Sayers Printing Co.

SAYERS PRINTING COMPANY 73 Sayers Printing Company and Local Union No. 252, Lithographers-Photoengravers International Un- ion, AFL-CIO. Cases 14-CA-5107 and 14-RC-6194 May 24, 1972 SUPPLEMENTAL DECISION, ORDER, AND DIRECTIONS BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 1, 1970, the Board issued its Decision and Order,' finding that the Respondent, Sayers Printing Company, violated Section 8(a)(1), (3), and (5) of the Act. In sum, the Board found that the Respondent violated Section 8(a)(1) by coercively interrogating employees concerning union activities; threatening employees with plant closure if the employees selected the Union; threatening the employees with loss of employment during slack periods in the event they voted for the Union; threatening employees with loss of bonuses and other benefits; threatening employees with discharge; creating the impression of surveillance of the employees' union activities; threatening to eliminate a department; coercively interrogating an employee as to how he voted in a Board election; promising employees enhanced economic benefits for voting against the Union; and promulgating a no-solicita- tion rule devised specifically for the purpose of defeating union organization and utilizing such rule to restrain and coerce employees in the exercise of their rights under Section 7. The Board also found that the Respondent violated Section 8(a)(3) by discriminatorily discharging employees Al Polster, Carlos Busackino, and Thomas Carney. Finally, the Board found that the above-described conduct, most of which occurred subsequent to the Union's demand for recognition and filing of the election petition, had undermined the Union's majority status and impeded the election process. Therefore, a bargaining order was issued to remedy the unlawful refusal to bargain. The Board further found that the Respondent's unlawful conduct was of such a pervasive character as to require a bargaining order even in the absence of an 8(a)(5) violation to remedy the other unfair labor practices in this case. In determining that the Union represented a majority of the unit employees at the time of the Employer's refusal to bargain, the Board found that John A. Maxwell and Earl Hardy were supervisors within the meaning of the Act and were therefore excluded from the unit.2 The Board also denied the Union's request for compensatory damages. On December 31, 1971, the United States Court of Appeals, Eighth Circuit, enforced the Board's Order in part.3 The court found that there was substantial evidence to support the Board's findings that some employees were coercively interrogated by manage- ment concerning their union activities; there was an implied threat to close down the plant and move to another location if the Union won; there was some surveillance of employees' union activities; and a letter sent by management and a speech to employ- ees contained phrases which could be interpreted as veiled promises of increased benefits if the employees voted against the Union. The court also found that evidence supported the Board's finding that Polster was discharged because of his union activity. However, contrary to the Board, the court found that Maxwell and Hardy were not supervisors and that they should not have been excluded from the unit. Since there had been no showing that these two employees acted pursuant to the Respondent's request or direction in making threats during the union campaign, the court concluded that the Respondent was not responsible for their actions, and did not enforce the Section 8(a)(1) findings predicated on their conduct. The court disagreed with the Board's finding that employees Carney and Busackino were discharged for their union activity. The court also stated that the record did not support the finding that employees were coercively interro- gated as to how they voted in the election. Addition- ally, the rule concerning remaining at the press while it was running was not, in the opinion of the court, shown to be devised solely to threaten, restrain, or coerce employees in the exercise of their rights under the Act but was applied in a coercive manner to Polster. The court found that the bargaining order issued by the Board was based partially on its determina- tion that on May 2, 1969, the Union represented a majority of the employees in the bargaining unit. However, with the inclusion of Maxwell and Hardy, heretofore excluded as supervisors, the court con- cluded that the Union did not demonstrate that it ever had a majority of the unit as members.4 Thus, it stated, "In our opinion, some of the actions of the Company in this case were erroneous and illegal as heretofore set forth, but they were not egregious to the extent that a bargaining order should be enforced I Sayers Printing Company, 185 NLRB No 120 3 N LR B v Sayers Printing Company, 453 F.2d 810 ( 1971), motion for 2 In view of the exclusion of Maxwell and Hardy from the unit, the modification of opinion denied January 27, 1972 Board found it unnecessary to pass on the unit placement of employees The court found that Evans and Schutz belonged in the unit Robert E Evans and David E Schutz 197 NLRB No. 12 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the absence of a showing that the Union once had cards from a majority of the employees." 5 The court determined that the appropriate remedy was to open and count the votes of Polster, Evans, and Schutz, and in the event that the Union did not receive a majority, directed the Board to make a new determination as to whether or not to order another election as a consequence of the Section 8(a)(1) and (3) violations. The case was thus remanded to the Board.6 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. In light of the court's opinion, we have reviewed the totality of the evidence with respect to Respon- dent's unlawful conduct, and find that in the period ,immediately preceding the election the Respondent interfered with, restrained, and coerced its employees in the exercise of their rights to self-organization in violation of Section 8(a)(1) of the Act. The Respon- dent also discharged a union adherent in violation of Section 8(a)(3). The Board has held that "conduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election." 7 In the circum- stances of this case it is clear that Respondent's unlawful conduct constituted such interference. We find therefore that by its unfair labor practices Respondent prevented the employees from freely exercising their choice in the June 13, 1969, election. ORDER Accordingly, if after the opening and counting of the three challenged ballots the Union has not 5 N L R B v Sayers Printing Company, supra, 818 6 The Board did not seek certiorari 7 Dal-Tex Optical Company, Inc, 137 NLRB 1782, 1786 9 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, obtained a majority of the votes, we order that the election be set aside and that a second election be directed. DIRECTION It is hereby directed with regard to the election held on June 13, 1969, in Case 14-RC-6194, that the Regional Director for Region 14 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Direction, open and count the ballots of John A. Maxwell, Earl W. Hardy, Al Polster, Robert E. Evans, and David E. Shutz, and thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of the above ballots; and IT IS HEREBY FURTHER DIRECTED that if the results according to the revised tally indicate that the Petitioner has received a majority of the total votes cast, including the above-named challenged ballots, the Regional Director shall certify Petitioner as the exclusive representative for collective-bargaining purposes of the employees in the appropriate unit. However, if the revised tally of ballots shows that Petitioner has not received a majority of the total ballots as provided above, then it is ordered that the election held on June 13, 1969, in Case 14-RC-6144 be set aside, and that Case 14-RC-6144 be severed and remanded to the Regional Director for Region 14 for the purpose of conducting a second election among the employees in the unit found appropriate, at such time as the Regional Director deems that the circumstances permit the free choice of a bargaining representative. [Direction of Second Election8 omitted from publication.] containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 14 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed