Graphic Arts Finishing Co., Inc.

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IQ Graphic Arts Finishing Co , Inc and Bookbinders & bargain collectively with the Union, which had been Bindery Women's Union Local 44, affiliated with Inter- certified by the Board, in violation of Section 8(a)(1) national Brotherhood of Bookbinders , AFL-CIO Case and (5) of the Act 5-CA-4501 May 6, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On February 4, 1970, Trial Examiner Louis Libbin issued his Decision in the above entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner A hearing was held before me at Baltimore, Maryland, on December 16, 1969 All parties were given full oppor- tunity to participate in said hearing On January 16, 1970, the Respondent filed a brief and the General Counsel filed a memorandum, both of which I have fully considered For the reasons hereinafter indicated, I find that Respondent violated Section 8(a)(1) and (5) of the Act, as alleged in the complaint as amended Upon the entire record in the case,' and from my observation of the demeanor of the witnesses while testifying under oath, I make the following FINDINGS OF FACT 1 I THE BUSINESS OF THE RESPONDENT Respondent Graphic Arts Finishing Co , Inc , is a Maryland corporation with its principal place of business in Baltimore, Maryland, where it is engaged in the finishing of print materials During the 12-month period preceding the issuance of the instant complaint, a repre- sentative period, Respondent received revenues in excess of $50,000 for services performed on products which it shipped to points and places outside the State of Maryland Upon the above admitted facts, I find, as Respondent admits in its answer, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, that Graphic Arts Finishing Co , Inc , Baltimore, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, the record shows, and I find, that Bookbinders & Bindery Women's Union Local 44, affiliated with International Brotherhood of Bookbinders , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner Upon charges filed on September 16, 1969, by Bookbinders & Bindery Women's Union Local 44, affiliated with International Brotherhood of Bookbinders, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5 (Baltimore, Maryland), issued a complaint, dated Octo- ber 31, 1969, against Graphic Arts Finishing Co , Inc , herein called the Respondent With respect to the unfair labor practices, the complaint as amended at the hearing, alleges in substance, and Respondent's answer as amend- ed at the hearing denies, that Respondent refused to ' On January 19 1970 I received from the General Counsel a motion to correct the transcript in 20 specific respects In his brief counsel for Respondent concurs in the General Counsels motion to correct the transcript as to items 1-16 18-19 which involve obvious errors As to items 17 and 20 he states that he has no independent recollection of either the versions in the transcript or the versions suggested by counsel for the General Counsel and would be satisfied to accept as authoritative the version of this testimony as independently recalled by the Trial Examiner As my independent recollection coincides with the version suggested by the General Counsel I hereby grant his motion in toto I have accordingly made the requested changes and have placed the General Counsel s motion in the official exhibit folder as G C Exh 18 Counsel for Respondent further moved in his brief to correct the transcript in six additional specific respects This motion is hereby granted without objection and I have made the requested corrections I also note and correct the obvious error of the date stated on the teletype message (G C Exh 8) to read 12/16/69 Additional obvious inadvertent errors in the typewritten transcript of testimony are noted and corrected in Appendix A [Appendix A omitted from publications ] 182 NLRB No 47 GRAPHIC ARTS FINISHING CO. 319 III. THE UNFAIR LABOR PRACTICES A. Introduction; the Issues Following a hearing on a petition for an election filed on April 14, 1969, by the Union in Case 5-RC-6795, a Decision and Direction of Election was issued on May 14, 1969, by the Regional Director for Region 5 (Baltimore , Maryland), pursuant to which a secret- ballot election was conducted under his supervision on June 19, 1969, in a specified appropriate unit of employ- ees at Respondent 's plant . Of 187 eligible voters, 92 cast votes for the Union , 80 cast votes against the Union , and 10 ballots were challenged . No investigation was conducted with respect to the challenged ballots as they could in no event affect ther results of the election. On June 26, 1969, Respondent filed timely objections (seven in number) to conduct affecting the results of the election . Thereafter, the Regional Director caused an investigation to be made of said objections. On August 5, 1969, the Acting Regional Director2 issued a Supplemental Decision and Certification of Representa- tives, in which he overruled Respondent's objections and, as the Union had received a majority of the valid votes cast, certified the Union as the exclusive collective- bargaining representative of all the employees in the appropriate unit. Thereafter, on August 26, 1969, Respondent filed with the Board in Washington, D.C., a request for review of, and exceptions to, Regional Director 's Supplemental Decision and Certification of Representatives . In said request , Respondent contended that the Acting Regional Director "erred, not only with respect to the substantial legal conclusions '. . but also by his failure to recognize the substantial credibility conflicts which appear through the body of evidence and by his failure to order a hearing to resolve such conflicts ." It argued that "a hearing should be ordered in the circumstances of this case in order to fill in the large voids left by the Board's inadequate ex parte investigation and to resolve the issues raised in objections 1, 2, 3, 4, 5, and,6," emphasiz- ing that "only then would counsel be able to cross- examine the statements of sworn witnesses and only then would the Board have the benefit of `demeanor evidence ' in resolving credibility issues raised therein." Respondent concluded with a request that "the Board overrule the Regional Director 's conclusions and recom- mendations , sustain the objections in their entirety, set aside the election conducted herein and reschedule a second election . . . or, in the alternative, that the Board order an evidentiary hearing be conducted to resolve substantial and material issues raised in the Employer's (Respondent's) objections." On September 5, 1969, the Board denied Respondent's request for review "as it raises no substantial issues warranting review." By letter dated September 8, 1969, and addressed to Respondent's President Joseph Paul, Union President P The title of Regional Director and Acting Regional Director are hereinafter used interchangeably Edward Allen reminded him of the Union's recent certi- fication and requested certain relevant data and : informa- tion "in order for the union to intelligently draw up our collective bargaining agenda " and "to help expedite our negotiations." By reply letter dated September 15, 1969, Respondent 's counsel advised that Respondent "contests the validity of the alleged certification referred to in your letter on both substantive and procedural grounds, doubts that your Union represents an uncoerced majority, of its employees, and therefore cannot comply with the request set forth in your letter." The next day, the .Union filed with the Board's Region- al Office the 8(a)(1) and (5) charge in the instant case. ,As previously noted, the instant complaint, alleging that Respondent's above-described refusal constitutes a viola- tion of Section 8(a)(1) and .