American Printers & Lithographers

National Labor Relations Board - Board Decisions

Aug 26, 1985

275 N.L.R.B. 1490 (N.L.R.B. 1985)

1490 DECISIONS'OF NATIONAL'LABOR RELATIONS BOARD
American Printers & Lithographers • and Graphic
Communications - International Union , Local No.
458. Case 13-CA-24581
26 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed 23 October 1984 by the
Union , the General Counsel of the National Labor
Relations Board- issued a complaint 5 November
1984, and an amended complaint 15 January 1985,
against the Respondent , American Printers & Li-
thographers , alleging , inter alia , that it has violated
Sections 8(a)(5) and ( 1) and '8(d) of the National
Labor Relations Act. The Respondent filed an
answer to the complaint and to the amended com-
plaint admitting in part and denying in part the al-
legations in. the complaint and raising certain af-
firmative defenses.
On 4 March - 1985 the parties jointly filed ' a
motion to transfer the instant proceeding to the
Board without benefit of a hearing before an ad-
ministrative law judge and submitted a proposed
record consisting of the formal papers and the par-
ties' stipulation of facts with attached exhibits.' On
16 April 1985 the Associate Executive Secretary,
by direction of the Board , issued an order approv-
ing the stipulation and transferring the -proceeding
to the Board . Thereafter , the General Counsel, the
Charging Party , and the Respondent filed briefs.2
i As indicated in the stipulation, a portion of the official record in the
underlying representation case, Case 13-RC-16480, was lost subsequent
to the issuance of the Regional 'Director's and Board's decisions therein
The parties stipulated that the attached exhibits were duplicates of exhib-
its originally received at the hearing in Case 13-RC-16480
2 On 20 June 1985 the Respondent filed a motion to consolidate the
instant proceeding with Case 13-RC-16560, in which the Union is seek-
ing to represent a separate unit of the Respondent's maintenance employ-
ees In its motion the Respondent requested that the instant proceeding
be stayed pending the Board's receipt of the Respondent's request for
review in Case =13-RC-16560 and that .the cases then be consolidated
The Respondent contends that the threshold issue in both cases is wheth-
er all of the Respondent's unrepresented employees share a community of
interest as a residual -unit which precludes' the 'establishment of separate
smaller units or voting groups .
The General Counsel filed an opposition to the motion contending that
consolidation is'inappropniie and would result'in"unnece`ssary delay for
the instant case, which essentially is a vehicle for 'obtaining judicial
review of the certification The General Counsel also noted that the
Board earlier denied the Respondent's request 'foi review of the Regidnal
Director's unit- determination m•the underlying representation proceeding
in the instant case, The Union also filed an opposition contending,that
there is no relationship between the issues involved in the two cases and
that joinder would ceuse'procedural confusion and result in delays-for
both cases i '
We hereby deny the Respondent's motion In so doing, we particularly
note that no party contends that the petitioned-for maintenance employ-
ees in Case 13-RC-16560 should be included in the existing lithographic
production unit currently represented by the Union,. and that the Board
previously denied the Respondent's request for review raising this •issue in
the underlying representation case We also note that on I August 1985
275 NLRB No. 208
The National Labor- Relations Board has delegat-
ed its authority in this proceeding to a 'three-
member panel.
On the entire record in the case, the Board
makes 'the following
FINDINGS OF FACT
1. JURISDICTION
American Printers & Lithographers, a corpora-
tion with an' office and place of business in Chica-
go, Illinois, is engaged in the business of commer-
cial printing. During the past calendar year, a rep-
resentative period, the Respondent, in the course
and conduct of its business operations, purchased
and received at its Chicago, Illinois facility prod-
ucts, goods, and materials valued in excess of
$50,000 directly from points outside the State of Il-
linois. During the same period, the Respondent also
purchased and received at its Chicago, Illinois fa-
cility products, goods, and materials valued in
excess of $50,000 from other enterprises located
-within the State of Illinois, each of which had re-
ceived such products, goods, and materials directly
from points outside the State of Illinois.
