Cadillac Evening News

National Labor Relations Board - Board Decisions

Aug 24, 1979

244 N.L.R.B. 605 (N.L.R.B. 1979)

CADILLAI.C EVENING NEWS
Cadillac Evening News and Mildred McGinn, Peti-
tioner and Graphic Arts International Union, AFL-
CIO-CLC. Case 7 RD-1564
August 24, 1979
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN FANNING AND MEMBERS PNI.I()
AN) TRUtSDAI.I,
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 7 on February 12, 1979, an election by
secret ballot was conducted on February 22, 1979.
under the Regional Director's direction and supervi-
sion, among the employees in the appropriate unit. At
the conclusion of the election, the parties were fur-
nished with a tally of ballots which showed that there
were approximately 28 eligible voters and 28 cast bal-
lots, of which 15 were for, and 12 against, the Union.
One ballot was challenged, an insufficient number to
affect the result. Thereafter, the Employer filed a sin-
gle timely objection to conduct affecting the results of
the election.
Pursuant to Section 102.69 of the National Labor
Relations Boards Rules and Regulations, Series 8, as
amended, the Regional Director conducted an inves-
tigation and, on March 30, 1979, issued and duly
served on the parties his report and notice of hearing
on objection to the election. A hearing on objection to
the election. A hearing was held before Hearing Offi-
cer Marion Muma on April 12, 1979.
Subsequently, the Hearing Officer issued her report
in which she recommended that the Employer's ob-
jection be sustained and a second election directed.
Thereafter, the Union filed exceptions and a support-
ing brief, and the Employer filed an answering brief.
Pursuant to the provision of Section 3(b) of the Na-
tional Labor Relations Act, as amended, the National
Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Upon the entire record in this case the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)( I) and 2(6) and
(7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees employed by the Employer at its
Cadillac. Michigan. facility, including news de-
partment employees, composing department em-
ployees, pressroom employees, circulation de-
partment employees, advertising department
employees, and accounting department employ-
ees; but excluding office clerical employees, pro-
fessional employees, guards and supervisors as
defined in the Act.
5. In its objection, the Employer contends that a
statement made the night before the election by
Union Agent Donald R. Hackel which represented
the Union's dues to be approximately $1.25 less than
they actually were was a substantial misrepresenta-
tion which may reasonably be expected to have had a
significant impact on the election. The Hearing Offi-
cer concluded that Hackel's statement fell within the
test outlined in General Knit of California, Inc.,' and
recommended that the election be set aside and a new
election directed. We disagree.
The facts are not in dispute. The Union was certi-
fied as the bargaining agent for the employees in the
instant bargaining unit on January 26, 1978. There-
after, negotiating meetings were held between Febru-
ary 22, 1978, and January 9, 1979. At various em-
ployee meetings held by the Union prior to the
election and prior to the commencement of negotia-
tions, the director of organizing, Norm Warnke, re-
viewed the existing union dues structure and advised
employees that they would each pay a $1.50-per-
month International group service fee or dues if they
were set up as an International group. Wanke relayed
the same information to a number of employees at a
meeting held on August 16, 1978, the same day the
Union agreed with the Employer that the bargaining
unit would become an International group. At some
point prior to November 1, 1978, a member of the
employee bargaining committee received from an In-
ternational representative of the Union an outline of
the existing dues structure as of that date, which in-
cluded the International group service fee in the
amount of $1.50.
On February 21, 1979, at 5:30 p.m., an employee
meeting was held by the Union and attended by
seven of the eligible employees. Special Representa-
tive Hackel reviewed the current dues structure as he
knew it, and estimated that "in a sample situation"
dues would amount to "about $4.50 or $5.00 per
month." He did not mention the International group
service fee which, in fact, had been reduced to $1.25
at that time. All parties agreed and stipulated that the
omission was not deliberate but was due to Hackel's
1239 NLRB 619 (1978).
