Commercial Letter, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1971

188 N.L.R.B. 827 (N.L.R.B. 1971)

COMMERCIAL LETTER, INC.
Commercial Letter , Inc., and Lithographers and
Photoengravers International Union, Local 252,
AFL-CIO. Case 14-CA-5952
March 4, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
BROWN
Upon a charge filed on November 20, 1970, by
Lithographers and Photoengravers International Un-
ion, Local 252, AFL-CIO, herein called the Union,
and duly served on Commercial Letter, Inc., herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 14, issued a complaint on December
30, 1970, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair labor
practices affecting commerce 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 or about Sep-
tember 3, 1970, following a Board election in Case
14-RC-6453, the Union was duly certified as the
exclusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate;' and that, commencing on or about September 4,
1970, and at all times thereafter, Respondent has re-
fused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so; that since on or about
September 4, 1970, Respondent has refused and is
refusing to furnish the Union with data and informa-
tion relating to rates of pay, wages , hours, and other
terms and conditions of employment of bargaining
unit employees; that in late October 1970, Respon-
dent unilaterally altered the lunchtime of certain bar-
gaining unit employees; that in early November 1970,
Respondent bargained directly and individually with
unit employees and told them it was granting wage
increases ; that on or about November 18, 1970, Re-
spondent unilaterally instituted and granted a profit-
1 Official notice is taken of the record in the representation peoceedmg,
Case 14-RC-6453 as the term "record" is defined in Secs 102 .68 and 102.
69(f) of the Board 's Rules and Regulations, Series 8, as amended . See LTV
Electrosystenu, Inc., 166 NLRB 938, enfd . 388 F.2d 683 (C.A. 4, 1%8);
Golden Age Beverage Co., 167 NLRB 151, Intertype Co., v. Penello, 269
F.Supp 573 (D.C. Va., 1%7); Follett Corp., 164 NLRB 378, enfd 397 F.2d
91 (C.A. 7, 1%8); Sec 9(d) of the NLRA.
827
sharing retirement plan for bargaining unit employ-
ees; that on or about November 22, 1970, Respondent
granted unilateral wage increases to unit employees;
and that on or about December 4, 1970, Respondent
by letter announced that it was bargaining directly
and individually with bargaining unit employees. The
complaint alleges that Respondent, by the foregoing
conduct, has violated Section 8(axl) and (5) of the
Act. On January 6, 1971, Respondent filed its answer
to the complaint admitting in part , and denying in
part, the allegations in the complaint , and requesting
that the complaint be dismissed in its entirety. In
particular, Respondent admits the allegations in the
complaint concerning its refusal to recognize and bar-
gain with the Union, the refusal to furnish informa-
tion, the unilateral conduct , and the individual bar-
gaining . Although Respondent also admits that the
Union obtained a majority of the votes at the Board-
conducted election on August 5, 1970, and was there-
after certified on September 3, 1970, it denies the
validity of the certification and conclusionary allega-
tions that it has violated Section 8 (a)(1) and (5) of the
Act. By way of affirmative defense, Respondent
avers, in substance, that it has been deprived of due
process by the denial of a hearing on its objections to
the election, and that the Regional Director improper-
ly overruled, and the Board thereafter denied review
of, the objections to the election.
On January 19, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and a memorandum in support
thereof, asserting that, in view of the admissions con-
tained in Respondent 's answer, there are no issues of
fact or law warranting a hearing in this proceeding,
and therefore requests the Board to grant the Motion
for Summary Judgment. Subsequently, on January
26, 1971, 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 there-
after filed a cross Motion for Summary Judgment,
memorandum in support thereof, and a Return to
Order to Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
As reflected above, Respondent admits all the fac-
tual allegations of the complaint, and in its cross Mot-
ion for Summary Judgment concedes that there are no
material issues of fact which warrant a hearing in this
188 NLRB No. 132
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeding . In said motion , however, Respondent
contends that it is not obligated to bargain with the
Union because of the invalidity of the prior certifica-
tion and asserts that it, rather than the General Coun-
sel, is entitled to judgment as a matter of law. In its
memorandum in support of the Motion and Return to
Order To Show Cause, Respondent renews the two
basic contentions advanced in its answer that (1) the
Board violated due process by overruling its objec-
tions to the election without benefit of a hearing, and
(2) the Regional Director improperly overruled, and
the Board thereafter denied review of, Respondent's
objections to the election . More particularly , Respon-
dent avers that the overruling of its objections to the
election was not based upon the Regional Director's
ruling that the allegations raised , even if true, would
not be objectionable, but rather was based upon "evi-
dence" adduced through administrative investigation,
rather than in an open hearing, which consisted of
statements obtained from witnesses who were not
available for cross-examination . Respondent further
asserts that the factual determinations made by the
Regional Director as a result of the investigation do
not support the legal conclusions drawn therefrom.
