Arrowhead Building Materials

National Labor Relations Board - Board Decisions

Nov 12, 1980

253 N.L.R.B. 272 (N.L.R.B. 1980)

I)E.CISIONS OF NATIONAL. LABOR RELATIONS BOARi)
Arrowhead Building Materials and Building Materi-
als, Excavating, Heavy Haulers, Drivers, Ware-
housemen and Helpers Ilocal No. 541, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, and Helpers of America. Case 17-
CA-9707
November 12, 1980
DECISION AND ORDER
BY CIIAIRM1AN FANNIN ANI) M EMliRS
JIENKINS ANI) '1 NT1.1 O
Upon a charge filed on May 30, 1980, by Build-
ing Materials, Excavating, Heavy Haulers, Drivers,
Warehousemen and Helpers Local No. 541, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, and Helpers of America, herein called
the Union, and duly served on Arrowhead Build-
ing Materials, herein called Respondent, the Gener-
al Counsel of the National Labor Relations Board,
by the Regional Director for Region 17, issued a
complaint on June 10, 1980, against Respondent,
and an amendment to the complaint on June 12,
1980, alleging that Respondent had engaged in and
was engaging in unfair labor practices aflfecting
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 and the 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 as amended alleges in substance that on
April 14, 1980, following a Board election in Case
17-RC-8892, 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 May 13,
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 repesentative, although the Union has re-
quested and is requesting it to do so. On June 20,
1980, Respondent filed its answer to the complaint
as amended admitting in part, and denying in part,
the allegations in the complaint.
On July 8, 1980, counsel for the General Counsel
filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on July 10, 1980,
the Board issued an order transferring the proceed-
' ()ficial nlitie is lalken of the recird in the reprcsentatirl proceed-
irig Case 17 RC- X 92. as he term "record" is defile in Sccs 10(2 68
and I02 6
9
(g) of ithe I oardl' Rule, and Regulatliill. Series X. a imendedl
See LT4 E/Ietrmny.lemr. Inc. 166 NIRH '93 (967), enfd 388 12d 68.3
(4th Cir 19hX8) Golden Age lelroage (o. 167 NIRH 151 (h7), enfd 41,
F 2d 26 (5th C'ir 1969): Inrtrp ' (C, Ptlch,. 269 FSupp 573
(t)C.Va 1
9
6
7
); illet (',orp.. 164 NI.Rt 178 (19)67) cnfd 3'7 d 91
(7th Cir 1968): See 9(d) of the NLRAls aarnended
253 NLRB No. 32
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. 2 Respondent
thereafter filed a response to the 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 answer to the amended complaint, Re-
spondent admits that on or about May 8, 1980, the
Union requested by letter that Respondent bargain
collectively with it as the exclusive representative
of the employees in an appropriate unit; however,
Respondent denies that the Union is the exclusive
representative of its employees, or that the Union
has at any time represented an uncoerced majority
of the employees in the unit. Additionally, in its
May 13, 1980, letter to the Union, and in its re-
sponse 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 certification of the Union in Case 17-RC-
8892 as the exclusive representative of certain em-
ployees at its Kansas City, Kansas, facility. Re-
spondent 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 it is in possession of
newly discovered evidence which indicates that the
unit certified by the Board on April 14, 1980, is im-
proper under Board law. Respondent argues that
during the hearing in Case 17-CD-264,3 another
case involving both Respondent and the Union, it
learned that the Union was disclaiming a major
portion of the work traditionally performed by Re-
spondent's employees; namely, the transportation of
drywall materials at cnstruction sites from the
point at which such materials have been removed
from Respondent's trucks (the "first drop") to the
locations designated for delivery by the contractors
or subcontractors purchasing the materials. Re-
spondent argues that the Union's position in Case
17-CD-264 that employees represented by Labor-
ers Local Union No. 264, rather than those of Re-
spondent's employees which it represents, are enti-
tled to do this work under a 1947 jurisdictional
agreement between the Teamsters and Laborers In-
()rn Jul 7 1 1980. the Hiard issued an order correcting aill rror in its
rri gial[ (rder
' Case 17 C1)CD 264 is currceini pending deci.iion before the Board
272
ARROWH()EIAD LUILDING MATERIAL.S
ternational Unions, makes it obvious that the Union
cannot represent a large number of Respondent's
employees who were performing this work at the
time of the Union's certification. Respondent fur-
ther argues that the Union misled the employees in
the unit as to its ability to represent them in the
performance of their regular work. Respondent re-
quests that a hearing be held, and claims that it will
thereby prove that the unit is improper under
Board law, since the 1947 agreement and the
Union's disclaimer would "effectively require that
the Board sanction the carving out of a small splin-
ter group of employees" from an otherwise appro-
priate unit.
A review of the record herein, including the
record in Case 17-RC-8892, reveals the following:
On November 9, 1979, pursuant to a Stipulation for
Certification Upon Consent Election, an election
was held in the appropriate unit. The tally of bal-
lots showed that 10 votes were cast for and 3 votes
against the Union, with no challenged ballots. On
November 14, 1979, Respondent filed objections to
conduct affecting the results of the election. Pursu-
ant to an Order Directing Hearing on Objections
and Notice of Hearing issued by the Regional Di-
rector for Region 17, a hearing was held before
Hearing Officer Roy L. Wimpey on December 5,
1979. The Hearing Officer's Report and Recom-
mendations on Objections found no merit in Re-
spondent's objections. The Hearing Officer there-
fore recommended that the objections be over-
ruled, and that the Union be certified.
On April 14, 1980, the Board issued a Decision
and Certification of Representative in which it
adopted the Hearing Officer's report and certified
the Union as the exclusive bargaining representa-
tive of the employees in the appropriate unit.
On July 14, 1980 (after the issuance of the com-
plaint as amended in this case, and the filing of Re-
spondent's answer thereto), Respondent filed a
Motion To Revoke Certification in Case 17-RC-
8892. Respondent's arguments in support of its
motion were generally those which it now ad-
vances in its response to the Notice To Show
