Ace Typographers

National Labor Relations Board - Board Decisions

Sep 29, 1980

252 N.L.R.B. 412 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SSS Typographers, Inc. d/b/a Ace Typographers
and AVJ Graphics, Inc. d/b/a Manhattan
Graphic Productions and New York Typo-
graphical Union No. 6, International Typo-
graphical Union, AFL-CIO. Case 2-CA-17214
September 29, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on April 29, 1980, by New
York Typographical Union No. 6, International
Typographical Union, AFL-CIO, herein called the
Union, and duly served on SSS Typographers, Inc.
d/b/a Ace Typographers and AVJ Graphics, Inc.
d/b/a Manhattan Graphic Productions, herein
called Respondents, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 2, issued a complaint on April
30, 1980, against Respondents, alleging that Re-
spondents had engaged in and were 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 and 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 January 31,
1980, following a Board election in Case 2-RC-
18557, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondents' employees in the unit found appropri-
ate;' and that, commencing on or about April 11,
1980, and at all times thereafter, Respondents have
refused, and continue to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting them to do so. On July 2,
1980, Respondents filed their answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
On July 8, 1980, counsel for the General Counsel
filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on July 10, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Official notice is taken of the record in the representation proceed-
ing. Case 2-RC-18557, 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 L'V Elcrrosyslems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 FSupp. 573
(D.CVa. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir 1968); Sec. 9(d) of the NLRA, as amended.
252 NLRB No.17
Judgment should not be granted. Respondents did
not file a response to theNotice To Show Cause.
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 their answer to the complaint, Respondents
admit all of the operative factual allegations of the
complaint other than their alleged failure and refus-
al "since on or about April 11, 1980," to recognize
and bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in a
unit described below which they deny. Apparently,
based on this denial, Respondents also 'deny the
conclusionary averments of the complaint that they
have violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Union. The General
Counsel contends that Respondents: (a) raise no
issues which have not been litigated and deter-
mined by the Board in the underlying representa-
tion proceeding; or (b) raise matters which are con-
clusively proved by the exhibits attached to the
Motion for Summary Judgment. We agree with the
General Counsel.
Review of the record herein, including the
record in Case 2-RC-18557, discloses that the
Union initially sought to represent certain compos-
ing room employees of Respondents. Following the
close of a hearing in the underlying representation
proceeding, the Regional Director for Region 2
issued his Decision and Direction of Election on
December 7, 1979. In that decision, he found the
requested unit, with the addition of certain messen-
gers, appropriate for collective-bargaining pur-
poses. The Union thereafter filed a request for
review of the Regional Director's decision with the
Board in Washington, D.C., contending that the
messengers should not be included in the unit. The
Board denied the request for review but amended
the Decision and Direction of Election to permit
the messengers to vote under challenge.
An election was thereafter held, on January 4,
1980, which the Union won. The challenged ballots
of the messengers were not determinative of the
election's results. On January 11, 1980, Respond-
ents filed timely objections to the election. On Jan-
uary 31, 1980, the Regional Director issued a Sup-
plemental Decision and Certification of Representa-
tive, overrulng Respondents' objections and certi-
fying the Union as the exclusive collective-bargain-
ing representative of the employees in the unit
foundappropriate. Respondents did not file excep-
412
ACE TYPOGRAPHERS AND AVJ GRAPHICS, INC.
tions to the Regional Director's Supplemental De-
cision.
As noted, Respondents have filed no response to
the Notice To Show Cause. In their answer to the
complaint, however, Respondents denied the factu-
al allegation of paragraph 10 of the complaint that
"[s]ince on or about April 11, 1980," Respondents
have refused to recognize and bargain with the
Union in the appropriate unit described below. In
rejecting this contention, we find that certain com-
plaint allegations admitted by Respondents along
with various exhibits attached to the General
Counsel's Motion for Summary Judgment conclu-
sively establish the date on which Respondents first
refused to bargain as April 11, 1980.
We note that paragraph 9(b) of the complaint,
which was admitted by Respondents, states that,
"[o]n or about April 11, 14, and 18, 1980, the
Union, by phone call, requested Respondents to
meet and bargain collectively with it as the exclu-
sive bargaining representative of Respondents' em-
ployees" in the unit described below. Also, append-
ed to the General Counsel's Motion for Summary
Judgment, as Exhibit J, is a letter dated April 21,
1980, from Respondent Ace Typographers which
declines the Union's request to bargain because
"we want to challenge the validity of the certifica-
tion." This letter appears to be an affirmation of an
earlier stated position by Respondents since, also
appended to the General Counsel's Motion for
Summary Judgment, as Exhibit I, is an April 22,
1980, letter from the Union to Respondents which
states:
Pursuant to our three (3) telephone conver-
sations (April 11, 14 and 18, 1980) and a letter
dated April 14, requesting a meeting for the
purpose of negotiating a mutually satisfactory
contract covering those certified employees
represented by this Union has [sic] met with
resistance on your part. Your constant replies
were that "you were checking the invalidity of
the authority vested by the Regional Director,
NLRB, Region 2 certification dated January
31, 1980." [Emphasis supplied.]
Respondents have not disputed the authenticity of
Exhibits I or J. Accordingly, notwithstanding Re-
spondents' denial of paragraph 10 of the complaint,
we find that Respondents' admission of paragraph
9(b) of the complaint along with Exhibits I and J
of the Motion for Summary Judgment establish
that Respondents did refuse to bargain on or about
April 11, 1980. Therefore, we find paragraph 10 of
the complaint to be true.2
2 Respondent Ace Typographers' letter of April 21, 1980, also indicat-
ed as a further reason for refusing to bargain that it had "been informed
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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 Re-
spondents do not offer to adduce at a hearing any
newly discovered or previously unavailable evi-
dence, nor do they allege that any special circum-
stances exist herein which would require the Board
to reexamine the decision made in the representa-
tion 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 RESPONDENTS
At all times material herein, AVJ Graphics, Inc.
d/b/a Manhattan Graphic Productions, at times
herein individually called Respondent AVJ, a New
York corporation, with an office and place of busi-
ness in New York, New York, herein called Re-
