The Cotton Lumber Co.

National Labor Relations Board - Board Decisions

Mar 10, 1971

188 N.L.R.B. 937 (N.L.R.B. 1971)

THE COTTON LUMBER COMPANY 937
The Cotton Lumber Company and Teamsters Union,
Local 413, Affiliated With The International Broth-
erhood Of Teamsters , Chauffeurs, Warehousemen
And Helpers of America. Case 9-CA-5812-2
March 10,1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Upon a charge filed on August 28, 1970, by Team-
sters Union, Local 413, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, and duly served on The Cotton
Lumber Company, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 9, issued
a complaint on October 15, 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 Examiner 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 August 4,
1970, following a Board election in Case 9-RC-8255
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 August 24, 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. Thereafter, on October 30, 1970, the Respon-
dent filed its answer, in which, without admitting,
denying, or explaining the several factual allegations
of the complaint, the Respondent alleged as follows:
Now comes the Respondent, through its repre-
sentative, Harvey B. Rector, answering the com-
plaint in the above entitled matter as follows:
1. The Respondent, The Cotton Lumber Com-
pany, has refused and continues to refuse to bar-
gain with the union in the above entitled matter,
'Official notice is taken of the record in the representation proceeding,
Case 9-RC-8255, as the term "record" is defined in Secs 102 68 and 102
69(f) of the Board ' s Rules and Reulgations , Series 8, as amended See LTV
Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (CA 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
because the Regional Director unilaterally certi-
fied said union by refusing to count certain chal-
lenged ballots. Under these circumstances
Respondent must refuse to bargain in order to
insure a decision of the court.
On January 7, 1971, counsel for the General Coun-
sel filed directly with the Board a Motion for Summa-
ry Judgment, alleging that the Respondent's answer
does not conform to the Board's Rules and Regula-
tions, and, in view of the Respondent's admission that
it has refused to bargain with the Union as the certi-
fied bargaining representative of its employees, re-
quests the Board to grant the Motion for Summary
Judgment. Subsequently, on January 15, 1971, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent did not file a response to
said Notice To Show Cause.
Pursuant to the provisions of Section 3(6) 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
We agree with the General Counsel that the
Respondent's answer neither admits, denies, nor seeks
to explain the facts alleged in the complaint, and,
accordingly, does not conform to the provisions
of Section 102.20 of the Board's Rules and Regula-
tions.' Therefore, we deem the factual allegations of
the complaint to be admitted as true. With respect to
the Respondent's affirmative plea that the certifica-
tion issued to the Union on August 4, 1970, is invalid
by reason of the Regional Director's determinations
on the challenges in Case 9-RC-8255, we find no
merit in this allegation.
The record in Case 9-RC-8255 reflects that upon
the filing of a petition by the Union, the Regional
Director conducted a hearing and thereafter, on Octo-
ber 27, 1969, issued his Decision and Direction of
Election. The Regional Director found, contrary to
the contentions of the Respondent, that a unit of em-
ployees of The Cotton Lumber Company was appro-
priate for purposes of collective bargaining, that
certain individuals were ineligible to participate in the
2 Section 102 20 provides in pertinent part that, "The Respondent shall
specifically admit, deny, or explain each of the facts alleged in the complaint,
unless the Respondent is without knowledge , in which case the Respondent
shall so state , such statement operating as a denial All allegations in the
complaint , if no answer is filed, or any allegation in the complaint not
specifically denied or explained in an answer filed, unless the Respondent
shall state in the answer that he is without knowledge , shall be deemed to be
admitted as true and shall be so found by the Board unless good cause to
the contrary is shown "
188 NLRB No. 143
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election by reason of their status as supervisors, and
he directed that certain other individuals whose eligi-
bility status was contested should be allowed to vote
subject to challenge. The Respondent filed a Request
for Review with the Board, which the Board denied
on November 20, 1969, on grounds that the request
raised no substantial issues warranting review.
The election was conducted on November 25, 1969,
and the tally of ballots served on the parties reflected
that the challenges to the ballots of 13 voters were
determinative of the results of the election. Thereaft-
er, the Union filed timely objections.
After an investigation, the Regional Director is-
sued, and caused to be served on the parties, his Sup-
plemental Decision and Order in which he sustained
the challenges to the ballots of five individuals, over-
