Dempubco Publishing Co.

National Labor Relations Board - Board Decisions

Aug 17, 1979

244 N.L.R.B. 325 (N.L.R.B. 1979)

I)MPUB(O PBI.ISHING CO.
Dempubco Publishing Co., a/k/a Democrat Publish-
ing Co. and Offset Workers, Printing Pressmen and
Assistants Union, Local No. 40 and International
Typographical Union, Local No. 82. Cases 27 CA
5901 and 27 CA-5553
August 17, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEIMBERS JENKINS
AND PENELI.O
Upon charges filed on July 17, 1978,' and Septem-
ber 2, 1977, by Offset Workers, Printing Pressmen
and Assistants Union, Local No. 40 (the Pressmen),
and International Typographical Union, Local No.
82 (ITU), respectively, herein called the Unions, and
duly served on Dempubco Publishing Co., a/k/a
Democrat Publishing Co., herein called Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 27, issued
a consolidated complaint 2 on January 11, 1979,)
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 Na-
tional 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 com-
plaint alleges in substance that Respondent violated
Section 8(a)(5) of the Act by refusing to sign a collec-
tive-bargaining agreement with ITU, refusing to pay
its employees or otherwise comply with the terms of
the negotiated agreement with ITU, and unilaterally
changing the overtime pay of employees and the
wages of new hires in the Pressmen unit.
On January 26, 1979, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint and asserting
affirmative defenses. On March 29, 1979, the Re-
gional Director issued an amended consolidated com-
plaint and notice of hearing. Respondent submitted
to the Regional Director a document entitled "With-
drawal of Answer," on April 12, 1979. in which it
} An amended charge in Case 27-CA 5901 was filed against Respondent
by the Pressmen on October 13, 1978.
2 The consolidated complaint included an order vacating and setting aside
the settlement agreements previously executed and entered into by both
Unions and Respondent.
On March 29, 1979. the Regional Director for Region 27 issued an
amended consolidated complaint and notice of hearing. Thereafter, on April
23, 1979. the General Counsel withdrew "paragraph V" of the complaint.
which alleged conduct by Respondent in violation of Sec. 8laS ) of the Act.
withdrew its answer and stated that it had no inten-
tion of filing an answer to the amended complaint,
nor did it intend to contest a Motion for Summary
Judgment filed on behalf of the Charging Parties.
On April 23, 1979, the Acting Regional Director
issued an Order partially withdrawing complaint in
which "paragraph V," which alleged conduct in vio-
lation of Section 8(a)( 1). was withdrawn and Respon-
dent's withdrawal of its answer was acknowledged.
On May 4, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 16, 1979, 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 has not filed a response to the
Notice To Show Cause.
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
Section 102.20 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
provides as follows:
The Respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state.
such statement operating as a denial. All allega-
tions in the complaint, if no answer is filed, or an
allegation in the complaint not specifically de-
nied or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be admit-
ted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint served on Respondent stated that,
unless an answer were filed within 10 days from the
service thereof. "all of the allegations in the Com-
plaint shall be deemed to be admitted to be true and
may be so found by the Board." Although Respon-
dent filed a timely answer, it subsequently filed a
withdrawal of answer, and the withdrawal was ac-
knowledged by the Acting Regional Director in his
order of April 23. 1979. The withdrawal of an answer
244 NLRB No. 57
325
I)E('ISI()NS OF NATIONAI. I.ABOR RELA IIONS BOARD
necessarily has the same effect as a respondent's fail-
ure to file an answer. 4
Since Respondent has withdrawn its answer, the
allegations of the complaint are deemed to be admit-
ted to be true and are so tound to be true in accord-
ance with the Board's Rules and Regulations. Ac-
cordingly, we grant the General Counsel's Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the foliowing:
FININS O()F A(CI
1. I HI RBUSINESS OF RSPONI)FNT
Respondent, a Colorado corporation with its prin-
ciple office and place of business at Colorado Springs,
Colorado, is engaged in the custom printing industry.
