New England Lithographic Co.

NEW ENGLAND LITHOGRAPHIC New England Lithographic Company, Inc. and Graph- ic Arts International Union, Local No. 300, AFL- CIO-CLC. Case 1-CA-13426 December 7, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on July 28, 1977, by Graphic Arts International Union, Local No. 300, AFL-CIO- CLC, herein called the Union, and duly served on New England Lithographic Company, Inc, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint and notice of hearing and amendment to complaint on August 18 and 22, 1977, 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, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the record reflects that on July 7, 1977, following a Board election in Case I-RC-14400, 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 July 8, 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 representative, although the Union has requested and is requesting it to do so. Subsequently, the Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. The Respondent admits all of the factual allegations of the complaint, except those paragraphs which relate to the underlying representation proceeding, Case l-RC-14400. I Official notice is taken of the record in the representation proceeding, Case I-RC-14400, as the term "record" is defined in Sees. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, 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); Follert Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 On July 13, 1976, the Regional Director issued his report on challenged ballots in which he recommended, inter alia, that the challenge to the ballot of Joseph Riley be overruled, and that a hearing be held with respect to the challenged ballot of Nicholas Costa. On October 1, 1976, the Board issued a Decision and Order Directing Hearing in which it adopted the Regional 233 NLRB No. 152 On September 12, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached, alleging, in substance, that Respondent, in its answer, is seeking to relitigate issues which were or could have been raised and determined in the underlying representation proceeding, and requesting the Board to grant the Motion for Summary Judgment. Subse- quently, on September 19, 1977, 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. 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 As reflected above, Respondent's answer admits all of the factual allegations of the complaint, including its refusal to recognize and bargain with the Union which had been certified as the collective-bargaining representative of the employees described in the complaint. In its response to the Notice To Show Cause, Respondent attacks the validity of the election and the resulting certification and asserts that the challenges to the ballots of Joseph Riley and Nicholas Costa should have been sustained.2 By this assertion, and more specifically by its denials, in whole or in part, of the allegations of the complaint and by the arguments propounded in its response to Notice To Show Cause, Respondent is attempting to relitigate the same issues which it raised in the representation proceeding, Case l-RC- 14400. 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(aX5) is not entitled Director's findings and recommendations with respect to Riley and Costa. On January 14, 1977, the Hearing Officer issued his report on challenges in which he recommended, inter alia, that the challenge to the ballot of Costa be overruled. Thereafter, the Respondent filed exceptions to the report and a supporting brief and the Union filed a memorandum in opposition thereto. On June 17, 1977, the Board issued its Decision and Direction in which, after having considered the Hearing Officer's report, the Respon- dent's exceptions and brief, and the Union's memorandum in opposition, it adopted the Hearing Officer's findings, conclusions, and recommendations. The Board noted that it agreed with the Respondent that Costa was discharged on April 25, 1976, but that finding did not require that the Board reject the Hearing Officer's recommendation with respect to the challenge to Costa's ballot. 1013 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Respondent, a Massachusetts corporation, has maintained at all times material herein its principal office and place of business at 9-27 Melcher Street, Boston, Massachusetts, where it is now and continu- ously has been engaged in the provision of commer- cial printing services and related services. Respon- dent in the course and conduct of its business causes, and continuously has caused at all times material herein, large quantities of raw materials used by it in the provision of commercial printing services and related services to be purchased and transported in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts, and causes, and continuously has caused at all times material herein, substantial quantities of commercially printed products and related products to be sold and transported from said plant in interstate commerce to States of the United States other than the Commonwealth of Massachu- setts. Respondent annually receives within the Commonwealth of Massachusetts goods valued in excess of $50,000 directly from points located in States other than the Commonwealth of Massachu- setts. Respondent annually ships from within the Commonwealth of Massachusetts goods valued in excess of $50,000 directly to points located in States other than the Commonwealth of Massachusetts. 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. 3 See Pittsburgh Plate Glass Co. v. N.LR.B.., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). II. THE LABOR ORGANIZATION INVOLVED Graphic Arts International Union, Local No. 300, 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 the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All regular full-time and regular part-time lithographic production employees employed at Respondent's 9-27 Melcher Street, Boston, Mas- sachusetts, location, but excluding all other employees, guards and supervisors as defined in the Act. 2. The certification On June 4, 1976, 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 1, 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 July 7, 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 July 8, 1977, 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 July 8, 1977, 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 July 8, 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- 1014 NEW ENGLAND LITHOGRAPHIC 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 (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. New England Lithographic Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Graphic Arts International Union, Local No. 300, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and regular part-time lithographic production employees employed at Respondent's 9-27 Melcher Street, Boston, Massa- chusetts, location, but excluding all other 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 July 7, 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 July 8, 1977, 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, New England Lithographic Company, Inc., Boston, Massachusetts, 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 Graphic Arts Inter- national Union, Local No. 300, AFL-CIO-CLC, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All regular full-time and regular part-time lithographic production employees employed at Respondent's 9-27 Melcher Street, Boston, Mas- sachusetts, location, but excluding all other 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 1015 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Boston, Massachusetts, facility copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 1, 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 1, 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 No. 300, 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 regular full-time and regular part-time lithographic production employees em- ployed at Respondent's 9-27 Melcher Street, Boston, Massachusetts, location, but exclud- ing all other employees, guards and supervi- sors as defined in the Act. NEW ENGLAND LITHOGRAPHIC COMPANY, INC. 1016