W. T. Harvey Lumber Co., Inc.

W. T. HARVEY LUMBER CO. W. T. Harvey Lumber Company, Inc. and National Council Distributive Workers of America. Case 10-CA-8967 August 18, 1971 DECISION AND ORDER BY CHAnvAAN MILLER AND MEMBERS BROWN AND JENKINS Upon a charge filed on April 22, 1971, by National Council Distributive Workers of America, herein called the Union, and duly served on W. T. Harvey Lumber Company, Inc., herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, issued -a complaint on May 14, 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 25, 1971, following a Board election in Case 10-RC-8462 the Union was - duly certified as 'the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; I and that, commencing on or about April 5, 1971, and at all, times thereafter, Respondent has refused, and contin- ues 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 May 25, 1971, Respondent 'filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 21, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 25, 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 filed a response to Notice To Show Cause, entitled "Respondent's Response to Motion of General Counsel for Summary Judgment, Response to Notice To Show Cause, and Motion To Dismiss Complaint-- ' Pursuant to the provisions of Section 3(b) of the 1 Official notice is taken of the record in the representation proceeding, Case 10-RC-8462, as the term "record" is defined in Secs. 102.68 and 102.69(1) 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: Intert)pe Co. v. Penella 269 F.Supp. 573, (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd 397 737 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 Case 10-RC-8462 establishes that on December 8, 1970, an election by secret ballot was conducted among the employees in the appropriate unit. The tally of ballots shows that of approximately 30 eligible voters, 16 cast ballotsf 'for and' 13 cast ballots against the, Union and one ballot was challenged. Thereafter, on December 15, 1970, the Respondent filed objections to the election.2 These objections were investigated by the Regional Director, who found that much of the conduct complained of did not exceed the bounds of legitimate campaign propaganda and that for some of the objections, the Respondent's evidence was either insufficient or nonexistent. Accordingly, the Regional Director dismissed the objections in their entirety and certified the Union. On February 12, 1971, the Respondent filed with the Board a Request for Review of the Regional Director's decision, objecting only to his determination with respect to, two of the original eight objections. These objections alleged that: (1) The Union had represented to the employees that it was formed by the National Government and approved by the Government'and the Board; and (2) by its conduct, the Union had destroyedthe laborato- ry conditions necessary for a valid election. The Regional Director's investigation disposed of these objections by finding that, -with, respect to (1), even assuming the statement was- made, there was no evidence that any of the employees heard it"or had any knowledge that it was made, and with respect to (2)' the testimony offered by the Respondent was too vague and ambiguous to have affected the election and the conduct complained of, assuming it occurred, was permissible. These findings were affirmed ,by the Board when it denied the Request for Review in a telegraphic order dated March 1, 1971, stating that it "raised no substantial issues warranting review." In its response to the Notice To Show Cause the Respondent again seeks to test the validity of the election and subsequent certification contending that F.2d 91 (CA. 7, 1968); Sec 9(d) of the NLRA. 9 Upon the Respondent's Request for Review of the Regional ,Director's rejection of the objections as untimely filed, the Board'by telegraphic order of January 5, 1971, directed that due to the special circumstances of the case, the objections be accepted and processed. 192 NLRB No. 105 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director and the `Board erred by not sustaining its objections. 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(aX5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by the Respondent in this proceed- ing were or could have been litigated 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.4 We shall, accordingly, grant the Motion for Summary, Judgment. On the basis-of, the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF - THE RESPONDENT Respondent is now, and at all times material herein has been, a Georgia corporation, with an office and place- of business located at Columbus, Georgia, where it is,engaged in the operation of a lumberyard. Respondent, during, the past calendar year, which period is, representative of, all times material herein, purchased goods valued in excess, of $50,000 directly fromMcustomers located outside the State of Georgia. ,We find, on the basis of the foregoing, that Respondent r-is, and, has been at all Mimes 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. H. THE LABOR , ORGANIZATION INVOLVED National Council Distributive Workers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The- Representation Proceeding-,. 