New Enterprise Stone & Lime Co., Inc.

National Labor Relations Board - Board Decisions

Dec 1, 1967

168 N.L.R.B. 673 (N.L.R.B. 1967)

NEW ENTERPRISE
New Enterprise Stone & Lime Company , Inc. and
United Cement, Lime and Gypsum Workers Inter-
national Union , AFL-CIO. Case 6-CA-4038
December 1, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed by United Cement, Lime and
Gypsum Workers International Union, AFL-CIO,
herein called the Union, the General Counsel for
the National Labor Relations Board, by the Acting
Regional Director for Region 6 issued a complaint
and notice of hearing dated September 28, 1967,
against New Enterprise Stone & Lime Company,
Inc., herein called the Respondent, alleging that the
Respondent had engaged in and was engaging in un-
fair labor practices within the meaning of Sections
8(a)(5) and (1) and 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the
charge, complaint, and notice of hearing were duly
served on the Respondent and the Union.
With respect to the unfair labor practices, the
complaint alleges in substance, that on August 24,
1967, the Union was duly certified by the Regional
Director for Region 61 as the exclusive collective-
bargaining representative of Respondent's em-
ployees in an appropriate unit, and that, since on or
about September 6, 1967, Respondent has refused
to recognize or bargain with the Union as such ex-
clusive bargaining representative, although the
Union has requested it to do so.
On October It, 1967, the General Counsel filed
with the Board a motion for summary judgment
requesting, in view of the admission contained in
the Respondent's answer, that the allegations of the
complaint be found to be true, and that the Board
make findings of fact and conclusions of law in con-
formity with the allegations of the complaint. On
October 26, 1967, Respondent filed with the Board
a response to General Counsel's motion for summa-
ry judgment.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connec-
tion with this case to a three-member panel.
Upon the entire record in this case, the Board
makes the following:
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
In its response to General Counsel's motion for
summary judgment, Respondent contends that the
unit found to be appropriate in 6-RC-4293 is in fact
I Decision and certification of representative issued August 16, 1967,
in Case 6-RC-4293 (not published in NLRB Volumes)
2 Pittsburgh Plate Glass Company v. N L R.B., 313 U.S 146; Solis
Theatre Corp & Interboro Circuit, Inc., 166 NLRB 572; Metropolitan
168 NLRB No. 95
STOVE & LIME CO. 673
inappropriate. This contention is without merit. The
Respondent's answer to the complaint and its
response to General Counsel's motion for summary
judgment establish that the Respondent is seeking
to relitigate matters decided in the prior representa-
tion proceeding.
The record before us establishes that on Februa-
ry 10, 1967, following a hearing, the Regional
Director for Region 6 of the National Labor Rela-
tions Board issued a Decision and Direction of
Election in Case 6-RC-4293. The Respondent
thereafter filed a request for review with the Board,
in which it challenged the Regional Director's find-
ing of the appropriateness of the unit. On July 26,
1967, the Board issued an Order denying Respond-
ent's request for review on the ground that it
raised no substantial issues warranting review.
On August 16, in a secret-ballot election con-
ducted under the direction of the Regional Director
for Region 6, a majority of the employees of the
Respondent designated and selected the Union as
their representative for the purposes of collective
bargaining with the Respondent. On August 24,
1967, the Regional Director issued a decision and
certification of representative which certified the
Union as the exclusive collective-bargaining
representative of the employees in the unit found to
be appropriate.
Respondent admits in its answer to the complaint
that the Petitioner has requested it to bargain col-
lectively with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment. While Respondent does not deny that
it has failed and refused to bargain with the Peti-
tioner upon request as alleged in the complaint, it
does allege in its answer that it has no legal obliga-
tion to do so.
In its answer to the complaint, the Respondent
denies it has any legal obligation to bargain with the
Union, but neither asserts any affirmative defenses,
nor relies on newly discovered or previously
unavailable evidence in support of its refusal to bar-
gain.
In the absence of newly discovered or previously
unavailable evidence, issues which were or could
have been raised in the representation proceeding
may not be relitigated in the related unfair labor
practice proceeding.2 Admittedly, the issues which
Respondent seeks to raise in the instant proceeding
relate to the correctness of the Regional Director's
findings as to the appropriateness of the unit. There
is no allegation that special circumstances exist
herein which require the Board to reexamine the
determination which was made in the representa-
tion proceeding. Inasmuch as the Respondent has
already litigated these issues, it has not raised any
Life Insurance Company, 163 NLRB 579, Collins & Aikman Corpora-
tion , 160 NLRB 1750, and United States Rubber Company, 155 NLRB
1298.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issue which is properly triable in the instant unfair
labor practice proceeding.
All material issues thus having been decided by
the Board or admitted in the answer to the com-
plaint, there are no matters requiring a hearing be-
fore a Trial Examiner. Accordingly, the General
Counsel's motion for summary judgment is granted.
On the basis of the record before it, the Board
makes the following:
FINDINGS OF FACT
2. The Certification
On August 16, 1967, a majority of the employees
of Respondent in said unit, in a secret election con-
ducted under the supervision of the Regional
Director for Region 6, designated the Union as
their representative for the purposes of collective
bargaining with Respondent; and on August 24,
1967, the Regional Director for Region 6 certified
the Union as the collective-bargaining representa-
tive of the employees in said unit and the Union
