Einhorn Enterprises, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1986

282 N.L.R.B. 248 (N.L.R.B. 1986)

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Star Color Plate Service, Division of Einhorn Enter-
prises, Inc. and Local 1, Amalgamated Lithog-
raphers of America , International Typographical
Union, AFL-CIO. Case 29-CA-12416
24 November 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
Upon a charge filed by the Union 13 May 1986,
the General Counsel of the National Labor Rela-
tions Board issued a complaint 24 June 1986 against
the Company, the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National
Labor Relations Act.
The complaint alleges that on 28 April 1986, fol-
lowing a Board election in Case 29-RC-5121, the
Union was certified as the exclusive collective-bar-
gaining representative of the Company's employees
in the unit found appropriate. (Official notice is
taken of the "record" in the representation pro-
ceeding as defined in the Board's Rules and Regu-
lations, Secs. 102.68 and 102.69(g), amended Sept.
9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel,
265 NLRB 343 (1982).) The complaint further al-
leges that since 14 May 1986 the Company has re-
fused to bargain with the Union. The complaint
also alleges that since 14 May 1986 the Company
has failed and refused to furnish the Union with in-
formation requested by it necessary and relevant to
the Union's performance of its function as the ex-
clusive collective-bargaining representative of the
unit. On 8 July 1986 the Company filed its answer
admitting in part and denying in part the allega-
tions in the complaint.
On 2 September 1986 the General Counsel filed
a Motion for Partial Summary Judgment and Issu-
ance of Decision and Order, and on 18 September
1986 the General Counsel filed an amendment to
its motion.'' On 19 September 1986 the Board
issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the
motion should not be granted. The Company filed
a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Partial Summary
Judgment
The Company's answer denies that it has refused
to bargain with the Union. The Company admits,
however, that by letter, dated 24 June 1986 the
Union requested to begin negotiations, and that it
sent a letter to the Union dated 30 June 1986 stat-
ing that it would not commence negotiations with
the Union until the Company's position with re-
spect to representation was litigated. The Company
denies that it acted unlawfully and asserts an af-
firmative defense that the complaint fails to state a
valid 8(a)(5) and (1) violation of the Act, because it
is based on an unlawful Decision, Order, and Certi-
fication of Representative by the Board. The ^ Gen-
eral Counsel argues that all material issues have
been previously decided. We agree with the Gener-
al Counsel.
The record, including the record in Case 29-
RC-5121, reveals that pursuant to a Decision and
Direction of Election issued by the Regional Di-
rector, an election was conducted on 31 March
1981. The tally of ballots shows that 6 votes were
cast for the Union, Local 1, 5 votes were cast for
the Intervenor, no votes were cast against the par-
ticipating labor organizations, and 15 votes were
challenged.2 In addition, the Union on 7 April
1981 filed timely objections to the conduct of the
election.
On 30 June 1981 the Regional Director issued a
supplemental decision, order consolidating cases,
and notice of hearing in Cases 29-RC-5121, 29-
CA-8280, 29-CA-8407, 29-CA-8796, and 29-CA-
8811-2, in which he directed that a hearing be con-
ducted on the challenges to the ballots of six
voters, that the challenge to one voter be deferred
pending the disposition of Case 29-CA-8407, that
the challenges to the ballots of seven voters be sus-
tained, and that the challenge to the ballot of one
voter be overruled. The Regional Director further
ordered that Cases 29-CA-8280, 29-CA-8407, 29-
CA-8796, 29-CA-8811-2, and 29-RC-5121 be con-
solidated for the purpose of hearing, ruling, and a
decision, by an administrative law judge, and that
thereafter Case 29-RC-5121 be transferred and
continued before the Board in Washington, D.C.
Pursuant to a request for review filed by the Union
of the Regional Director's supplemental decision,
order consolidating cases, and notice of hearing,
2 The ballots of four voters were challenged on the basis that they
were not employees of the Employer , two voters on the basis that they
were irregular part-time employees, four voters on the basis that they
The General Counsel , in that amendment , deleted any argument that were not part of the voting unit, and four voters on the basis that they
summary judgment should be granted with respect to the allegation that were supervisors within the meaning of the Act. The Board agent chal-
the Company refused to furnish information . Thus the General Counsel 's lenged the remaining voter whose name did not appear on the voting eli-
motion is limited to the allegation that the Respondent refused to bargain . gibility list
282 NLRB No. 31
EINHORN ENTERPRISES
the Board on 31 August 1981, denied the request
for review, except that the Board concluded that
one challenge to the ballot sustained by the Re-
gional Director be consolidated with the other
challenges and objections set for hearing.
On various' dates between 13 July 1981 and 18
January 1982, a consolidated hearing was conduct-
ed before a duly designated administrative law
judge on the issues raised in Case 29-RC-5121, and
on the issues raised by the complaints and notices
of hearing in Cases 29-CA-8280, 29-CA-8407, 29-
CA-8796, and 29-CA-8811-2, as amended by the
Board on 31 August 1981.
On 17 March 1983 the decision of the adminis-
trative law judge issued in which he recommended
to the Board that the remaining challenges be sus-
tained. On 28 April-1986 the Board issued its Deci-
sion, Order, and Certification of Representative3 in
which it certified the Union as the' exclusive bar-
gaining representative in the appropriate unit.
