San Antonio Portland Cement Co.

National Labor Relations Board - Board Decisions

Mar 5, 1979

240 N.L.R.B. 1168 (N.L.R.B. 1979)

1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
San Antonio Portland Cement Company and United
Cement, Lime & Gypsum Workers, International
Union, AFL-CIO. Case 23-CA-7261
March 5, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENE I.IO
AND TRUESDALE.
Upon a charge filed on October 3, 1978, by United
Cement, Lime & Gypsum Workers, International
Union, AFL-CIO, herein called the Union, and duly
served on San Antonio Portland Cement Company,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 23, issued a complaint on Octo-
ber 13, 1978, against Respondent, alleging that Re-
spondent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing 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 hear-
ing before an administrative 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 September 8, 1978,
following a Board election in Case 23-RC-461 I, 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 September 25, 1978, 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, and to fur-
nish relevant and necessary bargaining information,
although the Union has requested and is requesting it
to do so.2
On November 9, 1978, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint, and submitting
an affirmative defense.
Official notice is taken of the record in the representation proceeding.
Case 23 RC 4611. as the term "record" is defined in Sees. 102.68 and 102
.69(g) of the Board's Rules and Regulations. Series 8. as amended. See LTI,
Electrosistem,. Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th (ir.
1968): Golden Age Beverage (Co.o, 167 NL.RB 151 (1967). enfd. 415 F.2d 26
(5th Cir. 1969); Interripe Co. . Penello. 269 F.Supp. 573 (D.C.Va. 1967):
Follerr Corp., 164 NL.RB 378 (1967), enfd. 397 F.2d 91 (7th (ir. 1968). Sec.
9(d) of the NLRA. as amended.
2Although the complaint does not allege that the Union specificalls re-
quested bargaining with Respondent. the Union did request that Respon-
dent furnish it with information relevant to the bargaining process. Ihe
Board has found that such a request conslitutes a request for bargaining.
Therefore. Respondent's refusal herein to provide the information sought
by the Union constitutes a refusal to bargain. See, e.g.. Rilhmond DIvisNoOl of
Pak-Well, 206 NLRB 260 (1973).
240 NLRB No. 163
On November 24, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Thereafter, on November 30,
1978, Respondent filed a response to the General
Counsel's motion. Subsequently, on December 7,
1978, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. On December 19,
1978, Respondent filed a letter as a response to the
Notice To Show Cause, incorporating therein its re-
sponse to the General Counsel's Motion for Sum-
mary Judgment previously filed.
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 answer to the complaint, response to the
General Counsel's Motion for Summary Judgment,
and response to the Notice To Show Cause, Respon-
dent denies the validity of the Union's certification
based on (I) its election objection alleging improper
organizational activities of certain of its supervis-
ors; 3 (2) its contention that a proper tally of the
votes cast cannot be made as the one "void" ballot
allegedly tallied as a challenged ballot was, in fact,
counted separately. and is therefore missing, leaving
the remaining challenged ballots determinative of the
election; and (3) its denial of the appropriateness of
the certified unit. In its Motion for Summary Judg-
ment, counsel for the General Counsel alleges that
Respondent seeks to relitigate issues previously con-
sidered in the underlying representation case and
that there are no factual issues warranting a hearing.
We agree.
Review of the record, including that of the repre-
sentation proceedings in Case 23-RC-4611, shows
that upon a Stipulation for Certification Upon Con-
sent Election, an election was held on March 17,
1978. The tally of ballots disclosed 98 votes for and
72 against the Union, leaving determinative the 39
challenged ballots, including one void ballot. There-
after on March 24, 1978, Respondent filed timely ob-
jections to conduct affecting the results of the elec-
tion, alleging essentially that supervisory employees
assisted the Union by engaging in organizational ac-
tivities, such as, inter alia, soliciting authorization
This issue of supervisory organizational actis it on behalf of the Union
was stated as an affirmative defense b Respondent in its answer to the
complalil.
SAN ANTONIO PORTLAND CEMENT COMPANY 1169
cards, attending and/or conducting union organiza-
tional meetings, and distributing campaign litera-
ture.4 On April 27, 1978, after investigation, the Re-
gional Director issued his Order Directing Hearing
and Notice of Hearing, finding that substantial and
material issues of fact, credibility, and policy were
raised by the challenged ballots and by Respondent's
Objection 3.
