Valley Rock Products, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1977

233 N.L.R.B. 962 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Valley Rock Products, Inc. and Operating Engineers
Local Union No. 3, International Union of Operat-
ing Engineers, AFL-CIO. Case 20-CA-12494
December 5, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
Upon a charge filed on February 18, 1977, by
Operating Engineers Local Union No. 3, Interna-
tional Union of Operating Engineers, AFL-CIO,
herein called the Union, and duly served on Valley
Rock Products, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 20,
issued a complaint and notice of hearing on March
28, 1977, against Respondent, alleging that Respon-
dent 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
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 November 19,
1976, following a Board election in Case 20-RC-
13334 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 1 and that,
commencing on or about November 24, 1976, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represen-
tative, although the Union has requested and is
requesting it to do so. On April 5, 1977, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
Respondent denied that it has refused upon request
to bargain with the Union since November 24, 1976,
within the meaning of Section 8(a)(1) and (5) of the
Act. Respondent also denied that a majority of its
employees in the unit found appropriate selected the
Union as their representative for the purposes of
collective bargaining in the secret ballot election held
on July 27, 1976, and contends that the said election
in any event was invalid. Respondent denied that on
or about November 24, 1976, when it refused to
bargain collectively with the Union, and continuous-
ly thereafter, the Union was, and continues to be, the
duly designated exclusive collective-bargaining rep-
' Official notice is taken of the record in the representation proceeding,
Case 20-RC 13334. as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Senes 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4,
233 NLRB No. 142
resentative of the employees in the unit found
appropriate. Respondent further asserts that the
Board improperly certified the Union as the exclu-
sive collective-bargaining representative of the em-
ployees in the unit found appropriate since the Board
failed to uphold Respondent's meritorious objections
to the election and/or failed to hold a hearing on the
objections and challenged ballots determinative of
the results of the election in dispute.
On April 22, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 16, 1977, 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
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent attacks the
Union's certification on the basis of preelection
conduct by the Union, which Respondent alleges
improperly influenced the results of the election, and
also alleges that the challenge to the ballot of a voter
was improperly sustained.
Review of the record herein reveals that, pursuant
to a Stipulation for Certification Upon Consent
Election approved by the Regional Director for
Region 20 in Case 20-RC-13334, an election was
held on February 27, 1976, in which a majority of the
votes cast were against the Union. The Union filed
timely objections to the conduct of the election and
conduct affecting the results of the election. Thereaf-
ter, the Regional Director approved a stipulation
entered into by Respondent and the Union which
provided that the election held on February 27, 1976,
be set aside and a new election be conducted in the
appropriate unit. Pursuant to the stipulation, a rerun
election was conducted on July 27, 1976, in which the
challenged ballots were sufficient in number to affect
the results of the election. On August 2, 1976,
Respondent filed timely objections to conduct
affecting the results of the election. Following an
investigation the Regional Director issued and served
on the parties a report on objections and challenged
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);
Follen Corp., 164 NLRB 378 (196%7), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
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VALLEY ROCK PRODUCTS, INC.
ballots that recommended the objections be over-
ruled in their entirety, that the challenges to the
ballots be sustained, and that the Union be certified
as bargaining representative of Respondent's em-
ployees. Thereafter, Respondent filed exceptions and
supporting brief and the Union filed a brief in
support of the Regional Director's report and
recommendations with the Board. On November 19,
1976, a three-member panel of the Board issued a
Decision and Certification of Representative in the
unit found appropriate.
Following a request by the Union on or about
November 24, 1976, that Respondent bargain collec-
tively in good faith with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, Respondent refused to
recognize and bargain with the Union as the
exclusive collective-bargaining representative of its
employees in the certified bargaining unit.
In response to a Motion for Summary Judgment,
an adverse party may not rest upon denials in its
pleadings, but must present specific facts which
demonstrate that there are material facts in issue
which require a hearing. 2 Respondent in the instant
case presented no material issues or facts not
admitted or previously determined.
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.3
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
2 Western Electric Company, Hawthorne Works, 198 NLRB 623 (1972).
3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c).
4 Member Murphy notes that in its Opposition to Motion for Summary
Judgment, Respondent contends, inter alia, that there is no basis in the
legislative history of the Act for summary judgment and the Board's
summary judgment procedure is contrary to procedural due process; that it
has a statutory right to a hearing in this proceeding; that it has been denied
due process; that a quorum of the Board has never considered Respondent's
"requests for review"; and that the Board has never reviewed all the
evidence submitted by the Respondent to the Regional Director. She finds
no ment to any of these contentions. As to the last of these contentions,
Respondent apparently has reference to certain affidavits submitted to the
Regional Director in support of its objections in the representation case
(and to the Board for the first time as attachments to its opposition to the
General Counsel's Motion for Summary Judgment). It is well established,
with court approval, that affidavits (or other materials) related to the
representation matter which were before the Regional Director in his or her
disposition of election objections are not part of the record in either the
representation case or in the related unfair labor practice proceeding.
