Alamo Lumber Co.

National Labor Relations Board - Board Decisions

Dec 21, 1970

187 N.L.R.B. 384 (N.L.R.B. 1970)

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alamo Lumber Company and Teamsters, Chauffeurs,
Warehousemen, Helpers and Food Processors
Local Union No . 657, a/w International Brother-
hood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America . Case 23-CA-3695
December 21, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed on July 13, 1970, by Teamsters,
Chauffeurs, Warehousemen, Helpers and Food Proc-
essors, Local Union No. 657, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, herein called the Union,
and duly served on Alamo Lumber Company, herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 23, issued a complaint on August
7, 1970, against Respondent, alleging that Respon-
dent 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 a
Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on May 13, 1970,
following a Board election in Cases 23-RC-3380 and
23-RM-239 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate;'
and that, commencing on or about May 22, 1970, and
on July 3, 1970, and at all times thereafter, Respon-
dent 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 28,
1970, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.2
On September 21, 1970, counsel for the General
Counsel filed directly with the Board a Motion for
I Official notice is taken of the record in the representation proceeding,
Cases 23-RC-3380 and 23-RM-239 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 (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
2 On August 28, 1970, Respondent also filed a Motion to Dismiss
Complaint which was referred by the Regional Director to a Trial
Examiner for ruling thereon The Respondent alleged therein that the
General Counsel issued a complaint on August 7, 1970, despite his
agreement not to act upon this charge herein until after the Board had
Summary Judgment. Subsequently, on September 25,
1970, 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 there-
after filed a response to Notice to Show Cause and the
General Counsel filed a Memorandum in Support of
Motion for Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
Upon the entire record in this proceeding, the Board
makes the following:
Ruling on the Motion for Summary Judgment
The record establishes that, pursuant to a Decision
and Direction of Election issued on March 5, 1970, by
the Regional Director for the Board's Region 23, an
election was conducted on April 2, 1970, in which a
majority of the employees of the Respondent in the
appropriate unit selected the Union as its representa-
tive for the purposes of collective bargaining.3 On
April 7, 1970, the Respondent filed timely Objections
to Conduct of Election. In his Supplemental Decision
and Order and Certification of Representative dated
May 13, 1970, the Regional Director overruled the
objections as being without merit and certified the
Union as the exclusive representative of all employees
in the appropriate unit for the purposes of collective
bargaining.
On June 1, 1970, the Respondent filed a Request for
Review of the Regional Director's action entitled
Brief and Argument of Exceptions to the Regional
Director's Supplemental Decision, and Certification
of Representative. This Request for Review was
denied by the Board by Order dated June 16, 1970, on
the ground that no substantial issue warranting review
had been raised. Thereafter the Respondent again
sought review, filing with the Board on July 20, 1970,
its Employer's petition to reopen record and reconsid-
er decision and certification of representative on basis
of newly discovered evidence. By Order dated August
10, 1970, the Board denied the Respondent's petition
as lacking in merit.
ruled upon the Respondent 's motion to reopen the record in the
representation cases The same date that the General Counsel issued the
complaint , the Board denied the Respondent 's motion to reopen
Thereafter, on September 11, 1970, after considering the submissions by
the Respondent and the General Counsel, Trial Examiner Charles W
Schneider issued an Order Denying Motion to Dismiss Complaint For the
reasons stated in that Order, and particularly in view of the lack of
prejudice to the Respondent , the Board affirms the Trial Examiner 's ruling
and adopts his Order
3 Of the approximately nine eligible voters, nine cast valid ballots of
which six were for the Union and three were cast against the Union There
were no void or challenged ballots
187 NLRB No. 48
ALAMO LUMBER CO. 385
In its answer to the complaint, the Respondent
admitted it received the two requests to bargain made
by the Union on or about May 15 and June 22, 1970.
In addition, attached to the General Counsel's
Motion for Summary Judgment are two subsequent
letters dated August 14 and September 9, 1970,
requesting the Respondent to bargain with the Union.
In its response to Notice to Show Cause, the
Respondent does not controvert or dispute the fact
that these letters were also sent by the Union and
received by the Respondent and therefore, they stand
as admitted. Although denying that it refused to
bargain, the Respondent in its response did not
disavow a letter of September 15, 1970, also attached
to the General Counsel's Motion, in which it allegedly
refused to accept a settlement offer, and therefore that
letter stands as admitted. This refusal to accept the
settlement offer establishes a refusal to bargain.
Further, absent an affirmative showing that the
Respondent had responded or intended to respond to
any of the requests to bargain with the Union as
alleged in the complaint and attached to the General
Counsel's Motion, the Respondent must be deemed to
have failed to honor these requests and therefore to
have failed and refused to bargain with the Union as
alleged in the complaint.4
While both in its answer to the complaint and in its
response to the Notice to Show Cause, the Respon-
dent has attempted to relitigate the issues raised in the
prior representation proceedings, its basic contention,
originally raised in its objections, is that the Certifica-
tion of Representative is invalid because the Regional
Director's failure to follow an alleged policy of
Region 23 of using bilingual (Spanish-English)
notices of election and ballots when a substantial
number of eligible voters have Spanish surnames. In
his Supplemental Decision overruling the Respon-
dent's objections, the Regional Director noted that
even though all the eligible voters in the election
herein had Spanish surnames and despite the Respon-
dent's knowledge of circumstances giving rise to an
alleged need for bilingual ballots, it made no request
therefor, and did not raise the issue until after the
election had been conducted. In addition, the Region-
al Director's investigation revealed that five of the
nine employees who voted in the election could read,
write, speak, and understand English, and that the
remaining employee voters, while not versed in the
English language, were able to identify a ballot like
4 May Department Stores Company, 186 NLRB No 17, Carl Simpson
Buick, 161 NLRB 1389
5 The decisions in Marriott In-Fbte Services Division of Marriott Corp v
N L R B 417 F 2d 563 (C A 5), and Fibre Leather Manufacturing
