The Ypsilanti Press, Inc.

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Ypsilanti Press, Inc. and Newspaper Drivers and Handlers Local 372, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America. Case 7-CA-11840 July 18, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a charge filed on March 12, 1975, by News- paper Drivers and Handlers Local 372, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, herein called the Union, and duly served on The Ypsilanti Press, Inc., herein called the Respondent, the Gener- al Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a com- plaint on April 4, 1975, and on April 15, 1975, issued an amendment to complaint against Respondent, al- leging that Respondent had engaged in and was en- gaging 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 pro- ceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on February 21, 1975, following a Board election in Case 7-RC-12600 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; ' and that, commenc- ing on or about March 3, 1975, and particularly on or about April 11, 1975, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. Thereafter Respondent filed its answer to the com- plaint and amendment to answer admitting in part, and denying in part, the allegations in the complaint. On April 28, 1975, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Thereafter, by letter dated May 2, 'Official notice is taken of the record in the representation proceeding, Case 7-RC-12600, 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 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); Follett Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 1975, the Union joined in support of the General Counsel's motion. Subsequently, on May 12, 1975, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted. Respondent has not filed a response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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, Respondent denies the representa- tive status of the Union and admits its refusal to bar- gain upon the Union's request because the Board has erred in certifying the results of the election in repre- sentation Case 7-RC-12600. Counsel for the General Counsel alleges that Respondent cannot now reliti- gate representation issues which were or could have been litigated in the prior representation proceeding. We agree. Our review of the record in the representation case shows that after a hearing the Regional Director for Region 7, on October 23, 1974, issued a Decision and Direction of Election in which he ordered an election in the appropriate unit. A secret ballot election was conducted on November 22, 1974, which resulted in four votes cast for the Union, two against, with two challenged ballots determinative of the election. The Respondent filed timely objections alleging, in sub- stance, that (1) there was supervisory involvement in supporting the Union during the organizing drive and election campaign; (2) the Union made threats that if employees did not vote for the Union they would be fired by Respondent; (3) statements were made by the Union on election day that it would overturn the results of the election if it was unsuc- cessful; and (4) the Union made statements which led employees to believe their ballots would not be secret. After investigation of the challenges and objec- tions, the Regional Director issued a Supplemental Decision on Challenged Ballots and Objections to Conduct Affecting the Election, Revised Tally of Ballots and Certification of Representative, in which he sustained the challenge to one ballot thereby caus- ing the remaining challenged ballot to be nondeter- minative of the election, overruled the Respondent's objections, and, in light of his finding that majority of valid votes were cast in the Union's favor, certified 219 NLRB No. 30 THE YPSILANTI PRESS, INC. 239 the Union as exclusive representative of all the em- ployees in the unit. Thereafter, on March 6, 1975, Respondent filed exceptions 2 to the Regional Director's Supplemental Decision in which it alleged its objections to the elec- tion should have been sustained and the election va- cated or in the alternative a hearing should have been held because the objections raised substantial and material issues of fact. Respondent also alleged that both challenged ballots should have been opened and counted. On April 4, 1975, the Board, by telegraphic order, denied Respondent's request for review because it raised no substantial issues war- ranting review. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.' All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision 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 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein a corporation duly organized under, and ex- isting by virtue of, the laws of Michigan. At all times material herein, Respondent has maintained an of- fice and place of business at 20 East Michigan Ave- nue in the city of Ypsilanti, Michigan, the only facili- ty involved in this proceeding where it is engaged in publishing a daily newspaper and related operations. During the year ending December 31, 1974, a repre- sentative period, Respondent in the course and con- duct of its business operations had a gross revenue in 2 Under Secs. 102.69 and 102.67 of the Board's Rules and Regulations, Series 8, as amended, this was treated as a request for review. 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). excess of $200,000 and held membership in or sub- scribed to various interstate news services, published nationally syndicated features, advertised various na- tionally sold products, and purchased and caused to be transported and delivered directly from points lo- cated outside Michigan to its Ypsilanti place of busi- ness newsprint, ink, and other goods and materials valued in excess of $50,000. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Newspaper Drivers and Handlers Local 372, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time circulation department district manager employees em- ployed by the Employer at or out of its premises at Ypsilanti, Michigan; but excluding office clerical employees, technical employees, profes- sional employees, managerial employees, motor route district manager, promotion man, guards and supervisors as defined in the Act. 2. The certification On November 22, 1974, a majority of the employ- ees of Respondent in said unit, in a secret ballot elec- tion conducted under the supervision of the Regional Director for Region 7, 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 February 21, 1975, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Request To Bargain and Respondent's Refusal Commencing on or about February 24, 1975, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about March 3 and April 11, 1975, and contin- uing 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 March 3, 1975, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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, inti- mate, 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 commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected 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); Bur- nett 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. The Ypsilanti Press , Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Newspaper Drivers and Handlers Local 372, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time circulation department district manager employees employed by the Employer at or out of its premises at Ypsilanti, Michigan ; but excluding office clerical employees, technical employees, professional employees, mana- gerial employees, motor route district manager, pro- motion man, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpos- es of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since February 21, 1975, the above-named la- bor 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 3, 1975, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit , Respondent has en- gaged 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees 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 mean- ing 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 Re- lations Board hereby orders that Respondent, Ypsi- lanti Press, Inc., Ypsilanti, Michigan, its officers, agents, successors, and assigns, shall: THE YPSILANTI PRESS, INC. 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Newspaper Drivers and Handlers Local 372, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All full-time and regular part-time circulation department district manager employees em- ployed by the Employer at or out of its premises at Ypsilanti, Michigan; but excluding office clerical employees, technical employees, profes- sional employees, managerial employees, motor route district manager, promotion man, 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 Ypsilanti, Michigan, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices 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 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. CHAIRMAN MURPHY, dissenting: I would have granted review and directed a hear- ing on Employer's Objection 1; therefore, I cannot 241 join my colleagues in finding that Respondent violat- ed Section 8(a)(5) in refusing to bargain. ° 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Newspaper Drivers and Handlers Local 372, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time circula- tion department district manager employees employed by the Employer at or out of its premises at Ypsilanti, Michigan; but exclud- ing office clerical employees, technical em- ployees, professional employees, managerial employees, motor route district manager, pro- motion man, guards and supervisors as de- fined in the Act. THE YPSILANTI PRESS, INC.