Courtland Communications Corp.

National Labor Relations Board - Board Decisions

Feb 11, 1977

228 N.L.R.B. 212 (N.L.R.B. 1977)

212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern New York Publishers Co., Division of
Courtland Communications Corporation and Ser-
vice Employees International Union , Local 32E,
AFL-CIO. Case 3-CA-6735
February 11, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
Upon a charge filed on September 13, 1976, by
Service Employees International Union, Local 32E,
AFL-CIO, herein called the Union, and duly served
on Southern New York Publishers Co., Division of
Courtland Communications Corporation, herein
called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 3, issued a complaint and notice
of hearing on September 27, 1976, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(aX5) 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 an Adminis-
trative 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 July 19, 1976,
following a Board election in Case 3-RC-6564, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commenc-
ing on or about September 4, 1976, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
On October 14, 1976, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On November 1, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. On November 9, 1976, Respon-
dent filed a reply to the motion to transfer the
proceeding and for summary judgment moving the
Board to deny the General Counsel's motion and to
direct a hearing before an Administrative Law Judge
on the issues raised by Respondent's objections to
union conduct affecting the election because the
Regional Director's ex parse investigation of the
issues does not constitute "litigation" within the
meaning of the due process clause of the Constitu-
tion. Subsequently, on November 15, 1976, 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 thereafter did not file a
response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in the proceeding, the Board
makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and reply to the
General Counsel's motion, Respondent denies the
representative status and certification of the Union
established in the underlying representation case on
the grounds (1) that its objections, alleging improper
union conduct, warranted setting aside the election,
and (2) that, as a matter of due process, it is entitled
to an evidentiary hearing on the issues raised by its
objections. On the other hand, counsel for the
General Counsel contends that Respondent has
raised no litigable issues warranting an evidentiary
hearing. We agree with counsel for the General
Counsel.
Review of the record herein, including that in the
representation proceeding, Case 3-RC-6564, reveals
that in the election held on June 11, 1976, pursuant to
the Regional Director's Decision and Direction of
Election, there were seven votes cast for and three
against the Union, with two challenged ballots.
Thereafter, Respondent filed timely objections to the
election alleging, in substance, that the Union (1)
misrepresented vital, substantial, and substantive
issues to employees participating in the election; (2)
threatened employees to coerce them to vote for it;
and (3) promised financial benefits to employees who
joined the Union to induce them to support it. After
investigation, the Regional Director, on July 19, 1976,
issued his Supplemental Decision and Certification of
Representative overruling the objections in their
entirety because Respondent "did not produce, nor
did the investigation reveal any evidence that the
[Union] threatened employees, made promises of
benefit, or grossly misrepresented material facts."
Accordingly, as the challenged ballots were not
determinative of the election results, he certified the
Union. Respondent timely filed a request for review
r Official notice is taken of the record in the representation proceeding , 1%8); Golden Age Beverage Co., 167 NLRB 151 (1%7), enfd. 415 F.2d 26
Can 3-RC-6564, as the term "record" is defined in Secs. 102.68 and (C.A. 5, 1%9); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1%7),
102.69(g) of the Board's Rules and Regulations , Series 8, as amended . See Follett Corp, 164 NLRB 378 (1%7), enfd . 397 F.2d 91 (C.A. 7, 1968); Sec.
LTV Electrosystems, Inc., 166 NLRB 938 (1%7), enfd. 388 F.2d 683 (C.A. 4, 9(d) of the NLRA, as amended
228 NLRB No. 29
SOUTHERN NEW YORK PUBLISHERS CO. 213
seeking to have the election set aside on the basis of
its objections. On August 24, 1976, the Board denied
the request as raising no substantial issues warranting
review.
In the instant proceeding, Respondent also con-
tends that it is entitled to an evidentiary hearing on
the issues raised by its objections because the exparte
investigation of the Regional Director does not meet
the constitutional standards of due process. We find
no merit in this contention. By its denial of Respon-
dent's request for review of the Regional Director's
supplemental decision overruling the representation
case objections, the Board necessarily found that
there were no substantial and material issues warrant-
ing a hearing.2 It is well settled that a hearing on
objections is not required where, as here, there has
been no prima facie showing of substantial and
material issues and that, absent arbitrary action, this
qualified right to a hearing satisfies due process .3 It
thus appears that Respondent has not raised any
issues which require an evidentiary hearing.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging 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.4
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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 Respondent has not raised any issue which
is properly litigable in this unfair labor practice
