Brown Lumber Co.

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown Lumber Co. and United Brotherhood of Carpenters and Joiners of America, Local 2092, AFL-CIO. Case No. 8-CA- 2910. June 27, 1963 DECISION AND ORDER On February 12, 1963, Trial Examiner Alba B. Martin issued his Intermediate Report, finding that the Respondent had engaged in and was engaging in unfair labor practices and recommending that it cease and desist therefrom and take affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner with the following amplification. On October 9, 1961, an election was held among Respondent's em- ployees. At the time the ballots were counted, a Board agent voided one ballot. The tally of ballots showed 11 votes for the Union, 10 against, and the 1 voided ballot. At that time Respondent told the Union orally that it would not bargain with the Union because of the failure of the Board agent to count the voided ballot. Thereafter, the Respondent timely filed a letter with the Regional Director ob- jecting to the election and requesting a hearing on the validity of the voided ballot. However, no copy of this objection was filed with the Union and no proof of service of such filing upon the Union was ever made to the Regional Director. Thereafter, the Regional Director issued his report on objections in which he concluded that since service of a copy of the objections on the Union was not made as required by Section 102.69 of the Board's Rules and Regulations, the objection could not be considered on its merits and, therefore, was overruled.' The Union was, therefore, certified as the collective- bargaining representative of the employees. 'In pertinent part, Section 102 .69 states: upon the conclusion of the election the regional director shall cause to be furnished to the parties a tally of ballots. Within 5 days after the tally of ballots has been furnished any party may file with the regional director four copies of objections to the conduct of the election or conduct affecting the results of the election . . . copies of such objections shall immediately be served upon each of the other parties by the party filing them , and a statement of service shall be made. 143 NLRB No. 36. BROWN LUMBER CO. 175 The Respondent refused to bargain with the Union because it had not been granted a hearing on its objection to the election. The Trial Examiner found, in accord with the Regional Director, that no objec- tions were properly raised, and that the certification of the Union was a ministerial act performed in accordance with the Board's Rules. The Trial Examiner refused to allow the matter to be relitigated at the complaint proceedings, citing well-established precedent. We agree with the Trial Examiner. We are not unmindful that a literal interpretation of the Board's Rules and Regulations may lead to a seemingly harsh result in the facts of a particular case. But we feel that to abrogate the Rules and Regulations would create far more serious inequities. Considerations of procedural fairness re- quire that the opposing party receive timely and complete information regarding the nature of Respondent's objections, and this requirement is not satisfied by the oral objection voiced informally at the time of the counting of the ballots. Also the need for expedition of the processing of these cases requires that the Board be promptly notified that service on the opposing party has been accomplished. The Board has, therefore, always required that its Rules and Regulations be strictly observed? We therefore find that the Respondent has re- fused to bargain with the properly certified Union in violation of Section 8(a) (1) and (5) of the Act. ORDER The Board adopts the Recommended Order of the Trial Examiner as its Order. 2 R and R News Company, 92 NLRB 1134, 1135 ; Freeport Gas Coal Company, 99 NLRB 949, 951. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed September 11, 1962, an amended charge filed October 9, 1962, a complaint issued October 17, 1962, and a timely answer filed on or about October 22, 1962, this case was heard before Trial Examiner Alba B. Martin at Canton, Ohio, on December 5, 1962. It arises out of Respondent's admitted refusal to recognize and bargain with the Union certified by the Board in Case No. 8-RC-4452, hereinafter termed "the representation case." At the conclusion of the hearing the General Counsel and Respondent presented oral argument, and thereafter Respondent filed a brief which has been duly considered Respondent's motion to dismiss made at the end of all evidence, and upon which decision was reserved, is hereby decided in accordance with the findings and conclusions herein. Upon such consideration, and upon the entire record in this proceeding and in the related representation proceeding, Case No. 8-RC-4452, of which I take official notice, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an Ohio corporation with its principal office and place of business in Massillon, Ohio, is engaged in the business of selling lumber, goods, and other materials to both individual and commercial accounts. Annually Respondent trans- fers and delivers to its place of business at Massillon, Ohio, lumber, goods, and 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other materials valued in excess of $50,000, which lumber, goods, and other mate- rials are transported to said place of business directly from States of the United States other than the State of Ohio. Annually Respondent sells and distributes lumber, goods, and other materials, the gross value of which exceeds $500,000. Respondent admitted , and I find, that it is engaged in commerce within the mean- ing of the Act. H. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, Local 2092, AFL-CIO, the Charging Party, herein called the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES Pursuant to an agreement for consent election on October 9, 1961 , the Regional Director conducted an election in the following described unit , which the com- plaint herein alleged , and the answer admitted, was an appropriate unit: All produc- tion and maintenance employees , including truckdrivers and firemen , but exclud- ing office clerical employees, professional employees, guards, and supervisors as defined in the Act. The tally of ballots issued immediately following the election stated that 1 void ballot was cast, 11 votes were cast for the Union , and 10 votes were cast against the Union. At the hearing before me the parties stipulated that immediately following the elec- tion Respondent notified the Union that it would not bargain with the Union under the circumstances, even if the Union were certified . Respondent's protest was over the Board agent's failure to count the voided ballot. On October 11, 1961 , Respondent wrote the Regional Director that he protested the election and requested a hearing "to determine the validity of a ballot questioned and sealed by" the Board agent . This objection to conduct affecting the results of the election was timely filed with the Regional Director , but no copy of this objec- tion was ever filed with the Union and no proof of service of such filing upon the Union was ever made to the Regional Director. The Board's Rules and Regulations , Section 102 .69, provide in part: Upon the conclusion of the election , the regional director shall cause to be furnished to the parties a tally of ballots . Within 5 days after the tally of ballots has been furnished , any party may file with the regional director four copies of objections to the conduct of the election or conduct affecting the results of the election ... copies of such objections shall immediately be served upon each of the other parties by the party filing them, and a statement of service shall be made. On October 18, 1961, the Regional Director issued his report on objections, quoting the above provision from the Rules and Regulations , stating that investiga- tion disclosed that the Employer failed to serve a copy of his objections upon the Petitioner and adding: Timely service of objections is a fundamental and controlling consideration in determining the validity of objections . General Tire Corporation , 112 NLRB 86, 88; Phillips Petroleum Company, 122 NLRB 1351 , 1352. Since service on the Petitioner was not made , the objections must be overruled on that ground. The Regional Director concluded his report on objections as follows: The undersigned concludes that since service of a copy of the objections on the Petitioner was not made as required by Section 102.69 of the Board's Rules and Regulations , the undersigned may not consider said objections on their merits and they are, therefore , hereby overruled . A Certification of Repre- sentative in favor of the Petitioner will be issued concurrently with the issuance of this report. On October 18, 1961 , the Regional Director , on behalf of the Board , issued a certification of representative, certifying that the Union "has been designated and selected by a majority of the employees of the above -named Employer in the unit herein involved as their representative for the purposes of collective-bargaining, and that, pursuant to Section 9(a) of the Act as amended, the said organization is the exclusive representative of all the employees in such unit for the purposes of BROWN LUMBER CO. 177 collective-bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment." After being told by Respondent on the day of the election, October 9, 1961, that Respondent would not bargain with it even if it were certified, and even though it was certified on October 18, 1961, the Union did not specifically request to bar- gain with Respondent until on or about August 17, 1962. At the hearing before me the parties stipulated that on or about September 5 "Respondent again refused to bargain with the Union." The facts set forth above would ordinarily lead to a pro forma finding that Re- spondent had refused to bargain. Respondent defended its admitted refusal to bargain with the certified union on the ground that the complaint was barred by the proviso to Section 10(b) of the Act, the charge not having been filed and served until September 11, 1962. In the absence, as here, of unusual circumstances a Board certification must be honored for a reasonable period, usually 1 year. Ray Brooks v. N.L.R.B., 348 U.S. 96. Here the certification year was from October 18, 1961, to October 18, 1962. Within this year the Union requested to bargain on August 17, 1962, was refused on September 5, 1962, and filed the original charge herein on September 11, 1962. Thus, the complaint was based upon a charge filed within 6 months after the occurrence of the unfair labor practice alleged in it; and the complaint was not barred by the statute of limitations. Having failed in the representation case to qualify for a hearing on the subject of the voided ballot, by failing to comply with the Board's rules, Respondent sought, unsuccessfully, to litigate the matter before me. The law is settled that, absent newly discovered evidence, the issues raised and determined in the prior representa- tion proceeding may not be relitigated in the complaint proceeding. Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146, 157-158; N.L.R.B. v. American Steel Buck Corp., 227 F. 2d 927, 929 (C.A. 2); N.L.R.B. v. Botany Worsted Mills, 133 F. 2d 876, 882 (C.A. 3); N.L.R.B. v. West Kentucky Coal Company, 152 F. 2d 198, 200-201 (C.A. 6), cert. denied 328 U.S. 866; Quaker City Life Insurance Com- pany, 138 NLRB 61. Here the issue of the voided ballot was raised by Respondent in the representation case and was determined by the Regional Director. That determination was that Respondent had failed to qualify for a hearing on the merits by failing to comply with the Board's Rules and Regulations in that it failed to serve a copy of its objections to the election upon the Union. The Board's rule obviously contemplated the filing of written objections and the service of a copy of the written objections upon the other parties to the representation proceeding. This is a salutary rule, obviously designed to apprise all parties of the precise nature of any objections to the election in order to give all parties an opportunity to meet and answer the objections. This rule was not complied with by Respondent's oral re- marks at the counting of the ballots, which did not in writing apprise the Union and the Board's Regional Office of the precise nature of Respondent's protest of the elec- tion. Cf. N.L.R.B. v. Conlon Bros. Mfg. Co., 187 F. 2d 329, 332 (C.A. 7); N.L.R.B. v. A. J. Tower Company, 329 U.S. 324, 333. In substance Respondent claimed that in certifying the Union without granting Respondent a hearing on the voided ballot the Regional Office showed bias and prejudice against Respondent. It appears to me that where, as here, Respondent failed to qualify for a hearing on the voided ballot, the Regional Director had no choice but to certify the Union which had won the election; and that under these circumstances the Regional Director's action in certifying the Union was a minis- terial rather than a judicial act. Where the Regional Director had no choice of action under the Rules,' his performance of his ministerial duty can scarcely be found to have been motivated by bias and prejudice. Respondent's answer herein admitted certain paragraphs of the complaint and made a general denial of those paragraphs alleging the commission of unfair labor practices. The answer did not plead an affirmative defense. But at the hearing Respondent sought to introduce an affirmative defense in the nature of testimony relating to alleged activity of a field examiner and the Regional Director in situa- 1 Section 102.69(b) of the Rules provides in pertinent part that "if no objections are filed within the time set forth above, . the regional director shall forthwith issue to the parties a certification of the results of the election, including certification of representa- tives when appropriate . . . ... 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lions involving two other companies not claimed to be connected with Respondent, and, presumably, other unions. It was not claimed that the field examiner had performed any act or had had anything to do with the case at bar or the representa- tion case. It was claimed that this testimony was offered to prove that this Re- gional Office was biased and prejudiced against all companies and in favor of all unions. The offered testimony was rejected. In the first place this was clearly not the forum for the prosecution of the Regional Office. In the second place the Regional Office had not been apprised in advance by a pleading of affirmative defense that any such issue would be raised. In the third place such evidence was not properly admissible before me upon the issues drawn by the pleadings, which related to whether Respondent had refused to bargain with the certified union. In the fourth place where, as here, the Regional Director had performed the mere ministerial function of certifying a victorious union when no objections to the election had been properly filed, to permit an attack upon his motives would be precluded by the line of decisions prohibiting inquiry into the mental processes of administrative officials in discharging their official functions. See e.g., Morgan v. United States, 304 U.S. 1, 18; N.L.R.B. v. Donnelly Garment Company, 330 U.S. 219, 229-230; Chicago B & Q Ry. v. Babcock, 204 U.S. 585, 593; Willapoint Oysters v. Ewing, 174 F. 2d 676, 696 (C.A. 9), cert. denied 338 U.S. 860; N.L.R.B. v. Air Associates, Inc., 121 F. 2d 586, 590-591 (C.A. 2); Bethlehem Steel Company v. N.L.R.B., 210 F. 2d 641, 653 (C.A.D.C.), and the cases there cited in footnotes 27 and 28. I therefore find that the certification is binding upon me and is dispositive of the proceeding at this stage . Accordingly, I conclude that Respondent's admitted refusal to recognize and bargain with the Union on and after September 5, 1962, constituted an unfair labor practice violative