Winchell Co.

National Labor Relations Board - Board Decisions

Dec 23, 1991

305 N.L.R.B. 903 (N.L.R.B. 1991)

903
305 NLRB No. 133
WINCHELL CO.
1 The Respondent, in its opposition to General Counsel’s motion
(although not in its answer to the complaint), contends that ‘‘newly
discovered and previously unavailable evidence,’’ to wit, evidence
concerning changes occurring at the Respondent’s place of business
since the Employer’s April 12, 1990 request for review of the Re-
gional Director’s decision, warrant a hearing on the unfair labor
practice complaint or a reopening of the representation case. ‘‘Newly
discovered evidence is evidence that was in existence at the time of
the hearing, and of which the movant was excusably ignorant.’’
Seder Foods Corp., 286 NLRB 215, 216 (1987). The evidence now
proffered by the Respondent is not newly discovered. To the extent
that the Respondent is now moving to reopen the record in the rep-
resentation case, it is denied.
2 The Respondent also contends there are special circumstances, to
wit, substantial employee turnover since the Board’s denial of the
Respondent’s motion for reconsideration of the Board’s decision in
the underlying representation case. The Respondent relies on Jeffer-
son County Community Center v. NLRB, 732 F.2d 122 (10th Cir.
1984), in which the 10th Circuit found that the Board did not abuse
its discretion in 259 NLRB 186 (1981), by allowing professional em-
ployees to vote in a rerun election whether they wished to be in-
cluded in a unit with nonprofessional employees (as well as allowing
the professionals and nonprofessionals to vote separately whether
they desired union representation, pursuant to Sec. 9(b)(1) of the
Act) after the election had been set aside on the basis of a fraudu-
lently cast ballot. Although the court volunteered that it was not un-
reasonable for the Board to conduct a new vote on the inclusion,
considering the 6-month time lag between elections, to take into ac-
count the turnover among professional employees, the Board, in 259
NLRB 186 (1981), did not rely on turnover. Furthermore, the 10th
Circuit’s opinion does not require the Board to consider employee
turnover. In addition, the election conducted in the case at hand is
a valid election and has not been overturned.
The Board, on June 28, 1991, denied as lacking in merit the Re-
spondent’s June 14, 1991 motion for reconsideration or, in the alter-
native, a new election, on the basis of turnover. We would not find
special circumstances here even if, as the Respondent contends, only
49 of the original 132 eligible voters remain employed by the Re-
spondent and the number of unit employees is now 59.
The Winchell Company and Graphic Communica-
tions International Union, Local 14-M, AFL–
CIO–CLC. Case 4–CA–19986
December 23, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 16, 1991, the General Counsel of the
National Labor Relations Board issued a complaint al-
leging that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus-
ing the Union’s request to bargain following the
Union’s certification in Case 4–RC–17069. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed its an-
swer admitting in part and denying in part the allega-
tions in the complaint.
On November 1, 1991, the General Counsel filed a
Motion for Summary Judgment. On November 6,
1991, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent and
Charging Party filed responses.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain, but attacks the validity of the certification on
the basis of the Board’s unit determination in the rep-
resentation proceeding and asserts that substantial turn-
over in the unit since the election has rendered the unit
inappropriate.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence,1 nor does it allege any
special circumstances2 that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, The Winchell Company, a Penn-
sylvania corporation, is engaged in the business of pro-
viding graphic arts services to commercial and finan-
cial customers with a facility in Philadelphia, Pennsyl-
vania. During the year ending September 16, 1991, the
Respondent, in the course and conduct of its business
operations described above, purchased and received
goods and materials valued in excess of $50,000 di-
rectly from points outside the Commonwealth of Penn-
sylvania. 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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held May 3, 1990, the Union
was certified on July 19, 1991, as the collective-bar-
gaining representative of the employees in the fol-
lowing appropriate unit:
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If 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.’’
INCLUDED: All full-time and regular part-time
lithographic production employees employed by
the Employer.
EXCLUDED: Bindery department employees;
production coordinators; proofreaders and com-
puter operators in the photo composition de-
partment; letterpress department employees;
proofreaders, quality control employees and
litho maintenance employees in the offset prep
department; line-up employees and cutters in
the sheetfed offset press department and the
multilith offset press department; guards and
supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since July 22, 1991, the Union has requested the
Respondent to bargain and since August 7, 1991, the
Respondent has refused. We find that this refusal con-
stitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after August 7, 1991, 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 af-
fecting 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 Sec-
tion 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 un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification 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 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, The Winchell Company, Philadelphia,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with Graphic Communica-
tions Internationl Union, Local 14-M, AFL–CIO–CLC,
as the exclusive bargaining representative of the em-
ployees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, 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 exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
INCLUDED: All full-time and regular part-time
lithographic production employees employed by
the Employer.
EXCLUDED: Bindery department employees; pro-
duction coordinators; proofreaders and com-
puter operators in the photo composition de-
partment; letterpress department employees;
proofreaders, quality control employees and
litho maintenance employees in the offset prep
department; line-up employees and cutters in
the sheetfed offset press department and the
multilith offset press department; guards and
supervisors as defined in the Act.
(b) Post at its facility in Philadelphia, Pennsylvania,
copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Re-
gional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
905WINCHELL CO.
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 Graphic Com-
munications International Union, Local 14-M, AFL–
CIO–CLC as the exclusive representative of the em-
ployees 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 bargaining unit:
INCLUDED: All full-time and regular part-time
lithographic production employees employed by
the Employer.
EXCLUDED: Bindery department employees; pro-
duction coordinators; proofreaders and com-
puter operators in the photo composition de-
partment; letterpress department employees;
proofreaders, quality control employees and
litho maintenance employees in the offset prep
department; line-up employees and cutters in
the sheetfed offset press department and the
multilith offset press department; guards and
supervisors as defined in the Act.
THE WINCHELL COMPANY