Insilco

National Labor Relations Board - Board Decisions

Nov 10, 1972

200 N.L.R.B. 219 (N.L.R.B. 1972)

TAYLOR PUBLISHING CO. 219
Taylor Publishing Co., a Subsidiary of Insilco and
Lithographers & Photoengravers International
Union, AFL-CIO. Case 28-CA-2656
November 10, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
dent thereafter filed a response to Notice To Show
Cause and counsel for the General Counsel filed a
statement answering response to order.
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 this proceeding, the
Board makes the following:
Upon a charge filed on June 19, 1972, by
Lithographers & Photoengravers International Un-
ion, AFL-CIO, herein called the Union, and duly
served on Taylor Publishing Co., a Subsidiary of
Insilco, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Acting Regional Director for Region 28, issued a
complaint and amendment to complaint on July 3
and 25, 1972, respectively, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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, amendment to 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
amended complaint alleges in substance that on May
22, 1972, following a Board election in Case
28-RC-2141, the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate; 2
and that, commencing on or about June 2, 1972, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is
requesting it to do so. On or about July 14 and
August 4, 1972, respectively, Respondent filed its
answer and first amended answer to the amended
complaint admitting in part, and denying in part, the
allegations in the amended complaint.
On August 16, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 22,
1972, 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. Respon-
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 Official notice is taken of the record in the representation proceeding,
Case 28-RC-2141, as the term "record" is defined in Secs. 102 68 and
102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Elecfrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968);
Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269
Ruling on the Motion for Summary Judgment
In its answer to the amended complaint and
response to the Notice To Show Cause opposing the
General Counsel's Motion for Summary Judgment,
the Respondent contests the validity of the Union's
majority status and its certification as the exclusive
collective-bargaining representative of the employees
in the appropriate unit. The General Counsel argues
that he is entitled to have his motion granted because
the Respondent is attempting to relitigate issues
raised and determined by the Board in the underly-
ing representation case and it has not alleged newly
discovered or previously unavailable evidence or
special circumstances which would justify relitiga-
tion. We agree with the General Counsel.
The record in the representation Case 28-RC-2141
reflects that, following the issuance of the Regional
Director's Decision and Direction of Election, the
Respondent, on June 9, 1971, filed a motion to
dismiss petition and alternatively request for admin-
istrative investigation of Petitioner's showing of
interest alleging that leadmen whose supervisory
status had been in dispute had participated in the
Union's organizational campaign and engaged in
threatening and coercive conduct. The ballots cast in
the election conducted on June 10, 1971, were
impounded pending disposition of the Respondent's
motion. On June 18, 1971, the Regional Director
denied the motion and directed the ballots be
counted and tallied. The Respondent timely filed
with the Board a request for review and a stay in the
count and tally of ballots. On July 7, 1971, the Board
granted the Respondent's motion for a stay, pending
the Regional Director's ruling on the administrative
investigation of the Union's interest showing. After
his additional investigation, the Regional Director,
on July 27, 1971, ruled that the Union's showing of
interest satisfied the Board's administrative require-
ment. Accordingly, the impounded ballots were
F.Supp 573 (D.C. Va, 1967); Follett Corp., 164 NLRB 378, enfd. 397 F 2d
91 (C.A. 7, 1968), Sec. 9(d) of the NLRA. To the extent that Respondent
seeks to incorporate in the record herein documents in the Region's official
file that are not encompassed within the definition of "record" as defined in
Secs. 102.68 and 102.69(f) of the Board's Rules and Regulations, its request
is denied.
200 NLRB No. 16
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opened and counted. The tally showed that a
majority of the votes had been cast for the Union.
On August 13, 1971, the Respondent timely filed
objections which were stated in its motion to dismiss
petition and alternatively request for administrative
investigation of Petitioner's showing of interest. In
substance, the objections alleged that supervisors
engaged in preelection conduct on behalf of the
Union thereby destroying the laboratory conditions
for an election, making a fair election impossible,
and tainting the resulting tally. The Regional
Director, on September 24, 1971, issued a Supple-
mental Decision on Objections and Order Directing
Hearing on the factual and credibility issues raised
by the objections. After a hearing at which all parties
appeared and were afforded full opportunity to
participate, the Hearing Officer issued his Report
and Recommendations on Objections to Election on
February 3, 1972, in which he recommended that the
Respondent's objections be overruled in their entire-
ty and that the Union be certified. Thereafter, the
Respondent filed with the Board timely exceptions to
