C. J. Krehbiel Co.

National Labor Relations Board - Board Decisions

May 7, 1986

279 N.L.R.B. 855 (N.L.R.B. 1986)

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.]