Pacific Multiforms Co.

National Labor Relations Board - Board Decisions

Sep 24, 1962

138 N.L.R.B. 796 (N.L.R.B. 1962)

796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Rippee, George Rippee and Oliver Rippee d/b/a Pacific
Multiforms Company and Amalgamated Lithographers of
America, Local No . 45, Ind . Case No. 19-CA-f423. September
24, 1962
DECISION AND ORDER
Upon charges duly filed by Amalgamated Lithographers of
America, Local No. 45, Ind., herein called the Union, the General
Counsel of the National Labor Relations Board, by the Regional
Director for the Nineteenth Region, issued a complaint dated May
22, 1962,1 against Howard Rippee, George Rippee and Oliver Rippee
d/b/a Pacific Multiforms Company, herein called the Respondents,
alleging that the Respondents had engaged in and were engaging in
unfair labor practices 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 a Trial Examiner were duly served upon the Respondents and
the Union.
With respect to the unfair labor practices, the complaint alleges in
substance that the Union was and is the exclusive representative of
certain employees of the Respondents in the appropriate unit certified
on April 16 by the Regional Director and that on or about April 17,
and thereafter, the Respondents unlawfully refused to bargain with
the Union.
The Respondents' answer, filed on June 4, admits certain jurisdic-
tional and factual allegations of the complaint but denies the com-
mission of unfair labor practices.
On June 28, all parties to this proceeding entered into a stipulation
of facts, and requested that the proceeding be transferred directly to
the Board for findings of fact, conclusions of law, and decision and
order. The request states that the parties have waived their rights
to a hearing before a Trial Examiner and to the issuance of an Inter-
mediate Report. The parties also agree that their stipulation and
certain specified documents constitute the entire record in the case.
On July 11, the Board granted the parties' request to transfer the
case to the Board. A brief was thereafter filed by the Union. Upon
the basis of the parties' stipulation, the brief, and the entire record in
the case, the Board 2 makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Respondents constitute a partnership, comprised of Howard
Rippee, George Rippee, and Oliver Rippee, doing business under the
i All dates herein refer to 1962.
2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman McCulloch and Members Leedom and Brown].
138 NLRB No. 89.
PACIFIC MULTIFORMS COMPANY 797
trade name of Pacific Multiforms Company in Seattle, Washington,
where they are engaged in duplicating and the manufacture of business
forms. During their past fiscal year, which period is representative
of all times material herein, the Respondents purchased goods and
materials valued in excess of $50,000, from enterprises in the State
of Washington which had received these goods and materials directly
from points outside the State of Washington, and the Respondents in
turn sold and delivered their product valued in excess of $50,000 to
enterprises in the State of Washington whose products in the amount
exceeding $50,000 annually were sold and delivered to customers in
States other than the State of Washington.
The Respondents admit, and we find, that they are engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Lithographers of America, Local No. 45, Ind., is a
labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On March 5, the Respondents and the Union entered into, and the
Regional Director approved, an agreement for consent election in the
following unit : 9
All employees working in the roll-fed rotary press department
as rotary pressman; in the sheet-fed duplicating department as
duplicator press operator; in the film reproduction department
as cameraman, negative assembler and/or platemaker; and their
trainees; excluding office clerical employees, shipping depart-
ment employees, maintenance employees, bindery employees, sales
employees, guards, and supervisors as defined by the Act.
The parties specifically agreed that:
[T]he determination of the Regional Director shall be final and
binding upon any question, including questions as to the eligi-
bility of voters, raised by any party hereto relating in any man-
ner to the election, and provided further that rulings or deter-
minations by the Regional Director in respect of any amendment
of any certification resulting therefrom shall also be final. [Em-
phasis supplied.]
In addition, the agreement provided that either party could file ob-
jections to the conduct of the election or conduct affecting the results
of the election; and, if objections were filed, that the Regional Director
would conduct an investigation and report thereon. The agreement
then stated:
8Howard Rippee, et al ., Case No. 19-RC-2968 (not published in NLRB volumes).
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The method of investigation of objections and challenges, in-
cluding the question whether a hearing should be held in con-
nection therewith, shall be determined by the Regional Director,
whose decision shall be final and binding. [Emphasis supplied.]
