The Times-Herald

National Labor Relations Board - Board Decisions

May 11, 1999

328 N.L.R.B. 404 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404
Orange County Publications, an unincorporated divi-
sion of Ottoway Newspapers, Inc., d/b/a The
Times-Herald Record and Communications
Workers of America, Local 1120, AFL–CIO.
Case 34–CA–8656
May 11, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
Pursuant to a charge filed on January 12, 1999, the
General Counsel of the National Labor Relations Board
issued a complaint on February 9, 1999, alleging that the
Respondent has violated Section 8(a)(5) and (1) of the
National Labor Relations Act by refusing the Union’s
request to bargain and to provide reasonable access to its
facility following the Union’s certification in Case 34–
RC–1539. (Official notice is taken of the “record” in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer admitting in part and denying in part the
allegations in the complaint and asserting defenses.
On March 25, 1999, the General Counsel filed a Mo-
tion for Summary Judgment. On March 30, 1999, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Union was certified as the representative of the
unit here involved after a second election. In its answer
the Respondent admits its refusal to bargain, but attacks
the validity of the certification on the grounds that the
results of the first election should have been certified and
no second election held.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment inso-
far as the complaint alleges that the Respondent has
failed and refused to recognize and bargain with the Un-
ion in violation of Section 8(a)(5) and (1) of the Act.1

1 As stated in her separate opinion, Member Fox joins Member
Liebman in granting the Motion for Summary Judgment on this com-
plaint allegation. Member Brame would deny the Motion for Summary
Judgment in its entirety for the reasons set forth in his dissenting opin-
ion.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an unincorpo-
rated division of a Delaware corporation, with an admin-
istrative office and separate production facility located in
Middletown, New York, has been engaged in the publi-
cation of a daily newspaper in Middletown, New York.
During the 12-month period ending January 31, 1999, the
Respondent, in conducting its operations described
above, purchased and received at its Middletown facility
goods valued in excess of $50,000 directly from points
outside the State of New York.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.2
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the mail-ballot election held in the period
from March 25 to April 6, 1998,3 and a second election
held on November 10, 1998, the Union was certified on
November 18, 1998, as the exclusive collective-bar-
gaining representative of the employees in the following
appropriate unit:

A different majority of the Board, consisting of Members Liebman
and Brame, effectively denies the General Counsel’s Motion for Sum-
mary Judgment on the complaint allegations that the Union requested
that the Respondent “provide reasonable access to [its] facility,” and
that the Respondent failed and refused “to provide reasonable access to
[its] facility” in violation of Sec. 8(a)(5). Member Liebman finds that
the Respondent’s denials of these complaint allegations raise material
issues of fact that can only be resolved at a hearing. Although Member
Liebman agrees with Member Fox that union access to the employer’s
premises is a mandatory subject of bargaining, Member Liebman ob-
serves that the theory of the General Counsel’s complaint and summary
judgment motion is not that the Respondent unlawfully refused to bar-
gain over an access proposal, but rather that the Respondent unlawfully
refused to grant access. The General Counsel’s argument, that “Re-
spondent’s blanket refusal to grant reasonable access to its facility to
the exclusive collective bargaining representative of its employees,
without any explanation for such denial, clearly violates the Act,” may
be litigated before the judge. Member Brame’s rationale for denying
summary judgment is set forth in his dissent. Accordingly, this issue is
remanded to the Regional Director for further appropriate action.
2 Although the Respondent’s answer states that the Respondent lacks
information sufficient to form a belief as to the truth or falsity of the
Union’s status as a labor organization, we do not find that the Respon-
dent’s allegation raises an issue warranting a hearing. In the underlying
representation case, the Regional Director found the Union to be a labor
organization and the Respondent did not seek review of that finding.
See Sec. 102.67(f) of the Board’s Rules (“Failure to request review
shall preclude . . . parties from relitigating, in any related subsequent
unfair labor practice proceeding, any issue which was, or could have
been, raised in the representation proceeding.”).
3 On September 29, 1998, the Board issued a decision adopting the
hearing officer’s recommendation that the first election be set aside and
a second election held.
328 NLRB No. 53
TIMES-HERALD RECORD 405

All full-time and regular part-time bulk newspaper de-
livery drivers, including the shipping and receiving
driver, the commercial printing driver, and couriers
employed by the Respondent at its Smith and Ballard
Road facility in Middletown, New York; but excluding
all mailroom employees, print shop employees, me-
chanics, machine operators, motor route delivery driv-
ers, and guards, professional employees, and supervi-
sors as defined in the Act.

