Pacific Southwest Container, Inc.

PACIFIC SOUTHWEST CONTAINER Pacific Southwest Container, Inc. and Printing Spe- cialties & Paper Products Union, Local 609, District Council No. 1, a/w International Print- ing & Graphic Communications Union, AFL- CIO, Petitioner. Case 32-RC-1829 26 February 1987 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS The National Labor Relations Board, by a three- member panel, has considered objections to an election held 28 July 1983 and the hearing officer's report recommending disposition of 'them, The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 23 for and 20 against the Petitioner, with 2 challenged ballots, an insufficient number to affect the results. The Board 'has reviewed the record in light of the exceptions and briefs, and has decided to adopt the hearing officer's findings' and recommenda- tions2 only to the extent consistent with this deci- sion, The hearing officer recommended overruling the Employer's Objection 2, which alleged that the Pe- titioner materially misrepresented its nature, struc- ture, and identity to unit employees during the election campaign. We find merit in the Employ- er's exception to this recommendation. The pertinent facts are as follows. Printing Spe- cialties & Paper Products Union, Local 609, Dis- trict Council No. 1, a/w International Printing & Graphic Communications Union, AFL-CIO (PGCTJ Local 609) began organizing the' unit em- ployees in mid-May 1983.3 The parties signed ` a Stipulated Election Agreement on 15 June, listing PGCU Local 609 as the petitioning organization., On 1 July the PGCU merged with' the Graphics Arts International Union (GAIU) and formed the Graphic Communications International Union (GCIU), culminating approximately 1 year of nego- tiations. PGCU's District Council No.^ 1, which in- cluded PGCU Local 609 and 12 other PGCU locals, officially merged with GAIU's Western Graphic Arts Union No. 14 on 13 July and created GCIU Local 777. The 28 July election ballots, i The Employer has excepted to some of the hearing officer's credibil- ity findings The Board's established policy is not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stretch-Tex Co, 118 NLRB' 1359, 1361 (1957). We find no basis for reversing the findings 2 Absent exceptions, we adopt pro forma the hearing officer's recom- mendations to overrule the Employer's Objections 8 and 9 and to ap- prove the Employer's'withdrawal of Objection I 3 All dates are in 1983 unless otherwise indicated 79 however, did not reflect the merger but listed PGCU Local 609 as the petitioner. During the election campaign, Local 609 , Orga- nizer James Ziolkowski conducted weekly meet- ings with some of the Employer's employees. Ziol- kowski testified that at each meeting he reported the merger's progress to the group. At the 24 July meeting he informed the' employees of the new union's name, structure, and membership, and dis- tributed two documents to be signed by employees stating that they acknowledge Local 777 as Local 609's successor and designate it as their collective- bargaining representative.4 Twenty-seven of the forty-five unit employees signed both of these doc- uments. The record does not indicate whether the employees who attended the meetings disseminated the merger information to those who were absent, but unit employees Kris Mavity testified that at the time of the election he was unaware of the merger. The hearing officer concluded that the merger did not, result in a change in the continuity of the, bargaining representative. We disagree. While Local 609 encompassed only San Joaquin, Stanis- laus, and Merced counties in California, Local 777 additionally includes the widespread jurisdictions of 12 other PGCU -locals throughout Northern California, as well as GAIU's Western Graphic Arts Union No. 14.5 The new union presumably 4 The documents read in full TO, The Officers and Representatives of Graphic Communications Union Local 777. The successor to Printing Specialties and Paper Products Union, Local 609, District Council #1, affiliated with International Printing and Graphic Communications Union, AFL- CIO. We, the undersigned, are employees of Pacific Southwest Contain- er, Inc understand and acknowledge that Graphic Communications Union Local 777 is the successor to Printing Specialties and Paper Products Union, Local 609, District Council #1, affiliated with International Printing and Graphic Communications Union, AFL- CIO and it is our entent [sic' that the authorization cards we signed for Printing Specialties and Paper Products Union, Local 609, Dis- trict Council #1 affiliated with International Printing and Graphic Communications Union, AFL-CIO indicates our desire to be repre- sented for the purpose of negotiating our wages, hours and working conditions by Graphic Communications Union Local 777 The suc- cessor. ' TO: The Officers and Representatives of Graphic Communications Union Local 777. We, the undersigned, are employees of Pacific Southwest Contain- er, Inc By our signatures we hereby make application to Graphic Communications Union, Local 777, an affiliate of the Graphic Com- munications International Union (AFL-CIO), and hereby designate the Officers and Representatives of your Union as our chosen collec- tive bargaining representatives for the purpose of negotiating wages, hours and working conditions on our behalf. . 