Suwannee Lumber Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1971

192 N.L.R.B. 169 (N.L.R.B. 1971)

SUWANNEE LUMBER MFG. CO., INC. ' 169
Suwannee LumbeuManufacturing Company , Inc., and
Southern Council of Lumber & Plywood Workers,
& Local Union - 2532, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO.
Case 12-CA-5116
July 21, 1971
DECISION,AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
Upon a charge filed on March 8,1971, by Southern
Council of Lumber & Plywood Workers, & Local
Union 2332, United Brotherhood of Carpenters` and
Joiners 'of America, AFL-CIO; herein' called the
Unions, and duly served on Suwannee Lumber
Manufacturing Company, Inc., ; herein ; called the
Respondent,-, the General Counsel of the National
Labor Relations Board, by the, Regional Director for
Region 12, issued a complaint on March, 19,, 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 January 27,
1971, following a Board election in Case 12-RC-3578
the Unions `were -duly certified as the exclusive
collective-bargaining representatives of Respondent's
employees in the unit found appropriate;" and that,
commencing on or about March 3, 1971, and at all
times thereafter, Respondent has refused, and contin-
ues to ' date to refuse, to bargain collectively with the
Unions as the exclusive bargaining representatives,
although the Unions have, requested and, are request-
ing it to do so. On March 25, 1971, Respondent filed
its answer to the, complaint admitting in part, and
denying-in part, the allegations in the complaint.
On April 16, counsel for the General Counsel
filed directly ,with the Board a Motion for Summary
Judgment. Subsequently, on April 21, 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 granted. Respondent thereafter failed to file a
response to Notice-To ShowCause.
1 Official notice •1s taken of the record in the representation proceeding,
Case I2-RC-3578, 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 Electrosystem,'Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968);
Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Pennello, 269
F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d
192 NLRB No. 35
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 , the Board
makes the following:
Ruling on the Motion for Summary Judgment
The record in 12-RC-3578 shows- that, pur-
suant to a Sipulation for Certification Upon Consent
Election approved on June 4,:,1970, by the Regional
Director for the Board's Region 12, an election was
conducted on July 10, 1970, in which a majority of the
employees of the Respondent` in the stipulated,unit
selected the Unions as their " collective-bargaining
representatives.-2, On August 12, 1970, the Regional
Director issued his Report on Challenged Ballots in
which he recommended -that .four' challenges. `be
sustained, that, one be overruled, and since the
remaining three challenged ballots, ,including the one
overruled, were no longer' sufficient to affect the
results, that the petitioning union be jointly certified
as collective-bargaining representatives of the em-
ployees in the 'stipulated unit.-Respondent, on August
21, 1970, filed exceptions to the Regional Director's
report, alleging inadequacy of the Regional ,Director's
investigation.
Treating the exceptions as a motion for reconsidera-
tion, the Regional Director reopened the investigation
of the challenged ballots and on November 5, 1970,
issued his SupplementalReport on Challenged
Ballots in which he recommended that the challenges
to four ballots, be sustained, that, the challenges to four
ballots be overruled, and that, since the overruled
ballots were no longer determinative of, the results of
the election, they'-be left unopened and the-Unions
jointly certified.
On November 16, 1970, the Respondent filed with
the Board timely ' exceptions to the Regional Direc-
tor's supplemental report, ' contending, that' the Re-
gional Director erred in sustaining `thechallenges to
the ballots of two employees. On January 27,197 1,'the
Board 'issued a Decision and, Certification- of
Representative 3 in which it, adopted , the Regional
Director's supplemental report and certified the
Unions as joint representatives of the employees in
the appropriate stipulated unit.
91 (C.A. 7, 1968).; Sec. 9(d) of the NLRA.
2 Of approximately 91 eligible voters, 83 cast ballots , of which 40 were
for, and, 35 against, the Union and 8 ballots were challenged. The
challenged ballots were sufficient to affect the results of the election.
3 Case 12-RC-3578. Not published in bound volumes of Board
decisions.
170 DECISIONS OF ' NATIONAL -LABOR RELATIONS BOARD
In, its ` answer to-the complaint herein,4 Respondent
admits,tmost,of the -factual allegations,of the com-
plaint including the certification, the Unions'bargain-
ing request,, and its refusal to bargain, but denies that
the investigation of the challenged ballots was
conducted in-accordance with the stipulation and the
Board's Rules and Regulations. -.The. Respondent
further denies that the Unions have been the
bargaining" representatives of its employees or that it
has violated Section 8 (a)(1) and (5) of the Act. The
answer thus places in issue matters raised and
determined in , the antecedent representation proceed-
ing:
It `is well' settled, that in the absence of - newly
discovered -or, previously, unavailable evidence or
special circumstances a,respondent in a_proceeding
alleging aiolation of Section 8(a)(5) is not entitled to
relitigate issues , which- were or could have been
litigated in apriorrepresentation 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 Respondè'nt, 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 isf iroperl'Shalllitigable in this 'unfair labor practice
proceeding ` We , accordingly, grant the Motion
for Summary Judgment.
On the-basis ofthe entire record , the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE 'RESPONDENT
Respondent is a Florida corporation with its office
and principal place,,. of busmegs-located near CrossI I"
City, Florida, where- it is engaged in'the manufacture
of,lumber an4 related wood products. During the past
12',months,which'is,a,representative period,,Respon-
dent has . received directly from points outside the
State'of Florida,,. 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 ORGANIZATIONS INVOLVED
Southern Council of Lumber & Plywood Workers,
* As indicated ' above, the Respondent failed to - file a response to the
Notice To Show Cause.
