Sumner Sand & Gravel Co.

National Labor Relations Board - Board Decisions

Aug 26, 1960

128 N.L.R.B. 1368 (N.L.R.B. 1960)

1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sumner Sand & Gravel Company and General Teamsters, Ware-
housemen and Helpers Union , Local No. 483 and International
Union of Operating Engineers , Local No. 370, AFL-CIO. Cases
Nos. 19-CA-1906 and 19-CA-1919. August 06, 1960
DECISION AND ORDER
On March 17,1960, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in this case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following additions.'
We agree with the Trial Examiner that the Respondent violated
Section 8(a) (5) and (1) of the Act by refusing to bargain with the
Charging Unions, herein called the Teamsters and the Operating
Engineers.
The record shows that on April 10, 1959, the Respondent and the
Teamsters entered into an agreement for consent election in Case
No. 19-RC-2341, for a unit of truckdrivers, shop mechanics, helpers,
and general labor, with certain enumerated exclusions. On April 30,
1959, the Respondent and the Operating Engineers also entered into
an agreement for consent election in Case No. 19-RC-2354 covering
a unit primarily composed of operators of heavy equipment such as
crusher plants, batch plants, shovels, tractors, etc. Both agreements
were duly approved by the Regional Director for the Nineteenth
1 The Respondent is engaged in the business of processing and selling of sand, gravel,
and ready-mixed concrete at Twin Falls , Idaho. Its 1958 direct out-of-States sales
amounted to $46,708.43. During the same year , Respondent sold $131,738 worth of
merchandise to Jacobsen Construction Company, a Utah corporation located at Salt Lake
City, Utah . Jacobsen received that merchandise at Georgetown , Idaho, where it was
engaged in the construction of a phosphate plant. As it is clear that Jacobsen rendered
services in at least the amount received from the Respondent Company in Idaho, i.e., a
State other than its home State of Utah, we find that Jacobsen is engaged in commerce
within the meaning of the Act and that it meets the Board 's standards for assertion of
jurisdiction under the direct outflow standard of Simons Mailing Service , 122 NLRB 81,
85. The Respondent Company's sales to Jacobsen are therefore indirect outflow within
the meaning of the aforementioned case. By adding the Respondent Company's direct
and indirect outflow under Siemons Mailing , we find, in agreement with the Trial Exam-
iner, that the Respondent Company is engaged in commerce and that it will effectuate the
policies of the Act to assert jurisdiction herein. Cf . Hart Concrete Products Co., 94
NRLB 1565.
128 NLRB No. 114.
SUMNER SAND & GRAVEL COMPANY 1369
Region . Both agreements were entered into in accordance with Sec-
tion 102.62 of the Board's Rules and Regulations, Series 8, and Section
101.19(a) (1)-(6). The agreements contained the following language
customary in this type of agreement which is commonly referred to
as a "Consent Election Agreement , followed by the Regional Director's
determination" :
1. ELECTION ... Said election shall be held in accordance
with the National Labor Relations Act, the Board's Rules and
Regulations , and the customary procedures and policies of the
Board, provided that the determination of the Regional Director
shall be final and binding upon any question, including questions
as to the eligibility of voters, raised by any party hereto relating
in any manner to the election, .. .
6. OBJECTIONS, CHALLENGES, REPORTS THERE-
ON-. . . If the challenges are determinative of the results of
the election, the Regional Director shall investigate the challenges
and issue a report thereon. The method of investigation of ob-
jections and challenges, including the question whether a hearing
should be held in connection therewith, shall be determined by the
Regional Director, whose decision shall be final and binding.
[Emphasis supplied.]
Pursuant to these agreements , the Regional Director, in the exer-
cise of his discretion as to the method of balloting, conducted mail
ballot elections in the two agreed units. The Operating Engineers
obtained a clear majority in its unit and was duly certified by the
Regional Director as the collective-bargaining representative of the
employees therein on May 28, 1959. In the Teamsters unit of 17
eligible voters, the Teamsters obtained 8 votes with 6 against it. Three
voters cast challenged ballots. As the challenged ballots were determi-
native of the results of the election, the Regional Director conducted
an appropriate investigation. On June 5, 1959, the Acting Regional
Director for the Nineteenth Region issued his report on challenged
ballots and certification of representatives in Case No. 19-RC-2341.
