The Process Corp.

National Labor Relations Board - Board Decisions

Mar 21, 1968

170 N.L.R.B. 613 (N.L.R.B. 1968)

THE PROCESS CORPORATION
The Process Corporation and Chicago Printing
Pressmen 's Union -No. 3, affiliated with Interna-
tional Printing Pressmen and Assistants ' Union of
North America , AFL-CIO. Case 13-CA-7967
March 21, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On January 15, 1968, Trial Examiner George A.
Downing issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed excep-
tions and a brief in support thereof.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, The Process Corpora-
tion, Chicago, Illinois, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order, as
herein modified:
1. Add-to paragraph 2(a) of the Trial Examiner's
Recommended Order ". . . and, if an understanding
is reached, embody such understanding in a signed
agreement."
2. Add the following to the first paragraph of the
notice attached to the Trial Examiner's Decision:
... and, if an understanding is reached, we will
embody such understanding in a signed agree-
ment. -
3. The telephone number for Region 13, appear-
ing at the bottom of the notice, is amended to read:
828-7570.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE,
613
GEORGE A. DOWNING, Trial Examiner: This
proceeding under Section 10(b) of the National
Labor Relations Act, as amended, was heard at
Chicago, Illinois, on November 27, 1967, pursuant
to due notice. The complaint which was issued on
August 30, 1967, on a charge dated July 20, alleged
as amended that Respondent engaged in unfair
labor practices proscribed by Section 8(a)(5) and
(I) of the Act by refusing on and after May 23,
1967, to recognize and meet with the Union as the
duly certified collective-bargaining representative
of its employees in an appropriate unit. By its
answer Respondent admitted the certification but
denied the refusal to bargain.
I hereby grant the joint motion filed by General
Counsel and Respondent to correct the record in
accordance with their stipulation, and I have
directed the taking of administrative steps to obtain
the preparation and filing by the court reporter of a
corrected transcript.
Upon the entire record in the case including the
stipulation of fact made at the hearing, I make the
following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS ; THE LABOR
ORGANIZATION INVOLVED
I conclude and find on facts alleged in the com-
plaint and admitted by answer that Respondent is
engaged in commerce within, the meaning of the
Act' and that the Charging Party is a labor or-
ganization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
This case is grounded in a prior representation
proceeding in Case 13-RC-11007 in which the
Board issued its Decision and Certification on May
19, 1967, and in which it resolved all issues materi-
al to the present proceeding, save for the request
and the refusal to bargain both of which are
established by the record in the present case.2
Respondent sought, however, to relitigate herein
the Board's ruling in sustaining challenges to two
ballots pursuant to the report and recommendation
of its Hearing Officer which followed an investiga-
tion by the Regional Director and a formal hearing
'Respondent,, an Illinois corporation engaged in the manufacture of
greeting cards, sold and shipped to extra-state points during the past year
products valued in excess of $50,000
' Requests to bargain were made by the Union on May 23, June 26,
July 7, September 5, and October 25 On May 31 and June 13, Respond-
ent pleaded the illness and hospitalization of its president No answers
were received to the subsequent requests
170 NLRB No. 72
614 DECISIONS OF NATIONAL
held before the Hearing Officer on January 11 and
13 and February 6, 1967.
In this posture the present hearing was only a for-
mal step in readying for review the Board's Deci-
sion in the representation proceeding, for it is well
settled, that determinations made in a representa-
tion case are not directly reviewable in the courts.
See, e .g., Boire v. Greyhound Corp., 376 U.S. 473,
476; American Federation of Labor v. N.L.R.B., 308
U.S. 401. However, where the Board orders an em-
ployer to bargain with a union and its order is based
in whole or in part upon determinations made in
the representation proceeding, both enforcement
and/or judicial review may be obtained in the com-
plaint proceeding following a refusal to bargain
with the union . Section 9(d) so provides and it pro-
vides further that the record filed with the court
shall include the Board's certification and the
record in the representation proceeding.
It was precisely because of this that the Supreme
Court held some 25 years ago that, "The unit
proceeding and this complaint on unfair labor prac-
tices are really one." Pittsburgh Plate Glass Com-
pany v. N.L.R.B., 313 U.S. 146; 158. And because
the record in-the representation case was, under
Section 9(d), part of the record before the court,
the Supreme Court held that absent a showing of
additional evidence which was unavailable or was
not previously discovered, "A single trial of the
issue was enough." See also Allis-Chalmers Mfg. Co.
v. N.L.R.B., 162 F.2d 435, 440-441 (C.A. 7); Wor-
cester Woolen Mills v. N.L.R.B., 170 F.2d 13, 16
(C.A. 1).
Respondent: conceded here that the , evidence
