National Press, Inc.

National Labor Relations Board - Board Decisions

Apr 19, 1979

241 N.L.R.B. 1000 (N.L.R.B. 1979)

DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
National Press, Inc. and Graphic Arts International
Union, AFL-CIO, Local 86B. Case 13-CA-18108
April 19, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
Upon a charge filed on October 11, 1978, by
Graphic Arts International Union, AFL-CIO, Local
86B, herein called the Union, and duly served on Na-
tional Press, Inc., herein called Respondent, the Gen-
eral Counsel of the National Labor Relations Board,
by the Regional Director for Region 13, issued a com-
plaint on October 31, 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 (I) 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, in substance, that on June 12, 1978,
following a Board election in Case 13 RC-14662 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 August 23, 1978, and at all times there-
after, Respondent has refused, and continues to date
to refuse, 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 10, 1978, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On November 24, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 7,
1978, the Board issued an Order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause and
the Charging Party filed Charging Party's reply to
Respondent's opposition to Notice To Show Cause.
Official notice is taken of the record in the representation proceeding.
Case 13 RC- 14662. as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations. Series F. as amended. See
LTV Electro-Sysisems In(. 16 NI.RB 938 1967). enfd. 388 F.2d 638 (4th
('ir. 1968): Golden Age Beverage (rI 167 NI.RB 151 (1967). enfd. 415 .2d
26 (5th (ir. 1969); Interype (Co. v. Penelli,. 269 1 Supp. 573 DI('. Va..
1967); Follel Corp. 164 NLRB 378 (1967), enfd. F 2d 91 (7th ('lr 1968:
Sec. 9(d) of the NI.RA, as amended.
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
In its answer to the complaint and response to the
Notice To Show Cause, Respondent contends that af-
ter two negotiating sessions it was justified in sus-
pending bargaining with the Union in the appropriate
unit herein because of the unit clarification petition
filed by the Union in Case 13-UC-113 concerning
the status of 13 department heads. Respondent argues
that since the Union's petition for unit clarification
seeks to increase substantially the size of the unit2 and
dramatically change Respondent's supervisory struc-
ture, further bargaining would be inappropriate or
impractical until after the Board resolves the unit
clarification issue now before it.
Counsel for the General Counsel contends that Re-
spondent's contentions concern clearly collateral liti-
gation, and the pending of such collateral litigation
does not constitute a defense to a refusal to bargain,
citing Porta-Kamp Manufacturing Company, 189
NLRB 899 (1971). We agree with the General Coun-
sel.
A review of the record herein, including the record
in Case 13-RC-14662, shows the following: on Feb-
ruary 2, 1978, the Union filed a petition seeking certi-
fication as the collective-bargaining representative of
Respondent's office clerical employees.3 A hearing
was held on February 21, 1978. On April 21. 1978,
the Regional Director issued a decision and direction
of election in which the appropriate unit for collective
bargaining was found to consist of all office clerical
employees employed by the Employer at its facility
located at 1445 11th Street, Waukegan, Illinois; but
excluding all watchmen, employees represented by la-
bor organizations in other bargaining units, and su-
pervisors as defined in the Act. On May 3, 1978, the
Union filed with the Board "Petitioner's Request for
Review of Regional Director's Decision" which
sought review of the Regional Director's finding in
Case 13-RC 14662 that 13 department heads were
supervisors within the meaning of the Act. On May
I In its answer to the complaint Respondent asserted that a unit clarifica-
tain to include department heads would increase the size of the unit by 25
percent. In its response to the Notice o Show Cause. Respondent acknowl-
edges that the facts in the record show the increase would be 17 percent.
(I he difference. according to Respondent, was a slight decrease n the unit at
the time the answer was filed.)
O()n FehruarN 6, 1978, the Union also filed a petition n (ase 13 R(-
14665 seeking a union ff custodial and maintenance employees hat unit is
not inivolved in this proceeding.
241 NLRB No. 157
1000
NATIONAL PRESS. INC.
