Krieger-Ragsdale & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1966

159 N.L.R.B. 490 (N.L.R.B. 1966)

490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Krieger-Ragsdale & Company , Inc. and International Brother-
hood of Bookbinders, AFL-CIO
Krieger-Ragsdale & Company, Inc. and Local 73L, Lithographers
and Photoengravers International Union , AFL-CIO. Cases
25-CA-2355 and 2367. June 16,1966
DECISION AND ORDER
On March 29, 1966, Trial Examiner Charles W. Schneider issued
his Decision in the above-entitled proceeding, granting General
Counsel's motion for summary judgment, on the grounds that the
pleadings and affidavit submitted by the Respondent presented no
issue of fact requiring a hearing and finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as
amended. The Trial Examiner recommended that the Respondent
cease and desist from such unfair labor practices and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Brown and
Jenkins].
The Board has considered the Trial Examiner's Decision, the
exceptions and brief, and the entire record in these cases, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.,
[The Board adopted the Trial Examiner's Recommended Order.] 2
IIn view of the context in which the following sentence appears in section 6 of the
Trial Examiner's Decision, it is evident that the Trial Examiner inadvertently omitted
the word "not" after word "does" : "In any event , assuming that the evidence is new and
-that the operations are now in a single room, rather than three as heretofore , this does
seem so material a revision in operations as to require reversal of the decision as to the
appropriate unit."
a Inasmuch as we have adopted the Order recommended by the Trial Examiner, the
words "a Decision and Order" shall be substituted for "The Recommended Order of a
Trial Examiner" in the notice. In the event that this Order is enforced by a decree of a
United States Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals , Enforcing an Order."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding 1
Upon petitions for certification of bargaining representatives filed by Local 73L,
Lithographers and Photoengravers International Union, AFL-CIO (Case 25-RC-
'Official notice is taken of the representation proceeding , Cases 25-RC-2878 and 2879
159 NLRB No. 53.
KRIEGER-RAGSDALE & COMPANY, INC 491
2878), and International Brotherhood of Bookbinders, AFL-CIO (Case 25-RC-
2879), concerning employees of Krieger-Ragsdale and Company, Inc., Evansville,
Indiana (the Respondent herein), a consolidated hearing was held at Evansville on
June 25, 1965 before a Hearing Officer of the Board, pursuant to Section 9(c) of
the National Labor Relations Act.
The Respondent is engaged in the job printing industry. At the hearing upon the
union petitions the Lithographers Union sought an appropriate unit consisting of
lithographic production employees; the Bookbinders requested a unit of bindery
employees and janitors. The Respondent contended that in view of the nature of
its operations, including the low level of skills required of its employees, the inte-
gration of its operations, and the regular interchange of employees, the only appro-
priate collective-bargaining unit at its plant was one composed of all production and
maintenance *employees. Following the hearing opportunity was afforded for the
filing of briefs.
On July 26, 1965, the Regional Director of the Board, in accordance with
authority delegated by the Board pursuant to Section 3(b) of the National Labor
Relations Act, issued his written decision in which, after examining the various con-
tentions of the parties, the evidence adduced at the hearing and the applicable prece-
dents, he found two separate appropriate units: one composed of employees engaged
in traditional lithographic products work, with some miscellaneous exclusions, the
other composed of employees in the bindery and shipping and receiving department,
but excluding the janitors. At the same time the Regional Director directed that
elections by secret ballot be held in each unit. The Regional Director specifically
found the Respondent's position as to the appropriate unit to be without merit.
In due course the Respondent filed with the Board in Washington, D.C., a request
for review and motion to stay the Regional Director's Decision and Direction of
Elections, and an accompanying brief. To these the Lithographers filed an
opposition.
In its request for review the Respondent reiterated its contention that the only
appropriate unit was plantwide. In addition, the Respondent urged that the Regional
Director had made erroneous material factual findings. Apart from the asser-
tions of factual error by the Regional Director, the Respondent's arguments to the
Board in support of its request for review may be summarized as follows:
Since possibly 1946 firms typical of the Respondent in this industry have
evolved from the traditional commercial job printing type of operation to a
type more properly described as a "paper converter"-one primarily producing
a simple volume product. Thus only 15% of the Respondent's work involves
traditional commercial type printing. This evolution has lowered the level of
skills required, eliminating the need for craft or departmental skills, produced
a high degree of functional and managerial integration and regular interchange
of employees, and a single line of supervisory authority. The sum of these
changes and others flowing therefrom, has been to produce a single functional
unit more akin to the average industrial establishment, with its typical appro-
priate production and maintenance bargaining unit. The correctness of its
position, the Respondent further said, has been recognized by the Board in a
number of decisions beginning as early as 1946.2
In sum, in its request for review and supporting brief the Respondent fully stated
its position as to the appropriate unit and the bases of its disagreement with the
Regional Director, and discussed the evidence and the applicable precedents.
On August 27, 1965, the Board, by order, denied the Respondent's request for
review of the Regional Director's Decision and Direction of Election, stating that
the request "raises no substantial issues warranting review."
On September 2, 1965, pursuant to the Regional Director's direction, elections by
secret ballot were held among the employees in the appropriate units. In the
Lithographer unit, in which only the Lithographers were on the ballot, nine votes
were cast, five for the Lithographers, four against. In the Bookbinders unit, in
2 Citing Pacific Press, Inc., 66 NLRB 458 and later cases, most of which were noted in
the Regional Director's Decision and Direction of Election. In the Pacific Press case the
Board found such unusual circumstances, particularly by reason of interchange of em-
ployees, as to make the employer's operations there "unique in the industry." The
Regional Director in the instant case found the Pacific Press case inapplicable on the
facts-a finding which the Respondent attacked in its request for review as contrary to
the record evidence
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which only the Bookbinders were on the ballot, 13 votes were cast, 9 for the Book-
binders, 4 against. No objections were filed to the tally of ballots, which was fur-
nished to the parties on the day of the election. However, on September 13, 1965,
the Respondent filed identical objections to both elections. The grounds stated for
the objections were twofold. (1) That the unions had unlawfully interfered with
the rights of employees during the election campaign by offering as an inducement
to be selected as the bargaining agent to waive all initiation fees if the unions were
successful and as a means of guaranteeing success in the elections; and (2) that
the bargaining units were inappropriate. However, on September 16, 1965, the
Respondent withdrew the objections "in favor of pursuing alternative remedies under
the Act." 3 Thereafter, on September 20, 1965, the Regional Director certified the
Lithographers and the Bookbinders as the representatives of the employees in their
respective bargaining units pursuant to Section 9(a) of the Act.
The Complaint Proceeding
On October 22, 1965, the Bookbinders, and on November 3, 1965, the Lithog-
raphers, filed separate unfair labor practice charges alleging that following the elec-
tions the Respondent had refused upon demand to meet and bargain with the
unions as the collective-bargaining representatives of the appropriate units.
On November 19, 1965, the General Counsel, by the Regional Director, issued
separate complaints, subsequently amended, upon the unfair labor practice charges,
which complaints alleged violations of Section 8 (a) (1) and (5) of the Act by the
Respondent by the asserted refusals to bargain. At the same time the Regional
Director consolidated the cases. In addition to the jurisdictional and conclusory
allegations, the complaints as amended set out the bargaining units previously
found appropriate by the Regional Director, the fact of the elections and the certi-
fications, the unions' requests for bargaining, and further, that in an exchange of
correspondence (copies of which were attached to the complaint) between the
unions and the Respondent from September 29 to October 13, 1965, the Respondent
refused to bargain.
The Respondent duly filed answers to the complaints and to the amendments.
In these answers the Respondent admitted the jurisdictional allegations of the com-
plaints, and the allegations that the unions were labor organizations. The answers
further admitted that the unions requested the Respondent to bargain and that the
Respondent replied to these requests by the correspondence referred to in the com-
plaints, in which the Respondent declined to bargain with both unions because of
the inappropriateness of the units and because of the Respondent's desire to test
the issue before the courts.
