Solon Manufacturing Co.

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Solon Manufacturing Company and United Paper- workers International Union, AFL-CIO. Case 1-CA-10806 January 23, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER Upon a charge filed on June 23, 1975, by United Paperworkers International Union, AFL-CIO, here- in called the Union, and duly served on Solon Manu- facturing Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 1, issued a complaint on July 30, 1975, against Respon- dent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, com- plaint, and notice of hearing before an Administra- tive Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on May 29, 1975, fol- lowing a Board election in Case 1-RC-13551, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about July 11, 1975, 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 August 18, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On October 22, 1975, counsel for the Acting Gen- eral Counsel, hereinafter called General Counsel, filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 7, 1975, 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 memorandum in opposition thereto and motion for I Official notice is taken of the record in the representation proceeding Case 1-RC-13551, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd 388 F.2d 683 (C A 4, 1968); Golden Age Beverage Co, 167 NLRB 151 (1967), 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 (1967), enfd. 397 F 2d 91 (C.A 7, 1968), Sec. 9(d) of the NLRA. hearing 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 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 In its answer to the complaint and response to the Notice To Show Cause, Respondent admits the re- fusal to bargain, but attacks the Union's certification on the basis of its objections to the election in the underlying representation case, specifically its objec- tions concerning misrepresentations, election inter- ference, and an improper promise to waive initiation fees. Respondent asserts an evidentiary hearing is necessary to resolve the factual issues raised by such objections. The General Counsel contends that Re- spondent is raising issues which were considered and resolved in the representation case, and this it may not do. We agree with the General Counsel. Review of the record herein, including the record in Case 1-RC-13551, reveals that, pursuant to a Stip- ulation for Certification Upon Consent Election, a runoff election 2 was held on December 4, 1974, which the Union won. Respondent filed timely ob- jections to conduct affecting the results of the elec- tion, alleging, in substance, factual misrepresenta- tions in leaflets, illegal electioneering, election interference by state legislators, and a union promise to waive initiation fees in violation of the Supreme Court's decision in N. L. R. B. v. Savair Manufacturing Co., 414 U.S. 270 (1973). After investigation, the Re- gional Director, on January 27, 1975, issued his Re- port on Objections to Runoff Election in which he recommended that the objections be overruled in their entirety and that the Union be certified. There- after, Respondent filed timely exceptions to the Re- gional Director's report in which Respondent specifi- cally reiterated its misrepresentation, election interference, and fee waiver objections, and request- ed a hearing thereon. On May 29, 1975, after consid- eration of Respondent's objections, a Board panel issued its Decision and Certification of Representa- tive in which it adopted the Regional Director's find- ings and recommendations and certified the Union. It is well settled that in the absence of newly dis- 2 The ballot for the original election, conducted on November 12, 1974, included Intervenor United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as a party to the election Such election was inconclu- sive, however, as none of the choices on the ballot received a majority of the valid votes cast The Intervenor received the lowest number of valid votes cast and, therefore, it was deleted from the ballot and a runoff election was conducted between the two choices on the original ballot which received the highest and the next highest number of votes 222 NLRB No. 84 SOLON MANUFACTURING COMPANY 543 covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that - any special circumstances exist herein which would require the Board to reexamine the de- cision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable 4 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: 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 6 11. THE LABOR ORGANIZATION INVOLVED United Paperworkers International Union, 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 I The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Maine corporation with places of business in Solon and Skowhegan, Maine, where it is engaged in the manufacture, sale, and distribution of various wood products. Respondent, in the course and conduct of its business, causes, and continuously has caused at all times material herein, large quanti- tites of wooden products to be purchased and trans- ported in interstate commerce from and through var- ious States of the United States other than the State of Maine. We find, on the basis of the foregoing, the Respon- dent is, and has been at all times material herein, an 3 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)- 4 Respondent denies the General Counsel's allegation that, on or about June 9, 1975, and at numerous times thereafter, the Union requested Re- spondent to bargain collectively In this regard, Respondent contends the Union's letter of June 9, 1975, is not an effective request to bargain and, therefore. its failure to respond thereto does not constitute a refusal to bar- gain as of that date However, Respondent's answer admits that, on or about July 11, 1975, it refused to bargain collectively with the Union. Even accepting, arguendo, Respondent's contention that the Union's June 9 letter is not an effective request, any request to bargain by the Union, after Respondent's admitted -refusal on July 11 ', 1975, would have been futile. In these circumstances, a request to bargain is not a prerequisite to the finding of an 8(a)(5) violation Cf, Old Town, Shoe Company, 91 NLRB 240 (1950), Richardson Chemical Company, Allied Kelite Products Division, 222 NLRB- 5 (1976) Accordingly, we find that Respondent has refused to bargain on and after July 11, 1975. 