Buchanan Lumber Birmingham, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 929 (N.L.R.B. 1977)

BUCHANAN LUMBER BIRMINGHAM, INC.
Buchanan Lumber Birmingham, Inc., Aliceville Ve-
neer Division and International Molders & Allied
Workers Union, AFL-CIO-CLC. Case 10-CA-
12440
September 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on November 30, 1976, by
International Molders & Allied Workers Union,
AFL-CIO-CLC, herein called the Union, and duly
served on Buchanan Lumber Birmingham, Inc.,
Aliceville Veneer Division, herein called Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 10,
issued a complaint on December 23, 1976, 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 August 20,
1976, following a Board election in Case 10-RC--
10683 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; I and that,
commencing on or about December 6, 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 represen-
tative, although the Union has requested and is
requesting it to do so. On January 3, 1977, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On April 27, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, to which Respondent filed a response.
Subsequently, on May 12, 1977, the Board issued an
order transferring the proceeding to the Board and a
Official notice is taken of the record in the representation proceeding.
Case 10-RC-10683, 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 1.2d 683 (C.A. 4,
1968); Golden Age Beverage Co. 167 NLRB 151 (1967). enid. 415 F.2d 26
(C.A. 5, 1969); Intert'pe Co. v. Penellb. 269 F.Supp. 573 (D.C.Va.. 1967):
Follettrr Corp., 164 NLRB 378 {1967). enid. 397 F .2d 91 (C.A. 7. 1968). Sec.
9(d) of the NLRA, as amended.
2 To be entitled to a hearing Respondent must raise substantial or
material issues which would warrant setting aside the election. V I.. R B. v.
Modine Manufacturing Co. 500 F.2d 914. 916 (CA. 8. 1974}. enfg 203
232 NLRB No. 141
Notice To Show Cause wby the General Counsel's
Motion for Summary Judgment should not be
granted. Respondent thereafter filed 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
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, response to the
Motion for Summary Judgment, and response to the
Notice To Show Cause Respondent disputes the
validity of the Board's certification in the underlying
representation proceeding and raises two affirmative
defenses. In its first affirmative defense, Respondent
claims that the Acting Regional Director for Region
10 abused his discretion by failing to grant a hearing
on its objections to the election which involve
allegations of improper and unauthorized superviso-
ry participation in the Union's organizing activities.
In its second affirmative defense, Respondent con-
tends that the Union has engaged in a pattern and
practice of racial discrimination against its employ-
ees and, therefore, should be denied representative
status and access to the Board's remedial processes.
Respondent further contends that granting the
General Counsel's motion would be improper since
failure to afford Respondent a hearing on disputed
issues of fact would constitute a denial of due process
of law. The General Counsel submits there are no
disputed issues of fact requiring a hearing in this
proceeding. We agree.2
A review of the record herein reveals that pursuant
to a Decision and Direction of Election in Case 10-
RC-10683 an election was held on June 24, 1976.
The Union prevailed 66 to 40. Respondent filed
timely objections to conduct affecting the results of
the election alleging, in substance, (I) improper and
unauthorized supervisory participation in the
Union's organizing activities, and (2) that the
Union's appeals to racial prejudice interfered with
the election.
Upon investigation, the Acting Regional Director
for Region 10 issued a Supplemental Decision and
NLRB 527 (1973). This qualified nght to a hearing satisfies all statutory and
constitutional requirements of due process. Allied Meat Company 220
NLRB 27 (1975): Amalganmated Clothing Workers of America [Winfield
Manufacruring Company, Inc.] v. N.LR.B., 424 F.2d 818, 828 (C.A.D.C.,
1970). As Respondent here did not satisfy the qualifications for a hearing, in
that it failed to raise substantial or material issues in the underlying
representation case, it has not been denied due process by the Board's
failure to grant a heanng on those issues. CSC Oil Company, 220 NLRB 19
(1975); Big Three Industries. Inc., formerly Big Three Industrial Gas d[
Equipment Co., 214 NLRB 775 (1974): Raub Suppiv Companv, 215 NLRB
830 (1974).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certification of Represeniative on August 20, 1976.
The Acting Regional Director found Respondent's
objections without merit 3 and certified the Union as
the exclusive bargaining representative of the em-
ployees in the appropriate unit. Thereafter, on
August 27, 1976, Respondent filed a request for
review. On October 21, 1976, the Board denied
Respondent's request for review on the grounds that
it raised no substantial issues warranting review.