The answers further denied the appropriateness of the units alleged in the com-
plaints and denied the conclusory allegations to the effect that the unions had been
"designated and selected" as the representatives of the employees and that the
Respondent had refused to bargain collectively with them as such representatives.
In addition the answers inexplicably denied an allegation in each complaint to the
effect that the Regional Director had certified the unions as collective bargaining
representatives in each unit.
On December 2, 1965, the General Counsel filed a motion to strike portion of
the Respondent's answer and motion for summary judgment. In this motion the
General Counsel stated that in view of the prior determination of the appropriate
units, the official result of the elections, and the Regional Director's certifications of
representatives, all factual and legal issues raised by the complaints and the answers
had been determined either by admission in the answers or by prior Board deter-
minations which were res judicata. Specifically the General Counsel requested that
the Respondent's answers to paragraph 5(a), (b), and (c), of the complaints (in
which the Respondent denied the appropriateness of the units, that the employees
had "designated and selected" the unions in the elections, the fact of the certifica-
tions, and the unions' status as exclusive bargaining representatives) be stricken
and summary judgment entered against the Respondent.
On this motion Trial Examiner Thomas Kessel, issued an order to show cause,
returnable January 17, 1966, as to why the General Counsel's motion should not
be granted. In this order Trial Examiner Kessel took official notice of the elections
In fact the objections appear to have been untimely, since objections to an election
must be filed within 5 days after furnishing of the tally of ballots Board's Rules and
Regulations, Series S. as amended, Section 102 69 (a)
KRIEGER-RAGSDALE & COMPANY, INC 493
and of the certification of the unions by the Regional Director. He directed the
Respondent to state in its response whether it denied that the elections were held
and that the unions received a majority of the ballots cast in each election and were
certified, and if the Respondent made such denial in substance to show cause why.
In addition Trial Examiner Kessel directed the Respondent to summarize what
newly discovered or previously unavailable evidence it would present in an unfair
labor practice proceeding to attack the validity of the certification. The order fur-
ther stated that,
The purpose of this order is to enable me to determine whether there exist
triable issues of fact necessitating a hearing for the taking of evidence.
On January 17, 1966, the Respondent filed its response to the order to show
cause and motion to dismiss or to allow discovery. In this response, for reasons
more fully explicated below, Respondent asserted that summary judgment would
prejudice Respondent's statutory and constitutional rights and in the alternative
requested that hearing or ruling on the motion for summary judgment be postponed
for 6 months in order to enable the Respondent to "complete a program of discov-
ery as provided for under the Federal Rules of Civil Procedure." In addition, the
Respondent stated, by affidavit of Melbourne Holder, its manufacturing manager,
dated January 4, 1966, that at a complaint hearing it would (1) offer further evi-
dence on the appropriateness of the unit, and (2) offer evidence to establish conduct
(presumably by the unions or their representatives) which interfered with the elec-
tion. These matters are further discussed below.
The Respondent did not comply with Trial Examiner Kessel's direction that the
Respondent state in the response whether it denied that the elections were held, and
whether it denied that the unions received a majority of the ballots cast in the
elections and were certified. Trial Examiner Charles W. Schneider takes official
notice of the result of the elections and of the certification by the Regional Director.
Subsequently I was designated to rule upon the issues.
Ruling on the Motion for Summary Judgment
1. The Trial Examiners authority to review determinations by the Board
in representation proceedings
Except for the new matter set forth in its response to the order to show cause,
the Respondent seeks here to relitigate the correctness of th Board's determination
as to the appropriate unit.
The Respondent's basic position, as stated in its response to the Order to Show
Cause and the attached affidavit of Manufacturing Manager Holder, appears to be
that it is entitled as of right to a full hearing in the unfair labor practice proceed-
ing, with unlimited opportunity to relitigate the issues decided in the representa-
tion case, and to introduce any relevant evidence bearing thereon; and further,
that a Trial Examiner is required to or may review the validity of the determina-
tions made by the Board in the representation case .4
However, a Trial Examiner has no general authority in an unfair labor practice
case to review the Board's decision as to an appropriate unit made in a related
representation proceeding. Morganton Full Fashioned Hosiery Company, 115
NLRB 1267, 1271-72.
