Alden Press, Inc.

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alden Press, Inc.' and Local #8 Graphic Arts Interna- tional Union, AFL-CIO, Petitioner. Case 13- RC-13026 July 26, 1974 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Harvey A. Roth of the National Labor Relations Board. Following the close of hearing, the Regional Director for Region 13 transferred this case to the Board for decision. There- after, the Employer and the Petitioner filed briefs.2 The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board finds: 1. The parties stipulated and we find that the Em- ployer, who provides printing and related services, is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to repre- sent certain employees of the Employer. While the Employer questioned the Petitioner's status as a labor organization and its ability to adequately represent the employees in the unit sought, the record discloses that the Petitioner admits employees to membership and represents employees concerning wages, hours, and working conditions. Accordingly, it is clear that the Petitioner is a labor organization within the mean- ing of Section 2(5) of the Act. The Employer contends that the Petitioner is dis- qualified from seeking an election under Section 9(c) of the Act on the grounds that it engaged in discrimi- natory practices on the basis of sex.3 The Employer placed such disqualification in issue when, on May 16 and 17, 1973, subpoenas duces tecum were served by the Employer on William T. Edwards, representative of the Petitioner, and Patricia Jenkins, secretary-trea- surer of Graphics Arts International Union, Local No. 30-B, the sister local of Petitioner. Attached to each subpena was a schedule setting forth the items whose production was requested, including (a) mem- bership lists indicating the sex of all members, (b) present and preceding constitution and bylaws, (c) pension plan agreements, (d) health and welfare 1 As amended during the hearing 2 The Employer's request for oral argument is hereby denied since the record and beefs adequately present the issues and positions of the parties 3 N.L R B v. Mansion House Center Management Corp, 473 F 2d 471 (C A 8, 1973) agreements, (e) lists of individuals who had applied for membership, (f) certain collective-bargaining agreements and certain other documents containing evidence bearing on the issue of Petitioner's disquali- fication to obtain or retain certification. On May 21, Petitioner filed with the Regional Di- rector for Region 13 petitions to revoke the subpenas. The sole ground upon which revocation of the subpe- nas was sought was that: The materials set forth in Schedule "A" of the aforesaid Subpoena Duces Tecum are irrelevant and immaterial to any germane issues in connec- tion with the subject representation petition and hearing. On May 23, the Regional Director issued an "Order Referring Petitions To Revoke Subpoenas," by which he referred to the Board the petitions to revoke be- cause, in his view, the petitions "raised certain policy considerations." On June 1, a telegraphic order was issued by the Board's Executive Secretary, informing the parties that the Board had granted Petitioner's petitions to revoke the subpenas because: The Board is of the opinion that it would not effectuate the policies of the Act to litigate the disqualification issue at the pre-election hearing. The order also noted that the issue of Petitioner's disqualification based on discriminatory practices could, however, be raised as a postelection objection under the provisions of Section 102.69 of the Board's Rules and Regulations. Thereafter, the hearing in this case was held on June 15, during which the Employer moved that the proceedings be postponed to permit the Employer sufficient time to request reconsideration of the Board's order revoking the subpenas as an alternative to the institution of injunction proceedings in the Fed- eral district court. That motion was denied by the Hearing Officer, whereupon the Employer requested, and was granted, leave to file with the Regional Direc- tor a special appeal from the Hearing Officer's ruling. The Acting Regional Director suggested that the par- ties proceed with the hearing, but that following the hearing the Employer's motions would be given due consideration. The Employer has filed with the Board a motion for reconsideration of the Board's order. The Employer has in no way waived its contention that the Board lacks jurisdiction to proceed without first hearing evidence on the issue of Petitioner's dis- qualification. 212 NLRB No. 91 ALDEN PRESS, INC. 581 Following the hearing, this case was transferred to the Board by'order of the Regional Director because it involves Mansion House issues as well as subpena problems arising therefrom in which a prehearing mo- tion to quash subpenas has been ruled upon by the Board. The issue of disqualification of Petitioner on grounds of discrimination based on sex is substantial- ly the same as that in Bekins Moving & Storage Co. of Florida, Inc.,4 and we are of the opinion that it would not effectuate the policies of the Act to permit litiga- tion of such issues at the preelection stage of the pro- ceedings.' Therefore, we deny the Employer's motion for the Board to reconsider its order revoking the Employer's subpenas. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the fol- lowing employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time production employees and other employees not currently represented by another labor organization who are employed at the employer's locations at 5060 North Kimberly Avenue, Chicago, Illinois, and/or 2000 Arthur Avenue, Elk Grove Village, Illinois, but excluding all office clerical employ- ees professional employees, guards and supervi- sors as defined in the Act.6 4 211 NLRB No 7 5 The Board has held that such inquiries are outside the scope of a preelec- tion hearing. As noted in Bekins Moving & Storage Co of Florida, Inc, supra, Chairman Miller and Member Jenkins would consider objections to a labor organization's capacity to fairly represent employees only upon the postelec- tion filing of properly substantiated objections to the issuance of a certifica- tion. Member Kennedy concurs substantially with that postelection procedure but would limit consideration to the issue of alleged discrimination on the basis of "race, alienage, or national origin ." Members Fanning and Penello reject the contentions of the Employer herein for the reasons stated in their dissenting opinions in Bekins They would not consider allegations of discriminatory practices by labor organizations in a precertification pro- ceeding but would "leave such questions as they may raise, with respect to the Petitioner's willingness or capacity to represent fairly all employees in the bargaining unit, to be resolved in other proceedings under the Act " [Direction of Election and Excelsior footnote omit- ted from publication.] 6 In addition, the parties entered into the following stipulations with re- spect to unit composition: The term "supervisors" includes (a) Ray Lank, (b) Ed Coates, ( c) Sam Sorrentino; (d) Joe Sadora; (e) Joseph Sorrentino ; (f) Nate Price; (g),Irv Adleman; (h) Keith Peters; (i) Harold Schuett; 0) Howard LaFleur; (k) Frank Gracia Krunsinski , and (1) Paul Frontezak- It was also agreed that while there may be individuals occupying supervisory positions above those indicated, there were no individuals in positions below those indicated who would be excluded as supervisors within the meaning of Section 2 (11) of the Act. The term "production employees" includes all quality control employees. The term "office clerical employees" includes (a) Susan Teguire ; (b) Lu- cille Benke , and (c) Mary Zucker.