Amsterdam Printing & Litho Corp.

National Labor Relations Board - Board Decisions

Nov 15, 1974

214 N.L.R.B. 984 (N.L.R.B. 1974)

984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amsterdam Printing & Litho Corp. and Local 259,
Graphic Arts International Union , AFL-CIO, Peti-
tioner . Case 3-RC-5847
November 15, 1974
SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Regional Director for Region 3 of the
National Labor Relations Board on November 14,
1973, an election by secret ballot was conducted in
the above-entitled proceeding on December 19, 1973,
under the direction and supervision of said Regional
Director.' Upon the conclusion of the election, the
parties were furnished a tally of ballots which
showed that, of approximately 24 eligible voters, 24
cast ballots, of which 11 were for, and 13 against, the
Petitioner. There were no void or challenged ballots.
Thereafter, on December 28, 1973, the Petitioner
filed timely objections to conduct affecting the re-
sults of the election. The Regional Director conduct-
ed an investigation of the objections and, on January
29, 1974, issued and served on the parties his Report
on Objections. In his report, the Regional Director
recommended to the Board that the objections be
overruled and that a certification of results issue.
Thereafter, on February 22, 1974, the Petitioner
filed exceptions to the Regional Director's Report on
Objections with a brief in support thereof.' In a Deci-
sion and Order Directing Hearing, dated May 10,
1974,3 the Board overruled certain of the Petitioner's
objections but directed that a hearing be held for the
purpose of receiving evidence to determine the issues
raised by Petitioner's Objection 2; namely, whether
or not Petitioner received the Employer's December
14 letter assertedly sent to it and had an opportunity
to reply; whether the Employer had established a
practice of giving and announcing the results of its
1 The following unit, as stipulated by the parties, was found to be appro-
priate for purposes of collective bargaining within the meaning of Sec 9(b)
of the Act
All lithographic production employees employed by the employer at its
Wallins Corners Road, Amsterdam, New York plant and place of busi-
ness , excluding all non-lithographic production and maintenance em-
ployees , office clerical employees , professional employees, confidential
employees , guards and supervisors as defined in the Act
2 The Petitioner also filed a motion to accept untimely filed exceptions
and brief, which was opposed by the Employer By telegraphic ruling of
March 13, 1974, the Board notified the parties that it would consider
Petitioner 's exceptions and brief as timely filed
3 Not published in bound volumes of the Board's Decisions
annual wage review on or about the same date each
year; and, to adduce such other evidence as was rele-
vant to the issues raised by Petitioner's Objection 2.
Pursuant to a notice of hearing on objections
served on the parties on May 21, 1974, and an order
rescheduling hearing served on the parties on May
31, 1974, a hearing was held on June 14, 1974, before
Hearing Officer Christopher G. Roach. The Employ-
er and Petitioner were represented by counsel and all
parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues raised.
On June 27, 1974, the Hearing Officer issued and
duly served on the parties his Report and Recom-
mendations on Objections in which he recommended
that the election be set aside and a second election
directed. Thereafter, the Employer filed exceptions
to the Hearing Officer's report and a supporting
brief, and the Petitioner filed limited exceptions to
the Hearing Officer's report and brief in support
thereof. Petitioner also filed a brief in answer to the
Employer's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Hearing
Officer's report, the exceptions and briefs, and the
entire record in this case, and hereby adopts the
Hearing Officer's report and recommendations, ex-
cept as modified herein.
The Hearing Officer found that on December 18,
1973,4 the evening before the election, the Employer
sponsored a dinner party at a Holiday Inn for the
voting unit employees and their spouses. At the din-
ner several officers of the Employer, including Exec-
utive Vice President Robert Singer, delivered
speeches to the employees. In the course of his
speech, Singer said:
Incidentally as you all may have heard we
made our annual wage review and are informing
employees of the various benefits as well as wag-
es. We feel we have been exceptionally gener-
ous. In regard to the Offset Department [the unit
here involved] we have written the union a letter
which I will read to you.
Singer went on to read the following letter, dated
December 14, 1973, and addressed to Petitioner's
president, Emery B. Miller:
All dates herein are in 1973 unless otherwise indicated
214 NLRB No. 146
AMSTERDAM PRINTING & LITHO CORP.