which it proposed to offer was "substantially identi-
cal" with that contained in the representation
record and did not claim that it had anything which
was either newly discovered or previously unavail-
able. Its basic contention, both orally and by brief, is
that the Trial Examiner is required to review de
novo the record in the representation proceedings
to determine the propriety of the findings made, by
the Hearing Officer on the challenged ballots,
despite the prior adoption of those findings by the
Board . That contention is plainly without merit
under the cases above cited. The Worcester case is
particularly in point on its facts in that the em-
ployer there claimed that the Board election was in-
valid because ineligible persons were permitted to
vote. The Trial Examiner refused to permit relitiga-
tion of the issue because the employer made no
contention either that the evidence which it
proposed to offer was unknown to it or that the wit-
nesses were unavailable. The court upheld the
Board 's affirmance of the ruling.
I therefore conclude and find that on and after
May 23 Respondent refused to recognize and meet
with or bargain with the Union as the certified bar-
gaining representative of its, employees -in an ap-
propriate unit which as previously found by the
Board and as conceded at the present hearing is as
follows:
LABOR RELATIONS BOARD
All pressmen , assistant pressmen , apprentices
and, trainees employed by Respondent at its
-Cicero,, Illinois, location ; but excluding , office
clerical employees , professional - employees,
guards and supervisors as defined in the Act.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case , I make the
following:
CONCLUSIONS OF LAW
1. By refusing to bargain collectively with the
Union as the exclusive representative of its em-
ployees in an appropriate unit as above found,
Respondent engaged in unfair labor practices
within the meaning of Section 8(a)_{5) and (1) of
the Act.
2. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices I shall recommend that it
cease and desist therefrom and that it take certain
affirmative action as provided,in the Recommended
Order below which I find to be necessary to remedy
and to remove the effects of the unfair labor prac-
tices and to effectuate the policies of,the Act.
Upon the foregoing findings of fact and conclu-
sions of law and the entire record and pursuant to
Section 10(c) of the Act, I hereby issue the follow-
ing:
RECOMMENDED ORDER
The Process Corporation, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively -with the
Union as the certified bargaining representative of
the employees in the appropriate unit.
(b) In any like or similar manner interfering
with, restraining , or coercing its employees in the
exercise of their right to self-organization, to,form,
join, or assist said Chicago Printing Pressmen's
Union-No. 3, affiliated with International Printing
Pressmen and Assistants' Union of North America,
AFL-CIO, or any other labor organization, to bar-
gain - collectively through representatives of their
own choosing or to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection or to refrain from
any or all such activities except to the extent that
such -right may be affected by an agreement
authorized in Section,8(a)(3) of the Act.,
2. Take the following affirmative action:
(a) Bargain collectively, upon request, with said
Chicago Printing Pressmen's Union No. 3, concern-
ing rates of pay, wages, hours of employment,, or
THE PROCESS CORPORATION
other conditions of employment of its employees in
the appropriate unit herein found.
(b) Post at its offices and plant at Cicero, Il-
linois, copies of the attached notice marked "Ap-
pendix,"' Copies of said notice, to be furnished by
the Regional Director for Region 13, after being
duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained 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 Respon-
dent, to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL bargain collectively upon request
with Chicago Printing Pressmen's Union No. 3,
affiliated with International Printing Pressmen
and Assistants' Union of North America,
AFL-CIO, as the exclusive representative of
our employees in the appropriate unit concern-
' In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
615
ing rates of pay, wages, hours of employment,
and other conditions of employment.
The appropriate unit is:
All pressmen, assistant pressmen, ap-
prentices and trainees employed by us at
our Cicero, Illinois, location; but exclud-
ing office clerical employees, professional
employees, guards and supervisors as
defined in the-Act.
All our employees are free to become or remain
or refrain from becoming or remaining members of
the above-named or any other labor organization
except to the extent that such right may be affected
by an agreement authorized in Section 8(a)(3)-of
the Act.
Dated By
THE PROCESS
CORPORATION
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 881 U.S. Courthouse and Federal Office
Building, 219 S. Dearborn Street, Chicago, Illinois
60604, Telephone 353-7597.
and Order "
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify the Regional Director for
Region 13, in writing, within 10 days from the date ofthis Order, what steps
Respondent has taken to comply herewith "