continues to be such representative.
1. THE BUSINESS OF 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 Delaware and is
engaged in New Enterprise, Pennsylvania, in the
operation of quarries, the manufacture and sale of
concrete products, and in construction and main-
tenance work for its various plants and divisions,
the majority of which are located in Pennsylvania.
During the past year, which period is representative
of all material times herein, Respondent shipped
directly to points located outside of the Common-
wealth of Pennsylvania goods valued in excess of
$50,000. During the same period Respondent
purchased supplies and materials valued in excess
of $50,000, which it received directly within the
Commonwealth of Pennsylvania from points out-
side the Commonwealth.
Respondent admits, and we find, that Respond-
ent 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.
II. THE LABOR ORGANIZATION INVOLVED
United Cement, Lime and Gypsum Workers
Union, AFL-CIO, 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
At all times material herein the following em-
ployees of the Respondent have constituted a unit
appropriate for collective bargaining within the
meaning of the Act:
All production and maintenance employees
of New Enterprise Stone & Lime Co., Inc., at
its Concrete Products Division plant in Roar-
ing Spring, Pennsylvania, including prestressed
concrete employees, but excluding all other
employees, office clerical employees, technical
employees and guards, professional em-
ployees, and supervisors as defined in the Act.
B. The Request to Bargain and the Respondent's
Refusal
Commencing on or about August 31, 1967, and
continuing to date, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about September 6, 1967, and con-
tinuing to date, Respondent did refuse, and con-
tinues to refuse, to bargain collectively with the
Union as the exclusive collective-bargaining
representative of all employees in said unit.
Accordingly, we find that the Union was duly
certified as the collective-bargaining representative
of the employees of the Respondent in the ap-
propriate unit described above, and that the Union,
at all times since August 24, 1967, has been and
now is the exclusive bargaining representative of all
the employees in the aforesaid unit, within the
meaning of Section 9(a) of the Act. We further find
that Respondent has, since September 6, 1967,
refused to bargain collectively with the Union as
the exclusive bargaining representative of its em-
ployees in the appropriate unit, and that, by such
refusal, the Respondent has engaged in, and is en-
gaging 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 the Respondent set forth in sec-
tion 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 com-
merce.
V. THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom , and, upon request, bar-
NEW ENTERPRISE STOVE & LIME CO. 675
gain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit, and embody in a signed agreement any un-
derstanding reached.
CONCLUSIONS OF LAW
1. New Enterprise Stone & Lime Company,
Inc., is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Cement, Lime and Gypsum Workers
International Union, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees at
the Employer's Concrete Products Division, Roar-
ing Spring, Pennsylvania, including prestressed
concrete employees, but excluding all other em-
ployees, office clerical employees, technical em-
ployees and guards, professional employees and
guards, professional employees, 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. On August 24, 1967, and at all times
thereafter, the above-named labor organization has
been and is the certified and exclusive representa-
tive of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing on or about September 6, 1967,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the em-
ployees 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) and (1) of the Act.
6. By the aforesaid refusal to bargain, Respond-
ent 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 has thereby en-
gaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 Respond-
ent, New Enterprise Stone & Lime Company,
Inc., Roaring Spring, Pennsylvania, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of em-
ployment with United Cement, Lime and Gypsum
Workers International Union, AFL-CIO, as the
exclusive and duly certified bargaining representa-
tive of its employees in the above-described ap-
propriate unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the exer-
cise of the rights guaranteed to them by 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 embody
in a signed agreement any understanding reached.
(b) Post at its Roaring Spring, Pennsylvania,
Concrete Division plant copies of the attached
notice marked "Appendix."3 Copies of said notice,
on forms provided by the Regional Director for Re-
gion 6, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by the Company to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify said Regional Director for Region 6,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
8 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively
with United Cement, Lime and Gypsum Wor-
kers International Union, AFL-CIO, 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 em-
ployees in the exercise of the rights guaranteed
them by Section 7 of the Act.
336-845 0 - 70 - 44
676 DECISIONS OF NATIONAL
WE WILL, upon request , baragin with the
above-named Union as the exclusive represent-
ative of all employees in the bargaining unit
described below with respect to wages, hours,
and other terms and conditions of employment,
and embody in a signed agreement any un-
derstanding reached.
All production and maintenance em-
ployees of New Enterprise Stone & Lime
Co., Inc., at its Concrete Products Divi-
sion plant in Roaring Spring, Pennsyl-
vania, including prestressed concrete em-
ployees, but excluding all other em-
ployees, office clerical employees, techni-
cal employees and guards, professional
LABOR RELATIONS BOARD
employees, and supervisors as defined in
the Act.
NEW ENTERPRISF STONE
& LIME COMPANY, 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, 1000 Liberty Avenue, Pittsburgh, Pennsyl-
vania 15222, Telephone 644-2977.