Worley Mills, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 756 (N.L.R.B. 1980)

DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
Worley Mills, Inc. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 492. Case
28-CA-5841
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI.LO
Upon a charge filed on May 1, 1980, by Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 492, herein called the Union, and duly
served on Worley Mills, Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 28, issued a complaint on May 16, 1980,
against Respondent, and an amendment to the com-
plaint on June 2, 1980, 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, amendment to the
complaint, and notice of hearing before an adminis-
trative law judge were duly served on the parties
to this proceeding.
With respect to the unfair labor practices, the
complaint, as amended, alleges in substance that on
April 10, 1980, following a Board election in Case
28-RC-3671, the Union was duly certified as the
exclusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate;' and that, commencing on or about April 28,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On May 29
and August 11, 1980, Respondent filed its answers
to the complaint and to the amendment to the com-
plaint, respectively, admitting in part, and denying
in part, the allegations in the complaint as amend-
ed.
On August 18, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 22,
1980, the Board issued an order transferring the
I Official notice is taken of the record in the representation proceed-
ing, Case 28 RC-3671, as the term "record" is defined in Secs. 102.68
and 102.6
9(g) of the Board's Rules and Regulatiots, Series 8, as amended
See LTV Elecrosystems, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); nterlype Co. v. Penello, 269 FSupp. 573
(D.C.Va 1967); llell Corp., 164 NLRB 378 (1967), enfd. 397 F2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary 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 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 answers to the complaint and the amend-
ment to the complaint, and in its response to the
Notice To Show Cause, Respondent admits that it
has refused to recognize or bargain collectively
with the Union in order to test the Board's certifi-
cation of the Union in Case 28-RC-3671 as the ex-
clusive bargaining representative of certain employ-
ees at its Clovis, New Mexico, facility. Respondent
denies, however, that it thereby violated Section
8(a)(5) and (1) of the Act. Respondent contends in
its response to the Notice To Show Cause that its
refusal to recognize or bargain collectively with
the Union is based on threats and coercion engaged
in by the Union, improper supervisory involvement
in the election, and improper campaigning in the
voting area during the election, all as set forth in
the record in Case 28-RC-3671. Respondent also
contends that in an effort to resolve the present dis-
pute it offered to participate in a second election at
its Clovis, New Mexico, facility if campaigning
were not permitted in the immediate voting area
and proper election conditions were otherwise to
exist.
A review of the record herein, including the
record in Case 28-RC-3671, reveals the following:
On September 7 and 8, 1979, pursuant to a Stipula-
tion for Certification Upon Consent Election, an
election was held in the appropriate unit. The tally
of ballots shows that 28 votes were cast for, and 23
against, the Union, with no challenged ballots. On
September 14, 1979, Respondent filed objections to
conduct affecting the results of the election. Pursu-
ant to an order and notice of hearing issued by the
Regional Director of Region 28, a hearing was
held before Hearing Officer Kathleen McCorkell
on October 30, 1979. The Hearing Officer's Report
on Objections found no merit in Respondent's ob-
jections. The Hearing Officer therefore recom-
mended that the objections be overruled, and the
Union be certified.
On April 10, 1980, the Board issued a Decision
and Certification of Representative in which it
adopted the Hearing Officer's report and certified
252 NLRB No. 109
756
WORLEY MILLS, INC.
the Unircn as the exclusive bargaining representa-
tive of the employees in the appropriate unit.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we 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 RESPONDENT
At all times material herein, Respondent has
been a New Mexico corporation and has main-
tained a place of business at 408 South Prince,
Clovis, New Mexico, where it has been engaged in
the manufacture and sale of livestock feed. During
the 12 months preceding the issuance of the com-
plaint herein, Respondent, in the course and con-
duct of its business operations, has had a gross
volume of retail business which was in excess of
$500,000 and has sold goods and materials valued
in excess of $50,000 which were transported in in-
terstate commerce and delivered directly to cus-
tomers located in the States of the United States
other than the State of New Mexico.
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 jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local Union No. 492, is a labor organization
within the meaning of Section 2(5) of the Act.
2 See Psburgh Plate Gla s C . L R. .B., 313 L S. 146, 162 (194 1)
Rules and Regulations of the Board. Seces 102 67(f) and 102 6
9
(c)
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All mill production and maintenance employ-
ees including all truckdrivers and elevator em-
ployees employed by the Employer at its
Clovis, New Mexico, facility; excluding all
feedlot employees, office clerical employees,
guards, watchmen, and supervisors as defined
by the Act, as amended.
2. The certification
On September 7 and 8, 1979, 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 28, designated
the Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on April 10, 1980, 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 April 14, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 28, 1980, and continu-
ing 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
April 28, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR .ABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Worley Mills, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local Union No. 492, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All mill production and maintenance employ-
ees including all truckdrivers and elevator employ-
ees employed by the Employer at its Clovis, New
Mexico, facility; excluding all feedlot employees,
office clerical employees, guards, watchmen, and
supervisors as defined by the Act, as amended,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since April 10, 1980, 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 April 28, 1980, 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Worley Mills, Inc., Clovis, New Mexico, its offi-
cers, 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
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local Union No.
492, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All mill production and maintenance employ-
ees including all truckdrivers and elevator em-
ployees employed by the Employer at its
Clovis, New Mexico, facility; excluding all
feedlot employees, office clerical employees,
guards, watchmen, and supervisors as defined
by the Act, as amended.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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
758
WORLEY MILLS, INC.
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Clovis, New Mexico, facility
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 28, 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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 28,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
3 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 Pur-
suant 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 International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 492, as the exclu-
sive 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 employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All mill production and maintenance em-
ployees employed by the Employer at its
Clovis, New Mexico, facility; excluding all
feedlot employees, office clerical employees,
guards, watchmen, and supervisors as de-
fined by the Act, as amended.
WORI .Y MIL.LS, INC.
759