Cedar Tree PressDownload PDFNational Labor Relations Board - Board DecisionsJul 24, 1997324 N.L.R.B. 26 (N.L.R.B. 1997) Copy Citation 26 324 NLRB No. 9 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 In its response, the Respondent now also cites the Board’s recent mail-ballot decisions in London’s Farm Dairy, 323 NLRB 1057 (1997); and Reynolds Wheels International, 323 NLRB 1062 (1997), which were issued after the decision in the representation proceed- ing, and contends that these recent decisions create special cir- cumstances warranting reexamination of the decision in the represen- tation proceeding. We reject the Respondent’s contention as those cases, like the earlier cases cited by the Respondent in the represen- tation proceeding (Shepard Convention Services, 314 NLRB 689 (1994), enf. denied 85 F.3d 671 (D.C. Cir. 1996) and Oneida County Community Action Agency, 317 NLRB 852 (1995)), involved the issue of when a mail ballot election is appropriate, rather than the issue raised in the instant case, which is whether absentee ballots should be provided to employees who are on vacation during a man- ual election. 2 Accordingly, we deny the Respondent’s Cross-Motion for Sum- mary Judgment. In the underlying case, Chairman Gould would have granted the Respondent’s request for review to reconsider the Board’s policies with respect to absentee ballots. However, he agrees with his colleagues that no new matters or special circumstances have been raised in the instant ‘‘technical’’ 8(a)(5) case warranting reexamination of the Board’s decision in the representation proceed- ing, and that the General Counsel’s Motion for Summary Judgment should therefore be granted. The Cedar Tree Press, Inc. and Graphics Commu- nications International Union, Local 14–M, AFL–CIO. Case 4–CA–25843 July 24, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on March 14, 1997, the General Counsel of the National Labor Relations Board issued a complaint on April 16, 1997, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s cer- tification in Case 4–RC–18973. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the com- plaint and asserting an affirmative defense. On June 27, 1997, the General Counsel filed a Mo- tion for Summary Judgment. On June 30, 1997, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On July 14, 1997, the Respond- ent filed a response and Cross-Motion for Summary Judgment. Ruling on Motion for Summary Judgment In its answer and in its response the Respondent ad- mits its refusal to bargain, but attacks the validity of the certification on the basis of its contention in the representation proceeding that the Regional Director abused his discretion by refusing to issue an absentee mail ballot to an eligible voter who was on vacation the day of the election. All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro- ceeding.1 We therefore find that the Respondent has not raised any representation issue that is properly lit- igable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the General Coun- sel’s Motion for Summary Judgment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware corporation, with a plant in Wilmington, Delaware, has been engaged in commercial printing. During the 12- month period preceding the issuance of the complaint, the Respondent in conducting its business operations described above, purchased and received at its Wil- mington, Delaware plant, goods, materials and supplies valued in excess of $50,000 directly from points out- side the State of Delaware. We find that the Respond- ent 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 meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held January 8, 1997, the Union was certified on February 7, 1997, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time press persons, feeder operators, output/MAC operators, strippers, plate makers, camera persons, scanners and proof- ers, warehouse, maintenance and bindery employ- ees and truckdrivers, employed at the Respond- ent’s Wilmington, Delaware, facility, excluding all other employees, guards and supervisors as de- fined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00026 Fmt 0610 Sfmt 0610 D:\NLRB\324.006 APPS10 PsN: APPS10 27CEDAR TREE PRESS 3 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. Refusal to Bargain Since about February 12, 1997, the Union has re- quested the Respondent to bargain, and, since the same date, the Respondent has refused. We find that this re- fusal constitutes an unlawful refusal to bargain in vio- lation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after February 12, 1997, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate unit, the Respondent has engaged 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 Act. 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, to bargain on request with the Union, and, if an understanding is reached, to embody the un- derstanding in a signed agreement. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe- riod of the certification as beginning the date the Re- spondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 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, The Cedar Tree Press, Inc., Wilmington, Delaware, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Graphic Communica- tions International Union, Local 14–M, AFL–CIO, as the exclusive bargaining representative of the employ- ees in the bargaining unit. (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 the employees in the following appropriate unit on terms and conditions of employ- ment, and if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time press persons, feeder operators, output/MAC operators, strippers, plate makers, camera persons, scanners and proof- ers, warehouse, maintenance and bindery employ- ees and truckdrivers, employed at the Respond- ent’s Wilmington, Delaware, facility, excluding all other employees, guards and supervisors as de- fined in the Act. (b) Within 14 days after service by the Region, post at its facility in Wilmington, Delaware, copies of the attached notice marked ‘‘Appendix.’’3 Copies of the notice, on forms provided by the Regional Director for Region 4 after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent 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 no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since March 14, 1997. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent 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. WE WILL NOT refuse to bargain with Graphic Com- munications International Union, Local 14–M, AFL– CIO, 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 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 of employment for our employees in the bargaining unit: VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00027 Fmt 0610 Sfmt 0610 D:\NLRB\324.006 APPS10 PsN: APPS10 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time press persons, feeder operators, output/MAC operators, strippers, plate makers, camera persons, scanners and proof- ers, warehouse, maintenance and bindery employ- ees and truckdrivers, employed at our Wilming- ton, Delaware, facility, excluding all other em- ployees, guards and supervisors as defined in the Act. THE CEDAR TREE PRESS, INC. VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00028 Fmt 0610 Sfmt 0610 D:\NLRB\324.006 APPS10 PsN: APPS10 Copy with citationCopy as parenthetical citation