We find that American Printers & Lithographers
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
On 4- June 1984 the Union filed a petition in Case
13-RC16480 seeking certification as the collec-
tive-bargaining representative of pressroom floor
helpers employed by the Respondent. Following a
hearing, on 13.August 1984 the Regional Director
for Region 13 issued a Decision and Direction of
Election, for a self-determination election among
employees in the'-designated voting group to deter-
mine whether they desired to be included in the ex-
istiilg,lithographic production unit-currently repre-
sented by the•Union3 or remain unrepresented. The
the Board denied the Respondent's request for review in Case 13-RC-
16560 -
a As set forth in the amended complaint, the historically recognized
unit consists of
All employees performing lithographic production work in the estab-
lishments of employers who have authorized the Chicago Lithogra-
phers Association to bargain on their behalf with the Union, exclud-
ing employees performing work which is only incidental or indirect-
ly related to lithographic production work, but including all employ-
ees employed as packers, bundlers, stackers and general pressroom
workers in the lithographic pressrooms of employers who have here-
tofore recognized the Union as representative of such employees and
-who have authorized the Chicago Lithographers Association to bar-
Continued
AMERICAN PRINTERS &,LITHOGRAPHERS
voting group, as set forth in the Decision and Di-
rection of Election, consisted of: -
All press room and preparatory department
-floor help employees employed by the Em-
ployer at its facility currently- located at 6701
W. Oakton Street, Chicago, Illinois, but ex-
cluding all other employees, guards and super-
visors as defined in the Act..
On 22 August 1984 the Respondent filed with
the Board a request for review of the Regional Di-
rector's Decision and Direction of Election. On 31
August 1984 the Union filed a statement in opposi-
tion to the request for review. On 7 September
1984 the request for review was denied and an
election was held in the voting group set forth in
the Decision and Direction of Election.4 On 17
September 1984 the Regional Director for Region
13 issued a Certification of Representative; on-26
September 1984 the Regional. Director issued a
letter withdrawing this Certification of Representa-
tive, and on 26 September 1984 the Regional Di-
rector issued a Certification of Results of Election.
On 3 October 1984 the Regional Director issued an
Amended Certification of Results of Election certi-
fying that a majority of the employees in the
voting group had indicated their desire to be in-
cluded in the existing lithographic production unit
currently represented by the Union.
On 24 September 1984 the Union requested the
Respondent to bargain concerning the pressroom
and preparatory department floor help employees.
On 26- September 1984 the Respondent refused,
stating its purpose"was to obtain judicial review, of
the certification. On 5 October 1984 the Union re-
newed its request in light of the amended certifica-
tion, and on 15 October 1984 the Respondent again
refused. As indicated above, the charge in the in-
stant case was filed 23 October 1984.
The parties further stipulated that, with the ex-
ception of the refusal-to-bargain issue, all issues
raised by the Respondent's answer to the amended
complaint were, or could have been, litigated in
the representation case, and the Respondent does
not assert that it has any newly discovered or pre-
viously unavailable evidence or that there are any
special circumstances.
gain on their behalf with the Union, excluding all other employees,
guards and supervisor's as defined in the Act '
Such recognition has been embodied in successive collective-bargaining
agreements, the most recent of which is effective 1 May 1983 to 30 April
1987
4 The tally of ballots showed 15 votes for and 2 against the Petitioner,
there were no challenged ballots
1491
B. Contentions of the Parties
The Respondent denies that the "expanded unit"
constitutes an appropriate unit for the purposes of
collective bargaining. In its answer and its brief,
the Respondent asserts that the employees in the
voting group are not lithographic production em-
ployees. It also asserts that the employees in the
voting group perform work substantially similar to
the work of floor helpers in other areas of the Re-
spondent's plant and that the Regional Director
erred in excluding those other employees. It fur-
ther contends the Regional Director erred in fail-
ing to include in the voting group all unrepresented
pressroom and preparatory floor helpers employed
by all employers who are covered by the same
multiemployer agreement with the Union. The Re-
spondent therefore contends the certification
should be vacated and the complaint dismissed.
The General Counsel contends that this proceed-
ing is in the nature of a motion for summary judg-
ment in a "technical" 8(a)(5) proceeding, in which
the Respondent acknowledges refusing to "bargain
with the Union in order to test the Board certifica-
tion. The General Counsel contends that the Re-
spondent's answer to the amended complaint is an
attempt to relitigate those issues which were al-
ready litigated in the underlying representation
case. The General Counsel further contends that
the Respondent's denial that - it has a duty to bar-
gain is sufficient grounds for finding a violation of
Section 8(a)(5).
The Union's brief essentially makes the same ar-
guments as the General Counsel's brief. The Union
additionally contends, inter alia, that the terms of
the multiemployer agreement provide for the inclu-
sion of the pressroom floor helpers on an employ-
er-by-employer basis.
C. Discussion
It is well settled that in the absence of newly dis-
covered and previously unavailable evidence or
special, circumstances, a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues that were or could have been
litigated, in , a prior representation proceeding. 'See
Pittsburgh Plate.Glass Co. v. NLRB, 313 U.S. 146,
162 (1941); Sections 102.67(f) and 102.69(c) of the
Board's Rules and-Regulations.
''All- issues 'raised by the Respondent were or
could' have been' litigated 'in' the prior representa-
tion proceeding. The Respondent does not offer to
adduce any newly discovered or previously un-
available evidence, nor does it allege any special
circumstances that would require the Board to re-
examine the decision made in the prior representa-
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion proceeding. We therefore find that the Re-
spondent has not raised any issue that is properly
litigable in this unfair labor practice proceeding.
