New England Lumber Division

National Labor Relations Board - Board Decisions

Sep 10, 1980

252 N.L.R.B. 95 (N.L.R.B. 1980)

Paperworkers
#80, AFC-CIO.
1980
#80,
1980,
8(a)(5) 2(6)
I-RC-
appropri-
:ollectively
gaining
quested
allega-
tlons affirm-
-ganization
denies
' Oflicial record
tng. Cwe term Secs.
and 102.69(g) Series
.*e LTV Elecrmrys~emr. Inc., 166 (1967). enfd. F.2d
(4th Golden Bevemgr I51 (1967), cnid.
I , !d Inferlyp Ca Penello, F.Supp.
cl3C Va. Follerr Corp., I64 (1%7), F.U
( 7th 13ir. Sec. 9(d) as
8(a)(l) (5),
8(d), 2(6)
alia:
constitdted
nonsupervisory
250
NEW ENGLAND LUMBER DIVISION 95 i
f
New England Lumber Division of Diamond Interna-
tional Corporation and United In-
ternational Union and its Local
Case 1-CA-17411
September 10,
DECISION AND ORDER
Upon a charge filed on April 2 1, 1980, by United
Paperworkers International Union and its Local
AFL-CIO, herein called the Union, and duly
served on New England Lumber Division of Dia-
mond International Corporation, herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 1, issued a complaint on May 22,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of
Section and (1) and Section and (7) of
the National Labor Relations Act, as amended.
Copies of the charge and complaint and notice of
hearing before an administrative law judge were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 20,
1980, following a Board election in Case
16553, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found
ate1 and that, commencing on or about April 16,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
with the Union as the exclusive bar-
representative, although the Union has re-
and is requesting it to do so. On May 30,
1980, Respondent filed its answer to the complaint
admitting in part, and denying in part, the
in the complaint, and asserting certain
ative defenses.
Respondent admits that it meets the Board's ju-
risdictional standards and that the Union is a labor
o within the meaning of the Act. It
that the Union was properly certified on
March 20, 1980, as the collective-bargaining repre-
sentative of the employees in the unit. It further
denies that the Union is the exclusive bargaining
representative of Respondent's employees in the
described unit, or that it engaged in, or is engaging
in, unfair labor practices affecting commerce
notice is taken of the in the representation proceed-
1-RC-16553. as the "record" is defined in 102.68
of the Board's Rule. and Regulations, 8, as amended.
NLRB 938 388 683
Cir. 1968); Age Co., 167 NLRB 415
26 (5th Cir. 1969); v . 269 573
1967); NLRB 378 cnfd. 397 91
1968); of the NLRA, amended.
NLRB No. 21
within the meaning of Section and Sec-
tion and Section and (7) of the Act.
On June 25, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 30, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice T o Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
thereafter filed a memorandum in opposition to the
General Counsel's Motion for Summary Judgment.
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 and in its memo-
randum, Respondent denies that the Union was
properly certified as the representative of its em-
ployees, and therefore denies that it has any duty
to bargain with the Union. Specifically, Respond-
ent contends that it has never had an opportunity
to litigate the questions raised by its objections to
the election.
Review of the record herein reveals that in Case
1-RC-16553, following an election held on Octo-
ber 25, 1979, pursuant to a Stipulation for Certifica-
tion Upon Consent Election, Respondent on Octo-
ber 30, 1979, filed objections to the election, alleg-
ing, inter (1) that the Union improperly used
President Philip Veileux, a nonmember of the bar-
gaining unit and a nonemployee of Respondent, as
its observer in the election and that the Union Peti-
tioner's use of Veileux as its observer
interference with the laboratory conditions of the
election and created an atmosphere of union domi-
nation and surveillance over the entire procedure;
and (2) that on the day of the election a rumor was
started in Respondent's mill to the effect that a
nearby competitor had announced a general layoff
of one of its shifts, that the rumor was false, and
that the rumor did in fact interfere with the elec-
tion.
On December 3, 1979, Respondent filed a memo-
randum as a supplement to its objections contend-