22, 1978, the Board, although denying review, found
that the issue of the supervisory status of the depart-
ment heads could best be resolved through the chal-
lenge procedure and therefore directed that the 13
department heads be allowed to vote under challenge.
On June 2, 1978, an election by secret ballot was con-
ducted under the direction and supervision of the Re-
gional Director. The vote was 44 for Petitioner and 5
against with 10 challenged ballots. On June 12, 1978,
the Regional Director issued a Certification of Repre-
sentative certifying the Union as the collective-bar-
gaining representative of Respondent's employees in
the appropriate unit herein. On July 6. 1978. Respon-
dent and the Union commenced bargaining concern-
ing the unit employees. On July 18, 1978, the Union
filed a unit clarification petition in Case 13-UC- 113
seeking to clarify the unit with respect to the status of
the aforementioned department heads. On August 23,
1978, Respondent suggested by letter that bargaining
in this unit be deferred until the issue raised by the
unit clarification petition was resolved. On August 26,
1978, the Union demanded negotiations as "to the
employees who are indisputedly in the unit." On Au-
gust 30, 1978, Respondent sent the Union a letter de-
clining to bargain with regard to the clerical unit until
the unit clarification petition was decided.
In its defense to the complaint allegations Respon-
dent does not raise any material issues of fact which
would warrant a hearing. Thus, it does not dispute
the appropriateness of the unit involved or that the
Union has been designated by a majority of the em-
ployees therein in the Board-conducted election
which led to the Union's certification in the underly-
ing representation matter. Nor does it claim that the
votes of the 13 department heads whose placement is
in dispute in the unit clarification proceeding could
have affected the results of that election. Rather, as
noted previously, Respondent seeks to justify its re-
fusal to deal with the Union solely on the grounds
that further bargaining would not be appropriate or
practical until the unit clarification petition is re-
solved.
The Board has long held that where, as here, a
union has demonstrated its majority and a question
of unit placement of certain individuals is still unre-
solved, the final resolution of that question does not
affect the basic appropriateness of the certified unit,
the union's majority, or the obligation of the parties
to bargain with respect to that unit.4 Thus, the Board
has stated that, "where, during the course of bona
fide collective bargaining, the parties are unable to
resolve [unit placement] issues in conformity with the
Act and the Board's decisions thereunder. then either
iSee MaU Dparten .Storr (onmpan. 186 Nl.RB 86 87. In 5 (1970) See
als.o 'far Salle. Inc. 173 Nl.RB 429. 430 11968)
one or both have a continuing right to seek clarifica-
tion from the Board. The availability of such recourse
is not, of course, to be construed as a license for the
abandonment of orderly collective bargaining on all
other points that may then be open before the par-
ties."' We perceive no reason to depart from this
stated policy and principle. The only added factor
here is that one of the parties, the Union, has actually
sought unit clarification to resolve the question of the
unit placement of the 13 department heads while ne-
gotiations were in progress. That additional fact does
not provide Respondent with any more right to refuse
to bargain with the Union concerning the acknowl-
edged unit employees than if the Union had not
raised the unit clarification issue until after an agree-
ment was reached. This is so because most, if not all,
of the issues pertaining to the terms and conditions of
employment of the unit employees are unrelated to
the matter of the 13 department heads and thus can
be resolved without regard to that matter. Conse-
quently, the unresolved status of the department
heads does not prevent meaningful bargaining from
occurring. Furthermore, even related bargainable
matters, if such matters exist, would be subject to
resolution if the parties were to meet and bargain. But
by foreclosing bargaining Respondent has prevented
agreement on any issues.6 We find, therefore, that the
filing of the unit clarification petition and the issue it
raises do not justify Respondent's refusal to bargain
with the Union in the appropriate certified unit, and
further, that such refusal is in violation of Section
8(a)(1) and (5) of the Act. Accordingly. we grant the
General Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. IHE BUSINESS OF RESPONDENT
Respondent. National Press, Inc., an Illinois corpo-
ration, has its principal place of business at 1445 1 Ith
Street, Waukegan, Illinois, where it is now, and at all
times material herein, has been engaged in the busi-
ness of the printing and distribution of stationery and
related materials. During the past calendar or fiscal
year, a representative period, Respondent, in the
course and conduct of its business, shipped goods val-
ued in excess of $50,000 from its Waukegan, Illinois.
facility to points located outside the State of Illinois.
