Weyerhaeuser Co.

WEYERHAEUSER COMPANY Weyerhaeuser Company and United Paperworkers In- ternational Union, AFL-CIO. Case 26-CA-7611 May 4, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on January 29, 1979, by United Paperworkers International Union, AFL- CIO, herein called the Union, and duly served on Weyerhaeuser Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 26, issued a complaint and notice of hearing on February 2, 1979, 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 com- plaint alleges in substance that on October 30, 1978, following a Board election in Case 26-RC-5814, 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 January 26, 1979, 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 February 14, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 21, 1979, counsel for the General Counsel filed directly with the Board a Motion to transfer case to Board and for Summary Judgment. Subsequently, on February 28, 1979, 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. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- I Official notice is taken of the record in the representation proceeding. Cue 26-RC-5814, 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 LTVElectroasystms, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Interype Co. v. Penello. 269 F.Supp. 573 (D.C.Va. 1967); Folletr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 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 in its opposition to the Motion for Summary Judgment, Respondent basically questions the validity of the underlying rep- resentation proceeding and the resulting certification of the Union. Respondent alleges that the Union was certified in an inappropriate unit and that the Acting Regional Director sustained the challenges to the bal- lots of two employees by resolving credibility issues without a hearing, which it now requests. An examination of the record in Case 26-RC-5814 reveals that on July 17, 1978, the Union filed a peti- tion seeking to represent certain employees of Re- spondent. On August 29, 1978, the Acting Regional Director for Region 26 issued a Decision and Direc- tion of Election in a unit of office and clerical employ- ees in three divisions of Respondent located at Pine Bluff, Arkansas. Respondent filed a request for review of the Acting Regional Director's Decision and Di- rection of Election on September 8, 1978, which re- quest was denied by the Board on September 20, 1978. Pursuant to the Decision and Direction of Election, an election was conducted on September 22, 1978, resulting in a vote of 7 for and 6 against the Union, with 2 challenged ballots. No objections were filed to the conduct of the election. On October 30, 1978, the Acting Regional Director for Region 26 issued a Sup- plemental Decision and Certification of Representa- tive, wherein he sustained the two challenged ballots and certified the Union. On November 10, 1978, Re- spondent filed a request for review of the Acting Re- gional Director's Supplemental Decision and Certifi- cation of Representative, which request was denied by the Board on January 19, 1979. It is well settled that in the absence of newly dis- 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 relitigate issues which were or could have been litigated in a prior representation proceeding All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in 2 See Pittsburgh Plate Glass Co. v. N.LR. ., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 242 NLRB No. I I)E( ISI()NS ()1 NATIONAI. I.ABOR RFI.A()IONS B()ARD) the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of' the entire record, the Board makes the following: FINI)IN(S ()o;F [A('I I. IlE BUSINESS OF RSPONI)IFN I Respondent, a corporation doing business in the State of Arkansas, with an office and place of busi- ness located in Pine Bluff, Arkansas, is engaged in the operation of a pulp and paper mill, a multiwall bag plant, and a corporate truck fleet operation. During the past 12 months, Respondent, in the course and conduct of its business operations, purchased and re- ceived at its Pine Bluff, Arkansas, location, products valued in excess of $50,(00 directly from points lo- cated outside the State of Arkansas, and during the same period of time, Respondent sold and shipped from its Pine Bluff, Arkansas, location, products val- ued in excess of $50,000 directly to points located outside the State of Arkansas. We find, on the basis of the foregoing, that Respon- dent 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. 11. IABOR OR(iANIZ.AIION INVOL()IV) United Paperworkers International Union, AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. FIlE IrNFAIR I.AB()R PRA( I('IiS A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All office clerical employees employed by the Employer at its multiwall bag plant, pulp and paper mill, and corporate truck fleet operations located in Pine Bluff, Arkansas, excluding all other employees including production and main- tenance employees, confidential employees, guards and supervisors as defined in the Act. 2. T'he certification On September 22, 1978, a majority of the employ- ees of Respondent in said unit, in a secret ballot elec- tion conducted under the supervision of the Acting Regional Director for Region 26. designated the lnion as their representative for the purpose of col- lective bargaining with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on October 30, 1978, and the Union continues to be such exclusive representa- tive within the meaning of Section 9(a) of the Act. B. Tle Request To Bargain and Respondent's Refusal Commencing on or about January 23, 1979, and at all times thereafter, the Union has requested 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 January 26, 1979, and continuing at all times thereafter to date, Respondent has refused, and con- tinues 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 Respondent has, since January 26, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of' the employees in the appropri- ate 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. IIF IFFE(I OF IHIi UNFAIR LABOR PRACTICES IPO()N (O()MMER(CE The activities of' Respondent set forth in section 111, above, occurring in connection with its operations described in section , 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. IIIF REMDI)Y 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. W-YE. RIAII ISI R (COMPANY In order to insure that the employees in the appro- priate unit will he 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 commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultrv Company, Inc., 136 NIRB 785 (1962); Commerce Company ld/hb/a Lamar Hotel, 140 NLRB 226, 229 (1962). enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Con- struction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: C()N(cILtSIO(NS OF LAW 1. Weyerhaeuser Company is an employer en- gaged 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 office clerical employees employed by the Employer at its multiwall bag plant, pulp and paper mill, and corporate truck fleet operations located in Pine Bluff, Arkansas, excluding all other employees including production and maintenance employees, confidential 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 October 30, 1978, 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 January 26, 1979, 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 them in Sec- tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) 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 the Respondent, Wes- erhaeuser Company, Pine Bluff: Arkansas, 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: All office clerical employees employed by the Employer at its multiwall bag plant, pulp and paper mill and corporate truck fleet operations located in Pine Bluffl Arkansas, excluding all other employees including production and main- tenance employees. confidential employees, guards and supervisors as defined in the Act. (b) In ans 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 place of business in Pine Bluff, Ar- kansas, copies of the attached notice marked "Appen- dix."? Copies of said notice, on forms provided by the Regional Director for Region 26. after being duly signed by Respondent's representative, 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 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 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ) In the event that this Order s 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 " DECISIONS OF 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with United Paperworkers International Union, 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 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 de- scribed 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 office clerical employees employed by the Employer at its multiwall bag plant, pulp and paper mill, and corporate truck fleet op- erations located in Pine Bluff, Arkansas, ex- cluding all other employees including produc- tion and maintenance employees, confidential employees, guards and supervisors as defined in the Act. WEYERHAEUSER COMPANY 4