spondent AVJ's facility, has been engaged in pro-
viding typographical, phototypesetting, and related
services to commercial customers.
At all times material herein, SSS Typographers,
Inc. d/b/a Ace Typographers, at times herein indi-
vidually called Respondent Ace, a New York cor-
poration, with an office and place of business in
New York, New York, herein called Respondent
Ace's facility, has been engaged in providing typo-
graphical, phototypesetting, and related services to
commercial customers.
At all times material herein, Respondent AVJ
and Respondent Ace have been affiliated business
enterprises with common officers, ownership, di-
rectors, management, and supervision; have formu-
lated and administered a common labor policy af-
fecting employees of said operations; have shared
common premises and facilities; have interchanged
personnel with each other; and have held them-
selves out to the public as a single integrated busi-
ness enterprise.
By virtue of their operations described above,
Respondent AVJ and Respondent Ace constitute a
that [Ihe] Union does NOT represent a majority of the employees in the
unit, by a written petition which was submitted to [its president] " This
refusal to bargain based on this alleged petition is without merit as it is
well established that, absent unusual circumstances not shown to exist
here. a certified union's majority status is irrebuttably presumed for I
year from the date of certification. As the alleged petition was submitted
within the certification year. this petition did not justify the refusal to
bargain. See, e.g., Brooks v VL.R.B., 348 U.S. 96 (1954).
. See Pttsburgh Plate Glass Co. v NL.R.B., 313 U.S 146. 162 (1941);
Rules and Regulations of the Board, Secs 102 67(f) and 102.6h9(c)
413
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
single integrated business enterprise and a single
employer.
Annually, Respondent AVJ and Respondent
Ace, in the course and conduct of their operations
described above, collectively, perform services
valued in excess of $50,000 for various enterprises
located in States other than the State of New York.
We find, on the basis of the foregoing, that Re-
spondents are, and have been at all times material
herein, employers 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 I.ABOR ORGANIZATION INVOLVED
New York Typographical Union No. 6, Interna-
tional Typographical 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 Respondents consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees
employed by Respondents, but excluding
office clerical employees, salesmen, guards,
and supervisors as defined in the Act.4
At all times material herein, a majority of the
employees in the above-described unit have desig-
nated or selected the Union as their representative
for the purposes of collective bargaining with Re-
spondents.
2. The certification
On January 4, 1980, a majority of the employees
of Respondents in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 2, designated the Union
as their representative for the purpose of collective
bargaining with Respondents.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on January 31, 1980, and the Union continues to be
4 The classification of messengers is neither included nor excluded
from this unit since, in denying the Union's earlier request for review, the
Board permitted the messengers to vote in the election subject to chal-
lenge. Although the messengers involved were challenged at the election,
the challenged ballots were not determinative of the results of the elec-
tion. Accordingly, no further findings with respect to the unit placement
of the messengers have since been made.
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 April 11, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 11, 1980, and continu-
ing at all times thereafter to date, Respondents
have refused, and continue to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondents have,
since April 11, 1980, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ents have engaged in and are 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 Respondents set forth in section
II, above, occurring in connection with their oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondents have engaged in
and are engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act,
we shall order that they cease and desist therefrom,
and, upon request, bargain collectively with the
Union as the exclusive representative of all em-
ployees in the appropriate unit, and, if an under-
standing is reached, embody such understanding in
a signed agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondents com-
mence to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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
414
ACE TYPOGRAPHERS AND AVJ GRAPHICS, INC.
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett 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. SSS Typographers, Inc. d/b/a Ace Typogra-
phers and AVJ Graphics, Inc. d/b/a Manhattan
Graphic Productions, are employers engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. New York Typographical Union No. 6, Inter-
national Typographical Union, AFL-CIO is a
labor organization within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time employees
employed by Respondents, but excluding office
clerical employees, salesmen, guards, and supervi-
sors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since January 31, 1980, 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 April 11, 1980, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondents in the appropriate unit, Respondents
have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a)(5) of
the Act.
6. By the aforesaid refusal to bargain, Respond-
ents have interfered with, restrained, and coerced,
and are interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby have en-
gaged in and are 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
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 Re-
lations Board hereby orders that the Respondents,
SSS Typographers, Inc. d/b/a Ace Typographers
and AVJ Graphics, Inc. d/b/a Manhattan Graphic
Productions, New York, New York, their officers,
agents, successors, and assigns, shall:
1. Cease and deosist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with New York Typo-
graphical Union No. 6, International Typographi-
cal Union, AFL-CIO, as the exclusive bargaining
representative of all employees in the following ap-
propriate unit:
All full-time and regular part-time employees
employed by Respondents, but excluding
office clerical employees, salesmen, guards,
and supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at their facility in New York, New
York, copies of the attached notice marked "Ap-
pendix." 5 Copies of said notice, on forms provided
by the Regional Director for Region 2, after being
duly signed by Respondents' representatives, shall
be posted by Respondents immediately upon re-
ceipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 Pursu-
ant 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 WIl.. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with New York Typographical Union No. 6,
International Typographical Union, AFL-
CIO, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time employ-
ees employed by us, but excluding office
clerical employees, salesmen, guards, and su-
pervisors as defined in the Act.
SSS TYPOGRAPHERS, INC. D/B/A ACE
TYPOGRAPHERS AND AVJ GRAPHICS,
INC. D/B/A MANHATTAN GRAPHIC
PRODUCTIONS
416