Einhorn Enterprises, Inc.

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Star Color Plate Service, Division of Einhorn Enter- prises, Inc. and Local 1, Amalgamated Lithog- raphers of America, International Typographical Union, AFL-CIO. Case 29-CA-12416 24 November 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS Upon a charge filed by the Union 13 May 1986, the General Counsel of the National Labor Rela- tions Board issued a complaint 24 June 1986 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 28 April 1986, fol- lowing a Board election in Case 29-RC-5121, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 14 May 1986 the Company has re- fused to bargain with the Union. The complaint also alleges that since 14 May 1986 the Company has failed and refused to furnish the Union with in- formation requested by it necessary and relevant to the Union's performance of its function as the ex- clusive collective-bargaining representative of the unit. On 8 July 1986 the Company filed its answer admitting in part and denying in part the allega- tions in the complaint. On 2 September 1986 the General Counsel filed a Motion for Partial Summary Judgment and Issu- ance of Decision and Order, and on 18 September 1986 the General Counsel filed an amendment to its motion.'' On 19 September 1986 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Partial Summary Judgment The Company's answer denies that it has refused to bargain with the Union. The Company admits, however, that by letter, dated 24 June 1986 the Union requested to begin negotiations, and that it sent a letter to the Union dated 30 June 1986 stat- ing that it would not commence negotiations with the Union until the Company's position with re- spect to representation was litigated. The Company denies that it acted unlawfully and asserts an af- firmative defense that the complaint fails to state a valid 8(a)(5) and (1) violation of the Act, because it is based on an unlawful Decision, Order, and Certi- fication of Representative by the Board. The ^ Gen- eral Counsel argues that all material issues have been previously decided. We agree with the Gener- al Counsel. The record, including the record in Case 29- RC-5121, reveals that pursuant to a Decision and Direction of Election issued by the Regional Di- rector, an election was conducted on 31 March 1981. The tally of ballots shows that 6 votes were cast for the Union, Local 1, 5 votes were cast for the Intervenor, no votes were cast against the par- ticipating labor organizations, and 15 votes were challenged.2 In addition, the Union on 7 April 1981 filed timely objections to the conduct of the election. On 30 June 1981 the Regional Director issued a supplemental decision, order consolidating cases, and notice of hearing in Cases 29-RC-5121, 29- CA-8280, 29-CA-8407, 29-CA-8796, and 29-CA- 8811-2, in which he directed that a hearing be con- ducted on the challenges to the ballots of six voters, that the challenge to one voter be deferred pending the disposition of Case 29-CA-8407, that the challenges to the ballots of seven voters be sus- tained, and that the challenge to the ballot of one voter be overruled. The Regional Director further ordered that Cases 29-CA-8280, 29-CA-8407, 29- CA-8796, 29-CA-8811-2, and 29-RC-5121 be con- solidated for the purpose of hearing, ruling, and a decision, by an administrative law judge, and that thereafter Case 29-RC-5121 be transferred and continued before the Board in Washington, D.C. Pursuant to a request for review filed by the Union of the Regional Director's supplemental decision, order consolidating cases, and notice of hearing, 2 The ballots of four voters were challenged on the basis that they were not employees of the Employer, two voters on the basis that they were irregular part-time employees, four voters on the basis that they The General Counsel, in that amendment, deleted any argument that were not part of the voting unit, and four voters on the basis that they summary judgment should be granted with respect to the allegation that were supervisors within the meaning of the Act. The Board agent chal- the Company refused to furnish information. Thus the General Counsel's lenged the remaining voter whose name did not appear on the voting eli- motion is limited to the allegation that the Respondent refused to bargain . gibility list 282 NLRB No. 31 EINHORN ENTERPRISES the Board on 31 August 1981, denied the request for review, except that the Board concluded that one challenge to the ballot sustained by the Re- gional Director be consolidated with the other challenges and objections set for hearing. On various' dates between 13 July 1981 and 18 January 1982, a consolidated hearing was conduct- ed before a duly designated administrative law judge on the issues raised in Case 29-RC-5121, and on the issues raised by the complaints and notices of hearing in Cases 29-CA-8280, 29-CA-8407, 29- CA-8796, and 29-CA-8811-2, as amended by the Board on 31 August 1981. On 17 March 1983 the decision of the adminis- trative law judge issued in which he recommended to the Board that the remaining challenges be sus- tained. On 28 April-1986 the Board issued its Deci- sion, Order, and Certification of Representative3 in which it certified the Union as the' exclusive bar- gaining representative in the appropriate unit. On 20 May 1986 the Company filed with the Board a motion for reconsideration and/or to reopen the record and for a stay of enforcement of the Board's decision in 279 NLRB 576 (1986), on the grounds that it would be unfair to enforce a bargaining ' order regarding a unit in which the election had been held over 5 years previously and where there had been significant employee turnov- er because the Union might not currently have the support of a majority of the unit employees. The Respondent moved to reopen the record in order to present further information regarding four em- ployees and the sustained challenges to their bal- lots, and the remedial obligation regarding one em- ployee discriminat'ee who is allegedly no longer employed by the Company. The Board issued an Order on 18 June 1986 denying the Company's motion.4 In its response