the Hearing Officer's Report and Recommendations
on Objections to Election. On May 22, 1972, the
Board issued its Second Supplemental Decision and
Certification of Representative in which it overruled
the Respondent's objections and certified the Union
as the exclusive bargaining representative of the
employees in the appropriate unit.
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 .3
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the 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.4
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation, which at all
times material herein has maintained its principal
office and place of business at 1550 West Mocking-
bird Lane, Dallas, Texas, and an office and place of
business at 3210 Dyer Street, El Paso, Texas, and has
been continuously engaged at El Paso and various
other facilities in several States of the United States
in the business of graphic arts and the preparation of
copy and negatives for printing school year books.
During the last calendar year, in the course and
conduct of its business operations, Respondent sold
and distributed products, the gross value of which
exceeded $500,000. During the same period of time,
Respondent sold and shipped its products, valued in
excess of $50,000, in interstate commerce directly
among and between various States of the United
States.
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
Lithographers & Photoengravers International
Union, 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 the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees
employed by the Respondent at 3210 Dyer Street,
El Paso, Texas, including production control
clerks, acting leadmen and janitors; excluding all
office clerical and professional employees, lead-
men, guards, watchmen and supervisors as
defined in the Act.
3 See Pittsburgh Plate Glass Co. v N L RB, 313 U S. 146, 162 (1941); underlying representation proceeding and the date of the election. The
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). Respondent does not contend, and we find, that the affidavit is not newly
4 Attached to the response to the Notice To Show Cause is the affidavit discovered or previously unavailable evidence or special circumstances
of the general manager of the El Paso facility dealing with the Respondent 's warranting relitigation of the previously determined issues
work force during the period between the filing of the petition in the
TAYLOR PUBLISHING CO. 221
2. The certification
On June 10, 1971, 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 28, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on May 22, 1972, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about May 27, 1972, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about June 2, 1972, and continuing at
all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since June 2, 1972, 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, Respon-
dent 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 Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a 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 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
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; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Taylor Publishing Co., a Subsidiary of Insilco,
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Lithographers & Photoengravers International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees
employed by the Respondent at 3210 Dyer Street, El
Paso, Texas, including production control clerks,
acting leadmen and janitors; excluding all office
clerical and professional employees, leadmen,
guards, watchmen 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 May 22, 1972, 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 2, 1972, 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER APPENDIX
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Taylor Publishing Co., a Subsidiary of Insilco, 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
conditions of employment with Lithographers &
Photoengravers International Union, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All production and maintenance employees
employed by the Respondent at 3210 Dyer Street,
El Paso, Texas, including production control
clerks, acting leadmen and janitors; excluding all
office clerical and professional employees, lead-
men, guards, watchmen 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 El Paso, Texas, facility copies of the
attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director
for Region 28, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous 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 28, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 Pursuant to
a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
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 Lithog-
raphers & Photoengravers International Union,
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 representa-
tive 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 agree-
ment. The bargaining unit is:
All production and maintenance employ-
ees employed by the Respondent at 3210
Dyer Street, El Paso, Texas, including
production control clerks, acting leadmen
and janitors; excluding all office clerical and
professional employees, leadmen, guards,
watchmen and supervisors as defined in the
Act.
TAYLOR PUBLISHING CO.,
A SUBSIDIARY OF
INSILCO
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 7011 Federal Building, U.S. Court-
house, P.O. Box 2146, 500 Gold Avenue SW.,
Albuquerque, New Mexico 87101, Telephone
505-843-2508.