Paper Art Co., Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1968

173 N.L.R.B. 940 (N.L.R.B. 1968)

940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paper Art Company, Inc. and United Papermakers
and Paperworkers , AFL-CIO. Case 25-CA-3131
November 21, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
related products at its plant located in Indianapolis,
Indiana. During the year 1967, the Respondent
shipped goods valued in excess of $50,000 from its
Indianapolis plant to points outside the State of
Indiana.
We find that the Respondent is 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.
Upon the filing of a charge by United Papermakers
and Paperworkers, AFL-CIO, herein called the
Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
25, issued a complaint on June 7, 1968, alleging that
Paper Art Company, Inc., herein called the Re-
spondent, had engaged in and was engaging in unfair
labor practices within the meaning of Section 8(a)(1)
and (5), of the National Labor Relations Act, as
amended. Thereafter, the Respondent filed an answer
to the complaint, admitting certain jurisdictional and
factual allegations, but denying the commission of
any unfair labor practices.
On August 9, 1968, the parties to this proceeding
filed with the National Labor Relations Board a
stipulation of facts and a joint motion, both executed
on August 6, 1968, requesting that this case be
transferred directly to the Board for the issuance of
findings of fact, conclusions of law, and a Decision
and Order. The parties waived their rights to a hearing
before a Trial Examiner and the issuance of a Trial
Examiner's Decision. They agreed that the formal
documents in this case and in Case 25-RC-3659,
including the stipulation of facts, shall constitute the
entire record in the case.
On August 15, 1968, the Board issued an Order
granting the motion, approving the stipulation, and
transferring the case to the Board. Thereafter, briefs
were filed by the Respondent and the General
Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-mem-
ber panel.
Upon the basis of the stipulation of facts, the
briefs, and the entire record in the case, the Board
makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is an Indiana corporation engaged
in the business of manufacturing paper products and
1 See Decision and Certification of Representative issued on April 18,
1968 , in Case 25 -RC-3659 ( unpublished ). The stipulated bargaining
unit is as follows:
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
On April 18, 1968, the Board certified the Union
as the exclusive bargaining representative of the
Respondent's employees in an appropriate unit, fol-
lowing a consent election held on December 19,
1967, in which a majority of the employees desig-
nated the Union as their bargaining representative, by
a vote of 33 for the Union and 31 against.' On April
29, 1968, the Union requested a meeting with the
Respondent for the purposes of collective bargaining
and the Respondent refused this request. Since May
3, 1968, the Respondent has refused to bargain with
the Union. The Respondent defends this refusal to
meet with the Union on the ground that the election
and certification are invalid. It asserts, as it did in the
representation proceeding, that three employees who
voted in the election were ineligible to vote and that
their votes should have been challenged by the Board
agent who conducted the election.
The facts show that about 45 minutes prior to the
election held on December 19, 1967, the Board agent
and representatives of the Respondent and the Union
reviewed the voter eligibility list, which had been
supplied by the Respondent on an earlier date. The
Board agent asked the parties if there were any
additions or deletions to be made regarding the list.
With respect to the three employees in question-
David Kidd, Walter Frick, and Ernest Roberts-the
Union's representative stated that they should be
added to the list because they were in the mainte-
nance department and eligible to vote. The Re-
spondent's representative then summoned the plant's
production manager, who stated that the three
employees were watchmen. The Union's representa-
tive responded that they were janitors and part of the
maintenance department. The production manager
conceded that they were attached to the department,
All production and maintenance employees employed by Paper Art
Company, Inc., at its Indianapolis , Indiana, plant , excluding office
clerical employees , professional employees , guards, and supervisors
as defined in the Act.
173 NLRB No. 140
PAPER ART COMPANY, INC. 941
but remarked that the primary function of each one
was that of a watchman. The Board agent then asked
if there was any objection to adding the names of the
three employees to the eligibility list. The Re-
spondent's representative stated it had no objection
and the names were placed on the list. The three
employees voted without challenge by either party or
the Board agent.
After the election, the Respondent filed objections
to the conduct of the election in which it contended
that the three employees in question were "guards as
defined in the Act," and should not have been
permitted to vote without challenge by the Board
agent, and it requested that the election be set aside.
The Regional Director investigated the objections and
issued his report on January 31, 1968, in which he
found that the Board agent was without fault in the
circumstances, for Board agents are not required to
challenge voters unless the agents know that voters
are ineligible.' The Regional Director concluded that
the Respondent's objections were post-election chal-
lenges of the type not recognized by the Board, and
recommended that the objections be overruled.