ing, with respect to Objection 1, that the stipula-
tion required that the observers be
employees; that, although Veileux was an employ-
ee of the Penobscot Division of Diamond Interna-
tional, the Penobscot Division and Respondent's di-
vision are autonomous entities operating within a
large multinational corporation; that Respondent's
division is the Employer within the terms of the
stipulation; that Veileux was not an employee of
Respondent; and that, accordingly, the terms of the
stipulation have been violated, thus requiring a new
election. With respect to Objection 2, Respondent
- -- - - -
rectly
650,000
herein, an
the 2(6)
11.
United Paperworkers International Union and its
that k a l #go, AFL-CIO, is a labor organization
within the meaning of Section ~ ( 5 ) of the ~ ~ t .
III.
consti-
unit.3
Purposes within the meaning of Section 9(b) of the
Act:
8(aX5)
boilerroom
office
discov-
ered cian,
On October 25, 1979, a majority of the prvctice proceeding' Aocordingl~, we gmt the of Respondent in &d unit, in aecret-ballot
On the of the raord' the 1,
FACT
offices
9(a)
Not D s t s ~ o n s .
a hm
t k t be held In o v m l i n g 11, and
Clsc Boud naxmri ly were Issues all times thereafter, the Union has requested
fact law warranting
Sw Artsbugh flare G l m Co. N.LR.B., U.S 'pendent to bargain with it as the ex-
Reguht~ons SCCS 102.67(0 102.69(~). clusive all
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from points outside the State of Maine and
misrepresentation of fact at a time when Respond- annually ships materials valued in excess of
ent could not effectively respond and that the mis- directly to points outside the State of Maine from
representation could reasonably be expected to its Passadumkeag location.
have a significant impact on the election. We find, on the basis of the foregoing, that Re-
On January 11, 1980, the Regional Director spondent is, and has been at all times material
issued his Report on Objections recommending that
contended that the rumor constituted a material
employer engaged in commerce within
Respondent's objections be overruled in their en- meaning of Section and (7) of the Act, and
On January 23, 1980, Respondent filed its excep-
THE LABOR ORGANIZATION INVOLVED tions to the Report on Objections further alleging
that the Regional Director erred in his disposition
of Respondent's objections, again asserting
either a second election should be held or a hearing
directed to determine the factual issues in dispute
and their legal effect on the election. THE UNFAIR LABOR PRACTICES
On March 20, 1980, the Board issued a Decision
and Certification of Representative in which it A. The Representation Proceeding
adopted the Regional Director's findings and rec- 1. The unit
ommendationsZ and certified the Union as the ex-
clusive representative of the employees in the ap- The following employees of Respondent
tute a unit appropriate for collective-bargainingpropriate
I t is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al- All full-time and regular part-time production
leging a violation of Section is not entitled and maintenance employees employed by the
to relitigate issues which were or could have been Employer at its Passadumkeag, Maine, plant
litigated in a prior representation proceeding.' including employees, janitors, and
All issues raised by Respondent in this proceed- receiver-partsmen, but excluding all office
ing were or could have been litigated in the prior clerical employees, professional employees,
representation proceeding, and Respondent does guards, watchmen, shipping clerk, gen-
not offer to adduce at a hearing any newly eral clerk, head boiler operator, chief electri-
or previously unavailable evidence, nor does assistant to the night supervisor, day
it allege that any special circumstances exist herein plainer mill foreman, night plainer mill fore-
which would require the Board to reexamine the man and all supervisors as defined in the Act.
decision made in the representation proceeding. We
therefore find that Respondent has not raised any 2. The certification
issue which is properly litigable in this unfair labor -employ
ees sMotion for Summary Judgment. election conducted under the supervision of the
makes the following: Regional Director for Region designated the
Union as their representative for the purpose of
collective bargaining with Respondent.

