Biewer Wisconsin Sawmill

National Labor Relations Board - Board Decisions

Mar 19, 1992

306 N.L.R.B. 732 (N.L.R.B. 1992)

732
306 NLRB No. 143
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 By entering into a Stipulated Election Agreement in the under-
lying representation proceeding, the Respondent agreed that the
Union was a labor organization. At no time during the underlying
representation proceeding did the Respondent raise a question con-
cerning the Union’s status as a 2(5) labor organization. Its failure
to raise this issue in the underlying representation proceeding pre-
cludes the Respondent from litigating the matter in this proceeding.
Wickes Furniture, 261 NLRB 1062, 1063 fn. 4 (1982).
2 In response to the complaint allegation that the Union was cer-
tified as the exclusive bargaining representative of the employees in
the bargaining unit, the Respondent ‘‘contends that the Union should
not have been certified as the exclusive bargaining representative for
the proposed unit.’’ This response does not deny the certification
which, in any event, is clearly shown in the underlying proceedings.
3 Because the record in the underlying representation proceeding
clearly shows that the election was conducted and a tally of ballots
issued and because the Respondent admits the issuance of the Deci-
sion and Certification of Representative, its denial of the conduct of
the election and issuance of the tally of ballots is without merit.
4 The October 13, 1991 letter requests information from the Re-
spondent. This constitutes a request to bargain. Pak-Well, 206 NLRB
260, 261 (1973); Rod-Ric Corp., 171 NLRB 922, 923–924 (1968),
enfd. 428 F.2d 948 (5th Cir. 1970). The November 19, 1991 letter
requests that Respondent call it ‘‘to set a date to begin negotia-
tions.’’ This clearly indicates a desire to negotiate. See Al Landers
Dump Truck, 192 NLRB 207, 208 (1971) (‘‘valid request to bargain
need not be made in any particular form, or in haec verba, so long
as the request clearly indicates a desire to negotiate’’).
5 In its answer, Respondent denies that its objections were un-
timely filed. As we noted in the underlying representation pro-
ceedings, the election was conducted and a tally of ballots issued on
August 30, 1991. Sec. 102.69(a) of the Board’s Rules allows 7 cal-
endar days for the filing of objections to conduct affecting election.
In this case, the correct date would have been no later than Sep-
tember 6, 1991. The Respondent’s objections were dated and mailed
on September 10, 1991, and received in the Regional Office on Sep-
tember 11, 1991. The objections were clearly out of time under the
applicable rule.
Biewer Wisconsin Sawmill, Inc. and Midwestern In-
dustrial Council—United Brotherhood of Car-
penters and Joiners of America, AFL–CIO.
Case 18–CA–12001
March 19, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 26, 1991, the General Counsel of the
National Labor Relations Board issued a complaint and
notice of hearing alleging that the Respondent has vio-
lated Section 8(a)(1) and (5) of the National Labor Re-
lations Act by refusing the Union’s request to bargain
following the Union’s certification in Case 18–RC–
15063. (Official notice is taken of the ‘‘record’’ in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respond-
ent filed its answer admitting in part and denying in
part the allegations in the complaint.
On January 30, 1992, the General Counsel filed a
Motion for Summary Judgment. On February 6, 1992,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed a
reply to the Motion for Summary Judgment and an ap-
plication for issuance of subpoena duces tecum.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent ‘‘neither admits nor
denies’’ that the Union was a labor organization within
the meaning of Section 2(5) of the Act.1 Although Re-
spondent admits that on October 4, 1991, the Board
issued a Decision and Certification of Representative
certifying the Union as the exclusive collective-bar-
gaining representative of its employees,2 Respondent
nevertheless denies that a secret-ballot election was
conducted on August 30, 1991, and that a tally of bal-
lots was issued ‘‘for the reason that the election was
not valid because the Union committed material unfair
election practices which are sufficient to set aside the
election and the results and to order a new election.’’3
In its answer the Respondent ‘‘neither admits nor
denies’’ the complaint allegation that the Union has re-
quested bargaining. Counsel for the General Counsel
attached to his Motion for Summary Judgment two let-
ters to the Respondent from the Union dated October
13 and November 19, 1991. These letters constitute re-
quests to bargain.4 Respondent does not dispute the re-
ceipt or authenticity of these letters in its reply to the
Motion for Summary Judgment. Accordingly, we find
that the Union has requested bargaining with the Re-
spondent.
In its answer the Respondent denies its refusal to
recognize and bargain with the Union. However, by
letter of December 16, 1991, the Respondent informed
