Petition for Writ of Certiorari — NTA Graphics, Inc. v. National Labor Relations Board
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Supreme Court of the Unibed-Btates
October Term, 1993
NTA GRAPHICS, INC.,
Petitioner,
vs.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
CourT OF APPEALS For THE SIXTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Timotuy C. McCarTHY
Counsel of Record for Petitioner
North Courthouse Square
1000 Jackson
Toledo, Ohio 43624-1573
(419) 241-9000
Of Counsel:
GreEGorY T. LODGE
SHUMAKER, Loop & KENDRICK
North Courthouse Square
1000 Jackson
Toledo, Ohio 43624-1573
(419) 241-9000
December 3, 1993
THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216 621-5647
i.
QUESTIONS PRESENTED
1. In crafting an appropriate bargaining unit in a
simple, single-product commercial printing operation,
should the National Labor Relations Board be permitted
to depart, without explanation or justification, from its
established rule that the appropriate bargaining unit in
even relatively sophisticated operations should include,
at a minimum, pressroom and preparatory employees as
opposed to isolating a unit of press employees alone?
2. Should such a departure, permitted by the Sixth
Circuit in this case, be judicially enforced when the only
other such attempted departure was denied enforcement
by the Seventh Circuit?
3. Should an administrative agency depart from its
prior standards without any explanation of its legal basis
or reasons for doing so?
Se ee eae ee ae bk ee eee eee ee ee te we see
iii.
TABLE OF CONTENTS.
QUESTIONS PRESENTED .................4..
TABLE OF AUTHORITIES
Ge EIU vinccccceveveccccceseesevess
JURISDICTION OF THE SUPREME COURT....
EP BEt FEE Es cic cccccccseccccsccess
STATEMENT OF THE CASE ..................
REASONS FOR GRANTING THE WRIT........
1.
The Sixth Circuit Has Permitted The
National Labor Relations Board To Depart
From Prior Standards Without Any
Meaningful Explanation Of Its Legal Basis
Or Reasons For Doing So, Contrary To
Decisions Of This Court And The Fifth,
Seventh, Ninth And District Of Columbia
ee lew pwh ee
The Sixth And Seventh Circuits Are
Diametrically Opposed In Their Review Of
Efforts By The National Labor Relations
Board To Abruptly Scuttle Its Traditional
Rules On Bargaining Unit Composition In
Commercial Printing Operations Without
Reason Or Justification.................
PEC eco eces de Ssesecscccesecececess
“eee eeeeeeeeeeeeeenenee
13
iv.
APPENDIX:
Opinion of the United States Court of Appeals for
the Sixth Circuit (June 21, 1993)............. Al
Decision and Order of the National Labor
Relations Board (July 24, 1992).............. A5
Order of the National Labor Relations Board
Gee SNE cs hace pea bb webapsecasses Al13
Decision and Direction of Election of National
Labor Relations Board Regional Director
(Rae, SE ie bons cides eh sereientees Al5
Vv.
TABLE OF AUTHORITIES
Cases
American Shipbuilding Co. v. NLRB, 380 U.S. 300
Cn i se ee ee eRe ek oe 20
Check Printers, Inc., 205 NLRB 33, 83 L.R.R.M.
Cs SEO TI iis oc Had $8 elas N is Fee RCRA SS 7
Community Service Publishing, 216 NLRB 997, 89
L.R.R.M. (BNA) 1261 (1975).................2-- 14
Continental Can Co., 217 NLRB 316, 89 L.R.R.M.
Ge PENSE SS So's bas SRE Wbe cee cnebeee. 14
Continental Web Press, Inc., 262 NLRB 1395, 110
L.R.R.M. (BNA) 1461 (1982)... 2... ccc cece eens 6,7
Continental Web Press, Inc. v. NLRB, 742 F.2d
ok! A | Se ere passim
Earl Litho Printing Co, 116 NLRB 1538, 39
L.R.R.M. (BNA) 1040 (1956)................... 7
Eastern-Central Motor Carriers Ass'n v. United
States, 321 U.S. 194 (1945). ........ cc ccc cece 20
Greater Boston Television Corp. v. FCC, 444 F.2d
841 (D.C. Cir. 1970), cert. denied, 403 U.S. 923
CRN olin d ibe dae dso x ew devi cee deeereewen te 17
Hall-Brooke Hospital v. NLRB, 645 F.2d 158 (2d
Ci SOR on ve cod nab ebed eMac eve beanie ewe 22
INS v. Cardozo-Fonseca, 480 U.S. 421 (1987)....... 23
Mallinckrout Chemical Works, 162 NLRB 387, 64
L.R.R.M. (BNA) 1011 (1966)................... 21
NLRB v. Brown Food Store, 380 U.S. 278 (1965) ... 20
vi.
NLRB v. Curtin Matheson Scientific, Inc., 494
Welk Fatt UME cs 4 ba0 db dine cuidleteemeee oo seas 16
NLRB v. Engineers Constructors, Inc., 756 F.2d 464
CORR SR 9 6k5. bio ono 38 > tb de 22
NLRB v. International Union of Operating
Engineers, Local 925, 460 F.2d 589 (5th Cir.
SUUMN i ck side 0 ceceneddeedeekki «cee 17,18
NLRB uv. J. Weingarten, Inc., 420 U.S. 251
GEDPE oe <ccccceeneadsudsainemes tease 20
NLRB uv. Silver Bay Local Union No. 962,
International Brotherhood of Pulp Workers, 498
Fae SB Ge Ge Bee isn ov os vas cca eaten 18
NLRB v. United Food & Commercial Workers
Celom, 4664 UG, TED ec vis vc ttncdkcasateocs 23
NLRB uv. Yeshiva University, 444 U.S. 672
GRUNT 60 0060449000000 0ns ees ee 20,25
R. W. Nowels, 219 NLRB 222, 89 L.R.R.M. (BNA)
Me Py ere ne HELE hy 14
Republic Aviation Corp. v. NLRB, 324 U.S. 793
Co ee fee ee men Ve 20
Secretary of Agriculture v. United States, 347 U.S.
OGD COP ees kv ceencvsdccusdcuasseuabdesene 15,16
United Automobile Workers of America v. NRLB,
459 F.2d 1329 (D.C. Cir. 1972)..............0.. 17
Watt v. Alaska, 451 U.S. 259 (1981) .............. 23
vii.
Statutes
Administrative Procedures Act, 5 U.S.C. §§ 551-59,
704-06: ‘
Se Ss ceractderesscesiees 4,18
5 U.S.C. § T0G(2ME). 0... eee ee eee ee eee ee ees 5,18
National Labor Relations Act $§ 151-69:
29 U.S.C. § 158(a)(1) and (a)(5).......-- ee eee eee 3
29 U.S.C. § 167... ccc ccc ccc c cece rcccccees 3
29 U.S.C. § 159(a).. 1... eee eee eee rere eens 3
29 U.S.C. § 160(b) .. 1... ee eee eee eee ee eens 4,18
29 U.S.C. § 160le) .... 2... cece ee eee ween 4,8,18,20
29 U.S.C. § 160(f) .. 0... cece cece cece eee eceee 20
Miscellaneous
Patrick Hardin (BNA), The Developing Labor Law
A466 (Sd ed. 1992) ...... ccc cece ccc ccececcrcces 22
John E. Abodeely, Randi C. Hammer, Andrew L.
Sandler (IRU), The NLRB and The Appropriate
Bargaining Unit 87 (rev. ed. 1981)........------ 22
No.
IN THE
Supreme Court of the United States
October Term, 1993
NTA GRAPHICS, INC.,
Petitioner,
vs.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES CouRT OF APPEALS FOR THE SIXTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Petitioner, NTA Graphics, Inc.,’ respectfully prays
that a writ of certiorari issue to review the judgment of
the United States Court of Appeals for the Sixth Circuit
entered in this case on June 21, 1993.
' All of the parties to this petition are listed in the caption. NTA
Graphics, Inc. has no parent companies or subsidiaries.
2
OPINIONS BELOW
The order of the United States Court of Appeals for
the Sixth Circuit, which was entered in this matter on
June 21, 1993, is styled, National Labor Relations Board
v. NTA Graphics, Inc. It appears at App. Al.
The Decision and Order of the National Labor
Relations Board is reported at 307 N.L.R.B. No. 224
(1992). It appears at App. A5.
The Order of the National Labor Relations Board
(September 25, 1987) appears at App. A13.
JURISDICTION OF THE SUPREME COURT
The judgment of the Court of Appeals for the Sixth
Circuit was entered on June 21, 1993. A petition for
rehearing was denied by the United States Court of
Appeals for the Sixth Circuit on August 23, 1993.
An order signed by Justice John Paul Stevens on
November 15, 1993 extended to December 6, 1993 the
time to file a petition for a writ of certiorari. This
petition was filed on or before that date.
