Cleveland Stereotypers' Union No. 22

National Labor Relations Board - Board Decisions

Sep 16, 1966

160 N.L.R.B. 1184 (N.L.R.B. 1966)

1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or all such activities , except to the extent that such rights may be affected by
a "union shop agreement" (as authorized by Section 8(a)(3) of the Act as
modified by the Labor -Management Reporting and Disclosure Act of 1959).
LANE DRUG Co , DIVISION OF A. C. ISRAEL
COMMODITY CORPORATION,
Employer.
Dated-- ----------------- By-------------------------------------------
(Representative ) ( Title)
LANE'S OF SYLVANIA, INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
LANE'S OF BOWLING GREEN, INC.,
Employer.
Dated------- ------------ By-------------------------------------------
(Representative ) ( Title)
LANE'S OF OREGON, INC.,
Employer.
Dated----- -------------- By-------------------------------------------
(Representative ) (Title)
NOTE-If the above employee is presently serving in the Armed Forces of the
United States we shall notify bun of his right to full reinstatement upon applica-
tion in accoidance with the Selective Service Act and the Universal Military Train-
ing and Service Act, as amended , after discharge from the Armed Forces
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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-
4465.
Cleveland Stereotypers' Union No. 22 , International Stereo-
typers' and Electrotypers ' Union of North America , AFL-CIO
and Cleveland Printing Pressmen and Assistants Union, Local
56, AFL-CIO and Western Press Incorporated . Case 8-CD-68.
September 16, 1966
DECISION AND ORDER
On June 13, 1966, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner 's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
160 NLRB No. 87.
CLEVELAND STEREOTYPERS' UNION NO. 2 2 1185
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner' s Recommended Order.]
TRIAL EXAMINER'S DECISION
The instant charge, alleging violations of Section 8(b)(4)(D), was served upon
Respondent on September 13, 1965, a hearing pursuant to Section 10(k) of the
Act was held on November 4 and 5, the Board issued a Decision and Determina-
tion of Dispute (discussed in more detail below), on February 2, 1966, the instant
complaint issued on March 9, 1966, and a hearing on the complaint was held on
May 3, 1966, before Trial Examiner Sidney Sherman. No testimony was adduced at
that hearing, Respondent's counsel limiting himself to oral argument. The General
Counsel and Pressmen moved for judgment on the pleadings, which motion is dis-
posed of in accordance with the findings below. After the hearing, briefs were filed
by the General Counsel, and the Employer.
Upon the entire record in the case,' I adopt the following findings and conclusions:
1. THE EMPLOYER'S BUSINESS
Western Press Incorporated, herein called the Employer, is a corporation under
Ohio law, and is engaged at its office and place of business in Cleveland, Ohio, in
commercial printing. The Employer annually ships directly to out-of-State points
materials valued in excess of $50,000. It is an employer engaged in commerce
under the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Cleveland Stereotypers ' Union No. 22, International Stereotypers ' and Electro-
typers' Union of North America, AFL-CIO, herein called Respondent , and Cleve-
land Printing Pressmen and Assistants ' Union, Local 56 , AFL-CIO, herein called
Pressmen , are labor organizations under the Act.
III. THE UNFAIR LABOR PRACTICES
This case involves a dispute between Respondent and Pressmen as to what cate-
gory of employees shall perform a phase in the preparation of offset plates, which
consists of (1) exposing a photographic negative to an arc lamp in a vacuum frame,
thereby transferring the image to a sheet of sensitized aluminum alloy, and (2)
developing the image by applying a chemical to the alloy.2
On September 13, 1965, the Employer filed the instant charge, alleging a viola-
tion of Section 8(b)(4)(D) of the Act, and, after a hearing held pursuant to Sec-
tion 10(k) of the Act, the Board on February 2, 1966, issued a Decision and Deter-
mination of Dispute,3 in which it found in effect that, in view of the evidence that
Respondent had threatened to strike the Employer to force him to assign the dis-
puted work to employees represented by Respondent, there was reasonable cause to
believe that a violation of Section 8(b)(4)(D) had occurred.
As to the merits of the dispute, after considering all relevant factors, including
applicable contract provisions, the Board found, that employees represented by
Pressmen were entitled to the disputed work.
'At the May 3 hearing, the parties stipulated to the inclusion in the instant record of
the entire record in the proceeding under Section 10(k).
2 The resulting plate is then installed in the offset press. Neither the preparation of
the photographic negative nor the installation of the plate in the press appears to be in_
dispute.
$156 NLRB 1219.
257-551-67-vol. 160-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 9, 1966, the Board issued the instant complaint, alleging, inter alia,
that Respondent had threatened the Employer with a strike to compel it to assign
the disputed work to its members rather than to members of Pressmen, and that
since on or about February 2, 1966, Respondent has refused, and continues to
refuse, to comply with the Board's Decision and Determination of Dispute.
Respondent's answer admits the foregoing allegations, and its only defense is that
the Board's award of the disputed work was "erroneous and contrary to law in that
the findings and conclusions therein were not based upon substantial evidence on
the record as a whole, but were instead unreasonable and grossly contrary to the
manifest weight of the evidence and . . . constituted an abuse of discretion on the
part of the" Board.
It seems by now well settled that an award of disputed woik made by the Board
under Section 10(k) of the Act is not open to review by a Trial Examiner in a
