Confort and Company, Inc.

CONFORT AND COMPANY, INC. Confort and Company, Inc. and Local One, Amalga- mated Lithographers of America, affiliated with International Typographical Union, AFL-CIO. Case 29-CA-10116 25 August 1983 DECISION AND ORDER BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER Upon a charge filed on 13 December 1982 by Local One, Amalgamated Lithographers of Amer- ica, affiliated with International Typographical Union, AFL-CIO, herein called the Union, and duly served upon Confort and Company, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 29, issued a complaint on 17 January 1983, 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 and 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 complaint alleges in substance that on 30 Septem- ber 1982 following a Board election in Case 29- RC-5530,1 the Union was duly certified as the ex- clusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; and that, commencing on or about 26 October 1982, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so, and com- mencing on or about 26 October 1982, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain with the Union by refusing to provide information requested by the Union. Thereafter, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On 21 March 1983 counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment with exhibits attached. Subse- quently, on 25 March 1983 the Board issued an Official notice is taken of the record in the representation proceed- ing, Case 29-RC-5530, 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, 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); Follettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 267 NLRB No. 47 order transferring the proceeding to the Board and a Notice To Show Cause why the General Coun- sel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a statement in opposition to the Motion for Summary Judgment on 22 April 1983. 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 to the complaint and its opposition to the Motion for Summary Judgment, Respondent denies the allegations of paragraphs 10 and 11 of the complaint that it was requested, and that it sub- sequently refused, to bargain with the Union.2 It also challenges the Union's certification, reiterating its contentions in the underlying representation proceeding that the Regional Director conducted the election in an inappropriate unit and improper- ly overruled its Objection 1. Review of the record herein, including the record in Case 29-RC-5530, reveals that on 4 Sep- tember 1981 the Union filed a representation peti- tion under Section 9 of the National Labor Rela- tions Act, as amended. On 15 January 1982, after a hearing, the Regional Director issued his Decision and Direction of Election in which he found that, under the criteria set forth in Mallinckrodt Chemi- cal Works, Uranium Division, 162 NLRB 387 (1966), a unit comprised of all of Respondent's lith- ographic production employees, including all offset press employees, web press employees, letterpress employees, multilith employees, and platemaking and stripping employees, could be severed from the existing production and maintenance unit, if these employees so desired. Accordingly, he scheduled an election in the lithographic unit for 11 February 2 In this regard, the General Counsel has submitted copies of letters dated 14 October and 2 December 1982 in which the Union referred to "our forthcoming collective-bargaining negotiations." requested certain information to help it prepare for the bargaining, and expressed a desire for a long and harmonious relationship. In addition, the 2 December letter requested that Respondent advise the Union of convenient bargain- ing dates. Respondent does not dispute the validity of the letters or that it received them. It contends merely that the letters do not request it to bargain. We find that by its letters of 14 October and 2 December 1982, the Union did request bargaining with Respondent. Further, Respondent has not at any material time herein expressed a willingness to bargain with the Union. Finally, it is clear from Respondent's opposition to the Motion for Summary Judgment that it contends that it is under no legal obligation to bargain with the Union on the ground that the certification of the Union is invalid. Accordingly, we find that Respondent's denials of the complaint allegations that the Union requested bargaining and that Respondent refused to bargain raise no substantial or material issue of fact warranting a hearing. 409 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1982. Respondent and the Intervenor 3 filed with the Board timely requests for review of the Re- gional Director's decision in which they contended that the Mallinckrodt criteria did not permit sever- ance of the lithographic employees and that only an all-inclusive production and maintenance unit was appropriate. They also requested a stay of the election. On 11 February 1982 the Board granted Respondent's and the Intervenor's requests for review but declined to stay the election. 4 The elec- tion was conducted as scheduled on 11 February 1982 and the ballots were impounded, pending the Board's decision on the Employer's and the Inter- venor's requests for review. On 18 August 1982 the Board issued a Decision on Review and Direction 5 in which it found, rely- ing on Allen, Lane & Scott, 137 NLRB 223, 226 (1962), that the lithographic production unit sought by the Union could, if the unit employees so de- sired, constitute a separate appropriate unit. The Board, therefore, directed that the impounded bal- lots be opened and counted and a tally of ballots prepared and served upon the parties. On 27 August 1982 the impounded ballots were opened and counted and the tally was 25 votes for the Union, 20 for the Intervenor, with 3 challenged ballots, a number insufficient to affect the results of the election. Thereafter, Respondent filed timely objections to the election, alleging, inter alia, that the Union, through its agents and representatives, threatened employees with reprisals if they voted in the election or did not support or vote for the Union (Objection 1). On 30 September 1982 the Regional Director issued a Supplemental Decision and Certification of Representative in which he overruled the Employ- er's objections in their entirety and certified the Union as the bargaining representative of the em- ployees in the lithographic unit. Thereafter, Re- spondent filed a request for review of the Regional Director's Supplemental Decision and Certification of Representative. The request for review was denied by the Board on 24 November 1982.6 It thus appears that Respondent is attempting in this proceeding to relitigate issues fully litigated and fi- nally determined in the representation proceeding. It is well settled that in the absence of newly dis- 3 The Confort Employees Association had intervened on the basis of a contractual interest. 