Texas Industries, Inc.

National Labor Relations Board - Board Decisions

May 29, 1975

218 N.L.R.B. 72 (N.L.R.B. 1975)

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texas Industries, Inc. and International Union of
Operating Engineers , Local 819, AFL-CIO. Case
16-CA-5912
May 29, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on January 22, 1975, by
International Union of Operating Engineers, Local
819, AFL-CIO, herein called the Union, and duly
served on Texas Industries, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Acting Regional
Director for Region 16, issued a complaint and
notice of hearing on February 6, 1975, alleging that
Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7), of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and
notice of hearing before an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on October 9,
1974, following a Board election in Case 16-RC-
6597, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about January 14, 1975, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On February 13, 1975, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint. The
Respondent admits all of the factual allegations of
the complaint, except those paragraphs which relate
to the appropriateness of the unit and the resulting
certification in the underlying representation pro-
ceeding, Case 16-RC-6597.
I
Official notice is taken of the record in the representation proceeding,
Case 16-RC-6597, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board 's Rules and Regulations , Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C A. 4,
1968); Golden Age Beverage Co, 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967),
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (CA 7, 1968); Sec.
9(d) of the NLRA
2 By its answer, Respondent admits par . 11 of the complaint which
alleges that, commencing on or about January 14, 1975, Respondent did
orally state, through its agent, Terry Rine, its intention to test the Regional
Director's certification issued in representation Case 16-RC-6597 and did
refuse, and continues to refuse , to bargain collectively with the Union as the
218 NLRB No. 28
On March 6, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, submitting, in effect, that the Respondent,
in its answer raises no issues which were not, or
which could have been, previously considered and
decided in the underlying representation proceeding,
and prays that summary judgment be issued.
Subsequently, on March 25, 1975, the Board issued
an order transferring the proceeding to the Board
and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed a response to
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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
As indicated above, Respondent's answer admits
all of the factual allegations of the complaint,
including its refusal to recognize and bargain with
the Union which had been certified as the collective-
bargaining representative of the employees described
in the complaint.2 In its answer to the complaint, as
well as in its response to the Notice To Show Cause,
Respondent attacks the Regional Director's and the
Board's several rulings at the various stages of the
representation proceeding relating to the appropri-
ateness and scope of the unit3 and asserts that a
hearing is required thereon. By this assertion, more
specifically by its denials, in whole or in part, of the
allegations of the complaint and the arguments
propounded in its response to the Notice To Show
Cause, Respondent is attempting to relitigate the
same issues which it raised in the representation
proceeding, Case 16-RC-6597. Moreover, it is well
established that parties do not have an absolute right
to a hearing. It is only when the moving party
presents a prima facie showing of "substantial and
material issues" which would warrant setting aside
exclusive collective -bargaining representative of all the employees in the
unit described in par. 7 of the complaint.
3 On August 16, 1974, the Board denied the Respondent 's Request for
Review of the Regional Director's Decision and Direction of Election, as it
raised no substantial issues warranting review, except as to the unit
placement of the maintenance mechanic leadman . The Board concluded
that such issues could best be resolved through the challenge procedure, and
it therefore amended the Decision to permit him to vote subject to
challenge. On November 19, 1974, the Board denied the Respondent's
Request for Review of the Regional Director's Supplemental Decision and
Certification of Representative, as it raised no substantial issues warranting
review. The denial was without prejudice to the right of the Respondent to
seek a determination of the leadman's status by filing a petition requesting
clarification of the bargaining unit.
TEXAS INDUSTRIES, INC.
the election that he is entitled to an evidentiary
hearing .4 It is clear that, absent arbitrary action, this
qualified right to a hearing satisfies all statutory and
constitutional requirements.5
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.6
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously 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 the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice, proceeding. We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and
existing by virtue of, the laws of the State of
Delaware, maintaining a place of business and
production facility at Bridgeport, Texas, where it is
engaged in quarrying and producing crushed stone
and related products for -the building industry.
During the past 12 months, which period is repre..
sentative of all times material herein, Respondent, in
the course and, conduct of its business operations,
purchased, transferred, and delivered to its Bridge-
port, Texas, facility goods and materials valued in
excess of $50,000 which were transported to said
facility directly from States of the United States
other than the State of Texas. During the same
period of time, Respondent manufactured, sold, and
shipped directly from its Bridgeport, Texas, facility
crushed stone and related products valued in excess
of $50,000 to points outside the State of Texas.
We find, on the basis of the foregoing, that
Respondent 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
jurisdiction herein.
4 NLRB. v. Modine Manufacturing Co., 500 F.2d 914 (CA. 8, 1974).
5 Amalgamated Clothing Workers of America [Winfield Manufacturing
Company, Inc.] v N LR.B., 424 F.2d 818, 828 (C.A D.C., 1970).
II. THE LABOR ORGANIZATION INVOLVED
73
International Union of Operating Engineers, Local
819, 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
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees of
Respondent at its Bridgeport, Texas, facility,
including plant electrician, custodian, and plant
clerical employees, but excluding office clerical
employees, parts man and courier, quality control
technician (laboratory employees), plant clerk in
administration, maintenance clerk, production
clerk, guards, watchmen, warehouse superinten-
dent, dispatchers, foremen and all supervisors as
defined in the Act.
2. The certification
On August 16, 1974, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 16 designated the Union as- their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on October 9, 1974, 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
Refusal
Commencing on or about December 5, 1974, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about January 14, 1975, and continu-
ing at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
6 See Pittsburgh Plate Glass Co v. N.L.RB., 313 U.S. 146,162 (1941);
Rules and Regulations of the Board , Secs. 102.67(1) and 102.69(c),
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that the Respondent has,
since January 14, 1975, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section 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 Respondent has engaged in and
is engaging in unfair labor practices within the
meaning 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
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date, Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate unit. See Mar Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Texas Industries, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union of Operating Engineers,
Local 819, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
Respondent at its Bridgeport, Texas, facility, includ-
ing plant electrician, custodian, and plant clerical
employees, but excluding office clerical employees,
parts man and courier, quality control technician
(laboratory employees), plant clerk in administra-
tion, maintenance clerk, production clerk, guards,
watchmen, warehouse superintendent, dispatchers,
foremen and all 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. Since October 9, 1974, the above-named labor
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 January 14, 1975, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees 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) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 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
Relations Board hereby orders that Respondent,
Texas Industries, Inc., Bridgeport, Texas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with International Union
of Operating Engineers, Local 819, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees of
Respondent at its Bridgeport, Texas, facility,
including plant electrician, custodian, and plant
clerical employees, but excluding office clerical
employees, parts man and courier, quality control
technician (laboratory employees), plant clerk in
administration, maintenance clerk, production
clerk, guards, watchmen, warehouse superinten-
TEXAS INDUSTRIES, INC.
dent, dispatchers, foremen and all, supervisors as
defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. 'Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Bridgeport, Texas, facility, copies of
the attached notice marked "Appendix." 7 Copies of
said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable 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 16, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
'r In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
75
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Union of Operating Engineers, Local
819, 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 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 representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employ-
ees of Respondent at its Bridgeport, Texas,
facility, including plant electrician, custodi-
an, and plant clerical employees, but exclud-
ing office clerical employees, parts man and
courier, quality control technician (labor-
atory employees), plant clerk in administra-
tion, maintenance clerk, production clerk,
guards, watchmen, warehouse superinten-
dent, dispatchers, foremen and all supervi-
sors as defined in the Act.
TEXAS INDUSTRIES, INC.