Accordingly, we find that the Respondent's re-
fusal to recognize 'and bargain with the Union as
the exclusive representative of the employees in the
voting group as part of the expanded unit consti-
tutes an unlawful refusal to bargain in violation-of
Sections 8(a)(5) and (1) and 8(d) of the Act.5
CONCLUSIONS OF -LAW
.1. The Respondent, American Printers & Lithog-
raphers, is an employer, engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Graphic Communications' International Union,
Local No. 458, is a labor organization within the
meaning of Section 2(5) of the Act.
3.' The "expanded unit", appropriate for -the pur-
pose of collective bargaining ' wlthln.the. meaning of
Section 9(b) of the Act consists of the historically
recognized unit plus the voting group. The histori-
cally recognized unit is:
All employees performing. lithographic pro-
duction work in the establishments of employ-
ers who .have authorized, the Chicago.Lithog-
raphers Association to bargain on their -behalf
with the Union, excluding employees perform-
ing work which is only incidental or indirectly
related to - lithographic production work, but
including all employees employed: as packers,
bundlers, stackers and general pressroom
workers in the lithographic pressrooms of em-
ployers who have- heretofore recognized the
Union as representative of such employees and
who have authorized the Chicago Lithogra-
phers Association to bargain on their behalf
with the Union; excluding all other employees,
guards and supervisors as defined in the Act.
The voting group is:
All press room and preparatory department
floor help employees . employed by the Em-
ployer at its facility currently located at 6701
W. Oakton Street, Chicago, Illinois, but- ex-
eluding all other employees, guards and super-
visors as defined in the Act.
4. Since 3 October 1984 the Union has been and
is the exclusive representative of the employees in
the voting group set forth above as 'part of the. ex-
In agreeing that the Respondent violated Secs 8(a)(5) and (1) and
8(d) as alleged, Member Hunter finds it unnecessary to pass on the validi-
ty of the historically recognized multiemployer unit In so finding, he
notes that no party has contested the validity of that unit .
panded unit for the purposes of collective bargain-
ing within the meaning of Section' 9(a) of the Act.
5. By refusing since 15 October 1984 to bargain
with the Union as the exclusive collective-
bargain-ing representative of the employees in the above-
described voting group as part of the expanded
unit, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of
Sections 8(a)(5) and (1) and 8(d) 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.
REMEDY
Having found that the Respondent has violated
Sections 8(a)(5) and (1) and 8(d) of the Act, we
shall order it to cease and desist, to bargain on re-
quest with the Union, and, if an understanding is
reached, to embody- the understanding in a signed
agreement.
To ensure that the employees are accorded the
services of -their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in ' good faith
with the Union. Mar-Jac Poultry, 136 NLRB 785
(1962); Lamar' Hotel, 140 NLRB 226, 229 (1962),
enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379
U.S. 817 (1964); Burnett Construction Co., 149
NLRB 1419; 1421 (1964), enfd. 350 F.2d 57 (10th
-'Cir. '1965): --
ORDER
The National Labor Relations Board orders that
the' Respondent, American Printers & Lithogra-
phers, Chicago,-Illinois, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain'with Graphic Communi-
cations International Union, Local' No. 458, as the
exclusive bargaining representative of the employ-
ees in the bargaining unit. The bargaining unit con-
sists of the historically recognized unit and:
All press room' and preparatory department
floor help employees employed by the Em-
ployer at its facility currently located at 6701
W. Oakton Street, Chicago, Illinois, but ex-
cluding all other employees, guards and super-
visors 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 by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
AMERICAN PRINTERS & LITHOGRAPHERS
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the
aforesaid appropriate unit on terms. and conditions
of employment and, if an understanding is reached,
embody the understanding in a signed agreement.
(b) Post at its facility in Chicago, Illinois, copies
of the attached notice marked ' "Appendix."6
Copies of the notice, on forms provided by the Re-
gional Director for Region 13, after being signed
by the Respondent's authorized representative,
shall be posted. by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices 'are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
6 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
1493
NOTICE To EMPLOYEES -
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD -
An Agency of the United 'States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Graphic Communications International Union,
Local No. 458, as the exclusive representative- of
the employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act. :
WE WILL, on request, bargain ' with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit,- which consists of
the historically recognized bargaining unit and:
All press room and preparatory department
floor help- employees employed by the Em-
ployer at its facility currently located ' at 6701
W. Oakton Street , Chicago, Illinois , but ex-
cluding all other employees , guards and super-
visors as defined ' in the . Act. ' - -
AMERICAN PRINTERS & LITHOGRA-
PHERS ' -
I