proceeding.5 We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINos of FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, has main-
tained its office and place of business at Fairground
Road, Monticello, New York, and is, and has been at
all times material herein engaged at said plant and
2 Bettendorf Stanford Bakery Equipment Company, 225 NLRB 284 (1976),
and cases cited therein ; see also Heavenly Valley Ski Area, 215 NLRB 734
(1974).
3 Ibid.
A See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
s In its answer to the complaint Respondent denies the allegations of the
request and refusal to bargain . However , attached to the Motion for
location in the commercial printing, publication, sale,
and distribution of two weekly newspapers, a shop-
pers' guide, and related products. During the past
year, Respondent received gross revenues in excess of
$200,000, subscribed to and published nationally
syndicated features, and advertised nationally sold
products in its publications.
We find, on the basis of the foregoing, that
Respondent 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
Service Employees International Union , Local 32E,
AFL-CIO, 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 constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All printing production employees including type-
setters, input operators, proofreaders, camera
persons, paste-up persons, layout compositors and
pressmen employed by the Employer at its Monti-
cello, New York, facility, excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
2. The certification
On June 11, 1976, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 3 designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on July 19,1976, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
Summary Judgment is an exchange of correspondence between the Union
and Respondent's counsel in which the Union requests a bargaining
conference and Respondent's counsel refuses to meet because Respondent
does not believe that the Union's certification is valid . As the documents and
their contents stand uncontroverted , they are deemed to be true and we find
that they establish the request and refusal-to-bargain allegations of the
complaint.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about August 26, 1976, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about September 4, 1976, 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.
Accordingly, we find that Respondent has, since
September 4, 1976, 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(aX5) 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 operations
described in section I, above , have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to ead
to labor disputes burdening and obstructing com-
merce 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)(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
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Southern New York Publishers Co., Division of
Courtland Communications Corporation, is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Service Employees International Union, Local
32E, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All printing production employees including
typesetters, input operators, proofreaders, camera
persons, paste-up persons, layout compositors and
pressmen employed by the Employer at its Monticel-
lo, New York, facility, excluding all office clerical
employees, professional employees, guards and su-
pervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since July 19, 1976, 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 September 4, 1976, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent 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 the aforesaid refusal to bargain, Respondent
has interfered with, restrained, 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.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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
Relations Board hereby orders that Respondent
Southern New York Publishers Co., Division of
Courtland Communications Corporation, Monticel-
lo, New York, 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
SOUTHERN NEW YORK PUBLISHERS CO. 215
conditions of employment with Service Employees
International Union, Local 32E, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All lprinting production, employees including type-
setters, input operators, proofreaders, camera
persons, paste-up persons, layout compositors and
pressmen employed by the Employer at its Monti-
cello, New York, facility, excluding all 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 exercise 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Monticello, New York, facility copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 3, 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 thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 3, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 In the event that this Order is enforced by a Judgment of a United States
Court of Appeal, 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."
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 Service
Employees International Union, Local 32E,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below.
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, 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 bar-
gaining unit is:
All printing production employees including
typesetters, input operators, proofreaders,
camera persons, paste-up persons, layout
compositors and pressmen employed by the
Employer at its Monticello, New York,
facility, excluding all office clerical employ-
ees, professional employees, guards and
supervisors as defined in the Act.
SOUTHERN NEW YORK
PUBLISHERS CO.,
DIVISION OF COURTLAND
COMMUNICATIONS
CORPORATION