C. J. Krehbiel Co.

C. J. KREHBIEL CO. C. J. Krehbiel Company and Graphic Communica- tions International Union, Local 508, O-K-I, AFL-CIO, Petitioner. Case 9-RC-14704 7 May 1986 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN The National Labor Relations Board, by a three- member panel, has considered objections to an election held on 20 June 1985' and the Regional Director's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 66 for and 64 against the Petitioner, with I challenged ballot, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and brief, has adopted the Regional Director's findings and recommendations, and finds that a certification of representative should be issued. The Employer contends, inter alia, that the Union engaged in objectionable conduct by circu- lating two flyers, attached hereto as Appendices 1 and 2, that were likely to mislead employees into believing that the Board supported the Union. In agreement with the Regional Director, and con- trary to our dissenting colleague, we find that the Employer's objection is lacking in merit and should be overruled. In SDC Investments, 274 NLRB 556 (1985), the Board reexamined, in light of Midland National Life Insurance Co., 263 NLRB 127 (1982), and Ri- veredge Hospital, 264 NLRB 1094 (1982), its rulings with regard to the reproduction of Board docu- ments for partisan purposes. The Board held in SDC that elections will be set aside if the repro- duced document gives voters the misleading im- pression that the Board favors one of the parties to the election. The Board decided, however, that, "[w]hen the party responsible for preparation of the altered ballot is clearly identified on the face of the material itself, employees would know that the document emanated from a party, not the Board, and thus would not be led to believe that the party has been endorsed by the Board." SDC at 557. However, when the source of the reproduced document is not clearly identified the Board will examine the nature and contents of the material to determine whether the reproduced document has ' All dates refer to 1985 855 the tendency to mislead employees into believing the Board favors one party's cause. Here, the Union's 17 June flyer (App. 1) is not on its face identified as being from the Union.2 Thus, we must examine the nature and contents of the flyer. It includes the caption and remedy sec- tion of an administrative law judge's decision in a case involving another printing company, the Niel- sen Lithographing Company. 3 On the same page is a 5-inch "crowing rooster," the words, "Vote Yes," a box with an "X" in it, and other partisan cartoons. We cannot find that the 17 June flyer had a tendency to mislead employees into believing that the Board endorsed the Union. No reasonable em- ployee would believe that an administrative law judge would embellish his decision with cartoons, slogans, and crowing roosters. Further, the quoted protion of the judge's decision addresses a topic that was the subject of numerous comments by both parties throughout the organizational cam- paign, i.e., the Nielsen strike. C. J. Krehbiel's em- ployees were well aware that Nielsen was not a party to the election in which they were to vote. Thus, cartoons and slogans concerning an organiza- tional campaign would have no apparent relevance to a judge's decision addressing the Nielsen strike. By content alone, then, employees could easily conclude that the cartoons, slogans, and crowing rooster were not an integral part of the judge's text. Further, the sheer physical size and placement of the cartoons and slogans on the leaflet support the conclusion that these items were additions made by the preparer of the flyer. Unlike the addi- tions made to the reproduced documents involved in SDC, the items added by the Union here are suf- ficiently distinct from the judge's decision to be readily identifiable by employees as partisan cam- paign comments rather than an endorsement by the Board of the Union.4 Our dissenting colleague suggests that the 19 June flyer (Appendix 2), with its reference to the earlier flyer as being an "actual copy" of a portion of a judge's decision, reinforces a finding that em- ployees were misled. To the contrary, the latter document fully identified to employees that the 17 June flyer was union campaign propaganda. The 19 2 However, the Regional Director noted that the flyer was mailed to employees in envelopes bearing the Union's name 2 It is undisputed that the typewritten portion of the 17 June flyer is an accurate copy of a part of the remedy section of the judge 's decision 4 See A Brandt Co, 199 NLRB 459 (1972) There, the Board examined a document that contained a Regional Director's Supplemental Decision and Order along with comments and underlining added by a party to the election Finding that the comments and underlinings were obviously not part of the decision itself, the Board held the document created no im- pression that the Board favored a party to the election 279 NLRB No. 114 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June statement that the 17 June flyer "came from the office of [the Union]" served to inform employ- ees that the Union had prepared the first flyer. Therefore, as contemplated by SDC, the employ- ees, knowing the preparer of the document, were "perfectly capable of judging its persuasive value."5 CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Graphic Communications International Union, Local 508 O-K-I, AFL-CIO, and that it is the exclusive collective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees employed by the Employer at its Cincinnati, Ohio facility, including shipping employees and receiving employees, but excluding all office clerical employees, professional employ- ees, guards and supervisors as defined in the Act, and all others. MEMBER JOHANSEN, dissenting. I would sustain the Employer's Objection 2 and direct a new election. In Objection 2, the Employ- er argues that the Union engaged in objectionable conduct by circulating two flyers which could have misled the employees and caused them to be- lieve that the National Labor Relations Board sup- ported the Union. The 17 June flyer, Appendix 1, consisted of the caption, case numbers, date stamp, and part of the remedy section of an administrative law judge's de- cision in another printing company case, to which the Union had added three cartoons, the slogan "Vote Yes," and a box with