Debne Press, Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1967

165 N.L.R.B. 857 (N.L.R.B. 1967)

DEBNE PRESS, INC.
Debne Press, Inc. and New York Printing
Pressmen and Offset Workers Union No.
51, International Printing Pressmen and
Assistants Union , AFL-CIO and New York
Paper Cutters and Bookbinders Union No.
119, International Brotherhood of
Bookbinders , AFL-CIO. Case 2-CA-11276
June 22, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
Upon a charge jointly filed by New York Printing
Pressmen and Offset Workers Union No. 51,
International Printing Pressmen and Assistants
Union, AFL-CIO, and New York Paper Cutters and
Bookbinders Union No. 119, International
Brotherhood of Bookbinders, AFL-CIO, herein
collectively called the Unions, the General Counsel
for the National Labor Relations Board, by the
Regional Director for Region 2, issued a complaint
and notice of hearing dated April 28, 1967, against
Debne Press, Inc., herein called the Respondent,
alleging that the Respondent had engaged in and
was engaging in unfair labor practices 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 were duly served upon the
Respondent and the Unions.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on or about
February 24, 1967, the Unions were duly certified by
the Board,' as the joint exclusive bargaining
representative of Respondent's employees in the
unit found appropriate by the Board, and that, since
on or about February 27, 1967, Respondent has
refused to bargain with the Unions as such exclusive
bargaining representative, although the Unions have
requested it to do so. On May 5, 1967, Respondent
filed its answer admitting in part and denying in part
the allegations of the complaint, and requesting that
the complaint be dismissed.
On May 12, 1967, the General Counsel filed with
the Regional Director for Region 2 Motion for
Summary Judgment asserting, in view of admissions
contained in the Respondent's answer and other
written admissions annexed as appendices to the
moving papers, that there were no issues of fact or
law requiring a hearing, and praying the issuance of
a Decision and Order finding the violations as
alleged in the complaint. On the same date, May 12,
1967, the Regional Director for Region 2 issued his
Order Transferring Case and Referring Motion to
the National Labor Relations Board. On May 17,
1967, the Board issued its Notice to Show Cause on
' Certification of Representative issued February 24, 1967, in
Case 2-RC-14468 (not published in NLRB volumes)
857
or before May 31, 1967, why the General Counsel's
Motion for Summary Judgment should not be
granted. On May 19, 1967, the Board received from
the Respondent its Reply to Motion for Summary
Judgment and affidavit in support thereof opposing
the General Counsel's Motion for Summary
Judgment, and requesting that the Board direct a
hearing be held in this proceeding before a Trial
Examiner.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion for Summary Judgment
In its Reply to Motion for Summary Judgment and
its affidavit in support thereof, Respondent contends
that "there are issues crucial to the proper
determination of this proceeding which have not
been litigated herein or in the prior Representation
case," and, that an ex parte unilateral investigation
by the Regional Director was not "litigation" of
these issues. This contention is without merit. The
Respondent's answer to the complaint and its Reply
to Motion for Summary Judgment establish that the
Respondent is seeking to relitigate matters decided
by the Board in the prior representation proceeding.
The record before us establishes that on
November 8, 1966, following a hearing held before a
Hearing Officer of the National Labor Relations
Board, the Regional Director for Region 2 of the
National Labor Relations Board issued a Decision
and Direction of Election in Case 2-RC-14468, in
which he found appropriate for bargaining the
following unit of employees:
All full-time and regular part-time offset
pressmen, cameramen, strippers, plate makers,
paper handlers and paper cutters employed by
the Employer at its New York City place of
business excluding office clerical employees,
professional employees, salesmen, deliverymen,
watchmen, guards and supervisors as defined
in the Act.
On December 9, 1966, pursuant to the Decision,
an election was held, in which 5 votes were cast
for the Unions and 4 against. The Unions
challenged the ballot of Jerry Cutler on the grounds
that he occupied a special status with Respondent
because of his relationship to Respondent's vice
president, Rothstein, who owns 50 percent of the
stock of Respondent. The Regional Director
conducted an administrative investigation concerning
the challenge to Cutler's ballot, and, relying in part
on credited statements given by most of the 10
employees involved in the election, found that Cutler
165 NLRB No. 120
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occupied a special status and concluded that the
challenge to his ballot be sustained. The Regional
Director found that Cutler is permitted to keep
irregular hours, frequents the office away from his
work area, uses the Company's telephones, wears
street clothes rather than a uniform, is not
reprimanded for mistakes, receives a rate of pay
higher than that received by a more experienced
cameraman, and receives pay for time not worked.
