Kable Printing Co.

National Labor Relations Board - Board Decisions

Aug 3, 1979

243 N.L.R.B. 1056 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kable Printing Company, a wholly owned subsidiary of
Western Publishing Company, Inc.' and Local
91-P, Graphic Arts International Union, AFL-CIO.
Case 33 CA-4225
August 3, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PEN1E.l.O
AND MURPtHY
Upon a charge filed on April 11, 1979, by Local
91-P, Graphic Arts International Union, AFL CIO,
herein called the Union, and duly served on Kable
Printing Company, a wholly owned subsidiary of
Western Publishing Company, Inc., herein called Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
33, issued a complaint on April 13, 1979, against Re-
spondent, 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 adminis-
trative 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 on March 14, 1979,
following a Board election in Case 33-RM 118,2 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate,; and that, commencing
on or about March 16, 1979, and at all times there-
after, and particularly by letter dated March 27, 1979,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
April 19, 1979, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On May 9, 1979, counsel for the General Counsel
All prior cases named Respondent as Kable Printing Company.
I On August I. 1978, the General Counsel of the National Labor Relations
Board transferred this case from the former Subregion 38 to its newly cre-
ated Region 33 and changed its case number from 38 RM 118 to 33 RM
118.
'Official notice is taken of the record in the representation proceeding
Case 33 RM 118. as the term "record" is defined in Secs. 102.68 and
1
02.69(g) of the Board's Rules and Regulations. Series 8, as amended. See
LTV Electrosstes, Inc.. 166 NI.RB 938 (1967). enfd. 388 F.2d 683 (4th Cir
1968); Golden Age Beverage (o, 167 NI.RB 151 (1967). enfd. 415 F.2d 26
(5th (ir. 1969): Imnert'pe Co v. Penello, 269 F.Supp. 573 (DCVa. 1967):
Follett C(orp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir 1968); Sec
9(d) of the NLRA as amended
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 22, 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 hereafter filed a response to
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 fir Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause. Respondent admits that it
has refused to bargain as alleged but attacks the
Union's certification on the ground that it is based
upon a revised tally of ballots which improperly in-
cluded a determinative number of votes cast by for-
mer employees of Respondent whose jobs had been
permanently abolished by changes in Respondent's
operating procedure and by the introduction of' new
and automated equipment which eliminated any rea-
sonable prospect of their reemployment in the unit in
the foreseeable future. Counsel for the General Coun-
sel argues that there are no matters warranting a
hearing because the issues concerning the Union's
certification were litigated and determined in the rep-
resentation case. We agree with the General Counsel.
A review of the record herein, including the record
in Case 33-RM-118, indicates that upon a petition
duly filed under Section 9(c) of the Act a hearing was
held before Hearing Officer Ira S. Epstein. Following
the hearing, and pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions and Statements of Procedure. Series 8, as
amended, the case was transferred to the Board for
decision. On September 29, 1978. the Board (Member
Murphy dissenting) issued a Decision and Direction
of Election in the unit found appropriate.4 In its Deci-
sion, the Board found that the jobs of the approxi-
mately 113 economic strikers involved in the case had
not been permanently abolished and that the strikers
remained employees for the purpose of voting in the
directed election. In so deciding, the Board refused to
allow Respondent to use evidence, previously with-
held by Respondent, to disenfranchise the striking
employees by asserting that its new cylinder-engrav-
ing system extinguished any reasonable expectancy of'
future employment for those employees. On October
27 and 28, 1978, pursuant to the Board's direction, an
'238 NRB 1092.