Prestolite Wire Division, Eltra Corporation, 226 NLRB 327 (1976). See, e.g.,
Golden Age Beverage Company, 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969), and other court cases cited in fn. I herein. See also Sec.
102.68 and 102.69(g) of the Board's Rules and Regulations, Senes 8, as
amended. As for the remaining contentions of the Respondent, in adopting
the Regional Director's recommendations concerning the objections and
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. 4
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation with
facilities located at Orland and Red Bluff, California,
and is engaged in both the retail and nonretail
business of sand gravel production and sales and
land leveling. During the last fiscal calendar year, the
Respondent had gross revenues in excess of $500,000
and purchased goods or services valued in excess of
$50,000 directly from suppliers located outside the
State of California.
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.
II. THE LABOR ORGANIZATION INVOLVED
Operating Engineers Local Union No. 3, Interna-
tional Union of Operating Engineers, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
challenged ballots, the Board necessarily found that there were no
substantial or material issues warranting a hearing. Pointe Enterprises, Inc.,
223 NLRB 822 (1976). Furthermore, it is well settled that parties do not
have an absolute right to a hearing and the denial of a hearing, where the
objections raise no substantial or material issues, does not constitute a
denial of due process. Allied Meat Company, 220 NLRB 27 (1975); GTE
Lenkurt, Incorporated 218 NLRB 929 (1975). Member Murphy finds that,
similarly, Respondent's request for a hearing in this proceeding is without
merit, as evidentiary hearings are not required in unfair labor practice cases
and summary judgment is appropriate where, as here, there are no properly
litigable issues of fact to be resolved. Prestolite Wire Division, Eltra
Corporation, 225 NLRB 1 (1976). In this connection, the Board's authonty
to utilize summary judgment procedures is well established and no court has
questioned the use of these piocedures even in those cases in wvhich, as here,
the Board has decided issues relating to objections without holding an
evidentiary hearing. Lipman Motors, Inc., 187 NLRB 346, 347 (1970). See
also Lyman Printing and Finishing Company, 183 NLRB 1048 (1970), and
cases cited therein. Finally, with respect to the quorum argument of
Respondent, Member Murphy notes that the Board has statutory authority
to delegate to three or more of its members any or all powers which it may
itself exercise (Sec. 3(b) of the Act), three members constitute a quorum of
the Board (five members), and three members personally participated in the
Decision and Certification of Representative that issued in the underlying
representation matter. Heavenly Valley Ski Area, a California Corporation, et
al., 215 NLRB 734, 735 (1974).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 employees employed by the Respondent at
Red Bluff and Orland, California, excluding
office clerical employees, salesmen, guards, and
supervisors as defined in the Act.
2. The certification
On July 27, 1976, 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 20, 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 November 19, 1976, 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 November 24, 1976, and
at all times thereafter, the Union has requested
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 November 24, 1976, and
continuing at all times thereafter to date, 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.
Accordingly, we find that Respondent has, since
November 24, 1976, 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 Valley Rock Products, Inc., set
forth in section 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
commerce.
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 commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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. Valley Rock Products, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Operating Engineers Local Union No. 3,
International Union of Operating Engineers, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees employed by Respondent at
Red Bluff and Orland, California, excluding office
clerical employees, salesmen, guards 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. Since November 19, 1976, 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 November 24, 1976,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
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VALLEY ROCK PRODUCTS, INC.
ees of Respondent in the appropriate unit, Respon-
dent 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)( ) 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 the Respondent,
Valley Rock Products, Inc., Red Bluff and Orland,
California, its officers, agents, successors, and as-
signs, 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 Operating Engineers
Local Union No. 3, International Union of Operat-
ing Engineers, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All employees employed by Respondent at Red
Bluff and Orland, California, excluding office
clerical employees, salesmen, guards, and supervi-
sors 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 Red Bluff and Orland, California,
locations copies of the attached notice marked
"Appendix." 5 Copies of said notice, on forms
provided by the Regional Director for Region 20,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, 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 20, 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 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
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 Operat-
ing Engineers Local Union No. 3, International
Union of Operating Engineers, 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 employees employed by the Respon-
dent Employer at Red Bluff and Orland,
California, locations, excluding office cleri-
cal employees, salesmen, guards, and super-
visors as defined in the Act.
VALLEY ROCK
PRODUCTS, INC.
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