S. D. Warren Co.

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in the IUE, or in any IUE local, or in any other labor organization of our employees , by refusing to reinstate, upon their unconditional request, any of our employees engaged in concerted activity as unfair labor practice strikers. WE WILL NOT in any like or related manner interfere with,'restrain , or coerce employees in the exercise of their right to self-organization , to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from engaging in any or all such activities, except to the extent that such rights may be 'affected by an agreement requiring membership in a labor organization as authorized in Section 8(a) (3) of the Act. WE WILL, upon 'request, furnish the IUE with information relating to the per employee costs of the improvements in our insurance and pension plans provided for in the 1960-63 agreement relating thereto. WE WILL offer the following empoyees at our Augusta, Georgia, plant- full reinstatement to their former or substantially equivalent positions, ' without prejudice to any seniority or other rights and privileges: Robert Best Gerald E. Moody Thomas Ford Denny G Boltin J. L. Cline Joe Howell Franklin Harper Gene Cline Charles D. Kennedy, Richard Inglett Gamey Browning James Knight James Knight W. R. Cushman G. D. Smith James Kyle Brooks B. Faircloth Jerry Smith ' WE WILL make whole the foregoing employees, and also Lonnie M. Usry and W. A. Chalker for any loss of pay suffered by each as a result of the discrimina- tion against him with interest thereon at the rate of 6 percent per annum. GENERAL ELECTRIC COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.-We will notify any of the above,-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act after discharge from the Armed Forces. 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, Fifth floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. S. D. Warren Company and International Association of Ma- chinists, AFL-CIO; International Brotherhood of Electrical Workers, AFL-CIO ; United Brotherhood of Carpenters & Joiners of America, AFL-CIO; and International Brotherhood i of Firemen and. Oilers, AFL-CIO. Case No. 1-CA-4513. De- cember 16, 1964 DECISION AND ORDER Upon charges duly filed on March 9, 1964, by International Associ- ation of Machinists, AFL-CIO; International Brotherhood of Elec- trical Workers, AFL-CIO; United Brotherhood of, Carpenters & Joiners of America, AFL-CIO; and International, Brotherhood of Firemen and Oilers, AFL-CIO (hereinafter called the Unions or the 150 NLRB No. 32. S. D. WARREN COMPANY 289 joint representative), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint and notice of hearing on April 16, 1964, alleging that S. D. Warren Company (hereinafter called Respondent), had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (5) and Section 2(6) and (7) of the National Labor Relations Act. Copies of the charge, com- plaint, and notice of hearing were duly served upon the Respondent. The complaint alleges in' substance that since on or about' Sep- tember 12, 1963, the Unions -have been the exclusive representative; for collective-bargaining, purposes, of the employees in certain departments of the engineering division of Respondent's Cumberland Mill, Westbrook, Maine, plant; that 'on three occasions the Unions requested Respondent to' bargain collectively and that from Novem- ber 26, 1963, and at all' times` thereafter Respondent has refused to bargain with the Unions as exclusive representative of all employees in the described unit. Respondent's answer, as amended, in sub- stance denies that the Unions are labor organizations within the meaning of Section 2(b) of the Act; admits only that, it received letters on the stationery of the International Brotherhood of Fire- men and Oilers, signed by what purports to be the signature of John J. McNamara, international vice president; and further admits that it communicated with John J. McNamara. 'On May 27, 1964, a hearing opened before Trial' Examiner W. Gerard Ryan and was on the same day adjourned indefinitely. On July 4, 1964, the Trial Examiner closed the hearing. On July 8, 1964, the Trial Examiner denied 'Respondent's motion to dismiss the com- plaint and on the same date rejected Respondent's written offers of proof which had been submitted after adjouriunent of the hearing. On August '5, 1964, the parties (Unions, Respondent, and General Counsel) filed with the Trial Examiner a motion and stipulation, moving said Trial Examiner to transfer the matter to the Board for adjudication. On August 6, 1964, 'the Trial Examiner granted the motion to transfer the case to the Board. The parties stipulated that certain documents should comprise the entire record in the proceeding; waived' their right to file briefs with the Trial Examiner, and the issuance of a Trial Examiner's Decision; and submitted the matter to the Board for findings of fact,' conclu- sions, and Order. The Respondent requested an opportunity for oral argument should the Board deem it necessary. On August 10, 1964, the Board approved the stipulation' and set the date for filing of briefs. Briefs have been filed by the General Counsel and the Respondent. Pursuant to the provisions of