International Paper Co.

THE LORD BALTIMORE PRESS The Lord Baltimore Press Division of International Paper Company' and Local 257, Lithographers and Photoengravers International Union, AFL-CIO.'' Case 38-CA-14 (formerly 18-CA-1825-2) December 1, 1967 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On December 26, 1963, Local 257, Lithog- raphers and Photoengravers International Union, AFL-CIO,3 was certified as the exclusive representative of Respondent's lithographic em- ployees following an election held pursuant to a Decision and Direction of Election and the sub- sequent resolution of Respondent's objections, which were overruled.4 Thereafter, on February 24, 1965, the National Labor Relations Board is- sued its Decision and Order in the instant case,5 finding that Respondent violated Section 8(a)(5) by refusing to bargain with the certified Union. The Board, accordingly, ordered the Respondent, upon request, to bargain collectively with the Union. Respondent refused to comply with this order, con- tending that the Board's certification of the Union was invalid. On December 28, 1966, the United States Court of Appeals for the Eighth Circuit entered its deci- sions denying enforcement of the Board's Order without prejudice to a renewal of the Board's en- forcement petition, pending further consideration by the Board, The Court held that Respondent's ob- jection to the election, based upon the Union's elec- tioneering conduct, raised issues which should have been resolved by the Board upon a hearing, as had been requested by Respondent. Accordingly, the court remanded the case to the Board to receive evidence and determine whether the Union's "al- leged misconduct could not have had any significant impact on the election." On February 1, 1967, the Board issued an Order in which it reopened the record, remanded the case for further hearing consistent with the opinion of the court, and directed the Trial Examiner, upon conclusion of the hearing, to prepare and serve upon the parties a Supplemental Decision contain- ing findings of fact, conclusions of law, and recom- mendations. Pursuant to notice, a supplementary bearing was held on March 23 and 24, 1967, before Trial Examiner Wellington A. Gillis. On June 21, 1967, the Trial Examiner issued the attached Supplemental Decision. Thereafter, the Respondent filed exceptions to the Trial Ex- aminer's Supplemental Decision and a supporting brief, and the Charging Party filed a brief in opposi- tion to the Respondent's exceptions. 661 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Supplemental Decision, the ex- ceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent , The Lord Baltimore Press Division of International Paper Company, Clinton, Iowa, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order." Name appears as amended at the hearing. ' Name appears as amended at the hearing. ' Herein called the Union. ' Case I8-RC-5534; decision not published in N LRB volumes. 151 NLRB 236. 6 370 F.2d 397 (1966). ' In agreeing with the Trial Examiner that the statements attributed to representatives of the Union could not have had a significant impact on the election under the rule in Hollywood Ceramics, Inc., 140 NLRB 221, we do not rely upon the subjective testimony of an employee concerning his belief as to the truth of the statements made. Pinkerton's National De- tectiveAgency, Inc., 124 NLRB 1076 Otherwise, we adopt the Trial Ex- aminer's reasoning, particularly in view of (I) the record evidence that the allegedly objectionable statements were made long after similar expres- sions had been the subject of pro and con dialogue among employees, and (2) our opinion that the comments in issue, though not to be condoned, were of a type synonymous with name calling and similar forms of low- keyed propaganda found in any hotly contested election campaign, which, though embraced by aligned employees, are unlikely to influence the judgment of those who are undecided. 8 The names of the Respondent and the Union appearing in the Trial Examiner's Recommended Order and the notice attached thereto shall be changed to conform with the caption of this Supplemental Decision and Order. Delete from paragraph 2(b) of the Trial Examiner's Recommended Order that part thereof which reads "to be furnished" and substitute therefor "on forms provided . . TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Trial Examiner: This matter, on remand by order of the Board, was heard by me on March 23 and 24, 1967. By way of procedural background, the record in this proceeding reflects that subsequent to a representation hearing and the Board's Decision and Direction of Election,' an election was held ' 18-RC-5534 168 NLRB No. 88 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among the Respondent's lithographic employees on November 15, 