The jurisdiction of this Court is invoked pursuant to
28 U.S.C. § 1254(1).
3
STATUTES INVOLVED
The relevant provisions of the National Labor
Relations Act (the “‘Act”’), as amended, 29 U.S.C. §§ 151-
69, are set forth below:
Sec. 7. “Employees shall have the right to self-
organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, and shall also have the right to refrain
from any or all of such activities except to the
extent that such right may be affected by an
agreement requiring membership in a_ labor
organization as a condition of employment as
authorized in section 158(a)(3) of this title.” 29
U.S.C. § 157.
Sec. 8. ‘‘(a) It shall be an unfair labor practice
for an employer—
(1) to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in
section 157 of this title;
(5) to refuse to bargain collectively with the
representatives of his employees, subject to the
rovisions of section 159(a) of this title.’’ 29 U.S.C.
158(a)(1) and (a)(5).
Sec. 9. “(a) Representatives designated or
selected for the purposes of collective bargaining by
the majority of the employees in a unit appropriate
for such purposes, shall be the _ exclusive
representatives of all the employees in such unit for
the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, or other
conditions of employment... .”” 29 U.S.C. § 159(a).
4
Sec. 10. ‘“‘(b) Whenever it is charged that any
person has engaged in or is engaging in any such
unfair labor practice, the Board, or any agent or
agency designated by the Board for such purposes,
shall have power to issue and cause to be served
upon such person a complaint stating the charges in
that respect, and containing a notice of hearing
before the Board or a member thereof, or before a
designated agent or agency.... The person so
complained of shall have the right to file an answer
to the original or amended complaint and to appear
in person or otherwise and give testimony at the
place and time fixed in the complaint. In the
discretion of the member, agent, or agency
conducting the hearing or the Board, any other
person may be allowed to intervene in the said
proceeding and to present testimony. Any such
proceeding shall, so far as practicable, be conducted
in accordance with the rules of evidence applicable
in the district courts of the United States under the
rules of civil procedure for the district courts of the
United States, adopted by the Supreme Court of the
United States pursuant to section 2072 of Title 28.”
‘“(e) The findings of the Board with respect to
questions of fact if supported by substantial
evidence on the record considered as a whole shall
be conclusive.” 29 U.S.C. § 160(b) and (e).
The relevant provisions of the Administrative
Procedures Act, 5 U.S.C. §§ 551-59, 704-06, are set forth
below:
“All decisions, including initial, recommended, and
tentative decisions, are a part of the record and shall
include a statement of—
(A) findings and conclusions, and the reasons
or basis therefor, on all the material issues of fact,
law, or discretion presented on the record....” 5
U.S.C. § 557(c).
5
“The reviewing court shall—
(2) hold unlawful and set aside agency
action, findings, and conclusions found to be—
(E) unsupported by — substantial
evidence. .. .’’ 5 U.S.C. § 706(2)(E).
6
STATEMENT OF THE CASE
Proceedings Below
The United States Court of Appeals for the Sixth
Circuit in this case enforced an order of the National
Labor Relations Board holding that a unit composed
solely of pressroom employees is appropriate for the
purposes of collective bargaining. Designation of such a
unit is contrary to the Board’s established approach to
this area. When the Board attempted to vary from this
long line of authority in Continental Web Press, Inc., 262
NLRB 1395, 110 L.R.R.M. (BNA) 1451 (1982) (upon
which the Board and its Regional Director relied in this
case), the United States Court of Appeals for the
Seventh Circuit denied enforcement of the Board’s order
in a decision highly critical of the Board’s departure from
its prior holdings. See Continental Web Press, Inc. v.
NLRB, 742 F.2d 1087 (7th Cir. 1984).
Petitioner, NTA Graphics, Inc. (‘““Company’’’ or
“Employer”), is a commercial printer, whose single
product is advertising inserts for grocery stores. Five
departments at a single plant are involved in the
production of this product, including the Composition
Department, the Pre-Press Department, the Press
Department, the Shipping/Receiving Department and the
Maintenance Department.
In 1987, the Graphic Communications International
Union, Detroit/Toledo/Lansing Local 289, AFL-CIO-CLC
(“Union”), filed a petition seeking to represent the
Company’s employees in collective bargaining. The
Union originally petitioned for a unit consisting of the
employees in the Pre-Press and Press Departments (i..e.,
all employees directly involved in lithographic production
operations), which is at least arguably consistent with
some Board precedent in this area. The Employer,
relying upon Board decisions involving printing
7
operations like those involved here (i.e., simple, single-
product offset printing processes), urged a traditional
production and maintenance unit. See, e.g. Check
Printers, Inc., 205 NLRB 33, 83 L.R.R.M. (BNA) 1540
(1973).
After the hearing on its representation petition, the
Union changed its stance and argued that the
appropriate unit should include only the employees in the
Press Department. The Board’s Regional Director
adopted the Union’s new-found position and decided that
the bargaining unit should consist of only pressroom
employees (App. Al5). As sole legal support for his
decision, the Regional Director relied upon the decision
by the Board in Continental Web Press, 262 NLRB 1395,
110 L.R.R.M. (BNA) 1451 (1982).
Continental Web, however, is an aberration. All prior
Board precedent deciding the appropriate units in
commercial printing operations fell into two categories:
(1) in highly skilled and highly technical operations, the
unit consisted of both preparatory and press department
employees, e.g., Earl Litho Printing Co., 116 NLRB 1538,
1539, 39 L.R.R.M. (BNA) 1040 (1956) (“the Board has
consistently held that all employees engaged in the
lithographic production process form a cohesive unit for
collective bargaining purposes and has established units
which included all such employees without regard to the
specific skills of the employees or the departmental
nature of the unit sought’’); or, (2) in less sophisticated
printing operations, a_ traditional production and
maintenance unit is appropriate, e.g, Check Printers,
supra.
Continental Web is the only decision by the Board
paring out a unit of only pressroom employees—a
marked departure from this well-established precedent.
It was for this reason that the Seventh Circuit refused to
8
enforce the Board’s order, concluding that it was
“arbitrary’’ to “discard ... without explanation” a ‘clear
policy that seems applicable to this case.’”’ Contine tal
Web, 742 F.2d at 1093.
In the instant case, the Employer sought review by
the Board of the Regional Director’s decision to isolate
the Press Department employees in a_ separate
bargaining unit. In a cursory split decision, two members
of the three-member Board panel decided to deny the
request (App. A13). Without any specific discussion of
the facts, Members Babson and Johansen simply stated
that the “facts here warrant a departure from the
traditional unit of lithographic production employees’’
(Id.). Member Stephens dissented, stating that the
request should have been granted in order to determine
the applicability of the decision of the Seventh Circuit
denying enforcement of Continental Web (App. A14).
After the Employer engaged in a technical refusal to
bargain with the Union, an unfair labor practice charge
was filed and disposed of with summary judgment by
the Board ordering the Employer to engage in collective
bargaining with the Union for only the pressroom
employees (App. A5). Pursuant to Section 10(e) of the
Act [29 U.S.C. § 160(e)], the Board petitioned the Sixth
Circuit for enforcement of its order.
The Sixth Circuit granted the petition for
enforcement (App. Al). A panel of the Court, engaging in
only the most perfunctory review of the Board’s decision,
failed to even acknowledge that the Board was departing
from established rules of bargaining unit composition in
the printing industry. The panel did not mention the
Seventh Circuit’s decision in Continental Web. The
panel’s failure to even note that the Board was ignoring
a long line of precedent in isolating a unit composed only
of pressroom employees in this case amply demonstrates
the superficiality of its analysis.
9
Statement of Facts
Press Department employees at the Company are
but one segment of a multi-step, functionally integrated
printing operation. The terms and conditions of their
employment are largely similar to their peers at other
steps in the process.
As indicated above, the Company is a relatively
simple commercial printing operation whose standard
product is a grocery advertising insert to be included in
newspapers. These inserts are printed on a standard
four-color offset web press. This process is a garden-
variety offset printing process, and the Employer is not
involved in technically advanced press operations.
In producing the Company’s single product, an
advertising insert, there is, and must be, a great deal of
contact and communication between the Press
Department and the other departments that precede and
follow it. Any project received from one of the
Company’s grocery clients begins with copy provided by
the customer. The project then proceeds to the
Composition Department, where job tickets are made
instructing all departments on how the job should be
performed. These job tickets are then personally
distributed to all the other departments. The
Composition Department consults with the Pre-Press
Department on color and configurations, spending some
one to five hours per day in discussion. It also instructs
the Press Department on paper size and quantities. The
Shipping/Receiving Department is given directions on
the timing and destination of shipments.
The project then proceeds to the Pre-Press
Department, where the copy provided by the grocery
store is photographed. Strippers employed in the Pre-
10
Press Department take the photographic flats, strip out
the color, and then organize the pages in accordance with
the instructions provided by the Composition
Department. Plates are prepared and proofread, and
those plates are then assembled and organized, and skid
labels and bundle tags prepared by the Composition
Department are attached.
The order in which various projects are run is
determined by the Plant Superintendent. After the run
sequence has been determined, the projects are placed in
folder racks and made available to the Press
Department.
