Georgia-Pacific Corp.

GEORGIA-PACIFIC CORPORATION Georgia-Pacific Corporation and Southern Council of Industrial Workers, United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO. Case 15- CA-4787 August 21, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on March 5, 1973, by Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, and duly served on Georgia- Pacific Corporation, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on March 12, 1973, 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 and complaint were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on February 13, 1973, following a Board election in Case 15-RC-4552 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about February 20, 1973, and at all times there- after, Respondent 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 March 22, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. The Respondent admits all of the factual allegations in the complaint, except those paragraphs which relate to the underlying repre- sentation case, 15-RC-4552. On March 28, 1973, counsel for the General Coun- sel filed directly with the Board a Motion for Summa- ry Judgment, submitting, in effect, that the only issue raised by the Respondent's answer to the complaint is the validity of the election and the resulting certifi- cation in the underlying representation proceeding, 'Official notice is taken of the record in the representation proceeding, Case 15-RC-4552, 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 (CA. 4, 1968), Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C.A. 5, 1969), 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. 633 Case 15-RC-4552. He, therefore, requests the Board to grant the Motion for Summary Judgment . Subse- quently, on April 5 , 1973, 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. Re- spondent thereafter filed a response to Notice to Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its au- thority 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 As reflected above, the Respondent's answer ad- mits all of the factual allegations of the complaint. In its response to the Notice To Show Cause, as in its answer to the complaint, the Respondent attacks the Board's Supplemental Decision and Certification of Representative, issued on February 13, 1973,2 in which the Board, after having considered the Region- al Director's Report on Challenged Ballots and Ob- jections to Second Election, the exceptions thereto, and the entire record, concluded that the Respondent's exceptions raised no material or sub- stantial issues of fact or law which would require a hearing; adopted the Regional Director's findings, conclusions, and recommendations; and, according- ly, certified the Union. In its response to the Notice To Show Cause, the Respondent admits that "at issue is the validity of the Board's February 13, 1973 Certi- fication of Representative which is based upon the Board's Supplemental Decision regarding determina- tive challenged ballots and objections to the second election conducted on July 13, 1972 in Case No. 15- RC-4552," but contends, in substance, that the Union's certification was improperly issued because the Respondent was denied due process and an evi- dentiary hearing on substantial and material issues of fact raised by its objections to the election. By this assertion, and more specifically by its denials, in whole or in part, of the allegations of the complaint, and the arguments propounded in its response to the Notice To Show Cause, including the exhibits referred to therein, the Respondent is attempting to relitigate the same issues which it raised in the representation proceeding, Case 15-RC-4552. Moreover, it is well established that parties do not have an absolute right to a hearing on objections to an election. It is only when the moving party presents a prima facie showing of "substantial and material 2 Georgia-Pacific Corporation, 201 NLRB No 109. 205 NLRB No. 106 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issues" which would warrant setting aside the election that he is entitled to an evidentiary hearing.3 It is clear that, absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional re- quirements.4 It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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.' 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. 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 has been at all times mate- rial herein, a Georgia corporation engaged in the manufacture, sale, and distribution of wood products and related forestry products. The only operation of Respondent directly involved in this proceeding is its manufacturing facility located at Taylorsville, Missis- sippi. During the past 12 months, which period is representative of all times material herein, Respon- dent, in the couse and conduct of its business, de- scribed above, purchased and received goods and materials valued in excess of $50,000 which were shipped directly to it in Taylorsville, Mississippi, from points located outside the State of Mississippi. During the same period, Respondent sold and shipped goods and materials valued in excess of $50,000 from inside Mississippi directly to points located outside the State of Mississippi. We find, on the basis of the foregoing, that Respon- dent is, and has been at all times material herein, an 3 Allied Foods, Inc, 189 NLRB 513, and cases cited in in. 6 4 Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc I v NL RB , 424 F 2d 818, 828 (C A D C , 1970) Modine Manufacturing Company, 203 NLRB No 77 5 See Pittsburgh Plate Glass Co, v NL RB , 313 U S 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(1) and 102 69(c) employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED Southern Council of Industrial 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 UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed at the Employer's Taylorsville, Mississip- pi, plywood, particle board, and stud plants; excluding office clerical employees, forestry divi- sion employees, professional employees, techni- cal employees, guards, and supervisors as defined in the Act. 2. The certification On July 13, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 15, 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 February 13, 1973, 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 February 20, 1973, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about February 20, 1973, 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 collec- tive bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since February 20, 1973, and at all times thereafter, GEORGIA-PACIFIC CORPORATION refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that , by such refusal , Respondent has engaged in and is engaging in unfair labor practic- es within the meaning of Section 8(a)(5) and ( 1) of the Act. IV THE EFFECT OF THE UNFAIR LADOR 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 com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce 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 mean- ing 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 appro- priate unit will be accorded the services of their select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com- merce 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. Georgia-Pacific Corporation is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Southern Council of Industrial 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 em- ployed at the Employer's Taylorsville, Mississippi, plywood, particle board, and stud plants; excluding 635 office clerical employees, forestry division employees, professional employees, technical 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 February 13, 1973, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about February 20, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respon- dent 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 mean- ing 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 Rela- tions Board hereby orders that Respondent, Georgia- Pacific Corporation, 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 condi- tions of employment with Southern Council of Indus- trial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive bar- gaining representative of its employees in the follow- ing appropriate unit: All production and maintenance employees employed at the Employer's Taylorsville, Missis- sippi, plywood, particle board, and stud plants; excluding office clerical employees, forestry divi- sion employees, professional employees, techni- cal 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 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 manufacturing facility located at Taylorsville, Mississippi, copies of the attached notice marked "Appendix."6 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 consec- utive 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, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 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 " 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with South- ern Council of Industrial Workers, United Broth- erhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described be- low. WE WILL NOT in any like or related manner in- terfere 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 understanding in a signed agreement. The bargaining unit is: All production and maintenance employees employed at the Employer's Taylorsville, Mis- sissippi, plywood, particle board, and stud plants; excluding office clerical employees, forestry division employees, professional em- ployees, technical employees, guards, and su- pervisors as defined in the Act. GEORGIA-PACIFIC CORPORATION (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, Suite 2700, 1001 How- ard Avenue, New Orleans, Louisiana 70113, Tele- phone 504-527-6361.