W.F. Hall Printing Co.

W. F. HALL PRINTING CO. W. F. Hall Printing Company and Graphic Arts Inter- national Union, AFL-CIO, CLC, Petitioner. Case 26-RC-5760 October 20, 1978 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS PENEIILO AND TRUESDALE Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on June 29 and 30, 1978,' under the direc- tion and supervision of the Regional Director for Re- gion 26 of the National Labor Relations Board, among the employees in the stipulated unit. Follow- ing the election, a tally of ballots was furnished the parties. The tally shows that, of approximately 609 eligible voters, 530 cast votes in the election, of which 259 were for the Petitioner, 270 were against the Peti- tioner, and I was challenged. The challenged ballot is not sufficient in number to affect the election results. On July II, the Petitioner filed timely objections to conduct affecting the results of the election. Pursuant to Section 102.69 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an inves- tigation and, on August 21, issued and duly served on the parties his report and recommendations on the objections. In his report, the Regional Director recommended, inter alia, that the portion of Objec- tion (b) dealing with the threat of denial of a wage increase, which was also alleged as a violation of Sec- tion 8(a)(l) in an amended complaint in Case 26- CA-7184-1, be consolidated with the unfair labor practice case and resolved on the basis of record tes- timony before an Administrative Law Judge. He did this even though he had found the above objection to have merit, rather than recommending that the elec- tion be set aside. Thereafter, the Employer and the Petitioner each filed timely exceptions to certain por- tions of the Regional Director's report, and the Peti- tioner filed a brief in support of its exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this case, the Board finds: I. The Employer is engaged in commerce within Unless otherwise indicated, all dates hereinafter are during the year 1978. the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Em- ployer within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the fol- lowing employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding shipping and receiving employees, plant clerical employees, and truckdrivers; excluding all other employees, including office clericals, professional employees, watchmen, guards and supervisors as defined in the Act. 5. The Board has considered the entire record in this proceeding, including the Petitioner's objections, the Regional Director's report, the Petitioner's excep- tions and brief, and the Employer's exceptions, and hereby adopts the Regional Director's findings, con- clusions, and recommendations except as modified herein. The Petitioner's Objection (b) alleges that the Em- ployer: At various times, verbally and in writing, includ- ing a notice which remaired posted in the cafe- teria through and including June 28, 1978. threatened adverse changes in terms and condi- tions of employment if the union won the elec- tion, and held out promises of favorable changes in terms and conditions of employment if the union lost the election. In agreement with the Regional Director, we find merit to this objection. The undisputed documentary evidence in the rec- ord shows that during the 2-week period immediately preceding the election the Employer distributed to its employees, in one form or another, four leaflets which, in substance, conditioned the granting of the employees' annual wage increases on the Petitioner's defeat in the approaching election. The first such leaflet, dated June 16, stated in part: Negotiations is really like "horsetrading". Current benefits and wages are not protected and could be lost or reduced as some were in Chicago. Nothing is guaranteed. You could gain, stay the same or you could lose. During negotiations, all wages and benefits would be frozen, because the Company cannot make changes unilaterally during negotiations. 51 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Negotiations can take a long time. Chicago's contract was signed TWENTY-TWO MONTHS after the union won the election. GAIU has been negotiating for 6 months in Jonesboro and still has no contract. There have been no changes in wages or benefits during that time! Three days later, on June 19, another leaflet was is- sued entitled "Answers from the Talk Boxes," which stated in part: Question: Talk around the plant is we get a 7% raise in July. Is spreading a lie or what? Answer: Because of the union we don't know what will happen. We cannot promise you any wage increase, but we do have a past practice of increases in August. If the Company wins the election we intend to continue that practice. Last year we gave 10% in hourly increases plus a paid lunch that was worth more than another 6%; of wages. However, if the union wins the election, any wage increase would have to be negotiated along with contract language, benefits, working condi- tions, etc. We do not know how long this would take, when or how much of an increase you would get. All wages would be frozen because we could not make any unilateral changes and we would need to know how much other ex- pense, such as work rules, seniority, etc., would have to be covered before we gave any increase .... .if any. Remember, this union has been negotiating in Jonesboro for six months with no contract .... and no increase! On or about June 20, the Employer distributed to employees a company song, entitled "Dresden, Ten- nessee," stating in part as follows: Strikes and fines and picket lines .... they won't pay my bill I want a raise in August and Hall has said I WILL Say there, Operator .... forget about this call The union's on the run and the writing's on the wall Thanks to Chuck McDonald and the Supervis- ors too Gayu isn't worth the risk but Hall will follow thru Finally, during election week, the Employer posted in its cafeteria a banner entitled "Answers to the Talk Boxes," which stated in part: Question: You say we could lose in negotia- tions. What do we have that could be lost. Answer: We do not know what would hap- pen as a result of negotiations. Some things mean more to one person than to another but none can be taken for granted. Anything dealing with wages, hours or working conditions could be reduced or lost. Here is a par- tial list. I am sure everyone can think of others: *Wage increase of 10% The Regional Director found that the Employer has had in effect an established practice of granting employees an annual wage increase in July or Au- gust. He also found that the Employer's announce- ment that it would continue such a practice did not constitute a promise of benefit or provide a basis for setting the election aside. However, the Regional Director further found that the thrust of the Employer's leaflets, stressing that negotiations could take a long time and that wages would be "frozen" during that period, was to first promise a continuation of past practice in yearly wage increases and then to condition the implemen- tation of that promise on the Petitioner's defeat in the election. The Employer has excepted to these findings, con- tending, inter alia, that the Regional Director's char- acterizations, interpretations, and conclusions with regard to the various leaflets are erroneous and that the leaflets do not constitute objectionable conduct. The Petitioner agrees with the Regional Director's finding that the leaflets constitute objectionable con- duct. It contends, however, that on this basis the election should be set aside without the necessity of holding a hearing. We agree with the Regional Director's conclu- sions, but do not agree with his recommendation that a hearing is warranted on Objection (b) in these cir- cumstances. The pieces of documentary evidence de- scribed above are clear and unambiguous on their face. It is clear that the Employer put the employees on notice that they would not receive their estab- lished annual wage increases, and probably would even lose existing benefits, in the event they chose to be represented by the Petitioner. In addition, the Employer's references to the possibility of lengthy negotiations suggested to employees that the Em- ployer, through its own conduct, might delay agree- ment during the bargaining process, thus delaying the employees' receipt of wage increases, if they re- ceived any at all. Thus, the employees were placed in this dilemma: elect the Petitioner and forgo their an- nual wage increases pending lengthy negotiations; or, in the alternative, reject the Petitioner and receive their wage increases as usual. Under established 52 W. F. HALL PRINTING CO. Board precedent,2 it is clear that an employer cannot withold wage increases which employees would re- ceive during the normal course of business, but for the presence and/or selection of a union. Based on the above facts, we find no merit to the Employer's exceptions. Furthermore, we find that the Employer's campaign leaflets constitute promises of benefits and threats of denial thereof to the em- ployees, which necessarily interfered with their free- dom of choice in the election.3 Therefore, we find merit in Objection (b), and we shall set aside the election and direct a second elec- tion without the necessity of Objection (b) going to a hearing. In these circumstances, we find it unneces- 2 Baker Brush Co., Inc., 233 NLRB 561 (1977). 3Freedom Dodge, Inc., 236 NLRB No. 145 (1978); Montgomery Ward & Co., Incorporared, 225 NLRB 112 (1976). sary to pass on the matters raised by the Petitioner's remaining objections. ORDER It is hereby ordered that Objection (b) filed by the Petitioner in Case 26-RC-5760 be, and it hereby is, sustained, and the election conducted in that case is hereby set aside; that Case 16-RC-5760 be, and it hereby is, served from the pending complaint pro- ceeding, Cases 26-CA-7184-1 and -2 and remanded to the Regional Director for Region 26; and that said Regional Director be, and he hereby is, directed to conduct a second election therein at such time as, in his judgment, a free and fair election can be held. [Direction of Second Election and Excelsior foot- note omitted from publication.] 53