In it he found that one Glen Hopwood was admittedly the foreman
in charge of the Respondent's shop, and that he directed the work
of other employees. He accordingly ruled that, as a supervisor within
the meaning of the Act, he was not eligible to vote. He further found
that employee Theodore Netz had, during the year preceding the
election, been operating a loader at the Employer's gravel pit. and
was so employed on the day of the election; that Netz operated a
loader to handle all heavy repair equipment and that he was respon-
sible for servicing and maintaining the loader assigned to him; and
that he was driving a truck in the course of his duties for not more
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than 8 hours during his regular 48-hour week. The Acting Regional
Director, accordingly, determined that Netz was not eligible to vote
in the Teamsters unit as he spent most of his time performing work
outside this unit. The Acting Regional Director found it unneces-
sary to make a determination as to the third challenged ballot as it
could not affect the outcome of the election after his disposition of
the two other ballots. He found that the Teamsters had obtained a
majority of the valid ballots cast and certified it as the exclusive bar-
gaining representative of all employees in the agreed truckdrivers
unit.
Subsequently, Respondent filed exceptions to the report on chal-
lenged ballots and certification of representatives. By letter dated
June 17, 1959, the Assistant Executive Secretary of the Board de-
clined to consider these exceptions in accordance with the Board's
Rules and Regulations, Section 102.62, and Section 101.19 of the State-
ments of Procedure. Notwithstanding the finality of the Regional
Director's aforementioned certifications and the Charging Unions'
requests for bargaining pursuant thereto, the Respondent has at all
times refused to engage in bargaining with the Unions.
On the above facts, the General Counsel alleged that the Respondent
unlawfully refused to bargain with the duly certified representative of
its employees. The Respondent defended primarily on the ground
that the Regional Director and Acting Regional Director acted in
an arbitrary and capricious manner in that they (a) declined to give
the Respondent a hearing and (b) failed to evaluate properly the
facts pertaining to the challenged votes. We agree with the Trial
Examiner that the Respondent's contentions lack merit.
As to the denial of a formal hearing, the argeement for consent
election specifically provided for the waiver of a preelection hearing,
and left the question whether a hearing should be held in connection
with any investigation of objections and challenges to be determined
by the Regional Director, whose decision shall be final and binding.
The Board and the courts have consistently held that an "agreement
for consent election" executed by a company and the union "is a con-
tract and, as such, its provisions, if not otherwise contrary to law, are
valid and binding upon the parties who have expressed their mutual
assent thereto." 2
In the Carlton Wood Products' case, the Ninth Circuit Court of
Appeals, after a detailed analysis of the standard agreements for con-
sent election, found that the Regional Director may proceed by ad-
a Semi-Steel Casting Co. of St. Louis v. N.L.R.B., 106 F. 2d 388 (C.A. 8), cert. denied
332 U.S. 758 ; N.L.R.B. v. The Standard Transformer Company, 202 F 2d '846 (C.A. 8) ;
N L.R B. v. Saxe Glassman Shoe Corporation, 201 F. 2d 238 (C.A. 1) ; N.L.R.B. v. Volney
Felt Mills , Inc., 210 F. 2d 559 (C.A. 6).
8 N.L.R B. v. Carlton Wood Products, 201 F . 2d 863 ( C.A. 9) enfg. 95 NLRB 589,
amended 97 NLRB 1182.
SUMNER SAND & GRAVEL COMPANY 1371
ministrative investigation rather than by formal hearing to determine
challenges determinative of the results of an election and that a formal
hearing is not required. We find that the Regional Director's denial
of a hearing herein was not arbitrary and capricious.
As to Respondent's second contention, i.e., that the Regional Di-
rector in an arbitrary and prejudicial manner failed to evaluate
properly the facts as to the status of the challenged votes, the Trial
Examiner, at the hearing, admitted testimony without expressly ruling
that such evidence was admitted only for the purpose of determining
the alleged arbitrariness of the Regional Director's action and not for
the purpose of reconsideration de novo of the issues determined in the
representation case. We must assume, however, that the evidence
taken at the hearing was admitted for the only proper purpose in a
complaint proceeding based on a prior representation proceeding,
namely, to determine whether the Regional Director's action was
arbitrary and capricious.
We take this opportunity to reiterate here the Board's longstanding
policy, uniformly upheld by the courts, that we will deem the Regional
Director's determination in consent elections of this character to be
final in the absence of fraud, misconduct, or such gross mistakes as
imply bad faith on the part of the Regional Director, even though
we might have reached a different conclusion." As the Board said in
Capital Greyhound Lines,' "To hold otherwise would permit an em-
ployer deliberately to ignore binding commitments embodied in a con-
sent agreement; would open the door to subterfuges for hampering
and delaying a final determination of a bargaining representative; and
would tend to defeat, rather than to effectuate, the policies of the Act."
Henceforth, as in the past, only evidence as to the alleged arbitrariness
or capriciousness of a Regional Director's determinations shall be
admittedly by a Trial Examiner in in any complaint proceeding
arising out of a respondent's failure to honor a Regional Director's
certification following an agreement for consent election which pro-
vides for a final and binding determination of all issues by the Re-
gional Director. We shall disregard evidence erroneously admitted
by a Trial Examiner as to the merits of the Regional Director's
decision.
In the instant case, the Respondent neither alleged, offered to prove,
or proved, fraud on the part of the Regional Director or the Acting
Regional Director. Its allegations of arbitrary and capricious action
were, in fact, an attack on the judgment of the Regional Director and
on the merits of the decision as to the challenged votes. The record
contains nothing that would remotely point to arbitrariness or ca-
'General Armature and Manufacturing Co., 89 NLRB 654, 659, enfd. 192 F. 2d 316
(C.A. 3).
Capital Greyhound Lines, at al., 49 NLRB 156, enfd. 140 F . 2d 754 (CA. 6), cert.
denied 322 U.S. 763.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priciousness on the part of the Regional Director or the Acting Re-
gional Director. Accordingly, without considering the substantive
merits of the determination of the challenged votes, we find that the
certifications issued in the two representation proceedings, preceding
the case herein, were valid and binding.
As the Respondent admittedly has declined to honor these certifi-
cations, and has refused to bargain with the exclusive bargaining
representatives of its employees, we find the Respondent has violated
Section 8 (a) (5) and (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Sumner Sand &
Gravel Company, Twin Falls, Idaho, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to recognize or bargain collectively with General
Teamsters, Warehousemen and Helpers Union, Local No. 483, as the
exclusive representative of all employees at the Respondent's Idaho
operations, in the following bargaining unit with respect to wages,
rates of pay, hours of employment, and other conditions of
employment :
All truckdrivers, shop mechanics, and helpers and general labor, ex-
cluding managers, superintendents, foremen, clerical employees,
supervisors, dragline operators, catskinners, batch plant operators,
truck-dozer operators, guards, and professional employees as defined
in the Act.
(b) Refusing to recognize or bargain collectively with International
Union of Operating Engineers, Local No. 370, AFL-CIO, as the ex-
clusive representative of all employees at the Respondent's Idaho
operations in the following bargaining unit with respect to wages,
rates of pay, hours of employment, and other conditions of
employment :
Operators of crusher plants, batch plants, shovel, dragline, and
tractor and loader operators, oilers, mechanics, and welders, excluding
office and clerical employees, truckdrivers, supervisors, and guards as
defined in the Act.
(c) In any like or related manner refusing to bargain collectively
with the said labor organizations as the exclusive representatives of
all employees in the above-mentioned appropriate units.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with General Teamsters,
Warehousemen and Helpers Union, Local No. 483, and International
SUMNER SAND & GRAVEL COMPANY 1373
Union of Operating Engineers, Local No. 370, AFL-CIO, respec-
tively, as the exclusive representatives of all employees in the afore-
said units with respect to wages, rates of pay, hours of employment,
and other conditions of employment, and if an agreement is reached,
embody such agreement in a signed contract.
