Westvaco Gauley Woodyard

National Labor Relations Board - Board Decisions

Oct 21, 1976

226 N.L.R.B. 560 (N.L.R.B. 1976)

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westvaco Corporation d/b/a Westvaco Gauley Wood-
yard and United Paperworkers International Union,
AFL-CIO. Case 9-CA-10245
October 21, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
Upon a charge and an amended charge filed on
April 19 and May 26, 1976, respectively, by United
Paperworkers International Union, AFL-CIO, here-
in called the Union, and duly served on Westvaco
Corporation d/b/a Westvaco Gauley Woodyard,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 9, issued a complaint and
notice of hearing on June 4, 1976, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge, com-
plaint, and notice of hearing before an Administra-
tive Law Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on March 2, 1976,
following a Board election in Case 9-RC-11103, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 1 and that, commenc-
ing on or about March 22, 1976, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
On June 14, 1976, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On July 12, 1976, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment and a memorandum in support thereof.
Subsequently, on July 23, 1976, 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 grant-
Official notice is taken of the record in the representation proceeding,
Case 9-RC-11103 , as the term "record" is defined in Secs 102.68 and
102 69(g) of the Board 's Rules and Regulations, Series 8 , as amended See
LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd. 388 F 2d 683 (C A 4,
1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd. 415 F 2d 26
(C.A 5, 1969); Intertype Co v Penello, 269 F.Supp 573 (D.C Va, 1967),
Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C.A 7, 1968), Sec.
9(d) of the NLRA
ed. Respondent thereafter filed a response to Notice
To Show Cause with an attached affidavit.
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 au-
thority 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 its response to
the Notice To Show Cause, Respondent attacks the
validity of the Union's certification because the
Board failed to sustain the challenge to the determi-
native ballot cast by an employee whose name was
not on the voter eligibility list and' because the deter-
mination of the eligibility date which the parties in-
tended requires an evidentiary hearing.
Review of the record herein, including the record
in Case 9-RC-11103, reveals that on July 28, 1975,
the Union and the Respondent entered into a Stipu-
lation for Certification Upon Consent Election,
which was approved on July 30, 1975, by the Acting
Regional Director, providing, inter alia, that the de-
terminative payroll period for voter eligibility pur-
poses would be the period ending July 22, 1975. Pur-
suant to the stipulation, an election was held on
September 10, 1975, in the unit stipulated to be ap-
propriate. The tally of ballots revealed 13 votes for
the Union, 13 votes against, and 1 challenged ballot.
The determinative challenged ballot was cast by an
employee who began work with Respondent on July
16, 1975, and was challenged by the Board agent be-
cause the employee's name was not on the voter eligi-
bility list submitted by Respondent which included
all employees who were paid in the pay period end-
ing July 15, 1975.2 In support of the validity of the
challenged ballot, the Union contended that the eligi-
bility date should be July 22, 1975, as indicated in the
stipulation, or, alternatively, July 29, 1975, which was
the payroll period immediately preceding approval of
the stipulation by the Acting Regional Director on
July 30, 1975.
On November 11, 1975, after investigation, the Re-
gional Director issued his Report on Election, Chal-
lenged Ballot and Recommendations to the Board, in
which he stated it was clear that the parties stipulated
that July 22, 1975, should be used for determining
2 Subsequent to the Stipulation for Certification Upon Consent Election,
the Respondent discovered that there was no payroll period ending July 22,
1975 The list of eligible voters submitted by Respondent was compiled on
the basis of the payroll period ending July 15, 1975, and Respondent con-
tended this eligibility list was correct as the payroll period ending July 15,
1975, was the period immediately preceding the date on which the parties
signed the stipulation
226 NLRB No. 90
WESTVACO GAULEY WOODYARD
the eligibility date of the election. Accordingly, he
concluded that, as the challenged employee was em-
ployed prior to that date, he was eligible to vote in
the election, and recommended that the ballot be
opened and counted. Subsequently, Respondent filed
a timely appeal from the Regional Director's report
and recommendations, contending that the chal-
lenged ballot was not valid as the proper eligibility
date should be the payroll period ending July 15,
1975. Alternatively, Respondent requested a hearing
in order to resolve the alleged substantial and materi-
al issues involved therein. The Board considered Re-
spondent's submission and, on February 11, 1976,
issued its Decision and Direction adopting the Re-
gional Director's findings and recommendations and
directing that the challenged ballot be opened and
counted and that the appropriate certification be is-
sued. Following the counting of the ballot, the re-
vised tally of ballots revealed 14 votes cast for the
Union and 13 votes against. Accordingly, on March
2, 1976, the Union was certified as the exclusive rep-
resentative of an appropriate unit of Respondent's
employees for purposes of collective bargaining.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the de-
cision made in the representation proceeding. We
therefore find that the Respondent has not raised
any issue which is properly litigable 4 in this unfair
labor practice proceeding.' We shall, accordingly,
grant the Motion for Summary Judgment.6
3 See Pittsburgh Plate Glass Co. v. N.L.R B., 313 US. 146, 162 ( 1941),
Rules and Regulations of the Board, Secs 102 67(f) and 102.69(c).
4 In its answer to the complaint, Respondent denies that it has refused to
bargain in good faith with the Union . In this regard, we note that attached
to the Memorandum in Support of Summary Judgment , as Exh A, is a
letter dated March 11, 1976, from the Union to Respondent requesting the
Respondent to supply certain bargaining information and to advise when it
will meet and begin negotiations. Also attached , as Exh. B, is Respondent's
letter of March 22, 1976, which is a response to the Union 's letter of March
