Yuba Natural Resources, Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1986

279 N.L.R.B. 1 (N.L.R.B. 1986)

YUBA NATURAL RESOURCES
Yuba Natural Resources, Inc. and Operating Engi-
neers Local Union No. 3, International Union of
Operating Engineers , AFL-CIO. Case 20-CA-
19975
28 March 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
Upon a charge filed by the Union on 31 October
1985,1 the General Counsel of the National Labor
Relations Board issued a complaint on 25 Novem-
ber against the Company, the Respondent, alleging
that it has violated Section 8(a)(5) and (1) of the
National Labor Relations Act.
The complaint alleges that on 26 September, fol-
lowing a Board election in Case 20-RC-15666, the
Union was certified as the exclusive collective-bar-
gaining representative of the Company's employees
in the unit found appropriate. (Official notice is
taken of the "record" in the representation pro-
ceeding as defined in the Board's Rules and Regu-
lations, Secs. 102.68 and 102.69(g), amended Sept.
9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel,
265 NLRB 343 (1982).) The complaint further al-
leges that since 24 October the Company has re-
fused to bargain with the Union. On 9 December
the Company filed its answer admitting in part and
denying in part the allegations in the complaint.2
On 23 December the General Counsel filed a
Motion for Summary Judgment. On 26 December
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted. The General
Counsel filed an Amendment to the Motion for
Summary Judgment on 3 January 1986. The Com-
pany filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
The Respondent's answer admits its refusal to
bargain with the Union, but avers, as an affirmative
' All dates refer to 1985 unless otherwise indicated
2 The Respondent 's motion for remand , dismissal , or consolidation
with Case 20-CA-18716 is denied . The Respondent states that should a
complaint issue on a pending charge in Case 20-CA-18716, it intends to
litigate the status of an individual found in the underlying representation
case not to be a supervisor On that basis , it seeks to have this proceeding
consolidated with that involving the pending charge . The supervisory
status issue was fully litigated and resolved in the underlying representa-
tion case Merely because evidence will be presented regarding an mdi-
vidual 's supervisory status in another proceeding does not justify further
delay in resolving this case
The Respondent 's motion to supplement the record is also denied, be-
cause the Board takes official notice of the transcripts and documents in
the representation case
1
defense, that the Certification of Representative
issued by the Board in Case 20-RC-15666 (not re-
ported in Board volumes) was improper since the
election held 4 November 1983 should have been
set aside based on the conduct set forth in the Re-
spondent's timely objections to the election. The
Respondent's objections alleged that Supervisor
Loren Gilmore had instigated the Union's organiz-
ing campaign and had, together with Clay Adam-
son, solicited, threatened, and coerced employees
to vote for the Union. The General Counsel argues
that these and all other material issues have previ-
ously been decided by the Board. We agree with
the General Counsel.
The record, including the record in Case 20-
RC-15666, reveals that the parties entered into a
Stipulation for Certification Upon Consent Election
which was approved by the Regional Director on
7 October 1983. On 4 November 1983 a secret-
ballot election was held. The tally of ballots
showed that of approximately ^3 eligible voters, 12
cast ballots for, and 8 cast ballots against, the
Union. There were three challenged ballots, which
were not sufficient in number to affect the outcome
of the election. On 14 November 1983, the Re-
spondent filed timely objections to the election. A
hearing was held on the objections on 11 and 12
January and 8 February 1984. In his report, dated 3
May 1984, the hearing officer recommended that
the Respondent's objections be overruled and the
election results certified. On 24 May 1984 the Re-
spondent filed exceptions to the hearing officer's
recommendations, and on 26 September the Board
issued a Decision and Certification of Representa-
tive.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Company were or could
have been litigated in the prior representation pro-
ceeding. The Company does not offer to adduce at
a hearing any newly discovered and previously un-
available evidence, nor does it allege any special
circumstances that would require the Board to re-
examine the decision made in the representation
proceeding. We therefore find that the Company
has not raised any issue that is properly litigable in
this unfair labor practice proceeding. Accordingly
we grant the Motion for Summary Judgment.
279 NLRB No. 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Company, a Delaware corporation, is en-
gaged in the production and sale of rock and ag-
gregate products at its facility in Marysville, Cali-
fornia . During the calendar year 1985 , a representa-
tive period, the Respondent sold and shipped prod-
ucts, goods , and materials valued in excess of
$50,000 to customers located outside the State of
California. We find that the Company is an em-
ployer engaged in commerce within the meaning'of
Section 2(6) and (7) of the Act and that the Union
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 4 November 1983,
the Union was certified as the collective-bargaining
representative of the employees in the following
appropriate unit:
All production and maintenance employees
employed by the Respondent at its Marysville,
California, facilities , excluding employees em-
ployed by the Hammonton Company, office
clerical employees , managerial employees,
guards, and supervisors within the meaning of
the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 23 October the Union has requested the
Company to bargain, and since 24 October the
Company has refused. We find that this refusal
constitutes an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 24 October to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit, the Company has engaged in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has violated
Section 8 (a)(5) and (1 ) of the Act, we shall order it
to cease and desist , to bargain on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that
the Respondent , Yuba Natural Resources Inc.,
Marysville , California, its officers , agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Operating Engineers
Local Union No. 3, International Union of Operat-
ing Engineers , AFL-CIO as the exclusive bargain-
ing representative of the employees in the bargain-
ing unit.
(b) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All production and maintenance employees
employed by the Respondent at its Marysville,
California facilities, excluding employees em-
ployed by the Hammonton Company, office
clerical employees, managerial employees,
guards, and supervisors within the meaning of
the Act.
(b) Post at its facility in Marysville, California,
copies of the attached notice marked "Appendix."s
Copies of the notice, on forms provided by the Re-
gional Director for Region 20, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately on
receipt and maintained for 60 consecutive days in
3 If 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 Nation-
al 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 "
YUBA NATURAL RESOURCES 3
conspicuous places including all places where no-
tices to employees are customarily posted . Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered , defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Operating
Engineers Local Union No. 3, International Union
of Operating Engineers , AFL-CIO as the exclusive
representative of the employees in the bargaining
unit.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request , bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All production and maintenance employees
employed by us at our Marysville , California
facilities, excluding employees employed by
the Hammonton Company, office clerical em-
ployees, managerial employees , guards, and su-
pervisors within the meaning of the Act.
YUBA NATURAL RESOURCES, INC.