Westchester Lithographers, Inc.

WESTCHESTER LITHOGRAPHERS. IN(C. Westchester Lithographers, Inc. and Local , Amalga- mated Lithographers of America, affiliated with In- ternational Typographical Union, AFL-CIO. Case 2 CA-15941 March 29, 1979 DECISION AND ORDER BY MEMBLRS JFNKINS, MURPHY, AND TRUESDALE Upon a charge filed on October 17, 1978, by Local 1, Amalgamated Lithographers of America, affiliated with International Typographical Union, AFL-CIO. herein called the Union, and duly served on West- chester Lithographers. Inc., herein called Respon- dent, the General Counsel of the National Labor Re- lations Board, by the Regional Director for Region 2. issued a complaint on November 28. 1978. against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(I) and (5) and Section 2(6) and (7) of the National La- bor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices. the com- plaint alleges that on June 29, 1978, the Union was designated by a majority of the employees in an ap- propriate unit:' that on July 10, 1978, the Union was certified as the exclusive bargaining representative of the employees in said unit; that at all times since that date the Union has been, and is, the exclusive bar- gaining representative of all employees in said unit; and that on or about September 13, 1978. and at all times thereafter. Respondent has refused, and contin- ues to date to refuse, to bargain collectively with the Union, although the Union has requested it to do so. It is further alleged that by letter dated September 13, 1978, the Union requested that Respondent furnish the following information: (1) names, classifications. job duties, and the present wages of the lithographic unit; (2) working conditions including hours and overtime rates; and (3) the Company's welfare pro- gram (hospitalization, medical, and pension). and that Respondent has failed and refused to furnish the above requested information and data which are nec- essary for and relevant to the Union's performance of i Official notice is taken of the record in the representation proceeding. Case 2-RC 18008, as the term "record" is defined in Secs. 102.68 and 102.6 9 (g) of the Board's Rules and Regulations. Series 8. as amended. See LTV Elercrossslems. Inc., 166 NLRB 938 ( 197), enfd 388 F.2d 683 (4th Cir 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969): Iniert'pe CoI v. Penello, 269 F.Supp. 573 (D. C. Va . 1967). Follett Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA. as amended. its function as collective-bargaining representative of the employees in the appropriate unit. Respondent has failed to file an answer to the complaint. On January 25. 1979, the counsel for the General Counsel filed directly with the Board a Motion fbr Summary Judgment. Subsequently, on February 1., 1979, 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 granied. Respondent did not file a response to the Notice To Show Cause. Accord- ingly, the allegations of the Motion for Summary Judgment stand uncontroverted. Pursuant to he provisions of Section 3(b) of the National Labor Relations Act, as amended. the Na- tional Labor Relations Board has delegated its au- thoritv 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 Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. All allega- tions in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admit- ted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing served on Re- spondent specifically states that unless an answer was filed within 10 days from the service of the complaint "all of the allegations in the Complaint shall be deemed to be admitted by it to be true and may be so found by the Board." The complaint was served on Respondent by registered mail on or about Novem- ber 29, 1978. On December 18, 1978, Richard C. DeSteno, the counsel for the General Counsel, in- formed Henry Riebesehl, Respondent's agent and president, by telephone, that no answer had been re- ceived, and it was overdue. On January 2, 1979, Mr. DeSteno again spoke to Henry Riebesehl on the tele- phone. Mr. Riebesehl was informed at that time that the answer had still not been received, and that if it was not received within the next couple of days, a 241 NLRB No. 77 571 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Motion for Summary Judgment would be made. Mr. Riebesehl stated that he would get the answer right out. No answer has yet been filed. Further. at no time has Respondent requested an extension of time within which to file an answer. Since Respondent has not filed an answer to the complaint or shown good cause for failure to do so, the allegations of the complaint are deemed, and are found, to be true. Accordingly, we grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FA(T I. HE BUSINESS OF THE RESPONDENT Respondent is a New York corporation, with its principal office and place of business at 34 Weyman Avenue. New Rochelle, New York. where it is en- gaged in providing lithographic services to various commercial and individual customers. Annually, Re- spondent provides services at its New Rochelle, New York, facility valued in excess of $50,000 directly to other enterprises and individuals located within the State of New York, including, inter alia, Technicon Corporation, each of which other enterprises either have gross annual retail sales in excess of $500,000 at the retail facility where the goods and materials were shipped, or are engaged in the nonretail sale and dis- tribution of goods and materials and either annually purchase goods and materials valued in excess of $50,000 which are shipped to the enterprise within the State of New York directly from points outside the State of New York, or annually sell and ship goods and materials valued in excess of $50,000 from the State of New York directly to points outside the State of New York. 