Hudson Pulp and Paper Corp.

National Labor Relations Board - Board Decisions

Mar 30, 1972

195 N.L.R.B. 1116 (N.L.R.B. 1972)

1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hudson Pulp and Paper Corp. and International
Brotherhood of Pulp , Sulphite and Paper Mill
Workers, AFL-CIO. Case 11-CA-4709
March 30, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on October 17, 1971, by the
International Brotherhood of Pulp, Sulphite and Paper
Mill Workers, AFL-CIO, herein called the Union, and
duly served on Hudson Pulp and Paper Corp, herein
called the Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Director
for Region 11, issued a complaint on October 29, 1971,
against Respondent, alleging that Respondent had en-
gaged 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 Exam-
iner were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on August 16, 1971,
following a Board election in Case 11-RC-3204 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about October 27, 1971, and at all times there-
after, Respondent 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
November 10, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On November 15, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. An Amendment to Motion for
Summary Judgment was filed November 19, 1971.
Subsequently, on November 23, 1971, 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 thereafter filed a response to the Notice To
Show Cause, entitled Respondent's Opposition to Gen-
eral Counsel's Motion to the Board for Summary Judg-
' Official notice is taken of the record in the representation proceeding,
Case 11-RC-3204, 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.
ment. On December 15, 1971, the Union filed a Motion
in Support of Summary Judgment in which it also
sought "make-whole" compensatory damages.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding 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 Respondent's answer denies that the Union has
been the exclusive representative of a majority of the
employees in the unit for the purposes of collective
bargaining and that it has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) of
the Act. In its response, the Respondent argues that:
1. the certification of the Union is invalid because the
Board has not applied consistently or properly its own
doctrines concerning cases of alleged community inter-
ference;
2. new factual matter that came to light at the end
of a hearing on one of the Respondent's election objec-
tions has never been considered or discussed, and re-
quires an evidentiary hearing;
3. this newly disclosed factual matter requires a re-
consideration of two of the Respondent's objections to
the election.
4. the Respondent has received no "reasoned opinion
or articulated decision" that considers the points raised
by it; and
5. the absence of Board precedent concerning elec-
tioneering techniques involving the circulation of false
rumors that local officials were bribing employees to
vote against the Union, raises substantial questions of
Board law and policy and requires denial of the Motion
for Summary Judgment.
In support of his motion, counsel for the General
Counsel contends that there is no factual matter in
dispute which requires a hearing, that the issues are
legal in nature, and that the answer raises no issues that
were not disposed of in the representation proceeding.
We agree.
The record in the representation Case 11-RC-3204
shows that in a secret ballot election held pursuant to
the Regional Director's Decision and Direction of
Election, 44 votes were cast for the Union, 40 against,
and 2 were challenged. On December 24, 1970, the
Respondent filed timely objections contending in sub-
stance that (1) union agents or representatives had at-
tempted to coerce employees into supporting the Union
by threatening them with serious physical injury and
loss of jobs, (2) members of the Union inplant commit-
tee had circulated a false story that county officials
195 NLRB No. 176
HUDSON PULP AND PAPER CORP. 1117
were buying votes against the Union, (3) the Union had
circulated false and misleading information concerning
wages paid by the Respondent, and (4) a story appear-
ing in a local newspaper the day before the election was
detrimental to a proper election. After an investigation,
the Regional Director issued a Supplemental Decision
and Direction on February 25, 1971, in which he over-
ruled all but one of the Respondent's objections and
directed a hearing on the objection concerning rumors
of vote bribery.
Subsequently, the Respondent filed exceptions to the
Regional Director's decision with the Board, arguing
that a new election should have been granted or a hear-
ing ordered, and reiterating the specific issues raised in
its objections. The Union also filed exceptions, arguing
that there was no need for a hearing since only the
Union could be hurt by the alleged bribery. By order
of April 16, 1971, the Board denied the exceptions,
which it treated as requests for review, as raising no
substantial issues warranting review.
