M.P.C. Cash-Way Lumber Co.

National Labor Relations Board - Board Decisions

Apr 13, 1971

189 N.L.R.B. 721 (N.L.R.B. 1971)

M.P.C. CASH-WAY LUMBER COMPANY 721
M.P.C. Cash-Way Lumber Company and Teamsters
Local 580, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Ind. Case 7-CA-8403
April 13, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Upon a charge filed on January 4, 1971, by
Teamsters Local 580, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Ind., herein called the Union, and duly
served on M.P.C. Cash-Way Lumber Company,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 7, issued a complaint on January
11, 1971, against Respondent, alleging that Respon-
dent 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 or abou
October 12, 1970, following a Board election in Case
7-RC-10058 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate;'
and that, commencing on or about December 9, 1970,
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 January 20, 1971, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On January 25, 1971, counsel for the General
Counsel filed directly with the Board a Motion To
Transfer Case to and Continue Proceeding before the
Board and for Judgment on the Pleadings, which we
shall treat herein as a Motion for Summary Judgment.
The General Counsel avers that the pleadings reveal
that there are no disputes on any relevant or material
facts which would necessitate a hearing or a Trial
Examiner's Decision. Subsequently, on February 12,
1971, the Board issued an order transferring the
' Official notice is taken of the record in the representation proceeding,
Case 7-RC-10058 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 Electrosystems, Inc, 166 NLRB 938, enfd 388 F.2d 683 (C A 4,
proceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause
entitled Answer in Opposition to General Counsel's
Motion for Judgment on the Pleadings.
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 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
In its response to the General Counsel's Motion as
well as in its Answer to the complaint, the Respondent
attempts to relitigate the issues concerning the
eligibility of various employees to vote in the election
directed by the Regional Director's Decision and
Direction of Election issued on August 17, 1970, in
Case 7-RC-10058, thereby questioning the validity of
the underlying election and the certification based
thereon.
At the hearing on the petition in Case 7-RC-10058,
the voting eligibility of three employees, sons of two of
the three principal stockholders of the Respondent,
was litigated. Following the principle established in
the recent Board decision in Scandia, 167 NLRB 623,
the Regional Director, in his Decision and Direction
of Election, excluded from the unit found appropriate
therein these three employees who, as children of
principals of a closely held corporation, have special
interests which are more closely identified with
management than with their fellow employees. No
request for Board review of the Regional Director's
ruling was filed by the Respondent.
The election was conducted on September 22, 1970.
The tally of ballots served on the parties after the
election reflected that of approximately nine eligible
voters, nine cast ballots of which five were for the
Union and four were against the Union.
The Respondent filed timely objections alleging (1)
that an employee on leave of absence was denied the
right to vote because he was not given an individual
notice of election and (2) that the three sons of the two
principal stockholders were improperly excluded
from the unit and therefore were improperly prohibit-
ed from participating in the election. After investigat-
ing the objections, the Acting Regional Director on
October 12, 1970, issued his Supplemental Decision
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
189 NLRB No. 102
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on Objections and Certification of Representative in
which he overruled the objections in their entirety and
certified the Union in the appropriate unit. As to
Objection 1, the Acting Regional Director found that
it is not customary Board practice to send individual
notification to a person who may not be working at
the time of the election and that, in any event, he was
in no position to exercise his discretion to send such a
notification because he was unaware of the fact that
the employee in question was on leave of absence and
the Respondent, though apprised of the situation,
raised no question until it filed its postelection
objections. Objection 2 was overruled on the proce-
dural ground that the Acting Regional Director would
not reconsider, in the guise of objections, matters
which do not involve election conduct and which were
previously raised and decided in the earlier Decision
and Direction of Election. Accordingly, the Acting
Regional Director certified the Union as the collec-
tive-bargaining representative of the employees in the
unit found appropriate.
Thereafter, the Respondent filed with the Board a
request for review alleging the same eligibility matters
raised in its objections. On November 27, 1970, the
Board denied the Respondent's request on the ground
that it was not timely filed and raised no substantial
issues warranting review. In its response to the
General Counsel's Motion, the Respondent also urges
the Board to deny the General Counsel's Motion by
reversing its decision in Scandia, thereby determining
that the sons of the principal stockholders were
eligible to vote in the election, and, accordingly,
voiding the results of the election.
It is well settled that in the absence of newly
discovered or previously unavailable eviden e 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.2 Sec-
tion 102.67(f) of the Board's Rules and Regulations
specifically provides that "Failure to request review
shall preclude . . . parties from relitigating, in any
related subsequent unfair labor practice proceeding,
any issue which was, or could have been, raised in the
representation proceeding." Respondent filed no
request for review of the Regional Director's Decision