On February 12, 1968, the Respondent filed its
exceptions to the Regional Director's Report and, on
April 18, 1968, the Board issued its Decision and
Certification of Representative in the representation
proceeding, in which the Board adopted the Regional
Director's findings and recommendations, concluding
that the Respondent's exceptions raised no sub-
stantial and material issues which would warrant any
different disposition than that of the Regional Direc-
tor. Subsequently, the Respondent refused the
Union's request for a bargaining meeting, resulting in
the instant unfair labor practice proceeding.
exclusive bargaining representative of Respondent's
employees as a result of the election held on
December 19, 1967.
C. The Refusal To Bargain
As stipulated by the parties, the Union, on April
29, 1968, requested the Respondent to suggest a date
to initiate negotiations for a collective-bargaining
agreement; and on May 3, 1968, the Respondent
replied, refusing to bargain with the Union on the
ground that its certification was invalid. We find that
on and after May 3, 1968, the Respondent has
refused to bargain collectively with the Union in
violation of Section 8(a)(1) and (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in
section III, occurring in connection with its opera-
tions as described in section I, have a close, intimate,
and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to
labor disputes burdening and obstructing the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and take certain af-
firmative action to effectuate the policies of the Act.
B. The Validity of the Certification
The Respondent's position in this complaint pro-
ceeding is the same as that taken in its exceptions to
the Regional Director's Report, which we adopted.
We rejected those exceptions because it did not
appear from the evidence before us that the Board
agent at the election knew or had reason to believe
that the three employees in question, who were
variously described at the preelection conference as
janitors or watchmen-never as guards-and whose
duties were not defined, were guards within the
meaning of the Act. Our disposition in the representa-
tion proceeding is the law of this case, in the absence
of newly discovered or previously unavailable evi-
dence or special circumstances requiring reevaluation
of the matter.3 Nothing has been presented in this
proceeding which warrants such reevaluation. We
therefore affirm the certification of the Union as the
2 The DeVilbliss Company , 115 NLRB 1164 , 1169-70.
3 See Pittsburgh Plate Glass Co v N.L.R.B., 113 U.S 146, 161-162
CONCLUSIONS OF LAW
1. The Respondent is an employer within the
meaning of Section 2(2) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to recognize, meet, and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the appropriate unit,
the Respondent, since May 3, 1968, has engaged in
unfair labor practices in violation of Section 8(a)(5)
of the Act; and has interfered with, restrained, and
coerced its employees in the exercise of rights
guaranteed to said employees in Section 7 of the Act,
and has thereby engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
(1941), Tennessee Packers, Inc, Frosty Mom Division, 154 NLRB 819,
enfd 379 F.2d 172, 179 (C.A. 6), cert. denied 389 U.S. 958.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Paper Art Company, Inc., Indianapolis, Indiana, its
officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Papermakers and Paperworkers, AFL-CIO, as the
exclusive bargaining representative of the employees
in the following appropriate bargaining unit:
All production and maintenance employees
employed by Paper Art Company, Inc., at its
Indianapolis , Indiana, plant, excluding office cleri-
cal employees, professional employees, guards, and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act.
(a) Bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its place of business in Indianapolis,
Indiana, copies of the attached notice marked "Ap-
pendix."' Copies of said notice, on forms provided
by the Regional Director for Region 25, after being
signed by the Respondent's representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained uy it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to its employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the aforesaid Regional Director, in
writing, within 10 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the
National Labor Relations Board and in order to
effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT refuse to collectively bargain with
United Papermakers and Paperworkers, AFL-CIO,
as the exclusive collective-bargaining representative
of all our employees in the following unit.
All production and maintenance employees at
our Indianapolis, Indiana, plant, excluding office
clerical employees, professional employees,
guards, and supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed in Section 7
of the National Labor Relations Act, as amended.
WE WILL bargain collectively with the Union
and, if an understanding is reached, we will sign a
contract with the Union.
PAPER ART COMPANY INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with Board's Regional Office,
614 ISTA Center, 150 West Market Street, Indiana-
polis, Indiana 46204, Telephone 317-633-8921.
4 In the event that this Order is enforced by a decree of a United Decision and Order" the words "Pursuant to a Decree of the United
States Court of Appeals, there shall be substituted for the words "a States Court of Appeals Enforcing an Order "