Warner Press, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1974

215 N.L.R.B. 8 (N.L.R.B. 1974)

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warner Press, Inc. and Indianapolis Printing Press-
men, Assistants and Offset Workers Union No. 17,
a/w International Printing and Graphic Communi-
cations Union , AFL-CIO. Case 25-CA-6442
November 21, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
should not be granted. Respondent thereafter filed a
reply entitled "Response to General Counsel's Motion
for Summary Judgment."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the Board
makes the following:
Upon a charge filed on August 6, 1974, by In-
dianapolis Printing Pressmen, Assistants and Offset
Workers Union No. 17, a/w International Printing and
Graphic Communications Union, AFL-CIO, herein
called the Union, and duly served on Warner Press,
Inc., herein called the Respondent, the General Coun-
sel of the National Labor Relations Board, by the Re-
gional Director for Region 25, issued a complaint on
August 27, 1974, alleging that Respondent had en-
gaged 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 Administra-
tive Law Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on June 24, 1974, fol-
lowing a Board election in Case 25-RC-5576, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent 's employees
in the unit found appropriate;' and that, commenc-
ing on or about August 2, 1974 , 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 August 26, 1974, Respondent filed its answer
to the complaint admitting in part, and denying in
part , the allegations in the complaint.
On August 29, 1974, counsel for the General Coun-
sel filed directly with the Board a Motion for Summary
Judgment, and to strike portions of Respondent's an-
swer to the complaint. Subsequently, on September 9,
1974, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judgment
' Official notice is taken of the record in the representation proceedigg,
Case 25-RC-5576, 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
LTVElectrosystems, Inc., 166 NLRB 938 (1967), enfd 388 F 2d 683 (C A
4, 1968), Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F 2d
26 (C A 5, 1969), Intertype Co v Penello, 269 F Supp 573 (D C Va ,
1957), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7,
1968), Sec 9 (d) of the NLRA
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause, Respondent assigns error to the
Regional Director's rulings on certain of its objections
to the election, and asserts that there are material issues
of fact which preclude granting the Motion for Sum-
mary Judgment as a matter of law.
Review of the entire record, including that of the
representation proceeding, indicates that following an
election conducted pursuant to a Stipulation for Cer-
tification Upon Consent Election, Respondent filed
timely objections to the election. Respondent asserted
that the election should be set aside on the bases that
(1) the Union offered to waive initiation fees in viola-
tion of N.L.R.B. v. Savair Manufacturing Co., 414 U.S.
270 (1973); (2) the Union misrepresented its ability to
waive initiation fees and dues because its bylaws and
constitution required such fees and dues; (3) the Union
coerced, threatened, and intimidated certain employees
to obtain their support; and (4) the Union, by misre-
presentations and other acts of coercion, interfered
with the employees' free choice. Following investiga-
tion, the Regional Director issued a report on the objec-
tions, finding, in substance, that the Union's offer to
waive fees was unconditional, thus not proscribed by
Savair, supra. He further found that the Union had not
misrepresented its constitution and bylaws with regard
to fees and dues, but had merely guaranteed that they
would be waived, as had traditionally been done and
honored; that there was no evidence of any threats and
intimidation; and, finally, that the alleged misrepresen-
tations by the Union were within the bounds of a hotly
contested election such as this, where the parties vigor-
ously set forth.their positions. On the basis of these
findings, the Regional Director recommended that Re-
spondent's objections be overruled and the Union certi-
fied. Respondent filed exceptions to this report, essen-
tially reasserting its objections and arguing that the
Regional Director erred in his determinations thereon.
On June 24, 1974, the Board issued a Decision and
Certification of Representative, finding that Respon-
dent's exceptions raised no substantial or material is-
sues of fact or law which would warrant reversal of the
215 NLRB No. 10
WARNER PRESS, INC 9
Regional Director's findings or recommendations and,
accordingly, adopted them aad certified the Union.
In its response to the Notice To Show Cause, Re-
spondent argues that the Union's misrepresentation of
its constitution and bylaws with regard to waiving fees
and dues was material to the election results, and that
the Union's offer to waive initiation fees was contrary
to Savair. We have previously considered these issues'
in the Respondent's exceptions to the Regional Direc-
tor's report on objections, and see no reason to consider
them again.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior re-
presentation 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 prop-
erly 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
Respondent, an Indiana corporation with its princi-
pal office and place of business at Anderson, Indiana,
is engaged in the manufacture, sale, and distribution of
pi anted matter and related products. During the past
year, a representative period, Respondent, in the course
and conduct of its business operations, purchased,
transferred, and delivered to its facility, goods and
materials valued in excess of $50,000 which were
transported to said facility directly from States other
than the State of Indiana. During the same period,
Respondent , in the course and conduct of its busi-
ness, sold and distributed products valued in excess
of $500,000.
