New England Lumber Division

Paperworkers #80, AFC-CIO. 1980 #80, 1980, 8(a)(5) 2(6) I-RC- appropri- :ollectively gaining quested allega- tlons affirm- -ganization denies ' Oflicial record tng. Cwe term Secs. and 102.69(g) Series .*e LTV Elecrmrys~emr. Inc., 166 (1967). enfd. F.2d (4th Golden Bevemgr I51 (1967), cnid. I, !d Inferlyp Ca Penello, F.Supp. cl3C Va. Follerr Corp., I64 (1%7), F.U ( 7th 13ir. Sec. 9(d) as 8(a)(l) (5), 8(d), 2(6) alia: constitdted nonsupervisory 250 NEW ENGLAND LUMBER DIVISION 95 i f New England Lumber Division of Diamond Interna- tional Corporation and United In- ternational Union and its Local Case 1-CA-17411 September 10, DECISION AND ORDER Upon a charge filed on April 2 1, 1980, by United Paperworkers International Union and its Local AFL-CIO, herein called the Union, and duly served on New England Lumber Division of Dia- mond International Corporation, herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint on May 22, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section and (1) and Section 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 March 20, 1980, following a Board election in Case 16553, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found ate1 and that, commencing on or about April 16, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain with the Union as the exclusive bar- representative, although the Union has re- and is requesting it to do so. On May 30, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the in the complaint, and asserting certain ative defenses. Respondent admits that it meets the Board's ju- risdictional standards and that the Union is a labor o within the meaning of the Act. It that the Union was properly certified on March 20, 1980, as the collective-bargaining repre- sentative of the employees in the unit. It further denies that the Union is the exclusive bargaining representative of Respondent's employees in the described unit, or that it engaged in, or is engaging in, unfair labor practices affecting commerce notice is taken of the in the representation proceed- 1-RC-16553. as the "record" is defined in 102.68 of the Board's Rule. and Regulations, 8, as amended. NLRB 938 388 683 Cir. 1968); Age Co., 167 NLRB 415 26 (5th Cir. 1969); v. 269 573 1967); NLRB 378 cnfd. 397 91 1968); of the NLRA, amended. NLRB No. 21 within the meaning of Section and Sec- tion and Section and (7) of the Act. On June 25, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on June 30, 1980, 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 Judgment should not be granted. Respondent thereafter filed a memorandum in opposition to the General Counsel's Motion for Summary Judgment. 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 and in its memo- randum, Respondent denies that the Union was properly certified as the representative of its em- ployees, and therefore denies that it has any duty to bargain with the Union. Specifically, Respond- ent contends that it has never had an opportunity to litigate the questions raised by its objections to the election. Review of the record herein reveals that in Case 1-RC-16553, following an election held on Octo- ber 25, 1979, pursuant to a Stipulation for Certifica- tion Upon Consent Election, Respondent on Octo- ber 30, 1979, filed objections to the election, alleg- ing, inter (1) that the Union improperly used President Philip Veileux, a nonmember of the bar- gaining unit and a nonemployee of Respondent, as its observer in the election and that the Union Peti- tioner's use of Veileux as its observer interference with the laboratory conditions of the election and created an atmosphere of union domi- nation and surveillance over the entire procedure; and (2) that on the day of the election a rumor was started in Respondent's mill to the effect that a nearby competitor had announced a general layoff of one of its shifts, that the rumor was false, and that the rumor did in fact interfere with the elec- tion. On December 3, 1979, Respondent filed a memo- randum as a supplement to its objections contend- ing, with respect to Objection 1, that the stipula- tion required that the observers be employees; that, although Veileux was an employ- ee of the Penobscot Division of Diamond Interna- tional, the Penobscot Division and Respondent's di- vision are autonomous entities operating within a large multinational corporation; that Respondent's division is the Employer within the terms of the stipulation; that Veileux was not an employee of Respondent; and that, accordingly, the terms of the stipulation have been violated, thus requiring a new election. With respect to Objection 2, Respondent - -- - - - rectly 650,000 herein, an the 2(6) 11. United Paperworkers International Union and its that k a l #go, AFL-CIO, is a labor organization within the meaning of Section ~ ( 5 ) of the ~ ~ t . III. consti- unit.3 Purposes within the meaning of