Coastal Lumber Co.

National Labor Relations Board - Board Decisions

Jan 5, 2001

332 N.L.R.B. 1597 (N.L.R.B. 2001)

COASTAL LUMBER CO. 1597
Coastal Lumber Company and United Steelworkers
of America, AFL–CIO, CLC. Case 6–CA–31698
January 5, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
Pursuant to a charge filed on November 6, 2000, the
General Counsel of the National Labor Relations Board
issued a complaint on November 8, 2000, alleging that
the Respondent has violated Section 8(a)(5) and (1) of
the National Labor Relations Act by refusing the Union’s
request to bargain following the Union’s certification in
Case 6–RC–11850. (Official notice is taken of the “re-
cord” in the representation proceeding as defined in the
Board’s Rules and Regulations, Secs. 102.68 and
102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer, with defenses, admitting in
part and denying in part the allegations in the complaint.
On November 27, 2000, the General Counsel filed a
Motion for Summary Judgment. On November 28,
2000, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. The Respondent filed a
response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bar-
gain but attacks the validity of the certification on the
basis of the Board’s unit determination in the representa-
tion proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.1

1 The Respondent’s alternative requests that the complaint be dis-
missed or that it be granted a hearing are therefore denied.
Although the Respondent alleges as improper certain preelection
conduct by the employees it contends are supervisors, it did not file any
objections to the election. Because the Respondent failed to raise this
issue in a timely filed objection, it is foreclosed from presenting it now.
NLRB v. Aaron’s Office Furniture, 825 F.2d 1167, 1170–1173 (7th Cir.
1987).
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Virginia cor-
poration, with its principal office in Weldon, North Caro-
lina, and a place of business in Hazelton, West Virginia,
herein called the Respondent’s facility, has been engaged
in the manufacture of hardwood components for the
cabinet and furniture industry.
During the 12-month period ending October 31, 2000,
the Respondent, in conducting its business operations
described above, derived gross revenues in excess of
$500,000. During the same period, the Respondent pur-
chased and received at its Hazelton, West Virginia facil-
ity goods valued in excess of $50,000 from points out-
side the State of West Virginia and sold and shipped
from its Hazelton, West Virginia facility goods valued in
excess of $50,000 directly to points outside the State of
West Virginia.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held September 7, 2000, the
Union was certified on September 20, 2000, as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:

All full-time and regular part-time production and
maintenance employees employed by the Employer at
its Hazelton, West Virginia, facility; excluding all of-
fice clerical employees, confidential employees and
guards, professional employees and supervisors as de-
fined in the Act.

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.

We also disagree with the Respondent’s assertion that the votes of
the six alleged supervisors would have affected the election results. In
its answer to the complaint, the Respondent acknowledges that there
were 33 votes for and 24 votes against the Union. Assuming arguendo
that the six individuals voted for the Union, their exclusion from the
unit would still have occasioned an election victory for the Union with
a mathematical result of 27 “yes” votes and 24 “no” votes.
Finally, we deny the General Counsel’s request that we strike the
Respondent’s answers to complaint paragraphs 9 through 15. We do
not find these answers to be frivolous or signed with intent to defeat the
purpose of Section 102.21 of the Board’s Rules.
332 NLRB No. 169
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1598
B. Refusal to Bargain
About September 25, 2000, the Union, by letter, re-
quested the Respondent to bargain, and, since about Sep-
tember 25, 2000, the Respondent has failed and refused.2
We find that this refusal constitutes an unlawful refusal
to bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSIONS OF LAW
By refusing on and after September 25, 2000, to bar-
gain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices 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 the law, we shall construe the initial period of the cer-
tification 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).
ORDER
The National Labor Relations Board orders that the
Respondent, Coastal Lumber Company, Hazelton, West
Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with United Steelworkers of
America, AFL–CIO, CLC, as the exclusive bargaining
representative of the employees in the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

2 The Respondent correctly points out in its response that the Gen-
eral Counsel’s Motion alleges a refusal to bargain since February 16,
2000. That clearly is an inadvertent error. The complaint alleges a
demand to bargain on September 25, 2000, and the Respondent admits
that it responded to that demand by letter dated October 17, 2000, indi-
cating that it was engaging in a “technical refusal to bargain” in order
to test the Board’s certification.

2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit on terms and conditions of employment, and if an un-
derstanding is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time production and
maintenance employees employed by the Employer at
its Hazelton, West Virginia, facility; excluding all of-
fice clerical employees, confidential employees and
guards, professional employees and supervisors as de-
fined in the Act.

(b) Within 14 days after service by the Region, post at its
facility in Hazelton, West Virginia, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 6 after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business
or closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since Sep-
tember 25, 2000.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
COASTAL LUMBER CO. 1599
WE WILL NOT refuse to bargain with United Steel-
workers of America, AFL–CIO, CLC, as the exclusive rep-
resentative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise 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 condi-
tions of employment for our employees in the bargaining
unit:

All full-time and regular part-time production and
maintenance employees employed by us at our Hazel-
ton, West Virginia, facility; excluding all office clerical
employees, confidential employees and guards, profes-
sional employees and supervisors as defined in the Act.

COASTAL LUMBER COMPANY