Kenner Printing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1985

274 N.L.R.B. 935 (N.L.R.B. 1985)

KENNER PRINTING CO
Kenner Printing Company, Inc. and Local 1, Amal-
gamated Lithographers of America , Internation-
al Typographical Union , AFL-CIO. Case 2-
CA-20480
13 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union 23 July 1984,
the General Counsel of the National Labor Rela-
tions Board issued a complaint 17 August 1984
against the Company, the Respondent, alleging that
it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act.
The complaint alleges that on 22 June 1984, fol-
lowing a Board election in Case 2-RC-19604, 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 27 July 1984 the Company has re-
fused to bargain with the Union. On 21 September
1984 the Company filed its answer admitting in
part and denying in part the allegations in the com-
plaint.
On 19 December 1984 the General Counsel filed
a Motion for Summary Judgment.' On 28 Decem-
ber 1984 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.
Ruling on Motion for Summary Judgment
In its answer to the complaint, the Company
denies that the unit of employees certified in Case
2-RC-19604 is appropriate for purposes of collec-
tive bargaining, that since 22 June 1984 the Union
has been the exclusive representative of the unit,
and that its failure and refusal to recognize or bar-
gain with the Union violates the Act. In its answer,
the Company also contends that the complaint fails
to state a claim on which relief can be granted.
In its response to the Notice to Show Cause, the
Company asserts it refused to bargain with the
Union because, it contends, the Board erred by (a)
' On 25 September 1984 the Acting General Counsel filed a Motion
for Summary Judgment based on the Respondent's failure to file an
answer to the complaint On 9 October 1984 the General Counsel re-
quested withdrawal of its motion, submitting that the Respondent had
filed an answer to the complaint By Order of 11 October 1984, the
Board granted the General Counsel's request
935
including Jose Castellanos in the bargaining unit
and (b) finding the representative election valid and
failing to set it aside, and because the Region never
determined if seven production employees are in-
cluded in the appropriate unit. The General Coun-
sel asserts that the Company seeks to relitigate
issues that were or could have been raised and de-
cided in the representation case. She further asserts
that the Company's contention that the complaint
fails to state a claim on which relief can be granted
is without merit. We agree with the General Coun-
sel.
Our review of the record, including the record
in Case 2-RC-19604, reveals that pursuant to a
Stipulated Election Agreement, an election was
conducted on 21 October 1983 among employees
in the stipulated unit . The tally of ballots showed
that of approximately 28 eligible voters, 13 cast
ballots for, and 4 against , union representation,
with 10 challenged ballots. The challenged ballots
were sufficient to affect the election. The Regional
Director directed a hearing on the challenged bal-
lots and on an objection the Company filed. In her
Report on Challenges and Objections, the hearing
officer recommended overruling the Company's
objection and the Board's challenge to the ballot of
Jose Castellanos, and opening and counting Castel-
lanos' ballot with a certification of representative
to issue if the ballot were cast for the Union. She
further recommended that if the remaining chal-
lenged ballots became determinative because Cas-
tellanos' ballot did not decide the election, a
second hearing be held before a different hearing
officer to determine the parties' intent as to wheth-
er the production employees are included in the
stipulated unit. The Company filed exceptions to
certain parts of the hearing officer's report, but it
did not except to her recommendation on the pro-
cedure to be followed concerning the challenges to
the ballots of the production employees. On 30
May 1984 the Board issued its Decision and Direc-
tion (not reported in Board volumes) in which it
adopted the hearing officer's Report on Challenges
and Objections and directed the Regional Director
to open and count the ballot of Jose Castellanos,
prepare a revised tally of ballots and, if the remain-
ing challenged ballots are no longer determinative,
issue the appropriate certification. The Regional
Director complied with the Board's Direction and,
on 22 June 1984, issued his Certification of Repre-
sentative certifying that a majority of valid ballots
were cast in favor of the Union.
It thus appears that the Company is attempting
to raise issues which were or could have been
raised in the underlying representation case.
274 NLRB No. 138
936 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
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 Glass Co. v. NLRB, 313 U.S. 146, 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. Accordingly,
we grant the Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, a domestic corporation, provides
offset printing services to commercial customers at
its facility in New York, New York, where it annu-
ally purchases and receives products, goods, and
materials valued in excess of $50,000 from other
enterprises located within the State of New York,
which enterprises, in turn, each receive the prod-
ucts, goods, and materials directly from points out-
side the State of New York. We find that the Com-
pany 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
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 21 October 1983 the
Union was certified on 22 July 1984 as the collec-
tive-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time pressmen,
operators, sample pickers, cutters, paper-
handlers, rule-out men, handymen, shippers,
press cleaners, folders, and production employ-
ees employed by the Company at its facility
located at 418 West 25th Street, New York,
New York, excluding all other employees,
guards and supervisors as defined in the Act.
The Union continues to be the exclusive repre-
sentative under Section 9(a) of the Act.
B Refusal to Bargain
Since 27 July 1984 the Union has requested the
Company to bargain, and since 27 July 1984 the
Company has refused. 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 27 July 1984 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).
ORDER
The National Labor Relations Board orders that
the Respondent, Kenner Printing Company, Inc.,
New York, New York, its officers, agents, succes-
sors, 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
bargaining representative of the employees in the
bargaining 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.
KENNER PRINTING CO
(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 full-time and regular part-time pressmen,
operators, sample pickers, cutters, paper-
handlers, rule-out men, handymen, shippers,
press cleaners, folders, and production employ-
ees employed by the Company at its facility
located at 418 West 25th Street, New York,
New York, excluding all other employees,
guards and supervisors as defined in the Act.
(b) Post at its facility at 418 West 25th Street,
New York, New York, copies of the attached
notice marked "Appendix."2 Copies of the notice,
on forms provided by the Regional Director for
Region 2, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees 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.
z 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
937
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 full-time and regular part-time pressmen,
operators, sample pickers, cutters, paper-
handlers, rule-out men, handymen, shippers,
press cleaners, folders, and production employ-
ees employed by the Employer at its facility
located at 418 West 25th Street, New York,
New York, excluding all other employees,
guards and supervisors as defined in the Act.
KENNER PRINTING COMPANY, INC.