Martin Building Material Co., Inc.

National Labor Relations Board - Board Decisions

Aug 1, 1968

172 N.L.R.B. 1443 (N.L.R.B. 1968)

MARTIN BUILDING MATERIAL CO. 1443
Martin Building Material Co., Inc . and Truck
Drivers and Helpers Local No. 568 , a/w Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Indepen-
dent . Case 15-CA-3263
August 1, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS
AND ZAGORIA
On May 22, 1968, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. 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, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Deci-
sion, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclu-
sions , and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Martin Building
Material Co., Inc., Alexandria, Louisiana, its of-
ficers, agents, successors, and assigns, shall take the
actions set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Trial Examiner: This
case involves an employer's refusal to bargain with
a certified union following an election, on the
ground that the certification is invalid because the
employer's objections to the election were im-
properly overruled.
Upon a charge filed by Truck Drivers and Hel-
pers Local No. 568, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Indepen-
dent, herein called the Union, the General Counsel
of the Board by the Regional Director for Region
15 issued a complaint and notice of hearing dated
April 2, 1968, alleging that Martin Building Materi-
al Co., Inc., Alexandria, Louisiana, herein called
the Respondent, had engaged in and was engaging
in unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the National Labor Relations
Act. Copies of the charge, complaint, and notice of
hearing before a Trial Examiner were duly served
upon the Respondent.
With respect to the unfair labor practices the
complaint alleged, in substance, that the Respon-
dent had refused upon request to bargain with the
Union as the bargaining representative, within the
meaning of Section 9(a) of the Act, of the em-
ployees in an appropriate unit hereinafter
described, although the Union had been certified as
such exclusive representative by the Acting Re-
gional Director after an election.
On April 15, 1968, the Respondent filed its
answer in which it admitted some of the allegations
of the complaint and denied others. Thus, the
answer admitted the jurisdictional averments of the
complaint, the fact of the election and the certifica-
tion of the Union, and that the Union requested the
Respondent to bargain and that the Respondent
refused. However, the answer denied the ap-
propriateness of the unit and the validity of the cer-
tification, denied that the Union is the representa-
tive of the employees in the appropriate unit within
the meaning of Section 9(a) of the Act, and con-
sequently denied the commission of unfair labor
practices.
On April 19, 1968, counsel for the General
Counsel filed with the Chief Trial Examiner a mo-
tion for summary judgment on the ground that the
Respondent's answer raises no triable issue requir-
ing hearing.
Upon an Order To Show Cause returnable May
9, 1968, issued by me directing the parties to show
cause, if any, as to whether or not the motion for
summary judgment should be granted, the Respon-
dent filed a response which has been considered.
No other responses to the Order To Show Cause
have been received.
172 NLRB No. 156
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ruling On Motion For Summary Judgment
The record of the representation proceeding dis-
closes the following:'
Upon petition filed by the Union the Regional
Director on December 7, 1967, issued a Decision
and Direction of Election concerning the em-
ployees in the appropriate unit over objection by
the Respondent and an intervening union, Laborers
Local 1229, to the effect that a collective-bargain-
ing contract between the Respondent and the Inter-
venor was a bar to an election. Requests by the
Respondent and the Intervenor to the Board in
Washington, D.C., for review of the Regional
Director's Decision and Direction of election were
denied by the Board on January 3, 1968, on the
ground that the requests raised no substantial issues
warranting review. Under applicable Board rule
(Sec. 102.67(f)) this action by the Board con-
stituted an affirmance of the Regional Director's
action, precluding relitigation of such issues in any
related subsequent unfair labor practice proceed-
ing.
An election being conducted in the appropriate
unit on January 14, 1968, in which the Union
received a majority of the votes cast, and the
Respondent thereafter filing timely objections to
the election based in substantial part on asserted in-
terfering conduct by the Union, the Acting Re-
gional Director, after investigation, issued a Supple-
mental Decision and Certification of Representa-
tive on February 19, 1968, in which he found the
objections unsubstantiated, overruled them in en-
tirety, and certified the Union as the representative
of employees in the appropriate unit pursuant to
Section 9(a) of the Act. The Respondent's request
for review of the Acting Regional Director's Sup-
plemental Decision and Certification of Represen-
tative was denied by the Board on March 20, 1968.
Such action constituted an affirmance of the Acting
Regional Director's action, precluding relitigation
of such issues in any related unfair labor practice
case. (Rules, Sec. 102.69 (c)).
