Bi-Craft Litho

National Labor Relations Board - Board Decisions

Feb 14, 1995

316 N.L.R.B. 302 (N.L.R.B. 1995)

302
316 NLRB No. 63
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bi-Craft Litho, Inc. and Graphic Communication
International Union, Local 546M. Case 8–CA–
25629
February 14, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
Upon a charge filed by the Union on July 20, 1993,
the General Counsel of the National Labor Relations
Board issued a complaint on September 3, 1993,
against Bi-Craft Litho, Inc., the Respondent, alleging
that it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act. Copies of the charge and
complaint were duly served on the parties. On October
15, 1993, the Respondent filed an answer to the com-
plaint, denying the commission of any unfair labor
practices.
On February 4, 1994, the parties filed a stipulation
of facts and motion to transfer proceedings to the
Board. The parties agreed that the stipulation of facts
and attached exhibits constitute the entire record in this
case, and that no oral testimony was necessary or de-
sired by any of the parties. The parties further waived
a hearing before an administrative law judge and the
issuance of an administrative law judge’s decision, and
indicated their desire to submit the case directly to the
Board for findings of fact, conclusions of law, and the
issuance of an order. On July 14, 1994, the Board
issued an order approving the stipulation and transfer-
ring the proceeding to the Board. Thereafter, the Gen-
eral Counsel and the Respondent filed briefs.
The Board has delegated its authority in this pro-
ceeding to a three member panel.
On the entire record in this proceeding, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation incorporated in the
State of Ohio engaged in the printing industry. Annu-
ally, in the course and conduct of its business oper-
ations, the Respondent provides services valued in ex-
cess of $50,000 to Sherwin-Williams, Stouffers, Tex-
aco, and Shell, enterprises within the State of Ohio
which themselves each have annual gross revenues in
excess of $500,000 and which each annually sell and
ship goods and products valued in excess of $50,000
directly to points located outside the State of Ohio.
The parties stipulated, and we find, that the Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act
and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
At all times material to this case, the Union has
been the designated exclusive collective-bargaining
representative of the Respondent’s employees in the
following appropriate unit:
All employees covered by the jurisdiction clause
of [the collective-bargaining] agreement, exclud-
ing foremen and supervisors, performing any of
the following work, shall without limitation, be
covered by the terms of this contract: all work,
processes, operations and products directly associ-
ated with the processing of lithographic produc-
tion (including dry or wet), (Photoengraving, In-
taglio, Gravure), Bookbinding and finishing or
otherwise reproducing images of all kinds, or any
other purpose, including without limitation any
computerization, technological or other change,
evolution or substitution for any work, process
operation or product new [sic] or hereafter utilized
in any of the methods or for any of the purposes
described above.
Recognition has been embodied in a series of collec-
tive-bargaining agreements, the most recent of which
was effective from May 1, 1992, to April 30, 1993.
On January 1, 1993, the Respondent employed five
unit employees. Between January 31 and June 14,
1993, inclusive, four of these individuals quit their em-
ployment, and the Respondent hired three new employ-
ees. On about June 14, 1993, the Respondent withdrew
recognition from the Union based on an asserted good-
faith doubt as to the Union’s continued majority status.
The Respondent has stipulated that the ‘‘sole reason
for its asserted good-faith doubt as to the Union’s ma-
jority status in the Unit was the 1993 changes in the
identities of employees in the Unit . . . .’’
B. Contentions of the Parties
The General Counsel contends that the stipulated
facts establish that the Respondent’s withdrawal of rec-
ognition violated Section 8(a)(5), as the Board has held
that turnover in the unit, alone, is not sufficient to pro-
vide a lawful basis for withdrawal of recognition. In
support, the General Counsel cites Albany Steel, 309
NLRB 442, 454–455 (1992), enfd. as modified 17 F.3d
564 (2d Cir. 1994); Barclay Caterers, 308 NLRB 1025
fn. 2 (1992); and Columbia Portland Cement Co., 303
NLRB 880, 882–883 (1991), enfd. 979 F.2d 460 (6th
Cir. 1992).
The Respondent asserts that, even if it is found to
have ‘‘technically’’ violated Section 8(a)(5), the Board
should order that an election be held rather than issue
a bargaining order. In this regard, the Respondent as-
serts that its withdrawal of recognition was based in
303BI-CRAFT LITHO
1 See Bi-Craft Litho, Inc., Case 8–CA–25268. Documents attached
by the Respondent to its brief appear to indicate that the charge was
filed on March 3, 1993, and that the alleged settlement agreement
was approved by the Regional Director for Region 8 on June 29,
1993.
2 Unlike the Respondent, we find the Second Circuit’s decision in
NLRB v. Albany Steel is not to the contrary. The court there enforced
the Board’s finding that the employer unlawfully withdrew recogni-
tion from the union because the facts presented did not establish a
good-faith doubt of the union’s continued majority status. However,
the court declined to enforce the Board’s remedial bargaining order
because, in the court’s view, there was sufficient evidence placing
the union’s majority status in doubt to support the ordering of an
election. The evidence cited by the court in this regard included the
fact that no employees were paying dues, direct evidence that certain
employees were dissatisfied with their representation, and the
union’s failure to secure a new collective-bargaining agreement or
to file any grievances over a 3-year period. No evidence of this char-
acter is presented in this case, and nothing in the court’s decision
remotely suggests that it would find that employee turnover alone
either privileged withdrawal of recognition or would justify with-
holding the Board’s traditional remedy of a bargaining order.
We find the Respondent’s reliance on NLRB v. Laverdiere’s Enter-
prises, 933 F.2d 1045 (1st Cir. 1991) equally unconvincing. In that
case, the court based its order of an election rather than a bargaining
order on the fact that the employer had been presented with a decer-
tification petition one name short of a proper showing of interest.
The court found that this defect was the result of numerical error
on the part of the petitioners and that the incomplete petition was
prepared without employer involvement. Although the court referred