Pursuant to the agreement, an election by secret ballot was con-
ducted on March 9, between 3 and 4 p.m., under the supervision of
the Regional Director. A tally of ballots showed approximately 12
eligible voters, of whom 5 cast ballots for the Union, 4 against the
Union, and 3 were challenged by the Respondents. As the challenged
ballots were sufficient to affect the results of the election, the Regional
Director conducted an appropriate investigation.
On April 2, the Regional Director issued his report on challenged
ballots, sustaining the challenge to the ballot of Frank Brown and
overruling the challenges to the ballots of Israelson and Brannan.
The Regional Director then ordered the ballots of Israelson and
Brannan to be opened and counted. The revised tally of ballots
showed that there were six ballots cast for the Union ; five against
the Union, and one invalid ballot. The Regional Director found that
a majority of valid votes had been cast for the Union, and, on April
16, certified it as the exclusive bargaining representative of the em-
ployees in the agreed unit.
On April 17, the Union requested the Respondents in writing to
meet for the purpose of negotiating an agreement covering the em-
ployees in the aforementioned unit. The Respondents failed to reply
to the Union's letter and, on April 26, the Union verbally repeated its
request. The Respondents then informed the Union that they would
not bargain and admittedly have refused to do so at all subsequent
times.
On the above facts, the General Counsel alleged that the Respond-
ents unlawfully refused to bargain with the duly certified representa-
tive of their employees. The Respondents defended on the ground
that their admitted refusal to bargain was not unlawful, contending
that the election and the resulting certification of the Union by the
Regional Director were invalid because the Regional Director failed
to sustain their challenge to Brannan's ballot.
Brannan's name appeared on the eligibility list, which was based on
the payroll period of February 28, but had advised the Respondents,
prior to the election, that he would terminate his employment on
March 9, the date of the election. He worked and voted on the day
of the election but has not been employed by the Respondents since
that date.
The Regional Director ruled that the "essential element in deter-
mining an employee's eligibility to vote is his status on the eligibility
payroll date and on the date of the election." [Emphasis supplied.]
He found, on the basis of unrefuted evidence, that Brannan "regu-
PACIFIC MULTIFORMS COMPANY 799
larly performed the functions of the employees employed in the unit
. . . at all times on the eligibility date and during the eligibility
period, and that he was so engaged on the date of the election." [Em-
phasis supplied.] It is the Respondents' position that "on March 9,
1962, the date of the election, Brannan was observed to terminate his
employment, then vote and leave the premises," [emphasis supplied]
and that a mistake of law was involved in the Regional Director's
counting of Brannan's challenged ballot.
It has long been the Board's policy, uniformly upheld by the courts,
that the Regional Director's determination in consent elections of this
character is final, in the absence of fraud, misconduct, or gross mis-
take, even though the Board might have reached a different conclusion
in the first instance. To hold otherwise would permit the parties
deliberately to ignore binding commitments embodied in a consent
agreement; would open the door to subterfuges for hampering and
delaying a final determination of a bargaining representative; and
would tend to defeat, rather than to effectuate, the policies of the Act'
In the instant case, the Respondents' allegations were, in fact, an
attack on the judgment of the Regional Director and on the merits of
his decision as to Brannan's challenged vote. The record contains
nothing that would remotely point to fraud, misconduct, or gross mis-
take on the part of the Regional Director. Accordingly, without re-
considering the substantive merits of the Regional Director's deter-
mination,' we find that the certification issued herein was valid and
final and that the Respondents are seeking to relitigate in a com-
plaint proceeding matters foreclosed by the Regional Director's final
determination.6
As the Respondents admittedly have declined to honor the certi-
fication, and have refused to bargain with the certified bargaining
representatives of their employees, we find the Respondents have
violated Section 8 (a) (5) and (1) of the Act.
1V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above,
occurring in connection with its operations as described in section I,
above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor
* Sumner Sand & Gravel Company , 128 NLRB 1368 , 1371 , enfd . 293 F. 2d 754 (C A. 9).
5 Member Brown would affirm the Regional Director 's statement that the essential ele-
ment in determining an employee 's eligibility to vote is his status on the eligibility pay
period date and on the date of the election; he refers in this connection to Board hold-
ings (1 ) that the Board will not inquire into prospects of future employment of an
employee who is actually working on election day , Whiting Corporation , Spencer and
Morris Division, 99 NLRB 117, 123 ; and ( 2) that an employee 's eligibility to vote is not
affected by the fact that he intends to and does , in fact, quit after the election , Personal
Products Corporation , 114 NLRB 959, 961.
