The Portsmouth Times

National Labor Relations Board - Board Decisions

Dec 8, 1966

161 N.L.R.B. 1620 (N.L.R.B. 1966)

1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 commerce
IV THE REMEDY
It having been found that Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act
It having been found that Respondent discriminated in regard to the hire and
tenure of employment of Robert Earl Davis by discharging him on October 29,
1965, I will recommend that Respondent offer him immediate and full reinstate-
ment to his former, or substantially equivalent position at the NASA Manned
Spacecraft Center in Houston, Texas, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay he may have suffered
by reason of said discrimination against him by payment to hun of a sum of
money equal to that which he would have earned as wages from the date of the
discrimination to the date of his reinstatement, less his net earnings during such
period, in accordance with the formula set forth in F W Woolworth Company,
90 NLRB 289, with interest thereon at 6 percent per annum
Because of the type of unfair labor practices engaged in by Respondent, I see
an opposition by Respondent to the policies of the Act in general, and hence
I deem it necessary to order Respondent to cease and desist from, in any manner,
infringing upon the rights guaranteed its employees in Section 7 of the Act
CONCLUSIONS OF LAW
1 By discriminating in regard to the hire and tenure of employment of Robert
Earl Davis by discharging him on October 29, 1965, thereby discriminating in
regard to his hire and tenure of employment and discouraging union membership
and activities among its employees and preventing its employees from exercising
the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act
2 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed to them in Section 7 of the Act, Respondent has violated
Section 8(a)(1) of the Act
3 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
[Recommended Order omitted from publication I
Brush-Moore Newspapers , Inc. d/b/a The Portsmouth Times and
Truck Drivers Union, Local 413, affiliated with the Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America . Case 9-CA-3924 December 8, 1966
DECISION AND ORDER
Upon a charge filed by Truck Drivers Union, Local 413, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the Union, the Gen-
eral Counsel for the National Labor Relations Board, by the Regional
Director for Region 9, issued a complaint dated June 28,1966,' against
Brush-Moore Newspapers, Inc d/b/a The Portsmouth Times, herein
I Unless otherwise noted, all dates are in 1966
161 NLRB No 141
BRUSH -MOORE NEWSPAPERS 1621
called the Respondent, alleging that the Respondent had engaged in
and was engaging in unfair labor practices 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, the complaint,
and notice of hearing before a Trial Examiner were duly served upon
the Respondent and the Union.
With respect to unfair labor practices, the complaint alleges, in sub-
stance, that on or about April 1, the Union was duly certified as the
exclusive bargaining representative of the Respondent's employees in
the unit found appropriate 2 and that since on or about May 2, the
Respondent has refused and is refusing to recognize and bargain with
the Union as such exclusive bargaining representative, although the
Union has requested it to do. so. On July 6, the Respondent filed an
answer denying that it had engaged in unfair labor practices.
On August 24, the General Counsel filed with the Board 'a motion
for summary judgment, requesting that certain portions of the
Respondent's answer be stricken, that the allegations to the complaint
be deemed to be true, and that the Board make findings of fact and
.conclusions of law in conformity with the allegations of the com-
plaint. On August 25, the Board issued an Order transferring the
.case to the Board.and notice to show cause why the General Counsel's
motion for summary judgment should not be granted. On Septem-
ber 13, the Respondent filed a statement in opposition to General
.Counsel's motion for summary judgment and an offer of proof, in
which, in part, it denied the allegations of the complaint pertaining
to the Union's status as the exclusive representative of the employees
in the unit.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Brown and
Zagoria].
Ruling on the Motion for Summary Judgment
In its statement in opposition to the General Counsel's motion for
summary judgment, the Respondent contends that it is entitled to a
hearing to insure full litigation of the facts in this proceeding. This
contention is -without merit for the -following reasons.
On or about Mardi 24, following a Decision and Direction of Elec-
tion by the Regional Director for Region 9, a request for review by
the Respondent, and a denial of that request by the Board, a majority
of the employees of the Respondent in the appropriate unit, by secret
ballot, designated the Union as their representative for the purpose
of collective bargaining. No objections. were filed to conduct affecting
a Decision and certification of representative in Case 9-RC-6619.
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the results of the election, and, on or about April 1, the Union was
certified as the exclusive bargaining representative of the employees
in the appropriate unit.
In its statement in opposition to the motion, the Respondent does
not claim that the Union did not request recognition as the certified
representative of the Respondent 's employees in the appropriate unit.
