Schuyler Press, Inc.

162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schuyler Press, Inc., and Local One, Amalgamated Lithographers of America , affiliated with Interna- tional Typographical Union, AFL-CIO. Case 22-CA-5378 January 7, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on April 4, 1973, by Local One, Amalgamated Lithographers of America, affili- ated with International Typographical Union, AFL-CIO, herein called the Union, and duly served on Schuyler Press, Inc., herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 22, issued a complaint on May 16, 1973, 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 December 19, 1972, following a Board election in Case 22-RC-5407 the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate, I and that, commencing on or about March 2, 1973, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collective- ly with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On May 21 and June 14, 1973, Respondent filed its answer and amended answer to the complaint admitting in part, and denying in part. the allegations in the complaint. On June 29, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 11, 1973, 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. Respondent thereafter filed a response to Notice To Show Cause, called Reply to Motion for Summary Judgment. Pursuant to the provisions of Section 3(b) of the 1 Official notice is taken of the record in the representation proceeding, Case 22-RC-5407, as the term "record" is defined in Sees 102.68 and 102 69(f) of the Board's Rules and Regulations, Series 8. as amended. See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C.A 4, 1968); 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 response to the Notice To Show Cause, the Respondent contends that, for the reasons fully set forth in its request for review in the underlying representation Case 22-RC-5407, the Union had been improperly certi- f ied by the Regional Director and that the unique and distinctive factual and legal issues raised thereby with respect to the Regional Director's powers in representation cases, and with respect to due process in representation hearings, require either a hearing before an Administrative Law Judge or a review by the Board itself without a hearing. The General Counsel argues that all material issues have been admitted in the Respondent's answer or had been previously determined in the representation proceed- ing and that, therefore, no issues exist which are litigable before the Board or which require a hearing. We agree with the General Counsel. Our review of the record herein reflects that pursuant to an approved Stipulation for Certification Upon Consent Election, an election was conducted in the stipulated lithographic production employees unit. After the election which was won by the Union and prior to certification, Asbury Park Typographi- cal Union No. 721, AFL-CIO, herein called Typog- raphers. claimed, in its February 20, 1973, letter of protest, that it had an interest in the representation proceeding since some three or four of the unit employees were performing work covered by its current contract with the Respondent. Accordingly, and pursuant, inter alia, to the stipulation of the Union "that [the Acting Regional Director] may nullify the election," the Acting Regional Director, by order dated November 10, 1972, withdrew approval of the Stipulation for Certification Upon Consent Election, declared the election to be null and void, and directed a hearing on the question concerning representation. During the first day of the hearing, November 24, 1972, the Typographers, by letter of the same date, withdrew its protest and objections to the election as expressed in its letter of September-20, 1972. On the second day of the hearing, November 28, 1972, the Union withdrew its agreement to the nullifying order of November 10, 1972, and requested that the Golden Age Beverage Co.. 167 NLRB 151 , enfd 415 F.2d 26 (C.A 5, 1969), Intertype Co v. Penello, 269 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. 208 NLRB No. 35 SCHUYLER PRESS, INC. Stipulation for Certification Upon Consent Election be reinstated and that it be certified as collective- bargaining representative on the basis of the election results. The Respondent opposed this request argu- ing that once nullified, the stipulation and election could not be revived. Also, at the hearing, the Respondent and Union contested the unit inclusion of three employees. The Respondent, announcing that it was not prepared at the time to litigate this issue, requested a continuance. When the continu- ance was denied, it left the hearing without present- ing evidence on this issue. Thereafter, however, evidence from the Union's witnesses was received on the unit placement issue and the hearing closed. Subsequently, the Respondent submitted a brief, a motion to reopen the hearing, and affidavits on the unit inclusion issue. In his Decision, Supplemental Order, and Certifi- cation of Representative issued on December 19, 1972, the Regional Director (1) denied the Respon- dent's motion to reopen the record and to receive the affidavits into evidence because the Respondent had been given sufficient opportunity to introduce the evidence at the hearing, (2) vacated the November 10, 1972, Order Withdrawing Approval of Stipula- tion for Certification, Nullifying Election and Notice of Hearing because no substantive factual reason existed for not certifying the results of the election, especially in view of the valid election recently conducted with the consent of the parties and of the withdrawal of the