Ricks Lumber Co., Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1972

200 N.L.R.B. 211 (N.L.R.B. 1972)

RICKS LUMBER COMPANY 211
Ricks Lumber Company, Inc. and International Long-
shoremen's Association, AFL-CIO. Case
15-CA-4557
November 10, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on July 3, 1972, by Interna-
tional Longshoremen's Association, AFL-CIO, here-
in called the Union, and duly served on or about
July 3, 1972, by Ricks Lumber Company, Inc., herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 15, issued a complaint on
August 8, 1972, 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 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 October 22,
1971, following a Board election in Case
15-RC-4675 the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate; 2
and that, commencing on or about June 5, 1972, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is
requesting it to do so. On August 21, 1972,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On August 24, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 30,
1972, 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. Respon-
dent thereafter filed a response to Notice To Show
Cause, opposing the General Counsel's motion.
Pursuant to the provisions of Section 3(b) of the
i The title of "real Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 Official notice is taken of the record in the representation proceeding,
Case 15-RC-4675 as the term "record" is defined in Sees. 102.68 and
102.69(f) of the Board 's Rules and Regulations, Series 8, as amended. See
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 answer to the complaint and in its opposition
to the Motion for Summary Judgment Respondent
admits, in substance, all the factual averments of the
complaint, including its refusal to recognize and
bargain with the Union. It denies, however, the
validity of the certification because it questions the
Union's majority and because it was not afforded a
hearing on its objections to the election. The
Respondent requests that the General Counsel's
motion be denied or, in the alternative, a hearing be
directed or oral argument be held. We do not agree
with the Respondent's position and deny its requests.
The record in the underlying representation pro-
ceeding, Case 15-RC-4675, indicates that in an
election conducted on August 27, 1971, pursuant to
the Regional Director's Decision and Direction of
Election, 38 votes were cast for, and 21 against, the
Union, and 8 ballots were challenged. Respondent
filed timely objections to conduct affecting the
results of the election in which it alleged that the
Union made misrepresentations regarding the effect
of the "wage freeze," the amount of union dues, and
the financial status of the Respondent, in addition to
threatening economic retaliation, arousing racial
tensions , and implying that the Government favored
the Union. After an investigation, the Regional
Director issued, on October 22, 1971, a Supplemental
Decision and Certification of Representative overrul-
ing Respondent's objections in their entirety and
certifying the Union as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found to be appropriate. Respondent filed
a timely request for review of the Regional Director's
Supplemental Decision and Certification of Repre-
sentative alleging, inter alia, that it was denied a
hearing on the factual issues raised by its objections.
In a telegraphic communication of December 2,
1971, the Board denied the request as raising no
substantial issues warranting review.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
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.
200 NLRB No. 4
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to relitigate issues which were or could have been
litigated in a prior representation proceeding.3
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation 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 properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the Motion for Summary Judgment and deny
its request for oral argument.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Mississippi corporation with a mill
located in Natchez, Mississippi, where it is engaged
in the processing and sale of lumber and forest
products. During the past 12 months Respondent has
shipped from its Natchez mill materials valued in
excess of $50,000 directly to points located outside
the State of Mississippi.
We find, on the basis of the foregoing, that
Respondent 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. THE LABOR ORGANIZATION INVOLVED
International Longshoremen's Association, 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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees
employed by Respondent at its Pine Ridge Road
mill in Natchez, Mississippi; excluding all other
employees, office clerical employees, technical
employees, professional employees, guards and
supervisors as defined in the Act.
2. The certification
On August 27, 1971, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 15 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on October 22, 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 April 17, 1972, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about June 5, 1972, 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since June 5, 1972, 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, Respon-
dent 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 Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, 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 com-
merce.
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
3 See Pittsburgh Plate Glass Co v N.L RB., 313 U.S. 146, 162 ( 1941);
Rules and Regulations of the Board, Sees. 102 67(f) and 102.69(c).
RICKS LUMBER COMPANY 213
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
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Ricks Lumber Company, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Longshoremen's Association,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees
employed by Respondent at its Pine Ridge Road mill
in Natchez, Mississippi; excluding all other employ-
ees, office clerical employees, technical employees,
professional employees, guards and supervisors 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 October 22, 1971, 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 9(a) of
the Act.
5. By refusing on or about June 5, 1972, 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 practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
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
Relations Board hereby orders that Respondent,
Ricks Lumber Company , 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
conditions of employment with International Long-
shoremen's Association , AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees
employed by Respondent at its Pine Ridge Road
mill in Natchez, Mississippi ; excluding all other
employees , office clerical employees , technical
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 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its mill on Pine Ridge Road, Natchez,
Mississippi, copies of the attached notice marked
"Appendix ." 4 Copies of said notice , on forms
provided by the Regional Director for Region 15
after being duly signed by Respondent 's representa-
tive, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 15, in
4 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
214 DECISIONS OF NATIONAL
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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
concerning rates of pay , wages, hours, and other
terms and conditions of employment with Inter-
national Longshoremen's Association, AFL-CIO,
as the exclusive representative 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
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
described below, with respect to rates of pay,
wages , hours, and other terms and conditions of
employment, and, if an understanding is reached,
LABOR RELATIONS BOARD
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employ-
ees employed by Respondent at its Pine
Ridge Road mill in Natchez, Mississippi;
excluding all other employees, office clerical
employees, technical employees, profession-
al employees, guards and supervisors as
defined in the Act.
RICKS LUMBER
COMPANY, 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, Plaza Tower, 1001 Howard Avenue,
Suite 2700, New Orleans, Louisiana 70113, Tele-
phone 504-527-6361.