Caravelle Wood Products, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1970

185 N.L.R.B. 800 (N.L.R.B. 1970)

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Caravelle Wood Products , Inc. and Textile Workers
Union of America , AFL-CIO. Case 13-CA-9568
September 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On April 30, 1970, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, granting General Counsel's motion for
summary judgment on the ground that there are
no unresolved issues requiring a hearing and finding
that Respondent had engaged in and was engaging
in certain unfair labor practices within the meaning
of the National Labor Relations Act, as amended.
The Trial Examiner recommended that Respondent
cease and desist from such unfair labor practices
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondent and the Charging Party each filed excep-
tions and a supporting brief, and Respondent filed
a brief in opposition to the exceptions of the Charging
Party.'
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.
The Board has considered the Trial Examiner's
Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Exam-
iner.'
' The Charging Party requested a remedial order requiring reimburse-
ment by Respondent for the amount of the wage increases and the
value of fringe benefits, plus interest, that employees would have received
if Respondent had engaged in collective bargaining Members Fanning
and Jenkins deny said request for reasons explicated in Ex-Cello Corpora-
tion, 185 NLRB No 20 Member Brown disagrees for the reasons set
forth in the dissent in the cited case
' In its exceptions Respondent contends, as it did at the several
stages of the underlying representation matter, that the Regional Director's
unit and eligibility determinations and his disposition of the challenges
and objections in Case 13-RC-11823 are erroneous and contrary to
law, and that the Board erred in failing to grant Respondent's requests
for review Respondent also contends that it is entitled, as a right of
due process, to a hearing on the issues raised by the challenges and
its objections to conduct affecting the results of the election We find
no merit in Respondent's contentions We have reviewed the entire
record in the underlying representation case, and are satisfied that the
Regional Director's disposition of the issues in his decision and direction
of election and supplemental decision and certification of representative
are fully supported by the evidence, and are correct Like the Trial
Examiner, we find no unresolved issues necessitating a hearing, and
accordingly, we shall adopt the Trial Examiner's findings, conclusions,
and recommendations
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the recom-
mended Order of the Trial Examiner, and hereby
orders that Respondent, Caravelle Wood Products,
Inc., South Chicago Heights, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Issue
CHARLES W. SCHNEIDER, Trial Examiner: The case arises
on a motion for summary judgment filed by Counsel for
the General Counsel upon an admitted refusal by the
Respondent to bargain with the certified charging Union,
the Respondent contending that relatives of corporate stock-
holders were improperly excluded from the voting unit,
that the Respondent's objections to the election were improp-
erly overruled without hearing, and that the certification
of the Union is consequently invalid
The Representation Proceeding'
Upon a petition filed under Section 9(c) of the National
Labor Relations Act, (29 US C A. 159(c)) on March 26,
1969, by Textile Workers Union of America , AFL-CIO,
herein called the Union , involving the employees of Caravelle
Wood Products, Inc, the Respondent herein, the Regional
Director of Region 13 of the Board issued a Decision
and Direction of Election on June 10, 1969, in an agreed-
upon appropriate unit described hereinafter.
Under date of June 18, 1969, the Respondent filed with
the Board in Washington , D.C, a request for review of
the Regional Director 's Decision and Direction of Election,
alleging that the Regional Director improperly applied the
Foam Rubber City rule2 in excluding from the voting
unit eight employees who are relatives of the Respondent's
corporate shareholders Thereafter the Board by telegraphic
' Administrative or official notice is taken of the record in the representa-
tion proceeding, Case 13-RC-11823, as the term "record" is defined
in Sec 102 68 and 102 69(t) of the Board's rules (Rules and Regulatons
and Statements of Procedure, National Labor Relations Board, Series
8 as amended) See LTV Electrosystems, Inc, 166 NLRB 938, enfd
388 F 2d 683 (C A 4), cert denied 393 U S 843, Golden Age Beverage
Co., 167 NLRB No 24, enfd 415 F 2d 26 (C A 5), Intertype Co.
v Pennello, 269 FSupp 573 (DC Va), Intertype Co v NLRB,
401 F 2d 41 (C A 4), cert denied 393 U S 1049, Follett Corp., et
at, 164 NLRB 378, enfd 397 F 2d 91 (C A 7), Sec 9(d) of the
National Labor Relations Act This will have the effect of including
in the present record, by reference, the transcript of testimony taken
in the representation case, a matter on which the Respondent expressed
some concern in its statement in opposition to the motion for summary
judgment
' Foam Rubber City 2 of Florida, Inc, 167 NLRB No 81
185 NLRB No. 115
CARAVELLE WOOD PRODUCTS, INC
order denied the Respondent's request, as raising "no sub-
stantial issues warranting review."