4 The Petitioner filed a request for review of the Regional Director's refusal to accept evidence pertaining to alleged unlawful assistance by the Employer to the Intervenor during their bargaining history. The Board, Member Zimmerman dissenting, denied Petitioner's request for review on 11 February 1982. a Not reported in volumes of Board Decisions. 6 Member Hunter dissented on the telegraphic order denying Respond- ent's request for review, indicating that he would have granted review with respect to Objection 1. 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.7 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding. Respondent, however, proffers what it claims to be "newly discovered" evidence which assertedly bolsters its earlier con- tention in support of its Objection 1 that employee lanuzzi was an agent of the Union. It also contends that the Board's reliance, in its 18 August 1982 denial of Respondent's request for review, upon a different case than that relied upon by the Regional Director, constitutes a "special circumstance" which requires the Board to reexamine its decision in the representation proceeding. In this regard, Respondent asserts that the instant case is distin- guishable from Allen, Lane & Scott, supra, because here the letterpress operator is included in the lith- ographic unit while in Allen, Lane & Scott, the let- terpressmen were excluded. In addition, Respond- ent contends that it should have an opportunity to present evidence with respect to the "state of the art" of lithography, an issue discussed in Allen, Lane & Scott but not raised in Mallinckrodt Chemi- cal Works, supra. We find no merit in Respondent's contentions. The evidence proffered by Respondent with regard to the union agent status of employee lanuzzi merely adds more detail to what was already known about Ianuzzi's relationship with the Union. Thus, at the time of our underlying decision, the record indicated that Ianuzzi was a member of the Union's in-house organizing committee. Respond- ent now proffers admissions by lanuzzi at a subse- quent unfair labor practice hearing that employees were told that if they had questions regarding the Union they should come to Ianuzzi. Thus, the prof- fered evidence adds nothing of material substance to the facts already contained in the record of the representation proceeding. Further, we reject Re- spondent's contention that the presence of a letter- pressman in the instant unit or that evidence con- cerning the "state of the art" in lithography would affect our determination that the unit is appropriate under Allen Lane & Scott. We, therefore, find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceed- ing. In its answer to the complaint and statement in opposition to the Motion for Summary Judgment, I See Pittsburgh Plate Glass Ca v. NLRB, 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 410 CONFORT AND COMPANY, INC. Respondent denies that the Union requested infor- mation relevant and necessary for the purpose of collective bargaining and, therefore, that it has not refused to furnish such information. As noted above, however, the Union sent Respondent letters, dated 14 October and 2 December 1982, in which it requested a list of unit employees, wage rates, benefits, and related information. 8 Based on these letters, we find that the Union did request that Re- spondent furnish it with information relevant and necessary for the purpose of collective bargaining and that Respondent has refused to provide such information. It is well established that such infor- mation is presumptively relevant for purposes of collective bargaining and must be furnished upon request.9 Furthermore, Respondent has not at- tempted to rebut the relevance of the requested in- formation. Accordingly, we find no material issues of fact exist with regard to Respondent's refusal to furnish information sought by the Union in its let- ters of 14 October and 2 December 1982. There- fore, we grant the motion for summary judgment in all respects. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Confort and Company, Inc., has maintained its principal office and place of business at 47-47 Aus- tell Place, Long Island City, New York, at all times material herein and is engaged in the printing of commercial items such as booklets, manuals, forms, and related products. During the past year, which period is representative of its annual oper- ations generally, Respondent, in the course and conduct of its operations, sold and shipped from its Long Island City, New York, facility, books, manuals, forms, and other products, goods, and ma- terials valued in excess of $50,000, directly to points outside the State of New York. 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. 8 More specifically, the Union requested the name, classification, and wage rate of each employee; the wage rates applicable to each classifica- tion; the name of each employee who had received a merit or incentive increase within the last year, the amount of such increase, and the stand- ards utilized in the determination of such increases; the hours of the regu- lar workday and the regular workweek; overtime rates; a description of any fringe benefits to which any employee within the collective-bargain- ing unit is entitled including pension, welfare, or related benefits, holiday and vacation benefits, and sick benefits. 9 Verona Dyestuff Division Mobay Chemical Corp., 233 NLRB 109, 110 (1977). II1. THE LABOR ORGANIZATION INVOLVED Local One, Amalgamated Lithographers of America, affiliated with International Typographi- cal Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. Ill. 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 offset press employees, web press employ- ees, letterpress employees, multilith employees, and platemaking and stripping employees of Respondent, employed at its Long Island City, New York, plant, exclusive of all other em- ployees, office clerical employees, professional employees, guards, and all supervisors as de- fined in Section 2(11) of the Act. 2. The certification On 11 February 1982 a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 29, 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 30 September 1982, 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 14 October and 2 De- cember 1982, the Union requested Respondent to bargain collectively with it as the exclusive collec- tive-bargaining representative of all the employees in the above-described unit. Commencing on or about 26 October 1982,1 ° 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. o1 Although the Union's first letter was dated 14 October 1982, the complaint alleges that Respondent commenced its refusals to bargain on or about 26 October 1982. As there is no evidence that Respondent en- gaged in unlawful acts prior to 26 October. we have dated the com- mencement of Respondent's refusal to bargain in accordance with the date alleged in the complaint. 