George Lithograph

National Labor Relations Board - Board Decisions

Jan 9, 1992

305 N.L.R.B. 1090 (N.L.R.B. 1992)

1090
305 NLRB No. 168
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The caption has been amended, pursuant to the General Coun-
sel’s motion, to reflect the current name of the Charging Party. It
was changed after Local 280 merged with Bookbinders Local 3-B.
Herein, they are collectively called the Union. By granting the mo-
tion to amend the caption I do not intend to suggest that the changed
caption has any substantive effect on the underlying issues.
2 At the hearing the parties stipulated that Respondent’s correct
legal name is George Lithograph, Brisbane Division. The caption has
been amended accordingly. The representation petition, Case 20–
RC–15697, named the employer as A.G.S. Graphics. In the stipula-
tion for consent election its name was changed to George, A.G.S.
Division. The stipulation to correct the name in the instant case is
on the representation of Respondent’s counsel that the name has
been changed during the pendency of the litigation and that the cap-
tion should reflect the current name.
3 On April 2, 1991, counsel for the General Counsel filed a motion
to correct transcript. No opposition has been filed and it appears that
the corrections are appropriate. Accordingly, the motion to correct
the transcript is granted.
4 The motion and its certificate of service are actually dated April
26, 1985. Apparently the motion somehow became lost and was not
received by the Board until August 29, 1988.
George Lithograph, Brisbane Division and Graphic
Communications International Union, Local
583, AFL–CIO. Case 20–CA–19301
January 9, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 16, 1991, Administrative Law Judge James
M. Kennedy issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, George Lithograph, Bris-
bane Division, Brisbane, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Paula R. Katz, for the General Counsel.
Judy S. Coffin and Maria Narayan (Littler, Mendelson,
Fastiff & Tichy), of San Francisco, California, for the Re-
spondent.
William A. Sokol (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was heard before me in San Francisco, California, on Janu-
ary 7, 1991, on a complaint issued by the Regional Director
for Region 20 of the National Labor Relations Board on No-
vember 9, 1984, and pursuant to an unpublished order of the
Board dated November 25, 1988. The complaint is based on
a charge filed by Graphics Communications International
Union, Local 2801 on October 11, 1984. It alleges that
A.G.S. Graphics, now known as George Lithograph, Bris-
bane Division (Respondent)2 has committed certain viola-
tions of Section 8(a)(5) and (1) of the National Labor Rela-
tions Act.3
Issues
This case initially began as a test of the certification of
representative issued by the Board in the underlying rep-
resentation case, 20–RC–15697, issued on July 31, 1984. The
complaint alleges that since September 28, 1984, Respondent
has refused to bargain with the Union. Respondent’s answer
admits and denies the allegations in part, offers some affirm-
ative defenses, and seeks dismissal of the complaint. As the
Board noted in its November 25, 1988 Order, the General
Counsel did not file its Motion for Summary Judgment until
August 29, 1988.4
In its order of November 25, 1988, denying the Motion for
Summary Judgment and sending the matter to hearing, the
Board specifically prohibited the parties from litigating two
issues, employee turnover and the relitigation of matters
which could have been litigated in the representation pro-
ceeding. That left for me the two remaining issues, whether
the certified union, Local 280, continues to exist, and if so
whether Respondent’s employees have been provided with
due process with respect to the merger between Local 280
and Local 3-B. Evidence was taken on both issues, but after
the hearing was closed, Respondent, by letter dated February
6, 1991, withdrew its ‘‘lack of continuity’’ defense. In es-
sence it agrees that the Union, in its present form, is a con-
tinuation of Local 280. Accordingly, the only issue remain-
ing for resolution is whether it was improper of the Union
to have denied Respondent’s employees any meaningful say
in the merger.
Both the General Counsel and Respondent have filed
briefs which I have carefully considered. Based on the record
and the legal arguments which have been made, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits it is a California corporation with a
plant located in Brisbane, California, where it is engaged in
the lithographic and printing industry. It further admits that
during the calendar year 1983 it purchased and received
goods and supplies directly from sources outside California
valued in excess of $50,000. Accordingly, it admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
1091GEORGE LITHOGRAPH
II. LABOR ORGANIZATION
Respondent admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent, of course, admits that the certification of rep-
resentative was issued in favor of the Union’s predecessor as
alleged. It also admits, and the evidence shows, that it has
refused to bargain with the Union in order to test the validity
of the certification. See its letter dated September 28, 1984,
declining the Union’s request to bargain. The only defense
before me is whether it is privileged to refuse to bargain with
the Union now because the affected employees have been of-
fered no voice in Local 280’s decision to merge with Local
3-B. The facts are not in dispute.
