The Riverside Press, Inc.

726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Riverside Press, Inc. and Local 267, Dallas-Fort Worth Lithographers and Photoengravers Interna- tional Union, AFL-CIO. Case 16-CA-3052 February 8, 1968 DECISION AND ORDER By MEMBERS BROWN, JENKINS, AND ZAGORIA On November 21, 1967, Trial Examiner Charles W. Schneider issued his Decision in the above proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirm- ative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 powers in connection with this case to a three- member panel. The Board has considered the Trial Examiner's Decision, the exceptions and supporting brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recom- mendations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, The Riverside Press Inc., Dallas, Texas, its officers, agents, successors, and assigns, shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order, as so modified: Delete from paragraph 2(b) of the Trial Ex- aminer's Recommended Order that part thereof which reads "to be furnished" and substitute therefor "on forms provided :..." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THE REPRESENTATION PROCEEDING' CHARLES W. SCHNEIDER, Trial Examiner: On Sep- tember 27, 1966, an election was conducted at the Dal- las, Texas, plant of the Riverside Press, Inc., herein called Respondent, pursuant to a Decision as to the ap- propriate unite for purposes of collective bargaining within that unit and direction of election by the Regional Director for Region 16 in Case 16-RC-4326, following a hearing on July 11, 1966, pursuant to Section 9 of the Act.3 At that time, of a unit of approximately 53 eligible voters, 26 votes were cast in favor of and 22 votes were cast against Local 267, Lithographers and Photoen- gravers International Union, AFL-CIO, herein called the Union. One ballot was voided; four ballots were chal- lenged by the Union on the ground that the challenged voters were supervisors. The challenged ballots were suf- ficient in number to affect the results of the election. Under date of September 30, 1966, counsel for the Respondent, by letter in the nature of a brief to the Re- gional Director, contended that the challenges should be overruled on the ground that the challenged voters were not supervisors. In support of this contention the Re- spondent argued that the record in the representation case "conclusively establish [es] that all matters relating to the supervisory hierarchy of the Employer were fully litigated [and determined] in the representation hearing" (pp. 2-3, 13). In this letter the Respondent further said that, if the Regional Director disagreed with the Respond- ent's position as to the employee status of the challenged voters, " .. the Employer requests that the Regional Director designate a hearing officer and schedule a hear- ing for the purpose of determining the status of the em- ployees whose ballots were challenged" (p. 15). By Supplemental Decision and Order issued on December 2, 1966, the Regional Director ruled that the challenged ballots of James Wood and Jasper Cacioppi were overruled on the basis that they were nonsuper- visors, and directed that those ballots be opened and counted. No exceptions were taken to that action. The Regional Director further ordered that, if results were still inconclusive after opening the ballots of Wood and Cacioppi, a hearing should be held to determine the su- pervisory status of Marjorie Wiley and Andrew Schilling, the remaining two voters whose, ballots were challenged. On December 12, 1966, the ballots of Wood and Caciop- pi were opened, revising the tally to 26 votes cast for the Union, and 24 against, with 2 undetermined challenges which could affect the results of the election. On January 10, 1967, the hearing on the two remaining challenges was conducted before a duly appointed Hear- ing Officer. In a memorandum to the Hearing Officer on January 21, 1967, the Respondent renewed its previous position to the effect that the supervisory status of Respondent's employees "was fully inquired into at the hearing herein of July 21, 1965 [sic] and under Board decisions it is not proper to bring the matter up again by way of challenged ballots" (p. 1). On February 9, 1967, the Hearing Officer issued his report on challenged bal- lots, finding that both Wiley and Schilling possessed su- pervisory status under the Act and recommended that the challenges to their ballots be sustained. To this report the Respondent filed exceptions under date of February 14, , Official notice is taken of the representation proceeding, Case 19-RC-4326. The appropriate unit was stated as follows. All lithographic production employees employed at the Employer's Dallas, Texas, plant, excluding all other employees, inspectors, office clerical employees , guards, watchmen and supervisors as defined'in the Act. 3 Respondent's request for review of the Regional Director's Decision and Direction of Election was denied by the Board on September 23, 1966, on the ground that it raised "no substantial issues warranting review." 