2. The relitigation of representation issues in unfair labor practice cases
In the absence of newly discovered or previously unavailable evidence, issues
which were or could have been raised in a related representation case may not be
relitigated in unfair labor practice proceeding based upon the Board's certification
& Thus the response states that the Respondent has "the legal right to introduce any
evidence it sees fit at the complaint case hearing, as long as this evidence is relevant to
the issues," and "under these general denials [in the Respondent's answers ] it is the
Respondent's position that it can introduce any and all evidence relevant to the validity
of the unions ' status as collective -bargaining agents for its employees."
Relative to one of the items of additional evidence it would adduce at a complaint
hearing the Respondent states its purpose to be, "to give to the Trial Examiner in this
case an opportunity to properly evaluate the testimony given at the hearing in these
complaint cases as well as the testimony given during the representation case hearing."
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the representation case. Normally the Board's representation disposition is the
law of the later related unfair labor practice case, subject to review by the Board
and the courts.
Thus in Pittsburgh Plate Glass Company, 313 U.S. 146, 162, an unfair labor
practice case of refusal to bargain based upon a Board certification made after a
representation hearing, where the Board refused to accept at the unfair labor prac-
tice hearing certain evidence as to the appropriate unit, evidence on that subject
having been introduced in the representation hearing, the Supreme Court said:
If the Company or the Crystal City Union desired to relitigate this issue, it was
up to them to indicate in some way that the evidence they wished to offer
was more than cumulative. Nothing more appearing, a single trial of the
issue was enough.
The Board has said:
. unless there is evidence which was newly discovered or unavailable to the
Respondent at the time of the representation hearing, it cannot be permitted
to relitigate in the instant [refusal to bargain] proceeding the question of
majority or the appropriate unit .5
A Trial Examiner thus may not review the correctness of the Board's determina-
tion made on the record before it.
Where, however, there is new and material evidence based on occurrences since
the certification, the Respondent is entitled to an opportunity to introduce such
evidence. See for example KVP Sutherland Paper Co., 61 LRRM 2402 (C.A. 6).
Whether there is such evidence here is discussed infra.e
With respect to the Respondent's contention that it is entitled to introduce "any
evidence it sees fit" at the complaint hearing as long as such evidence is relevant to
the issues, the contention is thus contrary to the above authorities. The Respondent
cites a number of cases; none, however, are supportive of its position. Only two
need be discussed: United Insurance Company of America, 272 F.2d 446 (C.A. 7),
and Plaskolite, Inc., 134 NLRB 754, enfd. 309 F.2d 788 (C.A. 6). In the United
Insurance case the court held that a Board determination as to an appropriate unit
made in a 1954 representation proceeding, and which was not subject to review at
that time because no certification was issued, could not constitute evidence in a 1958
complaint case following a 1956 election in a different proceeding and held without
a representation hearing. That situation differs from the instant one. Here the
appropriate unit finding of the Board was made in the representation proceeding
solely on the basis of the evidence adduced in that proceeding.
In the Plaskolite case the Regional Director in a representation proceeding rec-
ommended that an objection to an election be overruled because of a failure of the
union involved to submit evidence in support of the objection. The union filed no
exception to that recommendation. In a subsequent unfair labor practice case the
Board held that the failure of the union to file the exception did not constitute
res judicata, so as to prevent consideration by the Board as to whether the conduct
alleged in the objection constituted an unfair labor practice by the employer in the
case.
