Steven Label Corp.

STEVEN LABEL CORP. Steven Label Corporation and Graphic Arts Interna- tional Union, Local 262, AFL-CIO-CLC. Case 21-CA-16054 January 19, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on September 23, 1977, by Graphic Arts International Union, Local 262, AFL- CIO-CLC, herein called the Union, and duly served on Steven Label Corporation, herein called Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint and notice of hearing on September 29, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning 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 hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on August 10, 1977, following a Board election in Case 21-RC- 15059, 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 21, 1977, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represen- tative, although the Union has requested and is requesting it to do so. On October 11, 1977, Respon- dent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On October 20, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 3, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show I Official notice is taken of the record in the representation proceeding, Case 21-RC-15059, 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 Elecrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello. 269 F.Supp. 573 (D.C.Va., 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. as amended. 2 By letter dated October 13, 1977, to John C. Truesdale, the Board's former Executive Secretary. Respondent, pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 552 and Sec. 102.117 of the Board's Rules and Regulations, requested certain information pertaining to the Board's processing of its request for review of the Acting Regional Director's 234 NLRB No. 46 Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 in its memoran- dum in opposition to the General Counsel's Motion for Summary Judgment, which was filed in response to the Notice To Show Cause, Respondent contends, in substance, that the Board's certification is invalid (1) because "supervisory employees openly expressed their support of the Union thereby intimidating and depriving the employees of free choice in the elec- tion" and (2) because of its good-faith belief that the Board did not properly consider its request for review of the Regional Director's Supplemental Decision and Certification of Representative. The Respondent's "belief' that it was denied due process is based, in part, on the Board's "use of boilerplate language in the telegram and the failure to identify the Board Members who acted upon the request." 2 The General Counsel contends that Respondent is raising issues which were or could have been raised in the representation proceeding and is precluded from relitigating them herein. We agree with the General Counsel. Our review of the record herein, including that in the underlying representation proceeding, Case 21- RC-15059, shows that the election in this matter, which was held on June 10, 1977, pursuant to a Decision and Direction of Election issued by the Regional Director on May 12, 1977, resulted in a vote of 26 for, and 5 against, the Union, with 3 challenged ballots, an insufficient number to affect the results of the election. On June 16, 1977, Respondent filed timely objections to conduct affect- ing the results of the election. On August 10, 1977, the Acting Regional Director issued a Supplemental Decision and Certification of Representative, in Supplemental Decision and Certification of Representative in Case 21-RC- 15059. On October 14, 1977, Respondent filed with Chairman Fanning an "Application to Take Deposition" (of John C. Truesdale) in subject case. In a letter to Respondent's counsel dated October 21, 1977, Mr. Truesdale provided Respondent with the information requested as to how the Board processes a request for review. On October 20, 1977, the General Counsel filed a "Motion to Reject Respondent's Application for Consent to Take Deposition." Subsequently, in a letter to Mr. Truesdale dated October 28, 1977, Respondent requested "clarification in lieu of deposition" of the information previously provided by the Executive Secretary and thereby effectively withdrew its application to take deposition. Accordingly, the General Counsel's motion to reject Respondent's application for consent to take deposition is moot. 305 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which he recommended that the Respondent's objec- tions be overruled in their entirety and that the Union be certified as the exclusive bargaining repre- sentative for the employees in the appropriate unit described in the complaint. On August 25, 1977, Respondent filed a timely request for review of the Acting Regional Director's Supplemental Decision and Certification of Representative. Thereafter, on September 16, 1977, the Board denied Respondent's request for review on the ground that it raised no substantial issues warranting review. On September 28, 1977, Respondent filed a motion for reconsider- ation of the Board's denial of its request for review. In this motion, Respondent contended, inter alia, that the Board, because of its emphasis on "increased speed in case handling," merely applied "a rubber stamp formula" in denying its request for review "By Order Of The Board," and that the above formula resulted in the Board's failure to properly consider the "supervisory taint" issues raised in the request for review and "must necessarily require increased dele- gation of authority to legal assistants and members of the Board's staff." Thereafter, on October 18, 1977, a Board panel, consisting of Chairman Fan- ning and Members Jenkins and Penello, denied Respondent's motion for reconsideration of the Board's denial of its request for review. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate 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 representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previously 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 properly litigable in this unfair labor practice proceeding. We shall, accordingly, 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 THE RESPONDENT At all times material herein, Respondent has been engaged in the business of manufacturing labels, 3 See 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). nameplates, and decals in a facility located at 11926 Burke Street, Sante Fe Springs, California. In the normal course and conduct of its business operations described herein, Respondent annually purchases and receives goods and products valued in excess of $50,000 directly from suppliers located outside the State of California. We find, on the basis of the foregoing, that Respondent 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. II. THE LABOR ORGANIZATION INVOLVED Graphic Arts International Union, Local 262, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. III. 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 production and maintenance employees, ship- ping and receiving employees, and truckdrivers employed by Respondent at its facility located at 11926 Burke Street, Santa Fe Springs, California; excluding office clerical employees, guards and supervisors as defined in the Act. 2. The certification On June 10, 1977, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 21, 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 August 10, 1977, and the Union continues 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 19, 1977, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all 306 STEVEN LABEL CORP. the employees in the above-described unit. Com- mencing on or about September 21, 1977, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since September 21, 1977, 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, Respon- dent has engaged 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 its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traff- ic, 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 meaning 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 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Steven Label Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Graphic Arts International Union, Local 262, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, shipping and receiving employees, and truckdrivers employed by Respondent at its facility located at 11926 Burke Street, Santa Fe Springs, California; excluding office clerical 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 August 10, 1977, the above-named labor 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 21, 1977, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent has engaged 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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 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 Relations Board hereby orders that Respondent, Steven Label Corporation, Santa Fe Springs, Califor- nia, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Graphic Arts Inter- national Union, Local 262, AFL-CIO-CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: 307 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees, ship- ping and receiving employees, and truckdrivers employed by Respondent at its facility located at 11926 Burke Street, Santa Fe Springs, California; excluding office clerical employees, 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its facility at 11926 Burke Street, Santa Fe Springs, California, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's represen- tative, 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 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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 Graph- ic Arts International Union, Local 262, AFL- CIO-CLC, as the exclusive 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 WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described 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 production and maintenance employees, shipping and receiving employees, and truckdrivers employed by Respondent at its facility located at 11926 Burke Street, Sante Fe Springs, California; excluding office cler- ical employees, guards and supervisors as defined in the Act. STEVEN LABEL CORPORATION 308