Respondent, in the course and conduct of its business
operations, annually purchases and receives goods
and materials valued in excess of $50,000 directly
from points and places outside the State of Colorado.
We find, on the basis of the foregoing, that Respon-
dent 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 ORGANIZAIIONS INVOLVED
International Typographical Union, Local No. 82,
and Offset Workers, Printing Pressmen and Assistants
Union, Local No. 40, are labor organizations within
the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
The 8(a)(5) Violations
I. The units
The following employees of Respondent constitute
units (represented by ITU and the Pressmen, respec-
tively) appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All employees doing composing room work
for the Employer at its Colorado Springs, Colo-
rado, location, but excluding office clerical em-
ployees, professional employees, guards and su-
pervisors as defined in the Act.
All pressmen, apprentices, and press assistants
engaged in operating or assisting in the operation
'Newark Pipeline Company, 202 NLRB 234 (1973): Nickey Chevrolet
Sales, Inc., 199 NLRB 411 (1972).
of Respondent's gravure, offset, and letterpress
printing presses, and all other printing presses
operated by Respondent. and all employees
working in the preparation of offset plates, in-
cluding but not limited to offset camera, dark
room, stripping, lay-out. etching, dot etching,
opaquing, and offset platemaking, employed by
Respondent at its Colorado Springs, Colorado.
location, but excluding office clerical employees,
professional employees, guards and supervisors
as defined in the Act.
2. The Unions' representative status
The Unions have been the collective-bargaining
representatives of the employees in said units since
prior to October 1970, when they were so designated
or selected by a majority of the employees of Respon-
dent in the respective units described above, and con-
tinue to be such exclusive representatives within the
meaning of Section 9(a) of the Act.
3. The refusal to bargain
On or about March 2, 1977, and at all times there-
after, Respondent did refuse, and continues to refuse,
to bargain collectively with the ITU and the Press-
men as the exclusive bargaining representatives of all
the employees in the respective units described above
by the following acts and conduct:
(a) Since on or about June 1, 1977, Respondent
has refused to sign a collective-bargaining agreement
it negotiated and agreed to the ITU in or about Janu-
ary 1977.
(b) Since on or about April 1, 1977, Respondent
has refused, and continues to refuse, to make fringe
benefit payments in accordance with the terms of the
collective-bargaining agreement it negotiated and
agreed to with ITU as described in paragraph (a)
above.
(c) Since on or about October 1, 1977, Respondent
has refused, and continues to refuse, to pay its em-
ployees in accordance with or otherwise comply with
the terms of the collective-bargaining agreement it
negotiated and agreed to with ITU as described in
paragraph (a) above.
(d) Since in or about March 1978, and continuing
to date, Respondent has unilaterally changed the
wages of new hires, who are employees in the Press-
men unit described above.
(e) Since in or about March 1978, and continuing
to date, Respondent has unilaterally changed the
overtime pay of employees in the Pressmen unit de-
scribed above.
Accordingly, we find that, by the acts and conduct
described above, Respondent has since March 2,
326
DEMPUB('O PUBLISHING CO.
1977, and at all times thereafter, refused to bargain
collectively with the Unions as the exclusive represen-
tatives of the employees in the respective appropriate
units, and that, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR I.ABOR PRACrIl('tS
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close, intimate.
and substantial relationship to trade, traffic, and com-
merce 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 Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) of the Act, we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
Having found that Respondent refused to sign or
comply with collective-bargaining agreement negoti-
ated with ITU, we shall order that it sign and execute
the agreement and comply with all its terms.
Having found that Respondent refused to make
fringe benefit payments in accordance with the terms
of the collective-bargaining agreement it negotiated
and agreed to with ITU, we shall order that Respon-
dent make such benefit payments in accordance with
agreement and make employees whole for any loss of
benefits they may have suffered by reason of Respon-
dent's unfair labor practices.