In its response to the Order to Show Cause the
Respondent contends that the Board's Rules and
Regulations make no provision for a motion for
summary judgment and that the use of this
procedure is violative of the Administrative
Procedure Act,2 on the ground that such action
would deny Respondent a hearing, the right to sub-
pena and call witnesses and to cross-examine
General Counsel's witnesses. In its response the
Respondent further offers to prove, if opportunity
is afforded at hearing, that the representation
proceeding was conducted in a manner contrary to
the United States Constitution and the Administra-
tive Procedure Act, that the election was invalid
and improperly directed, and that the Respondent
was improperly denied a hearing in the representa-
tion proceeding; and finally, that the Respondent
has not been accorded the right to a hearing con-
ducted under the Federal Rules of Civil Procedure
and in a formal proceeding as normally accorded
by the Board in cases of unfair labor practice al-
legations . Consequently, the Respondent submitted
that the General Counsel's motion for summary
judgment should be denied and the Respondent ac-
corded a "full and fair hearing before a trial ex-
aminer" at the earliest practicable date. These con-
tentions of the Respondent are not supported.
With respect to the validity of the certification it
is clear that all the Respondent's contentions, and
all material issues of fact and law in that regard,
have been previously considered and finally
resolved by the Regional Director or Acting Re-
gional Director and by the Board. Specifically, the
issues raised by the Respondent as to whether an
election should have been directed, as to the validi-
ty of the election, the merit of the Respondent's ob-
jections to it, whether those objections warranted
hearing, and whether the Union should have been
certified as the collective-bargaining representative,
were before and were decided by the Regional
Director or Acting Regional Director and by the
Board in the representation proceeding. With
respect to the Respondent's denial in its answer of
the appropriateness of the unit found by the Re-
gional Director, the Respondent did not seek
review of that feature of the Regional Director's
Decision. Under Board Rule 102.67(f) failure to
seek such review constituted an affirmance of the
Regional Director's action and precludes relitiga-
tion of that issue here.
In the absence of newly discovered or previously
unavailable evidence or special circumstances
(none of which are here asserted by the Respon-
dent) it is established Board policy not to permit
litigation before a Trial Examiner in an unfair labor
practice case of issues which were or could have
been litigated in a prior representation proceeding.'
This policy is applicable even though no formal
hearing on objections has been provided by the
Board. Such a hearing is not a matter of right unless
substantial or material issues are raised by the ob-
jections.4 That there are no such issues here has
been decided by the Regional Director or Acting
' Martin Building Material Co, Inc, I5-RC-3793 Official notice is
taken of the record in the representation proceeding as the term "record"
is defined in Secs 102 68 and 102 69(f) of the Board 's Rules ( Rules and
Regulations and Statements of Procedure, National Labor Relations
Board, Senes 8, as amended, January 1, 1965)
'5USC 1002
' Howard Johnson Company. 164 NLRB 801, Metropolitan Life Insurance
Company, 163 NLRB 579 See Pittsburgh Plate Glass Co v N L R B , 313
U S 146, 161-162 (1941), Rules and Regulations and Statements of
Procedure , National Labor Relations Board, Series 8 , as revised January 1,
1965, Secs 102 67(f) and 102 69(c)
i O.K. Van & Storage, Inc., 127 NLRB 1537, enfd. 297 F 2d 74 (C.A.
1961) And see N L R B v Air Control Window Products, Inc , 335
F 2d 245, 249 (C A 5, 1964) "If there is nothing to hear, then a hearing
is a senseless and useless formaility." See also N L R B v Tennessee
Packers, Inc , 379 F 2d 172, 179 (C A 6, 1967)
MARTIN BUILDING MATERIAL CO.
Regional Director and the Board . We have seen
that the Board 's denial of the various requests for
review of the Regional Directors ' several decisions
constituted an affirmance of them. In these circum-
stances the Board 's and the Regional Dirrector's
dispositions constitute the law of the case at this
stage of the proceedings.
The refusal to meet and bargain with the Union
being conceded, the refusal to bargain is
established , there are no issues litigable before a
Trial Examiner , there is no matter requiring hear-
ing, and summary judgment is therefore ap-
propriate . The Respondent's contention that the
Board 's Rules make no provision for summary
judgment and that the procedure is violative of the
Administrative Procedure Act and the Constitution
has been rejected by the Board in previous deci-
sions.5
The General Counsel's motion for summary
judgment is granted , and I hereby make the follow-
ing further:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein , a corporation duly organized and existing
by virtue of the laws of the State of Louisiana, with
its principal office and place of business in Alexan-
dria , Louisiana , where it is engaged in the manufac-
ture and sale of ready-mixed concrete and in the
retail sale of building materials and general con-
tracting.
During the past 12 months , which period is
representative of all times material herein , Respon-
dent , in the course and conduct of its business
operations , purchased goods and materials valued
in excess of $50 ,000, which goods and materials
were shipped directly to Respondent from points
located outside the State of Louisiana; and during
the same period , Respondent had sales in excess of
$500,000.
Respondent is now , 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.
11. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material
herein , a labor organization within the meaning of
Section 2 (5) of the Act.