(b) Post at its plants in Twin Falls and Buhl, Idaho, and at its
Idaho gravel pit, copies of the notice attached hereto, marked "Ap-
pendix." 6 Copies of the notice, to be furnished by the Regional
Director for the Nineteenth Region, after having been duly signed by
an authorized representative of the Respondent, shall be posted by
it immediately upon receipt thereof, and maintained by it for 60 con-
secutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps it has taken to comply
therewith.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
0In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a decree of the United States Court of Appeals, Enforcing 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, we hereby notify our employees that :
WE WILL, upon request, bargain collectively with General
Teamsters, Warehousemen and Helpers Union, Local No. 483, as
the exclusive representative of all employees at our Idaho opera-
tions in the following bargaining unit with respect to rates of
pay, wages, hours of employment, and other conditions of em-
ployment, and, if an understanding is reached, will embody such
understanding in a signed agreement :
All truckdrivers, shop mechanics and helpers, and general
labor, excluding managers, superintendents, foremen, clerical
employees, supervisors, dragline operators, catskinners, batch
plant operators, truck-dozer operators, guards, and profes-
sional employees as defined in the Act.
WE WILL bargain collectively upon request with International
Union of Operating Engineers, Local No. 370, AFL-CIO, as the
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive representative of all employees at our Idaho operations
in the following bargaining unit with respect to wages, rates of
pay, hours of employment, and other conditions of employment,
and if an understanding is reached, embody such understanding
in a signed agreement :
Operators of crusher plant, batch plants, shovel, dragline,
and tractor and loader operators, oilers, mechanics, and
welders, excluding office and clerical employees, truckdrivers,
supervisors, and guards.
WE WILL NOT interfere with the efforts of the above-named
labor organizations to bargain collectively with us, or refuse to
bargain with said organizations, as the exclusive representatives
of our employees in the bargaining units set forth above or
engage in any like or related acts or conduct.
All our employees are free to become or remain or refrain from
becoming members of the above-named Unions, or any other labor
organization, except to the extent that such right may be affected by
an agreement in conformity with Section 8(a) (3) of the National
Labor Relations Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
SUMNER SAND & GRAVEL COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced , or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on November 12, 1959, by General Teamsters, Ware-
housemen and Helpers Union, Local No. 483, herein called the Teamsters, and
upon a charge duly filed on December 7, 1959, by International Union of Operating
Engineers, Local No. 370, AFL-CIO, herein called the Engineers, the General
Counsel of the National Labor Relations Board, herein respectively called the
General Counsel' and the Board, through the then Acting Regional Director for
the Nineteenth Region (Seattle, Washington), issued a consolidated complaint,
dated December 31, 1959, against Sumner Sand & Gravel Company, herein called
Respondent, alleging that Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8(a)(1) and (5)
and Section 2(6) and (7) of the National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act.
Copies of the consolidated complaint, the charges, and notice of hearing were
duly served upon Respondent, the Teamsters, and the Engineers.
Specifically, the consolidated complaint, as amended at the hearing, alleged
that: (1) On June 5, 1959,2 the then Acting Regional Director for the Nineteenth
Region, in Case No. 19-RC-2341, certified the Teamsters as the collective-bargain-
' This term specifically includes counsel for the General Counsel appearing at the
hearing.
I Unless otherwise noted, all dates hereinafter mentioned refer to 1959.
SUMNER SAND & GRAVEL COMPANY 1375
ing representative of all Respondent 's truckdrivers , shop mechanics and helpers,
and general labor, excluding managers , superintendents , foremen , clerical employees,
supervisors , dragline operators , catskinners , batch plant operators , tractor-dozer
operators , guards, and professional employees as defined by the Act ; (2) on May
28, the Regional Director for the Nineteenth Region , in Case No. 19-RC-2354,
certified the Engineers as the collective -bargaining representative of all Respondent's
operators of crusher plants, batch plants, shovel , dragline, and tractor and loader
operators , oilers, mechanics , and welders, excluding office and clerical employees,
truckdrivers , supervisors, and guards ; ( 3) since July 17, the Teamsters has been
demanding that Respondent bargain collectively with it as the duly designated rep-
resentative of the employees in the unit which the Teamsters and Respondent agreed
was appropriate for the purposes of collective bargaining in Case No. 19-RC-2341,
but that Respondent, since July 17 , has failed and refused to bargain collectively
with the Teamsters as such representative ; (4) since October 1 , the Engineers has
been demanding that Respondent bargain collectively with it as the duly designated
representative of the employees in the unit which the Teamsters and Respondent
agreed in Case No. 19-RC-2354 to be appropriate for the purposes of collective
bargaining , but that Respondent , since October 1 , has failed and refused to bargain
collectively with the Engineers as such representative ; and (5 ) by the foregoing acts
and conduct, Respondent has interfered with, restrained , and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
Respondent duly filed an answer denying the commission of the unfair labor
practices alleged . The answer , however, admitted the allegations of the complaint
(1) as to the corporate existence of Respondent , but denied that Respondent was
engaged in commerce within the meaning of the Act ; ( 2) that the Teamsters had
been certified as the collective -bargaining representative of certain employees of
Respondent but averred that the certification was improper and ineffective ; ( 3) that
the Engineers had been certified as the collective -bargaining representative of certain
employees of Respondent , but averred that the certification was improper and in-
effective ; (4) and that Respondent refused to bargain collectively with either union.