Dear Mr. Miller:
Some of our Lithographic production employ-
ees have raised a question about their status un-
der the annual review on wages and benefits,
which for the past several years has been made
at this time.
The Board of Directors of Amsterdam Print-
ing and Litho Corp. has authorized an increase
in wages, additional holidays, and other benefits
for all hourly employees, effective January 1,
1974. We are withholding payment of this in-
crease and the granting of the holidays to the
Lithographic production employees on the ad-
vise [sic] of counsel, who states that any increase
given to these employees while representation
proceedings are pending could result in the
company's being charged with an unfair labor
practice by your Union.
We would like to grant these increases, holi-
days and other benefits to our Lithographic Pro-
duction employees. However, we feel we cannot
grant them unless we have the assurance from
your Union, who desires to represent these em-
ployees, that such action on our part will not be
used as a basis for an unfair labor charge or as a
basis for a challenge to the results of any elec-
tion held by the National Labor Relations
Board. Obviously, we cannot negotiate any de-
tails of this wage increase and benefits with your
Union.
Will you please let us know promptly in writ-
ing whether your Union will give us assurance
that you will not file a complaint based on such
voluntary action on our part or use it as a basis
for challenging election results.
After reading the letter, Singer closed his speech as
follows:
We haven't received an answer yet!!!
All I can say in closing is why should you
gamble on outsiders?-Outsiders who can't give
you a job-guarantee you a job-actually who
can't place their own unemployed members in
jobs.
You won't be taking any chances or any gam-
ble if you vote 'NO' UNION tomorrow.
The Petitioner contends that it never received the
letter and consequently had no opportunity to reply.
The Hearing Officer found, on the basis of his credi-
bility resolutions,' and, in our opinion, legitimate in-
5 The Employer and Petitioner have excepted to certain c redibility resolu-
tions of the Hearing Officer It is the established policy of the Board not to
overrule a Hearing Officer 's credibility resolutions unless the clear prepon-
985
ferences drawn therefrom, that the letter was mailed
about 5:45 p.m. on Friday, December 14, and re-
ceived by Petitioner on the evening of December 17.
However, based on general knowledge of postal ser-
vice, the Hearing Officer inferred and found that,
because the letter was received less than 24 hours
before the dinner party, Petitioner's president did not
have a sufficient opportunity to reply to the letter.6
The Hearing Officer also noted that the letter did not
contain any reference to the fact that it would be
read to the unit employees and thus did not put Peti-
tioner on notice that a reply would be necessary by
December 18.
With respect to the annual wage review itself, the
Hearing Officer found that the Employer's regular
practice was to conduct such a wage review and an-
nounce the results thereof to its employees in the
course of individual interviews during the last 3
weeks of December. The Hearing Officer further
found that the Employer deviated from this practice
by not conducting such interviews with voting unit
employees prior to December 18, and by making a
group announcement concerning the wage review to
the employees at the dinner that evening. The Hear-
ing Officer concluded from these findings that
Singer's speech implied to the employees that an ele-
ment of risk was associated with a union victory by
suggesting that if Petitioner won the election there
was a serious question as to whether or not the unit
employees would receive the customary increased
benefits. Accordingly, and relying on McCormick
Longmeadow Stone Co., Inc.,' the Hearing Officer
found that Singer's speech interfered with the em-
ployees' exercise of a free choice in the upcoming
election and recommended that the election be set
aside.
While agreeing with his ultimate recommendation,
we find, contrary to the Hearing Officer, that the
Employer did not substantially deviate from its prac-
tice with respect to the annual wage review. As in the
past, both the wage review and the announcement
thereof to the employees came in December. Thus,
the timing of both the review and its publication,
which to us is the controlling factor here in determin-
ing whether the Employer deviated from its practice,
remained unchanged.