Having found that Respondent has refused to pay
its employees in accordance with or otherwise comply
with the terms of the collective-bargaining agreement
it negotiated and agreed to with ITU, we shall order
that Respondent pay the employees in accordance
with the agreement and make them whole for any loss
of earnings they may have suffered by reason of Re-
spondent's unfair labor practices.
Having found that Respondent refused to pay new
hires and overtime in the Pressmen unit according to
the terms of the collective-bargaining agreement, we
shall order that Respondent make the new hires and
employees who have worked overtime whole for any
loss of earnings they may have suffered by reason of
Respondent's unfair labor practices.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
(CO()N( I SI()NS O() LAM
I. Dempubco Publishing Co.. a/k/a Democrat
Publishing Co., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Typographical Union. Local No.
82, and Offset Workers, Printing Pressmen and Assis-
tants Union, Local No. 40, are labor organizations
within the meaning of Section 2(5) of the Act.
3. All employees doing composing room work ftor
the Employer at its Colorado Springs, Colorado, loca-
tion, but excluding office clerical employees, profes-
sional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
All pressmen, apprentices, and press assistants en-
gaged in operating or assisting in the operation of
Respondent's gravure. offset, and letterpress printing
presses, and all other printing presses operated by Re-
spondent, and all employees working in the prepara-
tion of offset plates. including but not limited to, off-
set camera, dark room, stripping, lay-out, etching. dot
etching, opaquing, and offset platemaking, employed
by Respondent at its Colorado Springs, Colorado. lo-
cation, but excluding office clerical employees, profes-
sional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
4. Prior to and at all times since October 1970, the
above-named labor organizations have been and now
are the exclusive representatives of all employees in
the aforesaid respective appropriate units for the pur-
pose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing to bargain collectively concerning
the negotiated agreements and by refusing to comply
with the terms of said agreements with the above-
named labor organizations as the exclusive bargain-
ing representatives of all the employees of Respon-
dent in the respective appropriate units, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the Act.
6. 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 Rela-
tions Board hereby orders that the Respondent, Dem-
pubco Publishing Co.. a/k/a Democrat Publishing
Co., Colorado Springs, Colorado, its officers, agents,
successors, and assigns, shall:
327
I)E(CISIONS OF NATIONAL IABOR REI.ATIONS BOARD
1. Cease and desist from:
(a) Refusing to bargain collectively regarding
wages, hours, and other terms and conditions of em-
ployment with the International Typographical
Union, Local No. 82 (ITU), and Offset Workers,
Printing Pressmen and Assistants Union, Local No.
40 (the Pressmen), or any other union selected, as the
exclusive bargaining representatives of the employees
in the following respective appropriate units:
All employees doing composing room work for
the Employer at its Colorado Springs, Colorado,
location, but excluding office clerical employees,
professional employees, guards and supervisors
as defined in the Act.
All pressmen, apprentices, and press assistants
engaged in operating or assisting in the operation
of Respondent's gravure. offset, and letterpress
printing presses, and all other printing presses
operated by Respondent, and all employees
working in the preparation of offset plates, in-
cluding but not limited to offset camera, dark
room, stripping, lay-out, etching, dot etching,
opaquing, and offset platemaking. employed by
Respondent at its Colorado Springs, Colorado,
location, but excluding office clerical employees,
professional employees, guards, and supervisors
as defined in the Act.
(b) Refusing to sign or execute the collective-bar-
gaining agreement with ITU, or any other collective-
bargaining representatives of its employees.
(c) Failing and refusing to make fringe benefit pay-
ments in accordance with the collective-bargaining
agreement it negotiated with ITU.
(d) Failing and refusing to pay its employees or
otherwise comply with the terms of the collective-bar-
gaining agreement it negotiated with ITU.
(e) Failing and refusing to pay wages to new hires
in the Pressmen unit as set out in the collective-bar-
gaining agreement.