Nor does the Respondent deny that it declined to recognize the
Union .3 The Respondent 's statement in opposition makes it ' clear that
it is seeking only to relitigate matters decided by the Board in the
prior representation proceeding : specifically that the distributors or
drivers involved are employees . However, it is well-settled that in the
absence of newly discovered or previously unavailable evidence, a
respondent is not entitled to relitigation in a Section 8(a) (5) pro-
ceeding of issues which were or could have been raised in a related
representation proceeding .4 Here , the Respondent did not make a
meritorious offer to adduce at a hearing any newly discovered or pre-
viously unavailable evidence .5 Nor did the Respondent allege that any
special circumstances exist herein which would require the Board to
reexamine the decision it made in the representation proceeding. Inas-
much as the Respondent has already litigated the issues in the repre-
sentation proceeding, it has not raised any issue which is properly
triable in the instant unfair labor practice proceedings.
.All material issues thus having been decided by the Board or
admitted by the Respondent, there are no matters requiring a hearing
before the Trial Examiner . Accordingly , the General Counsel's motion
for summary judgment is granted . On the basis of the record before
it, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is and has been at all times material herein a cor-
poration duly organized and existing by virtue of laws of the State
of_ Ohio and it is engaged in the publication and distribution of The
Portsmouth Times, a daily newspaper, at its plant located in Ports-
mouth, Ohio. During the past year, which is a representative period,
the Respondent had a gross volume of business in excess of $200,000
3 In its motion for summary judgment, the General Counsel attached a copy of a letter,
dated May 5, 1966, from the Respondent to the Union, acknowledging the Union's request
for bargaining made May 2, 1966, and declining to recognize the Union as the bargaining
representative of its employees . The Respondent at no point in this proceeding claims that
it did not send this letter.
*Pittsburgh Plate ,0lasa Company v. N.L.R.B., 313 U.S. 146 ; Collins & Aikman Corp.,
160 NLRB 1750.
5 Although the Respondent offered to present testimony to show that several changes
had been made in its route system , there is no showing that these alleged changes would
require any modification of the Regional Director 's original conclusion that the Respond-
ent's drivers are employees and not independent contractors.
BRUSH-MOORE NEWSPAPERS 1623
and published nationally syndicated features, advertised nationally
sold products, and subscribed to interstate news services
Respondent admits and we find that it is, and has been at all times
material herein, an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Truck Drivers Union, Local 413, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, 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
At all times material herein, the following employees at the
Respondent's Portsmouth, Ohio, plant, constituted and now consti-
tute a unit appropriate for collective bargaining within the meaning
of the Act
All motor route operators, including throw-off drivers, tube dis-
tributors, and newsstand disti ibutors, but excluding route con-
tractors, office clerical employees, and all guards, professional
employees, and supervisors as defined in the Act, and all employ-
ees currently covered by collective-bargaining agreements and all
other employees
2 The certification
On or about March 24, 1966, a majority of the employees of the
Respondent in the unit described above, in a secret ballot election
conducted under the supervision of the Regional Director for
Region 9, designated the Union as their representative for the purpose
of collective bargaining, and, on or about April 11, 1966, the Board
certified the Union as the exclusive bargaining representative of
employees in the said unit
B The request to bargain and the Respondent's refusal
On or about May 2, 1966, the Union requested the Respondent to
bargain collectively with it as the exclusive bargaining representative
of all employees in the above-described unit Commencing on or about
May 2, 1966, and continuing to date, the Respondent did refuse and
continues to refuse to bargain collectively with the Union as the
exclusive bargaining representative of all employees in the said unit
Accordingly, we find that the Union was duly certified by the
Board as the collective-bargaining representative of the employees of
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent in the approprite unit described above, and that the
Union at all times since April 1, 1966, has been and now is the exclu-
sive bargaining representative of all the employees in the aforesaid
unit, within the meaning of Section 9(a) of the Act, and that
Respondent has since May 2, 1966, refused to bargain collectively
with the Union as the exclusive bargaining representative of its
employees in the appropriate unit. By such refusal, we hold that the
Respondent has engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The acts of the Respondent, set forth in section III, above, occur-
ring in connection with its operations as described in section I,
above, have a close, intimate, and substantial relation 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
commerce.
V. THE REMEDY
Having found that the Respondent has engaged 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.
CONCLUSIONS OF LAW
1. Brush-Moore Newspapers, Inc. d /b/a The Portsmouth Times
is an employer engaged in commerce within the meaning of Section
2(6) and ( 7) of the Act.
2. Truck Drivers Union, Local 413, affiliated with the International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America , is a labor organization within the meaning of Section
2(5) of the Act.
3. All motor route operators , including throw-off drivers , tube dis-
tributors , and newsstand distributors , at the Respondent 's Ports-
mouth, Ohio, plant , but excluding route contractors , office clerical
employees , and all guards , professional employees , and supervisors as
defined in the Act, and all employees currently covered by collective-
bargaining agreements and all other employees , constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 ( b) of the Act.