It is well settled, however, that parties do not have
an absolute right to a hearing on objections to an
election . It is only when the moving party presents a
prima facie showing of "substantial and material
factual issues" which would warrant setting aside the
election that he is entitled to an evidentiary
hearing .2 In its Request for Review of the Regional
Director's Supplemental Decision and Certification
of Representative in the underlying representation
proceeding , Respondent advanced three basic con-
tentions : ( 1) that there was a lack of officially report-
ed Board precedent on the issues raised by the
objections ; (2) that the Regional Director's factual
determinations were made without benefit of testimo-
ny in an open hearing, but rather were based on state-
ments obtained from witnesses which were not
available to Respondent and where the witnesses were
not subject to cross-examination ; and (3) that the in-
ferences and conclusions drawn by the Regional Di-
rector were not supported by the facts found.
Notably, Respondent did not contend , nor indeed
does it now contend , that it was in any way foreclosed
from presenting evidence in support of its objections
during the administrative investigation , that the Re-
gional Director's findings of fact , as opposed to the
z See, e.g., N LR B. v. DIT-MCO Incorporatet4 428 F .2d 775 (CA ' 8,
1970), National Cash Register Co v. N . L.R.B., 415 F .2d 1012 (C.A. 5), Liberty
Coach Company, Inc. v . N LR B.,418 F.2d 1191 (C.A.D.C.); Polymers, Inc
v. N.L.R.B., 414 F .2d 999 (C.A. 2), cet denied 396 U.S. 1010 ; Intertype
Company v . N.L.R.B., 401 F.2d 41 (C.A. 4), cert . denied 393 U.S. 1049 ; Plastic
Fabricating Co., Inc., 179 NLRB No. 86 , and cases cited therein at fn. 1;
Golden Age Beverage Company, supra.
inferences or legal conclusions drawn from those
facts, were erroneous , or that it now has newly discov-
ered or previously unavailable evidence which would
materially affect the determination made in the repre-
sentation proceeding . In view of these circumstances
and inasmuch as Respondent previously has not ad-
vanced and does not herein advance substantial and
material factual issues which would have warranted a
hearing on its objections to the election, we find
Respondent's first contention to be without merit.
As to Respondent's second contention , it is equally
well settled that in the absence of newly discovered or
previously unavailable evidence or special circum-
stances a respondent in a proceeding alleging a viola-
tion of Section 8(a)(5) is not entitled to relitigate issues
which were or could have been litigated in a prior
representation proceeding.'
All issues raised by the Respondent in this proceed-
ing 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 . We therefore
find that the Respondent has not raised any issue
which is properly litigable in this unfair labor practice
proceeding . We shall, accordingly , grant General
Counsel's Motion for Summary Judgment, and deny
Respondent's cross-motion.
On the basis of the entire record , the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Missouri corporation with its princi-
pal office and place of business located at St . Louis,
Missouri, has at all material times herein been en-
gaged in the creation and production of direct mail
advertising material. During the past calendar year, a
representative period , Respondent purchased and re-
ceived goods and materials valued in excess of $50,
000 at its St. Louis, Missouri , facility from firms locat-
ed in the State of Missouri , which firms in turn
purchased and received those same goods and mate-
rials from directly outside the State of Missouri.
We find, on the basis of the foregoing , that Respon-
dent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
7 See Pittsburgh Plate Glass Co. v. N L.R.B , 313 U.S. 146, 162 (1941); Rules
and Regulations of the Board, Secs 102.67 (f) and 102.69(c)
COMMERCIAL LETTER, INC. 829
II. THE LABOR ORGANIZATION INVOLVED
Lithographers and Photoengravers International
Union, Local 252, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All lithographic production employees em-
ployed by the Employer at its St. Louis, Missouri,
facility, including pressmen, cameramen, strip-
pers and opaquers, excluding office clerical and
professional employees, guards and supervisors
as defined in the Act, and all other employees.
employees in said unit.
Accordingly, we find that the Respondent has,
since September 4, 1970, 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,
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 further find that by refusing
to furnish the Union with requested data and
information pertaining to rates of pay, wages, hours,
and other terms and conditions of employment of unit
employees; by bargaining directly and individually
with unit employees; by unilaterally announcing and
thereafter granting wage increases to unit employees;
by unilaterally altering the lunchtimes of unit
employees; and by , unilaterally instituting and
granting a profit-sharing retirement plan for unit
employees, Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) and (5) of the Act.
