Monark Boat Company

National Labor Relations Board - Board Decisions

Mar 4, 1982

260 N.L.R.B. 615 (N.L.R.B. 1982)

MONARK BOAT COMPANY6
Monark Boat Company and UBC, Southern Council
of Industrial Workers, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO.
Case 26-CA-8921
March 4, 1982
DECISION AND ORDER
BY M MBF.RS FANNING,, JENKINS, AND
ZIMMEI-RMAN
Upon a charge filed on March 2, 1981, by UBC,
Southern Council of Industrial Workers, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, herein called the Union, and duly
served on Monark Boat Company, herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 26, issued a complaint on March 18,
1981, 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 and 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 December
23, 1980, following a Board election in Case 26-
RC-6249,' the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;
and that, commencing on or about December 31,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On March 27,
1981, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On June 19, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 25, 1981,
the Board issued an order transferring the proceed-
ing 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 brief in opposition to the Motion
I Official notice is taken of the record in the representation proceed-
ing. Case 26-RC-6249, 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 Electrovstems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir 1969); Interrype Co v. Penello, 269 F.Supp. 573
(D.CVa. 1967); Folleni Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91
(7th Cir. 1968); Sec 9(d) of the NLRA, as amended.
260 NLRB No. 74
for Summary Judgment and a Counter-Motion for
Summary Judgment.
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, Respondent
denies several material allegations in the complaint
and asserts as affirmative defenses 16 separate al-
leged procedural infirmities in the complaint. In ad-
dition, in its brief in opposition to the General
Counsel's Motion for Summary Judgment, Re-
spondent contends that the motion should not be
granted because, inter alia: (1) Respondent is enti-
tled to a hearing to present evidence material to
the issues decided in the underlying representation
proceeding; (2) the Acting Regional Director failed
to forward the entire record to the Board when
Respondent made its request for review, omitting
Respondent's attachment to its objections as well as
the affidavits of employees taken by Board agents
in the underlying representation matter; (3) affida-
vits of witnesses to a hearing held in Case 26-CA-
8688, et al., constitute newly discovered evidence
relevant to Respondent's objections in Case 26-
RC-6249; (4) violence by union adherents and offi-
cials require that a hearing be held to determine
whether the certification should be revoked; and
(5) Respondent's correspondence with the Union
and the Federal Mediation and Conciliation Serv-
ice demonstrates that it is not refusing to bargain.
Our review of the record herein, including the
record in Case 26-RC-6249, discloses that pursuant
to a Decision and Direction of Election, an elec-
tion was conducted on October 7, 1981. The tally
of ballots furnished the parties after the election
showed 77 votes cast for and 57 against the Union;
there were 18 challenged ballots and 1 void ballot.
Thereafter, Respondent timely filed objections to
conduct affecting the election and, on December
23, 1980, after a complete investigation, the Acting
Regional Director for Region 26 issued a Supple-
mental Decision and Certification of Representa-
tive in which he overruled all of Respondent's ob-
jections and certified the Union.
By letter dated December 31, 1980, the Union
requested Respondent to meet with it for the pur-
pose of collective bargaining. Respondent did not
respond to this request. On January 16, 1981, Re-
spondent timely filed a request for review of the
Acting Regional Director's Supplemental Decision
and Certification of Representative in which it es-
615
I)E1CISIO)NS (): NATIONAL I.AIBOR RELAT IONS BOARD
sentially reiterated the allegations set forth in the
objections. In a March 5, 1981, letter responding to
the Region's request for a statement of position
with respect to the changes made herein, Respond-
ent stated that it was not required to bargain with
the Union until its request for review, then pending
before the Board, had been denied. On April 27,
1981, the Board issued an order denying Respond-
ent's request for review of the Acting Regional Di-
rector's Supplemental Decision and Certification of
Representative.
Based on the record and well-settled Board pre-
cedent, we find no merit to any of the numerous
contentions made by Respondent in its answer to
the complaint and in its opposition to the Motion
for Summary Judgment. We find that the General
Counsel has correctly appraised Respondent's con-
tentions generally as an attempt to relitigate issues
already determined in the underlying representa-
tion case and that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding.
As noted above, Respondent has since December
31, 1980, refused the Union's request to meet with
it for the purpose of collective bargaining. We find
no merit in Respondent's contention that it had no
obligation to bargain pending disposition of its re-
quest for review of the Acting Regional Director's
supplemental decision. A pending request for
review stays neither a certification nor the resulting
obligation to bargain.2 In addition, we find no issue
raised by Respondent's denial of knowledge of the
Union's December 31, 1980, letter requesting bar-
gaining. Attached as exhibits to the General Coun-
sel's Motion for Summary Judgment are copies of
the Union's letter and a receipt of service by certi-
fied mail. These exhibits stand uncontroverted and
suffice to establish Respondent's receipt of the
Union's request. Furthermore, we reject Respond-
ent's contention that copies of correspondence at-
tached to its opposition to the Motion for Sum-
mary Judgment establish that Respondent has not
refused to bargain as alleged. Viewed in a light
most favorable to Respondent, the correspondence
manifests only Respondent's willingness to negoti-
ate a settlement of unfair labor practice charges
filed against it by the Union. There is no evidence
of collective bargaining concerning wages and
working conditions of unit employees represented
by the Union.
We also find that Respondent has failed to dem-
onstrate the need for a hearing. It is well settled
that a party is not entitled to a hearing in either a
2 See National l.abor Relations Board Rules and Regulations, Series 8,
as amended, Sec 102 67(b)
representation 3 or unfair labor practice 4 proceed-
ing, absent a showing of substantial and material
issues. In denying Respondent's request for review,
the Board affirmed the Acting Regional Director's
finding that there was no substantial or material
issue warranting a hearing in the underlying repre-
sentation case. Further, the evidence which Re-
spondent offers in its opposition to the Motion for
Summary Judgment does not now raise any sub-
stantial or material issue. Respondent has failed to
