Southwest Color Printing Corp.

National Labor Relations Board - Board Decisions

Feb 6, 1980

247 N.L.R.B. 917 (N.L.R.B. 1980)

SOUTHWEST COLOR PRINTING CORPORATION
Southwest Color Printing Corporation and United
Paperworkers International Union, AFL-CIO.
Case 16-CA-8518
February 6, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a charge filed on May 31, 1979, by United
Paperworkers International Union, AFL-CIO, herein
called the Union, and duly served on Southwest Color
Printing Corporation, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 16, issued
a complaint on July 31, 1979, and an amendment to
the complaint on September 5, 1979, against Respon-
dent, 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 administra-
tive law judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on May 4, 1979,
following a Board election in Case 16-RC-7860, 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 May 23, 1979, 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. On
or about August 10, 1979, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On October 19, 1979, counsel for the General
Counsel filed directly with the Board in Washington,
D.C., "Motion To Transfer to and Continue Proceed-
ings Before the Board and for Summary Judgment,"
with exhibits attached. The General Counsel submits,
in effect, that Respondent's answer demonstrates that
Respondent is attempting to test the Board's Certifica-
tion of Representative issued in the underlying repre-
sentation proceeding, Case 16-RC-7860, decided by
the Board. He further submits that Respondent's
' Official notice is taken of the record in the representation proceeding, Case
16-RC-7860, as the term "record" is defined in Secs. 102.68 and 102.69(g) of
the Board's Rules and Regulations, Series 8, as amended. See LTV
Electrosysrerns Inc. 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th
247 NLRB No. 127
answer raises no issue not already disposed of in the
representation proceeding and that the answer plus
the record in Case 16-RC-7860 constitute an admis-
sion that Respondent declined to recognize and
bargain with the Union which has been certified as the
collective-bargaining representative of the employees
in the unit described herein and, therefore, Respon-
dent violated Section 8(a)(5) and (1) of the Act. The
General Counsel therefore requests that the Board: (1)
grant the motion to find all the allegations of the
complaint to be true; and (2) grant the Motion for
Summary Judgment and issue an Order finding all
violations of the Act as alleged. Subsequently, on
October 30, 1979, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to the Notice To Show
Cause, with exhibits attached.
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
In its answer to the complaint and its response to
the Board's Notice To Show Cause, Respondent
admits the Union's request and its refusal to bargain,
but contends that: (1) it was denied even minimal due
process in that it was denied a hearing on its
objections and the Board did not have the entire
investigative record before it when it ruled on Respon-
dent's exceptions to the Regional Director's Report on
Objections;' (2) there exist disputed issues of fact
concerning the extent of "supervisory" (man in
charge) involvement in the election which have not
been resolved by a hearing; and (3) the Regional
Director's and the Board's treatment of its objection
to the Union's "misuse of official Board documents"
was contrary to existing Board precedent. The Gener-
al Counsel contends Respondent is improperly seeking
to relitigate issues which were or could have been
raised and decided in the underlying representation
case. We agree with the General Counsel.
Review of the record herein, including the record in
Case 16-RC-7860, reveals that on November 13,
1978, in the representation proceeding, the Union
sought to represent certain employees of Respondent
Cir. 1969); Iniertype Co. v. Penello. 269 F. Supp. 573 (D.C. Va. 1967) Follett
Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of
the NLRA, as amended.
2 In support of this contention Respondent relies on Prestolite Wire Division
v. N.LR.B., 592 F.2d 302 (6th Cir. 1979).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that pursuant to a Stipulation for Certification
Upon Consent Election, approved by the Regional
Director on December 8, 1978, an election by secret
ballot was conducted on January 5, 1979, under the
supervision of the Regional Director in the unit set
forth herein. The tally of ballots revealed that 102
were for, and 42 against, the Union, and there was I
challenged ballot. Respondent thereafter filed timely
objections, and on Feburary 23, 1979, following an
investigation of the objections, the Regional Director
issued his report, recommending to the Board that the
objections be overruled in their entirety and a Certifi-
cation of Representative issue. Thereafter, Respondent
filed exceptions thereto with the Board in Washington,
D.C. and the Board, on May 4, 1979, issued a
Decision and Certification of Representative wherein
it adopted the Regional Director's recommendation
on the disposition of said objections and certified the
Union as the collective-bargaining representative of
Respondent's employees in the unit described herein.
As noted above, Respondent cites the Sixth Cir-
cuit's decision in Prestolite Wire Division, supra, as
support for its contention that the Board's adoption of
the Regional Director's Report on Objections and
certification of the Union, without having the entire
investigative record before it, constitutes an abuse of
discretion and denial of due process. We disagree with
the Sixth Circuit's holding and respectfully decline to
follow it. Moreover, we note that the case has no
application here. Section 3(b) of the Act authorizes the
Board to delegate to its regional directors its powers
under Section 9 and places review of any such
delegated action by the regional director within the
Board's discretion. Where, as here, it appears from the
Regional Director's decision and Respondent's brief in
support of the request for review that no substantial
and material issues exists, we find that it is a proper
exercise of our discretion to deny the request for