The Plaskolite case is not authority for the proposition that determinations in
representation cases are not normally final dispositions. Clearly a decision by the
Board in a representation case as to the effect-or even as to the occurrence-of
certain conduct is not a determination as to whether the conduct is an unfair labor
5 Clark Shoe Company, 88 NLRB 989, footnote 1, set aside other grounds 189 F 2d 731
(CA. 1). See also United States Rubber Company, 155 NLRB 1298; Producer'8 Inc.,
133 NLRB 701, 704; National Van Lines, 123 NLRB 1272, 1273-74
The Board's rules provide similarly (Section 102.67(f)) • Failure to request review
[by the Board of a decision by a regional director in a representation case] shall
preclude . . . parties from relitigating , in any related subsequent unfair labor prac-
tice proceeding, any issue which was, or could have been, raised in the representation
proceeding. Denial of a request for review shall constitute an affirmance of the
regional director's action which shall also preclude relitigating any such issues in
any related subsequent unfair labor practice proceeding
In the KVP Sutherland case summary judgment was entered against the employer.
The court's decision indicates that the employer offered evidence showing material change
in its technology and operational practices occurring since the original unit finding. The
court remanded the matter to the Board for a hearing limited to such evidence
KRIEGER-RAGSDALE & COMPANY, INC 49-5-
practice. New Orleans Laundries, Inc., 114 NLRB 1077, 1078, 1086-87. Indeed,
Board law prohibits the litigation of unfair labor practices in representation cases.
New York Shipping Association, 107 NLRB 364; Nathan Warren & Sons, Inc.,
119 NLRB 292. Cf. Foothill Electric Corporation, 120 NLRB 1350, 1353:
Evidence relevant to a representation issue (whether a union-security clause is
invalid and therefore the contract containing it no bar to an election) is to be
admitted in a representation hearing even though such conduct might in an unfair
labor practice proceeding be held to constitute an unfair labor practice.
3. Applicability of discovery; source of the Trial Examiner's authority
to grant summary judgment
With respect to its contention that it is entitled to discovery, the Respondent's
reasoning appears to be that by invoking summary judgment procedure the General
Counsel has brought the proceedings within the purview of the Federal Rules of
Civil Procedure, thus making the discovery machinery of those rules applicable as
a matter of constitutional right.
The Respondent misapprehends the source of the authority of the Trial Exam-
iner to grant summary judgment. That power is grounded in the rules and deci-
sions of the Board, and not in the Federal Rules of Civil Procedure. Thus, if no
answer is filed to a complaint, or the answer is not in compliance with require-
ments of the Board's rules, those rules provide that the allegations of the com-
plaint shall be admitted to be true. Board's Rules and Regulations, Series 8,
Section 102.20. In addition an answer which is sham or false may under the
rules be stricken and the action may proceed as if the answer had not been served,
as required. Rules and Regulations, Section 102.22. In such circumstances a
Trial Examiner is authorized to accept the complaint allegations to be true
(Harvey Aluminum (Inc.), 335 F.2d 749 (C.A.9)) and to enter summary judg-
ment against the Respondent (Liquid Carbonic Corporation, 116 NLRB 795,
797-798). That the Federal Rules of Civil Procedure contain a comparable pro-
vision does not make other portions of the Federal Rules applicable when motion
is made for summary judgment pursuant to the authority of the Board's rules
and decisions.
In any event it has been specifically held that the discovery provisions of the
Federal Rules of the Civil Procedure are not applicable to complaint proceedings
before the Board. Globe Wireless, Ltd., 193 F.2d 748, 751. And see The Raser
Tanning Company, 276 F.2d 80 (C.A. 6), cert. denied 363 U.S. 830; Texas Indus-
tries, Inc., 336 F.2d 128 (C.A. 5). Cf. Frito Company, 330 F.2d 458, 465 (C.A.
9); Southern Materials Co., 345 F.2d 240, 244 (C.A. 4).7
The Respondent also contends that the net effect of the motion for summary
judgment is to "compel this Respondent to subject itself to discovery procedures
in the form of exposing affidavits, etc. to a Trial Examiner and contrary to the
Jencks rule 8 compelling disclosure. only after testimony." The basis for this con-
tention of the Respondent is not disclosed. Nothing in Trial Examiner Kessel's
Order to Show Cause requires the Respondent to submit affidavits. The conten-
tion is therefore found not established.