On July 18, 1969, an election was held under the supervi-
sion and direction of the Regional Director. The results
of the election showed that of approximately 80 eligible
voters, 35 cast ballots for the Union, 32 cast ballots against
the Union, and 13 ballots were challenged. The challenged
ballots were sufficient in number to affect the results of
the election.
On July 24, 1969, the Respondent filed timely objections
to conduct affecting the results of the election, alleging,
in substance, that the Union engaged in certain described
conduct violative of the Board's prescribed conduct for
elections, and that it engaged in "last minute" campaigning
and propagandizing, contrary to Board requirements, at
or near the voting area Respondent requested that, if
the investigation of the challenged ballots should favor
the certification of the Union, the election should be set
aside and a new election held; or, if the results of the
investigation of the challenged ballots should reveal a majori-
ty against the Union, a certification of results be issued
forthwith. On July 25, 1969, the Union filed its objections
to conduct affecting the election, which were subsequently
withdrawn on October 23, 1969
On November 13, 1969, the Regional Director issued
a supplemental decision on challenged ballots and objections
and certification of representative, in which he stated that,
after reasonable notice to all parties to present relevant
evidence, an investigation had been conducted, and all
evidence submitted by the parties carefully reviewed. In
his decision the Regional Director sustained the challenges
to 12 of the 13 challenged ballots. He did not resolve
the remaining challenged ballot of employee Naomi McMas-
ter for the reason that it could not affect the results of
the election. The Respondent's objections to the election
were overruled in their entirety as presenting no issues
which would affect the results of the election, or warrant
setting aside the election The Regional Director further
certified the Union as the collective-bargaining representa-
tive of the employees in the appropriate unit
On November 24, 1969, Respondent filed with the Board
in Washington, D.C., its request for review of the Regional
Director's supplemental decision on challenged ballots and
objections and certification of representative, which request
the Union, by letter dated November 26, 1969, urged the
Board to deny. In its request the Respondent sought, in
the alternative, (1) reconsideration of the Board's previous
rulings with respect to the eligibility of the relatives of
corporate stockholders, or (2) setting aside of the election
and ordering of a new election, or (3) remanding of the
proceeding to the Regional Director for the taking of testimo-
ny from employee-witnesses and the Board agents in charge
of the election in order to obtain a full and complete
record of what transpired during the balloting. On December
10, 1969, the Board by telegraphic order denied the Employ-
er's request for review of the Regional Director's decision
as raising no substantial issues warranting review.
In the meantime, on December 2, 1969, the Regional
Director issued an amendment to supplemental decision
on challenged ballots and objections and certification of
representative, in which paragraphs 1 and 2, page 5, of
801
his supplemental decision were stricken and others substitut-
ed The effect of the amendment was to state more fully
the evidence, and to expand the discussion, of the Respond-
ent's objection No 1. The Regional Director's conclusion
that the objection lacked merit remained unchanged On
December 12, 1969, Respondent filed with the Board in
Washington, D.C., its request for review of the amendment
of the Regional Director's supplemental decision. On
December 18, 1969, the Board by telegraphic order denied
Respondent's request for review of the Regional Director's
amendment to supplemental decision, as raising no substan-
tial issues warranting review.
The Unfair Labor Practice Case
On January 15, 1970, the Union filed the instant unfair
labor practice charge alleging that since about January
3, 1970, the Respondent had refused and continued to
refuse to bargain with the Union.
On February 13, 1970, the Regional Director issued
a complaint and notice of hearing alleging that Respondent
had committed unfair labor practices in violation of Section
8(a)(1) and (5) of the Act by refusing to meet with, or
to negotiate with the Union as bargaining representative,
though requested to do so since the certification.
On February 25, 1970, Respondent filed its answer to
the complaint in which it admitted most of the material
allegations of the complaint but denied the commission
of unfair labor practices The answer admitted that Respond-
ent refused to meet with or bargain with the Union, but
denied that the Union is the certified representative of
the employees in the appropriate unit, asserting by way
of affirmative defense that the Regional Director erred
by (1) not counting the ballots of the relatives of the
corporate shareholders and the ballot of Naomi McMaster,
and (2) by overruling the Respondent's objections to the
election without opportunity for formal hearing thereon
On March 12, 1970, Counsel for the General Counsel
filed a motion for summary judgment on the ground that
the Respondent's answer did not raise any material issue
requiring heanng On March 13, 1970, I issued an order
to show cause on the motion for summary judgment returna-
ble March 27, 1970 On March 26, 1970, Respondent's
statement in opposition to General Counsel's motion for
summary judgment was received. No other responses have
been received The matter having been considered it is
disposed of as follows.
