Corum & Edwards, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1975

220 N.L.R.B. 668 (N.L.R.B. 1975)

668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Madisonville Concrete Co., A Division of Corum &
Edwards, Inc. and Chauffeurs , Teamsters and Help-
ers, Local No. 215, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America . Case 9-CA-8900
September 25, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on October 29, 1974, by
Chauffeurs, Teamsters and Helpers, Local No. 215,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, and duly served
on Madisonville Concrete Co., A Division of Corum
& Edwards, Inc., herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 9, issued
a complaint on December 13, 1974, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge, com-
plaint, and notice of hearing before an Administra-
tive 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 June 11, 1974, fol-
lowing a Board election in Case 9-RC-10219 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 October 17, 1974, 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 December 23, 1974, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint, and on April
11, 1975, filed its amended answer?
Official notice is taken of the record in the representation proceeding,
Case 9-RC- 10219, 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 Electrosystems, Inc., 166 NLRB 938 (1967), enfd 388 F 2d 683 (C.A 4,
1968); Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F.2d 26
(C.A. 5, 1969), Intertype Co v Penello, 269 F.Supp . 573 (D C. Va, 1967),
Follett Corp., 164 NLRB 378 (1967), enfd . 397 F.2d 91 (C.A 7, 1968), Sec
9(d) of the NLRA
2 The parties stipulated to incorporate by reference in the record of this
case the transcript of the proceedings in Case 9 -RC-10219, the stipulation
further provides that if the instant case is presented to a United States
On June 17, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 30, 1975, 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 opposing the Motion for Summary Judg-
ment and subsequently 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 its amended answer to the complaint and plead-
ings opposing summary judgment and in response to
the Notice To Show Cause, Respondent contests the
validity of the certification on the basis that the labo-
ratory conditions prior to and during the election
were disturbed by union conduct outlined in
Respondent's objections to the election and that the
material issues of fact surrounding the objectionable
conduct still remain and must be resolved by afford-
ing Respondent a fair administrative hearing.
Our review of the record, including that of the rep-
resentation case, reveals that an election was held on
September 26, 1973, pursuant to a Stipulation for
Certification Upon Consent Election. The tally of
ballots showed there were five votes cast for the
Union and two against, and one challenged ballot.
Respondent filed timely objections, alleging in sub-
stance that the Union had offered financial induce-
ment to employee Phillips by taking care of a traffic
ticket issued to him immediately following his depar-
ture from the union hall; that the Union's actions
toward Phillips represented to other unit employees
that the Union could secure other benefits for them
outside of work; that the Union represented if it won
the election a union shop would result; and that the
Union offered to waive initiation fees for all mem-
bers of the unit who joined the Union prior to the
election. Respondent also alleged that by these and
other acts the Union misled employees and instilled
fear of reprisal all of which impaired a free choice in
the election.
Following an investigation, the Acting Regional
Director for Region 9 issued on January 2, 1974, a
circuit court of appeals for enforcement such transcript shall be filed as a
part of the record of this case . Respondent amended its answer to omit its
prior reference to attaching the transcript to its answer.
220 NLRB No. 100
MADISONVILLE CONCRETE CO.
Report on Election , Objections to Election and Rec-
ommendation to the Board in which he recommend-
ed all the objections be overruled and the appropri-
ate certification issue . Respondent filed with the
Board exceptions asking that the election be set aside
and a new election conducted. Respondent also re-
quested a hearing be held on its objections and ex-
ceptions . On February 5, 1974, the Board ordered a
hearing be conducted on the issues raised by
Respondent's objection that the Union offered finan-
cial inducement to employee Phillips. Thereafter, an
evidentiary hearing was held at which the Respon-
dent was represented by counsel. On April 9, 1974,
the Hearing Officer issued his Report and Recom-
mendations on Objections to Election in which he
concluded the Union had not engaged in conduct
which interfered with the employees' free and un-
trammeled choice in the election and recommended
the Respondent's objection be overruled and the
Union certified. The Respondent then filed with the
Board exceptions and a brief to the Hearing Officer's
report. On June 11, 1974, the Board issued a Deci-
sion and Certification of Representative in which, af-
ter reviewing the Hearing Officer's rulings, the Board
found they were free from prejudicial error and af-
firmed them, and in which, after reviewing the entire
record, it adopted the findings, conclusions, and rec-
ommendations of the Acting Regional Director and
the Hearing Officer, who between them recommend-
ed that all the objections be overruled. The Board
then certified the Union.
Thereafter, Respondent filed with the Board a mo-
tion to reconsider its Decision and Certification of
Representative, contending that the Board must re-
consider the case in the light of the Supreme Court
decision in N.L.R.B. v. Savair Manufacturing Com-
pany.3 On June 28, 1974, this motion was denied by
the Board as it raised no matters not previously con-
sidered and, therefore, lacked merit. It thus appears
that Respondent has raised contentions with respect
to all its objections in the representation proceeding
and has participated with counsel in a hearing with
respect to the objection concerning union financial
assistance to employee Phillips.
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 the Respondent in this pro-
ceeding were or could have been litigated in the prior
'414 U.S. 270 (1973).
4See Pittsburgh Plate Glass Co v. N.L.RB., 313 U.S 146, 162 (1941);
Rules and Regulations of the Board , Secs 102 .67(f) and 102.69(c).