4. Whether two representation hearings are contemplated in the statute
Insofar as the present type of proceeding is concerned, the hearing before the
Board or its agent provided for in Section 10(b) of the Act is for the purpose of
taking evidence upon which it can be determined whether the Respondent refused
to bargain. The factual issues to be litigated at such an evidential hearing are
4 The Respondent erroneously asserts that Section 10(b) of the National Labor Rela-
tions Act requires that Board proceedings be conducted in accordance with the Federal
Rules of Civil Procedure. The provision in Section 10(b) is that such proceedings shall,
"so far as practicable , be conducted in accordance with the rules of evidence applicable
in the district courts of the United States under the [Federal] rules of civil proce-
dure . . [Emphasis supplied ] See Raser Tanning Co , supra: Administrative hear-
ings of the Labor Board are governed by the Administrative Procedure Act rather than
the Federal Rules of Civil Procedure." Cf Frito Co., supra.
8 Presumably a reference to provisions in Section 102.118 of the Board 's Rules and
Regulations requiring the production, upon request, of statements of witnesses called by
the General Counsel , after such witnesses have testified . See Jencks v. United States, 353
US 657and18USCA 3500.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
normally whether the union requested the Respondent to bargain and whether the
Respondent refused to do so. The complaint here alleges that the unions made
such requests and that the Respondent refused to grant them. These allegations
are not denied in the Respondent's answers, and are therefore deemed to be admitted.
All issues as to the appropriate units and the unions' status as (representatives in
those units were fully litigated, decided and certified by the Board after full pres-
entations in the representation case. Unless there is new material evidence the
record as to the representation matters is complete, and there are no factual issues
to be developed at a hearing upon the unfair labor practice complaints. The
Respondent withdrew the objections it had filed to the election, and the unions'
selection by the employees cannot now be seriously contested. The Respond-
ent retains the right to test the correctness of the Board's decision as to the appro-
priate unit before the Board and the courts on the basis of the existing record.
This is the system contemplated by Congress whereby representation proceedings
are exempted from anterior court review, but are fully reviewable upon the issuance
of a Board order based thereon. (Section 9(d), National Labor Relations Act.)
The intent of this provision was not to provide opportunity to retry .the representa-
tion proceeding in the companion unfair labor practice case if the employer refused
to heed the certification.9
5. Evidential hearings are not required where there are no factual
issues to decide
A hearing for the presentation of evidence is not required where there are no
factual issues to decide. As was said by the Second Circuit Court of Appeals in
Charles Fay v. Douds (Packer-Kalov Corp.), 172 F.2d 720, 725.
Neither the statute [N.L.R.A.], nor the Constitution, gives a hearing where
there is no issue to decide . The Constitution protects procedural regu-
larity, not as an end in itself, but as a means of defending substantive inter-
ests. Every summary judgment denies a trial upon issues formally valid.
The Tenth Circuit of Appeals has said: 1e
... it is fundamental to the law that the submission of evidence is not
required to characterize `a full hearing' where such evidence is immaterial to
the issue to be decided . . Where no genuine or material issues of fact is
presented the court or administrative body may pass upon the issues of law
after according the parties the right of argument.
6. Whether there is new material evidence
We are brought then to the question as to whether there is material evidence
newly discovered or previously unavailable to be adduced at a hearing. If there
is, the Respondent is entitled to an opportunity to produce it, to have it made a
part of the record, and to have it considered. KVP Sutherland Paper Co., 356
F.2d 671 (C.A. 6).