(5) of the Act, was issued against Respondent on October 31, 1969 , originally scheduling the instant hearing for November 24, 1969. Pursuant to orders rescheduling hearing, dated Novem- ber 4 and 26, 1969, the instant hearing was rescheduled to December 16, 1969. Meanwhile , about 3 or 3'h weeks prior to December 16, 1969 , the General Counsel in the instant case advised Respondent ' s counsel that he would not object to Respondent "litigating or relitigating his objections" in the representation case in the instant complaint case. On December 11, 1969, Respondent filed with the Board in Washington , D.C., a motion to revoke certification and for other relief . In said motion , Respondent request- ed the Board to revoke the Union 's certification, to order a de novo hearing on Respondent ' s objections in the representation case and to order the withdrawal of the complaint in the instant case . In support of its motion , counsel for Respondent admitted that he had been advised by counsel for the General Counsel "that Respondent will be permitted to present evidence in support of its objections " in the representation case "at the hearing in Case No. 5-CA-4501 (the instant case), to be conducted on 'December 16, 1969." He contended however that "a fair hearing on the objections ,or on issues raised by the objections" in the instant case "would be impossible " because "the Trial Examin- er would be bound, under prevailing Board doctrine, to support automatically the validity of the certification as the 'law of the case .' " At 9:30 a.m. on December 16, 1969 , 1ti2 hours before the scheduled commencement of the hearing in the instant case , a teletype message was received from the Board, denying Respondent's motion "with leave to the Employer Respondent to request the Trial Examiner to permit the issues raised in its objections and exceptions filed in Case 5-RC-6795 to be heard in Case 5-CA-4501," the instant case. The message further stated that the "Employer Respond- ent's contention that litigation of such issues in a com- plaint proceeding would substantially prejudice its right is found to be without merit ." Shortly after the opening of the instant hearing , I advised Respondent's counsel that, in view of the Board's rulings in the teletype message , which was received as G.C. Exh. 6, I would permit him to litigate the objections and the issues 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD raised by the objections and to adduce whatever evidence he had available in support thereof. All parties are in agreement that , as Respondent's counsel stated , "the central issue in this proceeding is whether the certification is valid." This issue, in turn , depends on whether there is merit to any of Respondent's first six objections to the conduct of the election . Thus, counsel for Respondent correctly stated at the opening of the hearing that "if the certification is a valid certification , we're guilty - of committing and 8(a)(5). If it 's an invalid certification , we're not guilty of committing an 8(a)(5)." B. The Nature of the Instant Hearing It is now settled that "adjudication" of representation issues, such as the instant objections, "in the 8(a)(5) proceeding does not" "substantially prejudice the Com- pany's rights."' Shortly after the opening of the instant hearing, I advised Respondent's counsel, and thereafter frequently reiterated, that I would make an independent determination of the validity of Respondent's objections based upon a consideration of whatever evidence was adduced in the instant hearing, including the Supplemen- tal Decision of the Regional Director, "regardless of whether or not the decision I reach agrees with or is contrary to what the Regional Director decided." I emphasized that his Decision "isn't my finding," that "I'm not passing judgment on what the Regional Director did" and that "I'm here in a de novo capacity, to determine whether or not on the evidence . . . you have made out a case warranting sustaining one or more of the objections." Again, I emphasized that "my position would be, whether or not I agree with the inference drawn by" the Regional Director, that "I'm not bound by what he did." I further pointed out that to the extent that the Respondent was willing to accept the Regional Director's factual findings based on uncon- troverted statements in affidavits submitted to him, then "the issue before me is whether or not to agree with" his findings and conclusion "that there's no merit to the objection," that I would also consider whatever additional evidence Respondent would adduce before me in the instant hearing, and that in any event "I'm going to make that decision independently of what he did." I further pointed out that to the extent that the Regional Director merely assumed the truth of disputed statements or conduct mentioned in the affidavits before him, I would have to resolve the credibility issue to ascertain the true facts and that I could not do that on the basis of statements contained in affidavits. Counsel for Respondent states in his brief, as he also stated at the instant hearing, that "the real issue in this case was whether the Regional Director properly overruled the Employer's objections and certified the Union." He therefore argues, "Obviously, the Regional Director's action cannot be evaluated by a reviewing body unless that body has before it the totality of 4) 9 N.L.R B v Bata Shoe Company, Inc , 377 F 2d 821, 826 (C A evidence considered by the Regional Director in making his decision." For that purpose, counsel for Respondent offered into evidence the affidavits and statements which the Regional Director had before him and in addition served a subpoena duces tecum upon the Regional Director to produce all "affidavits and/or other signed statements in the file in Case No. 5-RC-6795 taken in connection with the investigation of objections to election" in said case, all of which he also proposed to offer into evidence. Counsel admittedly was not claim- ing that