Dardanell Enterprises, Inc.

National Labor Relations Board - Board Decisions

Jul 2, 1980

250 N.L.R.B. 377 (N.L.R.B. 1980)

DARDANFLL ENTERPRISES. INC
Dardanell Enterprises, Inc. and Graphic Arts Inter-
national Union, Local No. 24-L, AFL-CIO.
Cases 6-CA-13017 and 6-CA-13074
July 2, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed in Case 6-CA-13017 on De-
cember 28, 1979, and a charge filed in Case 6-CA-
13074 on January 24, 1980, by Graphic Arts Inter-
national Union, Local No. 24-L, AFL-CIO, herein
called the Union, and duly served on Dardanell
Enterprises, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 6,
issued an Order Consolidating Cases, Consolidated
Complaint and Notice of Hearing on February 25,
1980, 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, 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 March 21,
1979, following a Board election in Case 6-RC-
8263, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about June 28, 1979, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On February 28, 1980, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part,2 the allegations in
' Official notice is taken of the record in the representation proceed-
ing, Case 6-RC-8263, 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. 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): FolleNt Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968): Sec. 9(d) of the NLRA, as amended.
2 Respondent's answer denies the request to bargain and Respondent's
refusal to do so However, because a request and refusal to bargain may
be established by exhibits attached to a motion for summary judgment
even though the respondent denies the request and refusal in its answer,
Otis Hospital. Inc., 226 NLRB 1383, 1384 (1976): Handy Hardware Whole-
sale, Inc. 222 NLRB 373., 374 (1976), we find that Exhs 2A. 2B, 2C, and
2D, attached to the Motion for Summary Judgment, and which are not
disputed by Respondent, are sufficient to establish the Union's request for
bargaining and Respondent's refusal to bargain Thus, as those exhihits
show, the Union requested bargaining on May 1, 1979, and again on Jan-
uary 2, 1980. and Respondent refused the first of these requests on KMay
30, 1979, and the second one on January 29, 1980
250 NLRB No. 50
the complaint, and alleging certain affirmative de-
fenses.
On March 11, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 19,
1980, 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 a response to Notice To Show
Cause, and the General Counsel filed a reply to
Respondent's response.
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, Respondent
denies the material allegations of the complaint and
asserts as affirmative defenses: (1) that the charge
in Case 6-CA-13017 is time-barred by Section
10(b) of the Act; (2) that the certification of the
Union as the exclusive bargaining representative,
based upon the results of a Board election, is erro-
neous in view of the conduct of the Union which
made a fair election immpossible; and (3) that the
Board improperly denied Respondent a hearing on
its objections to conduct affecting the results of the
election. The General Counsel asserts with respect
to the first affirmative defense that the Board treats
a request for bargaining as continuing, that the evi-
dence shows that Respondent is continuing to
refuse to bargain as of January 29, 1980, and that,
in any event, the Motion for Summary Judgment
should be granted on the basis of the charge in
Case 6-CA-13074 to which Respondent has made
no objection concerning its timeliness. As to the
other affirmative defenses, the General Counsel
contends that in effect Respondent is attempting to
relitigate issues decided by the Board in the under-
lying representation case and that Respondent has
no absolute right to a hearing on objections.
Our review of the record herein, including the
record in Case 6-RC-8263, discloses that pursuant
to a Stipulation for Certification Upon Consent
Election, an election was conducted on October 4,
1978, and that the tally of ballots furnished the par-
ties after the election showed 11 votes cast for and
10 against the Union, with no void or challenged
ballots. Respondent timely filed objections to con-
duct affecting the results of the election, alleging
essentially: (1) that a representative of the Union
had engaged in unlawful electioneering: (2) that a
DECISIONS OF NAIIONAL LABOR RELATIONS BOARD
union representative had advised an employee who
had intentions of quitting his employment with Re-
spondent prior to the representation election not to
inform Respondent of such intent before the elec-
tion under penalty of "dire legal consequences";
and (3) that the Union had distributed by mail to
employees a two-page document which allegedly
misrepresented the rates of pay of approximately
five different job classifications.
Thereafter, on January 15, 1979, the Regional
Director for Region 6 issued a report on objections
in which he recommended that all of Respondent's
objections be overruled and the Union be certified.
On January 25, 1979, Respondent filed excep-
tions to the Regional Director's report and a sup-
porting brief in which it essentially reiterated the
allegations set forth in its objections and the con-
tentions made in support thereof. On March 21,
1979, the Board issued a Decision and Certification
of Representative adopting the Regional Director's
report and recommendations and additionally find-
ing that Respondent's exceptions raised no material
or substantial issues of fact or law which warrant
reversal of the Regional Director's findings or re-
quire a hearing.
