Walled Lake Door Co.

National Labor Relations Board - Board Decisions

Oct 12, 1971

193 N.L.R.B. 677 (N.L.R.B. 1971)

WALLED LAKE DOOR COMPANY 677
Walled Lake Door Company and Southern Council of
Lumber and Plywood Workers , United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO. Case 26-CA-4049
October 12, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on December 17, 1970, by
Southern Council of Lumber and Plywood Workers,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, herein called the Union, and
duly served on Walled Lake Door Company herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Acting
Regional Director for Region 26, issued a complaint
on July 16, 1971, 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
complaint alleges in substance that on June 1, 1971,
following a Board election in Cases 26-RC-3917 and
26-RM-278 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate; i
and that, commencing on or about June 23, 1971, 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 July 28, 1971, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint
and submitting sworn statements to support its
affirmative defense that the Union's certification is
invalid.
On August 16, 1971, 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 issues warranting an
evidentiary hearing, and praying the Board to grant
the motion and enter the appropriate order. Subse-
quently, on August 19, 1971, the Board issued an
i Official notice is taken of the record in the representation proceeding,
Cases 26-RC-3917 and 26-RM-278, 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 Electrosystemr, 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,
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. Respondent thereafter filed a response to
Motion for Summary Judgment and Motion To
Strike as well as a response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
Upon the entire record in this proceeding,2 the
Board makes the following:
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
In its answer to the complaint and in its responses to
the Motion for Summary Judgment and Notice To
Show Cause, the Respondent contends that its
objections to the conduct of the election raised
substantial and material issues warranting a hearing
thereon, and, accordingly, since no such hearing was
held, the certification is invalid and the Union is not
the exclusive bargaining representative of the Respon-
dent's employees in the appropriate unit.
The record in Cases 26-RC-3917 and 26-RM-278
reflects that, pursuant to a Stipulation for Certifica-
tion Upon Consent Election, an election by secret
ballot was conducted on January 19, 1971, among the
employees in the stipulated unit. The tally of ballots
shows that of approximately 54 eligible voters, 50 cast
ballots of which 26 were for, and 22 against, the
Union, one was challenged and one was void.
Thereafter, the Respondent filed timely objections to
conduct affecting the results of the election. The
objections alleged in substance that (1) a letter
distributed to employees by the Union shortly before
the election contained material misrepresentations as
to benefits offered in various unionized plants
including the Respondent's unionized plants and
misrepresentations as to the number of the Respon-
dent's plants which were unionized; (2) the Respon-
dent's speech 24 hours before the election was not an
effective reply to the letter because it created the
impression among some employees that it was the
Respondent, and not the Union, which was deliber-
ately misrepresenting facts; and (3) the Union's
unlawful activity destroyed the laboratory conditions
for holding an election.
After an investigation, the Regional Director issued
enfd 397 F 2d 91 (C.A 7, 1968 ); Sec 9(d) of the NLRA.
2 The Respondent's request for oral argument is hereby denied because
the record herein, including the General Counsel 's Motion for Summary
Judgment and the Respondent's responses, adequately present the issues
and the positions of the parties
193 NLRB No. 99
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and duly served upon the parties his Report on
Objections finding that the Union's letter did not
exceed the bounds of permissible campaign propa-
ganda, notwithstanding the Union's inaccuracy of the
number of the Respondent's unionized plants and
that, in any event, the Respondent had adequately
rebutted the contents of the letter. He further found
no merit in the Respondent's request for a hearing
because of the absence of any conflict in the evidence
disclosed by the investigation. Accordingly, the
Regional Director recommended that the objections
be overruled in their entirety and the Union be
certified.
Thereafter, the Respondent filed exceptions to the
Regional Director's report reiterating its objections
and specifically alleging that the Union's letter
contained material and deliberate misrepresentations
which it was unable to rebut effectively, and which
warranted setting aside the election or the holding of a
hearing. After due consideration, the Board, on June
1, 1971, issued its Decision and Certification of
Representative finding that the exceptions raised no
material issues of fact warranting the holding of a
hearing, specifically adopted the Regional Director's
conclusion that the Union's letter did not exceed the
permissible limits of campaign propaganda, and
certified the Union.
In its responses to the Motion for Summary
Judgment and the Notice To Show Cause, the
Respondent argues that it is not seeking to relitigate
issues raised in its objections because, with only an
investigation and without a hearing, it never had the
opportunity to do so in the first instance. We find no
merit in this argument since both the Regional
Director and the Board have already determined that
the objections raised no material issues warranting a
hearing and absent such issues, it is well established
that parties do not have the right to a hearing on
objections to an election.3 The Respondent also
contends that the six affidavits attached to its answer
dealing with the alleged impact of the Union's letter
and of the Respondent's rebuttal on the voting of the
employees in the election, are newly discovered or
previously unavailable evidence which warrants a
hearing. We do not agree with this contention. Except
for the general allegation that two of the affidavits
were "voluntarily made available to the Respondent