169 NLRB No. 107 THE RIVERSIDE PRESS, INC. 1967, asserting that Schilling and Wiley were not super- visors, again reiterating its position that the matter had al- ready been litigated (p. 2). On April 5, 1967, a Second Supplemental Decision and Certification was issued by the Regional Director in which he sustained the challenge to Schilling's ballot but overruled the challenge to Wiley's ballot concluding that "it now appears that however Wiley cast her ballot it will not affect the results of the election , and it will not be necessary to open it" (p. 3). He then certified the Union as bargaining representative of the employees in the above-mentioned unit. Under date of April 14, 1967, Respondent filed a Request for Review of the Regional Director's Second Supplemental Decision and Certification , and on May 16, 1967, the Board denied Respondent's request for review on the ground that it raised "no substantial issues warranting review." In its request for review the Respond- ent reiterated its position that in the representation hear- ing of July 11, 1966, "the supervisory status of all the em- ployees of the Employer was fully litigated" (pp. 6, 18). THE COMPLAINT CASE On July 11, 1967, Norman C. Warnke, the Union's In- ternational representative, filed the unfair labor practice charge involved in the instant case in which he alleged that since on or about June 3, 1967, Respondent refused to bargain with the Union. On August 16, 1967, the General Counsel, by the Re- gional Director of Region 16, issued a complaint alleging that since on or about June 3, 1967, Respondent had committed unfair labor practices in violation of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act by refusing to bargain with the Union upon request. In due course Respondent filed its answer to the complaint in which certain allegations of the complaint were admitted and others denied. In its answer Respondent admitted most of the material allegations of the complaint including the facts of the representation proceeding recited above, but denied the following essential allegations of the complaint: (1) that the unit involved is appropriate; (2) that the Union has been designated and selected by the unit employees as, and is, their collective-bargaining representative; (3) that Respondent violated Sections 8(a)(1) and (5) and 2(6) and (7) of the Act; and (4) that the acts of Respondent tend to lead to labor disputes burdening and obstructing com- merce. Thereafter counsel for the General Counsel filed a mo- tion to strike portions of Respondent's answer to com- plaint and motion for judgment on the pleadings on the ground that Respondent's answer raises no issue not al- ready disposed of in the representation proceeding, and that the admissions contained in Respondent's answer establish the violations contained in the complaint as a matter of law. On September 22, 1967, I issued an order to show cause on the motion to strike portions of the answer and motion for judgment on the pleadings, in which the parties 4 N.L.R B. v. Macomb Pottery Company, 376 F 2d 450 (C.A. 7, 1967); Howard Johnson Company, 164 NLRB 801; Metropolitan Life Insurance Company, 163 NLRB 579. See Pittsburgh Plate Glass Com- pany v. N.L.R.B., 313 U.S. 146, 162 (1941); NLRB Rules and Regula- tions, Sec, 102.67 (f). 5 O.K. Van and Storage, Inc., 127 NLRB 1537, enfd. 297 F.2d 74 727 were directed to show cause on or before October 11, 1967, as to whether or not the motions should be granted. On October 10, 1967, Respondent filed a response to the order to show cause, and on October 12, 1967, coun- sel for the Union filed a brief in support of the motion for judgment on the pleadings. The brief for the Union not having been filed within the prescribed time, it has been disregarded. Commencing on or about April 5, 1967, and continuing to date and particularly on or about May 29, 1967, and July 1, 1967, the Union requested the Respondent to bar- gain collectively in the appropriate unit. Attachments to the General Counsel's motions whose authenticity is not contested establish that on June 3, 1967, in response to a letter from the Union to the Respondent dated May 29, 1967, counsel for the Respondent, on behalf of the Respondent, declined to meet with the Union for the pur- pose of collective bargaining on the ground that the Respondent was entitled to judicial review of the decision of the Board. RULING ON MOTIONS TO STRIKE AND JUDGMENT ON THE PLEADINGS The Respondent opposes the General Counsel's mo- tions to strike and for judgment on the pleadings. The Respondent contends that the unit is inappropriate, that no proper hearing has been held, that the Regional Director erred in sustaining the challenge to Schilling's ballot, and that the certification is consequently invalid. The Respondent further contends that it is entitled to a hearing in the unfair labor practice case on the issue of the status of the challenged voters. However, the issues as to the appropriateness of the unit, the merit of the Respondent's contentions as to the challenged votes, and whether the Union should be cer- tified, were raised by Respondent in its request to review the Decision and Direction of Election, in its letter to the Regional Director of September 30, 1966, its memoran- dum to the Hearing Officer on January 21, 1967, its ex- ceptions to the Hearing Officer's report, under date of February 14, 1967, and in its request for review of April 14, 1967, and were decided by the Board in the represen- tation proceeding. It is thus clear that Respondent seeks to relitigate those issues here. This the Respondent may not do before the Trial Examiner. It is established Board policy, in the absence of newly discovered or previously unavailable evidence, not to permit litigation before a Trial Examiner, in an unfair labor practice case, of issues which were or could have been litigated in a prior related representation proceed- ing.4 Such a hearing is not a matter of right unless substan- tial and material issues are raised.5 The Respondent con- tends that the issues are material and that they have not been litigated. That they are material is clear. The basic question is whether they have been litigated. The Respondent's contentions in this regard as stated in its response (pp. 5-12) are as follows: The proceeding before the Hearing Officer was not a valid hearing for the reason that such a hearing is not authorized by the Na- (C.A. 5, 1961). And see N L.R.B. v. Air Control Window Products of St. Petersburg, Inc., 335 F.2d 245, 249 (C A. 5, 1964): "If there is nothing to hear, then a hearing is a senseless and useless formality." N.L.R.B. v. Bata Shoe Co., Inc., 377 F.2d 82L(C.A. 4, 1967); N.L R.B. v. Lawrence Typographical Union No. 570 [K'ansas Color Press], 376 F.2d 643 (C.A 10, 1967). Cf. U.S. Rubber Co.,b. N.L.R.B., 373 F.2d 602 (C A. 5, 1967). 