(f)Failing and refusing to pay overtime in accord-
ance with the collective-bargaining agreement with
respect to the Pressmen.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named Unions, or any other union selected, as
the exclusive representatives of the employees in the
respective appropriate units described above regard-
ing wages, hours, and other terms and conditions of
employment.
(b) Execute forthwith the agreed-upon collective-
bargaining agreement with ITU.
(c) Give effect retroactively to the terms and provi-
sions of the agreed-upon collective-bargaining agree-
ments with the respective Unions.
(d) Make whole its employees for their loss of
wages and other benefits which are provided for in
the respective agreements, for the effective periods.
plus interest as set forth in Isis Plumbing & Heating
('o., 138 NLRB 716 (1962), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977).
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(f) Post at its place of business in Colorado
Springs, Colorado, copies of the attached notice
marked "Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 27, af
ter being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof; and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
5 In the event that this Order is enforced h ;Ia Judgment of a United States
Court If Appeals. 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
NolI(cE To EMPI.OYEES
POSTEI) BY ORDER OF ILE.
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WII.t. NOT refuse to bargain collectively re-
garding wages, hours, and other terms and con-
ditions of employment with International Typo-
graphical Union, Local No. 82 (ITU), and Offset
Workers, Printing Pressmen and Assistants
Union, Local No. 40 (the Pressmen), or any
other union selected, as the exclusi e representa-
tives of the employees in the following respective
appropriate units:
All employees doing composing room work
for the Employer at its Colorado Springs,
Colorado, location, but excluding office cleri-
328
DEMPIUBCO PUBLISHING (O.
cal employees, professional employees, guards
and supervisors as defined in the Act.
All pressmen, apprentices, and press assistants
engaged in operating or assisting in the opera-
tion of the Employer's gravure, offset, and let-
terpress printing presses, and all other printing
presses operated by the Employer, and all em-
ployees working in the preparation of offset
plates, including but not limited to offset cam-
era, dark room, stripping, lay-out, etching, dot
etching, opaquing, and offset platemaking,
employed by the Employer at its Colorado
Springs, Colorado, location, but excluding of-
fice clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
WE WILL NOT refuse to execute the collective-
bargaining agreement with ITU, or any other
collective-bargaining representatives of our em-
ployees.
WE WILL NOT fail and refuse to make fringe
benefit payments in accordance with the collec-
tive-bargaining agreement negotiated with ITU.
WE WIL.L NOT fail and refuse to pay our em-
ployees or otherwise comply with the terms of
the collective-bargaining agreement negotiated
with ITU.
WE WILL NOT fail and refuse to pay wages to
new hires in the Pressmen unit as set out in the
collective-bargaining agreement.
WE WILL NOT fail and refuse to pay our em-
ployees overtime in accordance with the collec-
tive-bargaining agreement with respect to the
Pressmen.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act,
as amended.
WE W'll. upon request, bargain collectively
with the above-named Unions, or any other
union selected, as the exclusive representatives of
the employees in the respective appropriate units
described above regarding wages, hours, and
other terms and conditions of employment.
WE wIll.l execute forthwith the collective-bar-
gaining agreement with ITU.
WE wilt.. make fringe benefit payments in ac-
cordance with the collective-bargaining agree-
ment negotiated with ITU.
WE wit.L pay our employees or otherwise
comply with the terms of the collective-bargain-
ing agreement negotiated with ITU.
WE WIL.L pay wages to new hires in the Press-
men unit as set out in the collective-bargaining
agreement.
WE WILL pay our employees overtime in ac-
cordance with the collective-bargaining agree-
ment with the Pressmen.
WE Wll. l make whole our employees for their
loss of wages and other benefits which are pro-
vided for in the respective agreements, for the
effective periods, plus interest.
DEMPUB('O PUBI.ISHING CO., A/K/A DEMO-
(-RAT PUBI.ISIIING CO.
329