Section 9(b) of the Act: 8(aX5) boilerroom office discov- ered cian, On October 25, 1979, a majority of the prvctice proceeding' Aocordingl~, we gmt the of Respondent in &d unit, in aecret-ballot On the of the raord' the 1, FACT offices 9(a) Not Dsts~ons. a hm t k t be held In o v m l i n g 11, and Clsc Boud naxmrily were Issues all times thereafter, the Union has requested fact law warranting Sw Artsbugh flare G l m Co. N.LR.B., U.S 'pendent to bargain with it as the ex- Reguht~ons SCCS 102.67(0 102.69(~). clusive all DECISIONS OF NATIONAL LABOR RELATIONS BOARD from points outside the State of Maine and misrepresentation of fact at a time when Respond- annually ships materials valued in excess of ent could not effectively respond and that the mis- directly to points outside the State of Maine from representation could reasonably be expected to its Passadumkeag location. have a significant impact on the election. We find, on the basis of the foregoing, that Re- On January 11, 1980, the Regional Director spondent is, and has been at all times material issued his Report on Objections recommending that contended that the rumor constituted a material employer engaged in commerce within Respondent's objections be overruled in their en- meaning of Section and (7) of the Act, and On January 23, 1980, Respondent filed its excep- THE LABOR ORGANIZATION INVOLVED tions to the Report on Objections further alleging that the Regional Director erred in his disposition of Respondent's objections, again asserting either a second election should be held or a hearing directed to determine the factual issues in dispute and their legal effect on the election. THE UNFAIR LABOR PRACTICES On March 20, 1980, the Board issued a Decision and Certification of Representative in which it A. The Representation Proceeding adopted the Regional Director's findings and rec- 1. The unit ommendationsZ and certified the Union as the ex- clusive representative of the employees in the ap- The following employees of Respondent tute a unit appropriate for collective-bargaining propriate 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- All full-time and regular part-time production leging a violation of Section is not entitled and maintenance employees employed by the to relitigate issues which were or could have been Employer at its Passadumkeag, Maine, plant litigated in a prior representation proceeding.' including employees, janitors, and All issues raised by Respondent in this proceed- receiver-partsmen, but excluding all office ing were or could have been litigated in the prior clerical employees, professional employees, representation proceeding, and Respondent does guards, watchmen, shipping clerk, gen- not offer to adduce at a hearing any newly eral clerk, head boiler operator, chief electri- or previously unavailable evidence, nor does assistant to the night supervisor, day it allege that any special circumstances exist herein plainer mill foreman, night plainer mill fore- which would require the Board to reexamine the man and all supervisors as defined in the Act. decision made in the representation proceeding. We therefore find that Respondent has not raised any 2. The certification issue which is properly litigable in this unfair labor - employ ees s Motion for Summary Judgment. election conducted under the supervision of the makes the following: Regional Director for Region designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- FINDINGS OF I. THE BUSINESS OF RESPONDENT gaining representative of the employees in said unit Respondent, a Delaware corporation with on March 20, 1980, and the Union continues to be and facilities in Passadumkeag, Maine, is engaged such exclusive representative within the meaning of in the manufacture of framing materials. It annually Section of the Act. purchases materials valued in excess of $50,000 di- included in bound volumes of Board In its response to the Notice To Show Cause. Respondent re- quested Respondent's objections in Commencing on or about April 1980, at a hearing I-RC-16553, the found that there no Re- of or a hearing. v 313 146, 162 (1941); Rules and of the Board, collective-bargaining representative of and Com- I-efused, bargain !;aid April exclu- r,ive has 8(a)(5) of 111, iiltimate, traf- f!c, t~:nd I I arid 1 meaning 8(a)(5) (1) i sllall i a!; I the i reached, a1 yeement. ap- I propriate b!r fication Inc., d/b/a Ltrmar (1962), F.2d 1964), Bzrrnett (1964), F.2d 2(6) #80, 2(5) offtce 9(b) 9(a) 8(a)(5) 8(a)(l) 2(6) 10(c) Paper- #80, NEW ENGLAND LUMBER DIVISION 97 :he employees in the above-described unit. nencing on or about April 16, 1980, and continu- ing at all times thereafter to date, Respondent has and continues to refuse, to recognize and with the Union as the exclusive representa- live for collective bargaining of all employees in unit. Accordingly, we find that Respondent has, since 16, 1980, and