of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE ON COMMERCE The Respondent's refusal to bargain as set forth in section III, above, occurring in connection with the operations of the Respondent set forth in section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a) (5) and (1) of the Act, I will recommend that it cease and desist therefrom and (adopting the language prescribed by the Supreme Court in N.L.R.B. v. Express Publishing Co., 312 U.S. 426, 439) from "in any manner interfering with the efforts of the [Union] to bargain collectively with [Respondent]." I will further recommend that Respondent take certain affirmative action in order to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, including the record in the representation case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees at Respondent's Massillon, Ohio, plant, including truckdrivers and firemen, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining. 3. The Union, since the date of its certification, October 18, 1961, has been and now is the exclusive representative of all employees in the aforesaid appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing, on and since September 5, 1962, to bargain collectively with the Union as the representative of the above employees, Respondent has engaged in and is engaging in an unfair labor practice affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. BROWN LUMBER CO. 179 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Brown Lumber Co , its officers, agents, successors, and assigns, shall: 1 Cease and desist from: (a) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment with the United Brotherhood of Car- penters and Joiners of America, Local 2092, AFL-CIO, as the exclusive representa- tive of the employees in the following appropriate unit: All production and main- tenance employees at Respondent's Massillon, Ohio, plant, including truckdrivers and firemen, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. (b) In any manner interfering with the efforts of the above-named Union to bargain collectively with the above-named Company on behalf of the employees in the above-described unit .2 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the ex- clusive representative of all employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its plant in Massillon, Ohio, copies of the attached notice marked "Appendix." 3 Copies of such notice, to be furnished by the Regional Director for the Eighth Region, shall, after being signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the date of receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith? 2 As noted in the section of this report captioned "The Remedy," the language of para- graph 1(b) of the Recommended Order follows that prescribed by the Supreme Court in the Empress case, supra, 312 U.S. at 439 1In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "A Decree of the United States Court of Appeals, Enforcing an Order" for the words "A Decision and Order." A If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Eighth Region, In writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with United Brotherhood of Carpenters and Joiners of America, Local 2092, AFL-CIO. as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any manner interfere with the efforts of United Brother- hood of Carpenters and Joiners of America, Local 2092, AFL-CIO, to bargain collectively as the exclusive representative of the employees in the bargaining unit described below. WE WILL, upon request, bargain with United Brotherhood of Carpenters and Joiners of America, Local 2092, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates 717-672-64-vol. 143-13 ISO DECISIONS OF NATIONAL LABOR RELATIONS BOARD of pay, wages, hours of employment, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such an understanding in a signed agreement. The bargaining unit is: All production and maintenance employees employed by us at our Massillon, Ohio, plant, including truckdrivers and firemen, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. BROWN LUMBER CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, 44115, Telephone No. Main 1-4465, if they have any questions concerning this notice or compliance with its provisions. Majestic Lamp Mfg. Corp. and Textile Workers Union of Amer- ica, AFL-CIO and Local Union 686, International Brother- hood of Electrical Workers, AFL-CIO, Party to the Contract. Case No. 4-CA-,0668. June, 27, 1963 DECISION AND ORDER On April 22, 1963, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. The Respondent and the General Counsel did not file exceptions to the Intermediate Report, and the Charging Party filed exceptions only to a portion of the remedy recommended by the Trial Examiner. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations z of the Trial Examiner. i In the absence of exceptions thereto, we adopt the Trial Examiner's unfair labor prac- tice findings and conclusions pro forma. 2 Although we do not adopt the Trial Examiner's reasons for denying dues reimburse- ment, particularly that given in the last two sentences of the section entitled "The Remedy" in the Intermediate Report, we find that In the circumstances of this case re- imbursement is not appropriate. Cf. Air Master Corporation, et al., 142 NLRB 181 Duralite Co., Inc., 132 NLRB 425. 143 NLRB No. 31.