Monticello Cedar Co., Inc.

National Labor Relations Board - Board Decisions

Jul 9, 1968

172 N.L.R.B. 1090 (N.L.R.B. 1968)

1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monticello Cedar Company , Inc. and General Team-
sters Local No . 439, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers
of America . Case 20-CA-4906
July 9, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
Upon a charge filed by General Teamsters Local
No. 439, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
herein called the Union, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 20, issued a complaint dated
April 29, 1968,' against Monticello Cedar Com-
pany, Inc., herein called Respondent, alleging that
Respondent had engaged in and was engaging in
unfair labor practices 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 be-
fore a Trial Examiner were duly served upon
Respondent.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on February
26, 1968, the Union was duly certified as the exclu-
sive bargaining representative of Respondent's em-
ployees in the unit found appropriate by the
Board,' and that, since on or about March 13,
1968, and thereafter, Respondent has refused and
is refusing to recognize and bargain with the Union
as such exclusive bargaining representative,
although the Union has requested and is requesting
it to do so. On May 9, 1968, Respondent filed its
answer, which admitted certain allegations of the
complaint, but denied the commission of the unfair
labor practices alleged.
On May 13, 1968, the General Counsel filed with
the Board a motion for summary judgment, assert-
ing, in view of admissions contained in Respon-
dent's answer and the documents annexed as ap-
pendixes to the moving papers, that there are no is-
sues of fact or law requiring a hearing and praying
the issuance of a Decision and Order finding the
violations as alleged in the complaint. Thereafter,
on May 17, 1968, the Board issued an order trans-
' Inadvertently shown as April 29, 1967, in the General Counsel's mo-
tion for summary judgment.
2 Case 20-RC-7800 (not reported in NLRB printed volumes).
a An agreement for consent election provides, inter alia, that:
... the determination of the Regional Director shall be final and bind-
ing upon any question ... raised by any party hereto relating in any
manner to the election ....
ferring proceeding to the Board and notice to show
cause on or before May 31, 1968, why the General
Counsel's motion for summary judgment should not
be granted. On June 6, 1968, Respondent fled a
memorandum in response to order to show cause
and in opposition to 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
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion for Summary Judgment
In its response to the notice to show cause,
Respondent contends that the certification of the
Union as bargaining representative of Respondent's
employees in the appropriate unit was based on
determinations made by the Regional Director
which were arbitrary and capricious and that
evidence of such action by the Regional Director is
admissible in an unfair labor practice case . There-
fore , Respondent requests that it be granted a hear-
ing in the instant case.
On September 21, 1967, the Union filed a peti-
tion in Case 20-RC-7800 seeking to represent cer-
tain employees of the Respondent . On October 27,
1967, the Regional Director for Region 20 of the
Board , herein called the Regional Director, ap-
proved an agreement for consent election in the
above case .' On November 14, 1967, an election by
secret ballot was conducted under the supervision
of the Regional Director . At the conclusion the
parties were furnished with a tally of ballots which
showed that 53 voters cast ballots , of which 27
were for the Union , 25 were against the Union, and
1 ballot was challenged. Thereafter, on or about
November 21, 1967, the Respondent filed objec-
tions to conduct of election , requesting , on grounds
set forth therein, a recount of the ballots . The Re-
gional Director ordered a recount of the ballots
cast in the November 14 election and served a new
tally of ballots on the parties which showed the
same results as the initial tally. On or about
December 8, 1967, the Respondent filed further
objections to conduct of election alleging that one
of the ballots which the Regional Director found to
be a vote for the Union really indicated that the
The method of investigation of objections and challenges, including
the question whether a hearing should be held in connection
therewith, shall be determined by the Regional Director, whose deci-
sion shall be final and binding.
'172 NLRB No. 1 1 1
MONTICELLO
voter had changed his mind and intended it as a
vote against the Union, and that either this ballot
should have been counted as a vote against the
Union, or a finding made that as the marking on the
ballot was too ambiguous to determine the voter's
intent the ballot should not be counted.4
On February 26, 1968, pursuant to an investiga-
tion of the objections filed by the Respondent, the
Regional Director issued a supplemental report on
objections. He concluded that as all of the voter's
markings appeared in the "yes" square and the
voter did not return the ballot to the Board agent,
as instructed for spoiled ballots, the voter intended
to vote for the Union. Accordingly, the Regional
Director certified the Union as exclusive represent-
ative of the employees in the appropriate unit.
Thereafter, on or ' about March 7, 1968, the
Respondent filed with the Board a request for
review of the Regional Director's supplemental re-
port on objections and requested an order to stay
or set aside the certification. On March 11, 1968,
the Board informed the Respondent that in view of
the fact that the Respondent had entered into a
consent election agreement whereby it agreed that
the decision of the Regional Director would be final
and binding on any question raised by any party to
the election relating in any manner to the election,
the Board would not entertain its appeal.
In its answer and response to the present motion
and order to show cause the Respondent reiterates
its contention that the Regional Director's deter-
mination was arbitrary and capricious and that the
certification was therefore invalid. It maintains
again that the ballot in question should not have
been counted as a vote for the Union, that the Re-
gional Director had in fact so determined and had
notified the parties that he would find the ballot to
be void, but for reasons which we do not consider
to be germane to the issues before us, the Regional
Director had reversed his position and found the
ballot to be valid.' However, even if it is germane,
we do not find that the Regional Director abused
his discretion in reversing a decision which can only
be considered as a tentative one.
Indeed, the Regional Director's determination is
clearly in accord with Board precedent' and in
these circumstances his actions cannot be con-
sidered arbitrary or capricious.