244 NLRB No. 83
I)t1( ISIONS ()I NA II()NAI. I.AB()R RI.A IO()NS BO()ARI
lack of fianiliarity with InicrnalionalIt groups and their
dues structure. Save or the omission. I lackl's $4.50
to $5.00 estimate of' the dues was reasonaIbl accutr;ate.
The election was held the following day.
The single issue to he considered is whether
Hlackel's omission of' the $1.25 International group
service fiee warrants setting aside the election. he
formula to he applied in making such a determination
is whether there has been a misrepresentation (I)
which involves a substantial departure from the truth.
(2) at a time which prevents the other party or parties
from making an effective reply, (3) so that the misrep-
resentation may reasonably be expected to have a sig-
nificant impact on the election. 2
In applying this test, we find that Hackel's omis-
sion of the International group service fee was not
substantial and could not reasonably be expected to
have had a significant impact on the election. In con-
cluding otherwise, the Hearing Officer relied heavily
on our decision in The Trane Comnpany, 3 where we
found that a $1 misrepresentation in monthly dues
made on the eve of the election, when combined with
another misrepresentation concerning an employee's
obligation to pay dues in order to retain his job, war-
ranted setting aside the election. However, the rane
precedent should not be applied in a vacuum. As we
stated in Holl,wood ('eramlics, we may not set aside
an election if we find "upon consideration of all the
circumstances that the statement would not be likely
to have had a real impact on the election.-4 The
Trane case should not be read to determine whether
an absolute monetary amount of misrepresentation is
substantial or insubstantial: we must look at the al-
leged misrepresentation in the context of the entire
election.
In this light, Trane is not controlling. In rane, the
effect of the misrepresentation of the monthly dues
amount was compounded by a second misrepresenta-
tion regarding the obligation of all employees to pay
dues to keep their jobs. Here, Hackel's omission of
the $1.25 service fee stands alone. In addition, signif-
icant economic changes have occurred since Trane
I General Knit o(alJornia, supra, Holly. odl Cerami(s C(ormpaure. In. 140
NLRB 221 (1962).
1 137 NLRB 1506 (1962). The Hearing Officer also relied on the closeness
of the election results and thereby departed from established Board prec-
edent. See Modine MoanuJcturing C(omparn, 203 NLRB 527. 531 11973).
enfd. 500 F.2d 914 (8th (ir. 1974).
' 140 NLRB at 224.
was decided in 1962: inlation alone would serve to
make the dollar amount mluch less important today.
Iinally. it is significant that Representative -lackel's
presentation of the dues structure w\as a rehash of a
subject that had been discussed with the employees
on maln y previous occasions. Although I lackel did
spec iicall cenumerate the comniponents of' the dues
structure, e did not attempt to predict exactly what
monthly dues would be. Rather, he referred to
"sample situation" with a 50-cent variance. Thus, the
impact of his omission on the seven emiployees pre-
seilt was lessened both bh his sketchN presentation
and by the more definiilive information that the
Union had previously conveyed to the employees.
And, as indicated above, the effect of' the misstate-
ment is significantly less than it would have been had
it occurred in 1962 when Trane was decided.
Under all these circumstances we find that the sin-
gle misrepresentation objected to by the Employer
could not reasonably have had a significant impact
on the results of the election. Accordingly, we reverse
the -learing Officer's recommendation to hold a sec-
ond election and hereby certify the Union as the ex-
clusive bargaining representative of the employees in
the appropriate unit.
('ERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Graphic Arts International
Union, AFL-CIO-CLC, and that, pursuant to Sec-
tion 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the unit found
appropriate herein for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of
employment, or other conditions of employment.
MINMBER PNKL()LO, concurring:
I agree with my colleagues that the misrepresenta-
tion alleged in the Employer's objection does not war-
rant setting aside the election, but so find for the rea-
sons set forth in Shopping Karl Food Market, Inc.,5 the
principles of which I still adhere to. See my dissenting
opinion in General Knit of California, Inc.6
'228 Nl.RB 1311 (1977).
6239 Nl.RB 619 (19781.
606