669
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the de-
cision made in the representation proceeding. We
therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
Respondent now urges that, before it can be found
to have engaged in unfair labor practices, due pro-
cess requires that it be afforded an adversary hearing
before an Administrative Law Judge, that summary
judgment may not be entered because there are is-
sues of material fact remaining to be determined, and
that it has not yet had a fair hearing.' During the
course of the representation proceeding all parties
were afforded the opportunity to be heard. Prior to
adopting the findings, conclusions, and recommen-
dations of the Acting Regional Director and the
Hearing Officer, the Board considered the Acting
Regional Director's report, the Respondent's excep-
tions thereto, the Hearing Officer's report based on
an evidentiary hearing, the exceptions, the briefs, and
the entire record in the case. In adopting the recom-
mendations of both the Acting Regional Director
and the Hearing Officer, the Board necessarily found
that Respondent's objections and exceptions had not
raised substantial or material issues warranting fur-
ther hearing. Respondent now raises those same is-
sues raised in the representation case in an attempt to
obtain a hearing, but it is well settled that there is no
requirement that an evidentiary hearing must be held
where there are no substantial or material issues .6
In situations such as this, where the issues raised
have been previously considered and there are no
other material issues of fact warranting a hearing,
summary judgment is appropriate.' We shall accord-
ingly grant the Motion for Summary Judgment.
There is no merit in Respondent's contention that the hearing before a
Hearing Officer is not sufficient and that it has not had a fair and impartial
hearing on its objections . The Hearing Officer made recommendations to
the Board following an administrative hearing comporting with the Board's
Rules and Regulations. See Board Rules and Regulations , Secs. 102.69(f)
and 102.64-66 . Prior to certifying the Union the Board found that the par-
ties were afforded full opportunity to be heard , to examine and cross-exam-
ine witness , and to introduce evidence In the representation proceeding the
Hearing Officer was the appropriate person to hear the issues . See Interna-
tional Telephone & Telegraph Corp., Communications Equipment & Systems
Division v. Local 134, International Brotherhood of Electrical Workers, AFL-
CIO, et al 419 U.S 428 (1975).
6 Respondent must make a prima facie showing of substantial and materi-
al issues to be entitled to a hearing before an Administrative Law Judge in
an unfair labor practice proceeding Respondent's objections and excep-
tions raised below were not substantial or material issues and they do not
become substantial or material merely by being raised in this unfair labor
practice proceeding . Respondent 's due process claim is therefore without
merit . Janler Plastic Mold Corporation, 191 NLRB 162 (1971)
7 Wells Fargo Alarm Services, a Division of Baker Industries, Inc., 218
NLRB No. 25 (1975).
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the entire record , the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Madisonville Concrete Co., A Division of Corum
& Edwards , Inc., is a Kentucky corporation engaged
in the production and sales of concrete at its Madi-
sonville , Kentucky, plant . During the last 12 months,
a representative period, Respondent purchased
goods valued in excess of $50 ,000 from suppliers lo-
cated within the State of Kentucky who received
such supplies in interstate commerce directly from
suppliers located outside the State of Kentucky.
We find , on the basis of the foregoing , that Re-
spondent is, and has been at all times material here-
in, 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.
If. THE LABOR ORGANIZATION INVOLVED
Chauffeurs , Teamsters and Helpers , Local No.
215, affiliated with the International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers
of America , is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All truck drivers, mechanics , loader operators
and batch plant operators, excluding all office
clerical employees , professional employees,
guards, and supervisors as defined in the Act.
2. The certification
On September 26, 1973, 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 9, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent . The Union was certified as
the collective -bargaining representative of the em-
ployees in said unit on June 11, 1974, 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 October 6 , 1974, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective -bargaining representative of all the
employees in the above-described unit . Commencing
on or about October 17, 1974, and continuing at all
times thereafter to date , the Respondent has refused,
and continues 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 the Respondent has,
since October 17, 1974, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit , and that , by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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
III, 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. 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 commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company , Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
MADISONVILLE CONCRETE CO.
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 Company, 149 NLRB 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:
CONCLUSIONS OF LAW
1. Madisonville Concrete Co., A Division of Co-
rum & Edwards, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Chauffeurs, Teamsters and Helpers, Local No.
215, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All truck drivers, mechanics, loader operators
and batch plant operators, excluding all office cleri-
cal employees, professional employees, 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 June 11, 1974, 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 October 17, 1974, 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)(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 Re-
671
lations Board hereby orders that Respondent, Madi-
sonville Concrete Co., A Division of Corum & Ed-
wards, Inc., Madisonville, Kentucky, 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 Chauffeurs, Teamsters
and Helpers, Local 215, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All truck drivers, mechanics, loader operators
and batch plant operators, excluding all office
clerical employees, professional employees,
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 Madisonville, Kentucky, plant cop-
ies of the attached notice marked "Appendix." 8 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 9, 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.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
8In the event that this Order is enforced by a Judgment of a United
States Court of Appea!s, 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."
672 DECISIONS OF 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
Chauffeurs, Teamsters and Helpers, Local No.
215, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive repre-
sentative 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 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 truck drivers, mechanics, loader operators
and batch plant operators, excluding all office
clerical employees, professional employees,
guards, and supervisors as defined in the Act.
MADISONVILLE CONCRETE CO.,
A DIVISION OF CORUM & EDWARDS, INC.