Walled Lake Door Co.

WALLED LAKE DOOR COMPANY 677 Walled Lake Door Company and Southern Council of Lumber and Plywood Workers, United Brother- hood of Carpenters and Joiners of America, AFL-CIO. Case 26-CA-4049 October 12, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on December 17, 1970, by Southern Council of Lumber and Plywood Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, and duly served on Walled Lake Door Company herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 26, issued a complaint on July 16, 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 June 1, 1971, following a Board election in Cases 26-RC-3917 and 26-RM-278 the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate; i and that, commencing on or about June 23, 1971, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represent- ative, although the Union has requested and is requesting it to do so. On July 28, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and submitting sworn statements to support its affirmative defense that the Union's certification is invalid. On August 16, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, alleging that the Respondent's answer to the complaint raises no issues warranting an evidentiary hearing, and praying the Board to grant the motion and enter the appropriate order. Subse- quently, on August 19, 1971, the Board issued an i Official notice is taken of the record in the representation proceeding, Cases 26-RC-3917 and 26-RM-278, 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 Electrosystemr, 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, 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 Motion for Summary Judgment and Motion To Strike as well as a response to Notice To Show Cause. 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,2 the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT In its answer to the complaint and in its responses to the Motion for Summary Judgment and Notice To Show Cause, the Respondent contends that its objections to the conduct of the election raised substantial and material issues warranting a hearing thereon, and, accordingly, since no such hearing was held, the certification is invalid and the Union is not the exclusive bargaining representative of the Respon- dent's employees in the appropriate unit. The record in Cases 26-RC-3917 and 26-RM-278 reflects that, pursuant to a Stipulation for Certifica- tion Upon Consent Election, an election by secret ballot was conducted on January 19, 1971, among the employees in the stipulated unit. The tally of ballots shows that of approximately 54 eligible voters, 50 cast ballots of which 26 were for, and 22 against, the Union, one was challenged and one was void. Thereafter, the Respondent filed timely objections to conduct affecting the results of the election. The objections alleged in substance that (1) a letter distributed to employees by the Union shortly before the election contained material misrepresentations as to benefits offered in various unionized plants including the Respondent's unionized plants and misrepresentations as to the number of the Respon- dent's plants which were unionized; (2) the Respon- dent's speech 24 hours before the election was not an effective reply to the letter because it created the impression among some employees that it was the Respondent, and not the Union, which was deliber- ately misrepresenting facts; and (3) the Union's unlawful activity destroyed the laboratory conditions for holding an election. After an investigation, the Regional Director issued enfd 397 F 2d 91 (C.A 7, 1968); Sec 9(d) of the NLRA. 2 The Respondent's request for oral argument is hereby denied because the record herein, including the General Counsel's Motion for Summary Judgment and the Respondent's responses, adequately present the issues and the positions of the parties 193 NLRB No. 99 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and duly served upon the parties his Report on Objections finding that the Union's letter did not exceed the bounds of permissible campaign propa- ganda, notwithstanding the Union's inaccuracy of the number of the Respondent's unionized plants and that, in any event, the Respondent had adequately rebutted the contents of the letter. He further found no merit in the Respondent's request for a hearing because of the absence of any conflict in the evidence disclosed by the investigation. Accordingly, the Regional Director recommended that the objections be overruled in their entirety and the Union be certified. Thereafter, the Respondent filed exceptions to the Regional Director's report reiterating its objections and specifically alleging that the Union's letter contained material and deliberate misrepresentations which it was unable to rebut effectively, and which warranted setting aside the election or the holding of a hearing. After due consideration, the Board, on June 1, 1971, issued its Decision and Certification of Representative finding that the exceptions raised no material issues of fact warranting the holding of a hearing, specifically adopted the Regional Director's conclusion that the Union's letter did not exceed the permissible limits of campaign propaganda, and certified the Union. In its responses to the Motion for Summary Judgment and the Notice To Show Cause, the Respondent argues that it is not seeking to relitigate issues raised in its objections because, with only an investigation and without a hearing, it never had the opportunity to do so in the first instance. We find no merit in this argument since both the Regional Director and the Board have already determined that the objections raised no material issues warranting a hearing and absent such issues, it is well established that parties do not have the right to a hearing on objections to an election.3 The Respondent also contends that the six affidavits attached to its answer dealing with the alleged impact of the Union's letter and of the Respondent's rebuttal on the voting of the employees in the