Insilco

TAYLOR PUBLISHING CO. 219 Taylor Publishing Co., a Subsidiary of Insilco and Lithographers & Photoengravers International Union, AFL-CIO. Case 28-CA-2656 November 10, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO dent thereafter filed a response to Notice To Show Cause and counsel for the General Counsel filed a statement answering response to order. 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: Upon a charge filed on June 19, 1972, by Lithographers & Photoengravers International Un- ion, AFL-CIO, herein called the Union, and duly served on Taylor Publishing Co., a Subsidiary of Insilco, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 28, issued a complaint and amendment to complaint on July 3 and 25, 1972, respectively, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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, amendment to 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 amended complaint alleges in substance that on May 22, 1972, following a Board election in Case 28-RC-2141, the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; 2 and that, commencing on or about June 2, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represent- ative, although the Union has requested and is requesting it to do so. On or about July 14 and August 4, 1972, respectively, Respondent filed its answer and first amended answer to the amended complaint admitting in part, and denying in part, the allegations in the amended complaint. On August 16, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 22, 1972, 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. Respon- I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 Official notice is taken of the record in the representation proceeding, Case 28-RC-2141, as the term "record" is defined in Secs. 102 68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See LTV Elecfrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269 Ruling on the Motion for Summary Judgment In its answer to the amended complaint and response to the Notice To Show Cause opposing the General Counsel's Motion for Summary Judgment, the Respondent contests the validity of the Union's majority status and its certification as the exclusive collective-bargaining representative of the employees in the appropriate unit. The General Counsel argues that he is entitled to have his motion granted because the Respondent is attempting to relitigate issues raised and determined by the Board in the underly- ing representation case and it has not alleged newly discovered or previously unavailable evidence or special circumstances which would justify relitiga- tion. We agree with the General Counsel. The record in the representation Case 28-RC-2141 reflects that, following the issuance of the Regional Director's Decision and Direction of Election, the Respondent, on June 9, 1971, filed a motion to dismiss petition and alternatively request for admin- istrative investigation of Petitioner's showing of interest alleging that leadmen whose supervisory status had been in dispute had participated in the Union's organizational campaign and engaged in threatening and coercive conduct. The ballots cast in the election conducted on June 10, 1971, were impounded pending disposition of the Respondent's motion. On June 18, 1971, the Regional Director denied the motion and directed the ballots be counted and tallied. The Respondent timely filed with the Board a request for review and a stay in the count and tally of ballots. On July 7, 1971, the Board granted the Respondent's motion for a stay, pending the Regional Director's ruling on the administrative investigation of the Union's interest showing. After his additional investigation, the Regional Director, on July 27, 1971, ruled that the Union's showing of interest satisfied the Board's administrative require- ment. Accordingly, the impounded ballots were F.Supp 573 (D.C. Va, 1967); Follett Corp., 164 NLRB 378, enfd. 397 F 2d 91 (C.A. 7, 1968), Sec. 9(d) of the NLRA. To the extent that Respondent seeks to incorporate in the record herein documents in the Region's official file that are not encompassed within the definition of "record" as defined in Secs. 102.68 and 102.69(f) of the Board's Rules and Regulations, its request is denied. 200 NLRB No. 16 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opened and counted. The tally showed that a majority of the votes had been cast for the Union. On August 13, 1971, the Respondent timely filed objections which were stated in its motion to dismiss petition and alternatively request for administrative investigation of Petitioner's showing of interest. In substance, the objections alleged that supervisors engaged in preelection conduct on behalf of the Union thereby destroying the laboratory conditions for an election, making a fair election impossible, and tainting the resulting tally. The Regional Director, on September 24, 1971, issued a Supple- mental Decision on Objections and Order Directing Hearing on the factual and credibility issues raised by the objections. After a hearing at which all parties appeared and were afforded full opportunity to participate, the Hearing Officer issued his Report and Recommendations on Objections to Election on February 3, 1972, in which he recommended that the Respondent's objections be overruled in their entire- ty and that the Union be certified. Thereafter, the Respondent filed with the Board timely exceptions to the Hearing Officer's Report and Recommendations on Objections to Election. On May 22, 1972, the Board issued its Second Supplemental Decision and Certification of Representative in which it overruled the Respondent's objections and certified the Union as the exclusive bargaining representative of the employees in the appropriate unit. 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 the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the 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.4 We therefore find that the 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 1. THE BUSINESS OF THE RESPONDENT Respondent is a Delaware corporation, which at all times material herein has maintained its principal office and place of business at 1550 West Mocking- bird Lane, Dallas, Texas, and an office and place of business at 3210 Dyer Street, El Paso, Texas, and has been continuously engaged at El Paso and various other facilities in several States of the United States in the business of graphic arts and the preparation of copy and negatives for printing school year books. During the last calendar year, in the course and conduct of its business operations, Respondent sold and distributed products, the gross value of which exceeded $500,000. During the same period of time, Respondent sold and shipped its products, valued in excess of $50,000, in interstate commerce directly among and between various States of the United States. 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 Lithographers & Photoengravers International Union, 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 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Respondent at 3210 Dyer Street, El Paso, Texas, including production control clerks, acting leadmen and janitors; excluding all office clerical and professional employees, lead- men, guards, watchmen and supervisors as defined in the Act. 3 See Pittsburgh Plate Glass Co. v N L RB, 313 U S. 146, 162 (1941); underlying representation proceeding and the date of the election. The Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). Respondent does not contend, and we find, that the affidavit is not newly 4 Attached to the response to the Notice To Show Cause is the affidavit discovered or previously unavailable evidence or special circumstances of the general manager of the El Paso facility dealing with the Respondent 's warranting relitigation of the previously determined issues work force during the period between the filing of the petition in the TAYLOR PUBLISHING CO. 221 2. The certification On June 10, 1971, 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 28, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on May 22, 1972, 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 May 27, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about June 2, 1972, and continuing at all times thereafter to date, the 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 the Respondent has, since June 2, 1972, 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, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. 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 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; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Taylor Publishing Co., a Subsidiary of Insilco, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Lithographers & Photoengravers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Respondent at 3210 Dyer Street, El Paso, Texas, including production control clerks, acting leadmen and janitors; excluding all office clerical and professional employees, leadmen, guards, watchmen 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 May 22, 1972, 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 June 2, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged 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, 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)(1) 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. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER APPENDIX Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Taylor Publishing Co., a Subsidiary of Insilco, 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 conditions of employment with Lithographers & Photoengravers International Union, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All production and maintenance employees employed by the Respondent at 3210 Dyer Street, El Paso, Texas, including production control clerks, acting leadmen and janitors; excluding all office clerical and professional employees, lead- men, guards, watchmen 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 El Paso, Texas, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 28, 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 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 28, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 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." 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 Lithog- raphers & Photoengravers International Union, AFL-CIO, 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 employ- ees employed by the Respondent at 3210 Dyer Street, El Paso, Texas, including production control clerks, acting leadmen and janitors; excluding all office clerical and professional employees, leadmen, guards, watchmen and supervisors as defined in the Act. TAYLOR PUBLISHING CO., A SUBSIDIARY OF INSILCO (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 7011 Federal Building, U.S. Court- house, P.O. Box 2146, 500 Gold Avenue SW., Albuquerque, New Mexico 87101, Telephone 505-843-2508.