By way of affirmative defenses , the answer averred that ( 1) the then Acting Regional
Director in Case No. 19-RC-2341 and the Regional Director in Case No. 19-RC-
2354 acted in an arbitrary manner in certifying the aforementioned labor organiza-
tions; and (2) said Acting Regional Director abused his discretion by (a) sustaining
the Teamsters ' challenges to certain ballots cast in the election in Case No . 19-RC-
2341; (b) over the objections of Respondent , conducting the election in Case No.
19-RC-2341 by mail; and ( c) sustaining certain challenges to certain ballots
without according Respondent a bearing which Respondent demanded on the
challenges.
Pursuant to due notice, a hearing was held on January 28 at Twin Falls, Idaho,
before the duly designated Trial Examiner . The General Counsel and Respondent
were represented by counsel and participated in the hearing . Full opportunity was
afforded all parties to be heard, to examine and cross -examine witnesses, and to
introduce evidence material and relevant to the issues . At the conclusion of the
taking of the evidence , the General Counsel moved to conform the pleadings to
the proof . The motion was granted without objection . Counsel were then informed
that they might file briefs with the Trial Examiner on or before February 19. A
brief has been received from the General Counsel which has been carefully
considered.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF RESPONDENT
Respondent is engaged in business at Twin Falls, Idaho, in the processing and sale
of sand, gravel , and ready-mix concrete.
Respondent 's 1958 out -of-State sales amounted to $46 ,708.43. During the same
year, Respondent sold $131 ,738 worth of merchandise to Jacobsen Construction
Company, which was, and still is, located at Salt Lake City , Utah . Jacobsen
received said merchandise at Georgetown , Idaho , where it was engaged in the
construction of a phosphate plant.
During 1958, Respondent sold $15 ,000 worth of concrete to Jack Parsons Con-
struction Co. of Smithfield, Utah. Said concrete was delivered by Respondent to
Montpelier, Idaho , where the Parsons firm was then engaged in the construction
of U.S. 30 North highway.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing facts, it is found, in line with established Board
authority, and contrary to Respondent's contention, that Respondent is engaged,
and during all times material was engaged, in business affecting commerce within
the meaning of the Act and that its operations meet the standards fixed by the
Board for the assertion of jurisdiction.3
II. THE LABOR ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local No. 370, AFL-CIO and
General Teamsters, Warehousemen and Helpers Union, Local 483, are labor or-
ganizations admitting to membership employees of Respondent.
HI. THE UNFAIR LABOR PRACTICES
The Refusal To Bargain Collectively With the Teamsters and With the Engineers
The Pertinent Facts
Under date of April 10, Respondent and the Teamsters entered into a consent
election agreement in Case No. 19-RC-2341, which agreement was approved by
the Regional Director for the Nineteenth Region on April 13. The unit described
therein as being appropriate consists of all Respondent's truckdrivers, shop me-
chanics and helpers, and general labor, excluding managers, superintendents, fore-
men, clerical employees, supervisors, dragline operators, catskinners, batch plant
operators, tractor-dozer operators, guards, and professional employees as defined
in the Act.