Once the plates are available, employees in the Press
Department obtain those plates from the Pre-Press
Department, hang them in accordance with instructions
on the job ticket prepared by the Composition
Department, and then printing begins. The first readable
copy is proofread by the pressman against the job
tickets prepared by the Composition Department to
make sure the pagination is correct. An initial readable
*copy is also taken back to the Pre-Press Department for
proofreading to make sure it conforms to the original
copy provided by the customer.
The pressman is assisted by a jogger, who, in
addition to providing miscellaneous help, takes the
printed product off the end of the press and sweeps up
around the press. In sum, the jogger is an unskilled
worker who helps the pressman. The Company usually
selects its pressmen from the ranks of the joggers.
The Company requires no particular educational or
experience levels for its pressmen, its joggers or its
employees in other Departments. The Company has no
apprenticeship program, nor does it require any special
technical schooling of any sort of any of its employees.
11
The Sixth Circuit stressed that the Company’s
pressmen supposedly have certain advanced skills, which
justify their inclusion in a separate unit. The Court
emphasized that the “pressroom is the only department
in the Company that designates a skill level promotion
after three years experience’ (App. A3). In actuality,
though, eight of the eleven pressmen were trainees in the
first three years who, like the Company’s other
employees, were simply learning on the job (App. A3).
Pressmen have no particular prior educational or job
experience requirements and, as mentioned above, are
typically drawn from the ranks of the unskilled joggers.
Ironically, the Employer’s truck drivers are at least
required to have a chauffeur’s license, and some of the
material handlers hold forklift licenses.
Pressmen are given an operating manual prepared by
the manufacturer of the press. Other employees in the
Pre-Press Department have similar operating manuals
for the equipment they use, and the truck drivers are
furnished special rules and regulations applicable to
them. There is no further evidence of any special
expertise required of the pressmen.
Neither the Sixth Circuit nor the Board considered
the many similarities in wages, hours and working
conditions shared by Press Department and other
employees. All employees of the Company, with the
exception of top management, are hourly employees.
They all punch the same time clock. The hourly rates for
the various departments at the time of the hearing were
largely consistent as Pre-Press Department employees
earned $4.90 to $9.50 per hour, while Press Department
employees earned $3.85 to $9.00 per hour.
12
Employees in all the departments are subject to the
same employment policies and receive the same fringe
benefits. They are subject to the same disciplinary rules
and procedures, including rules on absenteeism, smoking,
telephone calls, solicitation and security. They all enjoy
the same vacation, life insurance and health insurance
benefits. They are subject to the same overtime
assignment and compensation programs. They all receive
the same shift premium.
The Sixth Circuit, observing that the ‘main
pressroom is physically separated from the other parts of
the Company’s building by brick walls,’ suggested that
this putative physical isolation justified segregation for
collective bargaining purposes. (Jd.) The Pressroom is,
however, the center of the Employer’s plant where the
pressmen and joggers work for the bulk of their
workday, and where employees in several other
Departments are taken in the performance of their
duties. Adjacent to the Pressroom are the Pre-Press
Department, the Shipping/Receiving Department and the
maintenance office, and the pressmen are regularly in
these other areas for a variety of purposes, for example,
visiting the Pre-Press Department when problems arise
during a press run.
All employees have an additional reason to be in the
Pressroom other than the performance of customary job
duties. The time clock is located there, which is punched
by everyone. The plant includes a cafeteria and there is a
picnic table in front of the plant for use by the
employees. These facilities are used by employees in all
the production and maintenance departments. A locker
room in the Pressroom is used by employees in the
Press, Shipping/Receiving and Maintenance
Departments.
13
REASONS FOR GRANTING THE WRIT
1. The Sixth Circuit Has Permitted The National
Labor Relations Board To Depart From Prior Standards
Without Any Meaningful Explanation Of Its Legal Basis
Or Reasons For Doing So, Contrary To Decisions Of
This Court And The Fifth, Seventh, Ninth And District
Of Columbia Circuits.
For many years and in several cases, the National
Labor Relations Board has held that an appropriate
bargaining unit in the printing industry must include at
least those preparatory and press employees involved in
the lithographic production process:
“For many years, through many changes of
Administration, the Board has been saying that
pressmen and preparatory employees compose one
unit in lithographic printing plants. See, e.g., NLRB
v. Lord Baltimore Press, Inc., 370 F.2d 397, 400 and
n.4 (8th Cir. 1966); Meyer Label Co., 232 N.L.R.B.
933 (1977), rev’d 597 F.2d 18 (2d Cir. 1979); Moore
Business Forms, Inc., 216 N.L.R.B. 833, 834 (1975);
George Rice & Sons, 212 N.L.R.B. 947 (1974);
Paramount Press, Inc., 187 N.L.R.B. 586 (1970);
Sherwin-Williams Co., 173 N.L.R.B. 316 (1968); A.B.
Hirschfeld Press, Inc., 140 N.L.R.B. 212, 216 (1962);
Allen, Lane & Scott, 137 N.L.R.B. 223, 225 (1962)
(‘long-standing rules’); Earl Litho Printing Co., 116
N.L.R.B. 1538, 1539 (1956) (‘The Board has
consistently held that all employees engaged in the
lithographic production process form a cohesive unit
for collective-bargaining purposes and has
established units which included all such employees
without regard to the specific skills of the employees
or the departmental nature of the unit sought’); A.B.
Hirschfeld Press, Inc., 96 N.L.R.B. 1068, 1069 (1951)
14
(‘absent unusual circumstances, all employees
engaged in the lithographic process form an
indivisible entity for the purposes of collective
bargaining’); Johnson City Publishing Co., 81
N.L.R.B. 1341, 1342 (1949); Manz Corp., 79 N.L.R.B.
211, 212 (1948); cf. NLRB v. Krieger-Ragsdale & Co.,
39 F.2d 517, 520 (7th Cir. 1967); National Blank
Book Co., 246 N.L.R.B. 921 (1979); Olin Corp., 229
N.L.R.B. 793 (1977). The earlier cases are more
emphatic on this score than the later ones, but, so
far as we can tell, this is only because the policy had
become so well established that allusion was all that
was required to invoke it. See, e.g., Confort & Co.,
267 N.L.R.B. No. 47, at p. 5 (Aug. 25, 1983) (citing
Allen, Lane & Scott, supra).’’ Continental Web
Press, Inc. v. NLRB, 742 F.2d 1087, 1092 (7th Cir.
1984).
See also R. W. Nowels, 219 NLRB 222, 89 L.R.R.M.
(BNA) 1705 (1975); Continental Can Co., 217 NLRB 316,
89 L.R.R.M. (BNA) 1283 (1975); Community Service
Publishing, 216 NLRB 997, 89 L.R.R.M. (BNA) 1261
(1975).
In this case, the Board ignored this long line of
authority, instead plucking out a small unit of pressroom
employees alone. The Board conceded that it was
departing ‘‘from the traditional unit of lithographic
production employees’ (App. A13). The only reason
given for this departure was that there was “insufficient
evidence of cohesiveness’ between the preparatory
and pressroom employees. (/d.) The Board failed
in any respect to identify what dissimilarities in
employment conditions it found to be significant in
finding that the pressroom employees were not cohesive
with other employees. It failed to explain what factors
15
led it to conclude that prior rules on the composition of
bargaining units in the printing industry should not be
followed.
The Seventh Circuit has refused to enforce virtually
the same order of the Board in essentially identical
circumstances. Holding to well-subscribed principles of
federal administrative law, the Court refused to
countenance the Board’s attempts to arbitrarily vary
from existing rules without explanation:
“The Board is allowed to reverse course. But it
has got to give reasons, or else the reversal is
arbitrary. This general principle of administrative
law [citations omitted], is fully applicable to unit
determinations. [Citations omitted.] The Board gave
no reasons for changing course in this case—and in
fact denied doing so.’’ Continental Web, 742 F.2d at
1093.
The Court noted that ‘‘by a course of adjudications
extending over many years, the Board succeeded in
developing a clear policy that seems applicable to this
case,” which was to include both press and preparatory
employees in a bargaining unit. Jd. The Court then held
that ‘‘to discard the policy without explanation would be
arbitrary.’’ Id.
Nearly 40 years ago, this Court established as a
fundamental precept of federal administrative law that
administrative agencies must explain their reasons for
departing from previously recognized policies and
standards. In Secretary of Agriculture v. United States,
347 U.S. 645 (1954), the Court charged administrative
agencies with the following duty:
“(T]he Commission has not adequately explained its
departure from prior norms and has not sufficiently
spelled out the legal basis of its decision ... In
16
short, the Commission has not explained its decision
‘with the simplicity and clearness through which a
halting impression ripens into reasonable certitude.
In the end, we are left to spell out, to argue, to
choose between conflicting inferences. Something
more precise is requisite in the quasi jurisdictional
findings of an administrative agency. [Citations
omitted.| We must know what a decision means
before the duty becomes ours to say whether it is
right or wrong.’ United States v. Chicago, M. St. P.
& P. R. Co., 294 U.S. 499, 510-511.” Id. at 653-54.