the Regional Director had misrepresented or misinterpreted the contents of the affidavits submitted to him. Nor, he confessed, did he expect me to make credibility findings, as in fact I could not, on the basis of disputed statements or versions appearing in said affidavits. I further pointed out that the affidavits which counsel was offering were not relevant to the issues before me and in any event at most were cumulative, as they admittedly are already recited in the Regional Director's Supplemental Decision. His sole admitted purpose in offering these documents was to show what was before the Regional Director and to support his further contention that the Regional Director had not made a complete and full investigation. However, counsel for Respondent has misconceived "the real issue in this case." The "real issue" before me is not whether the Regional Director conducted a full and proper investigation or properly overruled Respondent's objections on the basis of the affidavits which he stated were submitted to him. The Regional Director's conduct and findings are not on trial in the instant proceeding. What is on trial is the validity of Respondent's first six objections to the election. That is the "real issue" and that issue is to be determined initially by me upon my independent consideration of the entire record, including the Regional Director's Deci- sion, made in the instant case. Perhaps, Respondent's counsel has confused the rep- resentation proceeding, involved in the instant case with one pursuant to an "Agreement for Consent Election" in which the parties agree that objections and challenges are to be resolved by the Regional Director whose rulings "shall be final" and where the agreement provides that the "method of investigation of objections and challenges, including the question of whether a hearing should be held in connection therewith, shall be deter- mined by the Regional Director whose decision shall be final" (see Bata Shoe, supra at fn. 9), or with a proceeding where the election is pursuant to a "Stipula- tion for Certification upon Consent Election" such as was present in the Bata Shoe case (ibid., §102.62(b) of the Board's Rules and Regulations). In the first type (the "Agreement for Consent Election"), the only issue before the reviewing body, be it Trial Examiner, Board, or circuit court, is whether or not, on the basis of the evidence before the Regional Director , his findings were arbitrary or capricious or repugnant to Board policy or the Act. And this is so regardless of whether a hearing had been conducted or whether the reviewing body would have reached a different result on the same GRAPHIC ARTS FINISHING CO. evidence were the matter initially before it ." In the second , type (the "Stipulation for Certification upon Consent Election"), the Regional Director issues a report' of objections in which he merely makes findings'and recommendations such as, for example, that the objec= tions be overruled . Thereafter , following the filing of exceptions , the Board makes an independent review of such findings and recommendations and, only- if the Board arrives at the same conclusions beased on its own independent considerations , does the Board then issue its own Decision and Certification of• Representa- tive. It was for that reason that the Trial Examiner in the Bata Shoe case considered himself bound by the Board ' s findings in the absence of any additional evidence having been adduced before him (157 NLRB 1, 7). Neither of these procedures was used in the instant case. Here, the parties did not enter into any type of consent agreements . The Regional Director proceeded in accordance with Section 102.63 and 102.67 of the Board ' s Rules and Regulations which provide for the issuance by the Regional Director of, a decision in which he "shall set forth his findings , conclusions , and order or direction " and which further provides that "the deci- sion of the regional director shall be final" unless the Board grants a party's request for review "where com- pelling reasons exist therefore ." In the instant case, the Board denied the Respondent 's request for review of the Regional Director 's supplemental decision. Thus, in the instant case , there has been no independent deter- mination by the Board that, based on its own independent consideration of the Regional Director 's supplemental decision , it reached the same conclusions and therefore agreed with him . This then is the function which I initially will perform in this Decision . I therefore again reiterated to Respondent's counsel that if "I feel that there is merit to your objections , my position is that I have that authority" so to find and that I would so find. I also called the attention of counsel for Respondent to specific pages and portions of the-Regional Director's decision wherein he states that the affidavit discloses a dispute in the statements or versions related by employ- ees with respect to certain described incidents and that, without ' making any credibility findings, he merely assumed for, purposes of his decision the correctness of the statements or versions most favorable to Respond- ent and nevertheless concluded that based thereon there was no merit to the objection . In're'sponse to my question as to what would happen if I and the Board were' to make the same disposition in such instances and if a circuit court later disagreed with that conclusion, counsel for Respondent replied that "either the Court of Appeals could decide that the matter is so stale that they could simply deny enforcement or they can order the case remanded for the • taking of testimony ' See, e g , N L R B v Capitol Greyhound Lines, 140 F 2d 754, 758 (C A 6), cert denied 322 U S 763, Semi-Steel Casting Co of St Louis 'v N L R B. 160 F 2d 388, 391 (C A 8), and N L R B v General Armature & Mfg Co , 192 F 2d 316,= 317, In I '(C A 3) . 