11, 1976, stating, in substance, that Respondent saw no need to meet with
the Union or to furnish the requested information as there is no proper basis
for the Board's certification of the Union . As Respondent offers nothing to
controvert the contents of those letters , we deem the complaint allegation
concerning a refusal to bargain to be admitted to be true and we so find,
5 By its direction to open and count the determinative ballot, the Board,
in effect, found that the eligibility question did not raise substantial or
561
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, is engaged
in logging, wood cutting, and wood processing at its
Rupert, West Virginia, facilities. During the past 12
months, a representative period, Respondent had a
direct inflow of goods and material , in interstate
commerce, valued in excess of $50,000, which it pur-
chased and received at its West Virginia facilities di-
rectly from points outside the State of West Virginia.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Paperworkers International Union, 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 con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All heavy equipment operators, woodsmen
and local truck drivers involved in the
Employer's logging department of the Bleach
Board Division in the vicinity of Rupert, West
Virginia, excluding all employees of the
Employer's Rupert, West Virginia, woodyard
and its Rupert, West Virginia mechanical main-
tenance shop, office clerical employees, profes-
sional employees, guards and supervisors as de-
fined in the Act.
material issues warranting a hearing In these circumstances , Respondent's
request for an evidentiary hearing herein is denied as it is established that
no hearing is required where , as here, there are no properly litigable issues
of fact to be resolved Alpers'Jobbing Company, Inc., 222 NLRB 817 (1976).
5 In view of our decision herein, we find it unnecessary to rule on counsel
for the General Counsel's motion to strike portions of Respondent's answer.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The certification
On September 10, 1975, a majority of the employ-
ees of Respondent in said unit, in a secret ballot elec-
tion conducted under the supervision of the Regional
Director for Region 9, 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 March 2, 1976, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain I and Respondent's
Refusal
Commencing on or about March 11, 1976, 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
employees in the above-described unit. Commencing
on or about March 22, 1976, and continuing at all
times thereafter to date, the Respondent has refused,
and continues to refuse, to recognize and bargain
with the Umon as the exclusive representative for
collective bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since March 22, 1976, and at all times thereafter, re-
fused 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 opera-
tions described in section I, above, have a close, inti-
mate, 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 commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
7 As indicated in In 4, supra, attached to counsel for the General
Counsel's Memorandum in Support of Summary Judgment , as Exh A, is an
uncontroverted letter dated March 11, 1976, from the Union to Respondent
requesting certain bargaining information and the expected dates on which
Respondent would be able to meet and begin negotiations Accordingly,
although not alleged in the complaint , we find that the Union requested
Respondent to bargain on or about March 11, 1976
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody 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 se-
lected 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 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965). -
The Board, upon'the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Westvaco Corporation d/b/a Westvaco Gauley
Woodyard is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. United Paperworkers International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All heavy equipment operators, woodsmen and
local truck drivers involved in the Employer' s logging
department of the Bleach Board Division, in the vi-
cinity of Rupert, West Virginia,- excluding all em-
ployees of the Employer's Rupert, West Virginia,
woodyard and its Rupert, West Virginia mechanical
maintenance shop, office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since March 2, 1976, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 March 22, 1976, 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 Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
WESTVACO GAULEY WOODYARD 563
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 mean-
ing 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.
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, West-
vaco Corporation d/b/a Westvaco, Gauley Wood-
yard, Rupert, West Virginia, its fficers, 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 con-
ditions of employment with United Paperworkers In-
ternational Union, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the
following appropriate unit:
All heavy equipment operators, woodsmen
and local truck drivers involved in the
Employer's logging department of the Bleach
Board Division in the vicinity of Rupert, West
Virginia, excluding all employees of the
Employer's Rupert, West 'Virginia, Woodyard
and its Rupert, West Virginia mechanical main-
tenance shop, office clerical employees, profes-
sional employees, guards and supervisors as de-
fined 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 Rupert, West Virginia, facilities cop-
ies of the attached notice marked "Appendix." I Cop-
ies of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by
Respondent's representative, shall be posted by Re-
8 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 "
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 Unit-
ed Paperworkers International Union, AFL-
CIO, as the exclusive representative of the em-
ployees 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, 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 heavy equipment operators, woodsmen
and local truck drivers involved in the
Employer's logging department of the Bleach
Board Division in the vicinity of Rupert, West
Virginia, excluding all employees of the
Employer's Rupert, West Virginia, Woodyard
and its Rupert, West Virginia mechanical
maintenance shop, office clerical employees,
professional employees, guards and supervi-
sors as defined in the Act.
WESTVACO CORPORATION d/b/a WESTVACO
GAULEY WOODYARD