Schuyler Press, Inc.

National Labor Relations Board - Board Decisions

Jan 7, 1974

208 N.L.R.B. 162 (N.L.R.B. 1974)

162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schuyler Press, Inc., and Local One, Amalgamated
Lithographers of America , affiliated with Interna-
tional Typographical Union, AFL-CIO. Case
22-CA-5378
January 7, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on April 4, 1973, by Local
One, Amalgamated Lithographers of America, affili-
ated with International Typographical Union,
AFL-CIO, herein called the Union, and duly served
on Schuyler Press, Inc., herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Acting Regional Director for
Region 22, issued a complaint on May 16, 1973,
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, 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 December 19,
1972, following a Board election in Case
22-RC-5407 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate, I
and that, commencing on or about March 2, 1973,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On May 21 and June 14,
1973, Respondent filed its answer and amended
answer to the complaint admitting in part, and
denying in part. the allegations in the complaint.
On June 29, 1973, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 11, 1973, 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. Respondent thereafter filed a response to
Notice To Show Cause, called Reply to Motion for
Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
1 Official notice is taken of the record in the representation proceeding,
Case 22-RC-5407, as the term "record" is defined in Sees 102.68 and
102 69(f) of the Board 's Rules and Regulations , Series 8. as amended. See
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C.A 4, 1968);
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 its answer to the complaint and response to the
Notice To Show Cause, the Respondent contends
that, for the reasons fully set forth in its request for
review in the underlying representation Case
22-RC-5407, the Union had been improperly certi-
f ied by the Regional Director and that the unique and
distinctive factual and legal issues raised thereby
with respect to the Regional Director's powers in
representation cases, and with respect to due process
in representation hearings, require either a hearing
before an Administrative Law Judge or a review by
the Board itself without a hearing. The General
Counsel argues that all material issues have been
admitted in the Respondent's answer or had been
previously determined in the representation proceed-
ing and that, therefore, no issues exist which are
litigable before the Board or which require a hearing.
We agree with the General Counsel.
Our review of the record herein reflects that
pursuant to an approved Stipulation for Certification
Upon Consent Election, an election was conducted
in the stipulated lithographic production employees
unit. After the election which was won by the Union
and prior to certification, Asbury Park Typographi-
cal Union No. 721, AFL-CIO, herein called Typog-
raphers. claimed, in its February 20, 1973, letter of
protest, that it had an interest in the representation
proceeding since some three or four of the unit
employees were performing work covered by its
current contract with the Respondent. Accordingly,
and pursuant, inter alia, to the stipulation of the
Union "that [the Acting Regional Director] may
nullify the election," the Acting Regional Director,
by order dated November 10, 1972, withdrew
approval of the Stipulation for Certification Upon
Consent Election, declared the election to be null
and void, and directed a hearing on the question
concerning representation.
During the first day of the hearing, November 24,
1972, the Typographers, by letter of the same date,
withdrew its protest and objections to the election as
expressed in its letter of September-20, 1972. On the
second day of the hearing, November 28, 1972, the
Union withdrew its agreement to the nullifying order
of November 10, 1972, and requested that the
Golden Age Beverage Co.. 167 NLRB 151 , enfd 415 F.2d 26 (C.A 5, 1969),
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.
208 NLRB No. 35
SCHUYLER PRESS, INC.
Stipulation for Certification Upon Consent Election
be reinstated and that it be certified as collective-
bargaining representative on the basis of the election
results. The Respondent opposed this request argu-
ing that once nullified, the stipulation and election
could not be revived. Also, at the hearing, the
Respondent and Union contested the unit inclusion
of three employees. The Respondent, announcing
that it was not prepared at the time to litigate this
issue, requested a continuance. When the continu-
ance was denied, it left the hearing without present-
ing evidence on this issue. Thereafter, however,
evidence from the Union's witnesses was received on
the unit placement issue and the hearing closed.
Subsequently, the Respondent submitted a brief, a
motion to reopen the hearing, and affidavits on the
unit inclusion issue.
In his Decision, Supplemental Order, and Certifi-
cation of Representative issued on December 19,
1972, the Regional Director (1) denied the Respon-
dent's motion to reopen the record and to receive the
affidavits into evidence because the Respondent had
been given sufficient opportunity to introduce the
evidence at the hearing, (2) vacated the November
10, 1972, Order Withdrawing Approval of Stipula-
tion for Certification, Nullifying Election and Notice
of Hearing because no substantive factual reason
existed for not certifying the results of the election,
especially in view of the valid election recently
conducted with the consent of the parties and of the
withdrawal of the Typographer's protest, and (3)
certified the Union because it had received a
majority of the votes cast in the election.
Thereafter, the Respondent filed with the Board a
request for review in which it sought reopening of the
hearing on the unit inclusion issue and in which it
basically contended, in substance, that (1) the
Regional Director had no power retroactively to
revive and validate, against the will of the Respon-
dent, the stipulation for the election and the election
itself, after he had earlier nullified and declared both
of them null and void to which action the parties had