In its response to Trial Examiner Kessel's Order to Show Cause the Respondent,
in an affidavit by its manufacturing manager, Melbourne Holder, summarizes the
evidence which it would adduce if a hearing were held. This is as follows:
(a) The Respondent would produce an expert witness, William Brown, of Kan-
sas City, Kansas, presently a general consultant to the printing industry and secre-
tary of Rotary Forms Council, a group concerned with problems in the printing
industry, particularly related to business forms. Brown would testify concerning
economic and technological changes in the printing industry since World War II,
and changes in skill and training requirements. This testimony would tend to show
the low level of skill, similar to factory employment, required in the Respondent's
type of production, the routines of operation, close supervision, and the dissimilar-
ity of paper conversion work to the average printing establishment. The testi-
mony would be used to give the Trial Examiner an opportunity to properly evalu-
6 See Leg. Hlst. of the NLRA, 64th Cong. U.S. GPO, page 2314 (S. Rept. 573 on
S. 1958 page 14) ; page 2494 (Statement by Senator Wagner on H.R. 6288, House hear-
ings March 13, 1935 page 20; page 2930-31 (H. Rept. 969 on H R 7978 page 20)
page 2977 (H. Rept. 972 on 'S. 1958 page 20) ; page 3073 (H. Rept. 1147 on S. 1958
page 23).
i°Produoers Livestock Marketing Assn. v. U.S., 241 F.2d 192 , 196 (C.A. 10), affd.
356 U. S. 282.
KRIEGER-RAGSDALE & COMPANY, INC 497
ate the testimony given in the complaint and in the representation case and "will
make the problems and issues involved in this case more clear." In addition,
Manufacturing Manager Holder would testify that:
... the Board has overlooked, perhaps because it lacks an understanding of
our industry, the changes that have been going on in this industry which
have resulted in similarity between our type of work and the general factory
work done in production and maintenance units.
The subject matter of the proposed testimony of Brown and Holder, and its
purposes, were developed and explored in the representation hearing. The
Respondent's contentions respecting it, outlined in the above statement, were
noted by the Regional Director in his Decision and Direction of Elections, and
were reiterated by-the Respondent in its request for review of the Regional Direc-
tor's Decision and in the Respondent's accompanying brief. At least the pro-
posed testimony is cumulative. No suggestion is made that it is new or previ-
ously unavailable. No reason is proffered for not having adduced the testimony
in the representation hearing. Under such circumstances this proposed evidence
must be rejected.
(b) Testimony will also be offered by the Respondent concerning the physical
dimensions of the plant and the total integration of operations, and the absence
of departmental structure ordinarily associated with the printing industry.
The representation record contains such evidence; it was commented on by
the Respondent in its request for review and supporting brief, and by the Lithog-
raphers in the latter's brief to the Regional Director following the representation
hearing. No substantial reason is offered for not having produced the evidence
previously. The proffered evidence differs in one respect from that stated by the
Respondent in its brief to the Board. In that brief the Respondent stated that its
production facilities are in three rooms. In its offer of proof here, however, the
Respondent states that: "In fact, all three of these departments are in a single
room . . . ." The reason for this discrepancy is not explained. There is no asser-
tion that a change has been made since the representation hearing. Obviously
then, the evidence is not newly discovered. In any event, assuming that the evi-
dence is new and that the operations are now in a single room, rather than three
as heretofore, this does seem so material a revision in operations as to require
reversal of the decision as to the appropriate unit.
(c) Also offered is testimonial and other evidence to the effect that since the
representation hearing increasing integration and simplicity of operations has
continued, and that other untrained employees have been hired. Such testimony
is no different in kind from that previously adduced and argued, and would also
be merely cumulative.
(d) Also offered is evidence of asserted union conduct tending to interfere
with the election. This evidence is now offered for the first time, the Respondent
says, "because at-that time [of the representation hearing] we did not know it
was being used." This evidence" would be established by the hearsay testimony
of foremen, on -the basis of information given them by employees who, the offer
asserts, are themselves "afraid to testify." Thus, the affidavit of Holder states
that: • -
(1) Bindery Foreman Francis Joachif has informed him that bindery workers
were told that if they, joined -the•-union before the election they would have to
pay no initiation fee; and were later told that if they joined the union they could
join for $7.50 but that if they waited for a contract to be signed then the fee
would be $50.
(2) Production Manager Waldo Hilgeman has informed the Respondent that
lithography employees were promised a pay scale cut in hours and insurance, as
well as a retirement plan, and that there would be no initiation fee at all but that
the employees would have to pay a small fee for insurance.