In a dissenting opinion in NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775 (1990), Justice Blackmun
criticized the National Labor Relations Board for its
departure, ‘‘without explanation, from principles
announced and reaffirmed in its prior decisions.’’ Jd. at
799. Justice Blackmun reasoned that requiring an
agency to provide some explanation of its rationale
permits the courts to provide sensible limits on the
authority of an unelected bureaucracy without needlessly
invading the discretion that should be accorded expert
administrative agencies:
“But courts can and should review agency
decisionmaking closely to ensure that an agency has
adequately explained the bases for its conclusions,
that the various components of its policy form an
internally consistent whole, and that any apparent
contradictions are acknowledged and addressed.
This emphasis upon the decisionmaking process
allows the reviewing court to exercise
control over unelected officials without second-
guessing the sort of expert judgments that a court
may be ill equipped to make. Such an approach also
affords the agency a broad range of discretion.
Confronted with a court’s conclusion that two of its
policy pronouncements are inconsistent, the agency
may choose for itself which path to follow, or it may
attempt to explain why no contradiction actually
exisis.”’ Jd. at 800.
17
As the District of Columbia Circuit has observed, ‘‘an
agency changing its course must supply a reasoned
analysis indicating that prior policies and standards are
being deliberately changed, not casually ignored, and if
an agency glosses over or swerves from prior precedence
without discussion, it may cross the line from the
tolerably terse to the intolerably mute.” Greater Boston
Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir.
1970), cert. denied, 403 U.S. 923 (1971).
This basic tenet of administrative law has been
repeatedly applied in reviewing decisions of the National
Labor Relations Board. When the Board abandoned its
prior rule that an adverse inference may be drawn
against a party who has relevant evidence within his
control which he fails to produce in United Automobile
Workers of America v. NLRB, 459 F.2d 1329 (D.C. Cir.
1972), the Court reversed the Board because ‘‘the agency
obviously has not followed the numerous precedents
which seem to require use of the adverse inference rule.”’
Id. at 1341. Recognizing ‘an elementary tenet of
administrative law that an agency must either conform
to its own precedents or explain its departure from
them,” the District of Columbia Circuit found it
arbitrary for the Board to choose without explanation to
ignore prior decisions.
In NLRB uv. International Union of Operating
Engineers, Local 925, 460 F.2d 589 (5th Cir. 1972), the
Court refused to enforce a Board order holding a union
business manager personally liable for back pay,
contrary to prior Board decisions. The Court recognized
that the Board could adopt new approaches, but could
only do so explicitly with a stated rationale:
“It is, of course, true that the Board is free to adopt
new rules of decision and that the new rules of law
can be given retroactive application. Nevertheless,
18
the Board may ngt depart sub silentio, from its
usual rules of decision to reach a _ different,
unexplained result in a single case. ... Here, the
Board’s departure from its prior rule was wholly
unexplained in its decision.”’ Jd. at 604.
The Ninth Circuit has adopted the same approach as the
Fifth Circuit. See NLRB v. Silver Bay Local Union No.
962, International Brotherhood of Pulp Workers, 498
F.2d 26, 29 (9th Cir. 1974).?
The Sixth Circuit in this case impermissibly allowed
the Board to unilaterally abandon prior rules without
explanation, ignoring fundamental principles of federal
administrative law set out by this Court and observed by
several circuits. The Board cavalierly abandoned
traditional rules for reasons not explained, save in the
conclusory label of ‘“‘insufficient evidence of
cohesiveness.’ The petition for writ of certiorari in this
case should be granted to bring the Sixth Circuit, and
the Board, into conformity with basic maxims of federal
administrative law requiring sgencies to simply explain
why they are reaching the conclusions they reach,
particularly when those conclusions are at odds with
previous decisions of the same agency.
* That the Board is required to set forth reasons for its abandonment
of prior precedents is reinforced in relevant statutes. The Board’s
unfair labor practice proceeding in this case is a formal adjudication,
governed by the Administrative Procedures Act. That act requires
“findings and conclusions, and the reasons or bases therefor, on all
the material issues of fact, law, or discretion presented on the
record.” 5 U.S.C. § 557(c). The National Labor Relations Act
commands that unfair labor practice proceedings must be conducted
formally in accordance with the federal rules of evidence, and both
the National Labor Relations Act and the Administrative Procedures
Act call for reversal of agency determinations that are not supported
by substantial evidence. See National Labor Relations Act, 29 U.S.C.
$ 160(b) and (e); Administrative Procedures Act, 5 U.S.C. § 706(2)(E).
19
2. The Sixth And Seventh Circuits Are
Diametrically Opposed In Their Review Of Efforts By
The National Labor Relations Board To Abruptly
Scuttle Its Traditional Rules On Bargaining Unit
Composition In Commercial Printing Operations Without
Reason Or Justification.
The National Labor Relations Board in this case
severed out a small unit of Press Department employees,
divorcing them for the purposes of collective bargaining
from the preparatory employees in the Composition and
Pre-Press Departments who produce the job packets and
plates that are then physically used by the Press
Department employees to print grocery inserts. While
preparatory and press employees have long been held to
be the appropriate bargaining unit in commercial
printing operations, the Board summarily concluded
“that the facts here warrant a departure from the
traditional unit of lithographic production employees”
(App. Al3). With respect to the ‘‘facts’’ that were said to
justify variation from the Board’s usual principles, the
Board: cryptically observed only that there was
“insufficient evidence of cohesiveness’ between the
preparatory and pressroom employees (/d.). The Sixth
Circuit searched through the record to find some
evidence to support the Board’s decision, and then
purported to do so by parroting a few unjustified
inferences drawn by the Board from generally erroneous
factual findings, all offered in support of the Court’s
ultimate conclusion ‘“‘that the Board did not abuse its
discretion” (App. A3).
In reviewing the Board’s determinations of
appropriate bargaining units, this Court has stated that
‘“‘we accord great respect to the expertise of the Board
when its conclusions are rationally based on articulated
20
facts and consistent with the Act.’’ NLRB v. Yeshiva
University, 444 U.S. 672, 691 (1980). Yet, the Court has
cautioned that limited judicial review of Board decisions
does ‘“‘not mean that the balance struck by the Board is
immune from judicial examination and reversal in proper
cases.’’ NLRB v. Brown Food Store, 380 U.S. 278, 290-91
(1965). Indeed, ‘“‘[t]he deference owed to an expert
tribunal cannot be allowed to slip into a judicial inertia.”
American Shipbuilding Co. v. NLRB, 380 U.S. 300, 318
(1965).
The National Labor Relations Act itself calls for
effective judicial review of Board decisions. See National
Labor Relations Act, Section 10(e) and (f), 29 U.S.C.
§ 160(e) and (f). While the courts have been deliberately
slow to overrule the Board and other administrative
agencies, ‘‘they are not constrained to ‘sheer acceptance’
of the Board’s conclusions,’’ Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 803 (1945), quoting Eastern-Central
Motor Carriers Ass'n v. United States, 321 U.S. 194, 209
(1945), nor are they obliged “ ‘to stand aside and rubber
stamp’ Board determinations that run contrary to the
language or tenor of the Act.’’ NLRB v. J. Weingarten,
Inc., 420 U.S. 251, 266 (1975), quoting Brown Food
Store, 380 U.S. at 291.
Utilizing these standards in a case indistinguishable
from this, the Seventh Circuit in Continental Web Press,
Inc. v. NLRB, 742 F.2d 1087 (7th Cir. 1984), denied
enforcement of the Board’s attempt to gerrymander a
bargaining unit of pressroom employees only, as opposed
to the traditional lithographic unit of pressroom and
preparatory employees. The Court noted that, “by a
course of adjudications extending over many years, the
Board succeeded in developing a clear policy that seems
applicable to this case; and to discard the policy without
explanation would be arbitrary.” Jd. at 1093.
21
Segregating a small unit of pressroom employees,
and divorcing them from the pre-press and other
employees involved in the Company’s production and
maintenance operations contravenes federal labor policy
that has long frowned upon a multiplicity of small
bargaining units in a single work force. As the Seventh
Circuit noted in Continental Web, multiple bargaining
units create the possibility that an employer will have to
engage in a costly set of separate negotiations with a
number of different unions. See Continental Web, 742
F.2d at 1090. Further, different units with different
representatives create multiple possibilities for work
stoppages, which create burdens for far more than the
employer.
“The different unions may have inconsistent goals,
yet any one of the unions may be able to shut down
the plant (or curtail its operations) by a strike, thus
imposing costs on other workers as well as on the
employer’s shareholders, creditors, suppliers, and
customers” Jd.
Additionally, “breaking up a work force into many small
units creates a danger that some of them will be so small
and powerless that it will be worth no one’s while to
organize them, in which event the members of these
units will be left out of the collective bargaining
process.’’ Jd. Thus, in a case such as the present,
surgically excising out a unit of only pressroom
employees may have the effect of disenfranchising
smaller and less powerful groups, like the Employer’s
material handlers and others.