321 at that time when the credibility issue is the crucial factor " That indeed would 'be a d'esireable procedure for anyone interested in delaying a final, determination for at least an additional year or so. Moreover, counsel's position is directly contrary to the one he took before the Board in. his request for review of the Regional Director's decision. For in that request counsel argued, among other things, that the Regional Director had erred "by his failure to recognize the substantial credibility conflicts which appear through the body of evidence and by his failure to order a hearing to reslove such conflicts," and requested that the Board direct such a hearing because "only then would the Board have the benefit of `demeanor evidence' in resolving credibility issues raised therein." I therefore announced that "that's the purpose of this hearing now. You are being permitted-and the General Counsel does not object, in fact has notified you sufficiently in advance, to put in your evidence on that. And you won't get another opportunity, if any higher tribunal disagrees with the conclusions, to put in evidence in- order to resolve the conflicts. And I'm not going to make a resolution of credibility on the basis of affidavits. I just wanted you to know that that's my position." Overruling the General Counsel's objections, I finally received the affidavits in evidence but emphasized that "I'm not accepting them as evidence of the truth of the statements contained therein. I received them and I told you, as far as I can see, it's nothing but a repetition of what's already in the Regional Director's Supplemental Decision. You feel its necessary in sup- port of your case. -I'm saying, `all right. Let them come in.' But I clearly. outlined where I stand with respect to it. "5 - - - My position with.respect to the lack of relevancy of the affidavits and my. view of the nature of the instant hearing and my functions therein, all as previously detailed,, were relevant considerations in my granting the General Counsel' s petition to revoke subpoena duces tecum served on the Regional Director. Contrary to the assertion of counself for Respondent in his brief, lack of relevancy- to the issues herein is one of the specific grounds set forth in the General Counsel's peti- tion as a basis for revoking said subpoena. [Resp. Exh. 1(A).] As grounds- for granting said petition as well as the . petitions to revoke subpoenas served on two other Board agents, I openly stated at the instant hearing that "I've sustained the petition of course on the basis set forth in the petition." Another basis set forth in each petition for revoking the subpoena is Respondent's failure to seek prior permission of the General Counsel in Washington, D.C., or the Board, as the case may be, for the Board personnel to comply with the subpoena. There is no showing that,, had such a request been made, it would not have been granted.' That the failure ' I have decided to adhere to this ruling, after further consideration pursuant to the General Counsel's request in his memorandum b I adhere to my ruling in sustaining the petitions to revoke on the grounds stated therein, after reconsideration pursuant to Respond- ent's request in its counsel's brief, and again deny counsel's repeated (Cont ) 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to make a prior request for such permission is a valid basis for granting a petition to revoke subpoena, had been held by every Circuit Court of Appeals before which the question has arisen.' Unlike the situation in the Bata Shoe, supra (at p. 824), counsel for Respondent made no statement at the instant hearing of the nature of the evidence it was prepared to offer of alleged irregularities in the conduct of the election to support Respondent's objec- tions. The Regional Director's decision clearly identifies by name the employees who were the specific source of the evidence which he considered, except in one instance where reference is made to an unidentified rank-and-file employee (p. 8, par. 4 of his decision). However, this unidentified employee is identified as Evelyn Lyons in the affidavit of Evelyn Lomax who served as Respondent's election observer, a copy of which affidavit was in the possession of counsel for Respondent and appears in the record as Resp. Exh. 6. Although "it is settled that the burden is on the party objecting to the conduct of a representation elec- tion to prove that there has been prejudice to the fairness of the election" (Bata Shoe, supra, at p. 826), Respond- ent's counsel failed to call a single employee to testify on his behalf in the instant case. And this is so despite the fact that many of the statements in the affidavit of Respondent's observer Lomax are noted in the Regional Director's decision as having been denied by the named persons to whom they were attributed and were in fact denied by them through sworn testimony when called as witnesses by the General Counsel in the instant hearing and despite the additional fact that both union observers were present in the hearing room. He contended himself merely with calling Respondent's vice president who testified to a telephone call received about a week before the election from an employee who explained that he was not at work that day because of fear of bodily harm and also testified with respect to objection 6 relating to alleged union misrepresentation. He then called two union representatives to adduce testimony as to the authority and duties of the inplant employee organizing committee in support of his conten- tion that the Union was responsible for their statements and conduct during the election campaign. From all the foregoing, it is abundantly clear, as I find, that the instant hearing "satisfied the requirements of due process" and "is fundamentally fair." Bata Shoe, supra at p. 827. C. Objections to the Election In its request for review submitted to the Board, Respondent was seeking review only of its first six objections. untimely request for an adjournment to enable him to request such permission. ' N.L.R.B. v Jamestown Sterling Corp., 211 F 2d 725, 726 (C A 2), Davis v Braswell Motor Freight Lines, Inc , 363 F 2d 600 , 602-603 (C A 5), and North American Rockwell Corporation v. N.L R B , 389 F 2d 866 , 873 (C. A 10) See also General Armature & Manufacturing Co , 89 NLRB 654, fn 5 Objections I and 2 In these two objections, Respondent states that the Union (petitioner in the representation proceeding), "by its agents and adherents," (1) "misrepresented to employees that they were required to vote in the election and that they did not have the option of not voting," and (2) "coerced employees into voting in the election." In its request for review of the Regional Director's decision, filed with the Board,' Respondent "emphasizes the absolute necessity for an evidentiary hearing in open court so that witnesses might testify under oath" in support of these objections, and urges the Board to direct such an "evidentiary hearing" so that there could be "a full and fair development of the evidence in this matter." Yet, when afforded that opportunity in the instant hearing, counsel for Respondent, for undis- closed reasons, failed to adduce a scintilla of evidence in support of these objections. If Respondent is relying on the Regional Director's treatment of the statements in the affidavit of Respondent's Vice President Paul, the only affidavit submitted to him with respect to these objections, I find that the statements to which the Region- al Director refers in his decision are hearsay of the rankest sort and do not constitute probative evidence in support of the objections.' Although Respondent's Vice President Paul testified as a witness for Respondent in the instant hearing, no evidence was adduced with respect to these objections. I find the objections to be unsupported and therefore without merit, and direct that they be overruled. Objection 