I tIouson (hroni-le Pubishing Compan,. 130 NI.RB 1243. 1245 (1961)
t Respondent seeks to make much of the magnitude of the percentage of
the unil In issue While the tlcltor may increase the number of issues which
aire aflected. it des not change the lit that there are unaffected issues and
esen affected issue, which ould he subject to resolution if bargaining takes
place
1001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent admits, and we find, on the basis of the
foregoing, that Respondent is, and has been at all
times material herein, an employer engaged in com-
merce 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
Graphic Arts International Union, AFL-CIO, Lo-
cal 86B, 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 Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All office clerical employees employed by Re-
spondent at its facility located at 1445 11 Ith
Street, Waukegan, Illinois; but excluding all
watchmen, employees represented by labor or-
ganizations in other bargaining units, and super-
visors as defined in the Act, and all other em-
ployees.
2. The certification
On June 2, 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 13, 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 June 12, 1978, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about August 23, 1978, and
continuing at all times thereafter to date, Respondent
has refused to bargain with the Union as the exclusive
representative for collective bargaining of all employ-
ees in said unit. Accordingly, we find that the Re-
spondent has, since August 23, 1978, and at all times
thereafter, refused to bargain collectively with the
Union as the exclusive representative of the employ-
ees in the appropriate unit, and that, by such refusal,
Respondent 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 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. THE 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 Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Company d/bla 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).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. National Press, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Graphic Arts International Union, AFL-CIO,
Local 86B, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All office clerical employees employed by the
Employer at its facility located at 1445 11th Street,
Waukegan, Illinois; but excluding all watchmen, em-
ployees represented by labor organizations in other
bargaining units, 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 June 12, 1978, the above-named labor or-
ganization has been, and now is, the certified and ex-
clusive representative of all employees in the afore-
1002
NATIONAL PRESS. INC
said appropriate unit tfor the purpose of collective
hargaining within the meaning of Section 9 (a) of the
Act.
5. By refusing on or about August 23, 1978. and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive har-
gaining representative of all the employees of Re-
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 aresaid 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)( 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, Na-
tional Press, Inc., Waukegan, 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 Graphic Arts Interna-
tional, AFL-CIO, Local 86B, as the exclusive bar-
gaining representative of its employees in the
following appropriate unit:
All office clerical employees employed by the
employer at its facility located at 1445 Ilth
Street, Waukegan, Illinois: but excluding all
watchmen, employees represented by labor or-
ganizations in other bargaining units, 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 office and place of business at 1445
I th Street. Waukegan, Illinois. copies of the at-
tached notice marked "Appendix."7 Copies of said
notice, on forms provided by the Regional Director
for Region 13, 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 em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notifl the Regional Director for Region 13, in
writing. within 20 days from the date of this Order,
what steps have been taken to comply herewith.
'In the event that this Order is enforced by ajudgmenl ta Urnied States
court ofl appeals, the words in the notice reading "Posted b Order of the
National Lab3hor Relations Board" shall read "Posted Pursuant to a Judgment
of the Ulnied States Court of Appeals Enforcing an Order of the National
Iabor Relatlons Board.
APPEN IX
NoHic!: ro EMPI.OYEES
PoSI FI) BY ORDER OF IE
NAOI()NAI. LABOR RELATIONS BOARD
An Agency of the United States Government
WF WlI. NOI refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with
Graphic Arts International Union, AFL-CIO,
Local 86B, as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE vir.tI NOI 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.
Wt 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 office clerical employees employed by the
employer at its facility located at 1445 1 Ith
Street. Waukegan, Illinois; but excluding all
watchmen, employees represented by labor or-
ganizations in other bargaining units, supervisors
as defined in the Act. and all other employees.
NAtIO(NAI. PRESS, IN(.
1003