1963, in which Local 90, also referred to as ALA, received a majority of the ballots cast. Thereafter the Employer filed with the Regional Director Objections to Conduct Affecting the Results of Election and Demand for a Hearing. On December 26, after hav- ing conducted an investigation, the Regional Director is- sued a Supplemental Decision on Objections and Con- duct Affecting the Results of Election and Certification of Representative, thereby certifying the Union as the ex- clusive bargaining representative of the Respondent's employees and denying the Employer's request for a hearing, concluding that the objections "do not raise sub- stantial issues with respect to the conduct affecting the results of the election." Subsequent to the Employer's filing with the Board its request for review of the Supplemental Decision, wherein it requested in the alternative a hearing on the issues raised by the Employer's objections, the Board, on February 7, 1964, denied said request. Thereafter the Employer refused to bargain with the Union, and, in an unfair labor practice hearing held before me on June 30, 1964, the Respondent attempted to justify its refusal to bargain on the ground, inter alias that the Regional Director erred in (1) overruling the Employer's objec- tions to conduct affecting the results of the election, and (2) denying the Employer's request for a hearing during which evidence in support of the objections might be presented. Finding that both such issues had prior thereto been passed upon by the Board, and adhering to Board practice by refusing under the circumstances to permit the Respondent to introduce evidence pertaining to the objections in the representation proceeding, I sub- sequently issued my Trial Examiner's Decision on December 8, 1964, finding that the Respondent had refused to bargain within the proscriptions of Section 8(a)(5) of the Act. Subsequent thereto, the Board issued a Decision and Order on February 24, 1965,2 wherein it adopted the Trial Examiner's findings and conclusions, specifically upholding the propriety of the Trial Examiner's ruling by which he' refused to receive the Respondent's evidence pertaining to the objections, and ordered the Respondent, upon request, to bargain collectively with the Union. Thereafter, on December 28, 1966, upon the Board's petition for enforcement of its Order and the Respond- ent's answer and cross-petition to set aside the Order, the Circuit Court of Appeals for the Eighth Circuit entered an opinion holding that the Board "was not entitled to make summary denial of respondent's request for a hear- ing" on the Union's electioneering conduct, and denying enforcement of the Board's Order without prejudice, however, to a renewal of the petition "should it be found, and be entitled to be found, on appropriate hearing, that Lithographers' alleged misconduct could not have had any significant impact on the election." By Order dated February 1, 1967, the Board ordered that the record in this proceeding be reopened, that a further hearing be held before me "for the purpose of ad- ducing evidence concerning the alleged preelection con- duct of Lithographers in accordance with the Court's opinion," and, upon the conclusion of the further hearing, that I issue a Supplemental Decision containing findings 151 NLRB 236 3 The above comprised the substance of Respondent's Objection 1, evidence in support of which I refused to receive during the original hear- of fact, conclusions of law, and recommendations based upon the evidence received. Accordingly, pursuant to the Board's directive and confined to the limited purpose prescribed by it, further hearing in this matter was conducted on March 23 and 24, 1967, at Clinton, Iowa, at which all'parties were represented by counsel, were afforded full opportunity to be heard, to introduce evidence pertinent to the issue, and to engage in oral argument. Timely briefs were sub- sequently filed by the Respondent and the Charging Par- ty. Upon the entire record in this reopened proceeding, and from my observation of the witnesses, I make the fol- lowing additional: FINDINGS AND CONCLUSIONS 1. PRELIMINARY STATEMENT At the risk of repetition, but in the interest of clarity, a brief preliminary statement would appear to be in order. The Respondent Company here has been found by the Board to have refused to bargain within the proscriptions of Section 8(a)(5) of the Act. The Board's finding in this regard, however, was of necessity predicated upon the existence of a valid certification of representatives, which, in turn, was based upon a presumptively valid election having been held among the Respondent's em- ployees by which the Union was voted in. The Respond- ent's assertion, from the very outset, is that the election was invalid and should have been set aside because cer- tain alleged