Walls Walls Union-Bulletin, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Walla Walla Union-Bulletin, Inc. and Union Bulletin Employees Group. Case 19-CA-10580 October 31, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on July 13, 1978, by Union Bulletin Employees Group, herein called the Union, and duly served on Walla Walla Union-Bulletin, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 19, issued a complaint on July 26, 1978, against Respondent, alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing 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 hear- ing 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 on June 23, 1978, fol- lowing a Board election in Case 19-RC-8848, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; ' and that, commenc- ing on or about June 29, 1978, and at all times there- after, 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 August 4, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 18, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 25, 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 there- after filed a brief in opposition to the General Coun- sel's Motion for Summary Judgment. Pursuant to the provisions of Section 3(b) of the Official notice is taken of the record in the representation proceeding, Cae 19-RC-8848, 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 Electrosystemu, 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); Follett Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 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 opposition to the Motion for Summary Judg- ment, Respondent contended that several of the newsroom employees who serve as editors in charge of various desks or departments should have been excluded from the appropriate unit in the underlying representation case because they are supervisors or managerial employees. Thus Respondent contends that the Regional Director misconstrued the record evidence and failed to follow established Board prec- edent in including the editorial page editor, photo editor, sports editor, and wire editor in the unit found appropriate. The General Counsel contends that Re- spondent is attempting to relitigate matters which were or could have been considered and disposed of in the prior representation proceeding. Review of the record herein reveals that the Union filed a representation petition on April 4, 1978, in Case 19-RC-8848. A hearing on the petition was held on April 25, 1978, wherein Respondent contend- ed, inter alia, that the editorial page editor, the photo editor, the sports editor, and the wire editor should be excluded from the unit found appropriate. On May 15, 1978, the Regional Director issued his Deci- sion and Direction of Election, in which he conclud- ed, inter alia, that the contested editors were neither supervisory nor managerial employees and included them in the unit. The Employer filed a request for review of the Regional Director's decision and the Board denied this request for review on June 14, 1978. On June 15, 1978, an election was held which showed that of 16 ballots cast, II were for and I against the Union. There were four challenged bal- lots. On June 23, 1978, the Union was certified as the collective-bargaining representative of the employees in the appropriate unit. Following a request by the Union on or about June 23, 1978, and continuing to date, that Respon- dent meet with it as the exclusive representative for the purpose of bargaining collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment in the unit found appropriate in Case 19-RC-8848, Respondent has refused to bargain with the Union since June 29, 1978, basing such refusal on its contention that the Union was improperly certified in Case 19-RC-8848 because the status of managerial and supervisory em- ployees was not clarified. 152 WALLA WALLA UNION-BULLETIN, INC. 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.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 pre- viously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is proper- ly 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 Respondent, a Washington corporation, with of- fice and place of business in Walla Walla, Washing- ton, is engaged in the business of publishing a daily newspaper. During the 12 months preceding the is- suance of the complaint, Respondent had gross sales of goods and services valued in excess of $200,000. During that period, Respondent sold and shipped goods or provided services from its facilities within the State of Washington to customers outside the State, or sold and shipped goods or provided services to customers within the State, which customers were themselves engaged in interstate commerce by other than indirect means, of a total value in excess of $50,000. We find, on the basis of the foregoing, that Re- spondent 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Union Bulletin Employees Group is a labor orga- nization within the meaning of Section 2(5) of the Act. 2See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 111. 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: All full-time and regular part-time news depart- ment employees employed by Respondent, in- cluding editors, reporters, photographers and li- brarians, but excluding the managing editor, news editor, summer interns, casual employees, and guards and supervisors as defined in the Act and all other employees. 2. The certification On June 15, 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 19 designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on June 23, 1978, and the Union contin- ues 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 June 23, 1978, 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 em- ployees in the above-described unit. Commencing on or about June 29, 1978, and continuing at all times thereafter to date, Respondent has 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. Accordingly, we find that Respondent has, since June 29, 1978, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has en- gaged in and is engaging in unfair 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 Respondent set forth in section III, above, occurring in connection with the opera- tions described in section I, above, have a close, inti- 153 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mate, 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 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. 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 commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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); Bur- nett Construction 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. Walla Walla Union-Bulletin, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Union Bulletin Employees Group is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time news depart- ment employees employed by Respondent, including editors, reporters, photographers and librarians, but excluding the managing editor, news editor, summer interns, casual employees, and guards and supervis- ors as defined in the Act and all other employees constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since June 23, 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 June 29, 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, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) 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(aX)() 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 Re- lations Board hereby orders that the Respondent, Walla Walla Union-Bulletin, Inc., Walla Walla, Washington, its officers, agents, successors, and as- signs, 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 Union Bulletin Employ- ees Group as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time news depart- ment employees employed by Respondent, in- cluding editors, reporters, photographers and ii- brarians, but excluding the managing editor, news editor, summer interns, casual employees, and guards and supervisors as defined in the Act and all other employees. (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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Walla Walla, Washington, facility copies of the attached notice marked "Appendix." 3 3 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 154 WALLA WALLA UNION-BULLETIN, INC. Copies of said notice, on forms provided by the Re- gional Director for Region 19, after being duly signed by Respondent's representative, shall be post- ed 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 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. National Labor Relations Board" shall read "Posted Purtuant to a Judg- ment 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 Union Bulletin Employees Group as the exclu- sive representative of the employees in the bar- gaining 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, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, 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 news de- partment employees employed by Respon- dent, including editors, reporters, photogra- phers and librarians, but excluding the managing editor, news editor, summer interns, casual employees, and guards and supervisors as defined in the Act and all other employees. WALLA WALLA UNION-BuLLETIN. INC. 155