Alamo Lumber Co.

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alamo Lumber Company and Teamsters, Chauffeurs, Warehousemen, Helpers and Food Processors Local Union No. 657, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 23-CA-3695 December 21, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon a charge filed on July 13, 1970, by Teamsters, Chauffeurs, Warehousemen, Helpers and Food Proc- essors, Local Union No. 657, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called the Union, and duly served on Alamo Lumber Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, issued a complaint on August 7, 1970, against Respondent, alleging that Respon- dent 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, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on May 13, 1970, following a Board election in Cases 23-RC-3380 and 23-RM-239 the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate;' and that, commencing on or about May 22, 1970, and on July 3, 1970, and at all times thereafter, Respon- dent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On August 28, 1970, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint.2 On September 21, 1970, counsel for the General Counsel filed directly with the Board a Motion for I Official notice is taken of the record in the representation proceeding, Cases 23-RC-3380 and 23-RM-239 as the term "record" is defined in Secs 102 68 and 102 69(f) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, 269 F.Supp 573 (D.C Va, 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA 2 On August 28, 1970, Respondent also filed a Motion to Dismiss Complaint which was referred by the Regional Director to a Trial Examiner for ruling thereon The Respondent alleged therein that the General Counsel issued a complaint on August 7, 1970, despite his agreement not to act upon this charge herein until after the Board had Summary Judgment. Subsequently, on September 25, 1970, the Board issued an Order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a response to Notice to Show Cause and the General Counsel filed a Memorandum in Support of Motion for Summary Judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment The record establishes that, pursuant to a Decision and Direction of Election issued on March 5, 1970, by the Regional Director for the Board's Region 23, an election was conducted on April 2, 1970, in which a majority of the employees of the Respondent in the appropriate unit selected the Union as its representa- tive for the purposes of collective bargaining.3 On April 7, 1970, the Respondent filed timely Objections to Conduct of Election. In his Supplemental Decision and Order and Certification of Representative dated May 13, 1970, the Regional Director overruled the objections as being without merit and certified the Union as the exclusive representative of all employees in the appropriate unit for the purposes of collective bargaining. On June 1, 1970, the Respondent filed a Request for Review of the Regional Director's action entitled Brief and Argument of Exceptions to the Regional Director's Supplemental Decision, and Certification of Representative. This Request for Review was denied by the Board by Order dated June 16, 1970, on the ground that no substantial issue warranting review had been raised. Thereafter the Respondent again sought review, filing with the Board on July 20, 1970, its Employer's petition to reopen record and reconsid- er decision and certification of representative on basis of newly discovered evidence. By Order dated August 10, 1970, the Board denied the Respondent's petition as lacking in merit. ruled upon the Respondent's motion to reopen the record in the representation cases The same date that the General Counsel issued the complaint, the Board denied the Respondent's motion to reopen Thereafter, on September 11, 1970, after considering the submissions by the Respondent and the General Counsel, Trial Examiner Charles W Schneider issued an Order Denying Motion to Dismiss Complaint For the reasons stated in that Order, and particularly in view of the lack of prejudice to the Respondent, the Board affirms the Trial Examiner's ruling and adopts his Order 3 Of the approximately nine eligible voters, nine cast valid ballots of which six were for the Union and three were cast against the Union There were no void or challenged ballots 187 NLRB No. 48 ALAMO LUMBER CO. 385 In its answer to the complaint, the Respondent admitted it received the two requests to bargain made by the Union on or about May 15 and June 22, 1970. In addition, attached to the General Counsel's Motion for Summary Judgment are two subsequent letters dated August 14 and September 9, 1970, requesting the Respondent to bargain with the Union. In its response to Notice to Show Cause, the Respondent does not controvert or dispute the fact that these letters were also sent by the Union and received by the Respondent and therefore, they stand as admitted. Although denying that it refused to bargain, the Respondent in its response did not disavow a letter of September 15, 1970, also attached to the General Counsel's Motion, in which it allegedly refused to accept a settlement offer, and therefore that letter stands as admitted. This refusal to accept the settlement offer establishes a refusal to bargain. Further, absent an affirmative showing that the Respondent had responded or intended to respond to any of the requests to bargain with the Union as alleged in the complaint and attached to the General Counsel's Motion, the Respondent must be deemed to have failed to honor these requests and therefore to have failed and refused to bargain with the Union as alleged in the complaint.4 While both in its answer to the complaint and in its response to the Notice to Show Cause, the Respon- dent has attempted to relitigate the issues raised in the prior representation proceedings, its basic contention, originally raised in its objections, is that the Certifica- tion of Representative is invalid because the Regional Director's failure to follow an alleged policy of Region 23 of using bilingual (Spanish-English) notices of election and ballots when a substantial number of eligible voters have Spanish surnames. In his Supplemental Decision overruling the Respon- dent's objections, the Regional Director noted that even though all the eligible voters in the election herein had Spanish surnames and despite the Respon- dent's knowledge of circumstances giving rise to an alleged need for bilingual ballots, it made no request therefor, and did not raise the issue until after the election had been conducted. In addition, the Region- al Director's investigation revealed that five of the nine employees who voted in the election could read, write, speak, and