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. All full-time and regular part-time lithographic production employees employed by Respondent at 34 Weyman Avenue, New Rochelle, New York facility excluding all other employees, of- fice clerical employees, guards and all supervi- sors as defined in Section 2(11) of the Act. The Union was duly selected as the collective-bar- gaining representative of the employees in said unit on or about June 29, 1978, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 2 and was certified on July 10, 1978, as the exclusive bargaining representative of said em- ployees and continues to be such within the meaning of Section 9(a) of the Act. Commencing on or about September 13, 1978, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about September 13, 1978, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Further, since on or about September 13, 1978, the Union has requested information and data which is necessary for and relevant to the Union's performance of its function as the collective-bargaining representative of the employees in the above-described unit. Since on or about September 13, 1978, Respondent has failed and refused to furnish the requested information and data. Accordingly, we find that Respondent, since Sep- tember 13, 1978, and at all times thereafter, has re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and has since September 13, failed and refused to furnish information and data which are necessary for and relevant to the Union's perform- ance of its function as the collective-bargaining repre- sentative of the employees in the appropriate unit, and that, by such actions, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. II. TIlE LABOR ORGANIZATION INVOLVED Local I, Amalgamated Lithographers of America, affiliated with International Typographical Union, AFL CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR ABOR PRACTICES INVOL VED The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: IV. THE EFFECTS 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 I, 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. 572 WESTCHESTER LITHOGRAPHERS, INC V 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 take cer- tain affirmative action designed to effectuate the poli- cies of the Act. As Respondent on or about September 13, 1978, and at all times thereafter, has refused and continues to refuse to bargain with the Union as the exclusive collective-bargaining representative of the employees in the above-described unit, we shall order Respon- dent to cease and desist from such conduct and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the above-described appropriate unit, and, if an under- standing is reached, embody such understanding in a signed agreement. We shall also order Respondent to cease and desist from refusing to supply the information requested by the Union which is relevant to the performance of its function as the employees' bargaining representative, and upon request, supply such information. 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 Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U. S. 817 (1964): Burnett Con- struction Company, 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: CONCLUSIONS OF LAW 1. Respondent Westchester Lithographers, Inc., is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Local 1, Amalgamated Lithographers of Amer- ica, affiliated with International Typographical Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time lithographic production employees employed by Respondent at its 34 Weyman Avenue, New Rochelle, New York, facil- ity excluding all other employees, office clerical em- ployees, guards, and all supervisors as defined in Sec- tion 2(1 1) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since July 10, 1978, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- 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 September 13, 1978. and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive 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 refusing on or about September 13, 1978, and at all times thereafter, to furnish to the union information and data which are necessary for and rel- evant to the Union's performance of its function as the collective-bargaining representative of all emplo- ees 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. 7. By the aforesaid refusals 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)(1) of the Act. 8. 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 the Respondent, West- chester Lithographers, Inc., New Rochelle, New York, its officers, agents, successors, 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 1, Amalgamated Lithographers of America, affiliated with Interna- tional Typographical Union, AFL-CIO, hereinafter the Union. as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time lithographic production employees employed by Respondent at its 34 Weyman Avenue. New Rochelle. New York facility excluding all other employees, of- fice clerical employees, guards and all supervi- sors as defined in Section 2(1 1) of the Act. 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Refusing to furnish the Union information and data which are necessary for and relevant to the Union's performance of its function as the collective- bargaining representative of the employees in the above-described 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, furnish the above-named labor organization with information with respect to () the names, classifications, job duties, and the present wages of the employees in the aforesaid appropriate unit: (2) the working conditions of unit employees, including their hours and overtime rates: and (3) the Company's welfare program (hospitalization, medi- cal, and pension). (c) Post at 34 Weyman Avenue, New Rochelle, New York. copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms pro- vided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive 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, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 2 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 ofl the United States Court of Appeals Enforcing an Order of the National l.abor 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 Local I, Amalgamated Lithographers of America, af- filiated with International Typographical Union, AFL CIO, hereinafter the Union, as the exclu- sive representative of our employees in the bar- gaining unit described below. WE WILL NOT refuse to furnish to the Union information and data which are necessary for and relevant to the Union's performance of its function as the collective-bargaining representa- tive of our employees in the bargaining unit de- scribed 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 Union, as the exclusive representative of all our employees in the bargaining unit described be- low, 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 litho- graphic production employees employed by Respondent at its 34 Weyman Avenue, New Rochelle, New York facility excluding all other employees, office clerical employees, guards and all supervisors as defined in Sec- tion 2(1 1) of the Act. WE WILL, upon request, furnish the Union, with information with respect to (1) the names, classifications, job duties, and present wages of our employees in the aforesaid appropriate unit; (2) the working conditions of our unit employees, including their hours and overtime rates: and (3) our welfare program (hospitalization, medical, and pension). WESTCHESTER LIIHORAPHERS, INC. 574