Subsequently, by letters dated May 1, 1979, and
January 2, 1980, the Union requested that Respond-
ent meet for purposes of collective bargaining. By
letters dated May 30, 1979, and January 29, 1980,
Respondent refused to bargain with the Union and
stated its intention to test the validity of the
Union's certification.
In response to the Notice To Show Cause of
March 19, 1980, Respondent contends, inter alia,
that under Russell-Newman Manufacturing Co.,
Inc., 158 NLRB 1260 (1966), it is entitled to a hear-
ing in an unfair labor practice proceeding on the
objection involving the alleged misrepresentation
by the Union of the rates of pay of five different
job classifications, even though the Regional Direc-
tor already conducted an investigation of this ob-
jection in the underlying representation matter.
However, nothing in that decision supports Re-
spondent's contention since we simply affirmed the
Trial Examiner on an interlocutory appeal by the
General Counsel, agreeing with the Trial Examiner
that the question of whether certain election propa-
ganda contained misrepresentations sufficient to
warrant setting an election aside was an issue that
would have to be determined via a hearing and not
summarily. There, however, the relative truth of
the campaign issue was at issue. Respondent con-
tends that such a question is presented in this case.
However, the Regional Director in his report
found that, even assuming that the alleged misrep-
resentatons concerning the wage rates were inac-
curate, the employees could readily evaluate their
accuracy since they involved the wage rates at
their own work place. The Regional Director con-
cluded, therefore, that the alleged misrepresenta-
tion did not constitute the type of misrepresenta-
tion which could be likely to have had any real
impact on the election and thus would not warrant
setting aside the election. The Board adopted this
report without modification and, accordingly, we
find that no question of the relative truth of the
campaign literature was at issue in the representa-
tion proceeding and thus Russell-Newman Manufac-
turing Co., Inc., supra, is inapplicable. See The
Standard Register Company, 243 NLRB No. 32
(1979);3 E-Z Davies Chevrolet, 161 NLRB 1380,
1384 (1966).
In addition, it is well settled that the parties do
not have an absolute right to a hearing. Only when
the objecting party presents a prima facie showing
of "substantial and material" issues of fact concern-
ing matters which would warrant the election
being set aside does the right to an evidentiary
hearing exist. 4 Absent arbitrary action, this quali-
fied right to a hearing satisfies all statutory and
constitutional requirements. 5 In this case, the
Board fully considered Respondent's objections
and exceptions and did not order a hearing, but
rather adopted the Regional Director's recommen-
dations that the objections be overruled and found
that Respondent's exceptions raised no material or
substantial issues of fact or law which would war-
rant reversal of the Regional Director's findings or
require a hearing. The case cited by Respondent,
Russell-Newman Manufacturing Co., Inc., supra, is
distinguishable for this reason, as well as that that
case involved a substantial and material issue of
fact. See The National Cash Register Company, 171
NLRB 381, 383 (1968).
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. 6
Aside from its alleged Section 10(b) defense, all
issues raised by Respondent in this proceeding
were or could have been litigated in the prior rep-
resentation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered
:' Member Jenkins dissented on other grounds.
4 Amalgamated Clothing Workers of America. ,4FL-CIO (Winfield Man-
ufacturiung Company. Inc.) v. ,L.RB, 424 F.2d 818. 828 (DC Cir
1970)
s Ibid. See also The Standard Register Company, supra.' E-Z Davies
Chevrolet. iupra.
" See Piltsburgh Platr CGlass Co. Nv .L.R.B.. 313 U S. 146. 162 (1941);
Rules and Regulatiuons of the Board, Secs. 102.67(f) and 102.6 9(c)
DARDANELL ENTERPRISES. INC
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.
With respect to the Section 10(b) defense, we
find no merit to Respondent's contention that the
charge in Case 6-CA-13017 was time-barred by
Section 10(b) of the Act and thus would preclude
the entry of summary judgment. Although the
charge in Case 6-CA-13017 was filed December
28, 1979, more than 6 months after the Union's
May 1, 1979, request for bargaining and Respond-
ent's May 30, 1979, refusal, the Board treats a re-
quest for bargaining as continuing, at least for the
period of the certification year where the Board's
certification required Respondent to bargain, and
has held that the failure to respond affirmatively to
such a continuing request gives rise to a continuing
violation of Section 8(a)(1) and (5). Sewanee Coal
Operators Association, et at, 167 NLRB 172, fn. 3
(1967). See also Memorial Hospital of Roxborough,
220 NLRB 402, 403 (1975),7 enforcement denied
on other grounds 545 F.2d 351 (3d Cir. 1976). In
addition, the Board considers the filing of a charge
during the certification year as a renewal of a re-
quest to bargain and the failure to respond affirma-
tively to this request as "tantamount to an explicit
refusal to bargain." Sewanee Coal Operators Associ-
ation supra. See also Memorial Hospital of Roxbor-
ough supra. Accordingly, we find that the Union's
request for bargaining has continued throughout
the period since it was first made, May 1, 1979, and
Respondent's failure to respond to it affirmatively
has continued throughout that same period.8
Therefore, we find, as the complaint alleges, that
on and since June 28, 1979, the time period which
precedes the charge filing date of December 28,
1979, by 6 months and which thus is properly
within the period prescribed by Section 10(b) of
the Act, Respondent has violated Section 8(a)(5)
and (1) of the Act by refusing to bargain with the
Union, as requested.