Under the date of April 29, the chief field examiner of the Board's Nineteenth
Region forwarded to Respondent a consent election agreement in Case No. 19-RC-
2354 covering all Respondent's operators of crusher plants, batch plants, shovel,
dragline, and tractor and loader operators, oilers, mechanics, and welders, excluding
office and clerical employees, truckdrivers, supervisors, and guards.
The aforesaid agreement was executed by Respondent and the Engineers on
April 30, and approved by aforementioned Regional Directors on May 13.
The letter dated April 29 directed to Respondent, copies of which, according to
the notation appearing on the copy which was received in evidence, were sent to
Respondent's attorney and to the two labor organizations involved, which accom-
panied the aforementioned proposed agreement in Case No. 19-RC-2354, states,
in part, as follows:
From information received in this office it appears you have your crew scattered
and working in several locations. Under those circumstances it may well be
advisable to conduct this election by mail. I, therefore, request that you furnish
me with a list of all the employees who are employed in the Teamsters unit
and on your payroll during the payroll that ended prior to April 13, 1959.. . .
I request that you give me the mailing address of each of these employees.
If we conduct the election by mail, the ballots would be mailed out of this
office around May 6 or 7 and returnable to me in the field about a week later.
I would suggest that the mail ballots be opened and counted in the office of
your attorney, Eli A. Weston, in Boise, Idaho, probably around May 15.
If you follow my suggestion in regards to the petition filed by the Operating
Engineers in Case No. 19-RC-2354, I request that you furnish me a separate
list of the employees included in that petition, also giving their classification and
their mailing address. This election would be handled in the same manner.
On May 8, Respondent's attorney telegraphed the chief field examiner of the
Nineteenth Region as follows:
Expected you to contact me Monday Sumner case. Disagree on commerce
question and will not consent to balloting by mail. Letter follows enclosing
list of employees and addresses both units. Request hearing on question of
jurisdiction.
Pursuant to the request contained in the aforesaid April 29 letter of the chief
field examiner and in accordance with the statement contained in Respondent attor-
ney's May 8 telegram, Respondent supplied the Board's Nineteenth Regional Office
with a list of persons then in its employ, their respective classifications, and their
3 See Siemens Mailing Service, 122 NLRB 81; Hart Concrete Products Co., 94 NLRB
150; White's Uvalde Mines, 117 NLRB 1128.
SUMNER SAND & GRAVEL COMPANY 1377
respective home addresses. Said list discloses that Respondent's employees reside
in the Idaho towns of Twin Falls, Wendell, Buhl, Hagerman, and Filer.4
Pursuant to the aforesaid consent election agreements , mail ballot elections,
under the auspices of the Regional Director for the Nineteenth Region, were cons
ducted on May 20, among the employees in the respective appropriate units.
Since the Engineers had been selected by a majority of the employees in the
election held in Case No. 19-RC-2354 and no objection was filed to the tally of
the ballots furnished to the parties to the proceeding or to the conduct of said
election, the said Regional Director, on May 28, certified the Engineers as the ex-
clusive representative of all the employees in the agreed appropriate unit for the
purposes of collective bargaining with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
The tally of ballots in Case No. 19-RC-2341 disclosed that of the 17 eligible
voters, 8 votes were cast in favor of and 6 against the Teamsters. The ballots of
three voters were challenged by the Teamsters. As the challenged ballots were
determinative of the results of the election,5 the then Acting Regional Director for
the Nineteenth Region, after an administrative investigation, issued a report on
challenged ballots and certification of representatives, dated June 5, in which he
sustained two of the Teamsters' challenges. The said Acting Regional Director made
no finding with respect to the third challenged ballot because said vote would not be
determinative of the results of the election.
In his report on challenged ballots and certification of representatives, referred to
immediately above, the said Acting Regional Director certified the Teamsters as the
exclusive representative of all the employees in the agreed appropriate unit for the
purposes of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
Under date of June 12, Respondent's attorney filed exceptions to report on chal-
lenged ballots and certification of representatives with the Board.
Under date of June 17, the Board, through its Assistant Executive Secretary, wrote
Respondent's attorney that the Board would not entertain the Respondent's appeal
on the Acting Regional Director's report and certification.