preelection statements made by a union offi- cial prevented the employees from exercising a free and untrammeled vote. The Respondent, in the initial hearing herein, was denied the opportunity to adduce evidence to support its position in this regard and to raise such as a defense to the Section 8(a)(5) complaint allegations. Ac- cordingly, because the court refused to enforce the Board's Section 8(a)(5) order on the ground that the Respondent had been denied this opportunity, the Board, by ordering the reopening of this hearing, has now pro- vided the Respondent with the opportunity to present its evidence. Specifically, the pertinent objections to the conduct of the election, initially overruled by the Regional Director after his investigation and subsequently passed on by the Board, without a hearing, alleged in substance that a representative of the ALA made false, inflammatory, and malicious statements concerning the Company, its coun- sel, and an agent of the Board, asserting that the Board's agent assigned to investigate the charges in an earlier un- fair labor practice case (18-CA-1365) was offered a bribe by the company counsel, and further that the bribe was accepted by the Board agent, who thereafter did not properly investigate the charges, resulting in a withdrawal by ALA of its charges in Cases 18-CA-1365 and 1368, and further that the said cases were not closed by the Board, that the Union had withdrawn its charges without prejudice to their being reopened.3 Evidence relating to these allegations was adduced. Accordingly, the issue to be resolved is whether, on the record as a whole and particularly on the basis of the ad- ditional evidence taken at the reopened hearing, the mg. A second objection raised by the Respondent is not before us in this proceeding. THE LORD BALTIMORE PRESS ALA, through its International representative, Melford Galbraith, engaged in preelection misconduct, and if so, whether the misconduct was such as "may reasonably be expected to have a significant impact on the election." H. FINDINGS OF FACT In 1959, shortly after the Respondent opened its Clin- ton plant, an election was held among the Respondent's employees with three unions on the ballot, among them, the ALA and the Printing Specialties and Paper Products Union, hereinafter referred to as Printing Specialties Union. As a result of the election, no union received a majority vote, and no certification issued. Thereafter, in 1961, based upon a card check, the Respondent recog- nized the Printing Specialties Union and entered into a contract with it covering the Respondent's production and maintenance employees. In January 1962, the ALA filed unfair labor practice charges against the Respond- ent, alleging in Case 18-CA-1365 an unlawful recogni- tion of Printing Specialties Union as the exclusive bar- gaining representative of its employees, and, in Case 18-CA-1368, a discriminatory discharge of its employee, John Neneman. Subsequent to an investigation of these charges by Attorney John P. McCrory of the Board's Re- gion 18 office, the Regional Director on March 8, 1962, refused to issue complaints and the charges were dismissed.4 The unfavorable disposition of these charges by the Board in March 1962 caused much pro and con talk among ALA and Printing Specialties Union em- ployee adherents at the plant, with particularly strong feelings among those belonging to the former, continuing up to the time of the representation election on Friday, November 15, 1963. In support of its position that, during the week of the election the ALA International representative, Melford Galbraith, uttered statements to the effect that the Respondent had bribed or bought off the Board attorney -in the 1962 cases, the Respondent placed on the witness stand six witnesses, with stipulations received as to the testimony of two others.5 A treatment of the evidence perllaining to the alleged making of the statements must, of necessity, be premised upon a finding, which I here make, that the record contains no evidence that bribery or wrongdoing of any sort occurred in connection with the disposition of the earlier unfair labor practice charges. In the absence of such evidence or even the assertion that there was truth to the matter, and based in part upon the stipulation as to the testimony of Attorney Willis S. Ryza, I, find nothing improper to have taken place between the Respondent or its attorney and an agent of the Board with respect to the investigation and disposition of the charges in the earlier cases.6 The testimony in support of the Respondent's alleged misconduct assertion is confined to three incidents which 4 A companion charge against the Printing Specialties Union in. Case 18-CB-175 was also dismissed. As no rebuttal evidence was offered by either the General Counsel or the Charging Party at the conclusion of the Respondent's case, the new evidence taken herein is confined to the testimony of these witnesses Neither Galbraith nor ALA President Carrol Koepplinger testified in this proceeding. 