3 In this objection, Respondent states that the Union, "by its agents and adherents, caused a large number of ineligible individuals to appear at the polls, although Petitioner (the Union) and the individuals involved knew they were not eligible to vote, the effect being to create confusion in the minds of the eligible voters and fear that the results of the election could be determined by non-employees." Again, in its request for review Respondent urges upon the Board that "an evidentiary hearing is obviously warranted to establish the facts and servey (sic) their impact on the election." Again, Respondent adduced not a scintilla of evidence in support of this objection when it was offered the opportunity to do so at the evidentiary hearing which it was so vigorously request- ing. Surely, Respondent's election observers, both of whom were present in the polling area and obviously friendly to Respondent, would have been competent witnesses in support of this objection if the matters alleged therein did in fact occur. Respondent made no claim that they were unavailable. Under these circum- stances, Respondent's unexplained failure to have these " In his brief before me, counsel for Respondent states that "Respond- ent hereby reiterates and incorporates by reference the arguments con- tained in its Request for Review in Case No 5-RC-6795 " B See Consolidated Edison Co of New York, Inc, v N L.R B , 305 U S 197, 230 GRAPHIC ARTS FINISHING CO. 323 friendly witnesses testify leads to the inference that their testimony would have been adverse to Respondent's position on this objection.' If Respondent is relying on the facts recited in the Regional Director's decision based on the affidavits before him, these recited facts are that a union representative at the election location on election day urged one, Stamper, to vote despite Stamper 's statement that he had just voluntarily quit his employment, that the union representative had heard from employees that Stamper had been coerced into quitting, that Stamper's name had not been designated as a "quit" on the Employer's list of names and address- es, that Stamper did not vote despite a Board agent's explanation that he could vote under challenge, that it was discovered that two female nonemployees attempt- ed to cast ballots when one stated that she had been terminated a month before the election and the other that she had never been employed here, and that neither intimated that any union representative had requested them to attempt to vote. I find that the foregoing does not support the allega- tions in Respondent's objection that the Union "caused" a large number of clearly ineligible persons to appear at the polls. I further find that the foregoing does not demonstrate that "a large number" of clearly "ineligible persons" did in fact appear at the polls, as also alleged in the objection. Finally, I find no evidence or warrant for any inference that the foregoing incidents created or tended to "create confusion in the minds of eligible voters and fear that the results of the election could be determined by nonemployees," as further alleged in the objection. I therfore find no merit to this objection and direct that it be overruled. Objections 4 and 5 In these two objections, Respondent states that the Union, "by its agents and adherents," (1) "did inject a racial theme into the campaign in an intemperate and irrelevant manner," and (2) "threatened and intimi- dated employees known or suspected to be unsympathet- ic to Petitioner's (the Union's) cause." The Regional Director's decision states that the Employer Respondent submitted to him two affidavits in support of these objections. One was from Respond- ent's election observer Evelyn Lomax and the other from employee Taylor. The decision recites from Lomax's affidavit statements made to her containing threats and appeals to her race and interrogations as to her voting intentions, all of which conduct is attributed by Lomax to Dorothy Brown and union observer Ruth Tillman, both members of the Union's inplant organizing committee. Other statements recited from Lomax's affidavit relate to remarks made to her in person and on the telephone by unidentified persons, accusing her of turning against her race and being promised a bribe 10 Interstate Circuit, Inc , et al v U S., 306 U S 208, 226, Staub Cleaners, Inc , 148 NLRB 278, 284, enfd 357 F.2d I (C.A. 2), and Benevanto Sand & Gravel Co , 131 NLRB 358, 364, enfd 316 F 2d 224 (C A 1) by Respondent. The Regional Director's decision further recites that Brown and Tillman denied having made the statements or engaged in the conduct attributed to them in Lomax's affidavit. However, he concluded that, assuming that such statements and conduct did in fact occur, they could not be attributed to the Union merely because Brown and Tillman were members of the inplant organizing committee, as there was no show- ing that the Union had authorized or ratified such state- ments or conduct. With respect to the affidavit of Taylor, the Regional Director's decision recites the statements contained the- rin to the effect that he was accused by numerous unidentified employees of having sold out to the Employ- er, was told by unnamed employees that "they heard" he would be beaten up for selling out to the Employer, that about a week before the election he went home early one day because of fear of violence but returned to work the next day and that no one at the plant ever harmed him. The Regional Director concluded that the foregoing allegations did not constitute evidence that the Union or any of its agents threatened or intimi- dated him and that accusations of improper conduct by rank-and-file employees was not a basis for setting the election aside. He further concluded that all the foregoing incidents, even if they occurred, did not create a general atmosphere of confusion or fear of reprisal as to make a free election impossible. I find that at least some of the disputed statements mentioned in the Regional Director's decision as having been alleged in Lomax's affidavit to have been made to her by Brown and Tillman are coercive and objectiona- ble. Therefore the issues which these objections pose for my resolution are (1) whether the Union would be responsible or liable for the alleged disputed state- ments and conduct of Brown and Tillman, if they had in fact occurred; (2) if the answer is in the affirmative, the credibility resolution as to whether Brown and Till- man did in fact make the alleged disputed statements attributed to them in Lomax's affidavit; and (3) if the answer is in the negative, whether the remaining indicents related in the Regional Director's decision as being attributed to unidentified persons in the affidavits of Lomax and Taylor created such an atmosphere of confu- sion and fear as to prevent the employees from exercising a free choice in the selection of a bargaining representa- tive. I now turn to a consideration and disposition of these issues. 