Creative Lithography, Inc.

National Labor Relations Board - Board DecisionsFeb 5, 1973

201 N.L.R.B. 617 (N.L.R.B. 1973)

CREATIVE LITHOGRAPHY, INC. 617 Creative Lithography, Inc. and New York Printing Pressmen & Offset Workers Union Local No. 51, International Printing Pressmen and Assistants Union of North America , AFL-CIO and New York Printing and Press Assistants and Offset Workers Union No. 23, International Printing Pressmen and Assistants Union of North America , AFL-CIO The Platemakers, Inc. and New York Printing Pressmen & Offset Workers Union Local No. 51, International Printing Pressmen and Assistants Union of North America , AFL-CIO. Cases 2-CA-12726 and 2-CA-12727 February 5, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon charges filed on August 8, 1972, and August 28, 1972, by New York Printing Pressmen & Offset Workers Union Local No. 51, International Printing Pressmen and Assistants Union of North America, AFL-CIO, and New York Printing and Press Assistants and Offset Workers Union No. 23, International Printing Pressmen and Assistants Union of North America, AFL-CIO, herein called the Unions , and duly served on Creative Lithogra- phy, Inc., and The Platemakers , Inc., herein called the Respondents , the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, issued a consolidated com- plaint on September 7, 1972, against Respondent, alleging that Respondents have engaged in and were engaging in unfair labor practices affecting com- merce within the meaning of Sections 8(a)(5) and (1) and 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. i Official notice is taken of the record in the representation proceedings, Cases 2-RC-15822 and 2-RC-15823, as the term "record " is defined in Secs. 102.68 and 102 69(f) of the Board' s Rules and Regulations, Series 8, as amended. See LTV Electrosyslenss, Inc, 166 NLRB 938, enfd 388 F.2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v. Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA. 2 In their answer to the consolidated complaint Respondents also deny that Respondent Creative and Respondent Platemakers are and have been affiliated companies with a common labor policy, that they performed services in excess of $100,000 for enterprises outside the State of New York and are employers within the meaning of Sec 2 ( 2),(6), and (7) of the Act as alleged in paragraphs 4, 5, and 6 of the consolidated complaint These issues were determined by the Regional Director in the Decision and Direction of Elections . Exh A, in the record. Respondents failed to file a Request for Review to such decision As Respondents do not assert that there is newly discovered or previously unavailable evidence or special circumstances warranting relitigation , such matters cannot be relitigated in a subsequent With respect to the unfair labor practices, the complaint alleges in substance that on June 8, 1972, following Board elections in Cases 2-RC-15822 and 2-RC-15823, the Unions were duly certified as the exclusive collective-bargaining representatives of Respondents ' employees in the units found appropri- ate;1 and that , commencing on or about July 21, 1972, and at all times thereafter, Respondents have refused , and continue to date to refuse , to bargain collectively with the Unions as the exclusive bargain- ing representatives , although the Unions have re- quested and are requesting it to do so . On September 18, 1972, Respondents filed their answer to the complaint admitting in part , and denying in part, the allegations in the complaint. On October 5, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 1, 1972, 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- dents thereafter filed a Reply to the Motion for Summary Judgement and on November 27, 1972, the General Counsel filed a Response to Respondent's Reply. 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 In their answer to the complaint2 and in their Reply to Motion for Summary Judgment Respon- dents deny that they unlawfully refused to bargain with the certified Unions or that they had an obligation to bargain because the Regional Director erred by misapplying Board precedent in overruling unfair labor practice proceeding . Pittsburgh Plate Glass Company v. NLRB.,313US 146. Respondents further deny that a joint oral request to bargain was made on July 19, 1972, by Local 51 and Local 23 of Respondents as alleged in para. 15 of the consolidated complaint . A letter from Respondents' counsel, dated July 21, 1972 , and entered as Exh. G in the record, clearly states that it will not meet with Local 51 because "it was improper for the NLRB to certify Local 51 as the winner of the elections at those two companies, and my client desires a judicial review of the NLRB decision." Inasmuch as Local 51 was certified as a joint bargaining representative along with Local 23 with respect to Respondent Creative Lithography and as the sole bargaining representative with respect to Respondent Platemakers , Respon- dents' refusal to meet with Local 51 in either of its representative capacities and its referral to elections at the two companies clearly establishes that an oral request for bargaining was made on behalf of both bargaining entities and was refused by the Respondents. The denial is therefore stricken and the allegation deemed proved. 