Corporation, 167 NLRB 393, relied on by the Respondent are
distinguishable from the instant case where neither party requested
Spanish-English ballots prior to the election Where such requests are
made , the Regional Director provides bilingual notices and ballots
the one used in the election and were able to
understand its use and how to mark it in order to
express their choice. The Regional Director properly
concluded, therefore, that the failure to use bilingual
ballots in the election did not provide sufficient
grounds for setting aside the election.5
As indicated above, the Board, on June 16 and
August 10, 1970, denied the Respondent's Requests
for Review of the Regional Director's certification as
lacking in merit and not warranting review in this
proceeding. We have also made an independent
review of the record in the representation Cases
23-RC-3380 and 23-RM-239, and we hold that the
Regional Director's findings and conclusions therein,
particularly with respect to the issue of bilingual
ballots are correct and we reaffirm our denials of the
Respondent's petitions for review.6
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 to
relitigate issues which were or could have been raised
in a prior representation proceeding.?
All issues raised by the Respondent in this proceed-
ing were or could have been raised 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
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas Corporation having an
office and place of business in Laredo, Texas, where it
is engaged in the manufacture and sale of concrete
products. In the representation Cases 23-RC-3380
and 23-RM-239, the Respondent stipulated that
during the preceding 12 months it purchased goods
and services having a value in excess of $50,000
directly from points outside the State of Texas and the
6 In view of our present independent review of the record in the
representation proceeding , the Respondent's procedural arguments against
granting summary j udgment herein based upon the decision in Pepsi-Cola
Buffalo Bottling Company v N L R B, 409 F 2d 676 (C A 2) cert denied
396 U S 904 are without merit
7 See Pittsburgh P l a t e Glass Co v NLRB, 313 U S 146, 162 (1941),
Rules and Regulations of the Board, Secs. 102 67(f) and 102 69(c)
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director found that the Respondent is
engaged in commerce within the meaning of the Act.
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
Teamsters , Chauffeurs , Warehousemen , Helpers
and Food Processors Local Union No. 657, a/w
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America is a labor
organization within the meaning of Section 2(5) of the
Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about May 15, 1970, and on
June 22, 1970, and at all times thereafter, the Union
has requested the Respondent to bargain collectively
with it as the exclusive collective-bargaining repre-
sentative of all the employees in the above -described
unit. Commencing on or about May 22, 1970, and on
July 3, 1970, 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 collective bargaining of
all employees in said unit.
Accordingly , we find that the Respondent has, since
May 22, 1970, and on July 3, 1970, and at all times
thereafter, refused to bargain collectively with the
Union as the exclusive representative of the employ-
ees in the appropriate 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.
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
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees and
truckdrivers employed by the Employer at its plant
located on Mann Road, Laredo, Texas, excluding
guards, professional employees, technical em-
ployees , office clerical employees , and supervisors
as defined in the Act.
2. The certification
On April 2, 1970, 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 23 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 May 13, 1970, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) 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 operations
described in section 1, 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 com-
merce 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
meaning 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
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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriate 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
ALAMO LUMBER CO. 387
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. Alamo Lumber Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen, Help-
ers and Food Processors Local Union No. 657, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America is a labor
organization within the meaning of Section 2(5) of the
Act.
3. The following employees of the Respondent
constitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees and
truckdrivers employed by the Employer at its plant
located on Mann Road, Laredo, Texas, excluding
guards, professional employees, technical employ-
ees, office clerical employees, and supervisors as
defined in the act.
4. Since May 13, 1970, 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 May 22, 1970, and on
July 3, 1970, 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 had 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
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.
Alamo Lumber Company, its officers , agents , succes-
sors, 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 Teamsters, Chauffeurs, Ware-
housemen, Helpers and Food Processors Local Union
No. 657, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America as the exclusive bargaining representative of
its employees in the following appropriate unit:
All production and maintenance employees and
truckdrivers employed by the Employer at its plant
located on Mann Road, Laredo, Texas, excluding
guards, professional employees, technical employ-
ees, office clerical employees, and supervisors as
defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in 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 Mann Road, Laredo, Texas, plant
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the
Regional Director for Region 23, 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,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 23, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
8 In the event that the Board's 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
388 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 Team-
sters, Chauffeurs, Warehousemen, Helpers and
Food Processors Local Union No. 657, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America 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 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 under-
standing in a signed agreement. The bargaining
unit is:
All production and maintenance employees
and truckdrivers employed by the Employer
at its plant located on Mann Road, Laredo,
Texas, excluding guards, professional em-
ployees, technical employees, office clerical
employees, and supervisors as defined in the
Act.
ALAMO LUMBER
COMPANY
(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 compliance
with its provisions may be directed to the Board's
Office, Dallas-Brazos Building, 4th Floor, 1125
Brazos Street, Houston, Texas 77002, Telephone
713-226-4296.