1. The unit The following employees of the Respondent consti- 8 See Pittsburgh'PlateGlass Co. v. N.LR.B., 313 U.S. 146,',162;(1941); Rules and Regulations of the Board , Secs. 102.67(1) and 10269(c). 4 In its response to the Notice To Show Cause , the Respondent also tute a unit appropriate for-, collective-bargaining purposes within the, meaning of Section 9(b) of the Act: All production and maintenance employees at Respondent's Columbus, ' Georgia lumberyard, including truck drivers, truck helpers, yardmen, fork lift operators, checkers , glazers, mill work operators, and order, takers, but excluding the outside salesmen, office clerical employees, guards, and supervisors as defined in the Act. 2. The certification On December 8, 1970,.a majority of the employees, o€,Respondenlt in said unit, in a secret ballot election conducted under, the supervision of. the Regional Director for Region 10, 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 January ' 25, 1971, and the Union continues, to be such exclusive,representative= within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about March 25,19,7 1, ,and at all times thereafter, the Union has requested the.Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ-, ees in the above-described unit. Commencing on,or about April 5, , 1971, 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 April 5, !971, land at all times thereafter, refused' to bargain collectively with the, Union as the exclusive representative of the employees, in the appropriate unit,, and that, by such refusal, Respondent has, engaged in and is engaging in,unfair labor practices within the meaning of Suction 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, above, occurring in 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 argues that its position is not merely an attempt to relitigate issues already determined, but rather that it is an opportunity for the Board to correct an alleged misapplication of the law. We find no merit in this position. ' W. T. HARVEY LUMBER CO. 739 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/bla 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. W.T. Harvey Lumber Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. National Council Distributive Workers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at Respondent's Columbus, Georgia lumberyard, in- cluding truck drivers, truck helpers, yardmen, fork lift operators, checkers, glazers, mill work operators, and order takers, but excluding the outside salesmen, office clerical employees, guards, and supervisors as defined in `the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 25, 1971, 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 April 5, 1971, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all, the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor 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(aXI) 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, W. T. Harvey'Lumber,Company, Inc., its officers, agents, successors, and assigns,,shall:,, 1. Cease and desist from: ,(a) Refusing to bargain collectively concerning rates of .pay, wages, hours, and other terms and conditions of employment, with National Council Distributive Workers of America as the exclusive bargaining representative of its employees in the following appropriate unit: - All production and maintenance employees at Respondent's Columbus, Georgia lumberyard, including truck drivers, truck helpers, yardmen, fork lift operators, checkers, glazers, mill work operators, and order takers, but excluding the outside salesmen, office clerical employees, 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 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 lumberyard, at Columbus, Georgia, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be 5 In the event that the Board's Order is enforced by a Judgment of a shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF United States Court of Appeals, the words in the notice reading "POSTED THE UNITED STATES COURT OF APPEALS ENFORCING AN BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" ORDER OF THE NATIONAL LABOR RELATIONS BOARD. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 insurer that said notices are not altered, defaced,or covered by anyother material. (c) Notify the Regional Director for Region 10, in writing,, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Nation- al Council Distributive Workers 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 employ- ees at Respondent's ' , Columbus," 6 Georgia lumberyard, - including truck drivers, truck helpers, yardmen, fork lift operators, check- ers, glazers, -mill work- operators, and order takers, but excluding the outside salesmen, office clerical employees, guards, and super- visors as defined in the Act. W. T. HARVEY LUMBER COMPANY, INC: (Employer) Dated By (Representative) - (Title) This is, an official notice and must not be defaced by anyone. This notice must remain posted for (4 consecutive days from the date of posting and mustnot be altered, defaced, oor covered by any othermateriaL Any questions concerning this notice,or compliance with its provisions may be directed to the Board's Office, Room 701, Peachtree Building, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760.