for the first time on July 27, 1971," the Respondent
has not made any other showing to establish the
unavailability of the evidence contained in the
affidavits. Further, it appears that three of the
3 Allied Foods, Inc, 189 NLRB No 79 , and cases cited in In 6
4 In view of our disposition herein , we shall deny the General Counsel's
Motion To Strike from the Respondent's Answer and Affirmative Defense
the affidavits attached thereto
5 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)
affidavits are dated in January 1971, shortly after the
election and prior to the Regional Director's issuance
of his Report on Objections so that the Respondent
was well aware of the existence of the evidence which
it now claims to have been unavailable and which it
could have presented to the Regional Director of the
Board in the underlying representation proceeding.4
In any event, the contents of these affidavits, even if
established in an evidentiary hearing, would not
warrant setting aside the election herein.
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 to
relitigate issues which were or could have been
litigated in a prior representation proceeding.5
All issues raised by the Respondent in this proceed-
ing 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.6 We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times
material herein, a corporation doing business in the
State of Mississippi, with a plant and place of business
located at Tupelo, Mississippi, where it is engaged in
the manufacture of doors.
During the past 12 months, the Respondent, in the
course and conduct of its business operations at
Tupelo, Mississippi, purchased directly from points
located outside the State of Mississippi, goods and
materials valued in excess of $50,000. During the
same period of time, it shipped to points located
outside the State of Mississippi, goods valued in
excess of $50,000.
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
6 Because of the alleged lack of sufficient knowledge or information, the
Respondent's answer denies that the Union is a labor organization within
the meaning of the Act The Union' s status as a labor organization was
determined by the Board in the representation proceeding in Cases
26-RC-2917 and 26-RM-278 and , accordingly, it is not subject for
litigation in the instant unfair labor practice case
WALLED LAKE DOOR COMPANY 679
meaning of Section 2(6) and (7) of the Act, and that it
will effectuate the policies of the Act to assert
jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
Southern Council of Lumber and Plywood Workers
United Brotherhood of Carpenters and Joiners of
America, 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
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 (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
commerce among the several States and tend to lead
to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees at
the Respondent's Tupelo Mississippi, plant, in-
cluding yard employees and truckdrivers, but
excluding office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
2. The certification
On January 19, 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 26, 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 June 1, 1971, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about June 14, 1971, 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 employ-
ees in the above-described unit. Commencing on or
about June 23, 1971, 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
June 23, 1971, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
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
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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed bargaining representative in the appropriate 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. Walled Lake Door Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Southern Council of Lumber and Plywood
Workers , United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees at
the Respondent 's Tupelo, Mississippi , plant including
yard employees and truckdrivers , but excluding office
clerical 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.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Since June 1, 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 January 19, 1971, 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, 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 practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Tupelo, Mississippi, plant and place of
business copies of the attached notice marked
"Appendix." 7 Copies of said notice, on forms
provided by the Regional Director for Region 21,
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 26, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
7 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
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
Walled Lake Door 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 conditions
of employment with Southern Council of Lumber and
Plywood Workers , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO , as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees at
the Respondent 's Tupelo , Mississippi , plant in-
cluding yard employees and truckdrivers, 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 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-
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 South-
ern Council of Lumber and Plywood Workers,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, as the exclusive representa-
tive 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 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 under-
standing in a signed agreement. The bargaining
unit is:
All production and maintenance employees at
the Respondent's Tupelo, Mississippi, plant in-
cluding yard employees and truckdrivers, but
excluding office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
WALLED LAKE DOOR COMPANY 681
WALLED LAKE This notice must remain posted for 60 consecutive
DOOR COMPANY days from the date of posting and must not be altered,
(Employer) defaced, or covered by any other material.
Any questions concerning this notice or compliance
Dated By with its provisions may be directed to the Board's
(Representative) (Title) Office, Federal Office Building, Room 746, 167 North
Main Street, Memphis, Tennessee 38103, Telephone
This is an official notice and must not be defaced by 901-534-3161.
anyone.