Brown Lumber Co.

National Labor Relations Board - Board Decisions

Jun 27, 1963

143 N.L.R.B. 174 (N.L.R.B. 1963)

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown Lumber Co. and United Brotherhood of Carpenters and
Joiners of America , Local 2092, AFL-CIO. Case No. 8-CA-
2910. June 27, 1963
DECISION AND ORDER
On February 12, 1963, Trial Examiner Alba B. Martin issued his
Intermediate Report, finding that the Respondent had engaged in and
was engaging in unfair labor practices and recommending that it
cease and desist therefrom and take affirmative action, as set forth in
the attached Intermediate Report. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Leedom].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner with the following amplification.
On October 9, 1961, an election was held among Respondent's em-
ployees. At the time the ballots were counted, a Board agent voided
one ballot. The tally of ballots showed 11 votes for the Union, 10
against, and the 1 voided ballot. At that time Respondent told the
Union orally that it would not bargain with the Union because of the
failure of the Board agent to count the voided ballot. Thereafter,
the Respondent timely filed a letter with the Regional Director ob-
jecting to the election and requesting a hearing on the validity of the
voided ballot. However, no copy of this objection was filed with the
Union and no proof of service of such filing upon the Union was ever
made to the Regional Director. Thereafter, the Regional Director
issued his report on objections in which he concluded that since
service of a copy of the objections on the Union was not made as
required by Section 102.69 of the Board's Rules and Regulations,
the objection could not be considered on its merits and, therefore,
was overruled.' The Union was, therefore, certified as the collective-
bargaining representative of the employees.
'In pertinent part, Section 102 . 69 states:
upon the conclusion of the election the regional director shall cause to be furnished
to the parties a tally of ballots. Within 5 days after the tally of ballots has been
furnished any party may file with the regional director four copies of objections to
the conduct of the election or conduct affecting the results of the election . . . copies
of such objections shall immediately be served upon each of the other parties by the
party filing them , and a statement of service shall be made.
143 NLRB No. 36.
BROWN LUMBER CO. 175
The Respondent refused to bargain with the Union because it had
not been granted a hearing on its objection to the election. The Trial
Examiner found, in accord with the Regional Director, that no objec-
tions were properly raised, and that the certification of the Union was
a ministerial act performed in accordance with the Board's Rules.
The Trial Examiner refused to allow the matter to be relitigated at
the complaint proceedings, citing well-established precedent.
We agree with the Trial Examiner. We are not unmindful that
a literal interpretation of the Board's Rules and Regulations may
lead to a seemingly harsh result in the facts of a particular case. But
we feel that to abrogate the Rules and Regulations would create far
more serious inequities. Considerations of procedural fairness re-
quire that the opposing party receive timely and complete information
regarding the nature of Respondent's objections, and this requirement
is not satisfied by the oral objection voiced informally at the time of
the counting of the ballots. Also the need for expedition of the
processing of these cases requires that the Board be promptly notified
that service on the opposing party has been accomplished. The Board
has, therefore, always required that its Rules and Regulations be
strictly observed? We therefore find that the Respondent has re-
fused to bargain with the properly certified Union in violation of
Section 8(a) (1) and (5) of the Act.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order.
2 R and R News Company, 92 NLRB 1134 , 1135 ; Freeport Gas Coal Company, 99 NLRB
949, 951.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed September 11, 1962, an amended charge filed October 9,
1962, a complaint issued October 17, 1962, and a timely answer filed on or about
October 22, 1962, this case was heard before Trial Examiner Alba B. Martin at
Canton, Ohio, on December 5, 1962. It arises out of Respondent's admitted refusal
to recognize and bargain with the Union certified by the Board in Case No.
8-RC-4452, hereinafter termed "the representation case." At the conclusion of
the hearing the General Counsel and Respondent presented oral argument, and
thereafter Respondent filed a brief which has been duly considered Respondent's
motion to dismiss made at the end of all evidence, and upon which decision was
reserved, is hereby decided in accordance with the findings and conclusions herein.
Upon such consideration, and upon the entire record in this proceeding and in the
related representation proceeding, Case No. 8-RC-4452, of which I take official
notice, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Ohio corporation with its principal office and place of business
in Massillon, Ohio, is engaged in the business of selling lumber, goods, and other
materials to both individual and commercial accounts. Annually Respondent trans-
fers and delivers to its place of business at Massillon, Ohio, lumber, goods, and
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other materials valued in excess of $50 ,000, which lumber , goods, and other mate-
rials are transported to said place of business directly from States of the United
States other than the State of Ohio . Annually Respondent sells and distributes
lumber, goods , and other materials , the gross value of which exceeds $500,000.
