Courtland Communications Corp.

212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southern New York Publishers Co., Division of Courtland Communications Corporation and Ser- vice Employees International Union, Local 32E, AFL-CIO. Case 3-CA-6735 February 11, 1977 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER Upon a charge filed on September 13, 1976, by Service Employees International Union, Local 32E, AFL-CIO, herein called the Union, and duly served on Southern New York Publishers Co., Division of Courtland Communications Corporation, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3, issued a complaint and notice of hearing on September 27, 1976, against Respon- dent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(aX5) 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 complaint alleges in substance that on July 19, 1976, following a Board election in Case 3-RC-6564, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; I and that, commenc- ing on or about September 4, 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 October 14, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 1, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. On November 9, 1976, Respon- dent filed a reply to the motion to transfer the proceeding and for summary judgment moving the Board to deny the General Counsel's motion and to direct a hearing before an Administrative Law Judge on the issues raised by Respondent's objections to union conduct affecting the election because the Regional Director's ex parse investigation of the issues does not constitute "litigation" within the meaning of the due process clause of the Constitu- tion. Subsequently, on November 15, 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 thereafter did not file 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 the proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and reply to the General Counsel's motion, Respondent denies the representative status and certification of the Union established in the underlying representation case on the grounds (1) that its objections, alleging improper union conduct, warranted setting aside the election, and (2) that, as a matter of due process, it is entitled to an evidentiary hearing on the issues raised by its objections. On the other hand, counsel for the General Counsel contends that Respondent has raised no litigable issues warranting an evidentiary hearing. We agree with counsel for the General Counsel. Review of the record herein, including that in the representation proceeding, Case 3-RC-6564, reveals that in the election held on June 11, 1976, pursuant to the Regional Director's Decision and Direction of Election, there were seven votes cast for and three against the Union, with two challenged ballots. Thereafter, Respondent filed timely objections to the election alleging, in substance, that the Union (1) misrepresented vital, substantial, and substantive issues to employees participating in the election; (2) threatened employees to coerce them to vote for it; and (3) promised financial benefits to employees who joined the Union to induce them to support it. After investigation, the Regional Director, on July 19, 1976, issued his Supplemental Decision and Certification of Representative overruling the objections in their entirety because Respondent "did not produce, nor did the investigation reveal any evidence that the [Union] threatened employees, made promises of benefit, or grossly misrepresented material facts." Accordingly, as the challenged ballots were not determinative of the election results, he certified the Union. Respondent timely filed a request for review r Official notice is taken of the record in the representation proceeding, 1%8); Golden Age Beverage Co., 167 NLRB 151 (1%7), enfd. 415 F.2d 26 Can 3-RC-6564, as the term "record" is defined in Secs. 102.68 and (C.A. 5, 1%9); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1%7), 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See Follett Corp, 164 NLRB 378 (1%7), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. LTV Electrosystems, Inc., 166 NLRB 938 (1%7), enfd. 388 F.2d 683 (C.A. 4, 9(d) of the NLRA, as amended 228 NLRB No. 29 SOUTHERN NEW YORK PUBLISHERS CO. 213 seeking to have the election set aside on the basis of its objections. On August 24, 1976, the Board denied the request as raising no substantial issues warranting review. In the instant proceeding, Respondent also con- tends that it is entitled to an evidentiary hearing on the issues raised by its objections because the exparte investigation of the Regional Director does not meet the constitutional standards of due process. We find no merit in this contention. By its denial of Respon- dent's request for review of the Regional Director's supplemental decision overruling the representation case objections, the Board necessarily found that there were no substantial and material issues warrant- ing a hearing.2 It is well settled that a hearing on objections is not required where, as here, there has been no prima facie showing of substantial and material issues and that, absent arbitrary action, this qualified right to a hearing satisfies due process .3 It thus appears that Respondent has not raised any issues which require an evidentiary hearing. 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.4 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.5 We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINos of FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, has main- tained its office and place of business at Fairground Road, Monticello, New York, and is, and has been at all times material herein engaged at said plant and 2 Bettendorf Stanford Bakery Equipment Company, 225 NLRB 284 (1976), and cases cited therein ; see also Heavenly Valley Ski Area, 215 NLRB 734 (1974). 3 Ibid. A See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). s In its answer to the complaint Respondent denies the allegations of the request and refusal to bargain. However, attached to the Motion for location in the commercial printing, publication, sale, and distribution of two weekly newspapers, a shop- pers' guide, and related products. During the past year, Respondent received gross revenues in excess of $200,000, subscribed to and published nationally syndicated features, and advertised nationally sold products in its publications. 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 Service Employees International Union , Local 32E, 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 printing production employees including type- setters, input operators, proofreaders, camera persons, paste-up persons, layout compositors and pressmen employed by the Employer at its Monti- cello, New York, facility, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On June 11, 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 3 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 July 19,1976, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. Summary Judgment is an exchange of correspondence between the Union and Respondent's counsel in which the Union requests a bargaining conference and Respondent's counsel refuses to meet because Respondent does not believe that the Union's certification is valid. As the documents and their contents stand uncontroverted, they are deemed to be true and we find that they establish the request and refusal-to-bargain allegations of the complaint. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Request To Bargain and Respondent's Refusal Commencing on or about August 26, 1976, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about September 4, 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 September 4, 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(aX5) 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 ead 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. Southern New York Publishers Co., Division of Courtland Communications Corporation, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local 32E, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All printing production employees including typesetters, input operators, proofreaders, camera persons, paste-up persons, layout compositors and pressmen employed by the Employer at its Monticel- lo, New York, facility, excluding all office clerical employees, professional employees, guards and su- pervisors 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 19, 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 September 4, 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 Southern New York Publishers Co., Division of Courtland Communications Corporation, Monticel- lo, New York, 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 SOUTHERN NEW YORK PUBLISHERS CO. 215 conditions of employment with Service Employees International Union, Local 32E, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All lprinting production, employees including type- setters, input operators, proofreaders, camera persons, paste-up persons, layout compositors and pressmen employed by the Employer at its Monti- cello, New York, facility, excluding all office clerical employees, professional 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 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 Monticello, New York, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 3, 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 3, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeal, 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 Service Employees International Union, Local 32E, 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 printing production employees including typesetters, input operators, proofreaders, camera persons, paste-up persons, layout compositors and pressmen employed by the Employer at its Monticello, New York, facility, excluding all office clerical employ- ees, professional employees, guards and supervisors as defined in the Act. SOUTHERN NEW YORK PUBLISHERS CO., DIVISION OF COURTLAND COMMUNICATIONS CORPORATION