A. M. Steigerwald Co., Inc.

A. M. Stelgerwald Co., Inc. and Chicago Typographi- cal Union No. 16, AFL-CIO. Case 13-CA-17775 December 5, 1978 DECISION AND ORDER BY MEMBERS PENELLO. MURPHY. AND TRUESDALE Upon a charge filed on June 28, 1978, by Chicago Typographical Union No. 16, AFL-CIO, herein called the Union, and duly served on A. M. Steiger- wald Co., Inc., herein called Respondent, the Gener- al Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint and notice of hearing on July 19, 1978. against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 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 be- fore 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 March 29, 1978, following a Board election in Case 13-RC-14571, 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 16, 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 July 27, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 1, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 11, 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 response to Notice To Show Cause. Official notice is taken of the record in the representation proceeding. Cae 13-RC-14571, 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 Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 169 NLRB 151 (1967). enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Folettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. A. M. STEIGERWALD CO., INC. 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 admits the re- quest and refusal to bargain. It, however, asserts as an "affirmative defense" that the Union's certifica- tion was improper in that the Regional Director erro- neously sustained the challenges to the ballots of em- ployees Eberle, Holmes, and Wilcox; that the votes of the three individuals are determinative of the Union's majority status; that the Union is not the representative of a majority of the employees in the bargaining unit; and that Respondent has not there- fore refused to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. Review of the record herein, including the record in Case 13-RC-14571, reveals that on January 31, 1978, the Regional Director for Region 13 issued a Decision and Direction of Election wherein, based on the hearing record before him, he found that the above-named three individuals were supervisors within the meaning of Section 2(11) of the Act. Thereafter, Respondent filed a request for review of the Regional Director's Decision with regard to the supervisory issue. On March 15, 1978, the Board, by telegraphic order, denied Respondent's request for review but directed that the three individuals whose employee status was in issue vote subject to chal- lenge. An election was held on March 17, 1978, with the tally of ballots showing that 25 employees voted for the Union, 23 against, with 3 challenged ballots. On March 29, 1978, the Regional Director issued his Supplemental Decision on Challenged Ballots and Certification of Representative wherein, based on the entire record in the proceeding, he found that Wil- cox, Holmes, and Eberle were supervisors. Accord- ingly, he sustained the challenges to their ballots and certified the Union as the employees' representative for purposes of collective bargaining. Thereafter, on or about April 5, 1978, Respondent filed a request for review of the Supplemental Decision on Chal- lenged Ballots and Certification of Representative. On June 8, 1978, the Board, by teletype, granted Re- spondent's request for review, and, upon a full review of the record, affirmed the Regional Director's find- ing that Wilcox, Holmes, and Eberle were supervis- ors. The Board further affirmed the Regional Director's Certification of Representative. It thus ap- 567 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pears that Respondent is again attempting in this proceeding to relitigate issues fully litigated and de- termined in the representation proceeding. 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, an Illinois corporation, is engaged in the manufacture of tags and labels at its place of business at 2160 North Ashland Avenue, Chicago, Illinois. During the past calendar year prior to is- suance of the complaint, a representative period, Re- spondent, in the course and conduct of its opera- tions, shipped goods valued in excess of $50,000 directly to points outside the State of Illinois and purchased and received during this same period goods valued in excess of $50,000 directly from points outside the State of Illinois. 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 INVOLVED Chicago Typographical Union No. 16, AFL-CIO, is a labor organization 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 production and maintenance employees employed by the Employer at its facility now located at 2160 North Ashland Avenue, Chica- go, Illinois, including assistants to the plant pro- duction superintendent, but excluding office clerical employees, salesmen, estimators, profes- sional employees, guards and supervisors as de- fined in the Act. 2. The certification On March 17, 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 13, 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 March 29. 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 June 16, 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 21, 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 21, 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. 2 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941): Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 568 A. M. STEIGERWALD CO., INC. Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section Ill, above, occurring in connection with its opera- tions described in section I, above, have a close, inti- 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. A. M. Steigerwald Co., Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chicago Typographical Union No. 16, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by the Employer at its facility now located at 2160 North Ashland Avenue, Chicago, Illinois, in- cluding assistants to the plant production superinten- dent, but excluding office clerical employees, sales- men, estimators, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 29, 1978, the above-named labor organization has been and now is the certified and exclusive 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 21, 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(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)(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 Re- lations Board hereby orders that the Reypondent, A. M. Steigerwald Co., Inc., Chicago, Illinois, its of- ficers, 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 Chicago Typographical Union No. 16, AFL CIO, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All production and maintenance employees employed by the Employer at its facility now located at 2160 North Ashland Avenue, Chica- go, Illinois, including assistants to the plant pro- duction superintendent, but excluding office clerical employees, salesmen, estimators, profes- sional employees, guards and supervisors as de- fined 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 exciusive representative of all employees in the aforesaid appropriate unit with 569 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 offices and facilities at 2160 North Ashland Avenue, Chicago, Illinois, copies of the at- tached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 13, 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 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. In the event that this Order is enforced by a judgment of a United States CouIt of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of tle 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 Chi- cago Typographical Union No. 16, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILIL 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 production and maintenance employees employed by the Employer at its facility now located at 2160 North Ashland Avenue, Chi- cago, Illinois, including assistants to the plant production superintendent, but excluding of- fice clerical employees, salesmen, estimators, professional employees, guards and supervis- ors as defined in the Act. A. M. STEIGERWALD Co.. INC. 570