Koyal Press, Inc.

National Labor Relations Board - Board Decisions

May 4, 1979

241 N.L.R.B. 1261 (N.L.R.B. 1979)

KOVAL PRESS, INC.
Koval Press, Inc. and Local One Amalgamated Lith-
ographers of America a/w International Typo-
graphical Union, AFL-CIO. Case 22-CA 8733
May 4, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING; AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on September 28, 1978, by Lo-
cal One, Amalgamated Lithographers of America,
a/w International Typographical Union, AFL-CIO,
herein called the Union, and duly served on Koval
Press, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 22, issued a com-
plaint on October 27, 1978, against Respondent, al-
leging that Respondent had engaged in, and was en-
gaging 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 Administrative Law
Judge were duly served on the parties to this proceed-
ing.
With respect to the unfair labor practices, the com-
plaint alleges that on September 11, 1978, following a
Board election in Case 22-RC-7411, 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 September 20, 1978, and at all times thereafter,
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
November 16, 1978, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint. Specifically, Respon-
dert's answer denies that a majority of the employees
in the appropriate unit selected the Union as their
exclusive bargaining representative in the April 7,
1978, election, and that the Board certified the Union
as the exclusive bargaining representative on Septem-
ber 11, 1978. Respondent also denies the Union's bar-
gaining request on September 13, 1978, its own re-
fusal to bargain on September 20, 1978, and that the
I Official notice is taken of the record in the representation proceeding,
Case 22-RC-7411, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosysemrs, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follerr Corp. 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 1968); Sec
9(d) of the NLRA, as amended
Union has been, and is now, the exclusive representa-
tive in the unit found to be appropriate. Finally, Re-
spondent denies the conclusionary allegations that it
acted unlawfully in refusing to recognize and bargain
with the Union.2
On December 4, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 12,
1978, the Board issued an order transferring the pro-
ceeding to the Board, as well as a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter 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 for Summary Judgment
As indicated above, Respondent's answer admits,
in part, and denies, in part, the allegations of the
complaint. In response to the Notice To Show Cause,
Respondent contends that it is a waste of time and
money for the Board to consider this proceeding be-
cause it already has agreed to sign a proposed settle-
ment agreement and is complying with the terms of
that agreement. The General Counsel contends that
Respondent's answer places in issue, without color-
able legal or factual basis, those allegations of the
complaint that assert the sufficiency of the certifica-
tion in establishing the Union as the exclusive bar-
gaining representative in the appropriate unit and al-
legations that Respondent has violated Section 8(a)(l)
and (5) of the Act. The General Counsel further con-
tends that all material factual issues have been de-
cided previously by the Board, are admitted in Re-
spondent's answer, or are proven by exhibits annexed
to the Motion for Summary Judgement. We agree
with the General Counsel.
Our review of the record herein reveals that, pursu-
ant to a Stipulation for Certification Upon Consent
Election in Case 22-RC-741 1, an election was held
on April 7, 1978, in the appropriate unit. The tally
was three for, and two against, the Petitioner. There
was one challenged ballot. On May 12, 1978, the Act-
ing Regional Director issued his Report on Chal-
lenged Ballots in which he recommended that the
challenge to the ballot of William A. Marucci be
overruled; the ballot be opened and counted; and a
2 In its answer. Respondent admits that Hugh Husband acted as its legal
counsel in this proceeding and in the representation proceeding, but denies
that he has been, or is now, an agent of Respondent acting on its behalf
241 NLRB No. 189
1261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
revised tally be issued. Respondent filed exceptions to
the Report on Challenged Ballots with the Board. On
August 25, 1978, the Board issued a Decision and
Direction in which it adopted the Regional Director's
findings and recommendations. The revised tally of
ballots showed four for, and two against, the Peti-
tioner. On September 11, 1978, the Board issued the
Certification of Representative, thereby certifying the
Union as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the unit
found to be appropriate.
On September 13, 1978, the Union requested Re-
spondent to bargain collectively with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment.' On September 20,
1978, Respondent refused to recognize and bargain
with the Union as the exclusive collective-bargaining
representative of the employees in the certified bar-
gaining unit. 4
In response to a Motion for Summary Judgment,
an adverse party may not rest upon denials in its
pleadings, but must present specific facts which re-
quire a hearing.5 Although Respondent has denied
certain allegations of the complaint, as described
above, it has not set forth specific facts showing that
there is a genuine issue for hearing.6 In these circum-
stances, we are satisfied that there are no material
facts in dispute which require a hearing.
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
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.
