A. M. Steigerwald Co., Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1978

239 N.L.R.B. 567 (N.L.R.B. 1978)

A. M. Stelgerwald Co., Inc. and Chicago Typographi-
cal Union No. 16, AFL-CIO. Case 13-CA-17775
December 5, 1978
DECISION AND ORDER
BY MEMBERS PENELLO. MURPHY. AND TRUESDALE
Upon a charge filed on June 28, 1978, by Chicago
Typographical Union No. 16, AFL-CIO, herein
called the Union, and duly served on A. M. Steiger-
wald Co., Inc., herein called Respondent, the Gener-
al Counsel of the National Labor Relations Board,
by the Regional Director for Region 13, issued a
complaint and notice of hearing on July 19, 1978.
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 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 be-
fore an Administrative 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 March 29, 1978,
following a Board election in Case 13-RC-14571, 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 June 16, 1978, and at all times there-
after, 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
July 27, 1978, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On September 1, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September 11,
1978, 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 should not be granted. Respondent there-
after filed a response to Notice To Show Cause.
Official notice is taken of the record in the representation proceeding.
Cae 13-RC-14571, 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 Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beverage Co., 169 NLRB 151 (1967). enfd. 415 F.2d
26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Folettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
A. M. STEIGERWALD CO., INC.
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:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause, Respondent admits the re-
quest and refusal to bargain. It, however, asserts as
an "affirmative defense" that the Union's certifica-
tion was improper in that the Regional Director erro-
neously sustained the challenges to the ballots of em-
ployees Eberle, Holmes, and Wilcox; that the votes
of the three individuals are determinative of the
Union's majority status; that the Union is not the
representative of a majority of the employees in the
bargaining unit; and that Respondent has not there-
fore refused to recognize and bargain with the Union
in violation of Section 8(a)(5) and (1) of the Act.
Review of the record herein, including the record
in Case 13-RC-14571, reveals that on January 31,
1978, the Regional Director for Region 13 issued a
Decision and Direction of Election wherein, based
on the hearing record before him, he found that the
above-named three individuals were supervisors
within the meaning of Section 2(11) of the Act.
Thereafter, Respondent filed a request for review of
the Regional Director's Decision with regard to the
supervisory issue. On March 15, 1978, the Board, by
telegraphic order, denied Respondent's request for
review but directed that the three individuals whose
employee status was in issue vote subject to chal-
lenge. An election was held on March 17, 1978, with
the tally of ballots showing that 25 employees voted
for the Union, 23 against, with 3 challenged ballots.
On March 29, 1978, the Regional Director issued his
Supplemental Decision on Challenged Ballots and
Certification of Representative wherein, based on the
entire record in the proceeding, he found that Wil-
cox, Holmes, and Eberle were supervisors. Accord-
ingly, he sustained the challenges to their ballots and
certified the Union as the employees' representative
for purposes of collective bargaining. Thereafter, on
or about April 5, 1978, Respondent filed a request
for review of the Supplemental Decision on Chal-
lenged Ballots and Certification of Representative.
On June 8, 1978, the Board, by teletype, granted Re-
spondent's request for review, and, upon a full review
of the record, affirmed the Regional Director's find-
ing that Wilcox, Holmes, and Eberle were supervis-
ors. The Board further affirmed the Regional
Director's Certification of Representative. It thus ap-
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pears that Respondent is again attempting in this
proceeding to relitigate issues fully litigated and de-
termined in the representation proceeding.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously 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
Respondent has not raised any issue which is proper-
ly litigable in this unfair labor practice proceeding.
Accordingly, we 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 RESPONDENT
Respondent, an Illinois corporation, is engaged in
the manufacture of tags and labels at its place of
business at 2160 North Ashland Avenue, Chicago,
Illinois. During the past calendar year prior to is-
suance of the complaint, a representative period, Re-
spondent, in the course and conduct of its opera-
tions, shipped goods valued in excess of $50,000
directly to points outside the State of Illinois and
purchased and received during this same period
goods valued in excess of $50,000 directly from
points outside the State of Illinois.
Respondent admits, and we find, on the basis of
the foregoing that Respondent is, and has been at all
times material herein, an employer engaged in com-
merce 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
Chicago Typographical Union No. 16, 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
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees
employed by the Employer at its facility now
located at 2160 North Ashland Avenue, Chica-
go, Illinois, including assistants to the plant pro-
duction superintendent, but excluding office
clerical employees, salesmen, estimators, profes-
sional employees, guards and supervisors as de-
fined in the Act.
2. The certification
On March 17, 1978, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 13, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on March 29. 1978, and the Union con-
tinues 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 16, 1978, and at all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about June 21, 1978, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues 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 Respondent has, since
June 21, 1978, 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, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
2 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
568
A. M. STEIGERWALD CO., INC.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
Ill, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, 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 mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected 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 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. A. M. Steigerwald Co., Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Chicago Typographical Union No. 16, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by the Employer at its facility now located at
2160 North Ashland Avenue, Chicago, Illinois, in-
cluding assistants to the plant production superinten-
dent, but excluding office clerical employees, sales-
men, estimators, 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 March 29, 1978, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about June 21, 1978, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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
interfering 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 engaging in unfair labor practices within the mean-
ing of Section 8(a)(l) 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 Re-
lations Board hereby orders that the Reypondent,
A. M. Steigerwald Co., Inc., Chicago, Illinois, its of-
ficers, 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 con-
ditions of employment with Chicago Typographical
Union No. 16, AFL CIO, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All production and maintenance employees
employed by the Employer at its facility now
located at 2160 North Ashland Avenue, Chica-
go, Illinois, including assistants to the plant pro-
duction superintendent, but excluding office
clerical employees, salesmen, estimators, 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.
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 exciusive representative of
all employees in the aforesaid appropriate unit with
569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 offices and facilities at 2160 North
Ashland Avenue, Chicago, Illinois, copies of the at-
tached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director
for Region 13, 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 conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event that this Order is enforced by a judgment of a United States
CouIt of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of tle
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 Chi-
cago Typographical Union No. 16, AFL-CIO,
as the exclusive representative of the employees
in the bargaining unit described below.
WE WILIL 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, 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 production and maintenance employees
employed by the Employer at its facility now
located at 2160 North Ashland Avenue, Chi-
cago, Illinois, including assistants to the plant
production superintendent, but excluding of-
fice clerical employees, salesmen, estimators,
professional employees, guards and supervis-
ors as defined in the Act.
A. M. STEIGERWALD Co.. INC.
570