at all times thereafter, refused lo bargain collectively with the Union as the representative of the employees in the appro- priate unit, and that, by such refusal, Respondent engaged in and is engaging in unfair labor prac- tices within the meaning of Section and (1) the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section above, occurring in connection with the oper- ations described in section I, above, have a close, and substantial relationship to trade, and commerce among the several States and 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 is engaging in unfair labor practices within the I of Section and of the Act, we order that it cease and desist therefrom, and, upon request, bargain collectively with the Union I the exclusive representative of all employees in appropriate unit, and, if an understanding is embody such understanding in a signed I I In order to insure that the employees in the unit will be accorded the services of their i selected bargaining agent for the period provided law, we shall construe the initial period of certi- 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, 136 NLRB 785 (1962); Commerce Company Hotel, 140 NLRB 226, 229 enfd. 328 600 (5th Cir. cert. denied 379 U.S. 817; Construction Company, 149 NLRB 14 19, 1421 enfd. 350 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. New England Lumber Division of Diamond International Corporation is an employer engaged in commerce within the meaning of Section and (7) of the Act. 2. United Paperworkers International Union and its Local AFL-CIO, is a labor organization within the meaning of Section of the Act. 3. All full-time and regular part-time production and maintenance employees employed by Respond- ent at its Passadumkeag, Maine, plant, including boilerroom employees, janitors, and receiver-parts- men, but excluding all clerical employees, professional employees, guards, watchmen, ship- ping clerk, office general clerk, head boiler opera- tor, chief electrician, assistant to the night supervi- sor, day plainer mill foreman, night plainer mill foreman, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section of the Act. , , 4. Since March 20, 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 of the Act. 5. By refusing on or about April 16, 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 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 of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section and (7) of the Act. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, New England Lumber Division of Diamond Inter- national Corporation, Passadumkeag, Maine, its of- ficers, 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 United workers International Union and its Local AFL-CIO, as the exclusive bargaining representa- -- TO receiver-partsmen, all WILL era1 #80, repre- produc- tion Passadumkeag, Passadumkeag, "Appendi~."~ 1, ~NTERNATIONAL COR- PORATION event enforced of States Court Appeals, notre Nat~onal Relat~ons Pursu- mt Enforcing DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive of its employees in the following appropriate All full-time and regular part-time production and maintenance employees employed by the Employer at its Passadumkeag, Maine, plant including boilerroom employees, janitors, and but excluding office clerical employees, professional employees, guards, watchmen, shipping clerk, office gen- clerk, head boiler operator, chief electri- cian, assistant to the night supervisor, day plainer mill foreman, night plainer mill fore- man and all supervisors 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 (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 Maine, plant copies of the attached notice marked Copies of said notice, on forms provided by the Regional Director for Region 1, 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 in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. In the that this Order is by a Judgment a United of the words in the reading "Posted by Order of the Labor Board" shall read "Posted to a Judgment of the United States Court of Appeals an Order of the National Labor Relations Board." APPENDIX NOTICE EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with United Paperworkers International Union and its Local AFL-CIO, as the exclusive representative of the employees in the bargain- ing 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 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 and maintenance employees employed by us at our Maine, plant in- cluding boilerroom employees, janitors, and receiver-partsmen, but excluding all office clerical employees, professional employees, guards, watchmen, shipping clerk, office general clerk, head boiler operator, chief electrician, assistant to the night supervisor, day plainer mill foreman, night plainer mill foreman and all supervisors as defined in the Act. NEW ENGLAND LUMBER DIVISION OF DIAMOND