Suwannee Lumber Manufacturing Co., Inc.

SUWANNEE LUMBER MFG. CO., INC. ' 169 Suwannee LumbeuManufacturing Company , Inc., and Southern Council of Lumber & Plywood Workers, & Local Union - 2532, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 12-CA-5116 July 21, 1971 DECISION,AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN Upon a charge filed on March 8,1971, by Southern Council of Lumber & Plywood Workers, & Local Union 2332, United Brotherhood of Carpenters` and Joiners 'of America, AFL-CIO; herein' called the Unions, and duly served on Suwannee Lumber Manufacturing Company, Inc., ; herein ; called the Respondent,-, the General Counsel of the National Labor Relations Board, by the, Regional Director for Region 12, issued a complaint on March, 19,, 1971, against Respondent, alleging, that Respondent,, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, 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 January 27, 1971, following a Board election in Case 12-RC-3578 the Unions `were -duly certified as the exclusive collective-bargaining representatives of Respondent's employees in the unit found appropriate;" and that, commencing on or about March 3, 1971, and at all times thereafter, Respondent has refused, and contin- ues to ' date to refuse, to bargain collectively with the Unions as the exclusive bargaining representatives, although the Unions have, requested and, are request- ing it to do so. On March 25, 1971, Respondent filed its answer to the, complaint admitting in part, and denying-in part, the allegations in the complaint. On April 16, counsel for the General Counsel filed directly ,with the Board a Motion for Summary Judgment. Subsequently, on April 21, 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 thereafter failed to file a response to Notice-To ShowCause. 1 Official notice •1s taken of the record in the representation proceeding, Case I2-RC-3578, 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 Electrosystem,'Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Pennello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 192 NLRB No. 35 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 proceeding-to a,three- member panel. - Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment The record in 12-RC-3578 shows- that, pur- suant to a Sipulation for Certification Upon Consent Election approved on June 4,:,1970, by the Regional Director for the Board's Region 12, an election was conducted on July 10, 1970, in which a majority of the employees of the Respondent` in the stipulated,unit selected the Unions as their " collective-bargaining representatives.-2, On August 12, 1970, the Regional Director issued his Report on Challenged Ballots in which he recommended -that .four' challenges. `be sustained, that, one be overruled, and since the remaining three challenged ballots, ,including the one overruled, were no longer' sufficient to affect the results, that the petitioning union be jointly certified as collective-bargaining representatives of the em- ployees in the 'stipulated unit.-Respondent, on August 21, 1970, filed exceptions to the Regional Director's report, alleging inadequacy of the Regional ,Director's investigation. Treating the exceptions as a motion for reconsidera- tion, the Regional Director reopened the investigation of the challenged ballots and on November 5, 1970, issued his SupplementalReport on Challenged Ballots in which he recommended that the challenges to four ballots, be sustained, that, the challenges to four ballots be overruled, and that, since the overruled ballots were no longer determinative of, the results of the election, they'-be left unopened and the-Unions jointly certified. On November 16, 1970, the Respondent filed with the Board timely ' exceptions to the Regional Direc- tor's supplemental report, ' contending, that' the Re- gional Director erred in sustaining `thechallenges to the ballots of two employees. On January 27,197 1,'the Board 'issued a Decision and, Certification- of Representative 3 in which it, adopted , the Regional Director's supplemental report and certified the Unions as joint representatives of the employees in the appropriate stipulated unit. 91 (C.A. 7, 1968).; Sec. 9(d) of the NLRA. 2 Of approximately 91 eligible voters, 83 cast ballots , of which 40 were for, and, 35 against, the Union and 8 ballots were challenged. The challenged ballots were sufficient to affect the results of the election. 3 Case 12-RC-3578. Not published in bound volumes of Board decisions. 170 DECISIONS OF ' NATIONAL -LABOR RELATIONS BOARD In, its ` answer to-the complaint herein,4 Respondent admits,tmost,of the -factual allegations,of the com- plaint including the certification, the Unions'bargain- ing request,, and its refusal to bargain, but denies that the investigation of the challenged ballots was conducted in-accordance with the stipulation and the Board's Rules and Regulations. -.The. Respondent further denies that the Unions have been the bargaining" representatives of its employees or that it has violated Section 8 (a)(1) and (5) of the Act. The answer thus places in issue matters raised and determined in , the antecedent representation proceed- ing: It `is well' settled, that in the absence of - newly discovered -or, previously, unavailable evidence or special circumstances a,respondent in a_proceeding alleging aiolation of Section 8(a)(5) is not entitled to relitigate issues , which- were or could have been litigated in apriorrepresentation proceeding.5 All 'issues raised by the Respondent in this proceed- ing 'were-'or could have been `litigated in the prior representation proceeding, and the Respond`e'nt, 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 isf iroperl'Shall litigable in this 'unfair labor practice proceeding` We , accordingly, grant the Motion for Summary Judgment. On the-basis ofthe entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE 'RESPONDENT Respondent is a Florida corporation with its office and principal place,,. of busmegs-located near Cross I I" City, Florida, where- it is engaged in'the manufacture of,lumber an4 related wood products. During the past 12',months,which'is,a,representative period,,Respon- dent has . received directly from points outside the State'of Florida,,. materials valued in excess of $50,000. 