On March 2, 1967, the Respondent filed a Motion for
Reconsideration for Request for Hearing with the
Regional Director contending, in essence, that the
Regional Director's ex parte investigation and denial
of a hearing raised, in the circumstances, a question
of due process. The Regional Director on March 7,
1967, denied the Motion for Reconsideration.
On March 3, 1967, the Respondent filed a Request
for Review with the Board which, in essential part,
alleged that the question of Cutler's eligibility to vote
in the election raised substantial and material
questions of fact and that the Regional Director had
improperly denied it a hearing. We denied review
because in our opinion, on the record then before us,
the Respondent had admitted in the course of the
Regional Director's investigation, directly or by
inference, the correctness of the Regional Director's
findings that Cutler occupied a special status as an
employee. Thus, the Respondent in effect conceded
that Cutler was hired as a cameraman on
November 2, 1966, shortly before the Regional
Director issued his Decision and Direction of
Election herein, and about 2 days before the end of
the payroll period determining eligibility to vote in
the election; that Cutler is normally a hairdresser by
trade and was hired as a part-time employee; that he
is paid an hourly rate greater than the rate the
former cameraman received after 5 years on the job;
that unlike the other employees in the unit he does
not wear a uniform; that he fills in his own time on
his card and at irregular occasions; that his regular
starting time is 9 a.m. whereas other employees
reporting in the morning report at 8:30 a.m.
Moreover, the Respondent does not controvert the
Regional Director's finding that Cutler wastes
considerable quantities of film, but unlike other
employees is not reprimanded for his mistakes. For
such reasons we concluded that no substantial or
material issue of fact existed warranting review.2
The record is clear that the Unions have requested
Respondent to bargain collectively for the
employees in the unit found appropriate by the
Regional Director and that Respondent has refused
to bargain with the Unions as the representative of
said employees. Respondent raises as an affirmative
defense the same allegations as it alleged in its
2 It is not true , as the Respondent seems to believe , that it was
placed at a disadvantage before the Board in seeking to establish
its claimed right to a hearing , by the Board's own rule which limits
the grounds on which review will be granted We have given full
consideration to its contentions.
request for review. It has not offered any new
evidence or evidence not previously available to it.
In the circumstances, we find no merit in
Respondent's affirmative defense. Inasmuch as the
Respondent has already litigated these issues, it has
not raised any issue which is properly triable in the
instant unfair labor practice proceeding.'
All material issues thus having been decided by
the Board or admitted in the answer to the
complaint, or by other written admissions which are
part of the record herein, there are no matters
requiring a hearing before a Trial Examiner.
Accordingly, the General Counsel's Motion for
Summary Judgment is granted. On the basis of the
record before it, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized and existing by
virtue of the laws of the State of New York engaged
in commercial printing at its principal place of
business in New York City. During the past year
Respondent, in the course and conduct of its
business, caused to be manufactured, sold, and
distributed at its New York City place of business
products valued in excess of $50,000 of which
products valued in excess of $50,000 were furnished
to firms in New York State, each of which shipped
products valued in excess of $50,000 directly outside
the State of New York.
Respondent admits, and we find, that Respondent
is, and has been at all times material herein, and
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 ORGANIZATIONS INVOLVED
New York Printing Pressmen and Offset Workers
Union No. 51, International Printing Pressmen and
Assistants Union, AFL-CIO, and New York Paper
Cutters and Bookbinders Union No. 119,
International Brotherhood of Bookbinders,
AFL-CIO, are labor organizations 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 at the Respondent's New
York City place of business constitute a unit
3 Pittsburgh Plate Glass Co v N.L.R B , 313 U.S 146,
Metropolitan Life Insurance Company, 163 NLRB 579, United
States Rubber Company , 155 NLRB 1298
DEBNE PRESS, INC.
appropriate for collective bargaining within the
meaning of the Act:
All full-time and regular part-time offset
pressmen, cameramen, strippers, plate makers,
paper handlers and paper cutters employed by
the Employer at its New York City place of
business excluding office clerical employees,
professional employees, salemen, deliverymen,
watchmen, guards and supervisors as defined in
the Act.