Section 3 (b) of the Act', as amended, the Board has delegated its powers in connection with this case to a 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three-member panel (Chairman McCulloch and Members Fanning and Leedom). Upon the basis of the entire record in this case, including the stipulation and the briefs, the Board makes the following : I FINDING OF FACT I. COMMERCE The Respondent is a Massachusetts corporation with a plant and place of business in the town of Westbrook, county of Cumberland, State of Maine, engaged in the manufacture, sale, and distribution of paper and related products .2 In the course and conduct of its business Respondent causes large quantities of pulp and chemicals used by it in the manufacture of paper to be purchased and trans- ported in interstate commerce from and through various States of the United States and in the course and conduct of its business annually ships products to points outside the State of Maine valued in excess of $50,000. Respondent's gross volume of business exceeds $500,000 annually. The Respondent admits, and we find, that it is and has been engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits that each of the Unions is a labor organ- ization within the meaning of the Act. Moreover, in the underlying representation proceeding, we have found that the Unions have been and are the joint representative designated or selected by the majority of employees in the unit as their joint representative for the pur- pose of collective bargaining. By virtue of Section 9(a) of the Act, the joint representative has been and is the exclusive representative of all the employees in the appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours, and other terms and conditions of employment .3 ' The request for oral argument is hereby denied as in our opinion the record and briefs adequately present the issues and positions of the parties 2 The complaint was amended at the hearing, on the motion of Respondent, to show that Respondent's principal office is maintained at 89 Broad Street, Boston , Common- wealth of Massachusetts 3 Respondent moved to dismiss the complaint , in part on the ground that the General Counsel failed to allege or prove the Unions together constitute a labor organization within the meaning of Section 2 ( 5) of the Act we disagree with Respondent's con- tention. The complaint alludes to the Unions collectively as "the representative" and "the exclusive representative ," phrases clearly reflecting the Unions ' status as joint repre- sentative. For this reason and the reasons set forth supra, we find the Respondent's motion to dismiss lacking in merit and affirm the Trial Examiner 's denial of the motion. Further, Respondent's fear that the Unions are intent on bargaining separately and not as a joint representative is unfounded. As the Unions have been certified jointly, the Respondent may insist that they bargain jointly for all employees in the unit, Vanadium Corporation of America, 117 NLRB 1390. S. D. WARREN COMPANY 291 Accordingly, we find that the Unions are the joint representative of the employees in the unit and the joint representative is a labor organization within the meaning of Section 2(5) of the Act.4 III. THE UNFAIR LABOR PRACTICES A. Facts On November 27, 1962, a petition was filed by the Unions as Joint Petitioners for a maintenance unit at Respondent's plant. Thereafter a hearing was held and briefs filed, and on April 4, 1963, the Regional Director for Region 1 issued a Decision and Direction of Election. The Respondent's request for review was granted May 1, 1963. On August 23, 1963, the Board issued its Decision on Review 5 affirming the Regional Director's action. On September 12, 1963, an election was held among employees in the appropriate unit, and thereafter the Respondent filed objec- tions to the conduct of the election and the conduct affecting the results of the election. The objections were duly investigated by the Regional Director who then issued on October 8, 1963, a Sup- plemental Decision, Revised Tally of Ballots, and Certification of Representative. Respondent's request for review by the Board was denied by the Board on December 5, 1963. On December 18, 1963, new counsel for Respondent filed with the Regional Director a motion for reconsideration and memorandum in support of its motion, which was denied January 3, 1964, with further elucidation on January 10, 1964. Respondent filed with the Board on January 14, 1964, a request for review of the Regional Director's denial. This request for review was treated as a motion for reconsideration of the Board's Decision on Review of August 23, 1963, and by direction of the Board was denied on February 3, 1964, as untimely and as raising no material issue of fact or law. Respondent on February 10, 1964, filed with the Board exceptions, motion for reconsideration, and request for clarification. On April 8, 1964, the Board issued a ruling with respect to Respondent's exceptions, motion for reconsideration, and request for clarification in which it found no merit in Respondent's contentions and that no issues were raised warranting relief. On April 15, 1964, Respondent filed exceptions to the- ruling of April 8, 1964, and these were denied on April 20, 1964, at the direc- tion of the Board as lacking in merit. While this comprehensive review and treatment of the representa- tion petition was in process, the Unions requested on at ' least three occasions, after the Regional Director's Supplemental Decision of 4 E.g., Florida Tile Industries, Inc., 130 NLRB 897, and cases cited therein. - 5 144 NLRB 204. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 8, 1963, that the Respondent bargain with them. Thus on November 22, 1963, John J. McNamara, international vice president of the International Brotherhood of Firemen and Oilers, wrote on behalf of the Unions requesting a meeting on December 6, 1963, to discuss a contract. Respondent replied on ' November 26, 1963, that the request was premature because of the appeal then pending before the Board. A similar request from the Unions on Decem- ber 31,'1963, sent after'the Board had on December 5, 1963, denied Respondent's request for review, ' received a similar answer on the ground Respondent was requesting the "Regional Director to recon-' Sider his decision. Finally' on February ' 5, 1964, the Unions once again requested Respondent to meet with them for the purpose of collective bargaining. Respondent through its counsel answered on February 8, 1964, stating that it was 'filing further 'pleadings with the Board, making the Unions' request premature, and going on to state that Respondent considered the certification invalid and rejecting the Unions' requests to bargain "unless and until ordered to do so by a court of competent, jurisdiction...." B. Discussion We find, based on the record, that Respondent has refused to bargain with the representative of its employees. Moreover, by its letter of February 8, 1964, Respondent has indicated that it will not bargain while the present certification is in effect. Thus, any further request to bargain by the Unions would be futile. 'Respondent maintains, however, that it is not obligated to bargain. Its principal arguments center on its contentions that the certification was fatally deficient and that, even if the certification is otherwise valid, the Board's unit determination must be set aside as arrived at in an arbitrary and capricious manner. Related to these arguments is Respondent's assertion that the Trial Examiner erred in rejecting Respondent's offers of proof. We find no merit in Respondent's position, for it is well established that absent newly discovered evidence the issues raised and deter- mined in the prior representation proceeding may not be relitigated in the complaint proceeding,6 and in our view Respondent has pre- sented no new or material facts which would warrant our reopening or setting aside the earlier representation proceeding. 1. Respondent's offers of proof, The Respondent's offers of proof all relate to matters - which Respondent had ample opportunity to present'to, or were considered by, the Board in its decision in the representation proceeding, the' 0 Pittsburgh Plate ala88 Company v. N.L.R.B., 313 U.S. 146. S. D. WARREN COMPANY 293 Regional Director's Decision, and the 'various subsequent motions and requests for review which we have listed above. Respondent's first offer of proof goes to the Board's inclusion of employees of the chemical, smelting, and recovery unit in the appro- priate unit. The offer is intended to correct what it alleges is an omission in the record as reflected in our Decision on Review. How- ever, as indicated by our Decision on Review we did not require addi- tional evidence for our determination. Furthermore, Respondent did not seek until now, despite numerous opportunities provided' in its request for review and its subsequent motions and requests in the representation proceeding, to challenge this aspect of the Board's determination even though the evidence it now offers was at all times available. The Trial Examiner correctly rejected this offer of proof. Respondent's second offer' of proof is intended to show that the parties agreed, to include in the ' unit certain employees, assigned to other divisions of the plant, whom we excluded. , Respondent first made this assertion in its motion for reconsideration of December 18, 1963. Having been subsequently reviewed and rejected by the Regional Director, and by the Board, we 'find the offer of proof to be an effort to relitigate matters fully considered and disposed of in the representation proceeding. Therefore, the offer was properly rejected by the Trial Examiner. ' The last offer of proof is directed to alleged misrepresentation's by the Unions. This claim served as a basis for Respondent's objec- tion, to,conduct of election and was fully considered in the Regional Director's 'Supplemental Decision, Revised Tally of Ballots,' and Certification of Representative. Moreover, Respondent's•-'request for review, denied by the Board on December 5, 1963, was based in part on the same matter. For the reasons previously stated, the Trial Examiner did not err in rejecting this offer of proof. 