As the Respondent has already litigated the
merits of the Regional Director's determination, it
" The record shows that on the disputed ballot the square under the word
"yes" was shaded in by pencil , and that visible through the shading ap-
peared to be an " x" intersected at the center by one or two lines
s Respondent alleges that a later case ( Paramount Transport 5% stem,
Case 20-RM - 1047) before the Regional Director involved a similarly
marked ballot , and that an employee filed an affidavit in that case as to his
intent in casting the ballot Respondent contends that the Regional
CEDAR CO., INC. 1091
has not raised any issue which is properly triable in
the instant labor practice proceeding.
As all material issues have been previously de-
cided by the Board, or are admitted by Respon-
dent's answer to this complaint, there are no mat-
ters requiring a hearing before a Trial Examiner.
Accordingly, the General Counsel's motion for
summary judgment is granted. On the basis of the
record before it, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein , a California corporation with an office and
place of business located at Stockton , California,
engaged in the processing of wood products. Dur-
ing the past year , which period is representative of
all material times herein , Respondent in the course
and conduct of its business operations purchased
and received supplies valued in excess of $50,000
directly from suppliers located outside the State of
California.
Respondent admits , and we find , that Respon-
dent 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.
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters Local No. 439 , international
Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, 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 constitute a unit ap-
propriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act:
All production and maintenance employees of
the Respondent at its operation in Stockton,
California, excluding office clerical employees,
guards, and supervisors as defined in the Act.
Director was influenced by the affidavit and that he changed his decision in
the instant case in order that the rulings in the two cases would be con-
sistent
'Bridgeton Transit, 124 NLRB 1047, Standard-Coosa-Thatcher Coin-
pan%, 115 NLRB 1790, Pioneer Elettronus Corporation, 112 NLRB 1010,
General Motors Corporation, 107 NLRB 1096
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The certification
On November 14, 1967, a majority of the em-
ployees of Respondent in said unit, in a secret elec-
tion conducted under the supervision of the Re-
gional Director for Region 20, designated the
Union as their representative for the purposes of
collective bargaining with Respondent, and on
February 26, 1968, the Union was duly certified as
the collective-bargaining representative of the em-
ployees in said unit and continues to be such
representative.
B. The Request To Bargain and the Respondent's
Refusal
Respondent's answer concedes that, commencing
on or about February 27, 1968, and continuing to
date, the Union has requested and is requesting
Respondent to bargain collectively with the Union
as the exclusive collective-bargaining representative
of all the employees in the above-described unit.
Respondent's answer further admits that, since
on or about March 13, 1968, and continuing to
date, Respondent has refused and continues to
refuse, to bargain collectively with the Union as ex-
clusive collective-bargaining representative of all
employees in said unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of the Respondent
in the appropriate unit described above in the
Board's certification, and that the Union at all
times since February 26, 1968, had been and now is
the exclusive bargaining representative of the em-
ployees in the aforesaid unit, within the meaning of
Section 9(a) of the Act. We further find that the
Respondent has, since March 13, 1968, refused to
bargain collectively with the Union as the exclusive
bargaining representative of its employees in the
appropriate unit and that, by such refusal, the
Respondent has engaged in and is engaging in un-
fair 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 sec-
tion III, above, occurring in connection with the
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.
V. THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 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.
CONCLUSIONS OF LAW
1. Monticello Cedar Co., Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. General Teamsters Local No. 439, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees of
the Respondent at its operation in Stockton,
California, excluding office clerical employees,
guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. Since February 26, 1968, the above-named
labor organization has been the exclusive represent-
ative of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing on or about March 13, 1968, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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,
employees in the exercise of the rights guaranteed
to 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
MONTICELLO CEDAR CO., INC.
Relations Board hereby orders that Respondent,
Monticello Cedar Company, Inc., Stockton,
California, its officers, agents , successors, and as-
signs , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages , hours, and other terms and conditions of
employment with General Teamsters Local No.
439, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
as the exclusive and duly certified bargaining
representative of its employees in the following ap-
propriate unit:
All production and maintenance employees of
the Respondent at its operation in Stockton,
California, excluding office clerical employees,
guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining , or coercing employees in the
rights guaranteed to them by 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 un-
derstanding in a signed agreement.
(b) Post at its Stockton, California, plant copies
of the attached notice marked "Appendix."' Copies
of said notice, to be furnished by the Regional
Director for Region 20 , 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
1093
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with General Teamsters Local No. 439, Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America,
as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees 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 represent-
ative 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 agreement.
The bargaining unit is:
All production and maintenance em-
ployees employed by us at our operation
in Stockton, California, excluding office
clerical employees, guards, and super-
visors as defined in the Act.
MONTICELLO CEDAR
COMPANY, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 13050 Federal Building, 450 Golden Gate
Avenue, Box 36047, San Francisco, California
94102, Telephone 556-3197.