6 At the outset of the reopened hearing it was stipulated that Ryza, an attorney and partner in the Chicago law firm of Pope, Ballard, Uriell, Ken- nedy, Shepard & Fowle, and counsel for the Respondent during the period in question, if called as a witness, would have testified in part that: 663 allegedly occurred during the week of the election, each one involving ALA's Mel Galbraith. A. Bonnie's Tavern Incident Former employee Arnold Meyermann testified that late one evening some three or four nights before the Friday election he went to Bonnie's Tavern, a public tavern located approximately one-half mile from the plant, that in addition to customers there were at least 10 employees present and "some ALA representatives." During the one-half hour he was present, he witnessed employees drinking beer, playing pool, and standing around in groups talking, for the most part about the com- ing election. At some point, while he was standing with one such group "talking to other employees," he over- heard an ALA representative in another group say in ef- fect "he didn't know what kind of car the Examiner came to town in but when he left he was driving a new one when he investigated the charges prior to the election as to whether we could or could not have an election." Meyermann testified that he did not hear what led up to the comment, what followed the comment, who made the comment, and testified further that nothing was said con- necting the Company with the Board case and that this comment was the only one he heard on the subject during the evening. Meyermann, whose power of recollection was ex- tremely poor even considering the length of time in- volved, testified initially that he recalled Koepplinger being present, that Koepplinger did not make the com- ment, and that he "really couldn't say" if there were any other union officials present, even after having his recol- lection refreshed by reading his pretrial affidavit. Later, he recalled that a second official was present, that that person made the above-quoted utterance, but that he could not remember the person's name nor his identity. Meyermann testified that he had at an earlier date at- tended an ALA meeting at which Galbraith was present. Yet, at the start of his testimony herein, when asked if he recognized anyone in the courtroom as having been present at Bonnie's Tavern on the night in question, Meyermann answered that he recognized Koepplmger, but not anyone else. Galbraith was, at the time, seated at Respondent's counsel table along with Koepplinger. In any event, although toward the latter part of his testimony Meyermann recalled Galbraith being present at Bonnie's Tavern, he still could not say who made the comment in question. The speculative nature of the remark, the uncertain cir- cumstances under which it was "overheard," and the fact that Meyermann was unable to identify the speaker or to attribute the comment to any specific ALA official, in my opinion, leaves no basis upon which to predicate a finding of misconduct by the ALA, and I so find. 7. At no time either during or after the Board 's investigation of the charges in Cases Nos l8-CA-1365, 18-CA-1368 or 18-CB-175 did I in any manner whatever offer to give to Attorney John P. Mc- Crory any money or other thing of value , or obtain or offer to obtain for John P. McCrory, any employment or position as an attorney or intercede or offer to intercede for John P. McCrory in any fashion re- lated to the employment of McCrory as an attorney; 8. Any statements to the effect that I bribed , colluded with, bought off, took care of, fixed or in any other way improperly or unlawfully influenced John P McCrory or sought to do so , are totally and utterly false and without foundation 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Andrews, another former employee of the Respondent, and the only other witness to testify con- cerning Bonnie's Tavern, testified that, having heard about the meeting at Bonnie's Tavern through the pro- ALA employees at the plant, he and Meyermann at- tended. In addition to a number of employees, former em- ployee John Neneman and union officials Koepplinger and Galbraith were in the tavern. Andrews testified that no formal meeting was held, and that employees stood around in small gatherings of four or five. The discussion revolved around the two competing unions and the up- coming election. While standing with one group com- prised of four or five employees and Union Representa- tive Galbraith, the discussion centered on the past and the benefits they would be enjoying had the ALA been voted in during the last election. From