The Lord Baltimore Press

328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Lord Baltimore Press and Amalgamated Lithographers of America, Local 17, Petitioner. Case No. 2O-RC-4568. April 26, 1963 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to the Board's Decision, Order, and Direction of Election dated October 3, 1961,1 an election by secret ballot was conducted by the Regional Director for the Twentieth Region on November 2, 1961, among the employees in the appropriate unit. At the conclusion of the balloting the parties were furnished with a tally of ballots which showed that of approximately 22 eligible voters, 21 ballots were cast, of which 9 were for the Petitioner, 11 were for the Intervenor, Print- ing Specialties and Paper Products Local Unions Nos. 362 and 382, International Printing Pressmen and Assistants Union, AFL-CIO, and 1 ballot was challenged. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. The Regional Director conducted an investigation and, on Novem- ber 16, 1961, issued his report on objections, in which he recommended that the objections be overruled and that the appropriate certification be issued. Thereafter, the Petitioner filed, timely exceptions to the Regional Director's report. The Board has considered the Petitioner's objections, the Regional Director's report and recommendations, and the exceptions thereto, and makes the following findings : The Petitioner's objections to the election are based on a letter to the employees, attached hereto, in which the Employer set forth the possible consequences of choosing the Petitioner as a bargaining rep- resentative. These were: (1) The Employer might be forced out of the offset business, thus eliminating the jobs of these employees; (2) the Petitioner's demands would be so unreasonable that the Employer would have to resist and Petitioner would have to call a strike; (3) the Employer would in no event bargain with Petitioner because it deemed the unit inappropriate. The Regional Director found this letter within the bounds of per- missible campaigning. We do not agree. We have recently been reexamining the scope of the preelection ma- terial and have set forth the principles which now guide us in cases such as Oak,2 Dal-Tex,' and Sewell Manufacturing Company.4 We have there rejected a narrow legalistic approach and indicated that we shall consider the entire situation of employer and employee and the 1 Not published in NLRB volumes. 2 Oak 3fanujacturing Company/, 141 NLRB 1323. $ Dal-Tex Optical Company, Inc., 137 NLRB 761. • Sewell Manufacturing Company, 138 NLRB 66. 142 NLRB No. 40. THE LORD BALTIMORE PRESS 329 entire context of what has been said. We will not consider words in isolation. We cannot properly assess the effect of campaign material as our dissenting colleague does hereby plucking out a few statements which, in isolation, might be considered innocuous 5 To read the letter herein as a whole, as we must, is to realize that its entire thrust, achieved by the careful juxtaposition of foreboding possibilities, is to impress upon the employees the futility of choosing the Petitioner. Whether the Employer's legal position is plausible or not,6 its state- ment does not protect the entire message of which it is an integral part from scrutiny to determine the total impact of that message upon the freedom of choice of the employees. We rejected such a theory in Dal-Tex. Nor do we agree that the coercive effects of the threats we find the Employer to have conveyed could be dissipated by any state- ments of the Petitioner? Therefore, we can only view this kind of statement of legal position as a threat to use the delaying processes of the law to the fullest extent possible in order to thwart the policies of the Act we enforce. Such conduct, combined with the fear of economic loss that must flow from the Employer's predictions of its reaction to the Petitioner's unknown demands must be held to have destroyed the laboratory conditions we seek to maintain and, consequently, to have prevented the employees' free choice. We shall therefore set the election herein aside, and direct the Regional Director to hold another election. ORDER IT IS HEREBY ORDERED that the election conducted November 2, 1961, be, and it hereby is, set aside. [Text of Direction of Second Election omitted from publication.] MEMBER RODGERS, dissenting : The Employer about a week before the election distributed to its employees a letter which, inter alia, made the following observations : (1) The Petitioner was a Union composed mostly of employees in the commercial printing industry and that it did not have a single collective-bargaining contract in the area with a company in the fold- ing box industry; (2) the petitioning Union withdrew from the 5 See Oak Manufacturing Company, supra, and see also Arch Beverage Corporation, 140 NLRB 1385, and Decorated Products, Inc., 140 NLRB 1383, where the same principle is applied in a converse situation. "The Board has uniformly granted units such as here sought, and its position was re- cently sustained in N.L R.B. v. Weyerhaeuser Company, 276 F 2d 865 (C A 7), cert denied 364 U.S. 879 It could be noted in passing that in a case involving another of its plants, the Employer consented to an election in a unit similar to that involved here See 131 NLRB 710. We do not find our dissenting colleague's attempted distinction of this latter case per- suasive, and we note that the decision of the court of appeals (C.A. 4, 300 F. 2d 671) is on other grounds. 7 See Oak Manufacturing Company, supra , footnote 4. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL-CIO rather than adhere to the no-raid pact and was violating such pact by attempting to sever a group of "lithographic employees" from an established AFL-CIO bargaining unit; (3) since the Peti- tioner's interests were principally in the lithographic printing indus- try, offset jobs would be jeopardized and working conditions would be imposed requiring the Employer, a folding box company, to resist the unreasonable demands certain to be made; and (4) the Board erred in the unit determination and that it intended to contest the Board's finding "by proper legal means, if necessary," that this would be a "time consuming process which might take several years from the date of the election," and that it did not "intend to recognize and bargain with the ALA in an inappropriate unit." On the basis of the above letter my colleagues would set aside the election. I disagree. For the reasons stated below, I find, in agree- ment with the Regional Director, the letter to be a reasonable pre- election statement insufficient to warrant setting the election aside. The Board in a long line of established cases has found preelection statements of this type permissible, and I see no compelling reason for departing from precedent on the facts of this case.' I regard the letter, the only misconduct alleged, as nothing more than a factual statement. No contentions have been made that any statements con- tained therein were false or in any way misleading. I am unable to find shocking or coercive the Employer's frank and forthright state- ments, taking issue with the Board's unit finding, indicating that it intended to contest such determination "by proper legal means, if necessary," and pointing out that such procedure could be "time- consuming." I interpret the Employer's announcement simply a bona fide statement of an intention to use the only method permitted by the statute we administer to obtain court review of the Board's unit de- 8 See, e.g, National Furniture Company, Inc, 106 NLRB 1300; Esquire, Inc (Coronet Instructional Films Division ), 107 NLRB 1238 ; Westinghouse Electric Corporation, 110 NLRB 332; F. W. Woolworth Company, 111 NLRB 766; LaPointe Machine Tool Com- pany, 113 NLRB 171. Contrary to my colleagues , I cannot accept the so-called "principles" of the Oak, Sewell, and Dal-Tea cases as governing precedent in the instant case. Here again, as I did in my dissent in Oak, I must express my disapproval of my colleagues ' method of evaluating employer preelection propaganda . For here again my colleagues have failed to adhere to the principles which they have set forth as guidelines . Thus they do not appear to have consideredthe fact that the letter in question must be evaluated in the context of a 4-week preelection campaign. Moreover, there was ample time for the Petitioner to answer and counteract whatever influence it might have had, and it is likely that the coercive effects my colleagues would read into the letter were dissipated by the day of the election. Similarly , to find this single letter by the Employer the basis for overturning the elec- tion is, in my opinion, to ignore "the strictures of the First Amendment"-strictures which the majority of the Dal-Tex decision asserted "must be considered in all cases." Under all the circumstances , I believe the majority 's condemnation of the letter in question constitutes an unwarranted infringement upon the Employer 's rights of "free speech," and is contrary to guidelines which the courts have recently set forth in regard thereto. See, e g., N.L .R B. v. Threads, Inc, 308 F 2d 1 (C A 4) ; Union Carbide Corp v. N.L.R B., 310 F. 2d 844 (CA. 6) ; NLR.B. v. Transport Clearings , Inc., 311 F. 2d 519 ( C.A. 5). See also, Weyerhaeuser Co. v. N.L R.B., 311 F. 2d 19 (C A. 7). Cf. Seven-up Bottling Co., 140 NLRB 611; Allen-Morrison Sign Co., 138 NLRB 73 ; Decorated Products, Inc., 140 NLRB 1383 ; Arch Beverage Corp., 140 NLRB 1385. THE LORD BALTIMORE PRESS 331 termination. An employer has the legal right to use that method and I can see no persuasive reason for not permitting him to inform employees of his intention to use that right. I find the Employer's doubts particularly plausible in the instant proceeding since it is concerned with the severance of a so-called "lithographic unit," a type of unit determination which the Board itself has generally found troublesome. We have held such units to be neither "craft" nor "departmental," but have based our determi- nations upon the elusive, and ofttimes controversial criteria of "com- mon interests and duties." s Only recently the full Board has formally recognized the inherent problems in unit determinations in this area and indicated that such unit findings are neither static nor fixed and will be subject to reconsideration because of the technological advances which are taking place in the industry.lo I would, therefore, affirm the Regional Director that the objections be overruled and that the appropriate certification of the Locals of the International Printing Pressmen and Assistants Union, AFI. CIO, issue. MEMBERS LEEDOM and BROWN took no part in the consideration of the above Supplemental Decision, Order, and Direction of Second Election. 5 See, e g, Shumate, Incorporated, 131 NLRB 98 , footnote 6. 