Respondent admitted , and I find, that it is engaged in commerce within the mean-
ing of the Act.
H. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America, Local 2092, AFL-CIO,
the Charging Party, herein called the Union, is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
Pursuant to an agreement for consent election on October 9, 1961 , the Regional
Director conducted an election in the following described unit , which the com-
plaint herein alleged , and the answer admitted , was an appropriate unit: All produc-
tion and maintenance employees , including truckdrivers and firemen , but exclud-
ing office clerical employees , professional employees, guards, and supervisors as
defined in the Act.
The tally of ballots issued immediately following the election stated that 1 void
ballot was cast , 11 votes were cast for the Union , and 10 votes were cast against
the Union.
At the hearing before me the parties stipulated that immediately following the elec-
tion Respondent notified the Union that it would not bargain with the Union under
the circumstances , even if the Union were certified . Respondent 's protest was over
the Board agent's failure to count the voided ballot.
On October 11, 1961 , Respondent wrote the Regional Director that he protested
the election and requested a hearing "to determine the validity of a ballot questioned
and sealed by" the Board agent . This objection to conduct affecting the results of
the election was timely filed with the Regional Director , but no copy of this objec-
tion was ever filed with the Union and no proof of service of such filing upon the
Union was ever made to the Regional Director.
The Board 's Rules and Regulations , Section 102 .69, provide in part:
Upon the conclusion of the election , the regional director shall cause to
be furnished to the parties a tally of ballots . Within 5 days after the tally of
ballots has been furnished , any party may file with the regional director four
copies of objections to the conduct of the election or conduct affecting the
results of the election ... copies of such objections shall immediately be served
upon each of the other parties by the party filing them, and a statement of
service shall be made.
On October 18, 1961, the Regional Director issued his report on objections,
quoting the above provision from the Rules and Regulations , stating that investiga-
tion disclosed that the Employer failed to serve a copy of his objections upon the
Petitioner and adding:
Timely service of objections is a fundamental and controlling consideration
in determining the validity of objections . General Tire Corporation , 112 NLRB
86, 88; Phillips Petroleum Company, 122 NLRB 1351 , 1352. Since service
on the Petitioner was not made , the objections must be overruled on that ground.
The Regional Director concluded his report on objections as follows:
The undersigned concludes that since service of a copy of the objections on
the Petitioner was not made as required by Section 102.69 of the Board's Rules
and Regulations , the undersigned may not consider said objections on their
merits and they are, therefore , hereby overruled . A Certification of Repre-
sentative in favor of the Petitioner will be issued concurrently with the issuance
of this report.
On October 18, 1961 , the Regional Director , on behalf of the Board , issued a
certification of representative , certifying that the Union "has been designated and
selected by a majority of the employees of the above -named Employer in the unit
herein involved as their representative for the purposes of collective-bargaining,
and that , pursuant to Section 9(a) of the Act as amended , the said organization is
the exclusive representative of all the employees in such unit for the purposes of
BROWN LUMBER CO. 177
collective-bargaining with respect to rates of pay, wages, hours of employment, and
other conditions of employment."
After being told by Respondent on the day of the election, October 9, 1961, that
Respondent would not bargain with it even if it were certified, and even though it
was certified on October 18, 1961, the Union did not specifically request to bar-
gain with Respondent until on or about August 17, 1962. At the hearing before
me the parties stipulated that on or about September 5 "Respondent again refused
to bargain with the Union."
The facts set forth above would ordinarily lead to a pro forma finding that Re-
spondent had refused to bargain. Respondent defended its admitted refusal to
bargain with the certified union on the ground that the complaint was barred by the
proviso to Section 10(b) of the Act, the charge not having been filed and served
until September 11, 1962.
In the absence, as here, of unusual circumstances a Board certification must be
honored for a reasonable period, usually 1 year. Ray Brooks v. N.L.R.B., 348
U.S. 96. Here the certification year was from October 18, 1961, to October 18,
1962. Within this year the Union requested to bargain on August 17, 1962, was
refused on September 5, 1962, and filed the original charge herein on September 11,
1962. Thus, the complaint was based upon a charge filed within 6 months after
the occurrence of the unfair labor practice alleged in it; and the complaint was not
barred by the statute of limitations.