2. The certification
On or about November 9, 1966, a majority of the
employees of Respondent in said unit, in an election
conducted under the supervision of the Regional
Director for Region 2, designated the Unions as their
joint representative for the purpose of collective
bargaining with Respondent, and on February 24,
1967, the Board certified the Unions as the joint
collective-bargaining representative of the
employees in said unit and the Unions continue to be
such representative.
B. The Request to Bargain and the Respondent's
Refusal
Commencing on or about February 27, 1967, and
continuing to date, and more particularly on
March 13 and April 4 and 6, 1967, the Unions have
requested and are requesting Respondent to bargain
collectively with them as the joint exclusive
collective-bargaining representative of all the
employees in the above-described unit. Since on or
about February 27, 1967, and continuing to date,
Respondent did refuse, and continues to refuse, to
bargain collectively with the Unions as joint
exclusive collective-bargaining representative of all
employees in said unit.
Accordingly, we find that the Unions were duly
certified by the Board as the joint collective-
bargaining representative of the employees of the
Respondent in the appropriate unit described above
in the Board's certification, and that the Unions at
all times since February 24, 1967, have been and
now are the exclusive bargaining representative of
all the employees in the aforesaid unit, within the
meaning of Section 9(a) of the Act. We further find
that Respondent has, since February 27, 1967,
refused to bargain collectively with the Unions as the
exclusive bargaining representative of its employees
in the appropriate unit, and that, by such refusal, the
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 the Respondent set forth in
section III, above, occurring in connection with its
operations described in section I, above, have a
859
close, intimate, and substantial relationship to trade,
traffic, and commerce 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 the Respondent has engaged 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 Unions as the joint exclusive
representative of all employees in the appropriate
unit and, if an understanding is reached, embody
such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Debne Press, Inc., is an Employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. New York Printing Pressmen and Offset
Workers Union No. 51, International Printing
Pressmen and Assistants Union, AFL-CIO, and
New York Paper Cutters and Bookbinders Union
No. 119, International Brotherhood of Bookbinders,
AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time offset
pressmen, cameramen, strippers, platemakers,
paper handlers and papercutters employed by the
Employer at its New York City place of business
excluding office clerical employees, professional
employees, salesmen, deliverymen, watchmen,
guards and supervisors 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 February 24, 1967, the above-named
labor organizations have been the joint exclusive
representative of all employees in the aforesaid
appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about February 27, 1967, and
at all times thereafter, to bargain collectively with
the above-named labor organizations as the joint
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 them in Section 7 of the Act, and has
thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. The aforesaid unfair labor practices are unfair
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Debne Press, Inc., New York City, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment, with New York Printing Pressmen and
Offset Workers Union No. 51, International Printing
Pressmen and Assistants Union, AFL-CIO, and
New York Paper Cutters and Bookbinders Union
No. 119, International Brotherhood of Bookbinders,
AFL-CIO, as the joint exclusive bargaining
representative of its employees in the following
appropriate unit:
All full-time and regular part-time offset
pressmen, cameramen, strippers, plate makers,
paper handlers and paper cutters employed by
the Employer at its New York City place of
business excluding office clerical employees,
professional employees, salesmen, deliverymen,
watchmen, guards, and supervisors as defined
in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights
guaranteed to them by 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 organizations, as the joint 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 understanding in a signed agreement.
(b) Post at its New York City place of business,
copies of the attached notice marked "Appendix."4
Copies of said notice, to be furnished by the
Regional Director for Region 2, 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.
(c) Notify the Regional Director for Region 2, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with New York Printing Pressmen and Offset
Workers Union No. 51, International Printing
Pressmen and Assistants Union, AFL-CIO, and
New York Paper Cutters and Bookbinders
Union No. 119, International Brotherhood of
Bookbinders, AFL-CIO, as the joint 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 joint exclusive
representative of all employees in the
bargaining unit described below with respect to
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 full-time and regular part-time offset
pressmen, cameramen, strippers, plate
makers, paper handlers and paper cutters
employed by the Employer at its New York
City place of business excluding office
clerical employees, professional employees,
salesmen, deliverymen, watchmen, guards,'
and supervisors as defined in the Act.
DEBNE PRESS, INC.
(Employer)
Dated By
(Representative ) (Title)
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.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth
Avenue, New York, New York 10022, Telephone
751-5500, Extension 852.
In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "