Eugene Register Guard

EUGENE REGISTER GUARD Guard Publishing Company d/b/a Eugene Register Guard and Eugene Newspaper Guild, Local 194, AFL-CIO. Case 36-CA-3342 March 19, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PNEI.I.O AND TRI-ESDAI.E Upon a charge filed on September 21, 1978, by the Eugene Newspaper Guild. Local 194. AFL CIO, herein called the Union, and duly served on Guard Publishing Company d/b/a Eugene Register Guard, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Re- gional Director for Region 19, issued a complaint on October 16, 1978, against Respondent, alleging that Respondent had engaged in and was engaging in un- fair 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 proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that since October 31, 1976, the Union [has been and is] the exclusive collec- tive-bargaining representative of Respondent's em- ployees in the appropriate unit, as clarified in Case 36-UC-65,' and the Union and Respondent are par- ties to a collective-bargaining agreement covering said employees; that commencing on or about August 21, 1978, the Union has requested the Respondent to bargain with it by supplying information relevant and necessary to fulfill its representational duties under the collective-bargaining agreement; and that com- mencing on or about August 25, 1978, and at all times thereafter, Respondent has refused, and contin- ues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative by refusing and continuing to refuse to provide the re- quested information as it applies to employees in- cluded in the unit in Case 36-UC-65. On October 23, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent ad- mits all the factual allegations of the complaint but denies those paragraphs which allege that the unit, as I Official notice is taken of the record in the representation proceeding, Case 36-UC-65, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosysiems, 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); Iniertvpe Co. v Penello, 269 F.Supp. 573 (D C.Va. 1967): Follet Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec 9(d) of the NLRA, as amended. clarified, is appropriate and that Respondent has vio- lated Section 8(a)(5) and (1) of the Act. On November 27, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 7, 1978, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent has filed no response to the Notice To Show Cause, and, accordingly, the allegations of the Motion and the attached exhibits stand uncontroverted. 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 As indicated, Respondent admits all the factual al- legations of the complaint, including its refusal to provide the Union with necessary and relevant infor- mation. The complaint alleges, and Respondent ad- mits, that it continues to refuse to bargain so that it can test the validity of the unit clarification before the Board and the court of appeals. Thus, Respondent is attempting to relitigate issues which were or could have been raised in the underlying representation proceeding, Case 36-UC-65. 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 reliti- gate issues which were or could have been litigated in 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. . VI. RB., 313 U.S 146. 162 11941). Rules and Regulations of the Board. Sees. 102.67(f) and 102.6 9 {c). 241 NLRB No. 29 221 [)[DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, an Oregon corporation with an office and place of business located at Eugene, Oregon, where it is engaged in the publication, sale, and distribution of newspapers. Respondent, during the past 12 months, which pe- riod is representative of all times material herein, in the course and conduct of its publishing operations, held membership in, or subscribed to, various inter- state news services, including Associated Press and United Press International, published various nation- ally syndicated features, including a feature by Mary McGrory, advertised various nationally sold prod- ucts, and derived gross revenues from its publishing operations in excess of $200,000. We find, on the basis of the foregoing, 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, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. H I. LABOR ORGANIZATION INVOLVED Eugene Newspaper Guild, Local 194, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. TIHE 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: All employees of the Employer employed in the editorial, circulation, business office, display and classified advertising, equipment maintenance, personnel and data processing departments, but excluding all part-time and temporary employ- ees, confidential and supervisory employees as defined in the Act. On January 10, 1978, the Regional Director for Re- gion 19 issued an order in Case 36 UC-65 clarifying the unit by excluding certain named persons and in- cluding other named persons. The Respondent and the Union each filed a request for review. On March 22, 1978, the Board denied Respondent's request for review in its entirety and denied the Union's request for review in all respects except for the exclusion of county district supervisors from the unit. On July 31, 1978, the Board issued a Decision on Review and Order (237 NLRB 205) sustaining the exclusion of county district supervisors from the unit. 2. Majority status Prior to October 31, 1976, a majority of the em- ployees of Respondent in said unit designated the Union as their representative for the purpose of col- lective bargaining with Respondent. At least since that date, the Union has been the representative of the employees in said unit for the purposes of collective bargaining, and the Union con- tinues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Respondent and the Union, at all times material herein, have been parties to a collective-bargaining agreement which provides, "The Publisher shall sup- ply the Guild, on request, with a list containing the following information for all employees covered by this agreement: (I) name, address, sex, (2) date of hiring, (3) classification, (4) experience rating and an- niversary date, (5) salary, [and] (6) hours." Commenc- ing on or about August 21, 1978, and at all times thereafter, the Union has requested Respondent to provide it with information relevant and necessary to fulfill its representational duties under the collective- bargaining agreement. Commencing on or about Au- gust 25, 1978, and continuing at all times thereafter to date, Respondent has refused, and continues to re- fuse, to provide the requested information as it ap- plies to employees included in the bargaining unit in Case 36 UC-65. Accordingly, we find that Respondent has, since August 25, 1978, and at all times thereafter, engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.3 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 described in section , 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. 3 Acme Industrial Co., 385 U.S. 432 (1967). 222 EUGENE REGISTER GUARD V. THE REMEDY 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, that it supply the Union with the requested information. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW I. Guard Publishing Company d/b/a Eugene Reg- ister Guard is an employer engaged in commerce within the meaning of 2(6) and (7) of the Act. 2. Eugene Newspaper Guild, Local 194, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the Employer employed in the editorial, circulation, business office, display and clas- sified advertising, equipment maintenance, personnel, and data processing departments, but excluding all part-time and temporary employees, confidential, and supervisory employees, as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since October 31, 1976, the above-named labor organization has been and now is the exclusive repre- sentative of all employees in the aforesaid appropri- ate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 25, 1978, 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, by refusing to pro- vide the Union with necessary and relevant information, 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, 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 mean- ing of Section 8(a)( ) of the Act. 7. The aforesaid unfair labor practices affect com- merce 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 Rela- tions Board hereby orders that the Respondent, Guard Publishing Company d/b/a/ Eugene Register Guard, Eugene, Oregon, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to supply Eugene Newspaper Guild, Local 194, AFL-CIO, with information relevant and necessary to fulfill its representational duties under the collective-bargaining agreement. (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) Furnish the above-named Union with all re- quested information relevant and necessary to the performance by the Union of its collective-bargaining obligations, including information requested about employees who were included in the unit in Case 36- UC-65. (b) Post at its Eugene, Oregon, facilities copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Direc- tor for Region 19, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I 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 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 supply Eugene News- paper Guild, Local 194, AFL-CIO, with infor- mation relevant and necessary to fulfill its repre- sentational duties under the collective- bargaining agreement. 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. 223 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL furnish the Union with all requested information relevant and necessary to the per- formance by the Union of its collective-bargain- ing obligations, including information requested about employees who were added to the unit pursuant to the unit clarification proceeding, Case 36-UC-65. GUARD PUBLISHING COMPANY D/B/A EU- GENE REGISTER GUARD 224