the Regional Director that it intended to test the
Union’s certification in this unfair labor practice pro-
ceeding. Counsel for the General Counsel attached this
letter to his Motion for Summary Judgment and Re-
spondent does not dispute its authenticity in its re-
sponse to the Motion for Summary Judgment. Based
on this admission, we find that the Respondent has
failed and refused to recognize and bargain with the
Union.
Respondent attacks the validity of the certification
of the Union on the basis of its objections to the elec-
tion. However, as we have previously found in the un-
derlying proceeding, these objections were not timely
filed pursuant to the Board’s Rules and Regulations,
Section 102.69.5
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered or pre-
733BIEWER WISCONSIN SAWMILL
6 In Respondent’s application for issuance of subpoena duces
tecum, the Respondent requests that the Board serve a subpoena
which the Respondent previously obtained from the Regional Direc-
tor. The Board does not serve subpoenas which have been issued to
parties. Rather, the party must serve the subpoena pursuant to Rule
102.111(a). Accordingly, the Respondent’s application is denied.
Moreover, we note that even were the Respondent’s newly appointed
counsel to obtain the requested affidavits and statements taken by
prior counsel, it would not be newly discovered or previously un-
available evidence as to the Respondent. The Respondent concedes
that the documents it seeks in the subpoena ‘‘constitute the only via-
ble basis upon which [it] can demonstrate the existence of newly dis-
covered or previously unavailable evidence.’’ (Reply at 1.) Inasmuch
as we are denying the Respondent’s request that we serve the sub-
poena and Respondent concedes it has nothing else, no purpose is
served in further delaying these proceedings.
viously unavailable evidence,6 nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Biewer Wisconsin Sawmill, Inc., a
Michigan corporation with an office and place of busi-
ness in Prentice, Wisconsin, is engaged in the oper-
ation of a lumber mill and the milling of lumber. Dur-
ing the 12-month period ending December 31, 1991,
Respondent purchased and received at its Prentice,
Wisconsin facility goods valued in excess of $50,000
directly from points outside the State of Wisconsin.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held August 30, 1991, pursu-
ant to a Decision and Certification of Representative,
the Union was certified on October 4, 1991, as the col-
lective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time production em-
ployees, maintenance employees, boiler operators,
helpers and machine operators employed by the
Employer at its facilities located in Prentice, Wis-
consin; but excluding all office clerical employ-
ees, salespersons, professional employees, guards
and supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since on or about October 13, 1991, and on Novem-
ber 19, 1991, the Union has requested the Respondent
to bargain and, since on or about October 13, 1991,
the Respondent has refused. We find that this refusal
constitutes an unlawful refusal to bargain in violation
of Section 8(a)(1) and (5) of the Act.
CONCLUSION OF LAW
By refusing on and after October 13, 1991, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (5) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification as beginning the date the Respondent
begins to bargain in good faith with the Union. Mar-
Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd.
350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Biewer Wisconsin Sawmill, Inc., Prentice,
Wisconsin, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Midwestern Industrial
Council—United Brotherhood of Carpenters and Join-
ers of America, AFL–CIO as the exclusive bargaining
representative of the employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If 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.’’
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time production em-
ployees, maintenance employees, boiler operators,
helpers and machine operators employed by the
Employer at its facilities located in Prentice, Wis-
consin; but excluding all office clerical employ-
ees, salespersons, professional employees, guards
and supervisors as defined in the Act.
(b) Post at its facility in Prentice, Wisconsin, copies
of the attached notice marked ‘‘Appendix.’’7 Copies of
the notice, on forms provided by the Regional Director
for Region 18 after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Midwestern In-
dustrial Council—United Brotherhood of Carpenters
and Joiners of America, AFL–CIO as the exclusive
representative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time production em-
ployees, maintenance employees, boiler operators,
helpers and machine operators employed by the
Employer at its facilities located in Prentice, Wis-
consin; but excluding all office clerical employ-
ees, salespersons, professional employees, guards
and supervisors as defined in the Act.
BIEWER WISCONSIN SAWMILL, INC.