there the topic switched slightly to the reasons why the ALA had not been voted in before, at which point, according to An- drews' testimony, Andrews believed that one of the reasons stated was that "after the election this Labor Relations Board man had been bought off to rule in favor of the IPP Union" (Printing Specialties Union). An- drews, when initially questioned as to who in the group made this statement, replied, "I believe that was Mr. Gal- braith, too." Andrews then testified that "he said the Company bought him off." Andrews testified that nothing else was said on the subject, and that no company official was named. Andrews could not remember who else was present in this group at the time that the statement was made, other than Meyermann. Meyermann, however, did not cor- roborate this, for, according to the latter, the only com- ment along this line that he heard during the evening was one that he overheard while standing with a different gathering. Andrews was not convincing in his testimony; at one point on cross-examination using the expression "they" said the man had been bought off. With respect to this comment, Andrews failed to adequately explain his having mistakenly attributed it to Koepplinger rather than to Galbraith in a company affidavit taken 2 days after the alleged incident took place, and not apprising the com- pany attorney of his discovered error until the Wednes- day before the reopened hearing, some 3-1/2 years later.7 B. The Y.M.C.A. Meeting Employee Walter Sage, former official of the Printing Specialties Union, testified that he attended an ALA meeting at the Clinton Y.M.C.A. on the Tuesday or Wednesday evening prior to the election . This, too, was not a formal meeting , but rather "just a good gab fest" with coffee and sandwiches spread on a table to which the seven employees in attendance , the two ALA officials, Koepplinger and Galbraith , and former employee and ALA President Neneman, helped themselves while infor- mally engaged in conversation. This occasion appears to have been meant as an opportunity for old friends to visit again with Neneman who no longer lived in the Clinton area. According to Sage, and he was the only witness to testify to this incident, the talk got around to the upcom- ing election and then reverted to the 1962 Neneman discharge and the unfair labor practice charges pertaining thereto. Although Sage did not know who initially raised it, at some point during the hour, according to Sage, Gal- braith stated that "he understood Mr. McCrory had got- ten a new job with an increase in salary and you guys should know who helped to arrange that, and ... pressure was brought to bear upon him by a superior." Sage further testified that "I believe he said he [McCrory] had a job with a firm called Pope and Ballard."" When queried as to what was meant by this, Sage testified that Galbraith did not say it, but that he (Sage) thought Galbraith was trying to say that McCrory had been bought off. As Sage was the only witness called with respect to this incident his testimony remains unrefuted as well as uncor- roborated.9 Even though I found Sage to have been a biased witness and most evasive while testifying, except with respect to the crucial statement attributed to Gal- braith, this perhaps may be explained by the intervening years and his recent reference to his earlier affidavit. Ac- cordingly, I credit his testimony. C. The Incident at Roy and Mary's Restaurant The night before the election, Frank Bagamery, at the time the Respondent's vice president for personnel and industrial relations, and Paul Roth, the labor relations assistant, went to dinner at Roy and Mary's Restaurant in the small town of Camanch, some 5 miles from Clinton. While waiting for a table, Bagamery noticed John Neneman, Koepplinger, and Galbraith seated at a table. Upon being introduced by Neneman to the other two, and declining an invitation to join them, Bagamery and Roth shortly were assigned a table next to the one occupied by the ALA people. During a rather lengthy conversation that followed between Galbraith and Bagamery, the former having moved his chair close to the latter's table, concerning the Respondent's several plants, Galbraith's part in organizing them, and the Respondent's resistance to the ALA, Galbraith eventually got around to mention- ing the "Sweetheart" deal with the Printing Specialties Union and the Respondent's phony recognition of that Union. When Bagamery refuted the statement, asserting that prior to recognizing the Printing Specialties Union there had been a card check conducted by two ministers, Galbraith challenged the accuracy of such a procedure. Bagamery retorted that apparently the Board agent was satisfied because he recommended' that the unfair labor practice charges challenging the propriety of the recogni- tion be dismissed, and that the Regional Director had fol- lowed the recommendation, with the Board subsequently upholding the action. After Galbraith asserted that the Board had never ruled on the matter because he had withdrawn the charges without prejudice, Galbraith, fortified with several drinks, continued by stating that the Respondent had not heard the end of this matter of recognizing the Printing The explanation of Andrews to the effect that he subsequently learned of his error in identification in part through Meyermann is, in itself, suspect in view of Meyermann's inability at the hearing to recognize Gal- braith and his initial and uncertain testimony to the effect that he did not remember whether any other ALA officials, which includes Galbraith, were present at Bonnie's Tavern on the night in question. ' Sage knew who McCrory was as he had been interviewed by him dur- ing the investigation of the earlier unfair labor practice charges. However, Sage testified that the name, Pope and Ballard, meant nothing to him on this occasion. ' This, notwithstanding that Sage named all but two of the other em- ployees in attendance. THE LORD BALTIMORE PRESS Specialties Union, or of the Neneman discharge. On this point, Galbraith asserted that Neneman had been framed by the Printing Specialties Union by falsifying a story which the Respondent then seized upon as a pretext for discharging him. When Bagamery denied this accusation, referring to the investigation of the discharge and the disposition of the matter by the Board, Galbraith accused the Respondent, and Bagamery personally, of having "gotten to the Board agent." Galbraith, retreating slightly, then accused Attorney Ryza of having taken care of McCrory. Galbraith continued by asking Bagamery if he "knew why it was that when McCrory came to Clinton to investigate these matters he came driving an old Chevrolet and left a couple of days later driving a new Oldsmobile." Using a certain amount of vulgarity, par- ticularly when referring to Attorney Ryza, Galbraith con- tinued by asking Bagamery if he were aware that McCro- ry left the Board a few months after leaving Clinton to take a pretty nice job, that "Ryza got him a nice job." This embarrassing conversation lasted after Neneman and Koepplinger had left, which they did after attempting to persuade Galbraith to leave with them.' ° While in the interest of rendering a full recitation of the facts, the above account has been set forth in detail, the fact remains that this fortuitous incident occurred the night before'the election, in a restaurant some 5 miles out of town, with no employees present, and none anywhere in the restaurant. To say that Galbraith's remarks made to high-ranking company officials under these circum- stances could have an impact upon the employee voting in the following day's election is to defy reality. Ac- cordingly, to the extent that the Respondent's misconduct allegations are predicated upon Galbraith's remarks made to Bagamery on this occasion, I find them to be without merit. Analysis In fostering its basic policy of assuring employees full and complete freedom in voting for a bargaining representative," the Board has long sought to maintain, to the extent possible, laboratory conditions with respect to the election process.12 In so doing, however, the Board has recognized the necessity of balancing the right of em- ployees to cast untrammeled ballots with the right of in- terested parties to wage free and vigorous compaigns. In determining whether a party has, through its electioneer- ing conduct, exceeded permissible bounds warranting the setting aside of the election, the Board recently restated the rule applicable to such situations. Thus, in the Hollywood Ceramics case,13 the Board stated, "We be- lieve that an election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresenta- tion, whether deliberate or not, may reasonably be ex- pected to have a significant impact on the election." 10 The above account is taken from the testimony of Bagamery , the only witness to testify as to this incident. However, it was stipulated that, if called upon to testify, Roth, who was present during Bagamery's testimony, would testify substantially to the same facts as Bagamery. See Peerless Plywood Company, 107 N LRB 427 See General Shoe Corporation, 77 NLRB 124. 13 Hollywood Ceramics Company, Inc., 140 NLRB 221, 224. 14 The quoted portions are taken from the testimony of Respondent's witnesses, Herman Haan and George Fuess, respectively 665 With this rule in mind, the question here posed is whether the ALA International representative, Melford Galbraith, engaged in misconduct, and if so, whether the misconduct was such as "may reasonably be expected to have a significant impact on the election." While the evidence of bribery utterances on the part of an ALA offi- cial may be boiled down to two comments attributed to Galbraith, one at Bonnie's Tavern as testified to by An- drews, and the other at the Y.M.C.A. as testified to by Sage, the record contains other evidence which must be considered in evaluating the impact of Galbraith's alleged remarks. Thus, it is apparent that dating back to the Company's recognition of Printing Specialties Union after a card check and the discharge in January 1962 of John Neneman, the then popular president of ALA, feelings ran strong between Printing Specialties adherents and ALA supporters; that talk concerning bribery of the Board agent in connection with the Neneman case com- menced immediately after Neneman's discharge in 1962; that the bribery rumors among the employees pertaining to Neneman and the other 1962 charges continued through the interim period "right up to the election" and remained a source of constant discussion among the em- ployees "going right up to the next election." 14 Other than the two Galbraith remarks here under scrutiny, and notwithstanding the existence of pro and con discussion among Respondent's employees generally during the height of the preelection campaigns, there is no evidence linking the initial 1962 source of these rumors or the con- tinuing instigation of such to Galbraith or any other offi- cial of the ALA. With this background, the two isolated remarks of Gal- braith take on a different flavor. First, as to the Bonnie's Tavern comment, there exists some question as to the making of the comment, as Andrews only "believed" that it was made, and only "believed" that it was Galbraith who made it. Contrasted with the alleged comment at Bonnie's Tavern the statement attributed to him by Sage during the discussions at the Y.M.C.A. would appear to fall more into the category of conjecture or insinuation than as a positive statement of fact. In any event, Gal- braith's two isolated comments in this regard, spoken dur- ing the course of informal conversations among ALA ad- herents, cannot be considered by any stretch of the imagination a part of any planned preelection propaganda campaign. Particularly is this so where it appears that the employees generally were aware of such rumors well in advance of the election week, and that such was a part of the interunion banter among the employees before Gal- braith made his utterances at Bonnie's Tavern and the Y.M.C.A. Certainly such isolated conduct by Galbraith could not be considered campaign trickery as envisioned by the Board's rule. As to such conduct constituting a misrepresentation, it would seem that the comments were so extreme that the employees could not reasonably have relied upon them. 15 Supporting the conclusion that em- ployees could and did form their own evaluation of the 15 See Hollywood Ceramics Company, Inc., supra at 224, where, in rendering an example of a situation where , notwithstanding the existence of a substantial misrepresentation , the Board would still refuse to set aside an elelction because under the circumstances the statement would not be likely to have had a real impact on the election, the Board stated "[o]r, it could have been so extreme as to put the employees on notice of its lack of truth under the particular circumstances so that they could not reasonably have relied on the assertion " 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter is the testimony of Respondent's witness An- drews, who testified that even upon hearing the comment from Galbraith he did not believe that the Board agent had been bought off, and that when he repeated it to any- one else he let it be known that he did not believe it. Nor, in my opinion, from the nature of the statement would the employees consider that Galbraith would be in a position to possess knowledge of this type and thereby rely upon it as the truth. 16 On the basis of all the credible evidence received at the reopened hearing, and on the record as a whole, I find that the preelection conduct of ALA's Representative Melford Galbraith could not have had any significant im- pact on the election , the test applied by the court , and that such conduct by Galbraith did not constitute misrepresentation which may reasonably be expected to have a significant impact on the election , within the mean- ing of the Board rule. Thus, having found the Respond- ent's objections to the preelection conduct to be without merit and to constitute no grounds for setting aside the election, and having reviewed the question concerning the propriety of the election and the validity of the certifi- cation that followed , I hereby find , as I did at the conclu- sion of the earlier proceeding , that the ALA since December 26, 1963, has been the exclusive bargaining representative for all the employees in the hereinafter described appropriate unit , and that the Respondent, since March 13, 1964, has refused to bargain collectively with the ALA within the meaning of Section 8(a)(5) and (1) of the Act. I hereby reaffirm my initial findings, con- clusions, and recommendations , and specifically make the following: CONCLUSIONS OF LAW 1. The Board-conducted election held among the Respondent's employees on November 15, 1963, was a proper and valid election. 