Because of these considerations, the Board has come
to more critically scrutinize efforts to sever craft units
out of larger industrial units. See Mallinckrodt Chemical
Works, 162 NLRB 387, 64 L.R.R.M. (BNA) 1011 (1966).
22
Indeed, it has been recognized that ‘the industrial
unions forcefully argue that separate bargaining units
jeopardize the right of all employees in that a strike by
the skilled workers could effectively shut down the
employer’s entire operation.”’ John E. Abodeely, Randi C.
Hammer, Andrew L. Sandler (IRU), The NLRB and The
Appropriate Bargaining Unit 87 (rev. ed. 1981). A
leading labor law treatise notes ‘‘that the Mallinckrodt
standard usually results in a denial of craft severance.”’
Section of Labor and Employment Law, American Bar
Association, Patrick Hardin (BNA), The Developing
Labor Law 466 (3d ed. 1992).
In this case, the Board with the endorsement of the
Sixth Circuit swims contrary to a torrent of precedent in
the skilled trades, including the printing industry, and
establishes a bargaining unit composed solely of
pressroom employees, even excluding the preparatory
employees that have always been a part of the
traditional lithographic bargaining unit. The Sixth
Circuit has itself noted in other cases that such a marked
departure from the traditional rules specifically applied
in the printing industry, as well as general principles of
federal labor law policy the Board has employed in all
trade units, deserves the closest degree of scrutiny:
‘“‘However, despite this broad discretion, ‘[clareful’
judicial scrutiny of the Board’s action is necessary
... in the face of accusations of failure to abide by
precedent since the courts have an obligation to
ensure that administrative agencies adhere to
enumerated policies and procedures.” NLRB ov.
Engineers Constructors, Inc., 756 F.2d 464, 467 (6th
Cir. 1985), quoting Hall-Brooke Hospital v. NLRB,
645 F.2d 158, 160 (2d Cir. 1981).
23
This Court has also looked with a sharper eye at
variations by administrative agencies from established
policies. ‘‘An agency interpretation of a _ relevant
provision which conflicts with the agency’s earlier
interpretation is ‘entitled to considerably less deference’
than a consistently held agency view.’’ INS v. Cardozo-
Fonseca, 480 U.S. 421, 446 n.30 (1987), quoting Watt v.
Alaska, 451 U.S. 259, 273 (1981). See also NLRB uv.
United Food & Commercial Workers Union, 484 U.S.
112, 124 n.20 (1987).
In Continental Web, the Seventh Circuit concluded
that the Board’s unprecedented attempt to isolate a unit
of pressroom employees from all others could not
withstand such close examination. The Court found that
the alignment of interests between the pressroom and
preparatory employees was substantial, that the
differences between the two, as portrayed by the Board,
were insignificant, and that paring out a unit composed
solely of pressmen was arbitrary. The Court noted that
the preparatory and pressroom employees worked in
separate but adjacent work areas, as is the case here.
Pressroom employees visited the preparatory department
to pick up plates at Continental Web, as they do at the
Employer’s plant. Pressmen and preparatory employees
at Continental Web were paid about the same, and pre-
press employees at the Company earn from $4.90 to
$9.50 while press employees earn $3.85 to $9.00. Press
and preparatory employees at Continental Web enjoyed
the same fringe benefits and worked the same basic
number of hours per week, which is also true in this case.
The Board in Continental Web emphasized certain
differences between press and preparatory employees,
which the Seventh Circuit found to be insignificant.
Many of the same unimportant distinctions were relied
24
upon by the Sixth Circuit and the Board in this case in
order to drive a fictional wedge of divisiveness between
press and pre-press employees.
Pressmen at Continental Web wore smocks, while
preparatory employees did not, and the Sixth Circuit in
this case noted as significant the fact that pressroom
employees ‘‘wear distinctive uniforms’ (App. A4). The
Seventh Circuit scoffed at this inconsequential
distinction, which was simply attributable to the fact
that “‘the pressman’s work is dirtier.’’ 742 F.2d at 1092.
The Seventh Circuit pointed out that the Board and the
Regional Director in ‘“[tJheir opinions recite the
differences in working conditions that we have
mentioned ... and then tack on a conclusion that
therefore the pressmen have a sufficient community of
interest to be a _ separate unit.” Jd. The Court
summarized the Board’s lack of analysis succinctly: ‘“‘We
understand everything but the ‘therefore.’ ’’ Jd.
There were, in fact, more significant differences
between the preparatory and press department
employees in Continental Web than exist in this case.
Continental Web preparatory and press department
employees had different supervisors, while both groups
of employees in this case were supervised by the Plant
Superintendent. The two groups had different employee
handbooks at Continental Web, while the same handbook
and the same employment policies govern both pre-press
and press department employees at the Company. Thus,
to the extent any differences exist between this case and
Continental Web, the pre-press and press department
employees here are more closely allied. .n legally
indistinguishable situations, the Sixth Circuit in this
case permitted and the Seventh Circuit in Continental
Web rejected the Board’s arbitrary attempt to isolate a
unit of only pressroom employees. The Seventh Circuit
i ——
25
pointed out that “‘[a] number of cases explicitly refuse to
sever preparatory employees from pressmen—the
severance performed in this case.’ 742 F.2d at 1092-93.
The Sixth Circuit in this case found evidence “‘to
support a conclusion that the pressmen at the Company
enjoy a distinct community of interests’ (App. A3). The
Seventh Circuit found the supposed distinctions to be
‘“‘small and unimportant,” Jd. at 1092, concluding that it
was irrational to separate pressroom employees from
preparatory employees, as the Sixth Circuit has done in
this case:
“Like [the employer] we find it difficult to
understand why there should be separate units for
pressmen and preparatory employees. ... It is as if
the Board had said that the workers at the
beginning of an assembly line belong in a different
bargaining unit from the ones at the end; for
preparation and printing are successive stages in a
single lithographic production process.” Jd. at 1091.
The Seventh Circuit meaningfully examined the real
factors that might contribute to or detract from a
community of interest between the two employee groups,
as opposed to the Sixth Circuit’s and the Board’s
superficial labeling process, which finds critical
differences in matters such as one group of employees
working around ink wearing smocks and the two groups
of employees having different numbers on their
timecards. The Board’s approach in this case, seconded
by the Sixth Circuit, is reminiscent of its approach in a
prior case decided by this Court in which the Court
criticized the Board’s ‘‘absence of factual analysis’’ as
reflecting ‘‘the Board’s view that the managerial status
of particular faculties may be decided on the basis of
conclusory rationales rather than examination of the
facts of each case.”” NLRB v. Yeshiva University, 444
U.S. 672, 691 (1980).
26
Close examination of the truly important
employment factors that cause employees to share
similar employment interests compelled the Seventh
Circuit in Continental Web to conclude that separating
pressroom employees out for inclusion in an isolated
bargaining unit—apart from the skilled preparatory
employees who are a part of the same lithographic
yrocess—is unmistakably arbitrary and unreasonable, as
well as being contrary to the Board’s ‘‘clear policy that
seems applicable to this case.”” 742 F.2d at 1093. The
Sixth Circuit in this case failed to review the Board’s
departure from established practices in the printing
industry with the exacting scrutiny called for by this
Court and other circuits, and thus reached a decision
that is in unmistakable conflict with the Seventh Circuit.
The Court should grant the petition for a writ of
certiorari in this case to reconcile the manifest
differences between the Seventh and Sixth Circuits.
27
CONCLUSION
The decision of the United States Court of Appeals
for the Sixth Circuit in this case approving the National
Labor Relations Board’s stark and unexplained variation
from traditional rules on the composition of bargaining
units cannot be reconciled with the Seventh Circuit's
refusal to sanction such a departure. The Sixth Circuit is
also in conflict with the teachings of this Court and the
holdings of several circuits requiring administrative
agencies to at least set forth a rationale for varying from
established rules and standards. The net effect of the
Sixth Circuit’s failures is to turn back the progressive
tide of federal labor law policy that seeks to discourage
the proliferation of multiple bargaining units in a single,
small work force.
The petition for a writ of certiorari should be granted
to allow the Court the opportunity to demand that the
National Labor Relations Board employ consistent
approaches to the definition of bargaining units under
the National Labor Relations Act, and the further
opportunity to reinforce the proposition that federal
administrative agencies must either follow existing
standards or alter them for justifiable reasons enunciated
by the agency.
Respectfully submitted,
TimotTuy C. McCarTHy
Counsel of Record for Petitioner
North Courthouse Square
1000 Jackson
Toledo, Ohio 43624-1573
Of Counsel: (419) 241-9000
Grecory T. LODGE
SHUMAKER, Loop & KENDRICK
North Courthouse Square
1000 Jackson
Toledo, Ohio 43624-1573
(419) 241-9000
December 3, 1993
| | “a
Al
APPENDIX
OPINION OF THE UNITED STATES COURT
OF APPEALS FOR THE SIXTH CIRCUIT
(Filed June 21, 1993)
: NOT RECOMMENDED FOR FULL-TEXT
PUBLICATION
Sixth Circuit Rule 24 limits citation to specific
situations. Please see Rule 24 before citing in a
proceeding in a court in the Sixth Circuit. If cited, a
copy must be served on other parties and the Court.