Typographer's protest, and (3) certified the Union because it had received a majority of the votes cast in the election. Thereafter, the Respondent filed with the Board a request for review in which it sought reopening of the hearing on the unit inclusion issue and in which it basically contended, in substance, that (1) the Regional Director had no power retroactively to revive and validate, against the will of the Respon- dent, the stipulation for the election and the election itself, after he had earlier nullified and declared both of them null and void to which action the parties had stipulated; and (2) the continuation of the hearing after the withdrawal of the Typographers resulted in actions prejudicial to the Respondent primarily with respect to the issue of the unit inclusion of three employees. On February 7, 1973, the Board denied the request for review on the ground that it raised no substantial issues warranting review. In the instant proceeding, the Respondent is, in effect, seeking reconsideration of, and attempting to relitigate, the same identical issues raised by its request for review which were raised and determined in the underlying 163 representation proceeding and the determination of which, upon review, we now reaffirm. 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.2 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. 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 I. THE BUSINESS OF THE RESPONDENT At all material times herein the Respondent, a New Jersey corporation, has maintained its principal office and place of business at 1314 Rose Avenue, Ocean Industries Park, Ocean, New Jersey, where it has been continuously engaged in the business of job printing and related services. During the preceding 12 months, a representative period, the Respondent caused to be purchased, transferred, and delivered to its Ocean facility paper products and other goods and materials valued in excess of $50,000 which were transported to said facility directly from States other than the State of New Jersey. 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. IHE LABOR ORGANIZATION INVOLVED Local One, Amalgamated Lithographers of Ameri- ca, affiliated with International Typographical Un- ion, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2 See Pittsburgh Plate Glass Co v. NLRB, 313 U S 146, 162 (1941), Rules and Regulations or the Board , Sees. 102.67(f) and 102.69(c) 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 lithographic production employees em- ployed at Respondent's Ocean, New Jersey, facility, but excluding all office clerical employ- ees, professional employees, guards and supervi- sors as defined in the Act. 2. The certification On September 15, 1972, a majority of the employ- ees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 22, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective -bargaining ref resentative of the employees in said unit on December 19, 1972, and the Union continues to be such exclusive representative within the meaning of Sectioi , 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about December 1972 and February 15, 1973. and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bar- gaining representative of all the employees in the above-described unit. Commencing on or about March 2, 1973, 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 representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, iince March 2, 1973, 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, 1964), cert, denied 379 U.S. 817 ( 1964); Burnett Construction Company, 149 NLRB 1419, 1421, 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. Schuyler Press, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local One, Amalgamated Lithographers of America, affiliated with International Typographical Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All lithographic production employees em- ployed at Respondent's Ocean, New Jersey, facility, but excluding all office clerical employees, profes- sional 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 December 19, 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 March 2, 1973, and at SCHUYLER PRESS, INC 165 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Schuyler Press, Inc., 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 Local One, Amalga- mated Lithographers of America, affiliated with International Typographical Union, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All lithographic production employees em- ployed at Respondent's Ocean, New Jersey, facility, but excluding all office clerical employ- ees, professional employees, guards and supervi- sorn 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 Ocean, New Jersey, facility copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 22, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. J 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 Local One, Amalgamated Lithographers of America, affiliated with International Typographical Un- ion, 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 lithographic production employees employed at Respondent's Ocean, New Jersey, facility, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. SCHUYLER PRESS, INC. (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 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days from the date of posting and must not be Board's Office, Federal Building, 16th Floor, 970 altered, defaced, or covered by any other material. Broad Street, Newark, New Jersey 07102, Telephone Any questions concerning this notice or compli- 201-645-2100. ance with its provisions may be directed to the