and Direction of Election and is therefore precluded
from raising the correctness of the Regional Direc-
tor's exclusion of Marks, Carter, Joseph Piggott, and
Raymond J. Piggott, based on Scandia, supra. Nor did
the Respondent file a timely request for review of the
Acting Regional Director's Supplemental Decision on
Objections and Certification of Representative.
Respondent does not offer to adduce at a hearing
any newly discovered or previously unavailable
evidence, 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. For this reason,
we perceive no ground for considering at this stage
Respondent's argument that we should refuse to
apply the Scandia rule here. We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and
existing by virtue of, the laws of the State of Michigan.
At all times material herein, Respondent has
maintained its only office and place of business at
5401 West Grand River Avenue, Lansing, Michigan,
herein called the Lansing place of business. Respon-
dent is, and has been at all times material herein,
engaged in the retail sale and distribution of lumber
and building products.
During the calendar year ending December 31,
1970, which period is representative of its operations
during all times material herein, Respondent, in the
course and conduct of its business operations, sold
and distributed lumber and building products, the
gross revenue of which exceeded $ 500,000. During the
same period of time, Respondent, in the course and
conduct of its business operations, purchased and
caused to be transported and delivered at its Lansing,
Michigan, place of business directly from suppliers
located outside the State of Michigan goods and
materials 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
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
Teamsters Local 580, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Ind., is a labor organization within
the meaning of Section 2(5) of the Act.
2 See Pittsburgh Plate Glass Co v NLRB, 313 US. 146,162(1941),
Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c)
M.P.C. CASH-WAY LUMBER COMPANY 723
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
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 drivers, yardmen-salesmen, and janitors
employed by the Respondent at its location at
5401 West Grand River, Lansing, Michigan; but
excluding all office clerical employees, outside
salesmen , professional employees, technical em-
ployees, guards and supervisors as defined in the
Act and all other employees.
2. The certification
On September 16, 1970, 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 7, 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 October 12, 1970, and the Union
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 December 3, 1970, and at
all times thereafter, the Union has requested the
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 9, 1970, and continu-
ing 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
December 9, 1970, 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, 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
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 Contruction 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. M.P.C. Cash-Way Lumber Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters Local 580, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind., is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. All drivers, yardmen-salesmen, and janitors
employed by the Respondent at its location at 5401
West Grand River, Lansing, Michigan; but excluding
all office clerical employees , outside salesmen , profes-
sional employees, technical employees, guards and
supervisors as defined in the Act and all other
employees, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since October 12, 1970, 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 9, 1970, and
at all times thereafter, to bargain collectively with the
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit , Respondent had
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 mean-
ing of Section 2(6) and (7) of the Act.
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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 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 "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
M.P.C. Cash-Way 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 conditions
of employment with Teamsters Local 580, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Ind., as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All drivers, yardmen-salesmen, and janitors
employed by the Respondent at its location at
5401 West Grand River, Lansing, Michigan; but
excluding all office clerical employees, outside
salesmen, professional employees, technical em-
ployees, guards and supervisors as defined in the
Act and all other employees, constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in 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-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Lansing, Michigan, place of business
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly
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 Team-
sters Local 580, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Ind., 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 drivers, yardmen-salesmen, and janitors
employed by the Respondent at its location
at 5401 West Grand River, Lansing, Michi-
gan; but excluding all officer clerical employ-
ees, outside salesmen, professional employ-
ees, technical employees, guards and supervi-
sors as defined in the Act and all other
employees, constitute a unit appropriate for
the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
M.P.C. CASH-WAY
LUMBER COMPANY
(Employer)
M.P.C CASH-WAY LUMBER COMPANY 725
Dated By days from the date of posting and must not be altered,
(Representative) (Title) defaced, or covered by any other material.
Any questions concerning this notice or compliance
This is an official notice and must not be defaced by with its provisions may be directed to the Board's
anyone. Office, 500 Book Building, 1249 Washington Boule-
vard, Detroit, Michigan 48226, Telephone
313-226-3200.