This notice is to be prominently displayed if this
decision is reproduced.
No. 92-6085
UNITED STATS COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
Vv.
NTA GRAPHICS, INC.,
Respondent.
ORDER
BEFORE: Merritt, Chief Judge; Guy and BATCHELDER,
Circuit Judges.
This is an unfair labor practice proceeding in which
the National Labor Relations Board (NLRB or Board)
makes an application for enforcement of its order to the
f
A2
respondent, NTA Graphics (NTA or the Company),
issued on July 24, 1992, and reported at 307 N.L.R.B.
224 (1992). The parties have waived oral argument. This
case has been referred to a panel of the court pursuant to
Rule 9a), Rules of the Sixth Circuit. Upon examination,
this panel unanimously agrees that oral argument is not
needed. Fed. R. App. P. 34(a).
NTA is a printing company whose primary product
is newspaper advertising inserts. The Board found NTA
guilty of unfair labor practices as a result of the
Company’s refusal to bargain with a certified bargaining
unit. Section 8(a)(5) and (1) of the National Labor
Relations Act, 29 U.S.C. § 151, et seq. The Company
responded by challenging the composition of the
bargaining unit. Stated another way, the Company
argues that it is under no obligation to bargain with the
Union because no labor representative has been chosen
in a unit that is appropriate for the purposes of collective
bargaining. Therefore, the Company’s argument
continues, it could not have engaged in an unfair labor
practice.
The bargaining unit in question was determined by
an election conducted on September 25, 1987. The
appropriate unit was defined as “‘all full-time and regular
part-time pressroom employees employed by the
Employer at its Toledo, Ohio, facility, excluding all
clerical employees arid all professional employees, guards,
and supervisors as defined in the Act and all other
employees." The Company's contention throughout the
unionization process has been that the only appropriate
unit is an all-employee unit, not one limited to
lithographic production employees.
A3
The standard of review is for abuse of discretion.
NLRB v. First Union Management, Inc., 777 F.2d 330,
333 (6th Cir. 1985) (review of such a decision ‘‘extremely
narrow’’); Indianapolis Glove Co. v. NLRB, 400 F.2d 363,
366 (6th Cir. 1968). But see NLRB v. Engineers
Constructors, Inc., 756 F.2d 464, 467 (6th Cir. 1985)
(despite this broad discretion, careful judicial scrutiny of
the Board’s action is necessary).
In determining whether the unit sought is
appropriate, the Board generally seeks to ascertain
whether the employees share a “community of interest.”’
See Kalamazoo Paper Box Corp., 136 N.L.R.B. 134, 137
(1962) (community of interest factors). Upon review, we
conclude that the Board did not abuse its discretion. The
record supports a finding of differences in working
conditions sufficient to support a conclusion that the
pressmen at the Company enjoy a distinct community of
interests. The Company is divided into five functional
divisions. The pressroom is one of the departments. In
that department, one rises to the level of a “pressman”
after three years experience. Before that time, one is
considered a ‘“‘trainee.’’ Cf. Check Printers, Inc., 205
N.L.R.B. 33 (1973) (inappropriate lithographic production
unit because of the relatively simple and repetitive
nature of the printing product and because the
lithographers were trained within a short time). The
pressroom is the only department in the Company that
designates a skill level promotion after three years
experience. This is evidence of a difference in skills and
working conditions. See Armco, Inc. v. NLRB, 832 F.2d
357, 362-63 (6th Cir. 1987), cert. denied, 486 U.S. 1042
(1988). The main pressroom is physically separated from
the other parts of the Company’s building by brick walls.
This is evidence of a lack of ‘‘functional integration.” In
A4
other words, it tends to suggest that there was not any
significant interchange or transfer among employees of
the various departments. Furthermore, the record reveals
that the pressroom employees have separate supervision,
may work a different schedule, wear distinctive uniforms,
and are paid on a different scale. All these facts point to
a sufficient “community of interests’’ that justifies the
choice of bargaining unit in this case.
Accordingly, the application for enforcement of the
order issued by the National Labor Relations Board is
hereby granted. Rule 9(b)(3), Rules of the Sixth Circuit.
ENTERED BY ORDER OF
THE COURT
/s/ LEONARD GREEN
Clerk
ISSUED AS MANDATE: 9/1/93
COSTS: $126.00
FILING FEE..... $
Poe = ee _—
A5
DECISION AND ORDER OF THE NATIONAL
LABOR RELATIONS BOARD
(Dated July 24, 1992)
SDR
307 NLRB No. 224
D—2924
Toledo, OH
Case 8—CA—24277
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR
RELATIONS BOARD
NTA GRAPHICS, INC.
and
GRAPHIC COMMUNICATIONS INTERNATIONAL
UNION, DETROIT-TOLEDO LOCAL 289,
AFL—CIO—CLC
DECISION AND ORDER
On February 25, 1992, the General Counsel of the
National Labor Relations Board issued a complaint and
notice of hearing 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
following the Union's certification in Case 8—-RC—13648.
(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);
A6
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed its answer admitting in part and denying in part the
allegations in the complaint.
On June 16, 1992, the General Counsel filed a Motion
for Summary Judgment. On June 18, 1992, 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 ir. 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
representation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior
representation proceeding. The Respondent does not
offer to adduce at a hearing any newly discovered and
previously unavailable evidence, nor does it allege any
special circumstances 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 unfair labor practice proceeding. See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162
(1941). Accordingly, we grant the Motion for Summary
Judgment.
A7
On the entire record, the Board makes the following
Findings of Fact
I. Jurisdiction
The Respondent, an Ohio corporation with an office
and place of business in Toledo, Ohio, has been engaged
in high volume lithographic commercial printing.
Annually, the Respondent sold and shipped from its
facility goods valued in excess of $50,000 directly to
points outside the State of Ohio. We find that the
Respondent is an Employer engaged in commerce within
the meaning of Section 2(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 September 25, 1987,’ the
Union was certified on September 9, 1991, as the
collective-bargaining representative of the employee in
the following appropriate unit:
All full-time and regular part-time press room
employees employed by the Employer at its Toledo,
Ohio, facility, excluding all clerical employees and all
professional employees, guards, and supervisors as
defined in the Act and all other employees.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
‘On October 2, 1987, the Respondent filed objections and on October
22, 1987, the Regional Director issued a Supplemental Decision and
Order Directing Hearing on Objections and Challenge Ballots
ordering that the issues raised be set for hearing and that the matter
be consolidated with an unfair labor practice hearing in Case
8—CA—20167. Thereafter, charges in Case 8—CA—20458 and
(Footnote continued on following page.)
A8
B. Refusal tc Bargain
Since January 8, 1992, the Union has requested the
Respondent to bargain and site January 15, 1992, the
Respondent has refused. We find that this refusal
constitutes an unlawful refusalto bargain in violation of
Section 8(a)(5) and (1) of the Act
Conclusions ¢ Law
By refusing on and after January 15, 1992, to
bargain with the Union as the exclusive collective-
bargaining representative «f employees in the
appropriate unit, the Respondeit has engaged in unfair
labor practices affecting commece 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
(Footnote continued from preceding pag.)
8—CA-20732 were consolidated for heaing with the above cases. On
October 31, 1989, the administrative law judge found that the
Respondent engaged in certain violatims of Sec. &(a)1) and (3) but
found no merit to other 8(a)(1), (3), ani (5) allegations. On April 4,
1990, the case was remanded to the idministrative law judge for
further findings of facts and credibilityresolutions. On July 5, 1990,
the administrative law judge issuec a Supplemental Decision
clarifying certain of his credibility findings in the earlier decision.
The parties filed additional exceptiois and briefs and on July 31,
1991, the Board issued a Decision and Order, 303 NLRB No. 155,
finding that the Respondent violated Se. 8(a)(1) and (3) and ordering
that the unilateral change in shift tours allegation be held in
abeyance and that jurisdiction of that isue be retained pending the
opening and counting of the challenged vallots in the representation
proceeding.
The representation proceeding was svered from the unfair labor
practice proceedings and remanded to the Regional Director. A
revised tally of ballots was issued and te Union was certified. (See
305 NLRB No. 108.)
A9
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 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. MarJac
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, NTA Graphics, Inc., Toledo, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Graphic
Communications International Union, Detroit-Toledo
Local 289, AFL—CIO—CLC, as the exclusive bargaining
representative of the employees 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
exclusive representative of the employees in the
following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
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All full-time and regular part-time press room
employees employed by the Employer at its Toledo,
Ohio, facility, excluding all clerical employees and all
professional employees, guards, and supervisors as
defined in the Act and all other employees.
(b) Post at its facility in Toledo, Ohio, copies of the
attached notice marked ‘Appendix.’’? Copies of the
notice, on forms provided by the Regional Director for
Region 8 after being signed by the Respondent’s
authorized representative, shall be posted by the
Respondent immediately upon receipt 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 altered,
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
Respondent has taken to comply.