stipulated; and (2) the continuation of the hearing
after the withdrawal of the Typographers resulted in
actions prejudicial to the Respondent primarily with
respect to the issue of the unit inclusion of three
employees. On February 7, 1973, the Board denied
the request for review on the ground that it raised no
substantial issues warranting review. In the instant
proceeding, the Respondent is, in effect, seeking
reconsideration of, and attempting to relitigate, the
same identical issues raised by its request for review
which were raised and determined in the underlying
163
representation proceeding and the determination of
which, upon review, we now reaffirm.
It is well settled that in the absence of newly
discovered or 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 which were or could have been
litigated in a prior representation proceeding.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it 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 Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
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 RESPONDENT
At all material times herein the Respondent, a New
Jersey corporation, has maintained its principal
office and place of business at 1314 Rose Avenue,
Ocean Industries Park, Ocean, New Jersey, where it
has been continuously engaged in the business of job
printing and related services. During the preceding
12 months, a representative period, the Respondent
caused to be purchased, transferred, and delivered to
its Ocean facility paper products and other goods
and materials valued in excess of $50,000 which were
transported to said facility directly from States other
than the State of New Jersey.
We find, on the basis of the foregoing, that
Respondent 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.
II. IHE LABOR ORGANIZATION INVOLVED
Local One, Amalgamated Lithographers of Ameri-
ca, affiliated with International Typographical Un-
ion, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
2 See Pittsburgh Plate Glass Co v. NLRB, 313 U S 146, 162 (1941),
Rules and Regulations or the Board , Sees. 102.67(f) and 102.69(c)
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective -bargain-
Ing purposes within the meaning of Section 9(b) of
the Act:
All lithographic production employees em-
ployed at Respondent's Ocean , New Jersey,
facility, but excluding all office clerical employ-
ees, professional employees, guards and supervi-
sors as defined in the Act.
2. The certification
On September 15, 1972, 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 22, designated the
Union as their representative for the purpose of
collective bargaining with the Respondent. The
Union was certified as the collective -bargaining
ref resentative of the employees in said unit on
December 19, 1972, and the Union continues to be
such exclusive representative within the meaning of
Sectioi , 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 1972 and
February 15, 1973. and at all times thereafter, the
Union has requested the Respondent to bargain
collectively with it as the exclusive collective-bar-
gaining representative of all the employees in the
above-described unit. Commencing on or about
March 2, 1973, and continuing at all times thereafter
to date, the 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.
Accordingly, we find that the Respondent has,
iince March 2, 1973, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal , Respon-
dent 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 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 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.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit . 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,
1964), cert , denied 379 U.S. 817 ( 1964); Burnett
Construction Company, 149 NLRB 1419, 1421, enfd.
350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Schuyler Press, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local One, Amalgamated Lithographers of
America , affiliated with International Typographical
Union, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
3. All lithographic production employees em-
ployed at Respondent's Ocean , New Jersey, facility,
but excluding all office clerical employees , profes-
sional employees, 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 December 19, 1972, 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 March 2 , 1973, and at
SCHUYLER PRESS , INC 165
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is 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 Respondent,
Schuyler Press, Inc., its 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 Local One, Amalga-
mated Lithographers of America, affiliated with
International Typographical Union, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All lithographic production employees em-
ployed at Respondent's Ocean, New Jersey,
facility, but excluding all office clerical employ-
ees, professional employees, guards and supervi-
sorn 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 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Ocean, New Jersey, facility copies of
the attached notice marked "Appendix."3 Copies of
said notice, on forms provided by the Regional
Director for Region 22, 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 thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
J 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 "
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 Typographical Un-
ion, AFL-CIO, as the exclusive representative 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 Union, as the exclusive representa-
tive of all employees in the bargaining unit
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 unit is:
All lithographic production employees
employed at Respondent's Ocean, New
Jersey, facility, but excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
SCHUYLER PRESS, 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
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days from the date of posting and must not be Board's Office, Federal Building, 16th Floor, 970
altered, defaced, or covered by any other material. Broad Street, Newark, New Jersey 07102, Telephone
Any questions concerning this notice or compli- 201-645-2100.
ance with its provisions may be directed to the