Having failed in the representation case to qualify for a hearing on the subject
of the voided ballot, by failing to comply with the Board's rules, Respondent sought,
unsuccessfully, to litigate the matter before me. The law is settled that, absent
newly discovered evidence, the issues raised and determined in the prior representa-
tion proceeding may not be relitigated in the complaint proceeding. Pittsburgh
Plate Glass Company v. N.L.R.B., 313 U.S. 146, 157-158; N.L.R.B. v. American
Steel Buck Corp., 227 F. 2d 927, 929 (C.A. 2); N.L.R.B. v. Botany Worsted Mills,
133 F. 2d 876, 882 (C.A. 3); N.L.R.B. v. West Kentucky Coal Company, 152 F. 2d
198, 200-201 (C.A. 6), cert. denied 328 U.S. 866; Quaker City Life Insurance Com-
pany, 138 NLRB 61. Here the issue of the voided ballot was raised by Respondent
in the representation case and was determined by the Regional Director. That
determination was that Respondent had failed to qualify for a hearing on the merits
by failing to comply with the Board's Rules and Regulations in that it failed to serve
a copy of its objections to the election upon the Union. The Board's rule obviously
contemplated the filing of written objections and the service of a copy of the written
objections upon the other parties to the representation proceeding. This is a
salutary rule, obviously designed to apprise all parties of the precise nature of any
objections to the election in order to give all parties an opportunity to meet and
answer the objections. This rule was not complied with by Respondent's oral re-
marks at the counting of the ballots, which did not in writing apprise the Union and
the Board's Regional Office of the precise nature of Respondent's protest of the elec-
tion. Cf. N.L.R.B. v. Conlon Bros. Mfg. Co., 187 F. 2d 329, 332 (C.A. 7);
N.L.R.B. v. A. J. Tower Company, 329 U.S. 324, 333.
In substance Respondent claimed that in certifying the Union without granting
Respondent a hearing on the voided ballot the Regional Office showed bias and
prejudice against Respondent. It appears to me that where, as here, Respondent
failed to qualify for a hearing on the voided ballot, the Regional Director had no
choice but to certify the Union which had won the election; and that under these
circumstances the Regional Director's action in certifying the Union was a minis-
terial rather than a judicial act. Where the Regional Director had no choice of action
under the Rules,' his performance of his ministerial duty can scarcely be found to
have been motivated by bias and prejudice.
Respondent's answer herein admitted certain paragraphs of the complaint and
made a general denial of those paragraphs alleging the commission of unfair labor
practices. The answer did not plead an affirmative defense. But at the hearing
Respondent sought to introduce an affirmative defense in the nature of testimony
relating to alleged activity of a field examiner and the Regional Director in situa-
1 Section 102.69(b) of the Rules provides in pertinent part that "if no objections are
filed within the time set forth above, . the regional director shall forthwith issue to
the parties a certification of the results of the election, including certification of representa-
tives when appropriate . . . ...
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lions involving two other companies not claimed to be connected with Respondent,
and, presumably, other unions. It was not claimed that the field examiner had
performed any act or had had anything to do with the case at bar or the representa-
tion case. It was claimed that this testimony was offered to prove that this Re-
gional Office was biased and prejudiced against all companies and in favor of all
unions. The offered testimony was rejected. In the first place this was clearly
not the forum for the prosecution of the Regional Office. In the second place the
Regional Office had not been apprised in advance by a pleading of affirmative
defense that any such issue would be raised. In the third place such evidence
was not properly admissible before me upon the issues drawn by the pleadings,
which related to whether Respondent had refused to bargain with the certified
union . In the fourth place where, as here, the Regional Director had performed
the mere ministerial function of certifying a victorious union when no objections
to the election had been properly filed, to permit an attack upon his motives would
be precluded by the line of decisions prohibiting inquiry into the mental processes
of administrative officials in discharging their official functions. See e.g., Morgan
v. United States, 304 U.S. 1, 18; N.L.R.B. v. Donnelly Garment Company, 330
U.S. 219, 229-230; Chicago B & Q Ry. v. Babcock, 204 U.S. 585, 593; Willapoint
Oysters v. Ewing, 174 F. 2d 676, 696 (C.A. 9), cert. denied 338 U.S. 860; N.L.R.B.
v. Air Associates, Inc., 121 F. 2d 586, 590-591 (C.A. 2); Bethlehem Steel Company
v. N.L.R.B., 210 F. 2d 641, 653 (C.A.D.C.), and the cases there cited in footnotes
27 and 28.
I therefore find that the certification is binding upon me and is dispositive of the
proceeding at this stage . Accordingly, I conclude that Respondent 's admitted
refusal to recognize and bargain with the Union on and after September 5, 1962,
constituted an unfair labor practice violative of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE ON COMMERCE
The Respondent's refusal to bargain as set forth in section III, above, occurring
in connection with the operations of the Respondent set forth in section I, above,
has a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in an unfair labor practice within
the meaning of Section 8(a) (5) and (1) of the Act, I will recommend that it cease
and desist therefrom and (adopting the language prescribed by the Supreme Court
in N.L.R.B. v. Express Publishing Co., 312 U.S. 426, 439) from "in any manner
interfering with the efforts of the [Union] to bargain collectively with [Respondent]."