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
Since November 20, 1998, the Union, by letter, has re-
quested the Respondent to bargain and, since December
8, 1998, the Respondent has refused. We find the refusal
to bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By refusing on and after December 8, 1998, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Orange County Publications, an unincorpo-
rated division of Ottoway Newspapers, Inc., d/b/a The
Times-Herald Record, Middletown, New York, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Communications Workers
of America, Local 1120, AFL–CIO as the exclusive bar-
gaining representative of the employees in the bargaining
unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:

All full-time and regular part-time bulk newspaper de-
livery drivers, including the shipping and receiving
driver, the commercial printing driver, and couriers
employed by the Respondent at its Smith and Ballard
Road facility in Middletown, New York; but excluding
all mailroom employees, print shop employees, me-
chanics, machine operators, motor route delivery driv-
ers, and guards, professional employees, and supervi-
sors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Middletown, New York, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
34 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since December 8,
1998.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER FOX, dissenting in part.
I join Member Liebman in granting the General Coun-
sel’s Motion for Summary Judgment on the complaint
allegation that the Respondent has failed and refused to
recognize and bargain with the Union in violation of Sec-
tion 8(a)(5) and (1) of the Act. I would also find that the
Respondent’s flat rejection of the Union’s proposal for

4 If this Order is enforced by a judgment of the 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 406
granting access of union agents to the Respondent’s
breakroom during specified hours to meet with the driv-
ers was an additional violation of the duty to bargain. It
is settled that access of agents of a collective-bargaining
representative to an employer’s premises for purposes
related to representation of the unit employees is a man-
datory subject of bargaining. Applebaum Industries, 294
NLRB 981, 982 fn. 9 (1989), and cases there cited.
Thus, while it is true that a union’s entitlement to access
at particular times and places for particular purposes
raises factual issues which cannot necessarily be decided
on summary judgment, an employer is not free to re-
spond to an access proposal that is not unreasonable on
its face simply by rejecting it out of hand and making no
counterproposal. The Respondent’s reply to the Union’s
access proposal here was, therefore, part and parcel of its
refusal to bargain, and I would grant the General Coun-
sel’s Motion for Summary Judgment on that allegation as
well.

MEMBER BRAME, dissenting.
In the underlying representation proceeding, I dis-
sented from my colleagues’ adoption of the hearing offi-
cer’s recommendation to sustain the Union’s Objections
1 and 2 and to set aside the first election. Instead, I
would have overruled those objections on the basis that
the Respondent’s statement at issue constituted at most
legitimate commentary regarding the likely consequences
of unionization on the Respondent. See NLRB v. Gissel
Packing Co., 395 U.S. 575, 617–618 (1969). Accord-
ingly, I would have issued a certification of results of the
first election. I therefore dissent here from my col-
leagues’ granting the General Counsel’s Motion for
Summary Judgment and their finding that the Respon-
dent violated Section 8(a)(5) and (1) of the Act in this
certification-testing proceeding.

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

WE WILL NOT refuse to bargain with Communications
Workers of America, Local 1120, AFL–CIO as the ex-
clusive representative of the employees in the bargaining
unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit:

All full-time and regular part-time bulk newspaper de-
livery drivers, including the shipping and receiving
driver, the commercial printing driver, and couriers
employed by us at our Smith and Ballard Road facility
in Middletown, New York; but excluding all mailroom
employees, print shop employees, mechanics, machine
operators, motor route delivery drivers, and guards,
professional employees, and supervisors as defined in
the Act.

ORANGE COUNTY PUBLICATIONS, AN UNINCOR-
PORATED DIVISION OF OTTOWAY NEWSPAPERS,
INC., D/B/A THE TIMES-HERALD RECORD