In 1985, Local 280 and Local 3-B merged to create the
current union, Local 583. Both were affiliates of the same
International, Graphic Communications International Union,
AFL–CIO. Under the constitution and bylaws of Local 280,
only members, retired members, and persons working under
one of Local 280’s collective-bargaining contracts [i.e., an
active employee who had worked under a contract less than
30 days, a financial core member (or possibly an individual
working in a bargaining unit who had been denied constitu-
tional membership for some reason)] were permitted to vote
on the merger. In order to determine if there were such indi-
viduals, the stewards at each of the employers under contract
were asked to locate eligible nonmembers so they could be
given a ballot. Alena ‘‘Lennie’’ Kuhls, Local 583’s long-
term office manager (who had worked in various capacities
for Local 280 and its predecessor for 22 years), testified that
both locals had mailed requests to the shop stewards seeking
information about eligible nonmembers. She says they could
find no such individuals.
She also testified that none of Respondent’s employees
was eligible to vote on the merger issue because none quali-
fied under the policy. They had not yet become members and
did not work for an employer with whom Local 280 had a
collective-bargaining contract. Moreover, they could not even
become members until they had taken various steps under the
union constitution, including filling out an application, being
approved by both Local 280’s executive board and general
membership, attending an indoctrination class, and taking an
oath of office. Indeed, those steps only became available to
an employee after his/her employer had signed a collective-
bargaining contract. Since Respondent was still opposing the
certification, its employees had not yet met the first criterion,
working for an employer who had a Local 280 collective-
bargaining contract. Thus Local 280 did not mail any ballots
to Respondent’s employees.
At the time of the merger, Local 280 had about 2250 ac-
tive members and 760 retired members, totaling 3010 eligible
voters. According to the official tally, Local 280’s members
voted in favor of the merger 912 to 387. Since Respondent
only had about 74 employees in the unit which had voted in
favor of representation by Local 280, even if all had voted
against the merger, it still would have passed by a margin
of over 450 votes.
Local 3-B’s members, totaling 567, voted in favor of the
merger 497 to 63. Therefore, no matter what the sentiments
of Respondent’s employees might have been, they could not
have affected the outcome of the merger election.
IV. ANALYSIS AND CONCLUSIONS
Using a mathematical analysis, therefore, Respondent’s
contention that the employees have been denied a voice in
the merger rings hollow. It is only a concern in a hypo-
thetical or theoretical manner. Even if it were the law that
these employees were entitled to a voice in the merger, it is
doubtful that their denial of the right to vote would consid-
ered significant. Respondent does not contend that denying
these employees the right to vote in the merger election
should void the merger, the most obvious remedy. Instead,
it asserts that Respondent should not have to bargain with the
merged entity, because its employees had not been given the
opportunity to choose the successor. Yet, had Respondent
signed a collective-bargaining contract immediately after the
certification, its employees would have been given, under
Local 280’s rules, the right to vote on the merger. Assuming
that they all would have voted against the merger, and Re-
spondent thereupon withdrew recognition, such a result
would offer Respondent no refuge from an 8(a)(5) complaint.
Why, therefore, are its rights any different when a merger
occurs which its employees could not have stopped even if
they had been eligible to try?
Thus, from an entirely practical standpoint, I fail to see
why Respondent should be allowed to duck its bargaining
obligation based on what is essentially its disagreement with
an internal union rule governing the Union’s right to define
its own membership rights, duties, and obligations. Even if
the rule was somehow illegal, the remedy runs to its employ-
ees, not to the employer, and certainly should not insulate the
Employer from the collective-bargaining obligation.
But if one departs from the practical and looks only at the
law, the law, too, fails to support Respondent’s position. In
NLRB v. Financial Institution Employees (Seattle-First Na-
tional), 475 U.S. 192 (1986), the Supreme Court held that
the NLRB rule requiring unions in affiliation and merger
votes to allow nonmembers to vote, announced in Amoco
Production Co., 262 NLRB 1240 (1982), contravened the
Act’s assumption that stable bargaining relationships are best
maintained by allowing the affiliated union to continue to
represent the employees. It therefore found the Amoco rule
to be outside the congressional purpose behind the Act and
rejected it. The Board thereafter followed the Court’s man-
date and discarded the rule, holding that an employer cannot
refuse to bargain with the resulting labor organization simply
because its predecessors had refused to allow nonmembers to
vote on the affiliation or merger question. See F. W. Wool-
worth Co., 285 NLRB 854 (1987), and Potters’ Medical
Center, 289 NLRB 201 (1988).
Respondent appears to recognize that the law is currently
against it, but observes, at the time Respondent challenged
the merger, the Amoco rule was still in effect. It believes it
is entitled to the benefit of the law as it existed at the time.
I do not agree. The Supreme Court held that the Amoco rule
exceeded the congressional policy. If it overstepped in 1986,
when the Court so held, it also did so in 1985 when Re-
spondent refused to bargain on that basis. Accordingly, I can-
not recommend that it now be given a right which Congress
never intended it to have.
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Respondent also makes a rather sophisticated argument
based on an obscure case, the Board’s decision in Ohio Poly
Corp., 246 NLRB 104 (1979). That case cannot be relied on.