In support of this allegation, the General Counsel provided a copy of the
letter from Union Vice President Eugene A. Burke to Mr. William A. Kop-
per, president of Respondent. dated September 13, 1978 (G.C Exh. I).
4 In support of this allegation, the General Counsel provided a copy of the
letter from Hugh Husband, Respondent's counsel, to Mr. Burke, dated Sep-
tember 20. 1978 (G.C. Exh. 2).
Peerless of America, Inc., 229 NLRB 183 (1977).
6 As to Respondent's assertion that it is a waste of time and money for the
Board to consider this proceeding, supra., we note that Respondent has not
amended its answer to admit the allegations which, on the record before us,
stand denied.
'See Pittsburgh Plate Glass Cao. v. N.L.R.B. 313 U.S. 146, 162 11
9 41):
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the*Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDEN'I
Respondent is, and has been at all times material
herein, a corporation duly organized under, and exist-
ing by virtue of, the laws of the State of New Jer-
sey. At all times material herein, Respondent has
maintained an office and plant at 75 Armour Place,
Dumont, New Jersey, and is now, and at all times
material herein has been, continuously engaged at
said plant in the performance of printing services. In
the course and conduct of Respondent's business op-
erations during the preceding fiscal year, said opera-
tions being representative of its operations at all times
material herein, Respondent derived revenues in ex-
cess of $50,000 from sales to customers located in the
State of New Jersey who, in turn, received goods val-
ued in excess of $50,000 from outside New Jersey.
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.
11. THE LABOR ORGANIZATION INVOLVED
Local One, Amalgamated Lithographers of Amer-
ica a/w International Typographical Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICFS
A. The Representlation Proceeding
I. 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 lithographic production employees, including
all lithographic cameramen, strippers, plate-
makers, and pressmen employed by Respondent
at its 75 Armour Place, Dumont, New Jersey,
facility, but excluding all office clerical employ-
ees, collators, bindery employees, drivers, cut-
ters, salesmen, professional employees, guards
and supervisors as defined in the Act, and all
other employees.
1262
KOVAL PRESS. INC.
2. The certification
On April 7, 1978, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 22, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on September 11, 1978, and the Union con-
tinues to be such an 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 September 13, 1978, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about September 20, 1978, and continuing at all
times thereafter to date, Respondent has refused, and
continues 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
September 20, 1978, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(a)(5) and (I) of
the Act.
IV. THE EFFECT OF 'IHE UNFAIR LABOR PRACTICES
UIPON COMMERCE
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. rtHL 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 (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 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 Company, Inc., 136 NLRB
785 (1962); Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964): Burnett
Construction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965).
In its Motion for Summary Judgment, the General
Counsel contends that Respondent's answer to the
complaint raises defenses which are clearly without
merit. For this reason, the General Counsel seeks cer-
tain remedies in addition to the above conventional
remedy for violations of Section 8(a)(5) of the Act.
Respondent opposes these additional remedies in its
response to the Notice To Show Cause.
We agree with the General Counsel that Respon-
dent's defenses to the 8(a)(5) charge herein are with-
out merit and can only be characterized as patently
frivolous. In its answer, Respondent denies, inter alia,
the appropriateness of the unit, that a majority of
employees voted for Petitioner, and that the Board
issued a Certification of Representative. In this re-
gard, the record demonstrates that Respondent stipu-
lated to the unit description in the underlying repre-
sentation proceeding, and that the only issue
contested by Respondent in that proceeding was the
employee status of William A. Marucci. 8 Had the
Board found Marucci to be a supervisor within the
meaning of the Act and sustained the challenge to his
ballot, as urged by Respondent, the election outcome
would not have been altered, since the Petitioner still
would have received a majority of the valid ballots
cast. Respondent's denial that the Board issued a Cer-
tification of Representative defies reality. It is thus
apparent that Respondent is merely resting on denials
in its pleadings-frivolous denials at that-without
setting forth specific facts showing that there is a
genuine issue for hearing.9 The only logical inference
to be drawn is not that Respondent seeks to raise
legitimate issues, but that it seeks to delay the proper
effectuation of the policies of the Act by its unlawful
refusal to bargain with the duly elected bargaining
" The Board agent challenged Marucci's hallot because his name did not
appear on the list of eligible voters. Respondent tk the position that the
challenge to Marucci's ballot should be sustained because Marucci was a
supervisor within the meaning of the Act. The Respondent telk exception to
the Acting Regional )irector's Rep ort on Challenged Ballots which found
Marucci not to be a supervisor and recommended that the challenge to his
ballot be overruled. The Board subsequently adopted the Acting Regional
Director's findings and recommendations
' See Peerlev oJ'.Amneriia, Inc., at fn 5. supra
1263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of its employees. In view of the facts of
this case, we deem it necessary to order the remedial
measures sought by the General Counsel, as set forth
in Tiidee Products, Inc., 194 NLRB 1234 (1972), and
John Singer, Inc., 197 NLRB 88 (1972). Such mea-
sures are necessary to discourage future frivolous liti-
gation, to effectuate the policies of the Act, and to
serve the public interest.