0 Sumner Sand & Gravel Company, supra.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor
practices within the meaning of Section 8(a) (5) and (1) of the Act,
we shall order that they 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.
CONCLusIONS of LAW
1. Amalgamated Lithographers of America, Local No. 45, Ind., is
a labor organization as defined in Section 2(5) of the Act.
2. All employees at Respondents' Seattle, Washington, plant, work-
ing in the roll-fed rotary press department as rotary pressman; in the
sheet-fed duplicating department as duplicator press operator; in the
film reproduction department as cameraman, negative assembler,
and/or platemaker; and their trainees; excluding office clerical em-
ployees, shipping department employees, maintenance employees,
bindery employees, sales employees, guards, and supervisors as defined
by the Act constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
3. The above-named labor organization was on April 16, 1962, and
at all times thereafter, the exclusive representative of all employees
in the aforesaid appropriate unit for purposes of collective bargain-
ing within the meaning of Section 9 (a) of the Act.
4. By refusing, on and since April 17, to bargain collectively with
the above-named labor organization as the exclusive representative
of its employees in the aforesaid appropriate unit, the Respondents
have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Howard Rippee, George
Rippee and Oliver Rippee d/b/a Pacific Multiforms Company,
Seattle, Washington, their agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively concerning wages, hours, and
terms and conditions of employment with Amalgamated Lithog-
PACIFIC MULTIFORMS COMPANY 801
raphers of America, Local No. 45, Ind., as the exclusive representa-
tive of all their employees in the following appropriate unit : All em-
ployees at Respondents' Seattle, Washington, plant, working in the
roll-fed rotary department as rotary pressman; in the sheet-fed dupli-
cating department as duplicator press operator; in the film reproduc-
tion department as cameraman, negative assembler, and/or plate-
maker; and their trainees; excluding office clerical employees, shipping
department employees, maintenance employees, bindery employees,
sales employees, guards, and supervisors as defined by the Act.
(b) In any like or related manner interfering with the efforts of
Amalgamated Lithographers of America, Local No. 45, Ind., to bar-
gain collectively.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named labor
organization as the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at their plant at Seattle, Washington, copies of the notice
hereto marked "Appendix."' Copies of said notice, to be furnished
by the Regional Director for the Nineteenth Region, shall, after be-
ing duly signed by the Respondents' authorized representative, be
posted by the Respondents immediately upon receipt thereof, and be
maintained by it for at least 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted.' Reasonable steps shall be taken by the Respond-
ents to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
7 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL, upon request, bargain with Amalgamated Lithog-
raphers of America, Local No. 45, Ind., as the exclusive repre-
sentative of all the employees in the bargaining unit described
below with respect to rates of pay, wages, hours of employment,
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other conditions of employment, and, if an understanding is
reached, embody such an understanding in a signed agreement.
WE WILL NOT in any like or related manner interfere with the
efforts of Amalgamated Lithographers of America, Local No. 45,
Ind., to bargain collectively.
The bargaining unit is :
All employees at Respondents' Seattle, Washington, plant,
working in the roll-fed rotary press department as rotary
pressman; in the sheet-fed duplicating department as dupli-
cator press operator; in the film reproduction department as
cameraman, negative assembler, and/or platemaker; and
their trainees; excluding office clerical employees, shipping
department employees, maintenance employees, bindery em-
ployees, sales employees, guards, and supervisors as defined
by the Act.
HOWARD RIPPEE, GEORGE RIPPEE AND
OLIVER RIPPEE D/B/A PACIFIC
MULTIFORMS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 327 Logan Building, 500 Union Street, Seattle 4, Washington,
Telephone Number, Mutual 2-3300, Extension 553, if they have any
question concerning this notice or compliance with its provisions.
Georgia-Pacific Corporation , Crossett Division-Forestry and
Local Union 5-475, International Woodworkers of America,
AFL-CIO. Case No. 26-CA-1242. September 24, 1962
DECISION AND ORDER
On June 29, 1962, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, Respondent filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
13 8 NLRB No. 9'5.