2. ' Respondent's motion to dismiss' Respondent moves that the complaint be dismissed on'the'grounds' that the certification is defective because of the absence from the record in this proceeding of two exhibits from the representation proceeding.? We cannot accept Respondent's argument as a valid ground for its refusal to bargain with the joint representative. The certification resulting from the Board-conducted election was valid when issued and Respondent's assertion in no way impeaches its cur- rent validity. Moreover, while the two exhibits s' are not material to the issue before us in this unfair 'labor practice proceeding, we 7 See section II, above , for our disposition of the other ground on which' Respondent based its motion to dismiss , namely, the status of the Unions as the joint representative. 8The exhibits are (1 ) a schematic fl ow diagram of Respondent 's process and (2) a layout of the mill buildings. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parenthetically note that the parties, including Respondent, have by stipulation dated June 19, 1964, submitted to the Board replicas of the missing exhibits. Thus, contrary to Respondent's assertion, the record, which we reviewed in its entirety in the representation proceeding, is not and we find never was defective in any material sense. C. The refusal to bargain Upon our review of the entire record in this case we conclude that the Unions were selected on or about September 12, 1963, by .a majority of employees in the appropriate unit in Respondent's Cumberland Mill, Westbrook, Maine, plant,9 as their joint repre- sentative for the purpose of collective bargaining; that at all times since September 12, 1963, the joint representative has been the representative for the purpose of collective bargaining of a majority of the employees in the unit and, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all employees in the unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment; that the joint representative has requested Respondent to bargain collectively with it; and that Respondent did refuse, and continues to refuse, to bargain collectively with the joint representa- tive of the employees in the appropriate unit. We find that by refusing to bargain collectively with the certified representative of its employees, the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of the Respondent described in section III, above, occur- ring in connection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. U The unit is: All employees in the following departments of the engineering division of the Employ- er's [Respondent's] Cumberland Mill, Westbrook, Maine, plant: instrumentation and stem distribution ; power boilers and new boiler house ; bark burner boiler ; chemical, smelting, and recovery unit ; mechanical power maintenance ; steam engineers ; oilers ; electrical stations ; paint shop ; belt shop ; machine shop ; electrical shop ; grinder room ; rigger shop ; carpenter shop ; piping shop ; mason shop ; tin shop ; welding shop ; laborers ; and truck- men ; and employees located at the Dundee, Eel Weir, and Saccarappa hydroelectric sta- tions, janitorial and custodial employees of the engineering division , and leadmen in the respective departments and locations listed above, exclusive of all other employees ; em- ployees of the engineering division permanently assigned to other divisions of the mill, research division employees, dispatcher, assistant dispatchers, telephone operators, office clerical and plant clerical employees , technical employees, professional employees , foremen, guards, and supervisors as defined in the Act. S. D. WARREN COMPANY V. THE REMEDY 295 Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, we shall order it to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, and upon the entire record in this case, the Board makes the following : CONCLUSIONS OF LAW 1. The joint representative, International Association of Machin- ists, AFL-CIO; International Brotherhood of Electrical Workers, AFL-CIO; United Brotherhood of Carpenters & Joiners of America, AFL-CIO ; and International Brotherhood of Firemen and Oilers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. S. D. Warren Company is an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By refusing, and by continuing to refuse, to bargain col- lectively with the Unions as joint representative of its employees in the unit 10 the Respondent did engage in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 4. By refusing, and by continuing to refuse, to bargain collectively with the Unions as joint representative of its employees in the unit described above, Respondent did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing, its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby did engage in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sections 8(a) (1) and (5) and 2(6) and (7) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, S. D. Warren Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively in good faith concerning wages, rates of pay, hours, and other terms and conditions of employ- ment, with International Association of Machinists, AFL-CIO; 10 Footnote 9, supra. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, AFL-CIO; United Brotherhood of Carpenters & Joiners, AFL-CIO; Inter- national Brotherhood of Firemen and Oilers, AFL-CIO, the joint representative, as the exclusive representative of all employees in the following appropriate unit : All employees in the following departments of the engineering division of the Employer's [Respondent's] Cumberland Mill, West- brook, Maine plant: instrumentation and steam distribution; power boilers and new boiler house; bark burner boiler; chemical, smelting, and recovery unit; mechanical power maintenance; steam engineers; oilers ; electrical stations; paint shop ; belt shop ; machine shop ; electrical shop; grinder room; rigger shop; carpenter shop; piping shop; mason shop; tin shop; welding shop; laborers; and truck- men; and employees located at the Dundee, Eel Weir, and Sac- carappa hydroelectric stations, janitorial and custodial employees of the engineering division, and leadmen in the respective departments and locations listed above, exclusive of all other employees; employees of the engineering division permanently assigned to other divisions of the mill, research division employees, dispatcher, assistant dis- patchers, telephone operators, office clerical and plant clerical employees, technical employees, professional employees, foremen, guards, and supervisors as defined in the Act. (b) Interfering with the efforts of the joint representative to negotiate for or represent the employees in the said appropriate unit as the exclusive bargaining agent. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the joint representa- tive of all employees in the foregoing appropriate unit, and embody in a signed agreement any understanding reached with respect to the employees in said unit. (b) Post at its Cumberland Mill, Westbrook, Maine, plant copies of the attached notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for Region 1, shall, after being duly signed by the Respondent, be posted by it immedi- ately 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. u In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals , Enforcing an Order". S. D. WARREN COMPANY 297 (c) Notify the Regional Director for Region 1, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER LEEDOM, dissenting : In my dissent in the representation case, S. D. Warren Company, 144 NLRB 204, which is the predicate for the majority decision in this case, I indicated my disagreement with the Board's unit find- ing. As I adhere to the position set forth in the dissent, I would not find that the Respondent violated the Act by refusing to bargain in what I consider to be an inappropriate unit. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with International Association of Machinists, AFL-CIO; International Brother- hood of Electrical Workers, AFL-CIO; United Brotherhood of Carpenters & Joiners of America, AFL-CIO; and International Brotherhood of Firemen and Oilers, AFL-CIO, the joint rep- resentative, as the exclusive representative of the employees in the bargaining unit described below. WE WILL, upon request, bargain with the joint representative, as the exclusive representative of all the employees in the bar- gaining unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such an understanding in a signed agreement. The bargaining unit is: All employees in the following departments of the engi- neering division'of our Cumberland Mill, Westbrook, Maine, plant: instrumentation and steam distribution; power boilers and new boiler house; bark burner boiler; chemical, smelt- ing, and recovery unit; mechanical power maintenance; steam engineers; oilers; electrical stations; paint shop; belt shop; machine shop; electrical shop; grinder room; rigger .shop; carpenter shop; piping shop, mason shop; tin shop; welding shop; laborers; and truckmen; and employees located at the Dundee, Eel Weir, and Saccarappa hydro- electric stations, janitorial and custodial employees of the 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engineering division, and leadmen in the respective depart- ments and locations listed above, exclusive of all other em- ployees; employees of the engineering division permanently assigned to other divisions of the mill, research division employees, dispatcher, assistant dispatchers, telephone op- erators, office clerical and plant clerical employees, technical employees, professional employees, foremen, guards, and supervisors as defined in the Act. WE WILL NOT interfere with the efforts of the joint represent- ative to negotiate for or represent as exclusive bargaining agent the employees in the bargaining unit described above. S. D. WARREN COMPANY, 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, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Telephone No. 523-8100, if they have any question concerning this notice or compliance with its provisions. Tower Iron Works, Inc. and Shopmen's Local Union No. 523 of the International Association of Bridge , Structural & Orna- mental Iron Workers, AFL-CIO and Independent Metal Fabri- cators Union, Party to the Contract. Case No. 1-CA-4485-2. December 16, 1964 DECISION AND ORDER On July 29, 1964, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. There- after, Respondent and the Party to the Contract each filed exceptions to the Trial Examiner's Decision, and Respondent filed a supporting brief. The General Counsel filed a brief in support of the Trial Examiner's Decision. 150 NLRB No. 24.