Roy N. Lotspeich Publishing Co.

National Labor Relations Board - Board Decisions

Oct 27, 1972

199 N.L.R.B. 1097 (N.L.R.B. 1972)

ROY N. LOTSPEICH PUBLISHING CO.
Roy N . Lotspeich Publishing Co. and Knoxville News-
paper Guild, Local No. 76, affiliated with the
American Newspaper Guild , AFL-CIO. Case 10-
CA-9662
October 27, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Upon a charge filed on June 30, 1972, by Knox-
ville Newspaper Guild, Local No. 76, affiliated with
the American Newspaper Guild, AFL-CIO, herein
called the Union, and duly served on Roy N. Lot-
speich Publishing Co., herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 10, issued
a complaint on July 12, 1972, against Respondent,
alleging that Respondent had engaged in and was
engaging 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
complaint alleges in substance that on June 8, 1972,
following a Board election in Case 10-RC-8734, 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 June 22, 1972, 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 Un-
ion has requested and is requesting it to do so. On July
21, 1972, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On August 9, 1972, counsel for the General
Counsel filed directly with the Board a motion for
summary judgment. Subsequently, on August 16,
1972, 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 thereafter filed a
response to notice to show cause.
'Official notice is taken of the record in the representation proceeding,
Case l0-RC-8734, as the term "record" is defined in Secs. 102.68 and 102.
69(f) of the Board's Rules and Regulations, Series 8, as amended . See LTV
Electrosystems, Inc., 166 NLRB 938, enfd . 388 F.2d 683 (C.A 4, 1968);
Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269 F.
Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 91
(C.A. 7, 1968), Sec. 9(d) of the NLRA.
1097
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 herein, Respon-
dent contends that the Union does not represent a
majority of its employees and that the Union's certifi-
cation was therefore invalid. In its reply to the notice
to show cause, Respondent supports these arguments
by its claim that employee Stewart Judkins was ineli-
gible to vote in the underlying representation election.
The General Counsel contends that the Respondent
is attempting to relitigate the issues it raised in the
related representation case. We find merit in the Gen-
eral Counsel's position.
A review of the entire record in the representa-
tion proceeding in Case 10-RC-8734 reveals that the
representation election conducted on August 12,
1971, pursuant to the Regional Director's Decision
and Direction of Election, resulted in a vote of 16 to
15 in favor of the Union, with 9 ballots challenged.
After investigation, the Regional Director, on Octo-
ber 19, 1971, issued his Supplemental Decision and
Order to Open and Count Challenged Ballots in
which he overruled eight of the nine challenges, in-
cluding that of employee Stewart Judkins.
The Respondent filed with the Board a timely
request for review with respect to the Regional
Director's rulings on five of the challenged ballots,
including that with respect to the Judkins ballot. On
November 12, 1971, the Board denied the request as
to three of the ballots, including the Judkins ballot,
and deferred consideration as to the remaining two
challenged ballots.
Since the revised tally of ballots showed 19 votes
for, and 19 votes against, the Union, the Board, on
November 24, 1971, ordered a hearing on the remain-
ing two challenged ballots.
After taking evidence, the Hearing Officer, on
February 24, 1972, issued his report on challenged
ballots, recommending that the challenge to one bal-
lot be sustained and that the challenge to the other
ballot be overruled. Thereafter the Respondent filed
with the Board timely exceptions to the Hearing
Officer's report and a supporting brief.
On May 26, 1972, the Board issued its Decision
on Review and Direction adopting the Hearing
Officer's findings and recomendations and ordering
that the ballot be opened and counted, that a revised
tally of the ballots be prepared, and that the appropri-
ate certification be issued by the Regional Director.
NLRB No. 166
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The final revised tally showed that the Union had a
majority of 20 to 19, and the Union was duly certified
on June 8, 1972.
As indicated above, the Respondent's claim of
no union majority is based entirely on its contention
that Stewart Judkins was not eligible to vote, a con-
tention raised and determined in the underlying rep-
resentation proceeding.
It is well settled that in the absence of newly-
discovered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding alleg-
ing a violation of Section 8(a)(5) is not entitled to
relitigate issues which were or could have been litigat-
ed in a prior representation proceeding .2
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the 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 the 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
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Tennessee corporation with an
office and place of business located at Knoxville, Ten-