201 NLRB No. 84 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents' objections to conduct affecting the results of the election in the underlying representa- tion proceedings. Respondents further contend that by not affording them a hearing on their objections, the Board violated the requirements of constitutional due process. We do not agree. The record in consolidated Cases 2-RC- 15822 and 2-RC-15823 indicates that an election pursuant to a Regional Director's Decision and Direction of Election was conducted among two separate appro- priate units of Respondents' employees; a litho- graphic preparation unit and a printing production unit. In each unit the vote was 10 to 6 in favor of union representation and challenged ballots were insufficient to affect the results. Thereafter Respon- dents filed objections to conduct affecting the results of the elections in which it was alleged that: (1) the Unions engaged in misrepresentation by claiming they could secure wage increases in excess of the maxima established by the Wage Price Board; (2) union representatives had engaged in improper electioneering; (3) Respondents' voter eligibility lists were not timely filed with the Regional Director. After an investigation, the Regional Director, on June 8, 1972, issued a Supplemental Decision in which he overruled Respondents' objections in their entirety and certified the Unions as exclusive bargaining representatives of employees in their respective units . On June 19, 1972, Respondents filed an Employer's Request for Review in which they substantially reiterated the contentions raised in their objections to the election. The Board, in a telegraphic order of June 29, 1972, denied Respondents' Request for Review on the ground that it raised no substantial issues warranting review. As noted above, Respondents contend, in their Reply to the Motion for Summary Judgment, that the Board's failure to afford them a hearing on their objections to the election constituted a denial of due process. We find no merit in this contention. It is well established that parties do not have an absolute right to a hearing on objections to an election. It is only when the moving party presents a prima facie showing of "substantial and material issues" which would warrant setting aside the election that he is entitled to an evidentiary hearing.3 It is clear that absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional requirements.4 It is well settled that in the absence of newly discovered or previously unavailable evidence or special circus stances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled 3 Allied Foods, Inc, 189 NLRB No 79, and cases cited in In 6 ' Amalgamated Clothing Workers of America [Winfield Mfg Co] v N. L. R B, 424 F.2d 818,828 (C A D C.,1970) to relitigate issues which were or could have been litigated in a prior representation proceeding.5 All issues raised by the Respondents in this proceeding were or could have been litigated in the prior representation proceeding , and the Respon- dents do not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor do they 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 the Respondents have not raised any issue which is properly litigable in this unfair labor practice proceeding . We shall , accord- ingly, 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 THE RESPONDENTS Creative Lithography, Inc., a New York corpora- tion with its principal place of business in New York, New York, engages in the operations of a printing plant providing lithographic services for commercial customers . During the past year its gross revenue exceeded $750,000, of which more than $100,000 was derived from firms located outside the State of New York. The Platemakers, Inc., a New York corporation with its principal place of business in New York, New York, engages in the preparation and prod- uction of lithographic printing plates. During the calendar year 1971 it derived a gross revenue in excess of $ 100,000 from the performance of offset preparatory services for Creative. We find, on the basis of the foregoing, that Respondents 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 LABOR ORGANIZATIONS INVOLVED New York Printing Pressmen & Offset Workers Union Local No. 51, International Printing Pressmen and Assistants Union of North America, AFL-CIO, and New York Printing and Press Assistants and Offset Workers Union No. 23, International Printing Pressmen and Assistants Union of North America, AFL-CIO, are labor organizations within the mean- ing of Section 2(5) of the Act. 5 See Pittsburgh Plate Glass Co v. N.LR B, 313 U S 146, 162 (1941); Rules and Regulations of the Board , Secs 102.67(f) and 102.69(c) CREATIVE LITHOGRAPHY, INC. 619 III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The units 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 following employees of the Respondents constitute units appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees employed by The Platemakers, Inc., as lithographic preparatory employees at 207 West 25th Street, New York, New York, including camera operators, strippers, and platemakers, excluding all other employees, office clericals, salesman , bindery, temporary, professional employees, watchmen, guards, and supervisors as defined in the Act. All employees employed by Creative Lithography, Inc., as printing production employees at 207 West 25th Street, New York, New York, including offset and letterpress operators, excluding all other employ- ees, office clericals, professional employees, bindery and temporary employees, watchmen, guards, and supervisors as defined in the Act. 2. The certification On April 28, 1972, a majority of the employees of Respondents in said units, in a secret ballot election conducted under the supervision of the Regional Director for Region 2, designated the Unions as their representatives for the purpose of collective bargain- ing with the Respondents. The Unions were certified as the collective-bargaining representatives of the employees in said units on June 8, 1972, and the Unions continue to be such exclusive representatives within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondents' Refusal Commencing on or about July 19, 1972, and at all times thereafter, the Unions have requested the Respondents to bargain collectively with them as the exclusive collective-bargaining representatives of all the employees in the above-described unit. Com- mencing on or about July 21, 1972, and continuing at all times thereafter to date, the Respondents have refused, and continue to refuse, to recognize and bargain with the Unions as the exclusive representa- tives for collective bargaining of all employees in said units. Accordingly, we find that the Respondents have, since July 21, 1972, and at all times thereafter, refused to bargain collectively with the Unions as the exclusive representatives of the employees in the appropriate units, and that, by such refusal, Respon- dents have engaged in and are engaging in unfair r The activities of Respondents set forth in section III, above , occurring in connection with its opera- tions described in section I, 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 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 Unions as the exclusive representatives of all employees in the appropriate units, and , if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate units will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondents commence to bargain in good faith with the Unions as the recognized bargaining representatives in the appropriate units. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construc- tion Company, 149 NLRB 1419, 1421, enfd . 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record , makes the following: CONCLUSIONS OF LAW 1. Creative Lithography , Inc., and The Platemak- ers, Inc ., are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. New York Printing Pressmen & Offset Work- ers Union Local No. 51, International Printing Pressmen and Assistants Union of North America, AFL-CIO, and New York Printing and Press Assistants and Offset Workers Union No. 23, International Printing Pressmen and Assistants Union of North America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. All employees employed by the Platemakers, 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., as lithographic preparatory employees at 207 West 25th Street, New York, New York, including camera operators, strippers, and platemakers, exclud- ing all other employees, office clericals, salesmen, bindery, temporary, professional employees, watch- men, guards, and supervisors as defined in the Act. All employees employed by Creative Lithography, Inc., as printing production employees at 207 West 25th Street, New York, New York, including offset and letterpress operators, excluding all other employ- ees, office clericals, professional employees, bindery and temporary employees, watchmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since June 8, 1972, the above-named labor organizations have been and now are the certified and exclusive representatives of all employees in the aforesaid appropriate units for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 21, 1972, and at all times thereafter, to bargain collectively with the above-named labor organizations as the exclusive bargaining representatives of all the employees of Respondents in the appropriate units, 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, Respon- dents been interfered with, restrained, and coerced, and are interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby have engaged 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 mean- ing 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 Relations Board hereby orders that Respondents, Creative Lithography, Inc., and The Platemakers, Inc., their 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 New York Printing Pressmen & Offset Workers Union Local No. 51, International Printing Pressmen and Assistants Union of North America, AFL-CIO, and New York Printing and Press Assistants and Offset Workers Union No. 23, International Printing Pressmen and Assistants Union of North America, AFL-CIO, as the exclusive bargaining representatives of their employees in the following appropriate units: All employees employed by The Platemakers, Inc., as lithographic preparatory employees at 207 West 25th Street, New York, New York, including camera operators, strippers, and platemakers, excluding all other employees, office clericals, salesmen, bindery, temporary, professional employees, watclunen, guards, and supervisors as defined in the Act. All employees employed by Creative Lithography, Inc., as printing production employees at 207 West 25th Street, New York, New York, including offset and letterpress operators, excluding all other employ- ees, office clericals, professional employees, bindery and temporary employees, watchmen, guards, and supervisors as defined in the Act. (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 organizations as the exclusive representatives of all employees in the aforesaid appropriate units with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Post at their places of business at 207 West 25th Street, New York, New York, copies of the attached notice marked "Appendix."6 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 receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 the Respondents have taken to comply herewith. 6 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." CREATIVE LITHOGRAPHY, INC. 621 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 New York Printing Pressmen & Offset Workers Union Local No. 51, International Printing Pressmen and Assistants Union of North America, AFL-CIO, and New York Printing and Press Assistants and Offset Workers Union No. 23, International Printing Pressmen and Assistants Union of North America, AFL-CIO, as the exclusive representatives 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 Unions, as the exclusive representa- tives of all employees in the bargaining units 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 units are: All employees employed by The Plate- makers, Inc., as lithographic preparatory employees at 207 West 25th Street, New York, New York, including camera opera- tors, strippers, and platemakers, excluding all other employees, office clericals, sales- men, bindery, temporary, professional em- ployees, watchmen, guards, and supervisors as defined in the Act. All employees employed by Creative Lithography , Inc., as printing production employees at 207 West 25th Street, New York, New York, including offset and letterpress operators , excluding all other employees , office clericals , professional em- ployees, bindery and temporary employees, watchmen , guards, and supervisors as de- fined in the Act. CREATIVE LITHOGRAPHY, INC. AND THE PLATEMAKERS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 36th Floor Federal Building, 26 Federal Plaza, New York, New York 10007, Tele- phone 212-264-3311.