Ace Typographers

DECISIONS OF NATIONAL LABOR RELATIONS BOARD SSS Typographers, Inc. d/b/a Ace Typographers and AVJ Graphics, Inc. d/b/a Manhattan Graphic Productions and New York Typo- graphical Union No. 6, International Typo- graphical Union, AFL-CIO. Case 2-CA-17214 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on April 29, 1980, by New York Typographical Union No. 6, International Typographical Union, AFL-CIO, herein called the Union, and duly served on SSS Typographers, Inc. d/b/a Ace Typographers and AVJ Graphics, Inc. d/b/a Manhattan Graphic Productions, herein called Respondents, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, issued a complaint on April 30, 1980, against Respondents, alleging that Re- spondents had engaged in and were 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 proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on January 31, 1980, following a Board election in Case 2-RC- 18557, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondents' employees in the unit found appropri- ate;' and that, commencing on or about April 11, 1980, and at all times thereafter, Respondents have refused, and continue 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 them to do so. On July 2, 1980, Respondents filed their answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On July 8, 1980, counsel for the General Counsel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on July 10, 1980, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Official notice is taken of the record in the representation proceed- ing. Case 2-RC-18557, 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 L'V Elcrrosyslems. 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 FSupp. 573 (D.CVa. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir 1968); Sec. 9(d) of the NLRA, as amended. 252 NLRB No.17 Judgment should not be granted. Respondents did not file a response to theNotice To Show Cause. 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 their answer to the complaint, Respondents admit all of the operative factual allegations of the complaint other than their alleged failure and refus- al "since on or about April 11, 1980," to recognize and bargain with the Union as the exclusive collec- tive-bargaining representative of the employees in a unit described below which they deny. Apparently, based on this denial, Respondents also 'deny the conclusionary averments of the complaint that they have violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. The General Counsel contends that Respondents: (a) raise no issues which have not been litigated and deter- mined by the Board in the underlying representa- tion proceeding; or (b) raise matters which are con- clusively proved by the exhibits attached to the Motion for Summary Judgment. We agree with the General Counsel. Review of the record herein, including the record in Case 2-RC-18557, discloses that the Union initially sought to represent certain compos- ing room employees of Respondents. Following the close of a hearing in the underlying representation proceeding, the Regional Director for Region 2 issued his Decision and Direction of Election on December 7, 1979. In that decision, he found the requested unit, with the addition of certain messen- gers, appropriate for collective-bargaining pur- poses. The Union thereafter filed a request for review of the Regional Director's decision with the Board in Washington, D.C., contending that the messengers should not be included in the unit. The Board denied the request for review but amended the Decision and Direction of Election to permit the messengers to vote under challenge. An election was thereafter held, on January 4, 1980, which the Union won. The challenged ballots of the messengers were not determinative of the election's results. On January 11, 1980, Respond- ents filed timely objections to the election. On Jan- uary 31, 1980, the Regional Director issued a Sup- plemental Decision and Certification of Representa- tive, overrulng Respondents' objections and certi- fying the Union as the exclusive collective-bargain- ing representative of the employees in the unit foundappropriate. Respondents did not file excep- 412 ACE TYPOGRAPHERS AND AVJ GRAPHICS, INC. tions to the Regional Director's Supplemental De- cision. As noted, Respondents have filed no response to the Notice To Show Cause. In their answer to the complaint, however, Respondents denied the factu- al allegation of paragraph 10 of the complaint that "[s]ince on or about April 11, 1980," Respondents have refused to recognize and bargain with the Union in the appropriate unit described below. In rejecting this contention, we find that certain com- plaint allegations admitted by Respondents along with various exhibits attached to the General Counsel's Motion for Summary Judgment conclu- sively establish the date on which Respondents first refused to bargain as April 11, 1980. We note that paragraph 9(b) of the complaint, which was admitted by Respondents, states that, "[o]n or about April 11, 14, and 18, 1980, the Union, by phone call, requested Respondents to meet and bargain collectively with it as the exclu- sive bargaining representative of Respondents' em- ployees" in the unit described below. Also, append- ed to the General Counsel's Motion for Summary Judgment, as Exhibit J, is a letter dated April 21, 1980, from Respondent Ace Typographers which declines the Union's request to bargain because "we want to challenge the validity of the certifica- tion." This letter appears to be an affirmation of an earlier stated position by Respondents since, also appended to the General Counsel's Motion for Summary Judgment, as Exhibit I, is an April 22, 1980, letter from the Union to Respondents which states: Pursuant to our three (3) telephone conver- sations (April 11, 14 and 18, 1980) and a letter dated April 14, requesting a meeting for the purpose of negotiating a mutually satisfactory contract covering those certified employees represented by this Union has [sic] met with resistance on your part. Your constant replies were that "you were checking the invalidity of the authority vested by the Regional Director, NLRB, Region 2 certification dated January 31, 1980." [Emphasis supplied.] Respondents have not disputed the authenticity of Exhibits I or J. Accordingly, notwithstanding Re- spondents' denial of paragraph 10 of the complaint, we find that Respondents' admission of paragraph 9(b) of the complaint along with Exhibits I and J of the Motion for Summary Judgment establish that Respondents did refuse to bargain on or about April 11, 1980. Therefore, we find paragraph 10 of the complaint to be true.2 2 Respondent Ace Typographers' letter of April 21, 1980, also indicat- ed as a further reason for refusing to bargain that it had "been informed 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.3 Re- spondents do not offer to adduce at a hearing any newly discovered or previously unavailable evi- dence, nor do they allege that any special circum- stances exist herein which would require the Board to reexamine the decision made in the representa- tion proceeding. Accordingly, we 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 RESPONDENTS At all times material herein, AVJ Graphics, Inc. d/b/a Manhattan Graphic