Dated, Washington, D.C. July 24, 1992
JAMES M. STEPHENS
Chairman
DENNIS M. DEVANEY
Member
JOHN N. RAUDABAUGH
Member
(SEAL) NATIONAL LABOR RELATIONS
BOARD
? 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.”
All
D—2924
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
ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Graphic
Communications International Union, Detroit-Toledo
Local 289, AFL—CIO—CLC, as the _ exclusive
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
bargaining unit:
All full-time and regular part-time press room
employees employed by the Employer at its Toledo,
Ohio, facility, excluding all clerical employees and all
professional employees, guards, and supervisors as
defined in the Act and all other employees.
NTA GRAPHICS, INC.
(Employer)
Dated: _By
(Representative) (Titie)
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This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material. Any questions
concerning this notice or compliance with its provisions
may be directed to the Board’s Office, 1240 East 9th
Street, Room 1695, Cleveland, Ohio 44199-2086,
Telephone 216—522—3729.
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ORDER OF THE NATIONAL LABOR
RELATIONS BOARD
(Dated September 25, 1987)
Case 8-RC-13648
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR
RELATIONS BOARD
NTA GRAHICS, INCORPORATED,
Employer,
and
GRAPHIC COMMUNICATIONS INTERNATIONAL
UNION, DETROIT/TOLEDO/LANSING
LOCAL 289, AFL-CIO-CLC,
Petitioner.
ORDER
Employer's Request for Review of the Regional
Director's Decision and Direction of Election is denied as
it raises no substantial issues warranting review. In
denying review the Board agrees with the Regional
Director that the facts here warrant a departure from the
traditional unit of lithographic production employees as
there is insufficient evidence of cohesiveness between the
preparatory employees and pressroom employees to
warrant a broader unit. We note, in any event, that the
Employer contended that the only appropriate unit was
an all-employee unit, not one limited to lithographic
production employees.
WILFORD W. JOHANSEN, Member
MARSHALL B. Basson, Member
,
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Member Stephens, dissenting:
I would grant the request for review in order to read
the record and determine the applicability of Continental
Web Press v. NLRB, 742 F.2d 1087 (7th Cir. 1984).
JAMES M. STEPHENS, Member
Dated, Washington, D.C., 25 September 1987.
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DECISION AND DIRECTION OF ELECTION OF
NATIONAL LABOR RELATIONS BOARD
REGIONAL DIRECTOR
(Dated August 19, 1987)
Case No. 8-RC-13648
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR
RELATIONS BOARD
NTA GRAPHICS, INCORPORATED'
Employer
and
GRAPHIC COMMUNICATIONS INTERNATIONAL
UNION, DETROIT/TOLEDO/LANSING
LOCAL 289, AFL-CIO-CLC?
Petitioner
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before a hearing officer of the National Labor
Relations Board, hereinafter referred to as the Board.
Pursuant to the provisions of Section 3(b) of the Act,
the Board has delegated its authority in this proceeding
to the undersigned.
Upon the entire record in this proceeding, the
undersigned finds:
1. The hearing officer’s rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
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2. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes of
the Act to assert jurisdiction herein.
3. The labor organization involved claim(s) to
represent certain employees of the Employer.
4. A question affecting commerce exists concerning
the representation of certain employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6) and
(7) of the Act.
5. The following employees of the Employer
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9b)
of the Act:*
All full-time and regular part-time press room
employees employed by the Employer at its Toledo,
Ohio, facility, excluding all office clerical employees
and professional employees, guards and supervisors
as defined in the Act and all other employees.
DIRECTION OF ELECTION
An election by secret bailot shall be conducted by
the undersigned among the employees in the unit found
appropriate at the time and place set forth in the notice
of election to be issued subsequently, subject to the
Board's Rules and Regulations. Eligible to vote are those
in the unit who were employed during the payroll period
ending immediately preceding the date of this Decision,
including employees who did not work during that period
because they were ill, on vacation, or temporarily laid off.
Also eligible are employees engaged in an economic
strike which commenced less than 12 months before the
election date and -who retained their status as such
during the eligibility period and their replacements.
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Those in the military services of the United States may
vote if they appear in person at the polls. Ineligible to
vote are employees who have quit or been discharged for
cause since the designated payroll period, employees
engaged in a strike who have been discharged for cause
since the commencement thereof and who have not been
rehired or reinstated before the election date, and
employees engaged in an economic strike which
commenced more than 12 months before the election date
and who have been permanently replaced. Those eligible
shall vote whether or not they desire to be represented
for collective bargaining purposes by Graphic
Communications International Union,
Detroit/Toledo/Lansing Local 289, AFL-CIO-CLC.
LIST OF VOTERS
In order to ensure that all eligible voters may have
the opportunity to be informed of the issues in the
exercise of their statutory right to vote, all parties to the
election should have access to a list of voters and their
addresses which may be used to communicate with them.
Excelsior Underwear, Inc., 156 NLRB 1236 (1966);
N.L.R.B. v. Wyman-Gordon Company, 394 U.S. 759
(1969). Accordingly, it is hereby directed that within 7
days of the date of this Decision, 3 copies of an election
eligibility list, containing the names and addresses of all
the eligible voters, shall be filed by the Employer with
the undersigned who shall make the list available to all
parties to the election. In order to be timely filed, such
list must be received in the Off. of Reg. 8, Suite 1695,
1240 E. 9th Street, Cleveland, Ohio on or before August
26, 1987. No extension of time to file this list shall be
granted except in extraordinary circumstances, nor shall
the filing of a request for review operate to stay the
requirement here imposed.
Al8
RIGHT TO REQUEST REVIEW
Under the provisions of Section 102.67 of the
Board’s Rules and Regulations, a request for review of
this Decision may be filed with the National Labor
Relations Board, addressed to the Executive Secretary,
1717 Pennsylvania Avenue, NW., Washington, D.C.
20570. This request must be received by the Board in
Washington by September 2, 1987.
Dated August 19, 1987
(SEAL)
at Cleveland, Ohio
/s/ FREDERICK J. CALTRELLO
Regional Director, Region
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‘The Employer, whose name appears as amended at the
hearing, is engaged in high volume lithographic
commercial printing. Currently, it produces newspaper
inserts for the grocery industry. Although the record
does not disclose the exact number, there are
approximately 40 employees in the unit of press
employees found appropriate herein.
*The name of the Petitioner appears as amended at the
hearing.
* The Petitioner seeks a unit of all press room employees.
In its petition the Petitioner requested a unit of all pre-
press department and press department employees.
However, in its post-hearing brief the Petitioner moved
to amend the petition to reflect the unit sought as
limited to press room employees. Inasmuch as the
motion has been served on the Employer and no
objection thereto has been raised, the Petitioner’s motion
is hereby granted. Herein and in the record, ‘press
room”’ and “press department’’ are synonymous terms.
Contrary to the Petitioner, the Employer asserts that an
appropriate unit must include all production and
maintenance employees. The unit urged by the Employer
would include press room, pre-press department,
composition department, shipping and _ receiving
department, and maintenance department employees.
As noted above the Employer produces a grocery
advertising insert to be included in various newspapers.
These inserts are printed on a four color Harris Web
offset press.
The Employer's product begins with a format provided
by the customer which has its art work and typesetting
either specified in advance or already in place. This
model copy proceeds to the composition department
A20
where ‘job tickets’’ are created instructing all other
departments involved on how the particular assignment
should be performed. The composition department
consults with the pre-press department on color and
other printing configurations. The composition
department also gives to the press department
instructions on paper size and quantities to be produced.
The shipping and receiving department is given, via the
job tickets, directions on the timing and destination of
the shipments.
The five departments into which the Employer’s work
force is divided are each located in a separate, well
defined area. A floor plan was introduced into evidence
at the hearing showing that the composition department
has offices in the front of the building. The pre-press
area is across a hallway from the composition offices.
The main press room is located in the approximate
center of the building and is segregated by brick walls
from all other areas of the building. There are two main
entrances to the press room—one to the east, which
opens into the shipping and receiving area, and one to
the west, which opens into an area close to the
employees’ cafeteria. The shipping and _ receiving
employees work in the area designated as the storage
and high bay areas. The maintenance department is
located in an unused secondary press room.
Press mechanics, as part of the mainter.ance department,
are located in the maintenance and rebuilding room
located in the north end of the building. In the
maintenance department are included janitors, press
mechanics and an individual who constructs wooden
pallets. The shipping and receiving department is
manned by drivers and material handlers. The
composition department has one typesetter/layout and
A21
one dispatch/layout employee. The pre-press department
has cameramen, strippers and platers; and the press
room has joggers, a pressman trainee, and press
operators.
For the reasons set out below I have determined that the
unit sought by the Petitioner herein, limited as it is to
press department employees, constitutes a unit
appropriate for purposes of collective bargaining.
The record taken as a whole discloses little contact
between press employees and employees in the other
departments. That is not to say that there is no contact,
as the discussion below will disclose; however, such
contact, particularly in light of other relevant factors, is
not sufficient to sustain a finding that the press room
employees do not share a community of employment
interests separate and distinct from those of the other
employees.