ruled the challenges to the ballots of five employees,
and withheld a determination on the remaining three
challenges pending a revised tally of ballots 3 The Re-
spondent filed a Request for Review with the Board
in which it raised the identical issues which it now
advances as a defense in its answer to the complaint
in this unfair labor practice proceeding. On July 14,
1970, the Board denied the Respondent's Request for
Review. On July 30, 1970, the parties were served with
a revised tally of ballots which reflected that of ap-
proximately 44 eligible voters, 41 cast ballots, of
which 19 were cast on behalf of the Union, 14 were
cast against the Union, and 3 ballots were challenged,
but were not determinative of the results of the elec-
tion. Thereafter, on August 4, 1970, the Union was
certified as the collective-bargaining representative in
the unit herein found appropriate.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.4
All issues raised by the Respondent in this proceed-
ing were or could have been raised in the prior repre-
sentation proceeding, and the Respondent has filed
no response and makes no offer to adduce at a hearing
any newly discovered or previously unavailable evi-
dence, nor does it allege that any special circum-
stances 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, ac-
cordingly, grant the Motion for Summary Judgment.
3 The Regional Director also found merit in the Union' s objections to the
election, but vnthheld direction of a second election pending a revised count
and the issuance of a revised tally of ballots.
4 See Pittsburgh Plate Glass Co v. N L.R.B, 313 U.S. 146, 162 ( 1941), Rules
and Regulations of the Board , Secs 102.67(f) and 102 69(c)
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation, is engaged
in the retail and wholesale sale of lumber and lumber
related products at its location in Columbus, Ohio.
During the past 12 months, a representative period,
Respondent purchased and caused to be shipped to its
Columbus, Ohio, location goods valued in excess of
$50,000 directly from places located outside the State
of Ohio. During the same 12-month period Respon-
dent had total sales of products to consumers in ex-
cess of $500,000.
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
Teamsters Union , Local 413, affiliated with the In-
ternational Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , 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 at 3500 E. Main Street , Colum-
bus, Ohio , excluding all office clerical employees,
out of store salesmen , and all guards , profession-
al employees and supervisors as defined in the
Act.
2. The certification
On November 25, 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 9, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on August 4, 1970, and the Union contin-
ues to be such exclusive representative within the
THE COTTON LUMBER COMPANY 939
meaning of Section 9(a) of the Act.
B. The Request To Bargain and
Respondent's Refusal
Commencing on or about August 24, 1970, and at
all times thereafter, the Union has requested the Re-
spondent 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 August 24, 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 August 24, 1970, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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. The Cotton Lumber Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters Union, Local 413, affiliated with The
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All employees at 3500 E. Main Street, Columbus,
Ohio, excluding all office clerical employees, out of
store salesmen , and all guards , professional employ-
ees and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. Since August 4, 1970, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about August 24 , 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
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, The Cot-
ton Lumber Company, 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 Teamsters Union, Local
413, affiliated with the International Brotherhood of
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All employees at 3500 E. Main Street, Colum-
bus, Ohio, excluding all office clerical employees,
out of store salesmen, and all guards, profession-
al employees 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 any under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Columbus, Ohio, operation copies of
the attached notice marked "Appendix."5 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 9, 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 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 Team-
sters Union, Local 413, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, 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 representative 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, embody
such understanding in a signed agreement. The
bargaining unit is:
All employees at 3500 E. Main Street , Colum-
bus, Ohio, excluding all office clerical employees,
out of store salesmen , and all guards, profession-
al employees and supervisors as defined in the
Act.
THE COTTON LUMBER COMPANY
(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, Room 2407. Federal Office Building,
Cincinnati, Ohio 45202, Telephone 513-684-3686.