Empresas Inabon, Inc.

National Labor Relations Board - Board Decisions

Oct 22, 1992

309 N.L.R.B. 291 (N.L.R.B. 1992)

291
309 NLRB No. 28
EMPRESAS INABON, INC.
1 The caption has been amended to reflect the correct spelling of
the Respondent’s name.
2 We note the following inadvertent errors made by the judge
which do not affect the outcome. The judge stated that the Petitioner
had been certified to represent the employees at the Respondent’s
Salinas plant, when, in fact, the incumbent union, Sindicato de
Empleados de Equipo Pesado, Construccion y Ramas Anexas de
Puerto Rico, had been certified at that location. The case reported
at 282 NLRB 482 (1986) is Len Martin Corp.
3 Union de la Construccion de Concreto Mixto y Equipo Pesado
de Puerto Rico is the Intervenor in this proceeding. In affirming the
judge’s recommendation that the Intervenor’s objection to the elec-
tion be overruled, we note that consenting to an election by the fil-
ing of a request to proceed while unfair labor practice charges are
pending does not foreclose the filing of objections based on the
same conduct. Consent to proceed to an election does not constitute
waiver. However, we conclude that under all the circumstances of
the present case, the Intervenor has not met its burden of showing
that the Respondent’s conduct affected the outcome of the election.
4 If 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.’’
Empresas Inabon, Inc.,1 Inabon Ready Mix, Inc.,
and Inabon Aggregates, Inc. and Union de la
Construccion de Concreto Mixto y Equipo
Pesado de Puerto Rico
Empresas Inabon, Inc., Inabon Ready Mix, Inc.,
and Inabon Aggregates, Inc. and Congreso de
Uniones Industriales de Puerto Rico, Petitioner.
Cases 24–CA–6336 and 24–RC–7396
October 22, 1992
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 13, 1992, Administrative Law Judge Hubert
E. Lott issued the attached decision. The Charging
Party filed exceptions and a supporting brief. The Gen-
eral Counsel filed a brief in support of the judge’s de-
cision with limited exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order as
modified and set forth in full below.
ORDER
The National Labor Relations Board orders that the
Respondent, Empresas Inabon, Inc., Inabon Ready
Mix, Inc., and Inabon Aggregates, Inc., Barrio Cotto
Laurel, Ponce, Puerto Rico, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Withdrawing from bargaining with an incumbent
union, which is the exclusive bargaining representative
of its employees in the bargaining unit based on the
filing of a representation petition by an outside chal-
lenging union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facility in Barrio Cotto Laurel, Ponce,
Puerto Rico, copies of the attached notice marked
‘‘Appendix.’’4 Copies of the notice, in English and in
Spanish, on forms provided by the Regional Director
for Region 24, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Sign and return to the Regional Director suffi-
cient copies of the notice for posting by Empresas
Inabon, Inc., Inabon Ready Mix, Inc., and Inabon Ag-
gregates, Inc., Barrio Cotto Laurel, Ponce, Puerto Rico,
at all places where notices to employees are customar-
ily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Congreso de Uniones Industriales
de Puerto Rico and that it is the exclusive collective-
bargaining representative of the employees in the fol-
lowing appropriate unit:
All production and maintenance employees em-
ployed by the Employer at its Ready Mix plant in
Barrio Cotto Laurel, Ponce, Puerto Rico, includ-
ing truck drivers, mechanics, helpers, greasers and
laborers; but excluding all office clerical employ-
ees, salesmen, dispatchers, and supervisors and
guards as defined in the Act.
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although this complaint allegation is denied by Respondent in its
answer, it was found to be a single employer and/or a joint employer
in the Decision and Direction of Elections dated May 14, 1991. No
request for review was ever filed.
2 Respondent in its answer denied that its attorney is an agent of
Respondent. Augustin Collozo admitted on the record that he has
been the Respondent’s attorney of record from the inception of these
proceedings. Therefore I find that he is the agent of Respondent.
