Commercial News, The

National Labor Relations Board - Board Decisions

Jun 2, 1981

256 N.L.R.B. 293 (N.L.R.B. 1981)

THE COMMERCIAL NEWS 293
Northwestern Publishing Company d/b/a The Com-
mercial News and Danville Printing and Graph-
ic Communications Union No. 257. Case 33-
CA-5294
June 2, 1981
DECISION AND ORDER
Upon a charge filed on February 20, 1981, by
Danville Printing and Graphic Communications
Union No. 257, herein called the Union, and duly
served on Northwestern Publishing Company
d/b/a The Commercial News, herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 33, issued a complaint on March 3,
1981, against Respondent, alleging that Respondent
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 and complaint and notice of
hearing before an administrative law judge were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December
15, 1980, following a Board election in Case 33-
RC-2671, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about February
16, 1981, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On March 9
and 17, 1981, Respondent filed its answer and
amended answer, respectively, to the complaint ad-
mitting in part, and denying in part, the allegations
in the complaint, and requesting that the complaint
be dismissed.
On March 23, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 31,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed an answer to the Motion for Sum-
mary Judgment.
I Official notice is taken of the record in the representation proceed-
ing, Case 33-RC-2671, as the term "record" is defined in Secs. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electrosysrems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
256 NLRB No. 48
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its amended answer to the complaint and in its
answer to the Motion for Summary Judgment, Re-
spondent admits the request and refusal to bargain,
but contests the validity of the Board's certification
in the underlying representation proceeding. Re-
spondent contends that the Board did not properly
consider the supervisory status of the employees in
the unit, and that the Board's unit determination is
legally invalid.Review of the record, including the
record in Case 33-RC-2671, shows that on No-
vember 7, 1980, after a hearing in which Respond-
ent participated, the Acting Regional Director
issued a Decision and Direction of Election in
which he found appropriate the Union's requested
unit of Respondent's motor route drivers, bundle
haulers, and truckdrivers. Thereafter, Respondent
filed a request for review of this decision, alleging
that the unit found appropriate was comprised of
supervisors. On December 4, 1980, approximately 1
hour before the polls opened, the Board telephoni-
cally notified the Regional Office that the request
for review was denied. The Board agent conduct-
ing the election thereupon notified Respondent of
this fact prior to the opening of the polls. By tele-
gram dated December 5, 1980, the Board con-
firmed its denial of Respondent's request for
review.
The Union won the election and Respondent
filed objections, alleging in relevant part that the
election was conducted in violation of the Board's
rules because the request for review was still pend-
ing and the ballots were not impounded. On De-
cember 15, 1980, the Acting Regional Director
issued a Supplemental Decision, in which he over-
ruled Respondent's objections and certified the
Union. No request for review was filed to this de-
cision.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
2 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sees 102.67(f) and 102.69(c).
THE COMMERCIAL NEWS 93
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Illinois corporation with an
office and place of business in Danville, Illinois, is
engaged in the business of publishing, printing, and
distributing a newspaper known as The Commer-
cial News. During a representative 12-month
period, Respondent's gross volume of business was
in excess of $200,000 and it held membership in or
subscribed to interstate news services, published na-
tionally syndicated features, and advertised nation-
ally sold products. During this same period, Re-
spondent purchased goods valued in excess of
$50,000 directly from points located outside the
State of Illinois.
We find, on the basis of the foregoing, that Re-
spondent 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 effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Danville Printing and Graphic Communications
Union No. 257 is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All motor route drivers, bundle haulers, and
truck drivers engaged in transporting and
home delivery of daily newspaper published
and distributed by the Employer at its Dan-
ville, Illinois, facility; but excluding office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
2. The certification
On December 4, 1980, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 33, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on December 15, 1980, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about February 13, 1981, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about February 16, 1981, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
February 16, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that 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
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 appropriate unit and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
THE COMMERCIAL NEWS 295
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Northwestern Publishing Company d/b/a The
Commercial News is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Danville Printing and Graphic Communica-
tions Union No. 257 is a labor organization within
the meaning of Section 2(5) of the Act.
3. All motor route drivers, bundle haulers, and
truck drivers engaged in transporting and home de-
livery of daily newspapers published and distribut-
ed by the Employer at its Danville, Illinois, facili-
ty; but excluding office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since December 15, 1980, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about February 16, 1981,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Northwestern Publishing Company d/b/a The
Commercial News, Danville, Illinois, 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
conditions of employment with Danville Printing
and Graphic Communications Union No. 257 as
the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All motor route drivers, bundle haulers, and
truck drivers engaged in transporting and
home delivery of daily newspapers published
and distributed by the Employer at its Dan-
ville, Illinois, facility; but excluding office
clerical employees, professional employees,
guards and supervisors 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 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Danville, Illinois, facility copies of
the attached notice marked "Appendix."3 Copies
of said notice, on forms provided by the Regional
Director for Region 33, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 33,
in writing, within 20 days from the date of this
I In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
THE COMMERCIAL NEWS
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order, what steps have been taken to comply here-
with.
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 Danville Printing and Graphic Communi-
cations Union No. 257 as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All motor route drivers, bundle haulers, and
truck drivers engaged in transporting and
home delivery of daily newspapers pub-
lished and distributed by the Employer at its
Danville, Illinois, facility; but excluding
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
NORTHWESTERN PUBLISHING COM-
PANY D/B/A THE COMMERCIAL
NEWS