Uarco Inc.Download PDFNational Labor Relations Board - Board DecisionsJun 18, 1976224 N.L.R.B. 1236 (N.L.R.B. 1976) Copy Citation 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Uarco Incorporated and International Printing and Graphic Communications Union (AFL-CIO) Case 38-CA-2677 June 18, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on March 1, 1976, by Interna- tional Printing and Graphic Communications Union (AFL-CIO), herein called the Union, and duly served on Uarco Incorporated, herein called the Re- spondent, the General Counsel of the National La- bor Relations Board, by the Officer-in-Charge for Subregion 38, issued a complaint on March 11, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practic- es affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended Copies of the charge and complaint were duly served on the parties to this proceeding With respect to the unfair labor practices, the com- plaint alleges in substance that on October 31, 1975, following a Board election in Case 38-RC-1621, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate,' and that, commenc- ing on or about February 20, 1976, 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 Thereafter, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint The Respondent admits all of the factual allegations of the complaint, except those paragraphs which relate to the underlying rep- resentation proceeding, Case 38-RC-1621 The Re- spondent alleges that the certification issued to the Union is invalid by reason of the Board's errors in overruling its objections to the (lection conducted on October 17, 1974, urges that th,, election be set aside, and requests that the complaint be dismissed On April 2, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Official notice is taken of the record in the representation proceeding Case 38-RC-1621 as the term record is defined in Sees 102 68 and 102 69(g) of the Board s Rules and Regulations Series 8 as amended See LTV Electrosystems 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) Follett Corp 164 NLRB 378 (1967) enfd 397 F 2d 91 (C A 7 1968) Sec 9(d) of the NLRA as amended Judgment, with appendixes, alleging that the Respondent's answer raises no factual issues war- ranting a hearing in this proceeding and, therefore, requesting the Board to grant the Motion for Sum- mary Judgment On April 9, 1976, Respondent filed a reply to the Motion for Summary Judgment Subsequently, on April 14, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show 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 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 As reflected above, the Respondent's answer ad- mits all of the factual allegations of the complaint, including its refusal to recognize and bargain with the Union which had been certified as the collective- bargaining representative of the employees described in the complaint In its reply to the Motion for Sum- mary Judgment, as well as in its response to the No- tice To Show Cause, Respondent raises substantially the same matters that it raised in the underlying rep- resentation case, and the affirmative defenses in its answer to the complaint 2 The Respondent's answer attacks the validity of the election and the resulting certification, and it denies that the Union is the col- lective-bargaining representation of the employees in the bargaining unit 3 By this assertion, and more spe- cifically by its denials, in whole or in part, of the allegations of the complaint, the affirmative defenses alleged in its answer, and the arguments propounded in its reply to the Motion for Summary Judgment and in its response to the Notice To Show Cause, the Respondent is attempting to relitigate the same issues which it raised and litigated in the representation proceeding, Case 38-RC-1621, in which, after a hearing before a Hearing Officer, the Board adopted the Hearing Officer's findings and recommendations and issued a Decision and Certification of Represen- tative of October 31, 1975, and reaffirmed by its Or- 2 In its response to Notice To Show Cause Respondent states that it readopts and reaffirms all the matters and things heretofore set forth in its Answer and in its Reply to Motion for Summary Judgment filed herein ' These issues were raised and litigated by the Respondent in the prior representation case the record of which is before us and for the reasons recited herein may not be relitigated in this unfair labor practice case 224 NLRB No 168 UARCO INCORPORATED der denying Respondent's motion for reconsidera- tion issued on December 11, 1975 4 It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relrti- gate issues which were or could have been litigated in a prior representation proceeding 5 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 discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision 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 I THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a Delaware corporation with an office and place of business located at West Fleming Street, Watseka, Illinois It is engaged in the business of manufacturing business forms Respondent, during the past 12 months, which period is representative of all times material herein, sold and shipped from its Watseka plant finished products valued in excess of $50,000 to points outside the State of Illinois We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 International Printing and Graphic Communica- tions Union (AFL-CIO) is a labor organization with- in the meaning of Section 2(5) of the Act 4 The Board noted that the Respondent in its motion for reconsideration apparently wished the Board s Decision and Certification which adopted the Hearing Officers report interpreted with respect to the Union s misrep resentation of the Respondents profit The Board concluded that the mis representation was material but made in a cartoon thus frivolously and the Respondent though it knew of it and had an opportunity to rebut did not do so In ruling on this motion the Board has as indicated reviewed the record in that case On the basis of such review we find no ground for disturbing our prior findings and conclusions III THE UNFAIR LABOR PRACTICES A The Representation Proceeding 1 The unit 1237 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 unrepresented employees including plant clericals employed by the Employer in its prepa- ratory department, press department, finishing department, carbon plant, and material control plant at its Watseka, Illinois, facility, excluding all press and maintenance employees presently represented by labor organizations, guards, and supervisors as defined in the Act 2 The certification On October 17, 1974, 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 13, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent The Union was certified as the collective-bargaining representative of 'he em- ployees in said unit on October 31, 1975, 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 February 10, 1976, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit Commencing on or about February 20, 1976, 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 February 20, 1976, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act 5 See Pittsburgh Plate Glass Co v NLRB 313 U S 146 162 (1941) Rules and Regulations of the Board Sees 102 67(f) and 102 69(c) 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, inti- mate, 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 mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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), Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd 350 F 2d 57 (CA 10, 1965) The Board, upon the basis of the foregoing facts and the entire record, makes the following CONCLUSIONS OF LAW 1 Uarco Incorporated is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 International Printing and Graphic Communi- cations Union (AFL-CIO) is a labor organization within the meaning of Section 2(5) of the Act 3 All unrepresented employees including plant clericals employed by the Employer in its preparato- ry department, press department, finishing depart- ment, carbon plant, and material control plant at its Watseka, Illinois, facility, excluding all press and maintenance employees presently represented by la- bor organizations, guards, and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act 4 Since October 31, 1975, 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 February 20, 1976, 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 Re- spondent in the appropriate unit, Respondent has en- gaged 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 to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) 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 Re- lations Board hereby orders that the Respondent, Uarco Incorporated, Watseka, Illinois, 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 con- ditions of employment with International Printing and Graphic Communications Union (AFL-CIO) as the exclusive bargaining representative of its employ- ees in the following appropriate unit All unrepresented employees including plant clericals employed by the Employer in its prepa- ratory department, press department, finishing department, carbon plant, and material control plant at its Watseka, Illinois, facility, excluding all press and maintenance employees presently represented by labor organizations, 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 UARCOINCORPORATED 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 Watseka, Illinois, plant copies of the attached notice marked "Appendix " 6 Copies of said notice, on forms provided by the Officer-in-Charge for Subregion 38, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (c) Notify the Officer-in-Charge for Subregion 38, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith 6 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 1239 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 Inter- national Printing and Graphic Communications Union (AFL-CIO) as the exclusive representa- tive of the employees in the bargaining unit de- scribed 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement The bargaining unit is All unrepresented employees including plant clericals employed by the Employer in its pre- paratory department, press department, fin- ishing department, carbon plant, and material control plant at its Watseka, Illinois, facility, excluding all press and maintenance employ- ees presently represented by labor organiza- tions, guards, and supervisors as defined in the Act UARCO INCORPORATED Copy with citationCopy as parenthetical citation