Ruling on Motion for Summary Judgment
The Respondent opposes the motion for summary judg-
ment on the ground that there are material and substantial
issues which entitle it to heanng as a matter of due process
of law. These contentions relate to the validity of the
certification of the Union, and the underlying determinations
in that respect.
It is established Board policy, in absence of newly discov-
ered or previously unavailable evidence or special circum-
stances, not to permit litigation before a Trial Examiner
in an unfair labor practice case of issues which were or
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could have been litigated in a prior related representation
proceeding.' This policy is applicable even though no formal
hearing on objections, has been provided by the Board.
Such a hearing is not a matter of right unless substantial
and material issues are raised.'
Respondent contends that as a matter of law it is entitled
to a hearing on the unfair labor practice case, stating
as ground therefor that "substantial issue exists as to the
validity of the Regional Director's decision, . ." and
that "the Respondent has a right to appear and to tender
evidence in support of its objections to conduct affecting
the results of the election "
More specifically the Respondent states that (1) the
Regional Director incorrectly excluded corporate relatives
from the voting and (2) that its objections to the election
raised material and substantial issues of fact which were
erroneously overruled without affording opportunity for
hearing Therefore, the Respondent urges, the motion for
summary judgment should be denied and a hearing conduct-
ed. These contentions appear foreclosed by the principles
stated above
With respect to the voter issue the Respondent states
that it has the right to elicit additional testimony, not
available at the time of the representation hearing, concern-
ing the current employee status of the excluded individuals.
Assuming that the additional evidence is relevant and mate-
rial, this is a correct statement of the law. However, the
Respondent does not describe what additional testimony
exists bearing on the status of the excluded individuals.
In these circumstances it cannot be said that there is
available additional evidence likely to affect the validity
of the prior determination '
With respect to its objections to the election, the Respond-
ent asserts that it is entitled to a hearing at some point.
The basis for this position appears to be (1) that the
objections raised substantial and material issues and (2)
that the Respondent has not had an opportunity to litigate
the objection issues, for the reason that the record does
not contain evidence which the Regional Director and
the Board had available in overruling the Respondent's
objections. Specifically, the Respondent points out that
the Regional Director, in finding the objections based on
the Torres incident to be unsubstantiated, apparently relied
in part on ex parte representations as to the facts made
by Board election agents who were present at the time
of the incidents. The substantiality of the objections has
been previously determined and may not be re-examined
3 Krieger-Ragsdale & Co., Inc, 159 NLRB 490, enfd 379 F 2d 517
(C A 7), cert denied 389 U S 1041. See Pittsburgh Plate Glass Co
v N . L . R B, 313 U S 146, 162, NLRB Rules and Regulations, Sec
102 67(1) and 102 69(c)
O K. Van and Storage, Inc, 127 NLRB 1537, enfd 297 F 2d 74
(C A 5) See N L R B v Air Control Products. Inc, 335 F 2d 245,
249 (C A 5). "If there is nothing to hear, then a hearing is a senseless
and useless formality" See also NL R.B. v Bata Shoe Co., 377 F 2d
821, 826 (C A 4), Cert denied 389 U S. 917 "there is no requirement,
constitutional or otherwise , that there be a hearing in the absence of
substantial and material issues crucial to determination of whether NLRB
election results are to be accepted for purposes of certification "
3 See Red-More Corp., d/b/a Disco Fair, et al., 169 NLRB No 63
("motions based on newly discovered evidence will not be granted unless
such evidence will probably change the outcome of the litigation ")
by the Trial Examiner in the absence of new evidence.
And statements received by a Regional Director in an
investigation of objections to an election are not a part
of the representation case record. See the LTVElectrosystems
and Golden Age Beverage cases cited in footnote 1, supra.
All material issues having thus been decided by the
Board, those dispositions are at this point of the proceeding
the law of the case and binding on the Trial Examiner,
though the Respondent is free to request the Board for
reconsiderations, and if the decision is adverse, to seek
review in the Court of Appeals. Respondent's opposition
to the motion for summary judgment and its request for
hearing and taking of evidence must therefore be denied.
