Steven Label Corp.

National Labor Relations Board - Board Decisions

Jan 19, 1978

234 N.L.R.B. 305 (N.L.R.B. 1978)

STEVEN LABEL CORP.
Steven Label Corporation and Graphic Arts Interna-
tional Union, Local 262, AFL-CIO-CLC. Case
21-CA-16054
January 19, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on September 23, 1977, by
Graphic Arts International Union, Local 262, AFL-
CIO-CLC, herein called the Union, and duly served
on Steven Label Corporation, herein called Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 21, issued a complaint and notice of hearing
on September 29, 1977, 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
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on August 10,
1977, following a Board election in Case 21-RC-
15059, 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 September 21, 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 represen-
tative, although the Union has requested and is
requesting it to do so. On October 11, 1977, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On October 20, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 3,
1977, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
I Official notice is taken of the record in the representation proceeding,
Case 21-RC-15059, 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 Elecrosystems, 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);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA. as amended.
2 By letter dated October 13, 1977, to John C. Truesdale, the Board's
former Executive Secretary. Respondent, pursuant to the Freedom of
Information Act, 5 U.S.C. Sec. 552 and Sec. 102.117 of the Board's Rules
and Regulations, requested certain information pertaining to the Board's
processing of its request for review of the Acting Regional Director's
234 NLRB No. 46
Cause why the General Counsel's Motion for Sum-
mary 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
In its answer to the complaint and in its memoran-
dum in opposition to the General Counsel's Motion
for Summary Judgment, which was filed in response
to the Notice To Show Cause, Respondent contends,
in substance, that the Board's certification is invalid
(1) because "supervisory employees openly expressed
their support of the Union thereby intimidating and
depriving the employees of free choice in the elec-
tion" and (2) because of its good-faith belief that the
Board did not properly consider its request for
review of the Regional Director's Supplemental
Decision and Certification of Representative. The
Respondent's "belief' that it was denied due process
is based, in part, on the Board's "use of boilerplate
language in the telegram and the failure to identify
the Board Members who acted upon the request." 2
The General Counsel contends that Respondent is
raising issues which were or could have been raised
in the representation proceeding and is precluded
from relitigating them herein. We agree with the
General Counsel.
Our review of the record herein, including that in
the underlying representation proceeding, Case 21-
RC-15059, shows that the election in this matter,
which was held on June 10, 1977, pursuant to a
Decision and Direction of Election issued by the
Regional Director on May 12, 1977, resulted in a
vote of 26 for, and 5 against, the Union, with 3
challenged ballots, an insufficient number to affect
the results of the election. On June 16, 1977,
Respondent filed timely objections to conduct affect-
ing the results of the election. On August 10, 1977,
the Acting Regional Director issued a Supplemental
Decision and Certification of Representative, in
Supplemental Decision and Certification of Representative in Case 21-RC-
15059. On October 14, 1977, Respondent filed with Chairman Fanning an
"Application to Take Deposition" (of John C. Truesdale) in subject case. In
a letter to Respondent's counsel dated October 21, 1977, Mr. Truesdale
provided Respondent with the information requested as to how the Board
processes a request for review. On October 20, 1977, the General Counsel
filed a "Motion to Reject Respondent's Application for Consent to Take
Deposition." Subsequently, in a letter to Mr. Truesdale dated October 28,
1977, Respondent requested "clarification in lieu of deposition" of the
information previously provided by the Executive Secretary and thereby
effectively withdrew its application to take deposition. Accordingly, the
General Counsel's motion to reject Respondent's application for consent to
take deposition is moot.
305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which he recommended that the Respondent's objec-
tions be overruled in their entirety and that the
Union be certified as the exclusive bargaining repre-
sentative for the employees in the appropriate unit
described in the complaint. On August 25, 1977,
Respondent filed a timely request for review of the
Acting Regional Director's Supplemental Decision
and Certification of Representative. Thereafter, on
September 16, 1977, the Board denied Respondent's
request for review on the ground that it raised no
substantial issues warranting review. On September
28, 1977, Respondent filed a motion for reconsider-
ation of the Board's denial of its request for review.
In this motion, Respondent contended, inter alia,
that the Board, because of its emphasis on "increased
speed in case handling," merely applied "a rubber
stamp formula" in denying its request for review "By
Order Of The Board," and that the above formula
resulted in the Board's failure to properly consider
the "supervisory taint" issues raised in the request for
review and "must necessarily require increased dele-
gation of authority to legal assistants and members
of the Board's staff." Thereafter, on October 18,
1977, a Board panel, consisting of Chairman Fan-
ning and Members Jenkins and Penello, denied
Respondent's motion for reconsideration of the
Board's denial of its request for review.
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.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
At all times material herein, Respondent has been
engaged in the business of manufacturing labels,
3 See Pittsburgh Plate Glass Co. 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).
nameplates, and decals in a facility located at 11926
Burke Street, Sante Fe Springs, California. In the
normal course and conduct of its business operations
described herein, Respondent annually purchases
and receives goods and products valued in excess of
$50,000 directly from suppliers located outside the
State of California.
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.
II. THE LABOR ORGANIZATION INVOLVED
Graphic Arts International Union, Local 262,
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 Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees, ship-
ping and receiving employees, and truckdrivers
employed by Respondent at its facility located at
11926 Burke Street, Santa Fe Springs, California;
excluding office clerical employees, guards and
supervisors as defined in the Act.
2. The certification
On June 10, 1977, 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 21, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on August 10, 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 September 19, 1977, and
at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
306
STEVEN LABEL CORP.
the employees in the above-described unit. Com-
mencing on or about September 21, 1977, 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that Respondent has, since
September 21, 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-
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, traff-
ic, 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
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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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. Steven Label Corporation is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Graphic Arts International Union, Local 262,
AFL-CIO-CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
shipping and receiving employees, and truckdrivers
employed by Respondent at its facility located at
11926 Burke Street, Santa Fe Springs, California;
excluding office clerical 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 August 10, 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 September 21, 1977,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aX5) 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)(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 Respondent,
Steven Label Corporation, Santa Fe Springs, Califor-
nia, its officers, agents, successors, and assigns, shall:
i. 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 262, AFL-CIO-CLC, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees, ship-
ping and receiving employees, and truckdrivers
employed by Respondent at its facility located at
11926 Burke Street, Santa Fe Springs, California;
excluding office clerical 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
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 facility at 11926 Burke Street, Santa
Fe Springs, California, copies of the attached notice
marked "Appendix." 4 Copies of said notice, on
forms provided by the Regional Director for Region
21, after being duly signed by Respondent's represen-
tative, 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 21, 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 262, 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 production and maintenance employees,
shipping and receiving employees, and
truckdrivers employed by Respondent at its
facility located at 11926 Burke Street, Sante
Fe Springs, California; excluding office cler-
ical employees, guards and supervisors as
defined in the Act.
STEVEN LABEL
CORPORATION
308