2. The Certification of Representative issued to Local 90, Amalgamated Lithographers of America, on December 23, 1963, by the Regional Director in Case 18-RC-5534 was, and continues to be, a valid certifica- tion. 3. Since December 26, 1963, Local 90, Amalgamated Lithographers of America , has been the exclusive bar- gaining representative within the meaning of Section 9(a) of the Act for all employees engaged in the Employer's lithographic production work , including pressmen, feeder operators , platemakers , inkmakers , and their apprentices, trainees, and helpers ; excluding all other employees, of- fice clerical employees, professional employees, watchmen , guards, and all supervisors as defined in the Act. 4. By refusing on March 13, 1964, and thereafter to bargain collectively with Local 90, Amalgamated Lithog- raphers of America, as the certified exclusive bargaining representative of all its employees in the above -described appropriate unit, The Lord Baltimore Press, Inc., has en- gaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) and ( 1) of the Act. 5. The aforesaid unfair labor practice affects com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that the Respondent , The Lord Bal- timore Press, Inc., its officers, agents, successors , and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 90, Amalgamated Lithographers of America, as the certified exclusive bargaining representative of all its employees engaged in lithographic production work , including press- men, feeder operators , platemakers , inkmakers , and their apprentices, trainees , and helpers ; excluding all other em- ployees, office clerical employees , professional em- ployees, watchmen , guards, and all supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Local 90, Amalgamated Lithographers of America , as the exclusive bargaining representative of the employees in the cer- tified appropriate unit and embody in a signed agreement any understanding reached. (b) Post in conspicuous places at its place of business in Clinton, Iowa, copies of the attached notice marked "Appendix." 17 Copies of said notice, to be furnished by the Officer-In-Charge for Subregion 38, after being duly signed by the Respondent's representative, shall be posted by it, as aforesaid, immediately upon receipt thereof, and maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced , or covered by any other material. (c) Notify the Officer-In-Charge for Subregion 38, in writing, within 20 days from the receipt of this Trial Ex- aminer's Decision what steps the Respondent has taken to comply herewith. is 16 That the Board attaches importance to this factor is reflected in the Hollywood Ceramics case, wherein it stated that "In evaluating the proba- ble impact of a party's statement on the election , one factor which the Board will consider is whether the party making the statement possesses intimate knowledge of the subject matter so that the employees sought to be persuaded may be expected to attach added significance to its asser- tion." 1' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 16 In the event that this Recommended Order is adopted by the Board this provision shall be modified to read "Notify said Officer-In-Charge, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL bargain collectively upon request with Local 90, Amalgamated Lithographers of America, THE LORD BALTIMORE PRESS as the exclusive bargaining representative of all of our employees in the certified bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment, and embody in a signed agree- ment any understanding reached. The bargaining unit is: All employees engaged in lithographic produc- tion work, including pressmen, feeder operators, platemakers, inkmakers, and their apprentices, trainees, and helpers; excluding all other em- ployees, office clerical employees, professional employees, watchmen, guards, and all super- visors as defined in the Act. WE WILL NOT, by refusing to bargain collectively through Local 90, Amalgamated Lithographers of America, or in any like or related manner, interfere with, restrain, or coerce our employees in the exer- 667 cise of their rights guaranteed by Section 7 of the Na- tional Labor Relations Act. THE LORD BALTIMORE PRESS, INC. (Employer) Dated By (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Subregional Office, 4th Floor, Citizens Building, 225 Main Street, Peoria, Illinois, Telephone 673-9061.