John M. Horn Lumber Co.

JOHN M. HORN LUMBER CO. The John M. Horn Lumber Co. and United Brother- hood of Carpenters, Ohio Valley Carpenters District Council, Local Union No. 415, AFL- CIO. Case 9-CA-23318 13 November 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON Upon a charge filed by the Union 11 July 1986, the General Counsel of the National Labor Rela- tions Board issued a complaint 5 August 1986 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The complaint alleges that on 24 June 1986, fol- lowing a Board election in Case 9-RC-14686, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 1 July 1986, the Company has re- fused to bargain with the Union. On 15 August 1986, the Company filed its answer admitting in part and denying in part the allegations in the com- plaint. On 28 August 1986 the General Counsel filed a Motion for Summary Judgment. On 4 September 1986 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary. Judgment The Company's answer admits that it has refused to bargain with the Union but denies that the Union is the exclusive bargaining representative of the employees in the unit and that it has committed the unfair labor practices alleged. The General Counsel argues that all material issues have been previously decided. We agree with the General Counsel. The record, including the record in Case 9-RC- 14686, reveals that pursuant to a stipulated election agreement, the election was conducted on 23 May 1985. The tally of ballots shows 19 for and 17 against the Union, with no challenged ballots. The Company on 29 May 1985 filed timely objections 127 to conduct affecting the results of the election al- leging that members of the Union's organizing committee were agents of the Union. and that threats made by them to unit employees warranted setting aside the election. Following an investiga- tion the Regional Director issued a Report on Ob- jections and Order Directing Hearing. A hearing was held on 11 and 17 July 1985. On 11 October 1985 the hearing officer's report and recommendations to the Board issued recommend- ing that the Company's objections be overruled. On 23 October 1985 the Company filed.exceptions. On 24 June 1986 the Board issued its Decision and Certification of Representative 1 in which it certi- fied the Union as the exclusive bargaining repre- sentative for the employees in the appropriate unit. In its response to the General Counsel's Motion for Summary Judgment, the Company reiterates its contentions that the members of the organizing committee were agents of the Union and that threats made by committee members to certain em- ployees were so egregious that the election should have been set aside'and no certification granted to the Union. It is well settled that in the absence of newly dis- covered and 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 that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Heuer International Trucks, 279 NLRB 127 (1986); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, an Ohio corporation, manufac- tures industrial wood products at its facility in 1 280 NLRB 593 (1986). Member Johansen did not participate in the underlying representation proceeding. However, Member Johansen ac- cepts the prior decision as the law of the case. 282 NLRB No. 23 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hamilton, Ohio, where it annually sells and ships goods and materials valued in excess of $50,000 di- rectly to points outside the State of Ohio. We find that the Company is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 23 May 1985, the Union was certified 24 June 1986 as the collective- bargaining representative of the employees in the following appropriate unit: All production and maintenance employees in- cluding truck drivers employed by the Re- spondent at its Hamilton, Ohio facility, but ex- cluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 26 June 1986 the Union has requested the Company to bargain, and since 1 July 1986 the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 1 July 1986 to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and_ desist, to bargain on request with the Union and, if, an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The General Counsel's request for a visitatorial clause is denied. ORDER The National Labor Relations Board orders that the Respondent, The John M. Horn Lumber Co., Hamilton, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with the United Brother- hood of Carpenters, Ohio Valley Carpenters Dis- trict Council, Local Union No. 415, AFL-CIO as the exclusive bargaining representative of the em- ployees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees in- cluding truck drivers employed by the Re- spondent at its Hamilton, Ohio facility, but ex- cluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. (b) Post at its facility in Hamilton, Ohio, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Re- gional Director for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 2 If 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 Nation- al 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 " JOHN M. HORN LUMBER CO. CHAIRMAN DOTSON, dissenting. For the reasons stated in my dissenting opinion in the underlying representation proceeding,' I would deny the General Counsel's Motion for Summary Judgment. 1 280 NLRB 593 (1986). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with the United Brotherhood of Carpenters, Ohio Valley Carpen- 129 tors District Council, Local Union No. 415, AFL- CIO, as the exclusive representative of the employ- ees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All production and maintenance employees in- cluding truck drivers employed by the Re- spondent at its Hamilton, Ohio facility, but ex- cluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. THE JOHN M. HORN LUMBER CO.