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional Labor Relations Act. There is no statutory authori- ty vesting the Regional Director with authority to order a postelection hearing in a representation case concerning the supervisory status of challenged voters. Section 9(c)(1) of the Act authorizes a hearing in a representation case only to determine whether a question of representa- tion affecting commerce exists. But even if there were such authority the Hearing Officer may not make recom- mendations as to the disposition of the case because Sec- tion 9(c)(1) states that a Hearing Officer " shall not make any recommendation." Section 102 .69 of the Board's Rules, which provides for postelection hearings, and recommendations thereon by the Hearing Officer are therefore in contravention of the statute . Finally, the hearing which was held on the challenges was inadequate as a matter of law for the reason that in representation hearings the rules of evidence are not controlling (Rules, 102.66), whereas unfair labor practice hearings are required by Section 10(b) of the Act to be conducted in accordance with the rules of evidence applicable in the district courts. It follows, the Respondent concludes, that the matter of the challenges was not litigated in the representation case and hearing before a Trial Examiner is now in order on that issue. So far as I am aware these contentions are of first im- pression . I find them not sustained . Full opportunity was provided for litigation of all representation issues in the representation proceeding . Apart from that I find the questions not properly raised , and in any event without substance on the merits. In the first place I believe the Respondent estopped from questioning the legality of the hearing on the chal- lenges for the reason that the hearing was pursuant to the Respondent's request. In its letter of September 30, 1967, to the Regional Director , referred to above, the Respondent requested a hearing before a Hearing Officer to determine the challenge issues in the event the Re- gional Director disagreed with the Respondent's views as to their disposition . Having urged such a hearing the Respondent may not now attack as invalid the decision to hold it. Such affirmative action , and additionally the Respondent's failure to object or except to the Regional Director's Supplemental Decision and Order of December 2, 1966 , constituted a waiver of the defect-if one existed. Furthermore , the contention is untimely raised. R.A. Holman & Co., Inc. v. Securities and Exchange Commission , 336 F.2d 446, 454-455 (C.A. 2, 1966). It may be added that since the Board's Rules pro- vide for such hearings it would not be within the province of the Board's Trial Examiner to hold them illegal. In any event the Respondent has not shown how it has been prejudiced by the holding of the hearing on the chal- lenges. The record is complete for review of the merits of the challenges . The Respondent offers no evidence which has been excluded. Indeed , the Respondent's consistent position throughout the representation proceeding, as we have seen, is that the issue of supervisory status had been litigated in the original hearing and it was therefore im- proper to investigate it postelection. With respect to the contention that the rules of evidence differ in representa- tion and unfair labor practice hearings , no showing is made that this difference has had , or any suggestion made as to how it might have had, any substantial effect on the outcome of the proceeding. Finally, I deem unsubstantiated on the merits the Respondent's contention that a postelection hearing in representation cases is unlawful. That Section 9(c) of the Act requires a hearing upon the filing of a petition if the Board has reasonable cause to believe that a question concerning representation affecting commerce is raised, is not authority for the proposition that the section forbids any other hearing in connection with issues raised in the case. I am cited to no authority forbidding an administra- tive agency of the United States Government to hold a hearing prior to disposition of issues within its com- petence if it deems such action necessary or desirable for the development of a full record or for the protection of substantive rights. As to the prohibition in Section 9(c)(1) against recommendations by a Hearing Officer, that is directed to the mandatory preelection hearing and has no application to postelection or discretionary hearings. It is consequently found that there are no unresolved issues requiring hearing before a Trial Examiner. The refusal to bargain being established, judgment on the pleadings is appropriate and the motion therefore is hereby granted. However the General Counsel's motion to strike vari- ous portions of the Respondent's answer as sham or frivolous is denied. In substantial measure these denials are necessary if the Respondent is to preserve its right to pursue review of the representation decision. For without traverse of the allegations bearing on the Union's representative status the Respondent