& Local Union 2532,-'United Brotherhood of Carpen-
ters ` and Joiners of America, AFL-CIO, are- labor
organizations within the meaning, of Section°2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
v The following employees of the 'Respondent
constituter a unit-appropriate for collective-bargain-
ing purposes 'within the meaning of Section 9(b) of
the Act:
All production and maintenance employees
employed by the' Respondent at itsfacility located
near Cross City,'Florida; excluding office clerical
employees, professional and technical employees;
over-the-road^truckdrivers, guards and supervisors
as,defined in the Act.
-2. The certification
On July; .10, 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 12 designated the Unions as their
representatives for the purpose of collective bargain-
ingwith the Respondent. The Unions were certifiedas
the collective-bargaining representatives of the em-
ployees in said unit on January, 27,1 1971, ,and, the
Unions continue to be.such exclusive-representatives
within the meaning of Section 9(a) of the Act.,
B.' The Request To Bargain and Respondent's
Refusal
Commencing on or about February 2, 1971, and at
all, times thereafter, the Unions have requested the
Respondent to bargain collectively with them as 'the
exclusive collective-bargaining representatives of all
the employees in the 'above-described-unit. Com-
mencing on or about March 3, 1971, and, continuing
at, all times thereafter; to date, the Respondent has
refused, -and continues to refuse, to recognize and-
bargain with, the Unions as the exclusive' representa-
tives for collective bargaining of all employees in said
unit.
Accordingly, we find that, the Respondent has, since-
March 3, 1971, and at all times thereafter„ refused to
bargain, collectively with the Unions as the exclusive-
representatives of the employees in the' appropriate
5 See Pittsburgh Plate 'Glass Co. v. NLRB., 313 U.S. 146, 163 (I941);
Rules and Regulations of the Board, Secs . 102.67(f) and 102 .69(c).
SUWANNEE LUMBER MFG. CO., INC.
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 the Respondent set forth in section
III, aboveo occurring .iu 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 ofcommerce.
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 Unions as the
exclusive _representatives; 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 periodof certification
as beginning on the date Respondent commences to
bargain in good faith, with the Unions as the
recognized bargaining representatives in the appro-
priate unit. See Mar Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company dib/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. Suwannee Lumber Manufacturing Company,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Southern Council of Lumber & Plywood
Workers, & Local Union 2532, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, are
labor organizations within the meaning of Section
2(5) of the Act.
3. The following employees of the Respondent
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All production and maintenance employees em-
ployed by the Respondent at its facility located near
171
Cross City, Florida;, excluding, office clerical qmploy.
ees, professional and technical employees , over-the-
road truckdrivers, guards and Supervisors as defined
in the Act. -
4. Since January 27, 1971, the above-named labor
organizations have been and now are the certified, and
exclusive representatives 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 March 3, 1971, and at
all times thereafter, to bargain-collectively with, the
above-named ,,labor organizations 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.,,, .t
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 m'and
is engaging in unfair ,labor. practices within "the
meaning of Section 8(aXl) 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 Respondent,
Suwannee Lumber Manufacturing Company, Inc., its
officers, agents, successors, andassigiis, shall:
1.' " Cease and desist from:
(a) Refusing to bargain collectively concerning rates
of pay, wages, hours, and other termsland`conditions
of employment with Southern Council of Lumber &
Plywood Workers, & Local Union 2532, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, as the exclusive bargaining representatives
of its employees in the following appropriate unit:
All production and maintenance employees em-
ployed by the Respondent at its facility located near
Cross City, Florida; excluding office clerical employ-
ees, professional and technical employees, over-the-
road truckdrivers, 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 organizations as the exclusive representatives of
172 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
all employees in -the-aforesaid -appropriate =unit-with
respect'to rates of pay;- wages, hours, and'other terms
andconditions,of employment, and, if an understand-
ing is reached, embody such understanding - in a
signed agreement.
(b) '`Post at its' facility near Cross City, -Florida,
copies of the attached notice marked "Appendix." 6
Copies I ofd sai:d"notice, on forms provided by the
Regional- Director for' Region 12, 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, inconspicuous places," including all
places 'where notices to employees are customarily
posted. ` Reasonable steps shall -betaken by Respon
dent -to insure that -said notices are not altered,
defaced, orcovered by-any'othermaterial.
°'(c)'Notify the Regional Directorfo'r Region 12,` in
writing,- within 20 days from the -date of this' Order,
what steps have been taken to comply herewith.
sr 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
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL, LABOR RELATIONS BOARD
An Agency, of the United States Government
WE,wrLL-, NOT refuse to,bargain collectively
concerning rates sof pay, wages, hours,.-and, other
terms and conditions of employment with South-
ern Council of, Lumber & Plywood Workers, &
Local Union 232, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, as the
exclusive representatives-,of the employees in the
bargaining unitdescribed 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 Unions, as the exclusive representatives 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- iii a signed agreement. The bar-
,gain ingunit is:
All production and maintenance employ-
ees employed by the Respondent at its
facility located near Cross City, Florida;
excluding office clerical employees, profes-
sional a .d,."technical. employees,' over-the-
road truckdiivers,^ guards and supervisorsyas
defined in the Apt.
SUWANNEE LUMBER
MANUFACTURING CO.
(Employer)
Dated By'
(Representative) (Title)
This is 'an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 ' consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this "notice or compliance
with its provisions may be "directed to the -Board's
Office , Room 706, Federal Office Building, 500 Zack
Street; Tampa , Florida ' 33602, Telephone 81-3-228-
7227. 1