St. Charles Journal

National Labor Relations Board - Board Decisions

Sep 28, 1981

258 N.L.R.B. 312 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR REALTIONS BOARD
St. Charles Journal, Inc. and Miscellaneous Drivers,
Helpers, and Public Employees Union, Local
No. 610, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Case 14-CA-15064
September 28, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on June 12, 1981, by Miscel-
laneous Drivers, Helpers, and Public Employees
Union, Local No. 610, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the
Union, and duly served on St. Charles Journal,
Inc., herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 14, issued a com-
plaint on June 18, 1981, 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 and 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 June 2, 1981,
following a Board election in Case 14-RC-9396,
the Union was duly certified as the exclusive col-
lective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about June 10, 1981, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representa-
tive, although the Union has requested and is re-
questing it to do so. On June 29, 1981, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the com-
plaint.
On July 20, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on July 28, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
Official notice is taken of the record in the representation proceed-
ing, Case 14-RC-9396, 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 Electrosystems, 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 Cir. 1969); Intertype 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.
258 NLRB No. 41
thereafter filed its response to the General Coun-
sel's Motion for Summary Judgment.
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, Respondent
admits that it has refused to recognize or bargain
collectively with the Union, but denies that said re-
fusal violated Section 8(a)(5) and (1) of the Act. In
response to the General Counsel's Motion for Sum-
mary Judgment, Respondent contends that applica-
ble law warrants the conclusion that the newspaper
carriers at issue here are independent contractors
rather than its employees and that their status "has
never been addressed by the Board on this record."
Respondent also contends in its answer to the com-
plaint that the activities of the carriers in combina-
tion with the Union constitute a combination and
conspiracy in restraint of trade in violation of the
Sherman and Clayton Acts. For the reasons given
below, we find no merit in these contentions.
A review of the record herein, including the
record in Case 14-RC-9396, reveals that the
Acting Regional Director for Region 14 issued a
Decision and Direction of Election on April 24,
1981. Thereafter, the Employer (Respondent
herein) filed a request for review of that decision
asserting that the Acting Regional Director erred
in finding that the newspaper carriers involved
herein are employees rather than independent con-
tractors. On May 22, 1981, the Employer's request
for review was denied on the ground that it raised
no substantial issues warranting review. In an elec-
tion held on May 22, 1981, the tally of ballots
showed 11 votes for, and 2 against, the Union, with
I challenged ballot. On June 2, 1981, the Regional
Director issued a Certification of Representative.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
2 See Pittsburgh Plate Glass Co. v..VL.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board. Secs 102.67(0 and 102.6
9
(c).
312
ST. CHARLES JOURNAL
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 Mis-
souri corporation, has been engaged in the publica-
tion and distribution of a newspaper. During the
12-month period ending June 1, 1981, which period
is representative of its operations during all times
material herein, Respondent, in the course and con-
duct of its business operations, derived gross reve-
nue in excess of $200,000 from the publication and
distribution of its newspaper and annually derives
revenue in excess of $50,000 directly from advertis-
ing agencies for nationally advertised and sold
products, which agencies are located outside the
State of Missouri.
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 jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Miscellaneous Drivers, Helpers, and Public Em-
ployees Union, Local No. 610, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, 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 consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All newspaper carriers employed at Respond-
ent's 340 North Main, St. Charles, Missouri,
facility, excluding composing room employees,
hammer room employees, news gathering em-
ployees, advertising employees, sales employ-
ees, office clerical and professional employees,
guards and supervisors as defined in the Act.
2. The certification
On May 22, 1981, 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 14, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on June 2, 1981, 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 4, 1981, and at all
times thereafter, the Union has requested Respond-
ent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing
on or about June 10, 1981, 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
June 10, 1981, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate 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.
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 oper-
ations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
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.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 certi-
fication 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 (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:
CONCIUSIONS OF LAW
1. St. Charles Journal, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Miscellaneous Drivers, Helpers, and Public
Employees Union, Local No. 610, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All newspaper carriers employed at the Em-
ployer's 340 North Main, St. Charles, Missouri, fa-
cility, excluding composing room employees,
hammer room employees, news gathering employ-
ees, advertising employees, sales employees, office
clerical and professional employees, guards and su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since June 2, 1981, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 10, 1981, 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent 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 en-
gaged 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 Re-
lations Board hereby orders that the Respondent,
St. Charles Journal, Inc., St. Charles, Missouri, 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 Miscellaneous
Drivers, Helpers, and Public Employees Union,
Local No. 610, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All newspaper carriers employed at the Em-
ployer's 340 North Main, St. Charles, Missou-
ri, facility, excluding composing room employ-
ees, hammer room employees, news gathering
employees, advertising employees, sales em-
ployees, office clerical and professional em-
ployees, guards and supervisors as defined in
the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its St. Charles, Missouri, facility
copies of the attached notice marked "Appendix.":'
Copies of said notice, on forms provided by the
Regional Director for Region 14, 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
:' In the event that this Order is enfirced 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National labor Relations Board"
314
ST. CHARLES JOURNAl.
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 14,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX
No-TICE To EMPI.OYES
POSTED BY ORDEIR 01F THE
NATIONA. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Miscellaneous Drivers, Helpers, and
Public Employees Union, Local No. 610, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive representative of
the employees in the bargaining unit described
below.
WL WIrl.L NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
W}: Wii.., upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All newspaper carriers employed at the Em-
ployer's 340 North Main, St. Charles, Mis-
souri, facility, excluding composing room
employees, hammer room employees, news
gathering employees, advertising employees,
sales employees, office clerical and profes-
sional employees, guards and supervisors as
defined in the Act.
ST. CHARL IS JOURNAl, INC.
315