I will further recommend that Respondent take certain affirmative action in order
to effectuate the policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, including the record in the representation case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. All production and maintenance employees at Respondent's Massillon, Ohio,
plant, including truckdrivers and firemen, but excluding office clerical employees,
professional employees, guards, and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining.
3. The Union, since the date of its certification, October 18, 1961, has been and
now is the exclusive representative of all employees in the aforesaid appropriate
unit for purposes of collective bargaining within the meaning of Section 9(a) of
the Act.
4. By refusing, on and since September 5, 1962, to bargain collectively with the
Union as the representative of the above employees, Respondent has engaged in
and is engaging in an unfair labor practice affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
BROWN LUMBER CO. 179
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the Respondent, Brown
Lumber Co , its officers, agents, successors, and assigns, shall:
1 Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning wages, hours, and
other terms and conditions of employment with the United Brotherhood of Car-
penters and Joiners of America, Local 2092, AFL-CIO, as the exclusive representa-
tive of the employees in the following appropriate unit: All production and main-
tenance employees at Respondent's Massillon, Ohio, plant, including truckdrivers
and firemen, but excluding office clerical employees, professional employees, guards,
and supervisors as defined in the Act.
(b) In any manner interfering with the efforts of the above-named Union to
bargain collectively with the above-named Company on behalf of the employees in
the above-described unit .2
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the above-named Union as the ex-
clusive representative of all employees in the appropriate unit, and embody in a
signed agreement any understanding reached.
(b) Post at its plant in Massillon, Ohio, copies of the attached notice marked
"Appendix." 3 Copies of such notice, to be furnished by the Regional Director
for the Eighth Region, shall, after being signed by an authorized representative of the
Respondent, be posted immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(c) Notify the said Regional Director, in writing, within 20 days from the date
of receipt of this Intermediate Report and Recommended Order, what steps the
Respondent has taken to comply herewith?
2 As noted in the section of this report captioned "The Remedy," the language of para-
graph 1(b) of the Recommended Order follows that prescribed by the Supreme Court in
the Empress case, supra, 312 U.S. at 439
1In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice . If the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the notice will be further amended by the substitution of the words
"A Decree of the United States Court of Appeals, Enforcing an Order" for the words "A
Decision and Order."
A If this Recommended Order is adopted by the Board, this provision shall be modified to
read: "Notify the Regional Director for the Eighth Region, In writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with United Brotherhood of
Carpenters and Joiners of America, Local 2092, AFL-CIO. as the exclusive
representative of the employees in the bargaining unit described below.
WE WILL NOT in any manner interfere with the efforts of United Brother-
hood of Carpenters and Joiners of America, Local 2092, AFL-CIO, to bargain
collectively as the exclusive representative of the employees in the bargaining
unit described below.
WE WILL, upon request, bargain with United Brotherhood of Carpenters and
Joiners of America, Local 2092, AFL-CIO, as the exclusive representative of
all the employees in the bargaining unit described below with respect to rates
717-672-64-vol. 143-13
ISO DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of pay, wages, hours of employment, and other terms and conditions of em-
ployment, and, if an understanding is reached, embody such an understanding
in a signed agreement.
The bargaining unit is:
All production and maintenance employees employed by us at our
Massillon, Ohio, plant, including truckdrivers and firemen, but excluding
office clerical employees, professional employees, guards, and supervisors
as defined in the Act.
BROWN LUMBER CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, 44115, Telephone No.
Main 1-4465, if they have any questions concerning this notice or compliance with
its provisions.
Majestic Lamp Mfg. Corp . and Textile Workers Union of Amer-
ica, AFL-CIO and Local Union 686, International Brother-
hood of Electrical Workers, AFL-CIO, Party to the Contract.
Case No. 4-CA-,0668. June, 27, 1963
DECISION AND ORDER
On April 22, 1963, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Respondent and the General Counsel did not
file exceptions to the Intermediate Report, and the Charging Party
filed exceptions only to a portion of the remedy recommended by
the Trial Examiner.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions, and the entire record in this case,
and hereby adopts the findings, conclusions,' and recommendations z
of the Trial Examiner.
i In the absence of exceptions thereto, we adopt the Trial Examiner's unfair labor prac-
tice findings and conclusions pro forma.
2 Although we do not adopt the Trial Examiner's reasons for denying dues reimburse-
ment, particularly that given in the last two sentences of the section entitled "The
Remedy" in the Intermediate Report, we find that In the circumstances of this case re-
imbursement is not appropriate. Cf. Air Master Corporation, et al., 142 NLRB 181
Duralite Co., Inc., 132 NLRB 425.
143 NLRB No. 31.