April 27, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all employees in the
above-described unit. Commencing on or about May
2, 1979, 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 collective bargaining of all employ-
ees in said unit.
Accordingly, we find that Respondent has, since
May 2, 1979, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
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 insection III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate,
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. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning 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 appro-
priate unit, and, if an understanding is reached,
embody such understanding is a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recognized
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 Construction
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:
CONCI.USIONS OF LAW
1. Carroll Contracting and Ready-Mix, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen and
Helpers Local Union No. 385, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employed by
Carroll Contracting and Ready-Mix, Inc., at its
Inverness and Crystal River area facilities, excluding
all part-time, all office personnel, clerks, 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.
892
CARROLL CONTRACTING
4. Since April 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 purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about May 2, 1979, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged 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
Section 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(l) 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
Relations Board hereby orders that the Respondent,
Carroll Contracting and Ready-Mix, Inc., Inverness,
Florida, 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 conditions
of employment with Teamsters, Chauffeurs, Ware-
housemen and Helpers Local Union No. 385, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees em-
ployed by Carroll Contracting and Ready-Mix
Inc., at its Inverness and Crystal River Area
facilities; excluding all part-time, all office per-
sonnel, clerks, 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 understand-
ing is reached, embody such understanding in a signed
agreement.
(b) Post at its Inverness and Crystal River facilities
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the
Regional Director for Region 12, after being duly
signed by Respondent's representative, shall be posted
by 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. Reason-
able steps shall be taken by Respondent to insure that
said notices are not altered, deface, or covered by any
other material.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Team-
sters, Chauffeurs, Warehousemen and Helpers
Local Union No. 385, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive representative of the employees 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
described 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 agree-
ment. The bargaining unit is:
893
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees
employed by Carroll Contracting and Ready-
Mix, Inc., at its Inverness and Crystal River
Area facilities; excluding all part-time, all
office personnel, clerks, guards, and supervi-
sors, as defined in the Act.
CARROLL CONTRACTING AND READY-MIX,
INC.
894