Muscogee Lumber Co., Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1971

188 N.L.R.B. 869 (N.L.R.B. 1971)

MUSCOGEE LUMBER CO. 869
Muscogee Lumber Co., Inc ., and Warehouse, Laundry,
Janitors, Meat Packers, Factory , Food and Motels
Union, Local 67, affiliated with NCDWA. Case 10-
CA-8661
March 5, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Upon a charge filed on October 22, 1970, by Ware-
house, Laundry, Janitors, Meat Packers, Factory,
Food and Motels Union, Local 67, affiliated with
NCDWA, herein called the Union, and duly served
on Muscogee Lumber Co., Inc., herein called the Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
10, issued a complaint on November 20, 1970, 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 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 or about May 19,
1970, following a Board election in Case 10-RC-7867,
the Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate;' and that,
commencing on or about July 18, 1970, 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 December 3, 1970, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint, and re-
questing that the complaint be dismissed in its
entirety.
On December 16, 1970, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, alleging that the Respondent's
answer to the complaint raises no factual issues war-
ranting an evidentiary hearing, and prays the Board
to grant the Motion for Summary Judgment. Subse-
' Official notice is taken of the record in the representation proceeding,
Case 10-RC-7867, 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),
quently, on January 6, 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. Re-
spondent thereafter filed a response to Notice To
Show Cause.
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 powers
in connection with this case 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 answer to the complaint, Respondent admits
that while a majority of the employees in the appropri-
ate unit voted in favor of the Union at the election in
the underlying representation proceeding on Septem-
ber 3, 1969, and that the Board on May 19, 1970,
issued a certification of representative, it denies the
validity of the certification, and also denies the legal
conclusion that it has violated the Act. All other alle-
gations of the complaint, including those involving
the request and refusal to bargain, are admitted. As
affirmative defenses, and in support of its challenge of
the certification, Respondent in its answer renews the
objections it previously filed in the representation
proceeding; alleges the discovery of new and previ-
ously unavailable evidence with respect to one of its
objections; asserts that the Regional Director, Hear-
ing Officer, and Board failed to give consideration to
the cumulative effect of its objections; and contends
that the Board's review of the Hearing Officer's Re-
port and Recommendation on Objections in the rep-
resentation proceeding was superficial and improper.
In its response to the General Counsel's Motion for
Summary Judgment and the Order to Show Cause,
Respondent, with one exception, acknowledges that
the issues it seeks to raise in this proceeding relate to
the correctness of the Board's disposition of matters
previously litigated during the representation pro-
ceeding. Respondent contends, however, that the
Hearing Officer, in his Report and Recommendations
to the Board dated February 13, 1970, and the Board
thereafter in its Decision and Certification of Repre-
sentative issued on May 19, 1970, misunderstood the
facts, misapplied the law, and improperly overruled
Respondent's objections to the election.
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.
188 NLRB No. 134
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well settled, however, that in the absence of
newly discovered or previously unavailable evidence
or special circumstances, a respondent in a proceed-
ing alleging a violation of Section 8(a)(5) is not enti-
tled to relitigate issues which were or could have been
litigated in a prior representation proceeding? The
only asserted newly discovered or previously una-
vailable evidence offered by Respondent herein con-
sists of an affidavit obtained from an employee on
December 3, 1970. In the affidavit, which is attached
to Respondent's response to the Order To Show
Cause, the employee states that Union Organizer
Hepburn told a group of employees at a meeting
shortly before the election that, if the employees voted
in favor of the Union, it would make money available
to those who had personal need for it, and that such
money would be available at all times-not just dur-
ing the period of the strike. Hepburn also allegedly
stated that employees borrowing such money could
pay the Union back in small amounts over a period
of time completely free of any interest.
The evidence proffered by Respondent, however,
does not fall within the category of either newly dis-
covered or previously unavailable evidence. Not only
was the particular conduct alleged to be objectionable
specifically raised in one of Respondent's objections
to the election, but, in fact, the employee through
whom the evidence is now being offered actually ap-
peared as a witness during the prior hearing on objec-
tions . Although the witness was called by the Union,
and assertedly did not offer the testimony summa-
rized above only because he was not asked about it,
the witness did in fact testify concerning the particu-
lar objection being advanced in this regard, and was
clearly available to Respondent for cross -examination
with respect thereto. Under these circumstances, it
cannot be said that the information now being ad-
vanced constitutes newly discovered or previously un-
available evidence which, with the exercise of reason-
able diligence, could not have been presented during
the representation proceeding.