First, it is an amendment of certification petition which falls
under somewhat specialized rules only some of which apply
here. Second, there is no majority opinion, but consists of
three separate opinions by three different Board members
who all finally agreed only that the petition should be dis-
missed. Third, although there is language found in that case
by then Chairman Fanning expressing his concern that em-
ployees who had been denied membership not by choice or
lack of tenure, but by a union constitution provision, were
effectively disenfranchised by that provision. They had no
voice whatsoever in representational affairs in which they
had a direct concern. He refused to amend the union’s cer-
tification in order to force the union to give them the same
voice members would have. While I think such a matter
might have been a concern for employees covered by a col-
lective-bargaining contract but denied membership, the em-
ployees here have never been covered by a contract and have
not yet been offered the opportunity for membership, though
membership availability seems to be in the offing.
Moreover, Chairman Fanning’s concern about the plight of
such employees seems to have been overridden by the Su-
preme Court in Seattle-First. Indeed, Seattle-First holds that
the Board has ‘‘no authority to prescribe internal procedures
for [unions] to follow in order to invoke the Act’s protec-
tions’’ and therefore, ‘‘the Board exceeded its authority
under the Act in requiring that nonunion employees be al-
lowed to vote . . . before it would order the employer to
bargain . . . .’’ In a very real sense, therefore, Chairman
Fanning’s logic set forth in Ohio Poly has been rejected as
a basis for Respondent’s defense. I, therefore, cannot accept
it even as a germinating defense.
Respondent also makes an equitable argument, that the
delays which have occurred here are indefensible and have
worked to its detriment. I certainly do not condone the fact
that the General Counsel’s Motion for Summary Judgment
became lost and was not submitted to the Board until 1988.
Nor do I quite understand all the reasons why the case did
not come to trial promptly after the Board denied the Motion
for Summary Judgment in November 1988. Even so, I can-
not recommend that the case be dismissed on those grounds.
It is the Board’s responsibility to vindicate public policy.
That policy is imbedded in the Act and requires the Board
to remedy unfair labor practices. That is particularly impor-
tant where employees have exercised their right under the
Act to be represented by a labor union and that right has be-
come subsequently frustrated by an employer’s refusal to
bargain. To be sure, Respondent did so here to test the valid-
ity of the certification. That tack is part of the statutory
scheme.
Nonetheless, the employees have been denied their chosen
representation for over 7 years. The Board is obligated to
find in their favor, even if it is to Respondent’s detriment.
Parenthetically, I am not certain that Respondent has made
much of a case showing that the delay has actually preju-
diced it. Again, its complaint seems mostly hypothetical. It
certainly operated its business for that period without having
to conform to a collective-bargaining contract. Presumably,
since it continues to want to do so, that was a benefit which
it derived from its refusal to bargain. Its argument that this
delayed procedure has been detrimental to it seems hollow
in that context.
Accordingly, I find Respondent to have violated Section
8(a)(5) and (1) as alleged.
V. THE REMEDY
Having found Respondent to have engaged in certain vio-
lations of the the Act, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. The af-
firmative action shall include the standard order that Re-
spondent, on request, meet and bargain in good faith with the
Union and, if an understanding is reached, embody that un-
derstanding in a signed agreement. In addition, the initial pe-
riod of certification shall be construed as beginning on the
date 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 Con-
struction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in an industry affect commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization with in the meaning
of Section 2(5) of the Act.
3. Since September 28, 1984, by refusing to recognize and
bargain with Graphic Communications International Union,
Respondent George Lithograph, Brisbane Division has en-
gaged 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.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, George Lithograph, Brisbane Division,
Brisbane, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively in good
faith with Graphic Communications International Union,
Local 583, AFL–CIO in the following appropriate bargaining
unit:
All production and maintenance employees employed
by Respondent at its Brisbane, California, facility; ex-
cluding all office employees, guards and supervisors as
defined in the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights as
guaranteed by Section 7 of the Act.
1093GEORGE LITHOGRAPH
6 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
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.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain in good faith with Graphic Com-
munications International Union, Local 583, AFL–CIO re-
garding the employees employed in the above-described bar-
gaining unit, and, if an understanding is reached, embody
that understanding in a signed agreement.
(b) Post at its Brisbane, California facility, copies of the
attached notice marked ‘‘Appendix.’’6 Copies of the notice,
on forms provided by the Regional Director for Region 20,
after being signed by Respondent’s authorized representative,
shall be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by 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.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to recognize and bargain collectively
in good faith with Graphic Communications International
Union, Local 583, AFL-CIO in the following appropriate
bargaining unit:
All production and maintenance employees employed at
our Brisbane, California, facility; excluding all office
employees, guards and supervisors as defined in the
Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, bargain in good faith with Graphic
Communications International Union, Local 583, AFL–CIO
regarding the employees employed in the above-described
bargaining unit, and, if an understanding is reached, embody
that understanding in a signed agreement.
GEORGE LITHOGRAPH, BRISBANE DIVISION