4. On April 1, 1966, and at all times thereafter , the above-named
labor 'organization has been and is the .certified and exclusive repre-
sentative of all employees in the aforesaid approprite unit for the
BRUSH-MOORE NEWSPAPERS 1625
purposes of collective bargaining within the meaning of Section 9(a)
of the Act
5 By refusing on or about May 2, and at all times thereafter, to
bargain collectively with the above-named labor organization as the
exclusive bargaining representative of all the employees of the
Respondent in the appropriate unit, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (5) and (1) of the Act
6 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 Relations Board hereby orders that the
Respondent, Brush-Moore Newspapers, Inc d/b/a The Poitsmouth
Times, Portsmouth, Ohio, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Refusing to bargain collectively concerning wages, hours, and
other terms and conditions of employment, with Truck Drivers
Union, Local 413, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, as
the exclusive and duly certified bargaining representative of its
employees in the following appropriate unit
All motor route operators, including throw-off drivers, tube dis-
tributors, and newsstand distributors, at the Respondent's Ports-
mouth, Ohio, plant, but excluding route contractors, office clerical
employees, and all guards, professional employees, and supervisors
as defined in the Act, and all employees currently covered by
collective-bar gaining agreements and all other emplo3 ees
(b) In any like or related manner, interfering with the right of the
above-named labor organization to bargain as the exclusive repre-
sentative of the employees in the aforesaid appropriate unit
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 organiza-
tion 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 understanding in a signed agreement
(b) Post at its Portsmouth, Ohio, plant, copies of the attached
notice marked "Appendix " 6 Copies of said notice, to be furnished by
11 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order ," the words "a Decree of
the United States Court of Appeals Enforcing an Order "
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director for Region 9, after being duly signed by the
Company's representative, shall be posted by the Company imme-
diately upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted Reasonable steps shall be
taken by the Company to insure that said notices are not altered,
defaced, or covered by any other material
(c) Notify said Regional Director for Region 9, in writing, within
10 days from the date of this Decision and Order, what steps have
been taken to comply herewith
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that
WE WILL NOT refuse to bai gain collectively with Truck Di ivers
Union, Local 413, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of the employees in the bargaining
unit described below
WE WILL NOT in any like or related manner interfere with the
right of the above-named labor organization to bargain as the
exclusive representative of the employees in the appropriate unit
WE WILL, upon request, bargain with the above-named Union
as the exclusive representative of all employees in the bargaining
unit described below with respect to wages, hours, and other
terms and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement The
bargaining unit is
All motor route operators including throw-off drivers, tube
distributors, and newsstand distributors at the Portsmouth,
Ohio, plant, but excluding route contractors, office clerical
employees, and all guards, professional employees, and
supervisors as defined in the Act, and all employees cur-
rently covered by collective-bargaining agreements and all
other employees
BRUSH-MOORS NEWSPAPFRS, INC D/B/A
THE PowisMOUIH TIMES,
Employer
Dated---------------- By-------------------------------------
(Representative ) (Title)
CUTLER-HAMMER, INC. 1627
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.
Employees may communicate directly with the Board's Regional
Office, Room 2407 Federal Office Building, 550 Main Street, Cincin-
nati, Ohio 45202, Telephone 684-3686, if they have any questions con-
cerning this notice or compliance with its provisions.
Cutler-Hammer, Inc. Employer-Petitioner and Tool and Die
Makers Lodge No. 78, International Association of Machinists
and Aerospace Workers, AFL-CIO' and Technical Engineers
Association? Case 30-RM-57. December 8, 1966
DECISION ON REVIEW AND DIRECTION OF ELECTION
On June 1, 1966, the Regional Director for Region 30 issued a Deci-
sion and Order in the above-entitled proceeding, in which he dis-
missed the petition on the ground that' no question concerning
representation existed in the requested unit of all tool and machine
designers and draftsmen in the Employer's Manufacturing Engineer-
ing Department located at 4201 North 27th Street, Milwaukee, Wis-
consin. On June 13, the Employer filed a motion for reconsideration
and reopening of the record. On June 28, the Regional Director issued
a ruling on motion to reconsider and reopen hearing, in which he
adhered to his Decision and Order and denied the motion to reopen
the record. Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regulations, as amended,
the Employer filed a timely request for review of the Regional Direc-
tor's Decision and Order and his subsequent ruling on motions urg-
ing reconsideration of the "Board rule or policy" applied by the
Regional Director as the basis for dismissing the petition.
On August 1, the National Labor Relations Board by telegraphic
Order granted the request for review.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCulloch
and Members Fanning and Jenkins].
1 Herein called the Machinists.
Herein called the Engineers.
s Attached to the request for review was a copy of the Employer's brief, previously filed
with the Regional Director.
161 NLRB No. 143.