Farris Mines

National Labor Relations Board - Board Decisions

Oct 31, 1978

239 N.L.R.B. 166 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Farris Mines and International Union of Operating
Engineers, Local 953, AFL-CIO, Petitioner. Case
28-CA-4904
October 31, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on June 13, 1978, by Interna-
tional Union of Operating Engineers, Local 953,
AFL-CIO, herein called the Union, and duly served
on Farris Mines, herein called Respondent, the Gen-
eral Counsel of the National Labor Relations Board,
by the Regional Director for Region 28, issued a
complaint on July 12, 1978, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging 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 pro-
ceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on May 30, 1978, fol-
lowing a Board election in Case 28-RC-3409, 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 June 2, 1978, 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
July 17, 1978, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint. Respondent admits that
it meets the Board's jurisdictional standards, that the
Union is a labor organization within the meaning of
the Act, and that the unit described in the election
petition is appropriate, but denies all of the remain-
ing allegations of the complaint.
On August 7, 1978, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on August 16, 1978,
Official notice is taken of the record in the representation proceeding,
Case 28 RC-3409, 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 Electrosystenms. Inc, 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F 2d
26 (5th Cir. 1969); Intertvpe Co. v. Penello, 269 F.Supp. 573 D.C.Va., 1967):
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Ci. 1968); Sec
9(d) of the NLRA, as amended.
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent thereafter
filed a Response to Motion for Summary Judgment
and 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
Respondent's Response to Motion for Summary
Judgment and Notice To Show Cause is devoted
substantially to reargument of the merit of its objec-
tions and its position on challenges in the representa-
tion case; namely, that the Board failed to give due
consideration to Respondent's exceptions to the Re-
gional Director's findings and recommendations
therein. Respondent further asserts that, as to the re-
fusal-to-bargain issue, evidence of such refusal by
Respondent should properly be in the form of testi-
mony before an Administrative Law Judge rather
than by affidavit of the union business manager as in
the instant case. Therefore Respondent requests that
the entire proceeding be remanded for hearing before
an Administrative Law Judge or that the complaint
be dismissed in its entirety.
Review of the record herein, including the record
in Case 28-RC-3409, reveals that on January 26,
1978, pursuant to a Stipulation for Certification
Upon Consent Election, an election was held in the
appropriate unit. The tally of ballots showed that 42
ballots were cast for and 28 against the Union, and
16 ballots were challenged.
On March 8, 1978, the Regional Director issued
his report on determinative challenged ballots and
objections to the election in which he, inter alia, sus-
tained challenges to 3 of the 16 challenged ballots
and recommended that the Employer's objections be
overruled and that a certification of representative
issue. Thereafter, Respondent filed timely exceptions
to the Regional Director's report, requesting the
Board to reverse the Regional Director by overruling
one of the challenges which the Regional Director
had sustained and making it necessary thereby to
open and count the 14 determinative challenges, and
by overruling the Regional Director's dismissal of the
Employer's objections.
On May 30, 1978, the Board issued a Decision and
Certification of Representative in which it adopted
the Regional Director's report and certified the
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FARRIS MINES
Union as the exclusive bargaining representative of
the employees in the appropriate unit.
It thus appears that Respondent is merely attempt-
ing to relitigate issues which were raised and de-
termined adversely to it in the underlying representa-
tion case.
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.
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 pre-
viously 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. We therefore find that
Respondent has not raised any issue which is proper-
ly litigable in this unfair labor practice proceeding.3
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 has been at all times material herein a
New Mexico corporation with its principal office in
Grants, New Mexico, and an office and earthmoving
operation at the St. Anthony mine near Bibo, New
Mexico, where it has been engaged in open pit ura-
nium mining. During the 12 months preceding the
issuance of the complaint herein, Respondent, in the
course and conduct of its business operations, pur-
chased and received at its places of business in New
Mexico goods and materials valued in excess of
$50,000 directly from suppliers located outside the
State of New Mexico.
We find, on the basis of the foregoing, that Re-
spondent 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 juris-
diction herein.
2
Sce Pittsburgh Plate Glass Co. v. N'.L.R.B., 313 U.S. 146. 162 11941);
Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c).
3 As Respondent's response to the Notice To Show Cause has not contro-
verted the General Counsel's factual allegations of the refusal to bargain.
there is no genuine issue of fact relating thereto requiring testimonial evi-
dence before an Administrative Law Judge. as contended by Respondent.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers, Local
953, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
I11. 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 the Employer at the St. Anthony mine
near Bibo, New Mexico, but excluding all other
employees, office clerical employees, technical
employees, professional employees, guards,
watchmen, and supervisors as defined by the
Act.
2. The certification
On January 26, 1978, a majority of the employees
of Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 28, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on May 30, 1978, 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 June 2, 1978, 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 em-
ployees in the above-described unit. Commencing on
or about June 2, 1978, and continuing at all times
thereafter to date. Respondent has refused, and con-
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
June 2, 1978, 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 en-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged 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
III, above, occurring in connection with its opera-
tions described in section 1, 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
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett 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:
CONCLUSIONS OF LAW
1. Farris Mines is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. International Union of Operating Engineers,
Local 953, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by the Employer at the St. Anthony mine
near Bibo, New Mexico, but excluding all other em-
ployees, office clerical employees, technical employ-
ees, professional employees, guards, watchmen, and
supervisors as defined by the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since May 30, 1978, 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 June 2, 1978, 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)(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 Re-
lations Board hereby orders that the Respondent,
Farris Mines, Grants, New Mexico, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with International Union of
Operating Engineers, Local 953, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees em-
ployed by the Employer at the St. Anthony mine
near Bibo, New Mexico. but excluding all other
employees, office clerical employees, technical
employees, professional employees, guards,
watchmen and supervisors as defined by 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
168
FARRIS MINES
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 the St. Anthony mine and at its place
of business in Grants, New Mexico, copies of the
attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director
for Region 28, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices 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.
4 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 Inter-
national Union of Operating Engineers, Local
953, AFL-CIO, as the exclusive representative
of the employees in the bargaining unit de-
scribed 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 represen-
tative 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 production and maintenance employees
employed by the Employer at the St. Anthony
mine near Bibo, New Mexico, but excluding
all other employees, office clerical employees,
technical employees, professional employees,
guards, watchmen and supervisors as defined
by the Act,
FARRIS MINES
169