Confort and Company, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1983

267 N.L.R.B. 409 (N.L.R.B. 1983)

CONFORT AND COMPANY, INC.
Confort and Company, Inc. and Local One, Amalga-
mated Lithographers of America, affiliated with
International Typographical Union, AFL-CIO.
Case 29-CA-10116
25 August 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
Upon a charge filed on 13 December 1982 by
Local One, Amalgamated Lithographers of Amer-
ica, affiliated with International Typographical
Union, AFL-CIO, herein called the Union, and
duly served upon Confort and Company, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 29, issued a complaint
on 17 January 1983, 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 pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on 30 Septem-
ber 1982 following a Board election in Case 29-
RC-5530,1 the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;
and that, commencing on or about 26 October
1982, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so, and com-
mencing on or about 26 October 1982, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain with the Union
by refusing to provide information requested by
the Union. Thereafter, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On 21 March 1983 counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment with exhibits attached. Subse-
quently, on 25 March 1983 the Board issued an
Official notice is taken of the record in the representation proceed-
ing, Case 29-RC-5530, 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 Electrosystems, 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.
267 NLRB No. 47
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. Respondent thereafter filed a statement in
opposition to the Motion for Summary Judgment
on 22 April 1983.
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 au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and its opposition
to the Motion for Summary Judgment, Respondent
denies the allegations of paragraphs 10 and 11 of
the complaint that it was requested, and that it sub-
sequently refused, to bargain with the Union.2 It
also challenges the Union's certification, reiterating
its contentions in the underlying representation
proceeding that the Regional Director conducted
the election in an inappropriate unit and improper-
ly overruled its Objection 1.
Review of the record herein, including the
record in Case 29-RC-5530, reveals that on 4 Sep-
tember 1981 the Union filed a representation peti-
tion under Section 9 of the National Labor Rela-
tions Act, as amended. On 15 January 1982, after a
hearing, the Regional Director issued his Decision
and Direction of Election in which he found that,
under the criteria set forth in Mallinckrodt Chemi-
cal Works, Uranium Division, 162 NLRB 387
(1966), a unit comprised of all of Respondent's lith-
ographic production employees, including all offset
press employees, web press employees, letterpress
employees, multilith employees, and platemaking
and stripping employees, could be severed from the
existing production and maintenance unit, if these
employees so desired. Accordingly, he scheduled
an election in the lithographic unit for 11 February
2 In this regard, the General Counsel has submitted copies of letters
dated 14 October and 2 December 1982 in which the Union referred to
"our forthcoming collective-bargaining negotiations." requested certain
information to help it prepare for the bargaining, and expressed a desire
for a long and harmonious relationship. In addition, the 2 December
letter requested that Respondent advise the Union of convenient bargain-
ing dates. Respondent does not dispute the validity of the letters or that it
received them. It contends merely that the letters do not request it to
bargain. We find that by its letters of 14 October and 2 December 1982,
the Union did request bargaining with Respondent. Further, Respondent
has not at any material time herein expressed a willingness to bargain
with the Union. Finally, it is clear from Respondent's opposition to the
Motion for Summary Judgment that it contends that it is under no legal
obligation to bargain with the Union on the ground that the certification
of the Union is invalid. Accordingly, we find that Respondent's denials of
the complaint allegations that the Union requested bargaining and that
Respondent refused to bargain raise no substantial or material issue of
fact warranting a hearing.
409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1982. Respondent and the Intervenor 3 filed with
the Board timely requests for review of the Re-
gional Director's decision in which they contended
that the Mallinckrodt criteria did not permit sever-
ance of the lithographic employees and that only
an all-inclusive production and maintenance unit
was appropriate. They also requested a stay of the
election. On 11 February 1982 the Board granted
Respondent's and the Intervenor's requests for
review but declined to stay the election. 4 The elec-
tion was conducted as scheduled on 11 February
1982 and the ballots were impounded, pending the
Board's decision on the Employer's and the Inter-
venor's requests for review.
