Joseph J. Mottes Co.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1212 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph J. Mottes Co. and Teamsters Local Union
559,1 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case 39-CA-707
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on June 23, 1981, by Team-
sters Local Union 559, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, and
duly served on Joseph J. Mottes Co., herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Officer-in-Charge
for Subregion 39, issued a complaint on July 2,
1981, against Respondent, 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 and 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 May 28,
1981, following a Board election in Case 39-RC-
111, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;2 and
that, commencing on or about June 22, 1981, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On July 10, 1981, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On July 29, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on August 6, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
''lie General Counsel in his Motion fr Summary Judgment and the
Board i its Noltice To ShoA Cause inadvserently designated the Charg-
ing Pa;rty as Teamsters I.ocal 599. We herein correct the error
()I'ficial notice is taken of the record in the representation proceeding,
Case NI RCI 11. as the term "record" is defined ill Secs 1(2 68 and
102.h 9(g) of the Board's Rules and Rcgulations, Series , as amended See
L IHI I:'rigvitnm. I., 166 NLRB 938 (1967), elfd 3 F.2d 683 (4th
Cir. 1968): Golden Age Bccrugu (Co., 167 NLRB 151 (1967). enld 415
F 2d 26 5th Cir 1969): hl(rt'rp, (Co. Pllo. 269 F Supp. 573
(D C Vi 1967): i/ollll Corp.. 164 NIRIB 378 (1967), efd 397 F 2d 91
(7tl Cir 1968) Sec 9(d)lof the NLRA, as amenided.
258 NLRB No. 161
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 answer to the complaint, Respondent
admits the factual allegations as to the Union's re-
quest to bargain and its own refusal to do so. In its
response to the Notice To Show Cause, Respond-
ent asserts that the Union's certification was im-
proper on the basis of the Acting Regional Direc-
tor's and the Board's error in sustaining the Union's
challenge to the determinative ballot of employee
Stephan Lackman.
The General Counsel argues that all material
issues have been previously presented to, and de-
cided by, the Board, and that there are no litigable
issues of fact requiring a hearing. We agree with
the General Counsel.
Our review of the record herein, including the
record in Case 39-RC-111, reveals that, pursuant
to a Stipulation for Certification Upon Consent
Election, an election was conducted on November
19, 1980, which resulted in a vote of six for, and
four against, the Union, with two challenged bal-
lots. These ballots were challenged by the Union.
No objections were filed by either party either to
the conduct of the election or to conduct affecting
the results of the election.
After investigation, the Acting Regional Direc-
tor for Region 1 issued a Report on Challenged
Ballots in which he recommended that the Union's
challenge to the ballot of employee Edward Lack-
man be overruled and the challenge to the ballot of
Stephan Lackman be sustained. The Acting Re-
gional Director concluded that Stephan Lackman,
a son of Respondent's vice president and manager,
enjoyed a special status as to terms and conditions
of employment and therefore did not share a com-
munity of interest with the other employees. The
Acting Regional Director recommended, in view
of his disposition of the challenges, that the Union
be certified. Thereafter, Respondent filed a timely
exception to the Acting Regional Director's report.
On May 28, 1981, the Board, having considered the
Acting Regional Director's report, Respondent's
exception, and the entire record, adopted the find-
ings and recommendations of the Acting Regional
Director and certified the Union as the exclusive
1212
JOSEPH J MOTTES CO
bargaining representative of the employees in the
unit stipulated to be appropriate.3
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
I. THE BUSINESS OF RESPONDENT
Respondent is now, and has been at all times ma-
terial herein, a Connecticut corporation engaged in
the operation of a ready mix concrete plant.
During the past calendar year, a representative
period, Respondent purchased and received at its
Stafford Springs, Connecticut, facility goods and
materials valued in excess of $50,000 directly from
points outside the State of Connecticut.
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.
11. THE LABOR ORGANIZATION INVOI.VED
Teamsters Local Union 559, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
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
:' Not puhlished in volumes of IBoard DecisionN
' See Pittsrrurgh Plaw Glass Co. . L.. R. H. 313 I S 146. 162 (14 1):
Rule, and Regulations f the Board. Sec. 102 7(l0 and 10)2 6qh(c
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time truck driv-
ers, mechanics, and yardmen employed by the
Respondent at its Stafford Springs, Connecti-
cut, facility; excluding office clerical employ-
ees and guards, professional employees and su-
pervisors as defined in the Act.
2. The certification
On November 19, 1980, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 1, 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 May 28, 1981, 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 June 11, 1981, 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 June 22, 1981, and continuing
at all times thereafter to date, Respondent has re-
fused, 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
June 22, 1981, 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. THE EFFECT OF THIE UNFAIR LABOR
PRACTICES UPON COMMERCI
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 conm-
merce.
121 3
I)E1CISIONS OF: NA'I'I()NAL IABOR REtI.ATIONS BOARI)
V. I'HI RMI)Y
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 o01 LAW
1. Joseph J. Mottes Co. is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Teamsters Local Union 559, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time truck driv-
ers, mechanics and yardmen employed by the Em-
ployer at its Stafford Springs, Connecticut, facility;
excluding office clerical employees and guards,
professional employees and supervisors as defined
in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since May 28, 1981, 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 June 22, 1981, 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,
Joseph J. Mottes Co., Stafford Springs, Connecti-
cut, 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 Teamsters Local
Union 559, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All full-time and regular part-time truck driv-
ers, mechanics and yardmen employed by the
Employer at its Stafford Springs, Connecticut,
facility; excluding office clerical employees
and guards, professional employees and super-
visors as defined in the Act.
(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
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Stafford Springs, Connecticut, fa-
cility copies of the attached notice marked "Ap-
pendix." 5 Copies of said notice, on forms provided
In the event that this Order i, enforced h! a Judgment of a United
S(a;lc Court of Appea, the t ord, ill t ote ice readilg "'Po,ted by
()rder of Ith National abor Relatiors Board" hall read "Pl'osted Pursu-
ail t o Judgmentt of thel Unlted Staite Court of Appeal, IEnforcing an
()rder of the Natiornal Iabor Relaltions Board
1214
121
by the Officer-in-Charge for Subregion 39, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding 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 Officer-in-Charge for Subregion
39, in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAI. LABOR REI.ATIONS 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 Teamsters Local Union 559, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive representative of the employees in
the bargaining unit described below.
WI Wll 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.
Wi'. % 111 . 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 full-time and regular part-time truck
drivers, mechanics and yardmen employed
by the Employer at its Stafford Springs,
Connecticut, facility; excluding office cleri-
cal employees and guards. professional em-
ployees and supervisors as defined in the
Act.
JOSEPH J. MOTT;ES CO.
JOSEP JN011'