1. As to the Union's liability At the instant hearing, counsel for the Respondent called as adverse witnesses Union President Edward Allen and Union Representative William Hightower and adduced the following undisputed evidence concerning the duties and functions of the inplant organizing commit- tee: The inplant organizing committee consisted of a volun- teer group of rank-and-file employees, including Dorothy Brown and Ruth Tillman, who volunteered to serve when Allen asked for volunteers at a union meeting. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Their duties were to "try to help" and "organize the plant." They were to try to get employees to sign authorization cards. After the petition for an election had been filed, their function was no longer to get cards signed, according to Allen, but, according to High- tower, they continued to get cards signed because of turnover. Allen admitted that "they assisted me all the way through." Both agreed that the committee was used as a conduit for relaying from the Union to the employees information about union benefits and ques- tions from the employees to the Union, that they were to try to make "sure" of and to "encourage," employee attendance at union meetings, and that they were "to find out where the interest was there in reference to whether they wanted to be organized or not." Allen admitted that the employees "automatically knew who was on the committee." Allen testified that he said nothing to the committee "one way or another" about interrogating employees as to their voting intentions or about threatening employees with physical reprisals but "let them use their own common sense" and depend- ed on their "good judgment" as a guide to their conduct. Hightower testified that the committee members "were instructed not to interfere with anyone" and that "they can't interrogate" employees about their, voting inten- tions, but admitted that "we didn't tell them yes or no" with respect to coercing other employees in connec- tion with the Union because "this thing was not going to happen." Upon consideration of all the foregoing, I find that the Union was liable for any statements and conduct relating to the Union which Dorothy Brown and Ruth Tillman did in fact make during the organizing and preelection campaign, even in the absence of any specific authorization or ratification by the Union. 2. As to the credibility resolution Dorothy Brown and Ruth Tillman testified as witnesses for the General Counsel. In reponse to separate and detailed questions relating to the specific conduct attrib- uted to them, each unhesitatingly and vigorously denied having made each of the statements attributed to them in Lomax's affidavit, denied making or hearing such alleged statements directed to Lomax or to any other employee, denied interrogating, or hearing the interroga- tion of, Lomax or any employees as to their voting intentions, denied making any telephone calls or threats to employees in connection with the election, 'denied ever asking Lomax why she did not attend union meet- ings and denied ever asking Lomax about the contents of any conversation she might have had with Respond- ent's Vice President Paul. Despite the foregoing testimony, despite 'my previous repeated admonitions that I could not make credibility resolutions on the basis of affidavits, a position in which Respondent's counsel openly concurred, and despite Respondent's prior vigorous appeal to the Board in its request for review for an evidentiary hearing to "resolve substantial credibility, conflicts" because "only then would the Board have the benefit of 'demeanor evidence' in resolving credibility issues" counsel for Res- pondent did not call Lomax as a witness, made no claim of her unavailability, and adduced no evidence at all relat- ing to the alleged improper conduct of Brown and Till- man. Moreover, counsel for Respondent did not even cross-examine Brown and Tillman or request the General Counsel to give him their affidavits, to which, the General Counsel concedes, he was rightfully entitled upon request Thus, the only probative evidence appearing in the record on this issue are the previously detailed denials of Brown and Tillman, both of whom impressed me as candid and forthright witnesses entitled to full cre- dence. I accordingly credit their denials and find that Dorothy Brown and Ruth Tillman did not make any of the statements or engage in any of the conduct attributed to them in Lomax's affidavit. 3. As to the remaining incidents The only evidence adduced at the instant hearing on this aspect of the 'objections is the testimony of Vice President Paul that one afternoon prior to the election he received a telephone call from employee Taylor who stated that he had not reported for work that day because he had been threatened with physical violence "by two men" for having "sold out to the Company. "'Counsel for Respondent stated at the hearing that this testimony was not being offered for the truth of the contents of the statement related by Taylor but only to show Taylor's state of mind. The only other matter in the record are the previously related statements appearing in- the Regional Director's decision about Lomax's affidavit containing remarks made to her in person and on the telephone by unidentified persons, accusing her of turning against her race and of having been promised a bribe, and about Taylor's affidavit containing bribery accusations made to him by unnamed persons and hearsay rumors of physical violence by unnamed persons. The Regional Director's decision fur- ther recited from Taylor's affidavit his admission that the day he stayed out of work 'because of fear of violence was about a week before the election, that he returned to work the next day and that no one at the plant ever harmed him. There is no evidence tending to show that other employees became aware of the above-mentioned state- ments and telephone calls made by unnamed persons or that Lomax or Taylor or any other employee failed to vote because of them. Under all the circumstances, the record before me does not warrant a finding or inference that the statements and telephone calls by unnamed persons to two employees created, or even tended to create, a general atmosphere. of fear and reprisal among Respondent's,employees so as to prevent them from exercising a free choice in the election." Thomas Lanier, et al, d/bla Happ Manufacturing Company, 124 NLRB 202, 206, N L.R B v Bill's Institutional Commissary Corpora- tion , 418 F 2d 405 (C A 5) GRAPHIC ARTS FINISHING CO. 325 4. Conclusion I find no merit in Respondent 's objections 4 and 5 and direct that they be overruled. Objection 6 In this objection Respondent states that the Union, "by its agents and adherents , misrepresented to the employees the alleged accomplishments of Petitioner (Union) and the benefits to be gained through organiza- tion by Petitioner ." The undisputed facts adduced at the instant hearing are as follows: At a meeting with the inplant organizing committee about 3 weeks before the election of June 19, 1969, the Union distributed a six-page leaflet (attached as Appendix I to the Regional Director 's decision) which represented the rates of pay and benefits appearing in the Union's commercial contract covering the Balti- more , Maryland, area. The committee members were instructed to visit employees ' homes with this leaflet to tell them that "this is what was achieved in collective bargaining and negotiations and that if the people had a union , they could take and probably negotiate for the same benefits ." At the next regular meeting with all employees near the end of May, the leaflet was "read out." At the end of the leaflet on page 6 appears the statement that "A signed contract guarantees these ben- efits and wages . What guarantees do you now have?" The wage rates appearing on page 3 of the leaflet are for skilled classifications , and the categories of "Loader on Folding Machine" and "Fork Lift Operator" are listed on that page among the male, skilled classifications. However , in the Union 's commercial contract for the Baltimore area, the category of "Loader on Folding Machine " is classified as "Semi-Skilled," and the catego- ry of "Fork Lift Operator " is not listed at all. Neverthe- less the contract did cover a forklift operator at the plant of Young & Selden and he was paid at "a skilled worker 's rate." On Friday, June 13, 6 calendar days before the elec- tion , one of Respondent ' s male maintenance employees gave Vice President Paul a copy of this leaflet and, in response to Paul's query , stated that a union represent- ative came to his home and gave it to him together with an "organizational pitch ." For some time prior to June 13 , Paul had had in his possession a copy of the Union ' s commercial contract in the Baltimore area. He compared the contents of the leaflet with this contract and at that time became aware of the discrepancy with respect to the classifications of "Loader on Folding Machine " and "Fork Lift Operator" but did nothing about it . On Monday, June 16 , a second copy of the leaflet was given to Paul by a female employee. On Tuesday , June 17 , a third copy of the leaflet was given to him by another female employee. He admittedly at no time made any effort to point out to employees the above -described discrepancy. Counsel for Respondent contends that the leaflet con- tains two misrepresentations , one relating to the discre- pancy with respect to the two above-described categor- ies, and the other with respect to the last sentence appearing at the end of the leaflet on page 6. With respect to the latter , counsel contends that the misrepre- sentation consists of a failure to mention "the necessity for collective bargaining." However , it seems to me that the meaning which this statement reasonably con- veys, as well as its intended meaning according to Union President Allen, is that when you have a "signed con- tract" you have a "guarantee " that the benefits appearing in the signed contract will continue for the term of the contract . This was posed in contrast to the then existing situation where the employees had no guarantee as to how long Respondent would maintain the benefits then in effect. In any event, the Board has held , with court approv- al,12 that it will set aside an election on the basis of a misrepresentation only if the misrepresentation "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 misrepresentation, whether deliberate or not, may reasonably by expected to have a significant impact on the election." Hollywood Ceramics Company, Inc., 140 NLRB 221, 224. In the instant case, the admitted facts disclose that Respondent had ample time , opportunity, and the requisite knowledge effectively to reply to the contents of this leaflet. As early as 6 calendar days before the election , Vice Presi- dent Paul became aware of the asserted misrepresenta- tions and was put on notice that a union representative was visiting employees at their homes with this leaflet. This fact was further made known to him on two subse- quent occasions by two different employees on the third and second day before the election , respectively. Respondent's Vice President Paul admitted that no busi- ness decision and no union representative prevented him from informing the employees of these asserted discrepancies . His only admitted reason for not doing so was "the fact that it seemed to me at the time it was such 'a limited item " and he was not aware that the leaflet had been given such wide distribution. Having elected to take the risk that the leaflet would not be widely distributed , he may not be heard to complain when it turned out that he had guessed wrong. Moreover, from May 28 through June 17, 2 days before the election , Respondent carried on a vigorous campaign against the Union through the distribution to its employees , both in person and through the mail, of leaflets which contained statements clearly neutraliz- ing any alleged misrepresentations in the Union 's leaflet here in issue . Thus, the leaflet distributed on May 28 states, among other things: These are the TRUE FACTS. There are no automat- ic wage increases or improved benefits just because a union wins an election . All a union gets, when it wins an election , is the right to come in and ask the company for things. But, as long as a company bargains in good faith , the company does " See, e g , Bill's Institutional Commissary Corporation , supra, and cases cited therein 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not have to give in to a single union demand or make a single concession to the union Another leaflet sets forth a comparison of job rates under the Union's contract at Moore & Co in Baltimore with Respondent 's existing rates This comparison shows Respondent s job rates to be higher for the classifications listed, which also include that of "Folding Machine Loader " The leaflet then states in bold type DON'T FORGET-IN BARGAINING WITH THE BOOK BINDERS, THE COMPANY HAS THE RIGHT TO PROPOSE A REDUCTION IN RATES DOWN TO THE LEVEL AT MOORES'S DON'T FORGET-THE UNION CANNOT GUARANTEE THAT YOU WOULD NOT END UP EARNING LESS MONEY UNDER A UNION CONTRACT THAN YOU EARN NOW Another leaflet, mailed to the employees' homes, warns the employees that When you hear the Union's empty promises and phony claims, remember one important TRUE FACT Under a union, you get no wage increases, no improvements in benefits, no changes in working conditions unless the Company agrees to them As long as a company bargains in good faith, the company does not have to give in to a single union demand or make a single concession to the union A final booklet was distributed to the employees on June 17, 2 