2. The certification
On August 5, 1970, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 14 designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. Thereafter, on August 6, 1970,
Respondent filed timely Objections to Election. On
September 3, 1970, the Regional Director issued a
Supplemental Decision and Certification of Repre-
sentative, finding that the objections did not raise
substantial and material issues with respect to the
conduct of the election. The Respondent thereafter
filed a Request for Review, which was denied by the
Board on October 26, 1970. The Union was certified
as the collective-bargaining representative of the em-
ployees in said unit on September 3, 1970, 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 and Other Unfair Labor Practices
Commencing on or about September 4, 1970, 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.
Commencing on or about September 4, 1970, 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
representative for collective bargaining of all
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 operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (5) 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 appro-
priate unit, and, if an understanding is reached, em-
body such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, inc., 136 NLRB 785; Com-
merce 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
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record, makes the following: ORDER
CONCLUSIONS OF LAW
1. Commercial Letter, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Lithographers and Photoengravers International
Union, Local 252, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All lithographic production employees employed
by the Employer at its St. Louis, Missouri , facility,
including pressmen, cameramen, strippers and opa-
quers, excluding office clerical and professional em-
ployees , guards and supervisors as defined in the Act,
and all other employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since September 3, 1970, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about September 4, 1970, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent 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 refusing to furnish the Union with requested
data and information pertaining to rates of pay, wag-
es, hours, and other terms and conditions of employ-
ment ; by bargaining directly and individually with
unit employees; by unilaterally announcing and
thereafter granting wage increases to unit employees;
by unilaterally altering the lunchtimes of unit employ-
ees; and by unilaterally instituting and granting a
profit-sharing retirement plan for unit employees,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
of the Act.
7. By the aforesaid refusal to bargain, refusal to
furnish information , individual bargaining , and uni-
lateral action , Respondent has interfered with, re-
strained, and coerced , and is interfering with,
restraining, and coercing, employees 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.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Commer-
cial Letter, 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 condi-
tions of employment, with Lithographers and Pho-
toengravers International Union, Local 252,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All lithographic production employees em-
ployed by the Employer at its St. Louis, Missouri,
facility, including pressmen, cameramen, strip-
pers and opaquers, excluding office clerical and
professional employees, guards and supervisors
as defined in the Act, and all other employees.
(b) Refusing to furnish the above-named labor or-
ganization with data and information pertaining to
rates of pay, wages, hours, and other terms and condi-
tions of employment of the employees in the aforesaid
bargaining unit.
(c) Bargaining directly and individually with em-
ployees in the aforesaid bargaining unit.
(d) Announcing and granting wage increases, al-
tering lunchtimes, instituting and granting a profit-
sharing retirement plan, or in any like or related man-
ner effectuating changes in wages, hours, and other
terms and conditions of employment of the employees
in the aforesaid bargaining unit without previously
having negotiated such changes with the above-
named labor organization.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the rights guar-
anteed 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Furnish the above-named labor organization
with the requested data and information pertaining to
rates of pay, wages, hours, and other terms and condi-
tions of employment of the employees in the aforesaid
bargaining unit.
(c) Post at Respondent's St. Louis, Missouri, facility
copies of the attached notice marked "Appendix."4
meaning of Section 2(6) and (7) of the Act . 4 In the event that this Order is enforced by a Judgment of a United States
COMMERCIAL LETTER, INC.
Copies of said notice, on forms provided by the Re-
gional Director for Region 14, 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 thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
Court of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
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
Lithographers and Photoengravers International
Union, Local 252, AFL-CIO , as the exclusive
representative of the employees in the bargaining
unit described below.
WE WILL NOT refuse to furnish the
above-named Union with data and information
pertaining to rates of pay, wages, hours, and
other terms and conditions of employment of the
employees in the bargaining unit described
below.
WE WILL NOT bargain directly and individually
with employees in the bargaining unit described
below.
WE WILL NOT announce and grant wage
increases , alter lunchtimes , institute and grant a
profit-sharing retirement plan, or in any like or
related manner effectuate changes in wages,
hours , and other terms and conditions of
831
employment of the employees in the bargaining
unit described below unless we first negotiate
with the above-named Union with respect to
such changes.
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 furnish the above-named Union with
the data and information it requested pertaining
to rates of pay, wages , hours, and other terms and
conditions of employment of the employees in
the bargaining unit described below.
WE WILL, upon request , bargain with the
above-named Union , as the exclusive
representative 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
agreement . The bargaining unit is:
All lithographic production employees
employed by the Employer at its St . Louis,
Missouri, facility, including pressmen,
chairmen, strippers and opaquers, excluding
office clerical and professional employees,
guards and supervisors as defined in the Act,
and all other employees.
COMMERCIAL LETTER, INC.
(Employer)
Dated By
(Representative) (Title)
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
compliance with its provisions may be directed to the
Board's Office , 210 North 12th Boulevard , Room 448,
St. Louis , Missouri 63101, Telephone 341-622-4167.