Cause in this case; namely, that the Union's certifi-
cation should be revoked because it has disclaimed
an interest in representing certain of the employees
in the unit. By order dated July 28, 1980, the
Acting Regional Director for Region 17 denied
Respondent's motion. In his order, the Acting Re-
gional Director stated, in relevant part: "After duly
considering the Employer's Motion, I find no fac-
tual or egal basis to support the Employer's posi-
tion. I note that no authority is cited in support of
the Motion. The mere fact that the Union may
have disclaimed a portion of the work does not in-
dicate that the Union has disclaimed an interest in
representing the unit employees." On August 11,
1980, Respondent filed a request for review of the
Acting Regional Director's denial of its motion, in
which it restated its argument that the Union's dis-
claimer of certain work in Case 17-CD-264 re-
quires the revocation of the Union's certification.
By telegraphic order, dated November 4, 1980, we
denied Respondent's request for reviewof the
Acting Regional Director's order as raising no sub-
stantial issues warranting review. Thus, our April
14, 1980, certification of the Union as the exclusive
representative of Respondent's employees in an ap-
propriate unit remains unaltered.
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.4
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
Respondent is a Delaware corporation engaged
in the warehousing and distribution of drywall ma-
terials at a facility located at 2820 Roe Lane,
Kansas City, Kansas, herein called the facility. In
the course and conduct of its business operations
within the State of Kansas, Respondent annually
receives goods and services valued in excess of
$50,000 directly from sources located outside the
State of Kansas.
We find, on the basis of the t'oregoing, 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.
I See Pilbhurgh Plalc Glh. (, x .AL R. B 313 U S 146. h62 (194 1)
Rules and Regui;lion, of he Hoard. Sec, 102 67(f) and 102 6q(c)
I)ECISIONS OF NAIO()NAL ILABOR RELATIONS 3()ARD
II. T1Hl LABOR ORGANIZA IION INVOI.VI.I)
Building Materials, Excavating, Heavy Haulers,
Drivers, Warehousemen and Helpers Local No.
541, affiliated with International Brotherhood of
Teamsters, Chauffeurs, and Helpers of America, is
a labor organization within the meaning of Section
2(5) of the Act.
III. TIFl- UNIFAIR I ABOR PRACTICES
A. he 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 full-time and regular part-time drivers,
helpers and yardmen employed by the Em-
ployer at its facility located at 2820 Roe Lane,
Kansas City, Kansas, but excluding office
clerical employees, watchmen, guards and su-
pervisors as defined in the Act, and all other
employees.
2. The certification
On November 9, 1979, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 17 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 14, 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 May 8, 1980, and at all
times thereafter, the Union has requested Respond-
ent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing
on or about May 13, 1980, 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 representative for
collective bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
May 13, 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.
IV. HE E:FI:FCT OF THE UNFAIR ABOR
PRACTICIS UPON COMMEIRCE
The activities of Respondent, set forth in section
11I, 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 REMIDY
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:
CONCI.USIONS OF LAW
1. Arrowhead Building Materials is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Building Materials, Excavating, Heavy Haul-
ers, Drivers, Warehousemen and Helpers Local
No. 541, affiliated with International Brotherhood
of Teamsters, Chauffeurs, and Helpers of America,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. All full-time and regular part-time drivers,
helpers and yardmen employed by the Employer at
its facility located at 2820 Roe Lane, Kansas City,
Kansas, but excluding office clerical employees,
watchmen, guards and supervisors as defined in the
Act, and all other employees, constitute a unit ap-
274
ARROWHEAD BUILDING MATERIAL.S
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since April 14, 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 May 13, 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,
Arrowhead Building Materials, Kansas City,
Kansas, 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 Building Materials,
Excavating, Heavy Haulers, Drivers, Warehouse-
men, and Helpers Local No. 541, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs,
and Helpers of America, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All full-time and regular part-tie drivers, help-
ers and yardmen employed by the Employer
at its facility located at 2820 Roe Lane, Kansas
City, Kansas, but excluding office clerical em-
ployees, watchmen, guards and supervisors as
defined in the Act, and all other employees.
(b) I 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Kansas City, Kansas, facility
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the
Regional Director for Region 17, 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 17,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
1i Ihe c\ enI thai this ( )rdcr iS cnfrccd h .a Judgncrlln I (T i nllcd
Slatels C(our l iof Appceal, the %kord, ill the lollt - rtadlling "t'rtCd ria
Order f te Nllonal I.ahor RLilllons 1tioard III r tea, oted P'ursu
;ilt t . Jgm nl Of tlh tnitd Sl ats (., url lof Appeal, Enforcln g :In
Ordcl vI1 h NRilon Iabor RcLIoilS oard
APPENDIX
Norici. To EMPI.OYE. EiS
POSIl:D) BY ORDI)R OF1 IH:
NATIONAI LABOR REIATIONS BOARD
An Agency of the United States Government
WE WIll.L NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Building Materials, Excavating, Heavy
Haulers, Drivers, Warehousemen and Helpers
Local No. 541, affiliated with International
Brotherhood of Teamsters, Chauffeurs, and
Helpers of America, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
Wi. wt.i. 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.
WiE wlli., upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
275
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
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 full-time and regular part-time drivers,
helpers and yardmen employed by the Em-
ployer at its facility located at 2820 Roe
Lane, Kansas City, Kansas, but excluding
office clerical employees, watchmen, guards
and supervisors as defined in the Act, and
all other employees.
ARROWHEAD BUIL.DING MATERIALS
276