to the General Counsel's Motion for Partial Summary Judgment, the Company reit- erates its contention that it can legitimately, refuse to bargain based on the 5-year hiatus between the representation election and certification, in light of the significant employee turnover. It is well settled that in the absence of newly dis- covered and 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 that were or could have been litigated in a prior representation proceeding. See Pittsburgh Plate Glass Co. it NLRB, 313 U.S. 146, 279 NLRB 576 (1986). The Board noted that Respondent may raise the issue of the remedial obligation to the one employee discriniinatee at the compliance stage of that proceeding. That issue is not involved here 249 162 (1941); Secs. '102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding.5 According- ly, we grant the Motion for Partial Summary Judg- ment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a New York State corporation, is engaged in the manufacture, nonretail sale, and dis- tribution of lithographic plates, film, and related products, at its facility in Jamaica, New York, where it annually purchases and receives at its fa- cility products, goods, and materials valued in excess of $50,000 directly from points outside the State of New York. We find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 31 March 1981 the Union was certified as the collective-bargaining 5 The cases cited by the Respondent in which the United States Court of Appeals for the Second Circuit refused to uphold bargaining orders issued by the Board are distinguishable. In NLRB v. J. Coty Messenger Service, 763 F.2d 92, 101-102 (2d1 Cir 1985), and NLRB v. Manon Rohr Corp., 714 F.2d 228, 230-232 (2d Cir. 1983), the Board had issued bar- gaining orders after reaching determinations that fair elections could not be held. The Second Circuit refused to enforce these orders, based on the passage of time and employee turnover, and because the clearly preferred method for determining a majority representative is an election. In the instant case, the Union was certified by the Board as the exclusive repre- sentative since the Union won the majority of the valid ballots cast in a fair election. It is well settled that the initial 1-year period of certification begins the date the respondent begins to bargain in good faith with the union 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 (1964); Burnett Construction Co, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). In addition, the Board con- cludes that the circumstances presented by the Respondent in its opposi- tion to the General Counsel's Motion for Partial Summary Judgment do not constitute "unusual circumstances" within the meaning of Ray Brooks v. NLRB, 348 U.S. 96 (1954), which would relieve it of the obligation to bargain with the Union. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the employees in the following appropriate unit: All lithographic production employees em- ployed by the Employer at its facility located on Jamaica Ave., Jamaica, New York, exclud- ing drivers, messengers, clerical employees, guards, and supervisors within the meaning of the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 6 May L9.86 the Union has requested the Company to bargain, and since 30 June 1986 the Company has refused.6 We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 30 June 1986 to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. 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 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). 6 The complaint alleges that the Respondent has refused to bargain with the Union since about 14 May 1986. However, by letter dated 14 May 1986, the Respondent notified the Union it declined to commence negotiations because it had decided to file a motion for reconsideration with the Board. On 18 June 1986 the Board denied the Respondent's motion Subsequently, the Union again requested negotiations with Re- spondent by letter dated 24 June 1986. Respondent's letter dated 30 June 1986 advised the Union that it would not commence negotiations. With- out deciding whether Respondent's 14 May 1986 letter constituted an un- lawful refusal to bargain, we find that the 30 June 1986 letter clearly con- stituted such a refusal. ORDER The National Labor Relations Board orders that the Respondent, Star Color Plate Service, Division of Einhorn Enterprises, Inc., Jamaica, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 1, Amalga- mated Lithographers of America, International Ty- pographical Union, AFL-CIO as the exclusive bar- gaining representative of the employees in the bar- gaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of, the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate, unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a -signed agreement: All lithographic production employees em- ployed by the Employer at its facility located on Jamaica 'Ave., Jamaica, New York, exclud- ing drivers, messengers, clerical employees, guards, and supervisors within the meaning of the Act. (b) Post, at its facility in Jamaica, New York, copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Re- gional Director for Region 29, after being signed by the Respondent's authorized representative, shall, be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date .of this Order what steps the Respondent has taken to comply. ' If 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 Nation- al 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." EINHORN ENTERPRISES 251 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local 1, Amalgamated Lithographers of America, Interna- tional Typographical Union, AFL-CIO as the ex- clusive representative of the employees in the bar- gaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, ,bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All lithographic production employees em- ployed by the Employer at its facility located on Jamaica Ave., Jamaica, New York, exclud- ing drivers, messengers, clerical employees, guards, and supervisors within the meaning of the Act. STAR COLOR PLATE SERVICE, DIVI- SION OF EINHORN ENTERPRISES, INC.