On 18 August 1982 the Board issued a Decision
on Review and Direction 5 in which it found, rely-
ing on Allen, Lane & Scott, 137 NLRB 223, 226
(1962), that the lithographic production unit sought
by the Union could, if the unit employees so de-
sired, constitute a separate appropriate unit. The
Board, therefore, directed that the impounded bal-
lots be opened and counted and a tally of ballots
prepared and served upon the parties. On 27
August 1982 the impounded ballots were opened
and counted and the tally was 25 votes for the
Union, 20 for the Intervenor, with 3 challenged
ballots, a number insufficient to affect the results of
the election. Thereafter, Respondent filed timely
objections to the election, alleging, inter alia, that
the Union, through its agents and representatives,
threatened employees with reprisals if they voted
in the election or did not support or vote for the
Union (Objection 1).
On 30 September 1982 the Regional Director
issued a Supplemental Decision and Certification of
Representative in which he overruled the Employ-
er's objections in their entirety and certified the
Union as the bargaining representative of the em-
ployees in the lithographic unit. Thereafter, Re-
spondent filed a request for review of the Regional
Director's Supplemental Decision and Certification
of Representative. The request for review was
denied by the Board on 24 November 1982.6 It
thus appears that Respondent is attempting in this
proceeding to relitigate issues fully litigated and fi-
nally determined in the representation proceeding.
It is well settled that in the absence of newly dis-
3 The Confort Employees Association had intervened on the basis of a
contractual interest.
4 The Petitioner filed a request for review of the Regional Director's
refusal to accept evidence pertaining to alleged unlawful assistance by the
Employer to the Intervenor during their bargaining history. The Board,
Member Zimmerman dissenting, denied Petitioner's request for review on
11 February 1982.
a Not reported in volumes of Board Decisions.
6 Member Hunter dissented on the telegraphic order denying Respond-
ent's request for review, indicating that he would have granted review
with respect to Objection 1.
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.7
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding. Respondent, however,
proffers what it claims to be "newly discovered"
evidence which assertedly bolsters its earlier con-
tention in support of its Objection 1 that employee
lanuzzi was an agent of the Union. It also contends
that the Board's reliance, in its 18 August 1982
denial of Respondent's request for review, upon a
different case than that relied upon by the Regional
Director, constitutes a "special circumstance"
which requires the Board to reexamine its decision
in the representation proceeding. In this regard,
Respondent asserts that the instant case is distin-
guishable from Allen, Lane & Scott, supra, because
here the letterpress operator is included in the lith-
ographic unit while in Allen, Lane & Scott, the let-
terpressmen were excluded. In addition, Respond-
ent contends that it should have an opportunity to
present evidence with respect to the "state of the
art" of lithography, an issue discussed in Allen,
Lane & Scott but not raised in Mallinckrodt Chemi-
cal Works, supra.
We find no merit in Respondent's contentions.
The evidence proffered by Respondent with regard
to the union agent status of employee lanuzzi
merely adds more detail to what was already
known about Ianuzzi's relationship with the Union.
Thus, at the time of our underlying decision, the
record indicated that Ianuzzi was a member of the
Union's in-house organizing committee. Respond-
ent now proffers admissions by lanuzzi at a subse-
quent unfair labor practice hearing that employees
were told that if they had questions regarding the
Union they should come to Ianuzzi. Thus, the prof-
fered evidence adds nothing of material substance
to the facts already contained in the record of the
representation proceeding. Further, we reject Re-
spondent's contention that the presence of a letter-
pressman in the instant unit or that evidence con-
cerning the "state of the art" in lithography would
affect our determination that the unit is appropriate
under Allen Lane & Scott. We, therefore, find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceed-
ing.
In its answer to the complaint and statement in
opposition to the Motion for Summary Judgment,
I See Pittsburgh Plate Glass Ca v. NLRB, 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
410
CONFORT AND COMPANY, INC.