an "X" inscribed inside it. The flyer was not identified as a union document. The 19 June flyer, Appendix 2, consist- ed of cartoons and prounion statements. It stated that the earlier flyer was "an actual copy of a rec- ommended notice issued by a NLRB Administra- tive Law Judge ...." The latter flyer was print- ed on union stationery. Contrary to the majority, these two documents, taken together, were likely to mislead the employ- ees into believing that an administrative law judge, S We disagree with our dissenting colleague that the Board document included here as App 3 (omitted from publication ) is similar in style to the leaflets distributed by the Union For example, the official Board pub- lication clearly states that the leaflet was prepared by the Board as an agency of the United States Government to provide voters with informa- tion regarding Board elections and contains no cartoon of such obvious campaign nature as the 5-inch crowing rooster included in the Union's 17 June flyer and by extension the Board, was encouraging the employees to "Vote Yes" in the election. In Midland National Life Insurance Co.,' the Board ruled that misleading campaign statements are generally not objectionable. However, in regard to altered or reproduced Board documents, the Board in Midland said it would continue "to set elections aside when an official Board document has been altered in such a way as to indicate an en- dorsement by the Board of a party to the elec- tion."2 In SDC Investment,3 the Board held that the first step of its analysis in the evaluation of altered or reproduced Board documents is whether or not the document is the work of a party and will not be led to believe that the document includes a Board endorsement of a party. However, if, as here, no identification of the preparer of the document is present, the Board examines the nature and con- tents of the material to determine if it has the tend- ency to mislead employees. The 17 June flyer was void of any acknowledg- ment that it was a union-created document. The "look out for rumors" cartoon, the "Look out for special meetings called by the Boss" cartoon, and the "Vote Yes" slogan have a professionally print- ed part of the judge's decision. The style is similar to that of Board publications prepared for distribu- tion to the general public.4 Thus, the nature and contents of the document, i.e., a portion of a judge's decision blended together with cartoons and slogans-served to foster in a deceptive manner the misleading impression that the Board favored the Union. The misleading nature of the 17 June was rein- forced by the 19 June flyer which stated that the earlier flyer was an "actual copy" of a notice issued by a National Labor Relations Board admin- istrative law judge. The 19 June flyer did not dis- tinguish between the typewritten portion of the 17 June flyer (i.e., the part copied from a judge's deci- sion) and the cartoons and slogans. Thus, the 19 June flyer represented to employees that the entire 1 263 NLRB 127 (1982) 2 Id at In 25 3 274 NLRB 556 (1985) In SDC, the document in issue was a leaflet that bore no indication of the party responsible for its preparation The leaflet was two-sided On one side was a handwritten facsimile , in Span- ish, of the official NLRB election ballot At the top of this side was the NLRB seal which had been taken from an official Board document At the bottom of this side, written in Spanish, was the phrase, "Remember to vote yes on December 16th " Finding that the statement "remember to vote yes" appeared to be an integral part of the text, the Board found that leaflet was likely to lead employees into believing that the Board wanted them to vote "yes" in the election Therefore, the Board conclud- ed that the leaflet was objectionable 4 Compare App 3, art work excepted from Board publications, with Apps I and 2 C J KREHBIEL CO. 857 17 June flyer was a product of a National Labor Relations Board judge. The two flyers were likely to have misled em- ployees into believing the Board endorsed the Union. Accordingly, I find that Local 508 engaged in objectionable conduct. APPENDIX 1 The remedy in this case should be as follows: Respond- ent should be ordered to cease and desist from engaging in its unlawful practice, it should be ordered to bargain in good faith with the Union, to include making suitable ar- rangements to turn over the requested financial and eco- nomic data which was the subject of this case, reinstate the employees to their former positions and pay them back pay with interest from 25 July 1984 to date. [Cartoons and illustrations omitted from publication.] UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES THE NIELSEN LITHOGRAPHING CO. and GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 508, O-K-I, AFL-CIO Case Nos. 9-CA-20474, 9-CA-21292 REMEDY I credit the testimony of Theodore E. Murphy and Edwin J. Story that the employees went on strike on 26 January 1984 to protest Respondent's unfair labor prac- tice of failing and refusing to disclose the financial data discussed above. The striking employees wore picket signs that stated that the strike was an unfair labor prac- tice strike and the Union had filed an unfair labor prac- tice charge with the Board. Since the 26 employees who went on strike were unfair labor practice strikers they were entitled to rein- statement as of 25 July 1984 when Respondent admits they made an unconditional offer to return to work. Respondent's failure to reinstate these unfair labor practice strikers as of 25 July 1984 is a separate unfair labor practice in violation of Section 8(a)(1) and (3) of the Act. VOTE "YES" LOOK OUT FOR RUMORS spread by foremen and supervisors. LOOK OUT FOR SPECIAL MEETINGS CALLED BY THE BOSS. APPENDIX 2 Dear Future G. C. I. U. Member The mailing you recently received concerning Nielsen was an actual copy of a recommended notice issued by a NLRB Administrative Law Judge, Martin J. Linsky. The mailing came from the office of GCIU Local 508 OKI. The judge's recommendation is subject to review by the NLRB and a final order will be issued sometime in the near future. COMPANY RUMOR OF THE DAY VOTING YES FOR THE UNION WILL RESULT IN YOUR LOSING HEALTH & WEL- FARE BENEFITS. FACT} NEGOTIATIONS BEGIN WITH WHAT YOU NOW HAVE, YOU CAN ONLY LOSE BENE- FITS IF YOU VOTE TO GIVE THEM UP. (DO YOU HAVE THAT RIGHT, NOW?) VOTE "YES" [Cartoons and illustrations omitted from publication.]