nessee , where it is engaged in the publication, sale,
and distribution of newspapers. Respondent, during
the past calendar year, which period is representative
of all times material herein, derived gross revenues
from its publishing operations in excess of $200,000.
During the same period of time, Respondent paid in
excess of $50,000 for subscriptions to interstate news
services.
We find, on the basis of the foregoing, that Re-
spondent 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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Knoxville Newspaper Guild, Local No. 76, affil-
iated with the American Newspaper Guild, AFL-
2 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).
CIO, 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 con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All full-time and regular part -time employees of
Respondent 's Knoxville , Tennessee newspaper
including the bookkeeper and the editorial de-
partment secretary , but excluding J.B. Owen,
professional employees , casual employees,
guards , and the news editor and all other supervi-
sors as defined in the Act.
2. The certification
On August 12, 1971, 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 10, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on June 8, 1972, 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 June 15, 1972, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about June 22, 1972, 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 representative for collective
bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since June 22, 1972, 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, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
ROY N . LOTSPEICH PUBLISHING CO. 1099
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
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 appro-
priate unit , and, if an understanding is reached, em-
body such understanding in a signed agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certification
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; Commerce Company d/b/a Lamar Hotel, 140
NLRB 226, 229, enfd . 328 F .2d 600 (C.A. 5), cert.
denied 379 U.S. 817; Burnett Construction Company,
149 NLRB 1419 , 1421, enfd . 350 F .2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Roy N. Lotspeich Publishing Co. is an employ-
er engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Knoxville Newspaper Guild, Local No. 76,
affiliated with the American Newspaper Guild, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time employees
of Respondent's Knoxville , Tennessee newspaper in-
cluding the bookkeeper and the editorial department
secretary , but excluding J.B. Owen , professional em-
ployees , casual employees , guards , and the news edi-
tor and all other supervisors as defined in the Act
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since June 8 , 1972, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9 (a) of the
Act.
5. By refusing on or about June 22 , 1972, and at
all times thereafter , to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent 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
meaning 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 Respondent, Roy N.
Lotspeich Publishing Co., its officers , agents, succes-
sors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay , wages , hours, and other terms and condi-
tions of employment with Knoxville Newspaper
Guild, Local No. 76 , affiliated with the American
Newspaper Guild, AFL-CIO , as the exclusive bar-
gaining representative of its employees in the follow-
Ing appropriate unit:
All full-time and regular part-time employees of
Respondent's Knoxville , Tennessee newspaper
including the bookkeeper and the editorial de-
partment secretary, but excluding J. B. Owen,
professional employees , casual employees,
guards , and the news editor and all other supervi-
sors 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 representa-
tive 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 un-
derstanding is reached , embody such understanding
in a signed agreement.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its Knoxville, Tennessee, newspaper
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the Re-
gional Director for Region 10, 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 thereafter, 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.
(c) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 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 Knox-
ville Newspaper Guild, Local No. 76, affiliated
with the American Newspaper Guild, AFL-CIO,
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 de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
The bargaining unit is:
All full-time and regular part-time employ-
ees of Respondent's Knoxville, Tennessee news-
paper including the bookkeeper and the editorial
department secretary, but excluding J. B. Owen,
professional employees, casual employees,
guards, and the news editor and all other supervi-
sors as defined in the Act.
ROY N. LOTSPEICH
PUBLISHING CO.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Peachtree Building, Room 701, 730
Peachtree Street, NE, Atlanta, Georgia 30308, Tele-
phone 404-526-5760.