On November 1, 1976, the Union made a formal
request to bargain. By letter dated December 6, 1976,
Respondent indicated that it would not engage in
collective bargaining until ordered to do so by the
United States Court of Appeals for the Fifth Circuit,
citing its disagreement with the Baord's disposition
of its objections to the election.
It thus appears that by its answer and first
affirmative defense Respondent is attempting to raise
issues which have been considered and resolved in
the underlying representation case. In addition,
Respondent's second affirmative defense relating to
allegations that the Union has engaged in a pattern
and practice of racial discrimination is not appropri-
ately raised at this stage of the Board's proceedings.
Bell & Howell Company, 230 NLRB 420 (1977);
Handy Andy, Inc., 228 NLRB 447 (1977).
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. 4
All issues raised by Respondent in this proceeding,
with the possible exception of the issues raised by
Respondent's second affirmative defense, were or
could have been litigated in the prior representation
proceeding, and 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. In addition,
for the reasons set forth in Bell & Howell Company,
supra, and Handy Andy, supra, the issue of the
Union's discriminatory practices is not properly
before the Board at this time. We therefore find that
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.
On the basis of the entire record, the Board makes
the following:
3 By letter dated August 6, 1976, Respondent requested withdrawal of its
second objection relating to the appeal to racial prejudice and the Acting
Regional Director approved this request. Accordingly, we find that
Respondent effectively waived any nght to raise issues relevant to this
alleged conduct in subsequent Board proceedings.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a Delaware corporation with an office and
place of business located at Aliceville, Alabama,
where it is engaged in the manufacture and sale of
lumber and veneer. Respondent during the past
calendar year, which period is representative of all
times material herein, sold and shipped finished
products valued in excess of $50,000 directly to
customers located outside the State of Alabama.
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 Molders & Allied Workers Union,
AFL-CIO-CLC, 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 Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by the Respondent at its veneer plant and
saw mill located at Aliceville, Alabama, including
lumber inspectors, logging crewmen, and night
watchmen, but excluding office clerical employ-
ees, professional employees, guards and supervi-
sors as'defined in the Act.
2. The certification
On June 24, 1976, 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 10, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on August 20, 1976, and the Union
4 See Pittsburgh Plate Glass Co. v. N.LR.B, 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
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BUCHANAN LUMBER BIRMINGHAM. INC.
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 November 1. 1976, and
at all times thereafter, the Union has requested
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 December 6, 1976, and
continuing at all times thereafter to date, 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 Respondent has, since
December 6, 1976, 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
(I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section
II1, above, occurring in connection with its opera-
tions described in section 1, 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
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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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); Burnett 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. Buchanan Lumber Birmingham, Inc., Alice-
ville Veneer Division, is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Molders & Allied Workers
Union, AFLCIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees
employed by the Respondent at its veneer plant and
saw mill located at Aliceville, Alabama, including
lumber inspectors, logging crewmen, and night
watchmen, 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.
4. Since August 20, 1976, 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 December 6, 1976, 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 the Respondent,
Buchanan Lumber Birmingham, Inc., Aliceville
Veneer Division, Aliceville, Alabama, its officers,
agents, successors, and assigns, shall:
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D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Mold-
ers & Allied Workers Union, AFL-CIO-CLC, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintnance employees em-
ployed by the Respondent at its veneer plant and
saw mill located at Aliceville, Alabama, including
lumber inspectors, logging crewmen, and night
watchmen, but excluding office clerical employ-
ees, professional employees, guards and supervi-
sors 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 veneer plant and sawmill located at
Aliceville, Alabama, copies of the attached notice
marked "Appendix." 5 Copies of said notice, on
forms provided by the Regional Director for Region
10, after being duly signed by Respondent's represen-
tative, 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
I 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."
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 10, in
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 Molders & Allied Workers Union, AFL-
CIO-CLC, 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,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees
employed by Buchanan Lumber Birming-
ham, Inc., Aliceville Veneer Division, at its
veneer plant and saw mill located at Alice-
ville, Alabama, including lumber inspectors,
logging crewmen, and night watchmen, but
excluding office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
BUCHANAN LUMBER
BIRMINGHAM, INC.,
ALICEVILLE VENEER
DIVISION
932