Crystal Letter Offset Co., Inc.

CRYSTAL LETTER OFFSET COMPANY, INC. Crystal Letter Offset Company, Inc. and Printing and Graphic Communications Union, Local No. 51, In- ternational Printing and Graphic Communications Union, AFL-CIO. Case 2-CA-16001 April 3, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE Upon a charge filed on November 2, 1978, by Printing and Graphic Communications Union, Local No. 51, International Printing and Graphic Commu- nications Union, AFL-CIO, herein called the Union, and duly served on Crystal Letter Offset Company, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 2, issued a complaint and notice of hearing on November 16, 1978, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 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 September 8, 1978, following a Board election in Case 2-RC-17864, 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 September 19, 1978, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On November 27, 1978, Respondent filed its answer to the complaint, admitting in part and denying in part, the allegations in the complaint. On January 4, 1979, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on January 18, 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 did not file a re- sponse to the Notice To Show Cause, and therefore I Official notice is taken of the record in the representation proceeding, Case 2-RC-17864, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Senes 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); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the National Labor Relations Act, as amended. the allegations in the Motion for Summary Judgment 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 In its answer to the complaint Respondent denies the validity of the Board's certification of the Union on the ground that the Union does not represent a majority of the employees in the unit found appropri- ate in Case 2-RC-17864.2 Counsel for the General Counsel contends that Respondent is raising issues which were considered and resolved in the represen- tation case, and this it may not do. We agree. The election in Case 2-RC-17864 was conducted on April 6, 1978, pursuant to a Decision and Direc- tion of Election by the Regional Director for Region 2. The tally of ballots shows that of approximately 28 eligible voters, 28 cast valid ballots of which 10 were for, and 9 against, the Union; there were 9 challenged ballots. Although the Union filed objections to the conduct of the election, it subsequently made a re- quest to withdraw the objections which was approved by the Regional Director. Thereafter, inasmuch as the preliminary investigation with respect to the chal- lenges had revealed that they raised substantial and material issues of fact requiring resolution at a hear- ing, the Regional Director, on May 9, 1978, directed a hearing on these issues. After a hearing in which both the Union and Re- spondent participated, the Hearing Officer, on July 12, 1978, issued and served upon the parties his Re- port on Challenges and Recommendations, in which he recommended that the challenges to seven ballots be sustained and that the challenges to the two re- maining ballots be overruled, that these two ballots be opened and counted, and that a revised tally of ballots be issued. As no exceptions were filed to the Hearing Officer's report, the Regional Director issued a Supplemental Decision on July 26, 1978, which adopted the findings of the Hearing Officer. Subse- 2 By its answer Respondent also denies that the Union has requested and that it has refused to bargain. Attached to the General Counsel's Motion for Summary Judgment is a letter dated September 11, 1978, from the Union to Respondent requesting bargaining and a letter dated September 19, 1978, from Respondent to the Union refusing to bargain. As Respondent did not file a response to the Notice To Show Cause, the contents and the receipt of the letters attached to the General Counsel's motion stand uncontroverted. Accordingly. we shall deem these allegations of the complaint to be admit- ted. Schwartz Brothers, Inc., ad District Records, Inc., 194 NLRB 150 (1971): The May Department Stores Company, 186 NLRB 86 (1970); and Carl Simpson Buick, Inc., 161 NLRB 1389 (1966). 241 NLRB No. 108 699 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quently, on August 30, 1978, the revised tally of bal- lots issued, which shows that of approximately 28 eli- gible voters, 28 cast valid ballots of which 12 were for, and 9 against, the Union and that the challenges to 7 ballots were sustained. Accordingly, on September 8, 1978, the Regional Director certified the Union as the exclusive collective-bargaining representative of Re- spondent's employees in the appropriate unit. 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 a prior representation proceeding.3 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: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Crystal Letter Offset Company, Inc., is a New York corporation with an office and principal place of busi- ness in New York, New York, where it is engaged in the nonretail sale of printing and duplication services. In the course and conduct of its business operations, Respondent annually sells and ships from its New York, New York, facility goods and materials valued in excess of $50,000 directly to other enterprises lo- cated within the State of New York, each of which other enterprises either has gross annual retail sales in excess of $500,000 or is engaged in the nonretail sale and distribution of goods and materials and either annually purchases goods and materials valued in ex- cess of $50,000 directly from points located outside the State of New York or annually sells and ships goods and materials valued in excess of $50,000 di- rectly to points located 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 'See Pittsburgh Plate Glass Co.. v. N.L.R.B.. 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Seecs. 102.67(f) and 102.69(c). 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. THE LABOR ORGANIZATION INVOLVED Printing and Graphic Communications Union, Lo- cal No. 51, International Printing and Graphic Com- munications Union, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. 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 full-time and regular part-time production and maintenance employees employed by the Employer at its New York, New York, facility, including pressroom, composing, bindery and platemaking employees, and messengers, but ex- cluding office clerical employees, salesmen, rela- tives of the Employer enjoying special status, guards and supervisors as defined in the Act. 2. The certification On April 6, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 2, 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 sl1 ! unit on September 8, 1978, 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 Commencing on or about September 11, 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 19, 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. 700 CRYSTAL LETTER OFFSET COMPANY. INC. Accordingly. we find that Respondent has, since September 19, 1978. 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. 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 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. 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 (I) 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. 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, 229 (1962), enfd. 328 f.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Crystal Letter Offset Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Printing and Graphic Communications Union, Local No. 51, International Printing and Graphic Communications Union, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees employed by the Em- ployer at its New York, New York facility, including pressmen; composing, bindery, and platemaking em- ployees; and messengers, but excluding office clerical employees, salesmen, relatives of the Employer enjoy- ing special status, guards, and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since September 8, 1978, the above-named la- bor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about September 19, 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 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 them in Sec- tion 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) 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, Crystal Letter Offset Company, Inc., New York, 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 Printing and Graphic Communications Union, Local No. 51, International Printing and Graphic Communications Union, AFL- CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees employed by the Employer at its New York, New York, facility, including pressroom, composing, bindery and platemaking employees, and messengers, but ex- cluding office clerical employees, salesmen, rela- 701 DECISIONS OF NATIONAL LABOR RELATIONS BOARDI) tives of the Employer enjoying special status, guards and supervisors as defined in the Act. (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) 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) Post at its facility in New York, New York, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Re- gional Director for Region 2, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 2, 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 bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Print- ing and Graphic Communications Union, Local No. 51, International Printing and Graphic Communications Union, AFL-CIO, as the ex- clusive 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 WII.L, 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 agree- ment. The bargaining unit is: All full-time and regular part-time production and maintenance employees employed by the Employer at its New York, New York, facility, including pressroom, composing, bindery and platemaking employees, and messengers, but excluding office clerical employees, salesmen, relatives of the Employer enjoying special sta- tus, guards and supervisors as defined in the Act. CRYSIAL LEIER OFFSEI COMPANY, INC. 702