related proceeding upon a complaint alleging a violation of Section 8(b) (4) (D) of
the Act .4
Here, as in the case of an attack upon a Board certification, in a refusal-to-
bargain case, the Trial Examiner's position is analogous to that of a trial judge who
is asked by a litigant to set aside a ruling by an appellate court rendered in a prior
stage of the same proceeding, solely on the ground that the ruling is manifestly
wrong. There is ample authority that the trial court is bound by such ruling as
constituting "the law of the case." 5 While the Board, itself, has discretion to recon-
sider its own determination, and there is always recourse to the courts, it would
be an exercise in futility for the Trial Examiner to evaluate the various reasons
assigned by Respondent for vacating the Board's resolution of the instant work
assignment dispute. Even if he found merit in such reasons, the Trial Examiner
would be powerless, under the Board precedents cited above, to recommend dis-
missal of the complaint on that ground. At most, while rejecting Respondent's con-
tentions because of the foregoing precedents, the Trial Examiner might express his
views by way of dictum as to the merits of such contentions. However, I do not
agree with Respondent that there is anything in the Act or the Administrative Pro-
cedure Act that requires the Trial Examiner to deliver himself of such dictum.
Accordingly, based on the admissions in Respondent's answer, I find that Respond-
ent threatened to strike the Employer, with an object of forcing it to assign the dis-
puted work to employees represented by Respondent rather than to employees rep-
resented by Pressmen. I find further that Respondent thereby violated Section
8(b) (4) (ii) (D) of the Act .6
IV. THE REMEDY
It having been found that Respondent has violated Section 8(b) (4) (ii) (D) of
the Act, it will be recommended that Respondent be required to cease and desist
therefrom and to take affirmative action designed to remedy said violation.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth above, occurring in connection with the
operations of the Employer set forth in section I, above, have a close, intimate,
and substantial relation 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 commerce.
CONCLUSIONS OF LAW
1. By threatening, coercing, and restraining the Employer, with an object of forc-
ing or requiring it to assign certain work relating to offset platemaking to employ-
ees represented by Respondent rather than to employees represented by Pressmen,
Respondent has violated Section 8(b) (4) (ii) (D) of the Act.
'Local 1291, ILA (Philadelphia Marine Trade Assn ), 142 NLRB 257; International
Printing Pressmen and Assistants' Union, 150 NLRB 842; Local 3, IBEW, 144 NLRB
1318, footnote 1.
5 See 5B Corpus Juris Secundum Appeal and Error Sec. 1964; Trancoa Chemical Corpora-
tion, 133 NLRB 791, 798, enforcement denied on other grounds 303 P.2d 456 (C A 1).
As to the aptness of the analogy between a determination under Section 10(k) and a Board
certification in a representation case, see N L R B v Local 450, Operating Engineers, 275
F 2d 420 (C.A. 5). That such certifications are not reviewable by a Trial Examiner, absent
newly discovered evidence or arbitrary and capricious action of a Regional Director, is too
well settled to require citation of authority.
e International Printing Pressmen and Assistants ' Union, supra.
CLEVELAND STEREOTYPERS' UNION NO. 22 1187
2. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7).
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record
herein, and pursuant to Section 10(c) of the Act, I recommend that Respondent,
Cleveland Stereotypers' Union No. 22, International Stereotypers' and Electrotyp-
ers' Union of North America, AFL-CIO, its agents, officers, successors, and assigns,
shall be required to:
1. Cease and desist from threatening, coercing, or restraining Western Press
Incorporated, with an object of forcing or requiring it to assign work related to
offset platemaking to employees represented by Respondent rather than to employ-
ees represented by Cleveland Printing Pressmen and Assistants' Union, Local 56,
AFL-CIO.
2. Take the following affirmative action, which is necessary to effectuate the poli-
cies of the Act:
(a) Post at its business office in Cleveland, Ohio, copies of the attached notice
marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 8, after being duly signed by an authorized representative of
Respondent, shall be posted by it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to its members are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional Director for
Region 8 for posting by Western Press Incorporated, if it is willing, at all places
where notices to its employees are customarily posted.
(c) Notify said Regional Director, in writing, within 20 days from the date of
receipt of this Decision, what steps Respondent has taken to comply herewith.8
T In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Oider" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice . If the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an
Order" shall be substituted for the words "a Decision and Order."
8 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read • "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF CLEVELAND STEREOTYPERS' UNION No. 22, INTERNA-
TIONAL STEREOTYPERS' AND ELECTROTYPERS' UNION OF NORTH AMERICA, AFL-
CIO, AND TO ALL EMPLOYEES OF WESTERN PRESS INCORPORATED
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT threaten, coerce or restrain Western Press Incorporated, with
an object of forcing or requiring it to assign work related to offset platemaking
to employees represented by us rather than to employees represented by Cleve-
land Printing Pressmen and Assistants' Union, Local 56, AFL-CIO.
CLEVELAND STEREOTYPERS' UNION No. 22, INTER-
NATIONAL STEREOTYPERS' AND ELECTROTYPERS'
UNION OF NORTH AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 720 Bulk-
ley Building , 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465.