5 Liquid Carbonic Corporation, 116 NLRB 795; The Puritan Sports-
wear Corp., 162 NLRB 13, 385 F 2d 142 (C A 3), Union Brothers, Inc.,
162 NLRB 1505. Reno's Riverside Hotel, Inc d/b/a Riverside Hotel, 163
NLRB 280 Metropolitan Life Insurance Company, 163 NLRB 597;
III. THE UNFAIR LABOR PRACTICES
1445
All employees in Respondent's ready-mix depart-
ment at Respondent's Alexandria, Louisiana, plant,
including transit-mix drivers , mechanic , mechanic's
helper, materials loader, and yard laborer; exclud-
ing office clerical employees , guards, batcher-
dispatcher, 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.
At all times since January 4, 1968, and at all
times material herein , the Union has been, and is
now, the representative of a majority of the em-
ployees in the appropriate unit , and by virtue of
Section 9(a) of the Act has been , and is now, the
exclusive representative of all the employees in said
unit for the purposes of collective bargaining with
respect to rates of pay , wages, hours of employ-
ment , and other terms and conditions of employ-
ment.
Commencing on February 20, 1968, and at all
times thereafter to date , the Union requested, and
is continuing to request , Respondent to meet and
bargain collectively with it as the exclusive collec-
tive-bargaining representative of all employees of
Respondent in the appropriate unit with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment.
Since on or about February 20, 1968, and at all
times thereafter to date , Respondent has failed and
refused , and continues to fail and refuse , to recog-
nize the Union, to meet with the Union, and to
confer with it in good faith with respect to wages,
rates of pay, hours of employment, and other terms
and conditions of employment of the employees of
Respondent in the appropriate unit.
By thus refusing to bargain with the Union the
Respondent has engaged in and is engaging in un-
fair labor practices in violation of Section 8(a)(5)
of the Act, thereby interfering with, restraining, and
coercing employees in violation of Section 8(a)(1)
of the Act.
The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and
the entire record in the case, I recommend that the
Board issue the following:
ORDER
A. For the purpose of determining the effective
period of the certification, the initial year of certifi-
Harry T Campbell Sons' Corporation, 164 NLRB 247, Clement-Blythe
Companies, 168 NLRB 118, State Farm Mutual Automobile Insurance
Company, 169 NLRB 843 See also HarveyAlummum (Inc) v N L R B,
335 F 2d 749 (C. A. 9, 1964)
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation shall be deemed to begin on the date the
Respondent commences to bargain in good faith
with the Union as the recognized bargaining
representative in the appropriate unit.'
B. Martin Building Material Co., Inc., Alexan-
dria, Louisiana, its officers, agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Truck
Drivers and Helpers Local No. 568, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Indepen-
dent, as the exclusive collective-bargaining
representative of the employees in the following ap-
propriate unit:
All employees in Respondent's ready-mix de-
partment at Respondent's Alexandria, Loui-
siana, plant , including transit-mix drivers,
mechanic, mechanic's helper, materials loader
and yard laborer; excluding office clerical em-
ployees, guards, batcher-dispatcher and super-
visors as defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent the employees in said ap-
propriate unit as the exclusive collective-bargaining
representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with
Truck Drivers and Helpers Local No. 568, a/w In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Indepen-
dent , as the exclusive representative of the em-
ployees in the appropriate unit with respect to rates
of pay, wages , hours of work, and other terms and
conditions of employment, and embody in a signed
agreement any understanding reached.
(b) Post at its Alexandria, Louisiana, plant co-
pies of the attached notice marked "Appen-
dix."' Copies of said notice, to be furnished
by the Regional Director for Region 15, after being
duly signed by an authorized representative, shall
be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
' The purpose of this provision is to ensure that the employees in the ap-
propriate unit will be accorded the services of their selected bargaining
agent for the period provided by law See Mar-Jac Poultry Co , Inc , 136
NLRB 785, Commerce Company d/bla Lamar Hotel , 140 NLRB 226, 229
enfd 328 F 2d 600 (C A 5, 1964), Burnett Construction Co, 149 NLRB
1419, 1421, enfd 350 F 2d 57 (C A 10, 1965)
' In the event that this Recommended Order is 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 15,
in writing , within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 15, in writing , within 10 days from the date of this Order , what steps
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT refuse to bargain collectively
with Truck Drivers and Helpers Local No. 568,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Independent, as the exclusive collec-
tive-bargaining representative of all the follow-
ing employees:
All employees in the ready-mix depart-
ment of our Alexandria, Louisiana, plant,
including transit-mix drivers, mechanic,
mechanic's helper, materials loader and
yard laborer; excluding office clerical em-
ployees, guards, batcher-dispatcher and
supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of
said Union to negotiate for or represent the
employees in the appropriate bargaining unit
as exclusive collective-bargaining representa-
tive.
WE WILL bargain collectively with the Union
as exclusive bargaining representative of the
employees in the appropriate unit and if an un-
derstanding is reached we will sign a contract
with the Union.
MARTIN BUILDING
MATERIAL CO., INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board 's Regional
Office, T6024 Federal Building (Loyola), 701
Loyola Avenue, New Orleans, Louisiana 70113,
Telephone 504-527-6391.