election, are newly discovered or previously unavailable evidence which warrants a hearing. We do not agree with this contention. Except for the general allegation that two of the affidavits were "voluntarily made available to the Respondent for the first time on July 27, 1971," the Respondent has not made any other showing to establish the unavailability of the evidence contained in the affidavits. Further, it appears that three of the 3 Allied Foods, Inc, 189 NLRB No 79, and cases cited in In 6 4 In view of our disposition herein , we shall deny the General Counsel's Motion To Strike from the Respondent's Answer and Affirmative Defense the affidavits attached thereto 5 See Pittsburgh Plate Glass Co, v N L R B, 313 U S 146, 162 ( 1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) affidavits are dated in January 1971, shortly after the election and prior to the Regional Director's issuance of his Report on Objections so that the Respondent was well aware of the existence of the evidence which it now claims to have been unavailable and which it could have presented to the Regional Director of the Board in the underlying representation proceeding.4 In any event, the contents of these affidavits, even if established in an evidentiary hearing, would not warrant setting aside the election herein. 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 litigated in a prior representation 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 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.6 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 Respondent is now, and has been at all times material herein, a corporation doing business in the State of Mississippi, with a plant and place of business located at Tupelo, Mississippi, where it is engaged in the manufacture of doors. During the past 12 months, the Respondent, in the course and conduct of its business operations at Tupelo, Mississippi, purchased directly from points located outside the State of Mississippi, goods and materials valued in excess of $50,000. During the same period of time, it shipped to points located outside the State of Mississippi, goods 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 6 Because of the alleged lack of sufficient knowledge or information, the Respondent's answer denies that the Union is a labor organization within the meaning of the Act The Union's status as a labor organization was determined by the Board in the representation proceeding in Cases 26-RC-2917 and 26-RM-278 and, accordingly, it is not subject for litigation in the instant unfair labor practice case WALLED LAKE DOOR COMPANY 679 meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED Southern Council of Lumber and Plywood Workers United Brotherhood of Carpenters and Joiners of America, AFL-CIO, 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 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 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 to labor disputes burdening and obstructing com- merce and the free flow of commerce. 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 at the Respondent's Tupelo Mississippi, plant, in- cluding yard employees and truckdrivers, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On January 19, 1971, 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 26, 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 June 1, 1971, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about June 14, 1971, 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 June 23, 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 June 23, 1971, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate 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 recogniz- ed 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 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. Walled Lake Door Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Southern Council of Lumber and Plywood Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Respondent's Tupelo, Mississippi, plant including yard employees and truckdrivers, 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 within the meaning of Section 9(b) of the Act. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Since June 1, 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 January 19, 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(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ing is reached, embody such understanding in a signed agreement. (b) Post at its Tupelo, Mississippi, plant and place of business copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representa- tive, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 7 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 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that Respondent, Walled Lake Door Company, 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 Southern Council of Lumber and Plywood Workers , United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees at the Respondent's Tupelo, Mississippi , plant in- cluding yard employees and truckdrivers, but excluding office clerical employees , professional 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- 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 South- ern Council of Lumber and Plywood Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive representa- tive 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 at the Respondent's Tupelo, Mississippi, plant in- cluding yard employees and truckdrivers, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. WALLED LAKE DOOR COMPANY 681 WALLED LAKE This notice must remain posted for 60 consecutive DOOR COMPANY days from the date of posting and must not be altered, (Employer) defaced, or covered by any other material. Any questions concerning this notice or compliance Dated By with its provisions may be directed to the Board's (Representative) (Title) Office, Federal Office Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone This is an official notice and must not be defaced by 901-534-3161. anyone.