243 NLRB No. 167
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KABLE PRINTING COMPANY
election by secret ballot was conducted under the su-
pervision of the Regional Director for Region 33. The
tally of ballots showed I for and 4 against the Union:
there were 65 challenged ballots, a sufficient number
to affect the results. No objections to the conduct of
the election or to the conduct affecting the results of
the election were timely filed by the parties. On De-
cember 1., 1978. the Regional Director issued a Re-
port on Challenged Ballots, wherein he recommended
that Respondent's challenges to the ballots of 45
striking employees be overruled,5 finding that these
employees were among the 113 strikers whom the
Board found to be eligible voters in its Decision and
Direction of Election, and that the arguments raised
by Respondent's challenges to the ballots of these em-
ployees had been considered by the Board in its Deci-
sion. The Regional Director further recommended
that a hearing be held to resolve the issues raised by
the challenges to 7 ballots of striking employees and
II ballots of nonstriking employees in the event the
revised tally of ballots showed that these ballots were
determinative. Respondent filed timely exceptions to
the Regional Director's report. contending that its
challenges to the ballots of 52 striking employees
should be sustained or in the alternative. a hearing
should be held to determine whether. in view of Re-
spondent's changes in methods of operation. any of'
those strikers had a reasonable expectancy of reem-
ployment in the unit at the time of the election. In
this connection, Respondent argued that the Regional
Director incorrectly determined that the Board, in its
preelection Decision, foreclosed consideration, at the
postelection stage of the case, of evidence regarding
Respondent's cylinder-engraving system. On Febru-
ary 27, 1979, the Board (Member Murphy dissenting
in part) issued a Decision and Direction.6 adopting
the Regional Director's findings and recommenda-
tions. On March 8, 1979, those ballots the challenges
to which were overruled were opened and counted,
and a revised tally of ballots was issued showing 46
for, and 5 against, the Union; there were 18 nondeter-
minative challenged ballots, a number insufficient to
affect the results. On March 14, 1979, the Regional
Director issued a Certification of Representative.
It is well settled that in the absence of newly dis-
covered 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.7
I The Regional Director also recommended that the challenged ballot of a
nonstriking employee be overruled.
6 Not reported in bound volumes of Board Decisions.
'See Pittsburgh Plate Glass Co. v. NL RB.. 313 U.S. 146. 162 (1941):
Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c).
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion tbr Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINI)INGS OF FA(I
I. HIF BUSINESS OF RESI'ONI)FNI
Respondent is an Illinois corporation with its office
and place of business located at Mt. Morris. Illinois,
where it is engaged in the business of printing maga-
zines, catalogues, and other related items. During the
preceding 12 months, Respondent sold and shipped
from its Mt. Morris. Illinois, facJlity. products valued
in excess of $50,000 to points outside the State of
Illinois, and received goods and materials valued in
excess of $50,000 from points outside the State of Illi-
nois.
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 ORGANIZATION INVOI.VED
Local 91-P. Graphic Arts International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
II111. THE UNFAIR ABOR PRA(II(ES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All employees performing any of the following
work: all work, processes, operations and pro-
1057
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ductions directly related to lithography, offset
(including dry or wet), photoengraving, intaglio,
and gravure methods of printing (excluding pro-
duction presswork) employed by the Employer
at its plant located at 404 N. Wesley Avenue,
Mt. Morris, Illinois; but excluding all office cleri-
cal employees, professional employees, guards
and supervisors as defined in the Act and all
other employees.
2. The certification
On October 27 and 28, 1978, a majority of the em-
ployees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the Re-
gional Director for Region 33, designated the Union
as their representative for the purpose of collective
bargaining with Respondent. The Union was certified
as the collective-bargaining representative of the em-
ployees in said unit on March 14, 1979, 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 Respondlents Refisal
Commencing on or about March 16, 1979. and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about March 16, 1979, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues 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
March 16, 1979, 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 en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (I) of the
Act.
IV. THE EFFE(T OF 'THE UNFAIR LABOR PRA(C'I('ES
UPON iCOMMER('E
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, 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. T'HE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (I) 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultrn Compan,, Inc., 136 NLRB
785 (1962): Commerce Compan y d/hba Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964). cert. denied 379 U.S. 817: Burnett Con-
struction Company.v, 149 NLRB 1419. 1421 (1964).
