Beverly Times-Division of Essex County Newspapers

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beverly Times-Division of Essex County Newspapers, Inc. and Local No. 776, Subordinate To Interna- tional Printing and Graphic Communications Union, AFL-CIO, CLC. Case 1 CA 16247 September 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on June 30, 1979, by Local 776, subordinate to International Printing and Graphic Communications Union, AFL-CIO, CLC, herein called the Union, and duly served on Beverly Times-Division of Essex County Newspapers, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 1, issued a complaint and notice of hearing on July 13, 1979, against Respondent, alleg- ing that Respondent had engaged in and was engag- ing 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 an administrative law judge were duly served on the parties to this proceed- ing. With respect to the unfair labor practices, the com- plaint alleges in substance that on March 13, 1979, following a Board election in Case -RC-16030 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate:' and that, commencing on or about April 13, 1979, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. In addition, the complaint alleges that since on or about June 11 and 26, 1979, and all times thereafter, Re- spondent has refused, and continues to date to refuse, to supply the Union with certain information neces- sary for and relevant to the Union's performance as the exclusive collective-bargaining representative of the employees within the appropriate unit. On July 18, 1979, Respondent filed its answer to the complaint I Official notice is taken of the record in the representation proceeding. Case I-RC-16030, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rulings and Regulations, Series 8, as amended. See LTV Electrosystems. 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.C.Va. 1967); Follert Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. admitting in part, and denying in part, the allegations in the complaint. On August 9, 1979, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on August 16, 1979, 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 filed a response to Notice To Show Cause. 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 and response to the Notice To Show Cause, Respondent in substance challenges the Board's certification of the Union as the exclusive-bargaining representative of Respon- dent's employees within the appropriate unit. A review of the record in the representation pro- ceeding, Case -RC-16030, discloses that the Union filed a petition on October 27, 1978, seeking to repre- sent all printing pressmen, apprentice printing press- men, printing platemakers, apprentice printing plate- makers, press flyers/press assistants employed at Respondent's Beverly, Massachusetts, facility. On November 20, 1978, the Regional Director for Region I approved the Stipulation for Certification Upon Consent Election entered into by the parties. The Re- gional Director conducted a secret-ballot election among unit employees on December 14, 1978, and the election resulted in a vote of 21 for, and 3 against, the Union. Thereafter, on December 27, 1978, the last day on which objections could be timely filed, Re- spondent filed objections to the conduct of the elec- tion; however, no copies of the objections were served on the Union at that time. On January 3, 1979, the Union, having been notified by the Regional Office of the filing of objections, denied that it had engaged in any objectionable conduct and moved for the dis- missal of the objections on the basis of Respondent's failure to serve the Union with a copy of the objec- tions. On January 31, 1979, the Acting Regional Director issued a Report on Objections recommending that all the objections be dismissed for failure to serve a copy on the Union or, in the alternative, that the objections be overruled and that a certification of representative be issued certifying the Union as representative for the purpose of collective bargaining for Respondent's employees in the appropriate unit. Neither party filed 245 NLRB No. 74 522 BEIVERLY TIMES-DIVISION OF ESSEX COUNTY NEWSPAPERS exceptions to the Regional Director's report and. on March 13, 1979, the Board issued its Decision and Certification of Representative adopting the Acting Regional Director's recommendations and certifying the Union. On March 20, 1979, Respondent filed a motion for reconsideration of the Board's Decision and Certifica- tion of Representative. On March 21, 1979, the Asso- ciate Executive Secretary for the Board denied Re- spondent's motion. However, on April 3, 1979, the Associate Executive Secretary revoked his letter of denial of March 21, 1979, and forwarded Respon- dent's motion for reconsideration to the Board. In support of its motion. Respondent argued that it was prejudicially affected by Region I's rescission of its approval of a settlement agreement pertaining to cer- tain unfair labor practice allegations. The settlement agreement was posted at Respondent's facility during the election, and Respondent contended that it had at all times denied engaging in any unfair labor prac- tices, but had allowed for the purposes of settlement the posting of the settlement agreement. Respondent further contended that the posting of the settlement agreement had a direct and immediate impact on the results of the election and argued that the results might well have been different had the settlement agreement not been posted. Respondent requested that the Board reconsider its certification of the Union and defer certification until such time as the unfair labor practices that were the subject of the set- tlement agreement were adjudicated. After consider- ing Respondent's motion, the Board, on May 15, 1979, issued its order denying Respondent's motion. It is well settled that in the absence of newly dis- covered or previously unavailable evidence 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 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 2See Pittsburgh Plate Glass Co. v. NL.R.B., 313 U.S. 146. 162 (1941), Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c). FINDINGS o() FACI I. IlE BUSINESS OF RESPONDNI- Respondent, a Massachusetts corporation, is en- gaged at its Beverly, Massachusetts, facility in the publication and distribution of a newspaper. Respon- dent, in the course and conduct of its business, causes and continuously has caused at all times material herein large quantities of paper and newsprint and other materials used by it in the publication of its newspaper to be purchased and transported in inter- state commerce from and through various States of the United States other than the Commonwealth of Massachusetts. Respondent's annual gross volume of business exceeds $200,000. Respondent holds mem- bership in or subscribes to interstate news services and publishes advertisements for nationally sold products and receives goods and materials from points outside the Commonwealth of Massachusetts having a value in excess of $1 million. Respondent admits and we find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in com- merce 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 INVOLVtD Local No. 776, Subordinate to International Print- ing and Graphic Communications Union. AFL-CIO. CLC, 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 of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: d11 full-time and regular part-time pressmen, ap- prentice printing pressmen, printing plate- makers, apprentice printing platemakers, press flyers/press assistants, and process cameramen of the Respondent at its Beverly, Massachusetts, location, but excluding all other employees, guards and supervisors as defined in the Act. 2. The certification On December 14, 1978, a majority of the employ- ees of Respondent in said unit, in a secret-ballot elec- 523 DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD tion conducted under the supervision of the Regional Director for Region 1, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on March 13, 1979, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Rejusal Commencing on or about March 27, 1979. and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about April 13, 1979, and continuing at all times thereafter to date, Respondent had refused, and con- tinues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Since on or about May 25, 1979, the Union, by letter, has requested Respondent to furnish it with certain information necessary for and relevant to the Union's performance of its function as the exclusive collective-bargaining representative of all employees in said unit. Since on or about June 11 and 26, 1979, Respondent has refused, and continues to refuse, to furnish the Union with the requested information. Accordingly, we find that Respondent has by its refusal to recognize and bargain with the Union. since April 13, 1979, 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, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (I) of the Act. We further find that Respondent has by its refusal to furnish the Union with certain requested information necessary for and relevant to the Union's performance as the collective-bargaining representa- tive of the unit employees, since June 11, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and, by such re- fusal Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and () of the Act. IV. THE EFFECT OF THE UNFAIR I.ABOR PRACTIC(ES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. 111 RMI;I)Y Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if' an understanding is reached, embody such understanding in a signed agreement. We shall further order that Respondent furnish the Union. upon request, with information necessary for and relevant to the Union's performance as the exclu- sive collective-bargaining representative of the em- ployees in the appropriate unit. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultrn 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 Con- struction Compan',. 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: CoN(LUSIONS OF LAW 1. Beverly Times-Division of Essex County News- papers, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 776, Subordinate to International Printing and Graphic Communications Union, AFL CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time printing pressmen, apprentice printing pressmen, printing platemakers, apprentice printing platemakers, press flyers/press assistants, and process cameramen of Re- spondent at its Beverly, Massachusetts, location, but excluding all other employees, guards, and supervi- sors as defined in the Act, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 13, 1979, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- 524 BEVERLY TIMES-DIVISION OF ESSEX COUNTY NEWSPAPERS said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 13, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. By refusing on or about June 11, 1979, and at all times thereafter, to supply the Union with certain requested information necessary for and relevant to the Union's performance as the collective-bargaining representa- tive of all of the employees of Respondent in the ap- propriate unit, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain and supply information, Respondent has interfered with, re- strained, and coerced, and is interfering with, re- straining, and coercing, employees in the exercise of the rights guaranteed 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Beverly Times-Division of Essex County Newspapers, Inc., Beverly, Massachusetts, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Local 776, Subordinate to International Printing and Graphic Communica- tions Union, AFL-CIO,CLC, as the exclusive bar- gaining representative of its employees in the follow- ing appropriate unit: All full-time and regular part-time printing pressmen, apprentice printing pressmen, printing platemakers, apprentice printing platemakers, press flyers/press assistants, and process camera- men of Respondent at its Beverly, Massachu- setts, location, but excluding all other employees, guards, and supervisors as defined in the Act. (b) Refusing to supply the above-named labor or- ganization with requested information necessary for and relevant to its performance as the exclusive repre- sentative of all the employees in the aforesaid appro- priate unit. (c) 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 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) Upon request, supply the above-named labor organization with rates of pay, dates of employment. and classifications of all covered employees, lists of fringe benefits and their cost paid by Respondent. and all other information necessary for and relevant to the Union's performance as the exclusive repre- sentative of all employees in the aforesaid appropri- ate unit. (c) Post at its Beverly, Massachusetts, facility cop- ies of the attached notice marked "Appendix."3 Cop- ies of said notice, on forms provided by the Regional Director for Region I. after being duly signed by Re- spondent's representative, shall be posted by Respon- dent immediately upon receipt thereof, and be main- tained 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. t In the event that this Order s 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." 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 LO- CAL 776, Subordinate to International Printing and Graphic Communications Union, AFL- 525 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIO, CLC, as the exclusive representative of the employees in the bargaining unit described be- low. WE WILL NOT refuse to supply the above- named Union, upon request, with information necessary for and relevant to its performance as the exclusive representative 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, supply the above- named Union with information concerning rates of pay, dates of employment, and classifications of all covered employees, lists of fringe benefits and their cost, and all other information relevant to and necessary for the Union's performance as the exclusive representative of the employees in the bargaining unit listed below. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed 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 full-time and regular part-time printing pressmen, apprentice printing pressmen, print- ing platemakers, apprentice printing plate- makers, press flyers/press assistants, and pro- cess cameramen at our Beverly, Massachusetts, location, but excluding all other employees, guards, and supervisors as defined in the Act. BEVERLY TIME-DIVISION OF ESSEX COUNTY NEWSPAPERS, IN(. 526