On the basis of the entire record, the Board
makes the following:
7 The Board has also held that an explicit refusal to bargain made in
order to test a certification will be considered as a continuing refusal to
bargain Williams Energy Company, 218 NLRB 1080, fn 4 (1975) Re-
spondent has given no indication of an intent to bargain and its January
29. 1980. position statement indicates that it is still refusing to bargain in
order to test the certification. Thus. for this reason as well we find that
Respondent's explicit refusal to bargain has continued throughout the
period since May 30. 1979
" We note further that the Union's request for recognition and bargain-
ing on January 2, 1980. and Respondent's refusal to bargain of January
29. 1980. constitutes grounds for yet another cause of action concerning
Respondent's alleged refusal to bargain in violation of the Act. and thus
the charge filed in Case b-CA-13074, in relation to those events is. in any
event, timely filed and alone provides a basis for considering the General
Counsels Motion for Summary Judgment
FINDINGS OF FACT
I. THE BUSINESS OF RFSPONI)ENT
Respondent, a Pennsylvania corporation with its
principal offices located in Monroeville, Pennsylva-
nia, is engaged in the nonretail printing of newspa-
pers and lithography. During the 12 months pre-
ceding issuance of the complaint herein, Respond-
ent, in the course and conduct of its business oper-
ations, received gross revenues in excess of $50,000
which were derived from providing services to
other employers located in the Commonwealth of
Pennsylvania which are themselves directly en-
gaged in interstate commerce. During the same
representative period, Respondent, in the course
and conduct of its business operations, received in
Pennsylvania goods and supplies valued in excess
of $50,000 directly from points located outside the
Commonwealth of Pennsylvania.
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
Graphic Arts International Union, Local No.
L, AFL-CIO, is a labor organization within
meaning of Section 2(5) of the Act.
24-
the
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 full-time and regular part-time lithographic
production employees, including shipper/re-
ceiver and delivery/messenger employed by
Respondent at its Monroeville, Pennsylvania,
facility; excluding all office clerical employees
and guards, professional employees and super-
visors as defined in the Act.
2. The certification
On October 4, 1978, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 6, designated the Union
as their representative for the purpose of collective
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of
379
DECISIONS OF NATIONAl LABOR RELATIONS BOARD
the employees in said unit on March 21, 1979, and
the Union continues to be such exclusive repre-
sentative within the meaning of Section 9(a) of the
Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about May 1, 1979, and more
particularly on or about May 1, 1979, and January
2, 1980, and at all times thereafter, the Union has
requested Respondent to bargain collectively with
it as the exclusive collective-bargaining representa-
tive of all the employees in the above-described
unit. Commencing on or about May 30, 1979, and
more particularly on or about May 30, 1979, and
January 29, 1980, and continuing at all times there-
after to date, Respondent has refused, and contin-
ues 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
June 28, 1979, the date 6 months prior to the filing
date of the charge in Case 6-CA-13017, 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 en-
gaging 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
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. Dardanell Enterprises, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Graphic Arts International Union, Local No.
24-L, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time lithographic
production employees, including shipper/receiver
and delivery/messenger, employed by Respondent
at its Monroeville, Pennsylvania, facility, but ex-
cluding all office clerical employees and guards,
professional employees, 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 March 21, 1979, 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 June 28, 1979, 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 prac-
tices 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,
380
DARDANELL ENTERPRISES. INC
Dardanell Enterprises, Inc., Monroeville, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall:
i. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Graphic Arts Inter-
national Union, Local No. 24-L, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time lithographic
production employees, including shipper/re-
ceiver and delivery/messenger employed by
Respondent at its Monroeville, Pennsylvania,
facility; excluding all office clerical employees
and guards, professional employees and super-
visors 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 Monroeville, Pennsylvania, loca-
tion copies of the attached notice marked "Appen-
dix." 9 Copies of said notice, on forms provided by
the Regional Director for Region 6, 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 insure that said notices are not altered,
defaced, or covered by any other material.
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"
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE TO EMPI.OY IES
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 Graphic Arts International Union, Local
No. 24-L, AFL-CIO, 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 full-time and regular part-time lithogra-
phic production employees, including ship-
per/receiver and delivery/messenger em-
ployed at our Monroeville, Pennsylvania, fa-
cility; excluding all office clerical employees
and guards, professional employees and su-
pervisors as defined in the Act.
DARDANELL ENTERPRISES, INC.
181