The Piqua Call Publishing Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Piqua Call Publishing Co., Inc. and Teamsters Local 957, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 8-CA-10632 July 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER Upon a charge and amended charge filed on December 2, 1976, and January 6, 1977, respectively, by Teamsters Local 957, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, and duly served on The Piqua Call Publish- ing Co., Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 8, issued a complaint and notice of hearing on January 11, 1977, 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 (I) 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 October 29, 1976, following a Board election in Case 8-RC- 10414, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about November 18, 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 represen- tative, although the Union has requested and is requesting it to do so. On January 18, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and by incorporating by reference its statement of position of January 4, 1977, to the Region. On April 5, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. On April 11, 1977, the Respondent filed a memorandum in opposition to the Motion for Summary Judgment, incorporating by reference its i Official notice is taken of the record in the representation proceeding, Case 8-RC-10414, 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); 231 NLRB No. 2 answer and statement of position. Subsequently, on April 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. Respon- dent thereafter filed a response to Notice To Show Cause, attaching as exhibits its statement of position, answer, and memorandum in opposition. 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 2 In its answer to the complaint, memorandum in opposition to the Motion for Summary Judgment, and response to the Notice To Show Cause, Respondent, in substance, (1) attacks the validity of the Union's certification because of its election objections filed in the underlying representation case; (2) contends that the Union is not qualified to act as the collective-bargaining representative be- cause of its invidious racial discrimination; and (3) asserts that there are substantial and material issues of fact, requiring a hearing with respect to its objections and the Union's qualifications as a bargaining representative. Counsel for the General Counsel, on the other hand, argues that there are no litigable matters warranting a hearing because the issues concerning the Union's certification were litigated and determined in the underlying represen- tation case while those concerning the Union's qualifications to act as a bargaining representative are improperly raised in the instant proceeding. We agree with the General Counsel. Review of the record herein, including that in the representation proceeding, Case 8-RC-10414, shows that the Union, by a vote of II to 0 with no challenged ballots, won the election conducted on June 24, 1976, pursuant to a Stipulation for Certifica- tion Upon Consent Election. Respondent filed timely objections to the election alleging, in substance, that (I) the evening before the election, a "straw" vote was held among the voting unit members concerning a possible unanimous vote; (2) the Union advised voting unit members that union membership would assist in resisting entry of blacks into unit jobs; (3) Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 We find without merit Respondent's contention that, regardless of the merits, the Board should overrule and not consider the motion because it had been mailed late, only 25 days before the date set for hearing and long after January 1 I, 1977, when the complaint issued. 2 THE PIQUA CALL PUBLISHING CO. the Union promised to waive initiation fees and limit dues to $10 per month, the total amount of dues payable until a labor agreement was executed; (4) the conduct alleged in the aforesaid objections created an atmosphere rendering improbable a free election; and (5) the circumstances asserted in Objection 2 raised a material issue as to whether the Union, because of "invidious racial discrimination," was disqualified from being certified as the employees' bargaining representative. After investigation, the Regional Director issued, on June 13, 1976, his report on objections in which he concluded that Respondent's objections did not raise substantial or material issues of fact or law with respect to the election and that they were without merit. Accord- ingly, he recommended that they be overruled and the Union certified. Respondent filed timely excep- tions and a supporting brief with attached affidavits reiterating its objections and contentions and re- questing a hearing on the substantial questions as to the validity of the election. On October 29, 1976, the Board, after reviewing the record in the light of Respondent's exceptions and brief, adopted the Regional Director's findings and recommendations and certified the Union. In the instant proceeding, Respondent has attempt- ed to raise issues that were or could have been litigated in the underlying representation case and this it may not do. Although the issue of the Union's disqualification to act as a certified bargaining representative of employees because of invidious racial discrimination appears to have been raised and resolved in the underlying representation case, in any event, we also note that the Board has recently decided that issues involving alleged invidious discrimination by a labor organization should be considered in an adversary proceeding and must be adjudicated under Section 8(b) of the Act and not as a defense to an 8(a)(5) proceeding or in a representa- tion proceeding.3 Accordingly, we agree with counsel for the General Counsel that Respondent's allega- tions of invidious discrimination on the part of the Union are not properly raised herein. 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 :' Handy Andy, Inc., 228 NLRB 447, 453, fn. 55 (1977). 4 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). 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 RESPONDENT Respondent is an Ohio corporation with a place of business in Piqua, Ohio, where it is engaged in the publication and distribution of a daily newspaper. Annually, it derives gross revenues in excess of $200,000 and carries advertising for nationally sold products purchased by national advertising agencies valued in excess of $90,000. 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 Teamsters Local 957, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. II111. 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 newsroom editorial employees, excluding all production and maintenance employees, office clerical employees, professional employees, guards, and the managing editor supervisor, all other supervisors as defined in the Act, and all other employees. 2. The certification On May 20, 1976, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional 3 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director for Region 8, 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 October 29, 1976, 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 November 9, 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 November 18, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since November 18, 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, Respon- 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 1, 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. The Piqua Call Publishing Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 957, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All newsroom editorial employees, excluding all production and maintenance employees, office clerical employees, professional employees, guards, and the managing editor supervisor, all other supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since October 29, 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 November 18, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent 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 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)(l) 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. 4 THE PIQUA CALL PUBLISHING CO. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Piqua Call Publishing Co., Inc., Piqua, Ohio, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Teamsters Local 957, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All newsroom editorial employees, excluding all production and maintenance employees, office clerical employees, professional employees, guards, and the managing editor supervisor, all other supervisors as defined in the Act, and all other employees. (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 Piqua, Ohio, place of business copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 8, 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 8, 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 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 Team- sters Local 957, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers 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 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 newsroom editorial employees, ex- cluding all production and maintenance employees, office clerical employees, profes- sional employees, guards, and the managing editor supervisor, all other supervisors as defined in the Act, and all other employees. THE PIQUA CALL PUBLISHING Co., INC. 5