5 The jurisdictions of the other merging PGCU locals were as follows: #362, San Francisco, #382, East Bay Cities, #460, Sacramento; #618, Salinas; #653, Modesto; #677, Richmond; #678, San Leandro, #679, Idaho, #706, Sacramento; #748, Benecia; #777, San Mateo and Santa Clara Counties, and Ink and Roller Makers #5, San Francisco and East Bay Counties 283 NLRB No. 15 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD contains far more members than Local 609. Local 777's executive board has 60 members; Local 609's had approximately 6. Local 777 drew its first offi- cers from the former officers of PGCU's District Council No. I and Western Graphic Arts Local No. 14; none of them had served as Local 609's of- ficers. Additionally, Local 777 has an entirely new constitution and bylaws. Although it did not imme- diately change the- former PGCU and GAIU local dues payment formulas, the merger agreement states that "careful consideration of an equitable formula for a dues structure will be provided which will ultimately, equally apply to all mem- bers." We find that the merger substantially trans- formed Local 609. It significantly diluted the strength of any individual employee's influence in internal union matters, because Local 777 is a far larger organization than Local' 609, in scope and in' membership. Additionally, the new local is gov- erned by entirely different officers, its executive board is 10 times larger; and its members are sub- ject to a new constitution and bylaws. The merger thus did not merely effect minor administrative changes in the local. Local 609 lost its original identity and became part of a local with a vastly different structure and entirely new leadership.6 We therefore find, contrary to the hearing officer, that the merger resulted in a meaningful change in the bargaining representative. Independent Drug Store Owners, 211 NLRB 701 (1974), affd. 528 F.2d 1225 (9th Cir. 1975); Gulf Oil Corp., 135 NLRB 184 (1962). Although 27 of the 45 unit employees signed statements prior to the election indicating that they knew of the merger and desired representation by GCIU Local 777, there is no evidence suggesting that as of the election date the 18 other unit em- ployees had heard of the merger;' indeed, 1 employ- ee testified that he voted while unaware of it. Be- cause the Petitioner failed adequately to inform all unit employees of the merger, it'is uncertain that a majority of the employees who voted actually in- tended to vote for Local 777. Because of the cir- cumstances, we cannot be certain that the employ- ees knew for which union they were voting. Thus, ' the employees' right to select their bar- gaining representative, a right embedded in Sec- 8 Although the merger agreement provides that, Local 777 "is the legal successor to all the rights, duties and obligations of each of the merging Local Unions," this is outweighed by the evidence demonstrating that Local 777 is a substantially different entity from Local 609. We place little weight on Ziolkowski's conclusory testimony that, fol- lowing the merger, "representation of the membership remained the same." tions 7 and 9 of the Act, was compromised. In 0 & T Warehousing Co., 240 NLRB 386 (1979), the Board stated (at 386), "That 'statutory right can only be meaningfully exercised if the employees are presented on the election ballot with the choice of a clearly identified labor organization." The Board in 0 & T Warehousing found that the petitioner could not appear on the ballot with the designation "AFL-CIO and/or its Appropriate Affiliate." The Board concluded that it was "far from clear what labor organization or organizations are seeking rep- resentative status." The Board will thus not certify a labor organization to represent employees unless the election results unquestionably reflect the em- ployees' intent. Employees must be informed of any substantial change in the representative, occur- ring during the election campaign, and the correct labor organization must be listed on the ballot. Moreover, the petitioning union may not selective- ly inform employees of the changes; it must notify all potential voters. Only then are employees en- sured the opportunity meaningfully to exercise their voting rights. We therefore sustain Objection 2 and set aside the election.7 Although we cannot certify GCIU Local 777 to represent the unit employees based on the 28 July election results, we shall not dismiss the petition. We find that the documents signed by 27 unit em- ployees on 24 July expressing a desire to be repre- sented by Local 777 constitute an adequate show- ing of interest to justify a second election. Accord- ingly, we shall direct a second election, listing GCIU Local 777 on the ballot.8 [Direction of Second Election omitted from pub- lication.] MEMBER JOHANSEN, concurring. I concur in the result. 7 J. F. Husk & Son, 252 NLRB 1187 (1980), enfd 654 F 2d 729 (9th Cir. 1981), and American Enka Co., 231 NLRB 1335 (1977), relied on by the hearing officer, are distinguishable. Both cases involved mergers only at the International level, and in neither case was it established that the merger significantly affected employee representation. The hearing officer correctly distinguished this case from Midland Na- tional Life Insurance, 263 NLRB 127 (1982), which held that the Board will not set aside elections due to parties' misrepresentations during the campaign. Although the Employer framed Objection 2 in misrepresenta- tion terms, we are not setting aside the election for that reason Rather, we find that the election did not comport with Sec. 9(a) because we cannot ascertain that a majority of the employees intended to designate Local 777 as their collective-bargaining representative The Employer request that because of the potential for confusion sur- rounding the election, the Board should permit it to withdraw from the Stipulated Election Agreement . We shall leave this matter for resolution by the Regional Director 8 Monmouth Medical Center, 247 NLRB 508 (1980); 0 & T Warehous- ing Co, supra As we have sustained the Employer's Objection 2, we find it, unneces- sary to pass, and we do not pass, on the issues raised by its Objections 4 ands