New England Lithographic Co.

National Labor Relations Board - Board Decisions

Dec 7, 1977

233 N.L.R.B. 1013 (N.L.R.B. 1977)

NEW ENGLAND LITHOGRAPHIC
New England Lithographic Company, Inc. and Graph-
ic Arts International Union, Local No. 300, AFL-
CIO-CLC. Case 1-CA-13426
December 7, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on July 28, 1977, by Graphic
Arts International Union, Local No. 300, AFL-CIO-
CLC, herein called the Union, and duly served on
New England Lithographic Company, Inc, herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 1, issued a complaint and notice
of hearing and amendment to complaint on August
18 and 22, 1977, 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, 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
record reflects that on July 7, 1977, following a
Board election in Case I-RC-14400, 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 July 8, 1977, and at all times thereafter,
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.
Subsequently, the Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint. The Respondent admits
all of the factual allegations of the complaint, except
those paragraphs which relate to the underlying
representation proceeding, Case l-RC-14400.
I Official notice is taken of the record in the representation proceeding,
Case I-RC-14400, as the term "record" is defined in Sees. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follert Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 On July 13, 1976, the Regional Director issued his report on challenged
ballots in which he recommended, inter alia, that the challenge to the ballot
of Joseph Riley be overruled, and that a hearing be held with respect to the
challenged ballot of Nicholas Costa. On October 1, 1976, the Board issued a
Decision and Order Directing Hearing in which it adopted the Regional
233 NLRB No. 152
On September 12, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached, alleging,
in substance, that Respondent, in its answer, is
seeking to relitigate issues which were or could have
been raised and determined in the underlying
representation proceeding, and requesting the Board
to grant the Motion for Summary Judgment. Subse-
quently, on September 19, 1977, 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 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
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:
Ruling on the Motion for Summary Judgment
As reflected above, Respondent's answer admits all
of the factual allegations of the complaint, including
its refusal to recognize and bargain with the Union
which had been certified as the collective-bargaining
representative of the employees described in the
complaint. In its response to the Notice To Show
Cause, Respondent attacks the validity of the
election and the resulting certification and asserts
that the challenges to the ballots of Joseph Riley and
Nicholas Costa should have been sustained.2
By this assertion, and more specifically by its
denials, in whole or in part, of the allegations of the
complaint and by the arguments propounded in its
response to Notice To Show Cause, Respondent is
attempting to relitigate the same issues which it
raised in the representation proceeding, Case l-RC-
14400.
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(aX5) is not entitled
Director's findings and recommendations with respect to Riley and Costa.
On January 14, 1977, the Hearing Officer issued his report on challenges in
which he recommended, inter alia, that the challenge to the ballot of Costa
be overruled. Thereafter, the Respondent filed exceptions to the report and
a supporting brief and the Union filed a memorandum in opposition
thereto. On June 17, 1977, the Board issued its Decision and Direction in
which, after having considered the Hearing Officer's report, the Respon-
dent's exceptions and brief, and the Union's memorandum in opposition, it
adopted the Hearing Officer's findings, conclusions, and recommendations.
The Board noted that it agreed with the Respondent that Costa was
discharged on April 25, 1976, but that finding did not require that the Board
reject the Hearing Officer's recommendation with respect to the challenge to
Costa's ballot.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 3
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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. We therefore
find that 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
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Massachusetts corporation, has
maintained at all times material herein its principal
office and place of business at 9-27 Melcher Street,
Boston, Massachusetts, where it is now and continu-
ously has been engaged in the provision of commer-
cial printing services and related services. Respon-
dent in the course and conduct of its business causes,
and continuously has caused at all times material
herein, large quantities of raw materials used by it in
the provision of commercial printing services and
related services to be purchased and transported in
interstate commerce from and through various States
of the United States other than the Commonwealth
of Massachusetts, and causes, and continuously has
caused at all times material herein, substantial
quantities of commercially printed products and
related products to be sold and transported from said
plant in interstate commerce to States of the United
States other than the Commonwealth of Massachu-
setts. Respondent annually receives within the
Commonwealth of Massachusetts goods valued in
excess of $50,000 directly from points located in
States other than the Commonwealth of Massachu-
setts. Respondent annually ships from within the
Commonwealth of Massachusetts goods valued in
excess of $50,000 directly to points located in States
other than the Commonwealth of Massachusetts.
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.
3 See Pittsburgh Plate Glass Co. v. N.LR.B.., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
II. THE LABOR ORGANIZATION INVOLVED
Graphic Arts International Union, Local No. 300,
AFL-CIO-CLC, 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 regular full-time and regular part-time
lithographic production employees employed at
Respondent's 9-27 Melcher Street, Boston, Mas-
sachusetts, location, but excluding all other
employees, guards and supervisors as defined in
the Act.
2. The certification
On June 4, 1976, 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 1, 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 July 7, 1977, 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 July 8, 1977, 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 July 8, 1977, 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 July 8, 1977, 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-
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NEW ENGLAND LITHOGRAPHIC
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 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. New England Lithographic Company, Inc., is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Graphic Arts International Union, Local No.
300, AFL-CIO-CLC, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All regular full-time and regular part-time
lithographic production employees employed at
Respondent's 9-27 Melcher Street, Boston, Massa-
chusetts, location, but excluding all other employees,
guards 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 July 7, 1977, 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 July 8, 1977, 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
New England Lithographic Company, Inc., Boston,
Massachusetts, 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 Graphic Arts Inter-
national Union, Local No. 300, AFL-CIO-CLC, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All regular full-time and regular part-time
lithographic production employees employed at
Respondent's 9-27 Melcher Street, Boston, Mas-
sachusetts, location, but excluding all other
employees, guards 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
1015
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Boston, Massachusetts, facility copies
of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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."
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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Graph-
ic Arts International Union, Local No. 300,
AFL-CIO-CLC, 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 regular full-time and regular part-time
lithographic production employees em-
ployed at Respondent's 9-27 Melcher Street,
Boston, Massachusetts, location, but exclud-
ing all other employees, guards and supervi-
sors as defined in the Act.
NEW ENGLAND
LITHOGRAPHIC COMPANY,
INC.
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