Under date of July 9, Respondent's attorney wrote the aforementioned Board's
Assistant Executive Secretary protesting the Board's refusal to entertain his afore-
said appeal.
Concluding Findings
Respondent's admitted refusal to bargain with the two labor organizations here
involved narrows the issue to be decided as to the validity of the certification in
Case No. 19-RC-2341 and as to the finality of the Regional Director's rulings in
the two representation proceedings with respect to the method of conducting the
elections.
The consent-election agreements executed by the respective parties made the
Regional Director's determination "final and binding upon any question, including
questions as to the eligibility of voters, raised by any party hereto relating in any
manner to the election." In addition, said agreements provide that the Regional
Director's decision as to whether or not to hold a hearing in connection with chal-
lenged ballots "shall be final and binding." Under settled law, "Determination by
a Regional Director acting pursuant to a consent election agreement which specifies
that such determinations will be final and binding can be set aside only where they
are arbitrary or capricious." 6
The record in this case is entirely void of any evidence to support Respondent's
contentions that the aforementioned Regional Director acted in any arbitrary or
capricious manner in permitting the employees in the two elections to vote by mail
or that the Acting Regional Director acted in any arbitrary or capricious manner in
sustaining the objections of the Teamsters and his subsequent certification of that
union in Case No. 19-RC-2341. Accordingly, the Trial Examiner finds that Re-
+ Respondent 's employees work at Twin Falls, At Buhl, and at a gravel pit 14 miles
from Buhl.
No objections to the conduct of the election were filed by either party to the proceeding.
6 N.L.R.B. v. Carlton Wood Products, 201 F. 2d 863, 866 (C.A. 9). See also N.L R.B.
v. Standard Transformer Company, 202 F. 2d 846 (C.A. 6) ; N.L.R.B. v. General Armature
and Manufacturing Co., 192 F. 2d 316 (C.A. 3) ; Semi-Steel Casting Co. of St Louis v.
N.L.R.B., 106 F. 2d,388 ( C.A. 8) ; California Date Growers Association, 118 NLRB 246.
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain col-
lectively with the certified representatives of its employees.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection
with the operations of Respondent described in section I, above, have a close, intimate,
and substantial relation to trade, traffic , and commerce among the several States and
such of them as have been found to constitute unfair labor practices, 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 unfair labor practices violative of
Section 8(a)(1) and (5) of the Act, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent, on or about July 17, 1959, and at all times there-
after, has refused to bargain collectively with the Teamsters as the representative
of the employees in an appropriate unit, the Trial Examiner will recommend that
Respondent, upon request, bargain collectively with said union as the exclusive
representative of all employees in the unit heretofore found appropriate, and if an
agreement is reached , embody such understanding in a signed agreement.
Having found that Respondent on or about October 1, 1959, and at all times
thereafter, has refused to bargain collectively with the Engineers as the repre-
sentative of the employees in an appropriate unit, the Trial Examiner will recom-
mend that Respondent, upon request, bargain collectively with the Engineers as
the exclusive representative of all employees in the unit heretofore found appro-
priate, and if an agreement is reached , embody such understanding in a signed
agreement.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Teamsters and the Engineers each is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
3. Since May 28, 1959, the Engineers has been, and now is, the exclusive repre-
sentative of all Respondent's employees in the following unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act:
All operators of crusher plants, batch plants, shovel, dragline, and tractor and
loader operators, oilers, mechanics, and welders, excluding office and clerical em-
ployees, truckdrivers, supervisors, guards, and professional employees as defined
by the Act.
4. Since June 5, 1959, the Teamsters has been, and now is, the exclusive repre-
sentative of all Respondent's employees in the following unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act:
All truckdrivers, shop mechanics and helpers, and general labor, excluding
managers, superintendents, foremen, clerical employees, supervisors, dragline oper-
ators, catskinners, batch plant operators, tractor-dozer operators, guards, and pro-
fessional employees as defined by the Act.
5. By refusing since on and about July 17, 1959, to bargain collectively with the
Teamsters and since on or about October 1, 1959, to bargain collectively with the
Engineers as the exclusive representatives of the employees in the appropriate units,
each having been selected and designated as the such representative for the purposes
of collective bargaining, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (5) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent 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 com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]