Lund American, Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1979

241 N.L.R.B. 1140 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lund American, Inc., Shell Lake Fiberglas Division
and International Woodworkers of America, AFL-
CIO. Case 18-CA-6034
April 24, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on October 24, 1978, by Inter-
national Woodworkers of America, AFL-CIO, herein
called the Union, and duly served on Lund Ameri-
can, Inc., Shell Lake Fiberglas Division, herein called
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 18, issued a complaint on November 16, 1978,
against Respondent, alleging that Respondent 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 Na-
tional Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing before
an Administrative Law Judge were duly served on the
parties to this proceeding. On November 22, 1978, an
Order postponing hearing indefinitely issued.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on September 29,
1978, following a Board election in Case 18-RC-
11682, 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 13, 1978, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. On November 22, 1978, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint.
On December 26, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 15,
1979, the Board issued an order transferring the pro-
ceeding 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 brief in opposition to Motion for Sum-
mary Judgment.
' Official notice is taken of the record in the representation proceeding,
Case 18-RC-11682, as the term "record" is defined in Secs. 102.68 and
102.69(S) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Eleclrosyslems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Inlertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
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
In its opposition Respondent concedes that it has
refused to bargain with the Union but urges that its
refusal is justified as a matter of law. Respondent
maintains that the Board erred in sustaining union
objections to the election conducted on March 17,
1978, and in setting aside that election and directing a
second election, without holding a full evidentiary
hearing on the issues raised by such objections. Ac-
cordingly, it is Respondent's view that the second
election conducted on September 22, 1978, was in-
valid under Section 9(c)(3) of the Act.
It is well settled that in the absence of newly dis-
covered 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 litigated in a
prior representation proceeding.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, a Minnesota corporation, main-
tains an office and place of business in Shell Lake,
Wisconsin, where it engages in the manufacture, sale,
and distribution of boats. During the year ending De-
cember 31, 1977, Respondent manufactured, sold,
and distributed at its Shell Lake, Wisconsin, facility,
products valued in excess of $50,000, of which prod-
ucts valued in excess of $50,000 were shipped from
2 See Pittsburgh Plate Glass Co. v. N.L.R.B.. 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sees. 102.67(r) and 102.69(c).
241 NLRB No. 188
1140
LUND AMERICAN, INC.
said facility directly to points outside the State of
Wisconsin. During this same period, Respondent pur-
chased and caused to be transported and delivered at
its Shell Lake, Wisconsin, facility, goods and materi-
als valued in excess of $50,000, of which goods and
materials valued in excess of $50,000 were trans-
ported and delivered to said facility in Shell Lake,
Wisconsin, directly from points outside the State of
Wisconsin.
We find, on the basis of the foregoing, that Respon-
dent 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. 'rlE I ABOR ORGANIZATION INVOLVED
.lternational Woodworkers of America, AFL
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR I.ABOR PRACIICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time production
and maintenance employees, warehouse employ-
ees, developmental employees, truck drivers,
janitors and leadmen employed by the Respon-
dent at its Shell Lake, Wisconsin, facility, ex-
cluding office clerical employees, guards and su-
pervisors as defined in the Act.
2. The certification
On September 22, 1978, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region 18, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on September 29, 1978, and the Union con-
tinues 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 October 10. 1978. and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-hargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about October 13, 1978, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues 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 Respondent has, since
October 13. 1978, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate 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 () of the
Act.
IV. 'ITH EFFE('CT OF THE UNFAIR LABOR PRAC'TICES
UPON COMMERCE
The activities of Respondent set tbrth in section
Ill, above, occurring in connection with its operations
described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce 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 mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962): Commerce Companrv dib/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817; Burnett Con-
struction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
1141
l)t(lISIONS OF NATIONAL LABOR RELATIONS BOARD
CO)NC( SI()NS () LAW
1. Lund American, Inc., Shell Lake Fiberglas Divi-
sion, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Woodworkers of America, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time production
and maintenance employees, warehouse employees,
developmental employees, truck drivers, janitors and
leadmen employed by the Respondent at its Shell
Lake, Wisconsin, facility, excluding office clerical em-
ployees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since September 29, 1978, the above-named la-
bor 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 October 13, 1978, 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 Re-
spondent in the appropriate unit, Respondent has en-
gaged 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 them in Sec-
tion 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Lund
American, Inc., Shell Lake Fiberglas Division, Shell
Lake, Wisconsin, 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 con-
ditions of employment with International Wood-
workers of America, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time production
and maintenance employees, warehouse employ-
ees, developmental employees, truck drivers,
janitors and leadmen employed by the Respon-
dent at its Shell Lake, Wisconsin, facility, ex-
cluding office clerical employees, guards and su-
pervisors as defined in the Act.
(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
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 Shell Lake, Wisconsin, facility copies
of the attached notice marked"Appendix." 3 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 18, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event that this Order is enforced b) 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 read "Posted Pursuant to a Judgment
ol the United States Court of Appeals Enlfrcing an Order of the National
labor Relations Board"
APPENDIX
NoIc'II TO EMPLIOYEES
Pos'IED BY ORD)ER ()F THE
NAII()ONAI. LABOR REL.AIIONS BOARD
An Agency of the United States Government
WE: Wil.. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Woodworkers of America, AFL-CIO,
as the exclusive representative of the employees
in the bargaining unit described below.
WE WUILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
142
LUND AMERICAN. INC.
in the exercise of the rights guaranteed them by
Section 7 of the Act.
We wLuL. 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
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All full-time and regular part-time produc-
tion and maintenance employees, warehouse
employees, developmental employees, truck
drivers. janitors and leadmen employed by the
Respondent at its Shell Lake, Wisconsin, facil-
ity, excluding office clerical employees, guards,
and supervisors as defined in the Act.
LUND AMERICAN, IN(C.. SHEi.I. LAKE FIBER-
GI.AS DIVISION
1143