days before the election It is entitled "Here Are the Facts" and states that it contains "Questions and Answers of importance to you " Among the ques- tions and answers are the following 8 Q If the union wins the election, will we auto- matically get the things the union has been promising us') A There is no way for the union to force this company to fulfill the promises that the union has made to you The company does not have to agree to fulfill any promises made by the union which it does not believe to be in its best interest The company is only required to bargain with the union in good faith I find that the employees were fully apprised of the issues in the campaign and could properly evaluate the respective material of the parties A consideration of all the foregoing warrants the conclusion, which I herein make , that there is no merit to Respondent's objection 6 Accordingly, I hereby direct that said objec- tion be overruled D Concluding Findings Having found no merit in any of Respondent's objec- tions, which I have directed be overruled, it follows, as I further find, that the Union was validly certified by the Acting Regional Director on August 5, 1969, as the exclusive collective-bargaining representative of all the employees in the admitted appropriate unit I therefore find that by refusing on and after September 15, 1969, to supply the Union with the requested data and information and refusing to recognize and bargain with the Union as such exclusive representative, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act 6 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Q Can the union guarantee me a wage increase) A No Only management can give you a wage increase It is the company which furnishes your job and your pay check-not the union The union will never furnish you a day's work nor a cent of pay The acts of the Respondent set forth in section III, above, occurring in connection with its operations as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce 7 Q Will the law compel the company to reach an agreement with the union9 A Absolutely not' The company does not have to agree to a single thing the union proposes so long as we bargain in good faith As we have advised you, the law itself provides that bargaining in good faith does not require the company to agree to any union demands or to make any conces- sions to the union Thus, we do not have to sign any contract which we don't believe to be in the company's best interest There is no law that forces us to agree with the views and demands of the union CONCLUSIONS OF LAW 1 All production and maintenance employees at Respondent's plant located at 3801 Southwestern Boule- vard, Baltimore , Maryland, including shipping and receiving employees, stockroom employees, leadmen and leadladies, the work order clerk, setup men and machine operators, but excluding truckdrivers, office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act 2 At all times since June 19, 1969, the Union has been, and continues to be, the exclusive bargaining representative of all the employees in the aforestated GRAPHIC ARTS FINISHING CO. unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 3. By refusing on and after September 15, 1969, to supply the Union with the data and information requested in the Union's letter of September 8, 1969, and to recognize and bargain with the Union as the exclusive bargaining representative of all the employees in the aforestated appropriate unit , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices , I will recommend that it cease and desist therefrom and take certain affirmative Iction designed to effectuate the policies of the Act. I will recommend that , upon request , Respondent supply the Union with the data and information requested in the Union's letter of September 8, 1969, as well as with any like or related requested information and data, and that it bargain collectively with respect to wages, rates of pay, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. Upon the foregoing findings and conclusions and the entire record, I hereby issue the following: RECOMMENDED ORDER Respondent Graphic Arts Finishing Co., Inc., Balti- more, Maryland, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to supply the Union with its requested data and information and from refusing to recognize and bargain with it as the exclusive bargaining representa- tive of all the employees in the following appropriate unit: All production and maintenance employees at Respondent's plant located at 3801 Southwestern Boulevard , Baltimore, Maryland , including shipping and receiving employees, stockroom employees, leadmen and leadladies , the work order clerk, setup men and machine operators, but excluding truckdri- vers, office clerical employees, guards, and supervi- sors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Upon request, supply the Union with the data and information requested in the Union 's letter of Sep- tember 8, 1969, and with any like or related requested information and data. 327 (b) Upon request, bargain collectively with the Union as the exclusive representative of all the employees in the unit above set forth with respect to wages, rates of pay, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Post at its place of business in Baltimore, Mary- land, copies of the attached notice marked "Appendix B."13 Copies of said notice, on forms to be provided by the Regional Director for Region 5, shall, after being duly signed by an authorized representative of Respond- ent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 5, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.'" " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request , supply Bookbinders & Bindery Women 's Union Local 44, affiliated with International Brotherhood of Bookbinders, AFL-CIO, with the data and information requested in its letter of September 8, 1969 , and with any like or related requested data and information. WE WILL, upon request , bargain collectively with the above-named Union as the exclusive representa- tive of all the employees in the following appropriate unit and , if and understanding is reached , we will embody such understanding in a signed agreement. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. The appropriate bargaining unit is: 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees at our plant located at 3801 Southwestern Bou- levard , Baltimore , Maryland , including ship ping and receiving employees , stockroom employees, leadmen and leadladies, the work order clerk , setup men and machine operators, but excluding truckdrivers, office clerical employees , guards, and supervisors as defined in the Act Dated By (Representative) (Title) GRAPHIC ARTS FINISHING CO , INC (Employer) 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, Federal Building, Room 1019, Charles Center, Baltimore , Maryland 21202, Telephone 301-962-2822