Respondent denies that the Union requested infor-
mation relevant and necessary for the purpose of
collective bargaining and, therefore, that it has not
refused to furnish such information. As noted
above, however, the Union sent Respondent letters,
dated 14 October and 2 December 1982, in which
it requested a list of unit employees, wage rates,
benefits, and related information. 8 Based on these
letters, we find that the Union did request that Re-
spondent furnish it with information relevant and
necessary for the purpose of collective bargaining
and that Respondent has refused to provide such
information. It is well established that such infor-
mation is presumptively relevant for purposes of
collective bargaining and must be furnished upon
request.9 Furthermore, Respondent has not at-
tempted to rebut the relevance of the requested in-
formation. Accordingly, we find no material issues
of fact exist with regard to Respondent's refusal to
furnish information sought by the Union in its let-
ters of 14 October and 2 December 1982. There-
fore, we grant the motion for summary judgment
in all respects.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Confort and Company, Inc., has maintained its
principal office and place of business at 47-47 Aus-
tell Place, Long Island City, New York, at all
times material herein and is engaged in the printing
of commercial items such as booklets, manuals,
forms, and related products. During the past year,
which period is representative of its annual oper-
ations generally, Respondent, in the course and
conduct of its operations, sold and shipped from its
Long Island City, New York, facility, books,
manuals, forms, and other products, goods, and ma-
terials valued in excess of $50,000, directly to
points outside the State of New York.
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.
8 More specifically, the Union requested the name, classification, and
wage rate of each employee; the wage rates applicable to each classifica-
tion; the name of each employee who had received a merit or incentive
increase within the last year, the amount of such increase, and the stand-
ards utilized in the determination of such increases; the hours of the regu-
lar workday and the regular workweek; overtime rates; a description of
any fringe benefits to which any employee within the collective-bargain-
ing unit is entitled including pension, welfare, or related benefits, holiday
and vacation benefits, and sick benefits.
9 Verona Dyestuff Division Mobay Chemical Corp., 233 NLRB 109, 110
(1977).
II1. THE LABOR ORGANIZATION INVOLVED
Local One, Amalgamated Lithographers of
America, affiliated with International Typographi-
cal Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
Ill. 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 offset press employees, web press employ-
ees, letterpress employees, multilith employees,
and platemaking and stripping employees of
Respondent, employed at its Long Island City,
New York, plant, exclusive of all other em-
ployees, office clerical employees, professional
employees, guards, and all supervisors as de-
fined in Section 2(11) of the Act.
2. The certification
On 11 February 1982 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 29, 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 30 September 1982, 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 14 October and 2 De-
cember 1982, the Union requested Respondent to
bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees
in the above-described unit. Commencing on or
about 26 October 1982,1 ° and continuing at all
times thereafter to date, Respondent has refused,
and continues to refuse, to recognize and bargain
with the Union as the exclusive representative for
collective bargaining of all employees in said unit.
o1 Although the Union's first letter was dated 14 October 1982, the
complaint alleges that Respondent commenced its refusals to bargain on
or about 26 October 1982. As there is no evidence that Respondent en-
gaged in unlawful acts prior to 26 October. we have dated the com-
mencement of Respondent's refusal to bargain in accordance with the
date alleged in the complaint.
411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that Respondent has, since
on or about 26 October 1982, and at all times
thereafter, refused to bargain collectively with all
employees in said unit and that, by such refusal,
Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
C. The Request for Information and
Respondent's Refusal to Furnish it
On or about 14 October and 2 December 1982
the Union requested Respondent to provide it with
a list of the unit employees, wage rates, benefits,
and related information. Commencing on or about
26 October 1982, Respondent has refused, and con-
tinues to refuse, to provide the Union with the re-
quested information.
Accordingly, we find that Respondent has, since
on or about 26 October 1982, and at all times
thereafter, refused to furnish the Union with infor-
mation relating to the employment conditions and
wages 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.