to turnover within the bargaining unit, the turnover was the result
of what the court found to be the Board’s inordinate delay in proc-
essing the case.
3 In this regard, we note that there is no record evidence to sup-
port the Respondent’s averments concerning the decertification peti-
tion, including the authenticity of the documents attached to its brief.
4 Member Cohen notes that there has been no adjudication that
Respondent unlawfully assisted the decertification petition in Case
8–RD–1629. The informal settlement of the 8(a) case involving such
allegations cannot defeat the rights of the petitioner in the RD case.
See Jefferson Hotel, 309 NLRB 705 (1992); Nu Aimco, Inc., 306
NLRB 978 (1992). However, it does not appear that the petitioner
in Case 8–RD–1629 objected to the dismissal of his petition. In
these circumstances, Member Cohen joins his colleagues in rejecting
Respondent’s contention that an election should be held.
part on a decertification petition filed on February 26,
1993, and supported by the signatures of three of the
four unit employees. The Respondent asserts that, al-
though the petition was dismissed pursuant to the set-
tlement of charges filed by the Union alleging that the
Respondent had unlawfully participated in the drafting
and filing of the decertification petition,1 that petition
should nevertheless be considered by the Board in
fashioning a remedy. Although none of these matters
are part of the stipulation of facts submitted by the
parties and approved by the Board, the Respondent as-
serts that the Board may take cognizance of the as-
serted facts because they are evidenced by official
Board documents.
C. Discussion
It is well-settled that an incumbent union is afforded
a presumption of continued majority status, which an
employer may rebut by showing a good-faith doubt
based on objective considerations. Columbia Portland
Cement Co., above 303 NLRB at 882; see also Burger
Pits, 273 NLRB 1001 (1984), enfd. sub nom. Hotel &
Restaurant Employees Local 19 v. NLRB, 785 F.2d
796 (9th Cir. 1986). Unit turnover alone, without
more, is insufficient to establish such good-faith doubt.
NLRB v. Curtin Matheson Scientific, 494 U.S. 775
(1990); see also Barclay Caterers, above at 1025 fn.
2.2 Inasmuch as the Respondent has stipulated that the
sole basis for its withdrawal of recognition on June 14,
1993 was unit turnover, we find that the withdrawal of
recognition violated Section 8(a)(5) and (1).
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist and to take certain affirmative action
necessary to effectuate the policies of the Act. Con-
trary to the Respondent, we find that a bargaining
order is the appropriate remedy for the violation estab-
lished in this case. Thus, we find no merit to the Re-
spondent’s contention that an election should be held
instead in light of the asserted decertification petition.
Initially, although, as noted above, some courts have
directed the holding of elections under markedly dif-
ferent circumstances than those presented here, the
Board’s traditional remedy in cases of this type is to
issue a bargaining order. We further note that the as-
serted decertification petition is not properly before us
in this case, as it is not mentioned in the stipulation
of facts which all parties—including the Respondent—
agreed constitutes ‘‘the entire record in this case’’
(emphasis added).3 Moreover, even if we were to ac-
cept the Respondent’s untimely proffered averments
concerning the petition as accurate, the alleged decerti-
fication petition was dismissed based on a settlement
of charges that the Respondent unlawfully assisted em-
ployees in its preparation and filing. Under these cir-
cumstances, we would not in any event accord the as-
serted petition any weight as evidence of the employ-
ees’ desires concerning representation for purposes of
this proceeding.4
ORDER
The National Labor Relations Board orders that the
Respondent, Bi-Craft Litho, Inc., Cleveland, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Graphic
Communication International Union, Local 546M, as
the exclusive bargaining representative of the employ-
ees in the appropriate bargaining unit described below.
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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
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.’’
(b) In any like or related manner interfering with,
restraining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of employees in the following ap-
propriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement:
All employees covered by the jurisdiction clause
of the collective-bargaining agreement between
the Respondent and the Union which was effec-
tive from May 1, 1992 to April 30, 1993, exclud-
ing foremen and supervisors, performing any of
the following work, shall without limitation, be
covered by the terms of this contract: all work,
processes, operations and products directly associ-
ated with the processing of lithographic produc-
tion (including dry or wet), (Photoengraving, In-
taglio, Gravure), Bookbinding and finishing or
otherwise reproducing images of all kinds, or any
other purpose, including without limitation any
computerization, technological or other change,
evolution or substitution for any work, process
operation or product new or hereafter utilized in
any of the methods or for any of the purposes de-
scribed above.
(b) Post at its Cleveland, Ohio facility copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, 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 Re-
spondent has taken to comply.
APPENDIX
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to recognize and bargain with
Graphic Communication International Union, Local
546M, as the exclusive collective-bargaining represent-
ative of our employees in the unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise 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 and conditions of employment for
our employees in the bargaining unit:
All employees covered by the jurisdiction clause
of our collective-bargaining agreement with the
Union that was effective from May 1, 1992 to
April 30, 1993, excluding foremen and super-
visors, performing any of the following work,
shall without limitation, be covered by the terms
of this contract: all work, processes, operations
and products directly associated with the process-
ing of lithographic production (including dry or
wet), (Photoengraving, Intaglio, Gravure), Book-
binding and finishing or otherwise reproducing
images of all kinds, or any other purpose, includ-
ing without limitation any computerization, tech-
nological or other change, evolution or substi-
tution for any work, process operation or product
new or hereafter utilized in any of the methods or
for any of the purposes described above.
BI-CRAFT LITHO, INC.