understand English, and that the remaining employee voters, while not versed in the English language, were able to identify a ballot like 4 May Department Stores Company, 186 NLRB No 17, Carl Simpson Buick, 161 NLRB 1389 5 The decisions in Marriott In-Fbte Services Division of Marriott Corp v N L R B 417 F 2d 563 (C A 5), and Fibre Leather Manufacturing Corporation, 167 NLRB 393, relied on by the Respondent are distinguishable from the instant case where neither party requested Spanish-English ballots prior to the election Where such requests are made , the Regional Director provides bilingual notices and ballots the one used in the election and were able to understand its use and how to mark it in order to express their choice. The Regional Director properly concluded, therefore, that the failure to use bilingual ballots in the election did not provide sufficient grounds for setting aside the election.5 As indicated above, the Board, on June 16 and August 10, 1970, denied the Respondent's Requests for Review of the Regional Director's certification as lacking in merit and not warranting review in this proceeding. We have also made an independent review of the record in the representation Cases 23-RC-3380 and 23-RM-239, and we hold that the Regional Director's findings and conclusions therein, particularly with respect to the issue of bilingual ballots are correct and we reaffirm our denials of the Respondent's petitions for review.6 It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a Respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been raised in a prior representation proceeding.? All issues raised by the Respondent in this proceed- ing were or could have been raised in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Texas Corporation having an office and place of business in Laredo, Texas, where it is engaged in the manufacture and sale of concrete products. In the representation Cases 23-RC-3380 and 23-RM-239, the Respondent stipulated that during the preceding 12 months it purchased goods and services having a value in excess of $50,000 directly from points outside the State of Texas and the 6 In view of our present independent review of the record in the representation proceeding, the Respondent's procedural arguments against granting summary judgment herein based upon the decision in Pepsi-Cola Buffalo Bottling Company v N L R B, 409 F 2d 676 (C A 2) cert denied 396 U S 904 are without merit 7 See Pittsburgh P l a t e Glass Co v NLRB, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs. 102 67(f) and 102 69(c) 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regional Director found that the Respondent is engaged in commerce within the meaning of the Act. We find, on the basis of the foregoing, that Respondent 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. II. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs, Warehousemen , Helpers and Food Processors Local Union No. 657, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about May 15, 1970, and on June 22, 1970, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining repre- sentative of all the employees in the above -described unit. Commencing on or about May 22, 1970, and on July 3, 1970, and continuing at all times thereafter to date, the Respondent has refused , and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since May 22, 1970, and on July 3, 1970, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employ- ees in the appropriate unit, and that , by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees and truckdrivers employed by the Employer at its plant located on Mann Road, Laredo, Texas, excluding guards, professional employees, technical em- ployees, office clerical employees , and supervisors as defined in the Act. 2. The certification On April 2, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 23 designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective bargaining representative of the employees in said unit on May 13, 1970, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above , have a close, intimate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY 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 appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 ALAMO LUMBER CO. 387 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record , makes the following: CONCLUSIONS OF LAW 1. Alamo Lumber Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen, Help- ers and Food Processors Local Union No. 657, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of the Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees and truckdrivers employed by the Employer at its plant located on Mann Road, Laredo, Texas, excluding guards, professional employees, technical employ- ees, office clerical employees, and supervisors as defined in the act. 4. Since May 13, 1970, 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 May 22, 1970, and on July 3, 1970, 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 had engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged 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 mean- ing of Section 2(6) and (7) of the Act. Alamo Lumber Company, its officers, agents, succes- sors, 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, Chauffeurs, Ware- housemen, Helpers and Food Processors Local Union No. 657, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees and truckdrivers employed by the Employer at its plant located on Mann Road, Laredo, Texas, excluding guards, professional employees, technical employ- ees, office clerical employees, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Mann Road, Laredo, Texas, plant copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 23, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 8 In the event that the Board's 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 RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS 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 Team- sters, Chauffeurs, Warehousemen, Helpers and Food Processors Local Union No. 657, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees 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 representative of all employees in the bargaining 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 under- standing in a signed agreement. The bargaining unit is: All production and maintenance employees and truckdrivers employed by the Employer at its plant located on Mann Road, Laredo, Texas, excluding guards, professional em- ployees, technical employees, office clerical employees, and supervisors as defined in the Act. ALAMO LUMBER COMPANY (Employer) Dated By (Representative) Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, 4th Floor, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296.