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. We also shall order that Respondent,
upon request, furnish the Union with the informa-
tion it previously requested.
In order to ensure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
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 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; Burnett Construction Co., 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. Confort and Company, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local One, Amalgamated Lithographers of
America, affiliated with International Typographi-
cal Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All offset press employees, web press employ-
ees, letterpress employees, multilith employees, and
platemaking and stripping employees of Respond-
ent, employed at its Long Island City, New York,
plant, exclusive of all other employees, office cleri-
cal employees, professional employees, guards, and
all supervisors as defined in Section 2(11) of the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since 30 September 1982, the above-named
labor organization has been, and now is, the certi-
fied and exclusive representative of all employees
in the aforesaid appropriate unit for the purpose of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about 26 October 1982 and
on or about 2 December 1982, and at all times
thereafter, to bargain collectively with the above-
named labor organization as the exclusive bargain-
ing representative of all the employees of Respond-
ent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By refusing on or about 26 October 1982 and
on or about 2 December 1982, and all times there-
after, to furnish the Union with a list of the unit
employees, wage rates, benefits, and related infor-
mation as requested by the Union in its letters of 14
October and 2 December 1982, Respondent has en-
gaged 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, 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)(l) of the Act.
412
CONFORT AND COMPANY, INC.
8. 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,
Confort and Company, Inc., Long Island City,
New York, its officers, agents, successors, and as-
signs, 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 Local One, Amal-
gamated Lithographers of America, affiliated with
International Typographical Union, AFL-CIO, as
the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All offset press employees, web press employ-
ees, letterpress employees, multilith employees,
and platemaking and stripping employees of
Respondent, employed at its Long Island City,
New York, plant, exclusive of all other em-
ployees, office clerical employees, professional
employees, guards, and all supervisors as de-
fined in Section 2(11) of the Act.
(b) Refusing to bargain collectively with the
above-named labor organization by refusing to fur-
nish said labor organization with the information
requested by it in the Union's letters of 14 October
and 2 December 1982, including a list of the unit
employees, wage rates, benefits, and related infor-
mation.
(c) 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) Upon request, furnish the above-named labor
organization with the information requested in its
letters of 14 October and 2 December 1982, includ-
ing a list of the unit employees, wage rates, bene-
fits, and related information.
(c) Post at its Long Island City, New York, of-
fices copies of the attached notice marked "Appen-
dix." t ' Copies of said notice, on forms provided by
the Regional Director for Region 29, 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 Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
MEMBER HUNTER, dissenting:
As noted above, in the underlying representation
case I would have granted Respondent's request
for review of the Regional Director's Supplemental
Decision and Certification of Representative with
respect to the Regional Director's overruling there-
in of Respondent's Objection 1. Accordingly, I find
that the Union was certified improperly and there-
fore I dissent from my colleagues' finding that Re-
spondent violated Section 8(a)(5) and (1) of the Act
by refusing to bargain with the Union.
" 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."
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 Local One, Amalgamated Lithographers
of America, affiliated with International Typo-
graphical Union, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL NOT refuse to bargain collectively
with the above-named labor organization by
refusing to furnish it with the information it
requested in its letters of 14 October and 2 De-
cember 1982, including a list of unit employ-
ees, wage rates, benefits, and related informa-
tion.
WE WILL. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
413
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 offset press employees, web press em-
ployees, letterpress employees, multilith em-
ployees, and platemaking and stripping em-
ployees of Respondent, employed at its
Long Island City, New York, plant, exclu-
sive of all other employees, office clerical
employees, professional employees, guards,
and all supervisors as defined in Section
2(11) of the Act.
WE WILL, upon request, furnish the above-
named labor organization with the information
requested by it in its letters of 14 October and
2 December 1982, including a list of unit em-
ployees, wage rates, benefits, and related infor-
mation.
CONFORT AND COMPANY, INC.
414