The record reflects that composition employees have
virtually no day-to-day contact with press room
employees. Composition employees, as noted above,
prepare job tickets which contain the information needed
to run a particular project. This information includes the
number of copies, the size of the paper and other
information needed by various departments. The job
ticket is attached to the art work and the model of the
advertisement which is given to the cameramen and
eventually attached to the plate which the press operator
receives from the platemaker.
In addition, the record does not disclose any contact
between truck drivers working from the shipping and
receiving department and the press room employees.
Although material handlers frequently bring paper rolls
A22
into the press room and remve pallets of finished
material, they are in the pres room for but a few
minutes at most on each trip.
The press mechanics from the naintenance department
enter the press room only when ‘hey are working on the
presses. Work on the presses ij not frequent, because
minor maintenance is performed by the press operators
themselves. The press mechanic: work on the machines
only when they are being installed or if there is a major
malfunction or electrical probem. Furthermore, the
mechanics are stationed in a rom at the rear of the
building which contains their ols and hoists. It is
noteworthy that the mechanics ire also engaged in the
rebuilding of press units whid the Employer then
markets to other concerns.
The janitors who clean in the pess room from one to
three time daily do so only in thecenter of the room and
only for a few minutes at a tire. The press operators
perform cleanup in and around th? presses.
The record reflects that the Epployer’s pallet maker
devotes his time to building woclen pallets in the area
located in the high bay. He has 20 day-to-day contact
with the press room employee except when he is
temporarily assigned to the jogs? position when the
Employer’s regular jogger is absent. The record
testimony discloses that this occ*¥§ approximately four
times a year. The jogger’s fundion is to convey the
printed product from the presses © the pallets which are
placed in the press room for tha’ Purpose. In addition,
the jogger cleans in and around tl Presses.
The record also discloses that tk” various departments
are separately supervised. Tl€®e is no common
supervision except at the highest levels of management,
A23
which is not significant on a day-to-day basis. The press
room is supervised by Scott Shaffer on the day shift and
Hollis Shaffer on the third shift. Each supervisor works
approximately 10 hours a day. The press room
supervisors have an office in the press room.
The composition department employees are supervised
by David Tremonti, the Employer's vice president and
operations manager. Tremonti also supervises the janitor
and press mechanics. The pallet maker works principally
by himself. The shipping and receiving employees are
generally supervised by Randy Perdue who has an office
in the storage area; and the pre-press area is supervised
by Beryl Grisier.
The skills of the employees in the various departments
vary significantly insofar as the nature of the skills
possessed and the leveis of skill required to perform the
particular tasks. The record is amply clear that the press
operators are highly skilled employees performing
traditional tasks unique to their particular classification.
They are required to be skilled in the setup of the press
which involves the adjustment of colors on the four color
presses, the alignment of images, the adjustment of
paper tensions, and the control of paper speed, and must
be prepared to perform minor maintenance on the
machines. The record is clear that approximately three
years is required properly to train a press operator, and
pressmen who do not have three years of experience are
considered trainees. Currently, there is one trainee
working at the Employer’s facility. Press operators work
as a team with a jogger who is learning the craft skill on
the job. The record discloses that press room employees
have been hired with experience or are trained on the job
by Hollis Shaffer, the third shift supervisor.
A24
The press room is the only department with a “‘trainee”’
classification. In addition, no other classification of the
Employer’s employees has any particular training.
The mechanics in the maintenance department are hired
with prior experience, and there is record evidence that
the mechanics previously worked for an _ outside
contractor with whom the Employer had a contract for
press maintenance. When the contract terminated, the
Employer hired the press mechanics who had previously
been employed by the independent contractor. Janitors
have little skill and no experience when hired, and the
pallet maker saws boards and nails them together with
an air powered nail gun. In the shipping and receiving
department the material handlers either had outside
experience or have learned on the job. Some of them
have licenses which they obtained elsewhere. They
operate forklifts in their work. The truck drivers
obviously are licensed under the state and have
chauffeurs’ licenses.
The evidence adduced at the hearing includes a manual
of some 70 pages of detailed and complex technical
information on the operation and maintenance of the
Employer's presses. There are no similar manuals or
operational guides for the other departments.
The press operators, while not as highly paid as the head
mechanic, are clearly among the highest paid employees.
Starting times of the various departments are staggered
and correspond to the particular needs of the
department. The press room operates on a fixed schedule
of five, eight hour days; the press room employees may
work fewer than five days per week depending on the
volume of business. Composition employees have a
varied and irregular schedule, and mechanics and certain
A25
employees in the shipping and receiving department
work only on the day shift. Other shipping and receiving
employees work a three shift schedule, and there is
always a janitor on duty around the clock.
The record discloses that press room employees are not
permitted to use certain areas of the building because
they are often covered with ink and there is a danger
that they will damage carpeting in the office area.
Consequently, they are restricted to certain areas and to
certain locker room areas. Moreover, other employees are
forbidden to enter the press area. Press room employees
wear uniforms, in contrast to employees in other
departments who may appear in mufti. The truck drivers
wear uniforms which differ in color from those of press
room employees.
The record does not reflect any significant employee
interchange and the only interchange in the press room
is on the jogger level as described above. Unskilled
workers from other departments may substitute for the
jogger when he is absent or on vacation.
Based on the above and the totality of the record, I am
convinced that the unit of press room employees sought
by the Petitioner constitutes an appropriate unit for the
purposes of collective bargaining. The unit of press room
employees constitutes a traditional lithographic unit in
the printing industry, even though in this case, based on
the particular facts, the pre-press employees have not
been included.
I am not persuaded that the fact situation encountered
in the instant case is analogous to the facts of cases cited
by the Employer to support its contention that an
appropriate unit herein must contain all of the
production and maintenance employees.
A26
For example, the pressmen in Check Printers, Inc., 205
NLRB 33 (1973), were able to aquire the desired level of
skill for press work in approximately two to three
months. In contrast, the pressmen in the instant case
undergo a three year training program, and those who
have not completed the program are classified as
trainees. In Check Printers, the Board found that the
pressmen were involved in relatively simple and
repetitive operations and that they were not the type of
printing employees the Board has found to constitute an
appropriate separate unit in a commercial printing
establishment. In addition, the pressmen in Check
Printers also performed other duties such as operating
cutting machines located in the bindery department.
I do not find that Texas Color Printers, Inc., 210 NLRB
30 (1974) is apposite to the fact situation herein. In
Texas Color, the Board refused, in a commercial printing
operation, to carve out a unit composed only of shipping
and receiving employees. Clearly, the considerations
involved in that determination have little bearing on
whether the pressmen herein have a separate and
distinct community of employment interests which would
render a unit limited to them appropriate.
I believe that the facts in the instant case more closely
parallel those in Continental Web Press, Inc., 262 NLRB
1395 (1982) in which the Board found that the press
room department employees shared a distinct community
of interests. In that case they found that the pre-press or
preparatory department employees did not share a
community of employment interest. There, as in the
instant case, the press room employees were found to
have little contact with other employees, and there was
virtually no transfer of employees between departments.
In the instant case there is no significant interchange of
A27
employees. Further, in that case, as in the present case,
the press room employees had shift times different from
the preparatory employees; and the press room
employees, unlike the preparatory employees, wore
uniforms and had access to different areas of the
employer's facility.
Although the unit composition herein departs from the
traditional unit which includes preparatory employees,
the facts herein mandate such a departure. In Moore
Business Forms, Inc., 216 NLRB 833 (1975), a case
involving a traditional lithographic unit, the pre-press or
preliminary employees worked under common
supervision with the press room employees on two of the
three shifts. Furthermore, the pressmen’s duties included
cutting and correcting plates, which required frequent
trips into the preliminary area. Preliminary employees
were continually in the press area working on jobs,
delivering plates and materials, and obtaining
information for their work. Preliminary employees also
performed specification checks and roll proofreading in
the press area. The differences between the fact situation
therein and that which confronts us here are obvious and
striking.
Consequently, on the basis of the above and the record
as a whole, I conclude that the press room employees
herein possess a separate and distinct community of
employment interests and that a unit composed
exclusively of them constitutes a unit appropriate for
purposes of collective bargaining. I shall direct an
election in that unit.
As noted above the press room department includes the
classification of pressman trainee. Currently, there is one
employee so designated. Although neither party has
taken a position with respect to the eligibility of this
A28
employee, it is clear that after completing the three year
training program the individual will become a press
operator. Therefore, I have determined that this
employee shares a community of employment interests
with the other press room employees, and I shall include
the trainee in the unit.
At the hearing the parties stipulated and I find that
David Tremonti, vice president and operations manager;
Gail Tremonti, treasurer; Scott Shaffer, pressroom
supervisor; Frank Skwiera, plant superintendent; Lisa
Bartkiewicz, computer operator; Joy Lajiness,
receptionist; and David Allen, security guard, are
ineligible to vote in the election.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.