review on that basis. Such finding is supported by the
Act's policy of expeditiously resolving questions con-
cerning representation.3
Respondent also contends that it was denied due
process by the Board's refusal to hold a hearing in the
underlying representation case on the matter of its
objections. It also argues that substantial and genuine
issues as to material facts exist.
It is well established that a party is not entitled to a
hearing on objections absent a showing of substantial
and material issues.4 Here, it is implicit that the Board,
in adopting the Regional Director's report, found that
no hearing was warranted. Further, the Board has
held, with judicial approval, that evidentiary hearings
' Trustees of Boston University. 242 NLRB 110(1979).
National Beryllia Corporation, 222 NLRB 1289 (1976), and cases cited
therein.
' Handy Hardware Wholesale, Inc., 222 NLRB 373 (1976), and cases cited
therein.
are not required in unfair labor practice cases and
summary judgment cases where, as here, there are no
substantial or material facts to be determined.' It thus
appears that Respondent is attempting to relitigate
issues raised and resolved in the underlying represen-
tation case.
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(a)(5) is not entitled to
relitigate issues which were or could have been
litigated in a prior representation proceeding.'
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.
Accordingly, we 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 RESPONDENT
At all times material herein, Respondent, a corpora-
tion duly organized under and existing by virtue of the
laws of the State of Texas, with a place of business and
production facility in Lufkin, Texas, has been engaged
in the printing of newspaper comics and commercial
newspaper supplements. During the 12 months pre-
ceding the issuance of the complaint, a representative
period of all times material herein, Respondent, in the
course and conduct of its business operations, pro-
duced, sold, and distributed from its Lufkin, Texas,
facility newspaper comics and commercial supple-
ments valued in excess of $50,000 which were shipped
from said plant directly to points outside the State of
Texas.
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.
' See Pittsburgh Plate Glass Ca v. N.L.R.B. 313 U.S. 146, 162 (1941); Rules
and Regulations of the Board, Secs. 102.67 (f) and 102.69(c).
918
SOUTHWEST COLOR PRINTING CORPORATION
II. THE LABOR ORGANIZATION INVOLVED
United Paperworkers International Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. 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 production and maintenance employees at
Respondent's Lufkin, Texas, plant, including
over-the-road truck drivers, alternate shift fore-
men, regular part-time employees, plant clerical,
and man in charge; excluding office clerical
employees, watchmen, guards and supervisors as
defined in the Act.
2. The certification
On January 5, 1979, 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 16, designated the Union as their
representative for the purposes of collective bargaining
with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on May 4, 1979, 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 May 11, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
May 23, 1979, and continuing at all times thereafter to
date, 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 Respondent has, since
May 23, 1979, 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 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 I,
above, occurring in connection with its operations
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 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,
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 certification
as beginning on the date Respondent commerces to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriate 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 (5th Cir.
1964), cert. denied 379 U.S. 817; 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. Southwest Color Printing Corporation is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Paperworkers International Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees at
Respondent's Lufkin, Texas, plant, including over-the-
road truckdrivers, alternate shift foremen, regular
part-time employees, plant clerical, and man in
charge, excluding office clerical employees, watchmen,
guards and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since May 4, 1979, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 May 23, 1979, 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed 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)(l) 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,
Southwest Color Printing Corporation, Lufkin, Texas,
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 United Paperworkers Interna-
tional Union, AFL-CIO, as the exclusive bargaining
representative of its employees in the following appro-
priate unit:
All production and maintenance employees at
Respondent's Lufkin, Texas, plant, including
over-the-road truck drivers, alternate shift fore-
men, regular part-time employees, plant clerical,
and man in charge; excluding office clerical
employees, watchmen, 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
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 Lufkin, Texas, facility copies of the
attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's
representative, shall be posted by Respondent immedi-
ately 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 16, 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 a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
Nati6nal 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 United
Paperworkers International Union, AFL-CIO, as
the exclusive representative of the employees iv
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
abovenamed 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 production and mainteance employees at
our Lufkin, Texas, plant, including over-the-
road truck drivers, alternate shift foremen,
regular part-time employees, plant clerical, and
man in charge; excluding office clerical em-
ployees, watchmen, guards and supervisors as
defined in the Act.
SOUTHWEST COLOR PRINTING CORPO-
RATION
920