show that the evidence contained in affidavits ob-
tained in a later unfair labor practice proceeding
was previously unavailable and, therefore, it is not
entitled to have the record reopened.5 Respond-
ent's offer of proof of alleged post-election inci-
dents of violence likewise does not raise a substan-
tial or material issue concerning the validity of the
Union's certification.
Finally, we find no merit to Respondent's con-
tention that the Motion for Summary Judgment
should be denied because subsequent to its post-
election request for review the Acting Regional
Director did not transmit to the Board both Re-
spondent's attachments to its objections and the af-
fidavits of employees given to Board agents. Re-
spondent admits that it transmitted its objections
and attachments to the Board as part of its request
for review. In addition, we find no error in the
Acting Regional Director's failure to transmit the
affidavits received by Board agents to the Board. It
is no abuse of the Board's discretion to deny a re-
quest for review without consideration of the affi-
davits obtained by the Regional Director in his in-
vestigation of objections where it appears from the
Regional Director's decision and the request for
review, as it does here, that no substantial and ma-
terial issues of fact exist. Johnson Rents, Inc., 253
NLRB 690, 691 (1980).6 Moreover, this is in con-
formity with Section 102.69(g)(ii) of the National
Labor Relations Board Rules and Regulations,
Series 8, as amended September 9, 1981.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 7
'.ational Beryllia Corporation, 222 NLRB 1289 (1976).
4 Ilandy lHardware Wholesale, 222 NLRB 373. 374 (1976), enfd. 542
1 .2d 935 (5th Cir. 1976), and cases cited therein.
5 National Labor Relations Board Rules and Regulations, Series 8, as
amended, Sec. 102.6 5(e)(1 )
6 See also, e.g., Revco D.S. Inc.. and/or White Crocr Stores, Inc., No 14
v. N .. R.H, 653 F 2d 264 (6th Cir. 1981).
7 See Pittlhurgh Plate Glasv Co r NL.RBR., 313 US 146, 162 (1941);
Rules and Regulations of the Board, Sees 102 67(f) and 102 69(c)
616
MONARK BOAT COMPANY
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and 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
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment. 8
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. 'IHI BUSINESS OF RESPONI)INNT
Respondent, a corporation with an office and
place of business in Monticello, Arkansas, is en-
gaged in the manufacture of boats. During the 12
months preceding issuance of the complaint herein,
Respondent, in the course and conduct of its busi-
ness operations, sold and shipped from its Monti-
cello, Arkansas, facility products, goods, and mate-
rials valued in excess of $50,000 directly to points
outside the State of Arkansas. During the same
representative period, Respondent, in the course
and conduct of its business operations, purchased
and received at its Monticello, Arkansas. facility
products, goods, and materials valued in excess of
$50,000 directly from points outside the State of
Arkansas.
We find, on the basis of the foregoing, that Re-
spondent 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 lIABOR ORGANIZATION INVOI.VEI)
UBC, Southern Council of Industrial 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.
111. THE UNFAIR I.ABOR PRACTICES
A. The Representation Proceeding
i. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
s We therefore deny Respondent's Cross-Motion for Summars Judg-
ment and its motions that the complaint hbe dismissed and the Llniolrl
'
s cr-
tification revoked
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees,
yard crew employees, supply area employees
and truck drivers employed by the Respondent
at its three boat facilities located on Patton
Street and Conley Street in Monticello, Arkan-
sas, excluding all supervisors, office clericals
and guards as defined in the Act.
2. The certification
On October 7, 1980, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 26, designated the
Union as their representative for the purpose of
collective bargaining vwith Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on December 23, 1980. and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
13. 1he Request 7o Bargain and Respondents
Refusal
Commencing on or about December 31. 1980,
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 31, 1980, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
December 31. 1980, 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, Respond-
ent 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 LI:l'CT Ot IHIl UNIAIR lABOR
PRACI'ICI-S UPON CONIMM RCI'
The activities of Monark Boat Company 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 commerce and the free flow of
commerce.
617
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCI.USIONS OF LAW
1. Monark Boat Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. UBC, Southern Council of Industrial 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,
yard crew employees, supply area employees and
truck drivers employed by Respondent at its three
boat facilities located on Patton Street and Conley
Street in Monticello, Arkansas, excluding all super-
visors, office clericals and guards as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since December 23, 1980, 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 31, 1980,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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 Re-
lations Board hereby orders that the Respondent,
Monark Boat Company, Monticello, Arkansas, 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 UBC, Southern
Council of Industrial Workers, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees,
yard crew employees, supply area employees
and truck drivers employed by the Respondent
at its three boat facilities located on Patton
Street and Conley Street in Monticello, Arkan-
sas, excluding all supervisors, office clericals
and guards as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its three Patton Street and Conley
Street boat facilities in Monticello, Arkansas,
copies of the attached notice marked "Appendix." 9
9 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 Hoard" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National lIabor Relations Board "
618
MONARK BOAT COMPANY
Copies of said notice, on forms provided by the
Regional Director for Region 26, after being duly
signed by Respondent's representative, 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 Re-
spondent 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 here-
with.
APPENDIX
NOTICE TO EMPI OYEES
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 UBC, Southern Council of Industrial
Workers, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, as the ex-
clusive representative of the employees in the
bargaining unit described below.
WE WIL.L NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employees,
yard crew employees, supply area employ-
ees and truck drivers employed by the Em-
ployer at its three boat facilities located on
Patton Street and Conley Street in Monticel-
lo, Arkansas, excluding all supervisors,
office clericals and guards as defined in the
Act.
MONARK BOAT COMPANY
619