Alvin J. Bart and Co., Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1972

198 N.L.R.B. 1070 (N.L.R.B. 1972)

1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alvin J . Bart and Co., Inc . and New York Printing
Pressmen & Offset Workers Union , Local 51,
I.P.P. & A.U. of N.A., AFL-CIO. Case
2-CA-12637
August 25, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed on April 10, 1972, by New
York Printing Pressmen & Offset Workers Union,
Local 51, I.P.P. & A.U. of N.A., AFL-CIO, herein
called the Union, and duly served on Alvin J. Bart
and Co., Inc.. herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 2, issued
a complaint on April 21, 1972, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 a Trial
Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on February 16,
1972, following a Board election in Case
2-RC-15771 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate; i
and that, commencing on or about April 4, 1972, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is
requesting it to do so. On May 5, 1972, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
On June 7, 1972, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 15, 1972, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed a response to
Notice To Show Cause, called a Reply to Motion for
Summary Judgment. Subsequently, the General
' Official notice is taken of the record in the representation proceeding,
Case 2-RC-15771, as the term "record" is defined in Secs . 10268 and
102 69(f) of the Board's Rules and Regulations , Series 8 , as amended See
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
Counsel filed a Reply to Respondent's Opposition to
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:
Ruling on the Motion for Summary Judgment
The Respondent's answer to the complaint and
response to the Notice To Show Cause challenge the
Union's majority status and certification as exclusive
bargaining representative of the employees in the
stipulated unit on the facts alleged in its objections to
the conduct of the election. The General Counsel
contends that the issues Respondent is seeking to
raise have already been determined by the Board and
may not be relitigated. We agree.
The record herein establishes that, pursuant to a
Stipulation for Certification Upon Consent Election
in Case 2-RC-15771, an election by secret ballot was
conducted on January 7, 1972, in which a majority of
the employees in the stipulated unit selected the
Union as their representative for the purposes of
collective bargaining with the Respondent. Thereaft-
er, the Respondent filed timely objections to conduct
affecting the results of the election alleging, in
substance, that the Union threatened employees and,
by its acts and statements, prevented a free choice in
the election. After an investigation which included
interviewing all employees who voted in the election
and seeking evidence from the Respondent, the
Regional Director, on January 28, 1972, issued his
Report on Ojbections and Recommendations in
which he found the objections to be without merit
because of insufficient evidentiary support. Accord-
ingly, he recommended that the objections be
overruled and the Union be certified. In the absence
of exceptions to the Regional Director's report, the
Board, on February 16, 1972, issued its Decision and
Certification of Representative adopting the Region-
al Director's recommendations, overruling the objec-
tions, and certifying the Union in the appropriate
stipulated unit.
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
Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, 269
F Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378, enfd . 397 F 2d
91 (C A 7. 1968), Sec 9(d) of the NLRA
198 NLRB No. 149
ALVIN J. BART
to relitigate issues which were or could have been
litigated in a prior representation proceeding.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation 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.3
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.4 We shall, accordingly,
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, a New York corporation, has main-
tained an office and place of business at 28 West
23rd Street in the City and State of New York, herein
called its New York plant, where it is, and has been
at all times material herein, continuously engaged in
operating a printing plant providing lithographic
services for commercial customers and related
services. During the past year, a representative
annual period, the Respondent, in the course and
conduct of its business operations, performed serv-
ices valued in excess of $1 million of which services
valued in excess of $75,000 were performed in and
for various enterprises located in States other than
New York.
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
New York Printing Pressmen & Offset Workers
Union, Local 51, I.P.P. & A.U. of N.A., AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
2 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 ( 1941),
Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c)
3 In its answer to the complaint and response to the Notice To Show
Cause, the Respondent argues , in effect , that since its objections were
investigated without a hearing , it is entitled to a hearing on the objections
despite its failure , through oversight and "bad" advice , to file exceptions to
the Regional Director ' s Report on Objections We do not agree The
Respondent was afforded the opportunity to submit evidence to the
Regional Director in support of its objections, but submitted insufficient
evidence to sustain them thereby failing to raise substantial and material
issues of fact warranting the holding of a hearing Further , there has been
no showing of good and sufficient cause to justify the failure to file
AND CO., INC. 1071
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
the Act:
All pressroom and preparatory department
employees including pressmen , assistant press-
men, cameramen, strippers, platemakers, opa-
guers, and apprentices in both of said depart-
ments, employed by the Respondent at its New
York plant, exclusive of office clerical employees,
bindery employees, shipping department employ-
ees, guards and all supervisors as defined in the
Act.
2. The certification
On January 7, 1972, 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 2, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on February 16, 1972, 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 April 3, 1972, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 4, 1972, 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
exceptions to the Regional Director's report in accordance with Sec
102 69(c) of the Board's Rules and Regulations In these circumstances.
relitigation of the objections will not be permitted
4 Except as indicated hereinafter , the Respondent has failed to answer
the allegations of the complaint and therefore they are deemed to be
admitted and found to be true The answer questions the Union's status as a
labor organization This issue was determined in the underlying representa-
tion case and may not be relitigated The answer also raises a question
concerning the filing and service of the charge Timely filing and service of
the charge are established by the uncontroverted evidence attached to the
Motion for Summary Judgment , as Exhs FI and F2
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since April 4, 1972, 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-
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 commen-
ces 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; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Alvin J. Bart and Co., Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. New York Printing Pressmen & Offset Work-
ers Union, Local 51, I.P.P. & A.U. of N.A.,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All pressroom and preparatory department
employees including pressmen, assistant pressmen,
cameramen, strippers, platemakers, opaquers, and
apprentices in both of said departments, employed
by the Respondent at its New York plant, exclusive
of office clerical employees, bindery employees,
shipping department employees, guards and all
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 February 16, 1972, 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 4, 1972, 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,
Alvin J. Bart and Co., Inc., 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 New York Printing
Pressmen & Offset Workers Union, Local 51, I.P.P.
& A.U. of N.A., AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All pressroom and preparatory department
employees including pressmen, assistant press-
men, cameramen, strippers, platemakers, opa-
quers, and apprentices in both of said depart-
ments , employed by the Respondent at its New
York plant, exclusive of office clerical employees,
bindery employees, shipping department employ-
ees, guards and all supervisors as defined in the
Act.
ALVIN J. BART AND CO., INC. 1073
(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 New York, New York, plant copies
of the attached notice marked "Appendix."5 Copies
of said notice, on forms provided by the Regional
Director for Region 2 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 thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 2, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 In the event 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 "
Local 51, I.P.P. & A.U. of N.A., AFL-CIO, 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 pressroom and preparatory depart-
ment employees including pressmen , assist-
ant pressmen , cameramen , strippers, plate-
makers, opaquers, and apprentices in both of
said departments, employed by the Respon-
dent at its New York plant, exclusive of
office clerical employees, bindery employ-
ees, shipping department employees, guards
and all supervisors as defined in the Act.
ALVIN J. BART AND CO.,
INC.
(Employer)
Dated By
(Representative ) (Title)
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 New
York Printing Pressmen & Offset Workers Union,
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , 36th Floor, Federal Building, 26
Federal Plaza , New York, New York 10007, Tele-
phone 212-264-3311.