would have no issue to press before the Board or a court. N.L.R.B. v. Rexall Chemical Co., 370 F.2d 363 (C.A. 1, 1967). That the matters may have been decided by the Board adverse- ly to the Respondent in decisions which are binding on the Trial Examiner does not make the Respondent's con- test of their correctness sham or frivolous pleading. I hereby make the following further: FINDINGS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation with its office and place of business at Dallas, Texas, where it is engaged in the manufacture, sale, and distribution of printed materi- als and related products. During the past year, Respond- ent, in the course and conduct of its business operations, sold and distributed at its plant products valued in excess of $100,000 of which products valued in excess of $50,000 were shipped from said plant directly to points outside the State of Texas. Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All lithographic production employees employed at the Respondent's Dallas, Texas, plant, excluding all other employees, inspectors, office clerical employees, guards, watchmen and supervisors as defined in the Act. THE RIVERSIDE PRESS, INC. On September 27, 1966, a majority of Respondent's employees in the appropriate unit selected the Union as their collective-bargaining representative in a secret-bal- lot election conducted under the supervision of the Re- gional Director for Region 16 of the National Labor Rela- tions Board. At all times since April 5, 1967, and continuing to date, the Union has been the representative for the purposes of collective bargaining of the employees in the said unit, and by virtue of Section 9(a) of the Act has been, and is now, the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Since on or about April 5, 1967, and continuing to date, the Union requested and continues to request Respond- ent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment. On or about June 3, 1967, and at all times thereafter Respondent did refuse, and continues to refuse, to bar- gain collectively with the Union. By such action the Respondent has refused to bargain collectively in violation of Section 8(a)(5) of the Act and has interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and the entire record in the case, and pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDER A. For purposes of determining the effective period of duration of the certification the initial year of certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. 6 B. The Riverside Press, Inc., Dallas, Texas, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 267, Dallas-Fort Worth Lithographers and Photoengravers International Union, AFL-CIO, as the exclusive collec- tive-bargaining representative of the employees in the fol- lowing appropriate unit: All lithographic production employees employed at the Respondent's Dallas, Texas, plant, excluding all other employees, inspectors, office clerical em- ployees, guards, watchmen and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent the employees in said ap- propriate unit as the exclusive bargaining representative. 2. Take the following affirmative action which is necessary to'effectuate the policies of the Act: (a) Upon request, bargain collectively with Local 267, Dallas-Fort Worth Lithographers and Photoengravers 6 The purpose of this provision is to ensure that the employees in the appropriate unit will be accorded the statutorily prescribed services of their selected bargaining agent for the period provided by law See Mar- Jac Poultry Co., Inc., 136 NLRB 785; Commerce Co. d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5, 1964); Burnett Construction Co., 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A 10, 1965) 729 International Union, AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages , hours of work, and other terms and conditions of employment , and embody in a signed written agreement any understanding reached. (b) Post at its Dallas, Texas, plant , copies of the at- tached notice marked "Appendix."7 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt thereof , and be main- tained 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." ' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 8 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 16, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT refuse to bargain collectively with Local 267, Dallas-Fort Worth Lithographers and Photoengravers International Union, AFL-CIO, as the exclusive collective-bargaining representative of all the following employees: All lithographic production employees em- ployed at our Dallas, Texas, plant, excluding all other employees, inspectors, office clerical em- ployees, guards, watchmen and supervisors as defined in the National Labor Relations Act. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce employees in the exer- cise of their rights under the Act. WE WILL bargain collectively with Local 267, Dal- las-Fort Worth Lithographers and Photoengravers International Union, AFL-CIO, as exclusive bar- gaining representative of the employees in the bar- gaining unit, and if an understanding is reached we will sign a contract with that Union. THE RIVERSIDE PRESS, INC. (Employer) Dated By (Representative) (Title) 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive or compliance with its provisions, they may communicate days from the date of posting and must not be altered, directly with the Board's Regional Office, Room 8A24, defaced, or covered by any other material. Federal Office Building, 819 Taylor Street, Fort Worth, If employees have any question concerning this notice Texas 76102, Telephone 334-2934.