Custom Display Studios

128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Porto, Inc. d/b/a Custom Display Studios and Sign, Pictorial and Display Union Local 591, International Brotherhood of Painters and Allied Trades, AFL-CIO, Case 7-CA-13110 December 7, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on June 23, 1976, by Sign, Pictorial and Display Union Local 591, International Brotherhood of Painters and Allied Trades, AFL- CIO, herein called the Union, and duly served on Mr. Porto, Inc. d/b/a Custom Display Studios herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on July 2, 1976, 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 June 8, 1976, following a Board election in Case 7-RC-13130, 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 June 22, 1976, 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. On July 16, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and on August 2, 1976, Respondent filed an amended answer to the com- plaint. On August 12, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 26, 1976, 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 there- after filed a response to Notice To Show Cause, entitled "Brief in Opposition to General Counsel's i Official notice is taken of the record in the representation proceeding, Case 7-RC-13130, 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 Electrosystenu, Inc, 166 NLRB 938 (1967), enfd 388 F 2d 683 (C.A 4, 227 NLRB No. 29 Motion for Summary Judgment and Employer's Motion to Dismiss Complaint." 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 In its answer and amended answer to the complaint and in its response to the Notice To Show Cause, Respondent admits all factual averments of the complaint but denies the validity of the Union's certification and Respondent's consequent obligation to bargain, on the basis of its objections to conduct affecting the results of the election in the underlying representation proceeding. The General Counsel asserts that Respondent is endeavoring to test the validity of the Regional Director's certification through relitigation of issues determined in the representation proceeding and that there are no factual issues which would necessitate an evidentiary hearing. We agree with the General Counsel. Review of the record herein, including that in Case 7-RC-13130, discloses that, after a hearing, the Regional Director directed an election among the employees in a production and maintenance unit stipulated and found to be appropriate. Respondent filed a request for review of the Regional Director's Decision and Direction of Election in which it contested the exclusion from the unit of an employee found to be an office clerical and the inclusion of several section heads found to be nonsupervisory. In a telegraphic order of October 20, 1975, the Board denied Respondent's request for review as raising no substantial issues warranting review but without prejudice to the right of any party to challenge any of the section heads on the basis of supervisory status. The telegram further stated that the Board found it unnecessary to reach the issue raised as to the exclusion of the office clerical. The tally of ballots issued at the conclusion of the election conducted on October 21, 1975, indicated that three ballots were cast for, and two against, the Union, with seven ballots challenged. Respondent filed timely objections to conduct affecting the results of the election in which it alleged, in substance, that the Union actively, or by condonation, promoted picket line misconduct involving threats of bodily harm to unit employees and the placing of nails in Respondent's driveway, or that, assuming, arguendo, 1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26 (C A. 5, 1969), Intertype Co v. Penello, 269 F Su, p. 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, as amended CUSTOM DISPLAY STUDIOS the Union did not promote or condone these activi- ties, the activities nevertheless constituted objection- able third party conduct. After investigation, the Regional Director ordered a hearing on the substan- tial and material factual issues raised by the challeng- es and objections. During the hearing before the Hearing Officer all challenges were resolved by written stipulation of the parties which provided for immediate issuance of a revised tally of ballots. The revised tally disclosed that six votes had been cast for, and three against, the Union. On April 23, 1976, the Hearing Officer issued his report in which he recommended that all objec- tions be overruled and that a Certification of Repre- sentative issue in accordance with the revised tally of ballots. Respondent filed timely exceptions to the report together with a supporting brief basically attacking the Hearing Officer's findings regarding the credibility and/or competency of Respondent's wit- nesses and his recommendations. On June 8, 1976, the Regional Director issued a Supplemental Deci- sion and Certification of Representative in which he adopted the Hearing Officer's recommendations, overruled Respondent's objections,2 and certified the Union. Respondent timely filed a request for review of the Regional Director's supplemental decision, and the Board, in a telegraphic communication of July 23, 1976, denied Respondent's request on the ground that it raised no substantial issues warranting review. It thus appears that Respondent is endeavoring here to relitigate matters considered and determined in the representation proceeding. 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 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.4 2 Respondent's objections to the election were also the subject of an unfair labor practice charge, alleging a violation of Sec. 8(b)(1)(A) of the Act, against the Union in Case 7-CB-3373, in which the Regional Director refused to issue complaint and in which the action of the Regional Director was sustained upon appeal to" the General Counsel. In overruling the objections, the Regional Director found that the objectionable conduct, even 129 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS, OF RESPONDENT Respondent is a Michigan ' corporation with its principal office and place of business in Detroit, Michigan, where it is engaged in the manufacture, sale, and distribution of signs and advertising dis- plays. During the past calendar year, Respondent purchased and received at its Detroit, Michigan, place of business goods and materials valued in excess of $250,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its Detroit, Michigan, place of business directly from points located outside the State of Michigan. 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 Sign, Pictorial and Display Union Local 591, International Brotherhood of Painters and Allied Trades, 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Employer at its facility located at -11450 Warwick, Detroit, Michigan; but excluding all office clerical employees, guards and supervi- sors as defined in the Act. ' 2. The certification On October 21, 1975, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional if assumed to be violative of Sec. 8(b)(1)(A) of the Act, did not warrant setting aside the election. 3 See Pittsburgh Plate Glass Co. v. NLRB, 313 U S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(1) and 102.69(c) 4 In view of our disposition herein, we shall deny Respondent's motion to dismiss the complaint 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director for Region 7, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on June 8, 1976, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about June 10 and 18, 1976, and at all times thereafter, the Union has requested 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 22, 1976, and continuing at all times thereafter to date, 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 Respondent has, since June 22, 1976, 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, Respondent 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 operations 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 com- merce 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 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. Mr. Porto, Inc., d/b/a Custom Display Studios, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sign, Pictorial and Display Union Local 591, International Brotherhood of Painters and Allied Trades, 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 Employer at its facility located at 11450 Warwick, Detroit, Michigan; but excluding all office clerical 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 June 8, 1976, 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 22, 1976, 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, 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 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 Mr. Porto, Inc., d/b/a Custom Display Studios, Detroit, CUSTOWDISPLAY STUDIOS Michigan, 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 Sign, Pictorial and Display Union Local 591, International Brotherhood of Painters and Allied Trades, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by the Employer at its facility located at 11450 Warwick, Detroit, Michigan; but excluding all office clerical employees, guards and supervi- sors 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 facility at 11450 Warwick, Detroit, Michigan, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provid- ed by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous 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. 131 (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. 5 In the event that this Order is enforced by a Judgment ofa 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 Sign, Pictorial and Display Union, Local 591, Interna- tional Brotherhood of Painters and Allied Trades, 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 representative 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 agreement. The bar- gaining unit is: All production and maintenance employ- ees employed by the Employer at its facility located 11450 Warwick, Detroit, Michigan; but excluding all office clerical employees, guards and supervisors as defined in the Act. MR. PORTO, INC. D/B/A CUSTOM DISPLAY STUDIOS