We find, on the basis of the foregoing, that Respond-
ent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
2 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941),
Rules and Regulations of the Board , Sees 102 67 (1) and 102 69(c)
3 In view of the result reached herein , we need not rule on the General
Counsel ' s motion to strike portions of Respondent 's answer to the com-
plaint
Section 2(6) and (7) of the Act, and that it will effectu-
ate the policies of the Act to assert jurisdiction herein.
11 THE LABOR ORGANIZATION INVOLVED
Indianapolis Printing Pressmen, Assistants and Off-
set Workers Union No. 17, a/w International Printing
and Graphic Communications Union, AFL-CIO, 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 consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees of
the Employer at its Anderson, Indiana , facility,
including regular part-time employees, janitors,
and plant clerical employees, but excluding all of-
fice clerical employees, sales employees, profes-
sional employees, guards and supervisors as de-
fined in the Act.
2. The certification
On February 8, 1974, a majority of the employees of
Respondent in said unit , in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 25 designated the Union as their representa-
tive for the purpose of collective bargaining with the
Respondent. The Union v as certified as the collective-
bargaining representative of the employees in said unit
on June 24, 1974, and the Union continues to be such
exclusive representative within the meaning of Section
9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about June 27, 1974, and at all
times thereafter, the Union has requested the Respond-
ent to bargain collectively with it as the exclusive col-
lective-bargaining representative of all the employees in
the above-described unit. Commencing on or about
August 2, 1974, 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
August 2, 1974, and at all times thereafter, refused to
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit,
and that, by such refusal, Respondent 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 operations de-
scribed 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 commerce.
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, bar-
gain collectively with the Union as the exclusive re-
presentative of all employees in the appropriate unit,
and, if an understanding is reached, embody such un-
derstanding in a signed agreement.
In order to insure that the employees in the appropri-
ate unit 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 begin-
ning on the date Respondent commences 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); Com-
merce 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 Com-
pany, 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. Warner Press, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Indianapolis Printing Pressmen, Assistants and
Offset Workers Union No. 17, a/ w International
Printing and Graphic Communications Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees of the
Employer at its Anderson, Indiana, facility, including
regular part-time employees, janitors, and plant clerical
employees, but excluding all office clerical employees,
sales 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 June 24, 1974, the above-named labor organ-
ization has been and now is the certified and exclusive
representative of all employees in the aforesaid appro-
priate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about August 2, 1974, 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, Respondent
has interfered with, restrained, and coerced, and is in-
terfering with, restraining, and coercing, employees in
the exercise of the rights guaranteed to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing 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 meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board hereby orders that Respondent , Warner Press,
Inc., Anderson, Indiana, 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 Indianapolis Printing Pressmen,
Assistants and Offset Workers Union No. 17, a/w In-
ternational Printing and Graphic Communications
Union , AFL-CIO, as the exclusive bargaining repre-
sentative of its employees in the following appropri-
ate unit:
All production and maintenance employees of
the Employer at its Anderson, Indiana , facility,
including regular part -time employees , janitors,
and plant clerical employees, but excluding all of-
fice clerical employees, sales employees, profes-
sional employees, guards and supervisors as de-
fined 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.
WARNER PRESS, INC.
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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its Anderson, Indiana , facility copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 25, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, 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 al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
11
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 con-
cerning rates of pay, wages, hours, and other terms
and conditions of employment with Indianapolis
Printing Pressmen, Assistants and Offset Workers
Union No. 17, a/w International Printing and
Graphic Communications Union, AFL-CIO, as
the exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner inter-
fere 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 representative 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 under-
standing in a signed agreement. The bargaining
unit is:
All production and maintenance employees
of the Employer at its Anderson, Indiana,
facility, including regular part-time employees,
janitors, and plant clerical employees, but ex-
cluding all office clerical employees, sales em-
ployees, professional employees, guards and
supervisors as defined in the Act.
WARNER PRESS, INC.