411 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that Respondent has, since on or about 26 October 1982, and at all times thereafter, refused to bargain collectively with all employees in said unit and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. C. The Request for Information and Respondent's Refusal to Furnish it On or about 14 October and 2 December 1982 the Union requested Respondent to provide it with a list of the unit employees, wage rates, benefits, and related information. Commencing on or about 26 October 1982, Respondent has refused, and con- tinues to refuse, to provide the Union with the re- quested information. Accordingly, we find that Respondent has, since on or about 26 October 1982, and at all times thereafter, refused to furnish the Union with infor- mation relating to the employment conditions and wages 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 oper- 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. We also shall order that Respondent, upon request, furnish the Union with the informa- tion it previously requested. In order to ensure 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 Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Co., 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. Confort and Company, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Local One, Amalgamated Lithographers of America, affiliated with International Typographi- cal Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All offset press employees, web press employ- ees, letterpress employees, multilith employees, and platemaking and stripping employees of Respond- ent, employed at its Long Island City, New York, plant, exclusive of all other employees, office cleri- cal employees, professional employees, guards, and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since 30 September 1982, the above-named labor organization has been, and now is, the certi- fied and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about 26 October 1982 and on or about 2 December 1982, and at all times thereafter, to bargain collectively with the above- named labor organization as the exclusive bargain- ing representative of all the employees of Respond- ent 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 refusing on or about 26 October 1982 and on or about 2 December 1982, and all times there- after, to furnish the Union with a list of the unit employees, wage rates, benefits, and related infor- mation as requested by the Union in its letters of 14 October and 2 December 1982, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. 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)(l) of the Act. 412 CONFORT AND COMPANY, INC. 8. 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, Confort and Company, Inc., Long Island City, New York, its officers, agents, successors, and as- signs, 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 Local One, Amal- gamated Lithographers of America, affiliated with International Typographical Union, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All offset press employees, web press employ- ees, letterpress employees, multilith employees, and platemaking and stripping employees of Respondent, employed at its Long Island City, New York, plant, exclusive of all other em- ployees, office clerical employees, professional employees, guards, and all supervisors as de- fined in Section 2(11) of the Act. (b) Refusing to bargain collectively with the above-named labor organization by refusing to fur- nish said labor organization with the information requested by it in the Union's letters of 14 October and 2 December 1982, including a list of the unit employees, wage rates, benefits, and related infor- mation. (c) 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. (b) Upon request, furnish the above-named labor organization with the information requested in its letters of 14 October and 2 December 1982, includ- ing a list of the unit employees, wage rates, bene- fits, and related information. (c) Post at its Long Island City, New York, of- fices copies of the attached notice marked "Appen- dix."t ' Copies of said notice, on forms provided by the Regional Director for Region 29, 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 ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. MEMBER HUNTER, dissenting: As noted above, in the underlying representation case I would have granted Respondent's request for review of the Regional Director's Supplemental Decision and Certification of Representative with respect to the Regional Director's overruling there- in of Respondent's Objection 1. Accordingly, I find that the Union was certified improperly and there- fore I dissent from my colleagues' finding that Re- spondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. " 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 Pursu- ant 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 Local One, Amalgamated Lithographers of America, affiliated with International Typo- graphical Union, AFL-CIO, as the exclusive representative of the employees in the bargain- ing unit described below. WE WILL NOT refuse to bargain collectively with the above-named labor organization by refusing to furnish it with the information it requested in its letters of 14 October and 2 De- cember 1982, including a list of unit employ- ees, wage rates, benefits, and related informa- tion. WE WILL. NOT in any like or related manner interfere with, restrain, or coerce our employ- 413 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 offset press employees, web press em- ployees, letterpress employees, multilith em- ployees, and platemaking and stripping em- ployees of Respondent, employed at its Long Island City, New York, plant, exclu- sive of all other employees, office clerical employees, professional employees, guards, and all supervisors as defined in Section 2(11) of the Act. WE WILL, upon request, furnish the above- named labor organization with the information requested by it in its letters of 14 October and 2 December 1982, including a list of unit em- ployees, wage rates, benefits, and related infor- mation. CONFORT AND COMPANY, INC. 414