A hearing then was conducted on the alleged bribery
issue. In his report of July 21, the Hearing Officer found
that rumors had circulated throughout the plant to the
effect that bribes had been offered by a person who may
have been the local sheriff to two employees to vote
against the Union. However, the Hearing Officer con-
cluded that the rumors lacked the materiality required
to destroy the laboratory conditions of the election,
especially since the Respondent had time to reply to the
rumor but had chosen not to do so. Accordingly, he
recommended overruling the objection and certifying
the Union.
On August 3, the Respondent filed with the Regional
Director Exceptions to the Hearing Officer's Report
and Recommendations on Objections. In general, the
Respondent objected that (1) the report ignored the
weight of evidence which showed union agents know-
ingly had spread misrepresentations that employees
had been bribed to vote against the Union, and (2) the
law applicable to the materiality of the rumor and in-
terference with laboratory conditions was applied im-
properly. On August 16, the Acting Regional Director
issued a Second Supplemental Decision and Certifica-
tion of Representative adopting the Hearing Officer's
findings, conclusions, and recommendations, since the
exceptions did not raise any substantial issues warrant-
ing reversal of the Hearing Officer. Accordingly, the
Acting Regional Director certified the Union as the
exclusive bargaining representative of the unit em-
ployees.
The Respondent filed a request for review of the
Second Supplemental Decision on September 2, argu-
ing that substantial questions of law and policy were
raised by the absence of, and departure from, Board
precedent concerning union electioneering techniques
which involved rumors of vote bribery, that the deci-
sion was clearly erroneous on factual grounds, and that
the Acting Regional Director had departed from Board
precedent. On September 20, the Board denied this
request as raising no substantial issues warranting re-
view. The Respondent then filed a Motion for Recon-
sideration of the Order arguing that material and
prejudicial error had been committed concerning both
factual and legal issues. The Board denied the motion
as lacking in merit on September 23.
As a review of the record in the underlying represen-
tation case reveals, the factual and legal issues raised by
the Respondent in its answer to the complaint and in
its response to the Notice To Show cause already have
been considered and were decided in that proceeding.2
Thus, they may not be litigated here. It is well settled
that in the absence of newly discovered or previously
unavailable evidence or special circumstances a re-
spondent in a proceeding alleging a violation of Section
8(a)(5) is not entitled to relitigate issues which were or
could have been litigated in a prior representation pro-
ceeding.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation 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 prop-
erly 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:
Respondent again urges that the election should have been set aside
because of rumors that an employee , Barbara Harrington, had been offered
a $15 bribe by someone, possibly the sheriff of Rockingham County, to vote
"no" in the election . Respondent also seeks to have the hearing reopened
so it can show that another employee, Mead, who opposed the Union, was
rumored to have gotten his house or trailer wired free of charge . Respondent
has failed to demonstrate that it could not have pursued the Mead matter
at the objections hearing . In any event , these ambiguous rumors of alleged
bribes of one or two employees , purported to have been made by persons
in the community not connected with the election , do not seem to have been
of sufficient substance or materiality to warrant setting aside the election,
and we affirm our prior refusal to grant review of the Regional Director's
Second Supplemental Decision certifying the Union.
SeePittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S 146, 162 (1941);
Rules and Regulations of the Board, Secs . 102.67 (1) and 102.69(c)
In its answer the Respondent denies that the Union requested it to
bargain and that it refused . On November 19, 1971, counsel for the General
Counsel filed an Amendment to Motion for Summary Judgment which
added to the original motion as exhibits , a copy of a letter dated September
27, 1971, from the Union' s International representative to the Respondent's
plant manager , requesting to meet and enter into negotiations for an agree-
ment and a copy of a letter in reply dated October 26 , 1971, informing the
Union of the Respondent 's intention to challenge the certification through
judicial remedy . As the Respondent does not allude to or attempt to con-
trovert those letters in its response , they are accepted as admitted.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Maine corporation engaged in
the manufacture of multiwall bags at its plant in Ham-
let, North Carolina . During the past 12 months, a rep-
resentative period, the Respondent sold and shipped
goods valued in excess of $50,000 to parts outside the
State of North Carolina , and purchased for use in its
plant goods valued in excess of $50,000 from points
outside the State of North Carolina.