On 20 May 1986 the Company filed with the
Board a motion for reconsideration and/or to
reopen the record and for a stay of enforcement of
the Board's decision in 279 NLRB 576 (1986), on
the grounds that it would be unfair to enforce a
bargaining ' order regarding a unit in which the
election had been held over 5 years previously and
where there had been significant employee turnov-
er because the Union might not currently have the
support of a majority of the unit employees. The
Respondent moved to reopen the record in order
to present further information regarding four em-
ployees and the sustained challenges to their bal-
lots, and the remedial obligation regarding one em-
ployee discriminat'ee who is allegedly no longer
employed by the Company. The Board issued an
Order on 18 June 1986 denying the Company's
motion.4
In its response to the General Counsel's Motion
for Partial Summary Judgment, the Company reit-
erates its contention that it can legitimately, refuse
to bargain based on the 5-year hiatus between the
representation election and certification, in light of
the significant employee turnover.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Plate Glass Co. it NLRB, 313 U.S. 146,
279 NLRB 576 (1986).
The Board noted that Respondent may raise the issue of the remedial
obligation to the one employee discriniinatee at the compliance stage of
that proceeding . That issue is not involved here
249
162 (1941); Secs. '102.67(f) and 102.69(c) of the
Board's Rules and Regulations.
All issues raised by the Company were or could
have been litigated in the prior representation pro-
ceeding. The Company does not offer to adduce at
a hearing any newly discovered and previously un-
available evidence, nor does it allege any special
circumstances that would require the Board to re-
examine the decision made in the representation
proceeding. We therefore find that the Company
has not raised any issue that is properly litigable in
this unfair labor practice proceeding.5 According-
ly, we grant the Motion for Partial Summary Judg-
ment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, a New York State corporation, is
engaged in the manufacture, nonretail sale, and dis-
tribution of lithographic plates, film, and related
products, at its facility in Jamaica, New York,
where it annually purchases and receives at its fa-
cility products, goods, and materials valued in
excess of $50,000 directly from points outside the
State of New York. We find that the Company is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 31 March 1981 the
Union was certified as the collective-bargaining
5 The cases cited by the Respondent in which the United States Court
of Appeals for the Second Circuit refused to uphold bargaining orders
issued by the Board are distinguishable. In NLRB v. J. Coty Messenger
Service, 763 F.2d 92, 101-102 (2d1 Cir 1985), and NLRB v. Manon Rohr
Corp., 714 F.2d 228, 230-232 (2d Cir. 1983), the Board had issued bar-
gaining orders after reaching determinations that fair elections could not
be held. The Second Circuit refused to enforce these orders, based on the
passage of time and employee turnover, and because the clearly preferred
method for determining a majority representative is an election. In the
instant case, the Union was certified by the Board as the exclusive repre-
sentative since the Union won the majority of the valid ballots cast in a
fair election. It is well settled that the initial 1-year period of certification
begins the date the respondent begins to bargain in good faith with the
union 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 (1964); Burnett Construction Co, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (10th Cir. 1965). In addition, the Board con-
cludes that the circumstances presented by the Respondent in its opposi-
tion to the General Counsel's Motion for Partial Summary Judgment do
not constitute "unusual circumstances" within the meaning of Ray Brooks
v. NLRB, 348 U.S. 96 (1954), which would relieve it of the obligation to
bargain with the Union.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the employees in the following
appropriate unit:
All lithographic production employees em-
ployed by the Employer at its facility located
on Jamaica Ave., Jamaica, New York, exclud-
ing drivers, messengers, clerical employees,
guards, and supervisors within the meaning of
the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 6 May L9.86 the Union has requested the
Company to bargain, and since 30 June 1986 the
Company has refused.6 We find that this refusal
constitutes an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 30 June 1986 to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit, the Company has engaged in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, to bargain on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. 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 (1964); Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
6 The complaint alleges that the Respondent has refused to bargain
with the Union since about 14 May 1986 . However, by letter dated 14
May 1986, the Respondent notified the Union it declined to commence
negotiations because it had decided to file a motion for reconsideration
with the Board . On 18 June 1986 the Board denied the Respondent's
motion Subsequently, the Union again requested negotiations with Re-
spondent by letter dated 24 June 1986. Respondent's letter dated 30 June
1986 advised the Union that it would not commence negotiations. With-
out deciding whether Respondent 's 14 May 1986 letter constituted an un-
lawful refusal to bargain , we find that the 30 June 1986 letter clearly con-
stituted such a refusal.
ORDER
The National Labor Relations Board orders that
the Respondent, Star Color Plate Service, Division
of Einhorn Enterprises, Inc., Jamaica, New York,
its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 1, Amalga-
mated Lithographers of America, International Ty-
pographical Union, AFL-CIO as the exclusive bar-
gaining representative of the employees in the bar-
gaining unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of, the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate, unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a -signed agreement:
All lithographic production employees em-
ployed by the Employer at its facility located
on Jamaica 'Ave., Jamaica, New York, exclud-
ing drivers, messengers, clerical employees,
guards, and supervisors within the meaning of
the Act.
(b) Post, at its facility in Jamaica, New York,
copies of the attached notice marked "Appendix."7
Copies of the notice, on forms provided by the Re-
gional Director for Region 29, after being signed
by the Respondent's authorized representative,
shall, be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date .of this Order what
steps the Respondent has taken to comply.
' If 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 Nation-
al 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."
EINHORN ENTERPRISES 251
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Local 1,
Amalgamated Lithographers of America, Interna-
tional Typographical Union, AFL-CIO as the ex-
clusive representative of the employees in the bar-
gaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, , bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All lithographic production employees em-
ployed by the Employer at its facility located
on Jamaica Ave., Jamaica , New York, exclud-
ing drivers , messengers, clerical employees,
guards, and supervisors within the meaning of
the Act.
STAR COLOR PLATE SERVICE, DIVI-
SION OF EINHORN ENTERPRISES, INC.