After a hearing, on July 13. 1978, the Hearing Offi-
cer issued his report in which he (1) sustained the
Petitioner's challenge to the one void ballot: (2)
found that since the parties agreed to the sustaining
of challenges to 14 additional ballots, the 24 remain-
ing challenged ballots were insufficient to affect the
results of the election: and (3) concluded that Re-
spondent's objection had no merit, as two of the em-
ployees alleged as supervisors did not possess super-
visory authority, and the third, who is a low-level
supervisor, did not engage in any conduct which
would impair the employees' freedom of choice in
the election. Thereafter, on August 2, 1978, Respon-
dent filed exceptions to the Hearing Officer's Report
and Recommendations, seeking a second election.5
On August 16, 1978, the Union filed an answering
brief to Respondent's exceptions. On September 8,
1978, after considering the record in light of the ex-
ceptions and briefs, the Board issued its Decision
and Certification of Representative, which adopted
the Hearing Officer's findings and recommendations.
and certified the Union.6
In its Response to the General Counsel's Motion
for Summary Judgment and Response to Notice To
Show Cause, Respondent contends that it is entitled
to a further hearing before an administrative law
judge with respect to the issues of the supervisory
status of alleged union agents and their purportedly
coercive conduct, and the validity of the tally. We
disagree.7 During the course of the representation
proceeding, which included a hearing, all parties
were afforded the opportunity to be heard and pres-
ent evidence and witnesses. Further, in reviewing the
entire record and adopting the Hearing Officer's
findings and recommendations regarding the chal-
lenges and the objection, the Board found that Re-
4 The Respondent's original election objections also contained the allega-
tions that (I) the Union intimidated and threatened eligible voters with
reprisals unless they signed authorization cards and; or soted for the Union.
and 12) that the Union was responsible for defacing NLRB sample halloIs
thereb) making it appear that the Board endorsed the Union These objec-
tions were withdrawn on April 26. 1978. with the approval of the Regional
Director.
5 Respondent. however, failed to specifically except to any of the Hearing
Officer's findings and recommendations with respect to the challenged bal-
lots. including the one "void" ballot.
6On October 3., 1978. the Board also issued an Order correcting an inad-
vertent error in the unit description.
* I.mu.st Indutiries. Inc., 221 NLRB 604 11975).
spondent's objection and exceptions were without
merit. Respondent now raises issues it previously
raised in the representation case in an attempt to ob-
tain an additional hearing, but it is well established
that there is no requirement that an evidentiary hear-
ing must be held where there are no substantial or
material issues.8
Further, it is well settled that in the absence of
newly discovered or previously unavailable evidence
or special circumstances a respondent in a proceed-
ing alleging a violation of Section 8(a)(5) is not enti-
tled to relitigate issues which were or could have
been litigated in a prior representation proceeding.9
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.
Accordingly. we shall grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. 1lHE BL SINESS OF RESPONDENI
Respondent, a Texas corporation with its principal
office and place of business in San Antonio, Texas, is
engaged in the manufacture of cement and related
products. During the past year, a representative pe-
riod, the company purchased and received in excess
of $50,000 worth of products directly from suppliers
located outside the State of Texas.
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.
1I THE L.ABOR ORGANIZATION INVOLVED
United Cement, Lime & Gypsum Workers, Inter-
national Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
Janiler Plastic Mold Corporation., 191 N RB 162 ( 19711.
"See Pirrshurgh Plate Glass C(o .v L RB.. 313 U.S. 146. 162 (19411;
Rules and Regulations of the Board. Secs 102.67(l) and 102.6
9
(cL
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. 1l [NIAIR IAH()OR PRAC(HII(ES
A. The Repreventation 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
employed at the Employer's Cementville Plant
located in San Antonio, Texas, including all em-
ployees in the Quarry Department, Shipping De-
partment, Kiln Department, Finishing Mill De-
partment, Slurry Mill Department, Powerhouse
Department, Plant Office Department, Mainte-
nance and Repair Department. Electrical De-
partment, Laboratory Department, Oiler Sub-
section, as well as plant clerical employees,
leadmen, truckdrivers, and mechanics, exclud-
ing office clerical employees, order clerks,
guards, watchmen, and supervisors as defined in
the Act."'
2. The certification
On March 17, 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 23, 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 September 8, 1978, 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 ReJusal
Commencing on or about September 15, 1978, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit and to furnish
it with relevant and necessary bargaining informa-
tion concerning the employees in the above-de-
scribed unit, including, but not limited to. the em-
ployees' names, classifications, rates of pay., and
it In its answer. Respondent denies the appropriateness of the certified
unit. However, in the Stipulation for Certification UCpon (onsent EFlection.
Respondent stipulated that this unit was appropriate. Further, the Board so
found in its Decision and ('ertification of Representative. In siew of the fact
that Respondent fails to substantiate its denial and change of position. we
find no nierit in its current stance, raised for the first time in these proceed-
ings, that the unit is not an appropriate one See Golden Age HBeerige (.
supra at fn. .
dates of hire, as well as copies of the benefit pro-
grams of said employees. Commencing on or about
September 25, 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 and to fur-
nish relevant and necessary bargaining information.
Accordingly, we find that Respondent has, since
September 25, 1978, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and to furnish relevant and necessary
bargaining information, and that, by such refusal,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and ( ) of the Act.
IV I 111 t[:'I F(' OE : 1 Il F NFAIR LABOR PRA('II('ES tIPON
(O()MMER('E
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 I t R MFEI)Y
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,
and furnish the Union, upon request, relevant and
necessary bargaining information concerning the em-
ployees in the appropriate unit, including, but not
limited to, the employees' names, classifications,
rates of pay, and dates of hire, as well as copies of the
benefit programs of said employees.
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 Poulrv Comptanl, Inc., 136
NLRB 785 (1962); Commerce Company d/'b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
SAN ANTONIO PORTLAND CEMENT COMPANY 1171
(5th Cir. 1964), cert. denied 379 U.S. 817: Burnett
Construction Companv, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (lOth Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CON(CLISIONS 01: LAW
1. San Antonio Portland Cement Company is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. United Cement, Lime & Gypsum Workers, In-
ternational Union. AFL CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed at the Employer's Cementville Plant located
in San Antonio, Texas, including all employees in the
Quarry Department, Shipping Department, Kiln De-
partment, Finishing Mill Department, Slurry Mill
Department, Powerhouse Department, Plant Office
Department, Maintenance and Repair Department.
Electrical Department, Laboratory Department, Oil-
er Subsection, as well as plant clerical employees,
leadmen, truckdrivers, and mechanics, excluding of-
fice clerical employees, order clerks, guards, watch-
men, and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(h) of the
Act.
4. Since September 8, 1978, the above-named la-
bor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about September 25, 1978,
and at all times thereafter. to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employees
of Respondent in the appropriate unit, and to furnish
relevant and necessary bargaining information con-
cerning said employees, including but not limited to.
the employees' names, classifications, rates of pay,.
and dates of hire, as well as copies of the employees'
benefit programs, Respondent has engaged 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)(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-
lations Board hereby orders that the Respondent,
San Antonio Portland Cement Company, San Anto-
nio, Texas. its officers. agents. successors, and as-
signs, 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 United Cement, Lime &
Gypsum Workers, International Union. AFL CIO.
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees
employed at the Employer's Cementville Plant
located in San Antonio, Texas. including all em-
ployees in the Quarry Department. Shipping De-
partment. Kiln Department, Finishing Mill De-
partment. Slurry Mill Department, Powerhouse
Department, Plant Office Department. Mainte-
nance and Repair Department. Electrical De-
partment. Laboratory Department, Oiler Sub-
section, as well as plant clerical employees.
leadmen. truckdrivers. and mechanics, exclud-
ing office clerical employees, order clerks,
guards, watchmen, and supervisors as defined in
the Act.
(b) Refusing to furnish relevant and necessary
bargaining information concerning employees in the
above described unit, including, but not limited to.
the employees' names, classifications, rates of pay,
and dates of hire, as well as copies of the employees'
benefit programs.
(c) 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 and, upon request, furnish relevant
and necessary bargaining information concerning the
employees in the aforesaid appropriate unit, includ-
ing. but not limited to, the employees' names, classi-
fications, rates of pay. and dates of hire. as well as
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copies of the employees' benefit programs.
(b) Post at its San Antonio, Texas, facility copies
of the attached notice marked "Appendix." " Copies
of said notice, on forms provided by the Regional
Director for Region 23, 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 23, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
i 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 b: 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 IHE
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
United Cement, Lime & Gypsum Workers, In-
ternational Union, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL Nor refuse to furnish the above-
named Union with relevant and necessary bar-
gaining information concerning employees in
the bargaining unit described below, including,
but not limited to, the employees' names, classi-
fications, rates of pay, dates of hire, as well as
copies of the employees' benefit programs.
WE WILL NOl 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, and, upon request, furnish the Union
with relevant and necessary bargaining informa-
tion concerning the employees in the bargaining
unit described below, including, but not limited
to, the employees' names, classifications, rates of
pay, and dates of hire, as well as copies of the
employees' benefit programs. The bargaining
unit is:
All production and maintenance employees
employed at the Employer's Cementville
Plant located in San Antonio, Texas, includ-
ing all employees in the Quarry Department,
Shipping Department, Kiln Department, Fin-
ishing Mill Department, Slurry Mill Depart-
ment, Powerhouse Department, Plant Office
Department, Maintenance and Repair De-
partment, Electrical Department, Laboratory
Department, Oiler Subsection, as well as plant
clerical employees, leadmen, truckdrivers and
mechanics, excluding office clerical employ-
ees, order clerks, guards, watchmen and sup-
ervisors as defined in the Act.
SAN ANTONIO PORTLAND CEMENT COMPANY