Apart from the foregoing , Respondent has not
made any claim that it has any other newly discovered
or previously unavailable evidence, nor does it allege
that any special circumstances exist 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 properly
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:
2 See Pittsburgh Plate Glass Co. v. N.LR.B, 313 U.S. 146,162 (1941); Rules
and Regulations of the Board , Secs 102 67(f) and 102 69(c).
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Georgia corporation with its princi-
pal office and place of business located at Columbus,
Georgia, has at all times material herein been engaged
in the manufacture and sale of lumber and lumber
byproducts. During the past calendar year, a repre-
sentative period, Respondent sold and shipped fin-
ished products, valued in excess of $50,000, to
customers located directly outside the State of Geor-
gia.
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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Warehouse , Laundry, Janitors , Meat Packers, Fac-
tory, Food and Motels Union , Local 67, affiliated
with NCDWA, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. 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 employees of the Respondent's Columbus,
Georgia, facility, including sawmill employees,
forklift operators, planer mill employees, labor-
ers and machine operators, but excluding office
clerical employees, professional employees,
guards, and supervisors as defined in the Act.
2. The certification
On September 3, 1969, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 10, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. On September 10, 1969, the
Respondent filed timely objections to election with
the Regional Director, and thereafter, on October 14,
1969, the Regional Director issued a Report on Objec-
tions, Order Directing Hearing, and Notice of Hear-
ing. On November 3, 1969, the Board adopted the
findings and recommendations contained in the Re-
gional Director's report. Following hearing, the Hear-
ing Officer's Report and Recommendations On
MUSCOGEE LUMBER CO. 871
Objections to the Board issued on February 13, 1970,
to which Respondent thereafter filed timely excep-
tions and a brief in support thereof. On May 19, 1970,
the Board issued a Decision and Certification of Rep-
resentative [not published in Board volumes], which
adopted the Hearing Officer's findings and rec-
ommendations. Respondent's subsequent Request for
Reconsideration and Vacation of Board's Decision
and Certification of Representative, filed June 2,
1970, was denied by the Board on June 16, 1970. The
Union was certified as the collective-bargaining rep-
resentative of the employees in said unit on May 19,
1970, 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 July 25, 1970, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about July 28, 1970, 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
bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since July 28, 1970, 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 en-
gaged 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 Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, 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
meaning 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 appro-
priate unit , and, if an understanding is reached, em-
body 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 select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com-
merce 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).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Muscogee Lumber Co., Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Warehouse, Laundry, Janitors, Meat Packers,
Factory, Food and Motels Union, Local 67, affiliated
with NCDWA, is a labor organization within the
meaning of Section 2(5) of the Act.
3. "All employees of the Respondent's Columbus,
Georgia, facility, including sawmill employees, fork-
lift operators, planer mill employees, laborers, and
machine operators, but excluding office clerical em-
ployees, professional employees, guards, and supervi-
sors 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.
4. Since May 19, 1970, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 July 28, 1970, 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 Respon-
dent in the appropriate unit, Respondent has 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, Respondent
has interfered with, restrained, and coerced, and is
interfering 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 engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices affecting commerce within the
meaning 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, Musco-
gee Lumber Co., Inc., 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 condi-
tions of employment, with Warehouse, Laundry, Jani-
tors, Meat Packers, Factory, Food and Motels Union,
Local 67, affiliated with NCDWA, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All employees of the Respondent's Columbus,
Georgia, facility, including sawmill employees,
forklift operators, planer mill employees, labor-
ers, and machine operators, but excluding office
clerical employees, professional employees,
guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the rights guar-
anteed 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 Columbus, Georgia, facility copies of
the attached notice marked "Appendix."3 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 10 after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 In the event that 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
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with Ware-
house, Laundry, Janitors, Meat Packers, Facto-
ry, Food and Motels Union, Local 67, affiliated
with NCDWA, as the exclusive representative of
the employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by
Section 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, em-
body such understanding in a signed agreement.
The bargaining unit is:
All employees of the Respondent's Columbus,
Georgia, facility, including sawmill employees,
forklift operators, planer mill employees, labor-
ers, and machine operators, but excluding office
clerical employees, professional employees,
guards, and supervisors as defined in the Act.
MUSCOKEE LUMBER CO., 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 compli-
ance with its provisions may be directed to the
Board's Office, Peachtree Building, Room 701, 730
Peachtree Street, NE., Atlanta, Georgia 30308, Tel-
ephone 404-526-5760.