3 All dates refer to 1991 unless otherwise indicated.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with an incumbent
union as the exclusive bargaining representative of our
employees in the bargaining unit based on the filing of
a representation petition by an outside challenging
union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
EMPRESAS INABON, INC., INABON
READY MIX, INC., AND INABON AGGRE-
GATES, INC.
Jorge A. Ramos, Esq., for the General Counsel.
Augustin Collozo, Esq., of Hato Rey, Puerto Rico, for the
Respondent.
Pedro Salicrup, Esq., of Hato Rey, Puerto Rico, for the
Charging Party.
Arturo Figueroa and Nicholas Delgado, Esqs., of Porta
Nuevo, Puerto Rico, for the Petititioner.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. This case
was tried in Hato Rey, Puerto Rico, on September 20, 1991.
The 8(a)(5) and (1) charge was filed on May 23, 1991.
Timely objections were filed on June 18, 1991. Complaint
and order consolidating cases issued June 28, 1991.
The issue is Respondent’s refusal to bargain with the in-
cumbent Union (the Union) in the face of a petition filed by
Congreso de Uniones Industriales De Puerto Rico (Peti-
tioner). The objection is the same as the complaint allegation.
FINDINGS OF FACT
Inabon Ready Mix Conrete, Inc. and Inabon Aggregates,
Inc. are wholly owned subsidiaries of Empresas Inabon, Inc.
which are Puerto Rico corporations. All three constitute a
single-integrated business enterprise and a single or joint em-
ployer within the meaning of the Act.1
Respondents are engaged in the processing and sale of
Ready Mix concrete and aggregate products at its facility at
Barrio Coto Laurel, Ponce, Puerto Rico. In the course and
conduct of its business operations, Respondent, during the
last 12-month period, purchased and received goods and
products valued in excess of $50,000 from suppliers located
within the Commonwealth of Puerto Rico, each of which, in
turn, purchased these same goods and products directly from
suppliers located outside the Commonwealth of Puerto Rico.
Respondent annually sells and ships goods and products
valued in excess of $50,000 to customers located within the
Commonwealth of Puerto Rico, each of which, in turn, annu-
ally sells and ships goods and products valued in excess of
$50,000 directly to customers located outside the Common-
wealth of Puerto Rico or purchases and receives goods and
products valued in excess of $50,000 directly from suppliers
located outside the Commonwealth of Puerto Rico.
Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Sections 2(2), (6),
and (7) of the Act. Respondent further admits, and I find,
that the Unions are labor organizations within the meaning
of Section 2(5) of the Act.
Alleged Unfair Labor Practice and Objection
All evidence was admitted through stipulated documents.2
Respondent and Charging Union have had a collective-bar-
gaining relationship for 20 years. The latest collective-bar-
gaining agreement between the parties was effective from
June 30, 1985, to June 30, 1988. Through a stipulation
signed by the parties on December 14, 1988, the contract
was extended from July 1, 1988, to June 30, 1991.
On April 2, 1991,3 Petitioner filed a petition for election
among Respondent’s production and maintenance employees.
On April 4, the Charging Union sent a letter to Respondent
requesting negotiations for a new collective-bargaining agree-
ment. On April 15, Respondent’s attorney responded to this
request by stating that Respondent was available to negotiate
on specific dates. On May 1, Respondent’s attorney, by letter
to Charging Union, refused to meet and negotiate because of
the pending petition which had been filed on April 2. In a
letter dated May 8, the Charging Union insisted on negotia-
tions for a new agreement. A hearing was held in the ‘‘R’’
case and a Decision and Direction of Election issued on May
14, finding, inter alia, no contract bar and single employer
status. No request for review was ever filed. On May 20, Re-
spondent in a letter to Charging Union stated that its final
position was that it would not negotiate until the Board
makes a final determination as to which union represents the
employees. On May 23 the Charging Union filed 8(a)(5) and
(1) charges against Respondent alleging refusal to bargain.