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 ORGANIZATIONS INVOLVED Southern Council of Lumber & Plywood Workers, * As indicated ' above, the Respondent failed to -file a response to the Notice To Show Cause. & Local Union 2532,-'United Brotherhood of Carpen- ters ` and Joiners of America, AFL-CIO, are- labor organizations within the meaning, of Section°2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit v The following employees of the 'Respondent constituter a unit-appropriate for collective-bargain- ing purposes 'within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the' Respondent at itsfacility located near Cross City,'Florida; excluding office clerical employees, professional and technical employees; over-the-road^truckdrivers, guards and supervisors as,defined in the Act. -2. The certification On July; .10, 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 12 designated the Unions as their representatives for the purpose of collective bargain- ingwith the Respondent. The Unions were certifiedas the collective-bargaining representatives of the em- ployees in said unit on January, 27,1 1971, ,and, the Unions continue to be.such exclusive-representatives within the meaning of Section 9(a) of the Act., B.' The Request To Bargain and Respondent's Refusal Commencing on or about February 2, 1971, and at all, times thereafter, the Unions have requested the Respondent to bargain collectively with them as 'the exclusive collective-bargaining representatives of all the employees in the 'above-described-unit. Com- mencing on or about March 3, 1971, and, continuing at, all times thereafter; to date, the Respondent has refused, -and continues to refuse, to recognize and- bargain with, the Unions as the exclusive' representa- tives for collective bargaining of all employees in said unit. Accordingly, we find that, the Respondent has, since- March 3, 1971, and at all times thereafter„ refused to bargain, collectively with the Unions as the exclusive- representatives of the employees in the' appropriate 5 See Pittsburgh Plate 'Glass Co. v. NLRB., 313 U.S. 146, 163 (I941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). SUWANNEE LUMBER MFG. CO., INC. 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. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, aboveo occurring .iu connection with its operations described in section I,: 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 ofcommerce. 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 Unions as the exclusive _representatives; 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 periodof certification as beginning on the date Respondent commences to bargain in good faith, with the Unions as the recognized bargaining representatives in the appro- priate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company dib/a, Lamar Hotel, 140 NLRB 226,229 ' enfd:.328 F.2d,600(C.A. 5), cert. denied 379 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. Suwannee Lumber Manufacturing Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Southern Council of Lumber & Plywood Workers, & Local Union 2532, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. The following employees of the Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Respondent at its facility located near 171 Cross City, Florida;, excluding, office clerical qmploy. ees, professional and technical employees, over-the- road truckdrivers, guards and Supervisors as defined in the Act. - 4. Since January 27, 1971, the above-named labor organizations have been and now are the certified, and exclusive representatives 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 March 3, 1971, and at all times thereafter, to bargain-collectively with, the above-named ,,labor organizations 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 practices within the meaning of Section 8(a)(5) of the Act.,,, .t 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 m'and is engaging in unfair ,labor. practices within "the meaning of Section 8(aXl) 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. ORDER' Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the ' National Labor Relations Board hereby orders that Respondent, Suwannee Lumber Manufacturing Company, Inc., its officers, agents, successors, andassigiis, shall: 1.' " Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other termsland`conditions of employment with Southern Council of Lumber & Plywood Workers, & Local Union 2532, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive bargaining representatives of its employees in the following appropriate unit: All production and maintenance employees em- ployed by the Respondent at its facility located near Cross City, Florida; excluding office clerical employ- ees, professional and technical employees, over-the- road truckdrivers, guards- and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organizations as the exclusive representatives of 172 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD all employees in -the-aforesaid -appropriate =unit-with respect'to rates of pay;- wages, hours, and'other terms andconditions,of employment, and, if an understand- ing is reached, embody such understanding - in a signed agreement. (b) '`Post at its' facility near Cross City, -Florida, copies of the attached notice marked "Appendix." 6 Copies I ofd sai:d"notice, on forms provided by the Regional- Director for' Region 12, 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, inconspicuous places," including all places 'where notices to employees are customarily posted. ` Reasonable steps shall -betaken by Respon dent -to insure that -said notices are not altered, defaced, orcovered by-any'othermaterial. °'(c)'Notify the Regional Directorfo'r Region 12,` in writing,- within 20 days from the -date of this' Order, what steps have been taken to comply herewith. sr in, the event ,that this 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." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL, LABOR RELATIONS BOARD An Agency, of the United States Government WE,wrLL-, NOT refuse to,bargain collectively concerning rates sof pay, wages, hours,.-and, other terms and conditions of employment with South- ern Council of, Lumber & Plywood Workers, & Local Union 232, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, as the exclusive representatives-,of the employees in the bargaining unitdescribed 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 Unions, as the exclusive representatives 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 understanding- iii a signed agreement. The bar- ,gain ingunit is: All production and maintenance employ- ees employed by the Respondent at its facility located near Cross City, Florida; excluding office clerical employees, profes- sional a .d,."technical. employees,' over-the- road truckdiivers,^ guards and supervisorsyas defined in the Apt. SUWANNEE LUMBER MANUFACTURING CO. (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, Room 706, Federal Office Building, 500 Zack Street; Tampa, Florida ' 33602, Telephone 81-3-228- 7227. 1