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing acts
and the entire record, makes the following:
CONI.USIONS o() LAW
I. Kable Printing Company. a wholly owned sub-
sidiary of Western Publishing Company, Inc.. is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local 91-P, Graphic Arts International Union,
AFL CIO. is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All employees performing any of the following
work: all work. processes, operations, and produc-
tions directly related to lithography., offset (including
dry or wet), photoengraving, intaglio. and gravure
methods of printing (excluding production presswork)
employed by the Employer at its plant located at 404
N. Wesley Avenue. Mt. Morris, Illinois: but exclud-
ing all office clerical employees, professional employ-
ees, guards and supervisors as defined in the Act and
all other employees, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since March 14, 1979, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about March 16, 1979, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
1058
KABIlF. PRINTING ('OMPANY
spondent in the appropriate unit, Respondent has en-
gaged 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 Sec-
tion 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)( I) 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.
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.
Kable Printing Company, a wholly owned subsidiary
of Western Publishing Company. Inc., Mt. Morris.
Illinois, 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 con-
ditions of employment with Local 91- P, Graphic Arts
International Union, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate unit:
All employees performing any of the following
work: all work, processes, operations and pro-
ductions directly related to lithography, offset
(including dry or wet), photoengraving. intaglio,
and gravure methods of printing (excluding pro-
duction presswork) employed by the Employer
at its plant located at 404 N. Wesley Avenue,
Mt. Morris, Illinois: but excluding all office cleri-
cal employees, professional employees, guards
and supervisors as defined in the Act and all
other employees.
(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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its plant located at Mt. Morris, Illinois,
copies of the attached notice marked "Appendix.'
Copies of said notice, on forms provided by the Re-
gional Director for Region 33. after being duly signed
b3 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 b an
other material.
(c) Notify the Regional Director for Region 33. in
writing, within 20 days from the date of this Order.
what steps have been taken to compl herewith.
Mt:NlBiR MtiRPHY. dissenting:
I decline to take the final step on the path fltlowed
by my colleagues which, as I predicted, has led to a
predictable and totally unsupportable result.
In the underlying representation case herein. I did
not join m colleagues in the adoption of the Re-
gional Director's recommendation that the challenges
to the ballots of 45 of the strikers be overruled and
counted, and that a hearing be held to resolve the
issues raised by the challenges to the ballots of 7 strik-
ers in the event they remained determinative. Instead,
I would have sustained the challenges to the ballots of
these 52 strikers, inter izliil, and would have issued a
certification of results of election based upon the valid
votes cast. 1'herefore. I would deny the General
Counsel's Motion lfor Summary Judgment here. My
colleagues' decision to the contrary permits. as I
feared. the ghosts of a multitude who have remained
outside the employment relationship for more than 4
years, and are likely to so remain, to determine the
mode of' industrial life for the few who live within it.
See Kablhl Printing ('orpatr. 238 NLRB 1092 (1978).
In the eent that thi, Order is enforced hb a Judgment ofIa Ulnited States
Court of Appeals. he words n the notice reading "Posted b Order of the
National l.aN)r Relations Board" shall read "Posted Pursuant to) a Judgment
of the United States Court of Appeals Entorcing an Order ,I' the National
I.abor Relations Board'
APPENDIX
NOI(CE To EMPI.()YEES
POSTE) BY ORI)DE-R OF THlE
NAIIONAI. LABOR REIArI()ONS BOARD
An Agency of the United States Government
WE Wii.l NO'I refuse to bargain collectively
concerning rates of pay. wages, hours, and other
terms and conditions of employment with Local
91-P. Graphic Arts International Union, AFL
C('IO, as the exclusive representative of the em-
ployees in the bargaining unit described below.
1059
DE(ISIONS OF NAIIONAL I.ABOR RELATIONS BOARD
W: WIll. Nr 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.
WF wi.L., upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed 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
agreement. The bargaining unit is:
All employees performing any of the following
work: all work, processes. operations and pro-
ductions directly related to lithography., oset
(including dry or wet), photoengraving. intag-
lio, and gravure methods of printing (exclud-
ing production presswork) employed by the
Employer at its plant located at 404 N. Wesley
Avenue, Mt. Morris, Illinois: but excluding all
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act and all other employees.
KABLE PRINTING COMPANY. A Wll()..LY
OWNED SUBSIDIARY ()I WtSI'IRN PBILISII-
ING COMPANY, IN(.
1060