Accordingly, we shall order the Respondent to re-
imburse the Board and the Union for expenses in-
curred in the investigation, preparation, presentation,
and conduct of this case, including but not limited to
the following: reasonable attorneys' fees, salaries, rec-
ord costs, printing costs, travel expenses, and per
diem. In addition, to overcome the deleterious effect
of the substantial delay to the commencement of
meaningful collective bargaining occasioned by Re-
spondent's frivolous litigation, we deem it necessary
and proper that, in the exercise of its statutory role,
the Union be permitted to communicate freely with
Respondent's employees through the use of Respon-
dent's bulletin boards and other places where notices
to employees are customarily posted; such access is to
continue throughout the period of collective-bargain-
ing negotiations. Furthermore, in order to permit the
Union to fulfill its statutory role and to assure an
opportunity for full participation in the bargaining
process, we also find it necessary to require Respon-
dent to provide the Union with a correct list of names
and addresses of its employees, and that the list be
kept current for a period of I year from the time
Respondent commences to bargain in good faith.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Koval Press, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local One, Amalgamated Lithographers of
America a/w International Typographical Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All lithographic production employees, includ-
ing all lithographic cameramen, strippers, plate-
makers, and pressmen employed by Respondent at its
75 Armour Place, Dumont, New Jersey, facility, but
excluding all office clerical employees, collators, bind-
ery employees, drivers, cutters, salesmen, professional
employees, guards and supervisors, as defined in the
Act, and all other employees constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since September 11, 1978, the above-named la-
bor 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 September 20, 1978,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(l) 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, Ko-
val Press, Inc., Dumont, New Jersey, 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 One, Amalga-
mated Lithographers of America a/w International
Typographical Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All lithographic production employees, including
all lithographic cameramen, strippers, plate-
makers, and pressmen employed by Respondent
at its 75 Armour Place, Dumont, New Jersey,
facility, but excluding all office clerical employ-
ees, collators, bindery employees, drivers, cut-
ters, salesmen, 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-
1264
ARIGA TEXTILE CORP.
ing is reached, embody such understanding in a
signed agreement.
(b) Pay to the Board and the Union the costs and
expenses incurred by them in the investigation, prep-
aration, presentation, and conduct of the case before
the National Labor Relations Board, such costs to be
determined at the compliance stage of this proceed-
ing.
(c) Upon request of the Union, immediately grant
the Union and its representatives reasonable use of its
bulletin boards and all places where notices to em-
ployees are customarily posted, such access to con-
tinue through the period of the collective-bargaining
negotiations.
(d) Upon request of the Union, immediately make
available to the Union a list of names and addresses
of all employees currently employed and keep such
list current for a period of I year following the com-
mencement of good-faith bargaining with the Union.
(e) Post at its Dumont, New Jersey, facility copies
of the attached notice marked "Appendix."' ° Copies
of said notice, on forms provided by the Regional
Director for Region 22, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and shall
be maintained by it for 60 consecutive days there-
after, 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 by any other material.
(f) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
g0 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 Judg.
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
U.S. Govrnrment Printing Office: 1980-295-714/101
APPENDIX
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
with regard to rates of pay, wages, hours, and
other terms and conditions of employment with
Local One, Amalgamated Lithographers of
America a/w International Typographical
Union, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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 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 lithographic production employees, includ-
ing all lithographic cameramen, strippers,
platemakers, and pressmen employed at our
75 Armour Place, Dumont, New Jersey, facil-
ity, but excluding all office clerical employees,
collators, bindery employees, drivers, cutters,
salesmen, professional employees, guards and
supervisors as defined in the Act, and all other
employees.
WE WILI. reimburse the Union and the Na-
tional Labor Relations Board's General Counsel
for their costs and expenses in connection with
this proceeding.
WE WILL, upon request, grant the Union and
its agents reasonable use of our bulletin boards
and other places where notices to employees are
posted during negotiations.
WE WILL, upon request, give the Union a list
of names and addresses of employees currently
employed and keep that list current for a period
of I year from the commencement of negotia-
tions.
KOVAL PRESS, INC.
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