Litton Financial Printing Division

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Litton Financial Printing Division, a Division of Litton Business Systems, Inc. and Printing Spe- cialties and Paper Products Union, District Council No. 1, Local 777. Case 32-CA-3036 June 12, 1981 DECISION AND ORDER Upon a charge filed on September 4, 1980, by Printing Specialties and Paper Products Union, District Council No. 1, Local 777, herein called the Union, and duly served on Litton Financial Print- ing Division, A Division of Litton Business Sys- tems, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 32, issued a com- plaint on September 30, 1980, 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 and complaint and notice of hearing before an ad- ministrative 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 2, 1980, following a Board election in Case 32-RD-170, the Union was duly certified as the exclusive collec- tive-bargaining representative of Respondent's em- ployees in the unit found appropriate; t and that, commencing on or about August 1, 1980, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representa- tive, although the Union has requested and is re- questing it to do so. On or about October 17, 1980, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On October 22, 1980, an amendment to complaint was issued by the Regional Director to which Respondent filed no answer. On January 5, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 9, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Thereafter, the Union filed a "Joinder to the Motion for Sum- ' Official notice is taken of the record in the representation proceed- ing, Case 32-RD-170, 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 Electrosyslems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 256 NLRB No. 77 mary Judgment" in which it requested an award of attorney's fees and costs. Respondent then filed a response to the Notice To Show Cause. Thereafter, the Union filed a "Motion to Strike Response from Employer." Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent denies the validity of the Union's certification and asserts that the election should have been set aside because of Union misconduct. In its response, Respondent in- dicates that it opposes the Motion for Summary Judgment for the reasons set forth in its exceptions to the Hearing Officer's report in Case 32-RD-170, described below, and also opposes the Union's re- quest for attorney's fees and costs made in the Union's "Joinder to Motion for Summary Judg- ment."2 A review of the record herein, including that in Case 32-RD-170, reveals that an election was con- ducted on August 17, 1979, pursuant to a Stipula- tion for Certification Upon Consent Election ap- proved by the Regional Director for Region 32 on July 26, 1979. Of approximately 60 eligible voters, 28 cast ballots for, and 27 cast ballots against, con- tinued representation by the Union. There were no challenged ballots. Respondent filed objections al- leging, inter alia, that the Union coerced and made material misrepresentations to employees. Follow- ing investigation of the objections the Acting Re- gional Director issued his Report and Recommen- dations on Objections in which he recommended that Objections 1, 2, and 3, involving alleged mis- representations and threats concerning a pension plan, be scheduled for hearing and that Respond- ent's remaining objections be overruled in their en- tirety. Respondent filed exceptions and, on January 28, 1980, the Board issued its Order adopting the Acting Regional Director's recommendations. Fol- lowing a hearing, the Hearing Officer, on April 3, 1980, issued his Report on Objections in which he recommended that Objections 1, 2, and 3 be over- ruled as he found no union misrepresentations or threats involving the pension plan which warranted setting aside the election. Respondent filed excep- tions to this report. On July 2, 1980, the Board found the exceptions without merit and issued a Decision and Certification of Representative.3 2 The Union's motion to strike Respondent's response is hereby denied and the Union's request for cost and fees is also denied as a reimburse- ment order is not justified under Heck's Inc., 215 NLRB 765 (1974), and Tiidee Products, Inc. 194 NLRB 1234 (1972). 3 Not reported in volumes of Board decisions. LITTON FINANCIAL PRINTING DIVISION 517 It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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 proceed- ing were or could have been litigated in the prior representation proceeding, and 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 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. Accordingly, we 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 RESPONDENT Respondent is a New York corporation with an office and place of business in Santa Clara, Califor- nia. At all times material herein, it has been en- gaged in the wholesale printing and distribution of financial documents. During the 12 months preced- ing issuance of the amendment to the complaint, Respondent in the course and conduct of its busi- ness operations purchased and received goods or services valued in excess of $50,000 directly from suppliers located outside the State of California.5 We find, on the basis of the foregoing, that Re- spondent 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 Printing Specialties and Paper Products Union, District Council No. 1, Local 777, is a labor orga- nization within the meaning of Section 2(5) of the Act. 4 See Pittsburgh Plate Glass Co. v. NALR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69 (c). 6 Respondent failed to file an answer to the complaint amendment which alleged the value of goods or services Respondent purchased or received from outside the State of California. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute 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 locat- ed at 2260 De La Cruz Blvd., Santa Clara, California; excluding all other employees, office clericals, guards and supervisors as de- fined in the Act. 2. The certification On August 17, 1979, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 32, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on July 2, 1980, 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 29, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about August 1, 1980, and continu- ing 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 August 1, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate 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 oper- 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Litton Financial Printing Division, A Division of Litton Business Systems, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Printing Specialties and Paper Products Union, District Council No. 1, Local 777, 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 2260 De La Cruz Blvd., Santa Clara, California; excluding all other employees, office clericals, guards and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since July 2, 1980, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 1, 1980, 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 prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 meaning 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 the Respondent, Litton Financial Printing Division, A Division of Litton Business Systems, Inc., Santa Clara, Califor- nia, 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 Printing Specialties and Paper Products Union, District Council No. 1, Local 777, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All production and maintenance employees employed by the employer at its facility locat- ed at 2260 De La Cruz Blvd., Santa Clara, California; excluding all other employees, office clericals, guards and supervisors as de- fined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. LITTON FINANCIAL PRINTING DIVISION 519 (b) Post at its Santa Clara, California, location copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 32, 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. " In the ecent that Ihis Order is enforced by a Judgmenl of a nited States Court of Appeals. the \ord ite llnt lilie reading i'osled hb Order of the National Labor Relatlions Board" hall read P'ohsted 'ursu- ant to a Judgment of the ninted Slates Court of Appeals EIniiforcing ant Order of the National Labor Realiaons Boa;lrd APPENDIX NOTICE To EMPL.YEES POSTED BY ORDER OF THE NATIONAL LABOR REI.ATIONS BOARI) 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 Printing Specialties and Paper Products Union, District Council No. 1, Local 777, 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 employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees employed by us at our facility located at 2260 De La Cruz Blvd., Santa Clara, Cali- fornia; excluding all other employees, office clericals, guards and supervisors defined in the Act. LITTON FINANCIAL PRINTING DIVI- SION, A DIVISION OF LITTON BUSI- NESS SYSTEMS, INC.