10 See Allen, Lane & Scott, et al, 137 NLRB 223 N L.R.B. v Weyerhaeuser Company, etc., 276 F. 2d 865 (C A. 7 ), which my colleagues rely upon clearly does not stand for the proposition that an employer may not question unit determinations by the Board involving lithographic press employees . That the court sustained the Board 's findings of a litho- graphic craft unit as appropriate in that case is true, but it did so upon the "record" be- fore it and "the factual setting of respondent ' s manufacturing operations." Moreover, the court specifically noted that a separate unit for lithographic employees is not always "proper," and such determinations are dependent upon the facts of the production process involved As for Lard Baltimore Press, Inc., 131 NLRB 710, in which this Employer stipulated to a "lithographic unit," I not only deem it not irrelevant , but most relevant In that case: (1) there was no history of bargaining with an established AFL-CIO union and conse- quently no issue of craft severance ; ( 2) the departmental unit therein agreed to does not appear to be identical to the unit questioned by the Employer ; and (3 ) not only did the Employer refuse to bargain with the Amalgamated Lithographers in that case , but the circuit court refused enforcement of the Board 's Order requiring the Employer to bargain and directed that further evidence and arguments with respect to the Objections to the election be permitted . See N.L.R.B. v Lord Baltimore Press, Inc., 300 F. 2d 671 (C.A. 4). APPENDIX THE LORD BALTIMORE PRESS of California 2701 Merced Street-San Leandro, California October 25, 1961 Thursday, November 2, 1961 , is a most important date for you and the Company. Before you vote, I want to give you a few more facts about the Amalgamated Lithographers. The ALA wants to control your future and destroy a relationship which has been a benefit to you and your Company . Let's look at the reasons why. The ALA is a small union, composed mainly of employees in the commercial printing industry . The ALA does not have a single contract with a company like Lord Baltimore Press in the Bay Area. Its policies are dictated and controlled by the interests of its members in the printing industry in large cities such as New York, 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chicago and Pittsburgh. For example, almost 25% of the ALA's total membership is located in New York City alone. Furthermore, the ALA is no longer a member of the AFL-CIO. It withdrew from that body in 1958 rather than live up to the AFL-CIO constitution and no-raid pact. As a result, the ALA cannot look to the AFL-CIO for support or assistance. In fact, it is in direct conflict with the AFL-CIO unions whose jurisdiction the ALA is attempting to raid when, as in this case, it strays outside the field of commercial printing. The ALA severed its connection with the AFL-CIO principally in order to con- tinue an attempted raid on another unit at Sutherland Paper Company, a large fold- ing carton manufacturer in Kalamazoo, Michigan. As an employee in the folding carton industry, you should know that the ALA did not attempt to justify either its raid at Sutherland or its disaffiliation with the AFL-CIO on any alleged interest in the employees of Sutherland as such. To the contrary, ALA officials publicly stated they were really out to protect the interests of their members in "established lithographic companies" by attempting to force fold- ing box companies to meet conditions existing in the lithographic printing industry. In other words, what the ALA s seeking here is to further the interests of its mem- bers in the non-comparable commercial printing industry which would be uneconomic and non-competitive in our industry. In either case, you would be caught in the middle of a pressure move by the ALA for the benefit of its members in a different industry. If LBP were forced out of offset, your jobs would be eliminated. Similarly, if the ALA attempted to impose uneconomic and non-competitive conditions such as a 35 hour work week and commercial scale of wages on our offset operations, we would have no choice but to resist. In turn, the ALA would have no choice but to either agree or force you out on strike. Furthermore, we believe the ALA is not only trying to use you to achieve objec- tives that have nothing to do with you as an employee of Lord Baltimore Press, as such, but is also seeking to represent you in an inappropriate bargaining unit. We feel very strongly that the National Labor Relations Board made a serious legal mistake in ordering an election for a separate bargaining unit for offset employees. We believe the Board's ruling is contrary to the law, and think you ought to know that we have every intention of contesting them by proper legal means, if necessary. The traditional method for testing such findings is to refuse to honor a Board cer- tification that might result if the ALA wins an election in an appropriate unit. When the NLRB seeks to enforce a refusal to bargain claim, such cases are referred to a U.S. Court of Appeals which then reviews the validity and legality of the Board's unit findings. This is a time consuming process which might take several years from the date of the election. For this reason alone, we hope it will not be necessary to invoke this traditional method of protecting the legal interests involved. But we are convinced the Board erred in this case, and we do not intend to recognize and bargain with the ALA in an inappropriate unit. The best way to not only prevent this situation from occurring, but also prevent the ALA from attempting to use you for its own selfish interests is to vote "NO" when you cast your secret ballot on November 2. Sincerely yours, (S) H. W. Hicks, HUGH W. HICKS, Vice President & General Manager. Square D Company and International Union of Electrical, Radio & Machine Workers, AFL-CIO, Local 1503, IUE, AFL-CIO. Case No. 21-CA-4.374. April 29, 1963 DECISION AND ORDER On September 13, 1961, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding 142 NLRB No. 43.