Dickerson-Chapman, Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1991

301 N.L.R.B. 267 (N.L.R.B. 1991)

267
301 NLRB No. 34
DICKERSON-CHAPMAN, INC.
1 Following the election in which the challenged ballots proved nondeter-
minative, the Regional Director issued a Decision and Certification of Rep-
resentative, overruling in the process the Employer’s objections to the election,
which alleged, inter alia, that the bargaining unit was inappropriate because
it allegedly included supervisory employees, including the seven individuals.
By order dated July 17, 1990, the Board denied the Employer’s request for
review of the Regional Director’s determination as it raised no substantial
issues warranting review.
2 The Respondent has submitted with its brief to the Board certain docu-
ments that it contends were not available during the representation hearing,
and which purport to show that certain individuals who the Regional Director
included in the bargaining unit in the underlying representation proceeding are
in fact statutory supervisors and should have been excluded. It argues that the
Board should deny the General Counsel’s motion on the basis of this pre-
viously unavailable evidence. We find no merit in the Respondent’s conten-
tion. Many of the documents that the Respondent relies on are undated and,
except for the Respondent’s unsupported assertion to the contrary, were not
shown to have been previously unavailable. As to other documents, the dates
contained thereon clearly establish that they were available for production by
the Respondent either during the representation hearing or during the Regional
Director’s investigation of the Respondent’s objections to the representation
election. The remaining documents, consisting of amended job descriptions ap-
parently prepared after the Union’s certification and submitted for the purpose
of showing that certain unit employees possess supervisory authority, reveal
only that the Respondent vested certain employees with such authority after
the Union was certified and clearly have no bearing on the validity of the cer-
tification. Finally, as noted in our Order of December 26, 1990, denying the
Respondent’s request for review in Case 15–UC–123, in the event that the sta-
tus of these individuals is not resolved in a pending unfair labor practice case,
any party may file a new unit clarification petition.
Dickerson-Chapman, Inc. and International Union
of Operating Engineers, Local No. 624, AFL–
CIO. Case 15–CA–11294–2
January 22, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 15, 1990, the General Counsel of the
National Labor Relations Board issued a complaint al-
leging that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus-
ing the Union’s request to bargain following the
Union’s certification in Case 15–RC–7485. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed its an-
swer admitting in part and denying in part the allega-
tions in the complaint.
On November 27, 1990, the General Counsel filed
a Motion for Summary Judgment. On December 4,
1990, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause on
or before December 18, 1990, why the General Coun-
sel’s motion should not be granted. On December 14,
1990, the Respondent filed a response to the Notice to
Show Cause.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain but denies that its conduct was unlawful on the
grounds that the Board’s failure to resolve the status
of seven individuals who were permitted to vote sub-
ject to challenge in the underlying representation pro-
ceeding renders the Board’s certification invalid.1 It
contends, in its brief to the Board, that the General
Counsel’s motion must be denied because the unre-
solved status of the seven individuals raises factual
issues requiring a hearing.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence,2 nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Mississippi corporation with an
office and place of business in Jackson, Mississippi, is
engaged as a utility contractor in the construction in-
dustry and provides communication support services to
various companies, including South Central Bell Tele-
phone Company, a Division of Bell South Corporation,
a Georgia corporation with an office and place of busi-
ness in Jackson, Mississippi, which operates as a pub-
lic utility providing telephone communication services
in various States including Mississippi and Louisiana.
During the 12-month period ending August 31,
1990, the Respondent, in the course and conduct of its
business operations, provided services in excess of
$50,000 for South Central Bell Telephone Company.
During the same period, South Central Bell Telephone
Company, in the course and conduct of its business
operations, derived gross revenues in excess of $1 mil-
lion and purchased and received at its Jackson, Mis-
sissippi facility products, goods, and materials valued
in excess of $50,000 directly from points and places
located outside the State of Mississippi. We find that
the Respondent is an employer 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 Section 2(5) of the Act.
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held on March 14, 1990, the
Union was certified on May 9, 1990, as the collective-
bargaining representative of the employees in the fol-
lowing appropriate unit:
All full-time operational service personnel, includ-
ing operators, laborers, drivers, operator/drivers,
crew leaders, maintenance employees,
driver/foremen, foremen/trainee, service wire fore-
men, pole foremen, conduit foremen, cable fore-
men employed by the Employer and working at
its Jackson, Mississippi facility; excluding office
clerical employees, guards, professional employ-
ees and supervisors as defined in the Act.
The Union continues to be the exclusive representa-
tive under Section 9(a) of the Act.
B. Refusal to Bargain
On or about May 14, 1990, and again on or about
July 24, 1990, the Union has requested the Respondent
to bargain and, since on or about May 14, 1990, the
Respondent has refused. We find that this refusal con-
stitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after May 14, 1990, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting 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 Sec-
tion 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 un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial 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, Dickerson-Chapman, Inc., Jackson, Mis-
sissippi, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with International Union of
Operating Engineers, Local No. 624, AFL–CIO as the
exclusive bargaining representative of the employees in
the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time operational service personnel, includ-
ing operators, laborers, drivers, operator/drivers,
crew leaders, maintenance employees, driver/-
foremen, foremen/trainee, service wire foremen,
pole foremen, conduit foremen, cable foremen
employed by the Employer and working at its
Jackson, Mississippi facility; excluding office
clerical employees, guards, professional employ-
ees and supervisors as defined in the Act.
(b) Post at its facility in Jackson, Mississippi, copies
of the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 15, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, 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 Re-
spondent 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 or-
dered us to post and abide by this notice.
269DICKERSON-CHAPMAN, INC.
WE WILL NOT refuse to bargain with International
Union of Operating Engineers, Local No. 624, 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 exercise 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 full-time operational service personnel, includ-
ing operators, laborers, drivers, operator/drivers,
crew leaders, maintenance employees, driver/-
foremen, foremen/trainee, service wire foremen,
pole foremen, conduit foremen, cable foremen
employed by the Employer and working at its
Jackson, Mississippi facility; excluding office
clerical employees, guards, professional employ-
ees and supervisors as defined in the Act.
DICKERSON-CHAPMAN, INC.