General Counsel's motion for summary judgment is granted
On the basis of the record before me I make the following
further:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under and existing by virtue
of the laws of the State of Illinois.
At all times material herein, Respondent has maintained
its principal place of business at 3333 East End Avenue,
South Chicago Heights, Illinois, where it is, and has been
at all times material herein, engaged in the manufacture
of wood products.
During the past calendar year, a representative period,
the Respondent, in the course and conduct of its business
operations, had a gross volume of business in excess of
$1 million and it sold and delivered goods valued in excess
of $50,000, directly to locations in States outside the State
of Illinois.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
Ii. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5)
of the Act
III THE UNFAIR LABOR PRACTICES
All full time and regular part time production and mainte-
nance employees employed by the Respondent at its plant
now located at 3333 East End Avenue, South Chicago
Heights, Illinois, excluding all office clerical employees,
professional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
At all times since November 13, 1969, the Union has
been the certified bargaining representative of the employees
in the appropriate unit.
At all times since December 19, 1969, and continuing
to date, the Union has requested, and is requesting, Respond-
ent to bargain collectively with respect to rates of pay,
CARAVELLE WOOD PRODUCTS, INC
wages, hours of employment, and other terms and conditions
of employment.
Since on or about January 3, 1970, and at all times
thereafter, Respondent, by its officers and agents, did refuse,
and continues to refuse, to bargain collectively with the
Union as the exclusive bargaining representative.
By thus refusing to bargain, Respondent did interfere
with, restrain and coerce, and is interfering with, restraining
and coercing its employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and is thereby
engaging in unfair labor practices within the meaning of
Sections 8(a)(1) and (5) and 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and the
entire record in the case, I recommend that the Board
issue the following.
ORDER
A. For the purpose of determining the duration of the
certification the initial year of certification shall be deemed
to begin on the date the Respondent commences to bargain
in good faith with the Union as the recognized exclusive
bargaining representative in the appropriate unite
B. Caravelle Wood Products , Inc , its officers, agents,
successors , and assigns shall.
I Cease and desist from:
(a) Refusing to bargain collectively with Textile Workers
Union of America , AFL-CIO, as the exclusive
representative of the employees in the following appropriate
bargaining unit:
All full-time and regular part -time production and
maintenance employees employed by the Respondent
at its plant now located at 3333 East End Avenue,
South Chicago Heights, Illinois, excluding all office
clerical employees , professional employees, guards
and supervisors as defined in the Act
(b) Interfering with the efforts of the Union to negotiate
for or represent employees as exclusive collective-
bargaining representative.
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with Textile
Workers, Union of America , AFL-CIO , as the exclusive
representive of the employees in the appropriate unit with
respect to rates of pay , wages, hours of employment, and
other terms and conditions of employment , and embody in
a signed agreement any understanding reached.
(b) Post at its place of business at South Chicago
Heights, Illinois, copies of the notice attached hereto
marked "Appendix ."' Copies of said notice, on forms to be
' The purpose of this provision is to insure that the employees will
be accorded the services of their selected bargaining agent for the period
provided by law See Mar Jac Poultry Co, 136 NLRB 785, Commerce
Co., d/b/a Lamar Hotel, 140 NLRB 226, 229, 328 F 2d 600 (C A
5), cert denied 379 US 817, Burnett Construction Co, 149 NLRB
1419, 1421, 350 F 2d 57 (C A 10)
' In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions , recommendations , and recommended Order
herein shall , as provided in Sec 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings , conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
803
furnished by the Regional Director for Region 13, shall,
after being duly signed by an authorized representative of
the Respondent, be posted by the 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 the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from receipt of this Decision, what
steps the Respondent has 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 "
' In the event these recommendations are adopted by the Board,
this provision shall be modified to read "Notify the Regional Director
for Region 13, in writing, within 10 days from receipt of this Order,
what steps the Respondent has taken to comply herewith "
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 with
Textile Workers Union of America, AFL-CIO, as
the exclusive collective-bargaining representative of all
the following employees
All full time and regular part time production
and maintenance employees at our plant now locat-
ed at 3333 East End Avenue, South Chicago
Heights, Illinois, excluding all office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of the
Union to negotiate for or represent employees as exclu-
sive collective-bargaining representative.
WE WILL bargain collectively with the Union as
the exclusive collective-bargaining representative of the
employees in the appropriate unit , and if an understand-
ing is reached we will sign a contract with the Union.
CARAVELLE WOOD
PRODUCTS, INC.
(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, 881
U.S. Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone 312-
353-7572.