Ricks Lumber Co., Inc.

RICKS LUMBER COMPANY 211 Ricks Lumber Company, Inc. and International Long- shoremen's Association, AFL-CIO. Case 15-CA-4557 November 10, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on July 3, 1972, by Interna- tional Longshoremen's Association, AFL-CIO, here- in called the Union, and duly served on or about July 3, 1972, by Ricks Lumber Company, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on August 8, 1972, 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 an Administrative Law Judge' were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on October 22, 1971, following a Board election in Case 15-RC-4675 the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; 2 and that, commencing on or about June 5, 1972, 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 August 21, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 24, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 30, 1972, 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. Respon- dent thereafter filed a response to Notice To Show Cause, opposing the General Counsel's motion. Pursuant to the provisions of Section 3(b) of the i The title of "real Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 Official notice is taken of the record in the representation proceeding, Case 15-RC-4675 as the term "record" is defined in Sees. 102.68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in 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 In its answer to the complaint and in its opposition to the Motion for Summary Judgment Respondent admits, in substance, all the factual averments of the complaint, including its refusal to recognize and bargain with the Union. It denies, however, the validity of the certification because it questions the Union's majority and because it was not afforded a hearing on its objections to the election. The Respondent requests that the General Counsel's motion be denied or, in the alternative, a hearing be directed or oral argument be held. We do not agree with the Respondent's position and deny its requests. The record in the underlying representation pro- ceeding, Case 15-RC-4675, indicates that in an election conducted on August 27, 1971, pursuant to the Regional Director's Decision and Direction of Election, 38 votes were cast for, and 21 against, the Union, and 8 ballots were challenged. Respondent filed timely objections to conduct affecting the results of the election in which it alleged that the Union made misrepresentations regarding the effect of the "wage freeze," the amount of union dues, and the financial status of the Respondent, in addition to threatening economic retaliation, arousing racial tensions, and implying that the Government favored the Union. After an investigation, the Regional Director issued, on October 22, 1971, a Supplemental Decision and Certification of Representative overrul- ing Respondent's objections in their entirety and certifying the Union as the exclusive collective- bargaining representative of Respondent's employees in the unit found to be appropriate. Respondent filed a timely request for review of the Regional Director's Supplemental Decision and Certification of Repre- sentative alleging, inter alia, that it was denied a hearing on the factual issues raised by its objections. In a telegraphic communication of December 2, 1971, the Board denied the request as raising no substantial issues warranting review. 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 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. 200 NLRB No. 4 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by the Respondent in this proceeding 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. We shall, accordingly, grant the Motion for Summary Judgment and deny its request for oral argument. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a Mississippi corporation with a mill located in Natchez, Mississippi, where it is engaged in the processing and sale of lumber and forest products. During the past 12 months Respondent has shipped from its Natchez mill materials valued in excess of $50,000 directly to points located outside the State of Mississippi. 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 International Longshoremen's Association, 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 The following employees of the Respondent constitute 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 Respondent at its Pine Ridge Road mill in Natchez, Mississippi; excluding all other employees, office clerical employees, technical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On August 27, 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 15 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on October 22, 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 April 17, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about June 5, 1972, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since June 5, 1972, and 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, Respon- dent 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 opera- tions 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 commerce and the free flow of com- merce. 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 3 See Pittsburgh Plate Glass Co v N.L RB., 313 U.S. 146, 162 ( 1941); Rules and Regulations of the Board, Sees. 102 67(f) and 102.69(c). RICKS LUMBER COMPANY 213 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 certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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. Ricks Lumber Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Longshoremen's Association, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its Pine Ridge Road mill in Natchez, Mississippi; excluding all other employ- ees, office clerical employees, technical 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. 4. Since October 22, 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 June 5, 1972, 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Ricks 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 International Long- shoremen's Association, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by Respondent at its Pine Ridge Road mill in Natchez, Mississippi ; excluding all other employees, office clerical employees , technical 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its mill on Pine Ridge Road, Natchez, Mississippi, copies of the attached notice marked "Appendix." 4 Copies of said notice , on forms provided by the Regional Director for Region 15 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 15, in 4 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 214 DECISIONS OF NATIONAL 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 Inter- national Longshoremen's Association, AFL-CIO, 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 representa- tive 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, LABOR RELATIONS BOARD embody such understanding in a signed agree- ment. The bargaining unit is: All production and maintenance employ- ees employed by Respondent at its Pine Ridge Road mill in Natchez, Mississippi; excluding all other employees, office clerical employees, technical employees, profession- al employees, guards and supervisors as defined in the Act. RICKS 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 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 compli- ance with its provisions may be directed to the Board's Office, Plaza Tower, 1001 Howard Avenue, Suite 2700, New Orleans, Louisiana 70113, Tele- phone 504-527-6361.