5 As to Respondent's contention that a factual hearing must be held on its election objections , initially, we note that Respondent raised this issue previ- ously in its exceptions to the Regional Director's Report on Objections to Runoff Election Further, it isi established that no hearing is required where, as here, there are no properly litigable issues of fact to be resolved . Locust Industries, Inc, 221 NLRB No 85 (1975), Janler Plastic Mold Corporation, 19i_*'T°' "^11971). All full-time and regular part-time production and maintenance employees, shipping depart- ment employees, and truck drivers at Respondent's Solon and Skowhegan, Maine plants, but excluding temporary and casual em- ployees, sales employees, office clerical employ- ees, guards, and supervisors as defined in the Act. 2. The certification On December 4, 1974, 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 1, 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 May 29, 1975, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. 6 Pursuant to the commerce data set forth in the Stipulation for Certifica- tion Upon Consent Election in Case i-RC-13551, jurisdiction had been asserted ovei the Respondent. 7 Respondent notes that both the complaint and the Motion for Summary' Judgment inadvertently omit the phrase "office clerical employees" from the exclusionary portion of the appropriate bargaining unit descriptions therein, and Respondent requests that the Board clarify the appropriate unit by including this phrase as set forth in the Certification of Representative By letter dated December 11, 1975, counsel for the General Counsel also requested correction of this inadvertent error Accordingly, we shall de- scribe the appropriate bargaining unit as provided in the Certification of Representative. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Respondent's Refusal To Bargain CONCLUSIONS OF LAW Commencing on or about July 11, 1975, and con- tinuing at all times thereafter to date, the Respon- dent has refused, and continues to refuse, to recog- nize and bargain with the Union as the exclusive representative for collective bargaining of all em- ployees in said unit. Accordingly, we find that the Respondent has, since July 11, 1975, and at all times thereafter, re- fused 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 prac- tices 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, inti- mate, 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 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 ap- propriate 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 se- lected 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 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: 1. Solon Manufacturing Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Paperworkers International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees, shipping department employees, and truck drivers at Respondent's Solon and Skowhegan, Maine, plants, but excluding tempo- rary and casual employees, sales employees, office clerical employees, guards, and supervisors as de- fined 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 May 29, 1975, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 July 11, 1975, 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 Re- spondent in the appropriate unit, Respondent has en- gaged 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 Re- lations Board hereby orders that Respondent, Solon Manufacturing Company, Solon, Maine, 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 con- ditions of employment with United Paperworkers In- ternational Union, AFL-CIO, as the exclusive bar- gaining representative of its employees in the following appropriate unit: SOLON MANUFACTURING COMPANY All full-time and regular part-time production and maintenance employees, shipping depart- ment employees, and truck drivers at Respondent's Solon and Skowhegan, Maine, plants, but excluding temporary and casual em- ployees, sales employees , office clerical employ- ees, 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 Solon and Skowhegan, Maine, facil- ities copies of the attached notice marked "Appen- dix." 8 Copies of said notice, on forms provided by the Regional Director for Region I, after being duly signed by Respondent's representative, shall be post- ed 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 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX 545 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 Unit- ed Paperworkers International Union, AFL- CIO, as the exclusive representative of the em- ployees 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, 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 full-time and regular part-time produc- tion and maintenance employees, shipping de- partment employees, and truck drivers at Respondent's Solon and Skowhegan, Maine, plants, but excluding temporary and casual employees, sales employees, office clerical employees, guards, and supervisors as defined in the Act. SOLON MANUFACTURING COMPANY 8In 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 "