The Union was certified as the collective-bar-

FINDINGS OF
I. THE BUSINESS OF RESPONDENT gaining representative of the employees in said unit
Respondent, a Delaware corporation with on March 20, 1980, and the Union continues to be
and facilities in Passadumkeag, Maine, is engaged such exclusive representative within the meaning of
in the manufacture of framing materials. It annually Section of the Act.
purchases materials valued in excess of $50,000 di-
included in bound volumes of Board
In its response to the Notice T o Show Cause. Respondent re-
quested Respondent's objections in Commencing on or about April 1980, ata hearing
I-RC-16553, the found that there no Re-
of or a hearing.
v 313 146, 162 (1941);
Rules and of the Board, collective-bargaining representative of and
Com-
I-efused,
bargain
!;aid
April
exclu-
r,ive
has
8(a)(5)
of
111,
iiltimate, traf-
f!c,
t~:nd
I
I arid
1
meaning 8(a)(5) (1)
i sllall
i a!;
I the
i reached,
a1 yeement.
ap-
I propriate
b!r
fication
Inc.,
d/b/a
Ltrmar (1962),
F.2d 1964),
Bzrrnett
(1964), F.2d
2(6)
#80,
2(5)
offtce
9(b)
9(a)
8(a)(5)
8(a)(l)
2(6)
10(c)
Paper-
#80,
NEW ENGLAND LUMBER DIVISION 97
:he employees in the above-described unit.
nencing on or about April 16, 1980, and continu-
ing at all times thereafter to date, Respondent has
and continues to refuse, to recognize and
with the Union as the exclusive representa-
live for collective bargaining of all employees in
unit.
Accordingly, we find that Respondent has, since
16, 1980, and at all times thereafter, refused
lo bargain collectively with the Union as the
representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
engaged in and is engaging in unfair labor prac-
tices within the meaning of Section and (1)
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
above, occurring in connection with the oper-
ations described in section I, above, have a close,
and substantial relationship to trade,
and commerce among the several States and
to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
is engaging in unfair labor practices within the
I of Section and of the Act, we
order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union I
the exclusive representative of all employees in
appropriate unit, and, if an understanding is
embody such understanding in a signed
I
I In order to insure that the employees in the
unit will be accorded the services of their
i selected bargaining agent for the period provided
law, we shall construe the initial period of certi-
as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company,
136 NLRB 785 (1962); Commerce Company
Hotel, 140 NLRB 226, 229 enfd. 328
600 (5th Cir. cert. denied 379 U.S. 817;
Construction Company, 149 NLRB 14 19,
1421 enfd. 350 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. New England Lumber Division of Diamond
International Corporation is an employer engaged
in commerce within the meaning of Section
and (7) of the Act.
2. United Paperworkers International Union and
its Local AFL-CIO, is a labor organization
within the meaning of Section of the Act.
3. All full-time and regular part-time production
and maintenance employees employed by Respond-
ent at its Passadumkeag, Maine, plant, including
boilerroom employees, janitors, and receiver-parts-
men, but excluding all clerical employees,
professional employees, guards, watchmen, ship-
ping clerk, office general clerk, head boiler opera-
tor, chief electrician, assistant to the night supervi-
sor, day plainer mill foreman, night plainer mill
foreman, and all supervisors as defined in the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
of the Act. , ,
4. Since March 20, 1980, the above-named labor
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
of the Act.
5. By refusing on or about April 16, 1980, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section and (7) of the Act.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
New England Lumber Division of Diamond Inter-
national Corporation, Passadumkeag, Maine, its of-
ficers, 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 United
workers International Union and its Local
AFL-CIO, as the exclusive bargaining representa-
--
TO
receiver-partsmen, all WILL
era1
#80,
repre-
produc-
tion
Passadumkeag, Passadumkeag,
"Appendi~."~
1, ~NTERNATIONAL COR-
PORATION
event enforced of
States Court Appeals, notre
Nat~onal Relat~ons Pursu-
mt Enforcing
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive of its employees in the following appropriate
All full-time and regular part-time production
and maintenance employees employed by the
Employer at its Passadumkeag, Maine, plant
including boilerroom employees, janitors, and
but excluding office
clerical employees, professional employees,
guards, watchmen, shipping clerk, office gen-
clerk, head boiler operator, chief electri-
cian, assistant to the night supervisor, day
plainer mill foreman, night plainer mill fore-
man and all supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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
(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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Maine, plant copies
of the attached notice marked
Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly
signed by Respondent's representative, shall be
posted by 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the that this Order is by a Judgment a United
of the words in the reading "Posted by
Order of the Labor Board" shall read "Posted
to a Judgment of the United States Court of Appeals an
Order of the National Labor Relations Board."
APPENDIX
NOTICE EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with United Paperworkers International Union
and its Local AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions 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
and maintenance employees employed
by us at our Maine, plant in-
cluding boilerroom employees, janitors, and
receiver-partsmen, but excluding all office
clerical employees, professional employees,
guards, watchmen, shipping clerk, office
general clerk, head boiler operator, chief
electrician, assistant to the night supervisor,
day plainer mill foreman, night plainer mill
foreman and all supervisors as defined in the
Act.
NEW ENGLAND LUMBER DIVISION
OF DIAMOND