Productions, at times herein individually called Respondent AVJ, a New York corporation, with an office and place of busi- ness in New York, New York, herein called Re- spondent AVJ's facility, has been engaged in pro- viding typographical, phototypesetting, and related services to commercial customers. At all times material herein, SSS Typographers, Inc. d/b/a Ace Typographers, at times herein indi- vidually called Respondent Ace, a New York cor- poration, with an office and place of business in New York, New York, herein called Respondent Ace's facility, has been engaged in providing typo- graphical, phototypesetting, and related services to commercial customers. At all times material herein, Respondent AVJ and Respondent Ace have been affiliated business enterprises with common officers, ownership, di- rectors, management, and supervision; have formu- lated and administered a common labor policy af- fecting employees of said operations; have shared common premises and facilities; have interchanged personnel with each other; and have held them- selves out to the public as a single integrated busi- ness enterprise. By virtue of their operations described above, Respondent AVJ and Respondent Ace constitute a that [Ihe] Union does NOT represent a majority of the employees in the unit, by a written petition which was submitted to [its president] " This refusal to bargain based on this alleged petition is without merit as it is well established that, absent unusual circumstances not shown to exist here. a certified union's majority status is irrebuttably presumed for I year from the date of certification. As the alleged petition was submitted within the certification year. this petition did not justify the refusal to bargain. See, e.g., Brooks v VL.R.B., 348 U.S. 96 (1954). . See Pttsburgh Plate Glass Co. v NL.R.B., 313 U.S 146. 162 (1941); Rules and Regulations of the Board, Secs 102 67(f) and 102.6h9(c) 413 DECISIONS OF NATIONAL LABOR RELATIONS BOARD single integrated business enterprise and a single employer. Annually, Respondent AVJ and Respondent Ace, in the course and conduct of their operations described above, collectively, perform services valued in excess of $50,000 for various enterprises located in States other than the State of New York. We find, on the basis of the foregoing, that Re- spondents are, and have been at all times material herein, employers 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 I.ABOR ORGANIZATION INVOLVED New York Typographical Union No. 6, Interna- tional Typographical Union, 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 Respondents consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees employed by Respondents, but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act.4 At all times material herein, a majority of the employees in the above-described unit have desig- nated or selected the Union as their representative for the purposes of collective bargaining with Re- spondents. 2. The certification On January 4, 1980, a majority of the employees of Respondents in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 2, designated the Union as their representative for the purpose of collective bargaining with Respondents. The Union was certified as the collective-bar- gaining representative of the employees in said unit on January 31, 1980, and the Union continues to be 4 The classification of messengers is neither included nor excluded from this unit since, in denying the Union's earlier request for review, the Board permitted the messengers to vote in the election subject to chal- lenge. Although the messengers involved were challenged at the election, the challenged ballots were not determinative of the results of the elec- tion. Accordingly, no further findings with respect to the unit placement of the messengers have since been made. 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 April 11, 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 April 11, 1980, and continu- ing at all times thereafter to date, Respondents have refused, and continue to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondents have, since April 11, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ents have engaged in and are 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 Respondents set forth in section II, above, occurring in connection with their 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 Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that they cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all em- ployees in the appropriate unit, and, if an under- standing 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 Respondents com- mence 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. 328 414 ACE TYPOGRAPHERS AND AVJ GRAPHICS, INC. 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. SSS Typographers, Inc. d/b/a Ace Typogra- phers and AVJ Graphics, Inc. d/b/a Manhattan Graphic Productions, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. New York Typographical Union No. 6, Inter- national Typographical Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees employed by Respondents, but excluding office clerical employees, salesmen, guards, and supervi- sors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 31, 1980, 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 April 11, 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 Respondents in the appropriate unit, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ents have interfered with, restrained, and coerced, and are interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby have en- gaged in and are 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 Respondents, SSS Typographers, Inc. d/b/a Ace Typographers and AVJ Graphics, Inc. d/b/a Manhattan Graphic Productions, New York, New York, their officers, agents, successors, and assigns, shall: 1. Cease and deosist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with New York Typo- graphical Union No. 6, International Typographi- cal Union, AFL-CIO, as the exclusive bargaining representative of all employees in the following ap- propriate unit: All full-time and regular part-time employees employed by Respondents, but excluding office clerical employees, salesmen, guards, and supervisors as defined 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. (b) Post at their facility in New York, New York, copies of the attached notice marked "Ap- pendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondents' representatives, shall be posted by Respondents immediately upon re- ceipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 2, 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 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 WIl.. NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment 415 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with New York Typographical Union No. 6, International Typographical Union, AFL- CIO, as the exclusive representative of the em- ployees 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 full-time and regular part-time employ- ees employed by us, but excluding office clerical employees, salesmen, guards, and su- pervisors as defined in the Act. SSS TYPOGRAPHERS, INC. D/B/A ACE TYPOGRAPHERS AND AVJ GRAPHICS, INC. D/B/A MANHATTAN GRAPHIC PRODUCTIONS 416