On that same date, Charging Union’s president signed a re-
quest to proceed. On June 12, an election was held for:
All production and maintenance employees employed
by the employer at its Ready Mix plant in Barrio Cato
Laurel, Ponce, Puerto Rico, including truck drivers, me-
chanics, helpers, greasers and laborers; but excluding
all office clerical employees, salesmen, dispatchers and
supervisors and guards as defined in the Act.
The election results are as follows:
293EMPRESAS INABON, INC.
4 Petitioner was certified to represent the employees at Respond-
ent’s Salinas plant.
Eligible voters—37
Votes cast for Petitioner—30
Votes cast for Intervenor (Charging Union)—6
Total votes cast—36
Timely objections were filed on June 18 alleging Respond-
ent’s refusal to bargain as a grounds for setting aside the
election.
Analysis and Conclusions
It is clear from the stipulated facts that Respondent vio-
lated Section 8(a)(5) and (1) of the Act when it refused to
bargain because of the mere filing of a petition by a chal-
lenging Union. RCA Del Caribe, Inc., 262 NLRB 963
(1982).
The other issue deals with the objection to the election
based on the 8(a)(5) violation. The Intervenor (incumbent)
argues, in brief, that when the 8(a)(5) charge was filed, the
Region should have held the ‘‘R’’ case in abeyance until the
charge was resolved. By not doing so, Intervenor argues that
laboratory conditions were destroyed. It further asserts that
the charge should have blocked the election notwithstanding
the signing of a request to proceed because of the nature of
the allegation which precluded the existence of a question
concerning representation.
Where the pending charge alleges violations of Section
8(a)(5) of the Act, the agency has a general policy of holding
a petition in abeyance since the violation and remedy may
condition or preclude the existence of a QCR unless a re-
quest to proceed is filed by the Charging Party. Requests to
proceed in 8(a)(5) cases will not normally be honored where
the allegation, if proven, would preclude the existence of a
QCR, unless specific authorization by the Board is given.
Under these circumstances, the Regional Director may pro-
ceed on the ‘‘R’’ case if he/she believes that the employees
can exercise their free choice in an election.
In the case at issue, the evidence shows that when the In-
tervenor (incumbent) union filed an 8(a)(5) charge on May
23, it also filed a request to proceed. I assume the Region
followed agency policy because it processed the ‘‘R’’ case
through to election. I also have to conclude that the Region
decided a free choice election could be held in the face of
a meritorious 8(a)(5) allegation.4
With respect to the Intervenor’s arguments the evidence is
undisputed that it not only filed a request to proceed but also
participated in the ‘‘R’’ case hearing and election without
objection and never filed a request for review.
The Intervenor’s actions had to be known to the employ-
ees prior to the election. With that knowledge, the employees
still voted overwhelmingly for Petitioner which is a strong
indication that the 8(a)(5) violation had little, if any, impact
on the election.
If there is an inconsistency between a meritorious 8(a)(5)
violation precluding a QCR and the overwhelming mandate
given to Petitioner, so be it. After all, it is not what the two
contending Union’s want, but what the employees voted for
that counts.
Accordingly, I recommend overruling the objection and
certifying the Petitioner. Lynn Martin Corp., 282 NLRB 482
(1986).
CONCLUSIONS OF LAW
1. Empresas Inabon, Inc., Inabon Ready Mix, Inc. and
Inabon Aggregates, Inc. are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Unions are labor organizations within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees employed
by the employer at its Ready Mix plant in Barrio Cato Lau-
rel, Ponce, Puerto Rico, including truck drivers, mechanics,
helpers, greasers and laborers; but excluding all office cleri-
cal employees, salesmen, dispatchers, supervisors and guards
as defined in the Act constitutes a unit appropriate for the
purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Respondent, by refusing to meet and bargain with the
incumbent Union since May 1, 1991, engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the
Act.
5. Incumbent Union’s objection to the election has no
merit.
REMEDY
Having found that Respondent has violated Section 8(a)(5)
and (1) of the Act, I recommend that it cease and desist
therefrom. Since the incumbent Union is no longer the exclu-
sive bargaining representative of the unit employees, the
remedy shall not include an affirmative bargaining order.
[Recommended Order omitted from publication.]