The Johnson & Hardin Co.

National Labor Relations Board - Board Decisions

Nov 6, 1975

221 N.L.R.B. 379 (N.L.R.B. 1975)

THE JOHNSON & HARDIN COMPANY
The Johnson & Hardin Company and Graphic Arts
International Union , Local No. 508, O-B--I, AFL-
CIO-CLC. Case 9-CA-9384
November 6, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on May 27, 1975, by Graphic
Arts International Union, Local 508, O-K-I, AFL-
CIO-CLC, herein called the Union, and duly served
on The Johnson & Hardin Company, herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 9, issued a complaint on June 17, 1975,
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 May 16,1975,
following a Board election in Case 9-RC-10626, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;1 and that, commenc-
ing on or `about May 23, 1975, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
On June 23, 1975, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint and raising certain
affirmative defenses.
On July 25, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment in which he also moved to strike portions
of Respondent's answer to -the complaint, and a
memorandum in support of the motion. He asserts,
in effect, that Respondent is attempting to relitigate
issues which were, or could have been, litigated in the
underlying representation proceeding. Subsequently,
on August 13, 1975, the Board issued an order
transferring the proceeding to the Board and a
Notice To Show Cause why the General Counsel's
' Official notice is taken of the record in the representation proceeding,
Case 9-RC-10624 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
LTV Electrosystem , Inc, 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beoerage Co., 167 , NLRB 151 (1967), eafd.415 F.2d 26
(C.A. 5, 1969); Intertype Co. v Penello, 269 F. Supp. 573 (D.C. Va., 1967);
379
Motion for Summary Judgment should not be
granted. Respondent thereafter filed a memorandum
in opposition to the Motion for Summary. Judgment.
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: r
Ruling on the Motion for Summary Judgment
In its answer to the complaint Respondent admits
the service of the charge; ^ that a Decision and
Certification of Representative -issued in Case 9-RC-
10626; 2 and that Respondent has ; declined to
recognize and bargain with the Union. Respondent,
however, denies that it has engaged in any, unfair
labor practices affecting commerce within the -mean-
ing of Section,8(a)(1) and (5) and Section 2(6) and (7)
of the Act. Affirmatively, Respondent asserts that it
was not obligated to bargain with the Union due to
errors in the Board's ruling in the representation case
with regard to alleged objectionable preelection
conduct by the Union and because Respondent takes
the position that the decision in Case 9-RC-10626
was not rendered by a majority of the panel members
and thus was legallyin error.' In its memorandum in
opposition to the Motion for Summary Judgment
Respondent essentially reasserts this latter conten-
tion.
With respect to the General Counsel's motion to
strike portions of the answer, we find, for the reasons
stated below, that Respondent's answer, as supple-
mented by its memorandum -in opposition to the
Motion for Summary Judgment, does not present a
meritorious defense to the allegations of the com-
plaint. However, inasmuch as Respondent's answer
could be viewed as an endeavor to preserve a
position (albeit, in our view, an erroneous one), we
shall deny the motion to strike. See Delta-Macon
Brick & Tile Company, Inc., 196 NLRB 148 (1972).
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.3
. The issues raised . by the Respondent in this
proceeding as to the Union's alleged- objectionable
preelection conduct were or could have been litigated
Follett Corp., 164 NLRB, 378 (1967), enfd. 397 F.2d 91(C.A. 7,1968);, Sec.
9(d) of the NLRA.
2 217 NLRB No. 166 (1975).
3 See Pittsburgh Plate Glass Co v NLRB., 313 U.S. 146,162 (1941);
Rules and Regulations of the Board, Secs. 102.67(1) and 102 .69(c).
221 NLRB No. 71
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the prior representation proceeding, and` the
Respondent does not offer to adduce at a hearing
any newly discovered or previously unavailable
evidence. However, Respondent alleges that the
Board is required to reexamine the Decision issued in
the representation proceeding because , although
Member Jenkins adopted the recommendation of the
Hearing Officer that Respondent's objections be
overruled in their entirety, Member Kennedy dis-
sented and Member Penello concurred with Member
Jenkins in the result only on grounds that , as stated
in his dissenting opinions in Ereno Lewis, 217 NLRB
No. 45 (1975), and Medical Ancillary Services, Inc.,
212 NLRB 582 (1974), he did not consider the falsity
of a party's campaign statements a basis for setting
aside an election. Thus , according to Respondent,
the findings and conclusions of the Hearing Officer
were not adopted by a majority of the panel, and the
certification is therefore null and void. We find no
merit to this contention. Although Members Jenkins
and Penello did not agree as to the rationale for their
decision they' did agree on the result, i.e., that the
objections based on alleged misrepresentations be
overruled. The fatty that two members of the panel
arrived at the same conclusion by different routes is
immaterial : the crucial fact is that a majority of the
panel , overruled , the objections , as,lacking in merit
and certified the Union as exclusive representative of
Respondent 's employees in an appropriate bargain-
ing-unit . We therefore find that the Respondent has
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
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation engaged at all
times material herein in the printing and lithograph-
ing-business at Cincinnati , Ohio. During the past 12
months, 'a representative period , Respondent sold
and shipped, goods and materials valued in excess of
$50,000 directly from its Cincinnati , Ohio , location to
customers outside the State of Ohio.
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. THE LABOR ORGANIZATION INVOLVED'
Graphic Arts International Union, Local 508, 0-
K-I, AFL-CIO-CLC, 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 the Respondent
constitute a unit appropriate for collective -bargain-
ing purposes within the meaning of Section 9(b) ^ of
theAct:
All production and maintenance employees
employed by Respondent at its Cincinnati, Ohio,
location, excluding. all office clerical employees,
professional employees, guards , and supervisors
as defined in the Act.
2. The certification
On August 15, 1974, a majority of the employees of
Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional
Director for Region 9, designated the Union as their
exclusive representative for the purpose of collective
bargaining with the Respondent. The Union was
certified as the exclusive collective -bargaining repre-
sentative of the employees in'said unit on May 16,
1975 , and the Union continues to be such representa-
tive within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about May 23, 1975; 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,
since May 23, 1975, 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-
THE JOHNSON & HARDIN, COMPANY
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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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
F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), 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. The Johnson & Hardin Company is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Graphic Arts International Union, Local No.
508, O-K-I, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees
employed by Respondent at its Cincinnati, Ohio,
location, excluding all office clerical employees,
professional 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 May 16, 1975, 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.
4 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
381
5. By refusing on or about May 23, 1975, and,-.,At
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, The
Johnson & Hardin Company, Cincinnati, Ohio, 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 Graphic Arts Inter-
national Union, Local No. 508, O-K-I, AFL-CIO-
CLC, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees
employed by Respondent at its Cincinnati, Ohio,
location, excluding all office clerical employees,
professional employees, 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 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 Cincinnati, Ohio, location copies of
the attached notice marked "Appendix." 4 Copies of
said notice, on forms provided by the Regional
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for Region 9, 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 there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable 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 9, in
writing, within 20 days from the date of this Order,
what`steps'have been taken to comply herewith.
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 Graph-
ic Arts International Union, Local No. 508, O-K
I, AFL-CIO-CLC, 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 production 'and maintenance employ-
ees at our'Cincinnati, Ohio, location, exclud-
ing all office clerical employees, professional
employees, guards, and supervisors as de-
fined in the Act.
THE JOHNSON & HARDIN
COMPANY