We find, on the basis of the foregoing , that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Pulp , Sulphite and Pa-
per Mill Workers , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective -bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees at
the Employer's Hamlet, North Carolina , plant,
excluding office clerical employees , professional
and technical employees , sales service employees,
guards and supervisors as defined in the Act.
2. The certification
On December 17, 1970, a majority of the employees
of Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional Direc-
tor for Region 11, designated the Union as their repre-
sentative for the purpose of collective bargaining with
the Respondent . The Union was certified as the collec-
tive-bargaining representative of the employees in said
unit on August 16, 1971 , and the Union continues to
be such exclusive representative within the meaning of
Section 9(a) of the Act.
B. The Request To Bargain and
Respondent's Refusal
Commencing on or about September 27, 1971, and
at all times thereafter , the Union has requested the
Respondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above -described unit . Commencing on or
about October 27, 1'971 , 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 bar-
gaining of all employees in said unit.
Accordingly , we find that the Respondent has, since
October 27 , 1971, and at all times thereafter , refused to
bargain collectively with the Union as the exclusive
representative of the employees 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.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the 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 commerce 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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached , embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate 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 begin-
ning 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 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421, enfd . 350 F.2d 57 (C.A. 10).5
The Board , upon the basis of the foregoing facts and
the entire record , makes the following:
' The Union's request for a "make -whole" remedy is denied for the
reasons set forth in Ex-Cell-O Corporation, 185 NLRB No 20.
HUDSON PULP AND PAPER CORP 1119
CONCLUSIONS OF LAW
1. Hudson Pulp and Paper Corp. is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Brotherhood of Pulp, Sulphite and
Paper Mill Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of the
Employer's Hamlet, North Carolina, plant, excluding
office clericals employees, professional and technical
employees, sales service employees, guards and super-
visors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since August 16, 1971, the above-named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about October 27, 1971, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respond-
ent 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, Responuent
has interfered with, restrained, and coerced, and is in-
terfering 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 engag-
ing 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 meaning
of Section 2(6) and (7) of the Act.
ORDER
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect to rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Post at its Hamlet, North Carolina, plant copies
of the attached notice marked "Appendix."6 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 11, after being duly signed by Respond-
ent's representative, shall be posted by Respondent im-
mediately 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 Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 In the event 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
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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Hudson Pulp
and Paper Corp., its officers, agents, successors, 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 International Brotherhood of
Pulp, Sulphite and Paper Mill Workers, AFL&CIO, as
the exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees at the
Employer's Hamlet, North Carolina, plant, ex-
cluding office clerical employees, professional and
technical employees, sales service employees,
guards and supervisors as defined in the Act.
WE WILL NOT refuse to bargain collectively
concerning rates of pay , wages , hours , and other
terms and conditions of employment with Interna-
tional Brotherhood of Pulp, Sulphite and Paper
Mill Workers , AFL-CIO, as the exclusive repre-
sentative 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 Sec-
tion 7 of the Act.
WE WILL, upon request , bargain with the
above-named Union , as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below , with respect to rates of pay, wages,
hours , and other terms and conditions of employ-
ment, and, if an understanding is reached , embody
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees
at the Employer's Hamlet, North Carolina,
plant, excluding office clerical employees,
professional and technical employees, sales
service employees, guards and supervisors as
defined in the Act.
HUDSON PULP &
PAPER CORP.
(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, 1624 Wachovia Building, 301 North Main
Street, Winston-Salem , North Carolina 27101, Tele-
phone 919-723-9211, Extension 360.