derance of all the relevant evidence convinces us that the resolutions are
incorrect The Coca-Cola Bottling Company of Memphis, 132 NLRB 481, 483
(1961), Stretch -Tex Co, 118 NLRB 1359, 1361 ( 1957) We find no sufficient
basis for disturbing the credibility resolutions in this case
6 The Employer has excepted to the Hearing Officer 's inferences that the
letter was received no earlier than December 17 and that Petitioner conse-
quently did not have an adequate opportunity to respond Contrary to the
Employer , we find these inferences reasonable and, accordingly , find the
Employer's exception to be without merit
' 158 NLRB 1237 (1966)
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, such changes as did occur, namely,
announcing to the employees as a group rather than
individually that a wage review favorable to their in-
terests had been completed and scheduling such indi-
vidual interviews approximately 1 week later than
usual, were, in our view, minimal and inconsequen-
tial variances from past practices.
Notwithstanding our finding that the Employer
did not substantially deviate from practice with re-
spect to the annual wage review, we agree with the
Hearing Officer that the Employer interfered with
the employees' exercise of free choice in the election.
We further agree with the Hearing Officer that the
rationale expressed in McCormick Longmeadow
Stone Co., Inc., supra, is applicable here. In that case,
while representation proceedings were pending, the
employer mailed employees copies of a letter sent to
the petitioning union requesting that the union waive
the institution of increased benefits as a basis for fil-
ing objections or unfair labor practice charges. The
letter contained numerous references to the
employer's desire to implement the benefits and stat-
ed that it would be unfair and unfortunate for the
employees to be deprived of such benefits while
questions pertaining to the representation proceeding
were pending before the Board. The letter further
concluded that if the waiver was not given the bene-
fits would not be put into effect. The Board found
that by drafting the letter in this manner and by
sending copies of the letter to the employees without
first affording the union an opportunity to reply to
the request, the employer sought to discredit the
union and discourage support for it by announcing a
desire to institute immediate benefits for its employ-
ees and then shifting to the union the onus for not
instituting those benefits. Accordingly, the Board
found that by this conduct the employer violated
Section 8(a)(1) of the Act.
Similarly, in the instant case the Employer an-
nounced to the employees in the voting unit that it
'had asked the Union for a waiver and that the Union
had not replied to the request, despite the fact that
the Union had not had sufficient time to do so. The
Employer then warned the employees not to "gamble
on outsiders." By this conduct, we find that the Em-
ployer in effect told the employees that they would
risk losing their normal increases in benefits if they
voted for the Union and, significantly, attempted to
shift the onus to the Union for any delay in receiving
benefits at that time. Such conduct on the part of the
Employer, in our opinion, interfered with the em-
ployees' exercise of a free choice in the ensuing elec-
tion. Accordingly, we shall order that the election
held on December 19 be set aside and that a new
election be conducted.
ORDER
It is hereby ordered that the election conducted
herein on December 19, 1973, be, and it hereby is, set
aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
CHAIRMAN MILLER, concurring:
I agree with my colleagues and the Hearing Officer
that Singer's election eve speech interfered with the
employees' exercise of a free choice in the ensuing
election. However, in so doing, I do not adopt the
position expressed in McCormick, supra, which ap-
pears to say that an employer risks a finding that it
has engaged in objectionable conduct if it truthfully
informs the employees that it has requested a waiver
from the union and that it has not received a reply.
In my view, the Petitioner's objection to the
Employer's preelection misconduct should be sus-
tained only because the Employer's speech here had
the effect of misrepresenting the facts concerning the
Union's lack of responsiveness to employee interests.
Singer's speech plainly intimated to the employees
that the Union had been less than diligent in protect-
ing their interests by failing to reply to its request,
whereas the fact was, as Singer well knew, that it was
hardly reasonable to have expected a union reply in
view of the timing, which timing was not-and, I sus-
pect, deliberately not-clearly explained to the em-
ployees. Thus the obviously inferred suggestion was
that the Union had been derelict in its duty toward
the employees, an inference not warranted from the
facts and which would not have been drawn if the
Employer had been open and frank as to the timing.
This misrepresentation was material to the issue of
whether the Union was a responsible agent-a neces-
sarily significant issue in any election campaign.
Without adopting all of the rationale offered by my
colleagues, therefore, I nevertheless concur in their
conclusion that the election should be set aside and a
new election be conducted.