These statements were apparently false, Holder's affidavit states, since at the
hearing the Respondent will introduce proof (that nature of which is not disclosed)
that both unions are in severe financial straits concerning the solvency of their
pension and retirement programs. Since several of the Respondent's employees
are at the stage in life where such programs assume importance, failure of the
unions to disclose the financial position of these funds could be reasonably cal-
culated to deceive employees. In addition the statements concerning initiation
fees constituted unfair inducement of employees.
248-084-67-vol. 159-33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's offer does not state who on behalf of the unions are alleged
to have committed these acts.
It has been seen , supra, that the Respondent filed objections to the election,
apparently untimely, which it thereafter withdrew. In those objections the Respond-
ent asserted that the unions unlawfully interfered in the elections by offering
employees, as an inducement to selection of the unions, and as a means of guaran-
teeing their success in the elections, to waive all initiation fees.
Where timely objections to an election are filed and the objecting party there-
after seeks to expand the objections by additional matter, the Board's standard
as to whether the untimely expansion will be permitted is whether the new matter
was previously undiscovered after ,the exercise of due diligence. Poinsett Lumber
and Manufacturing Company, 116 NLRB 1732, 1734-35; Rockwell Manufacturing
Company, 142 NLRB 741, 750. However, where no objections are filed within
the required 5-day period the Regional Director issues his certification and the
case is closed. (Rules and Regulations 102.69(b) ). Obviously, similar action is to
be taken by the Regional Director where timely objections are filed and later
withdrawn-it is as if no objections were filled. In such case, the standard for
determining whether objections thereafter filed will be considered, and the case
reopened, is whether there are "unusual circumstances." Eklund Brothers Trans-
port, Inc., 136 NLRB 471. The exact scope of this phrase has not been defined by
the Board, but it seems clear from the fact that in Eklund the Board did not adopt
the Trial Examiner's "newly discovered" and "due diligence" test, that " unusual
circumstances" is a stricter standard-perhaps contemplating fraud or abuse of
Board processes. In any event in the instant case the objections are not to be
considered, whichever standard is used.
The matters alleged as affecting the election are such that if the Respondent had
no knowledge of them prior to the expiration of the time for filing objections, due
diligence should have uncovered them The Respondent has not stated when it
came into possession of the information. The affidavit of Holder stated merely
that "None of this matter was brought up at the representation hearing because at
that time we did not know it was being used." [Emphasis supplied.] The repre-
sentation hearing was held on June 25, 1965; the election was held on September 2,
1965. The Respondent has not asserted (as it must if its objections are now to
be considered) that it was not aware of this evidence prior to the expiration of
the time for filing objections. We have seen that the Respondent was aware of
the initiation fee matter shortly after the elections, since it filed an objection con-
cerning it which it later withdrew. In any event the evidence now offered respect-
ing all the objections is such that if Respondent actually had.no knowledge of them
prior to the expiration of the time for filing objections to the election, due diligence
should have uncovered them.
Nor has the Respondent provided other foundational data necessary to evaluate
the probable competency, materiality or substantiality of this evidence. Thus, it is
not stated who engaged in the conduct on behalf of the unions. While it may be
(though it is not asserted) that the Respondent might be,hesitant to disclose at
this time the names of employees who are the primary source of its information,
there is no apparent reason for it not to give the names of the persons -supposedly
acting for the unions. Other foundation allegation is also lacking: the time and
the place of the events. All these are facts normally securable by a respondent in
a complaint proceeding before the Board. It is not unreasonable to require that
they be provided where a party seeks to reopen a decided issue on the basis of
newly discovered evidence.
Nor do the facts alleged constitute substantial evidence of union conduct inter-
fering with an election. For, whatever the truth of the asserted incidents, offers
by a union during an organizational or an election campaign to waive or reduce
initiation fees do not void designations or an election, if employees are provided
a reasonable period of time after the election in which to join the union . S. en C.
Gorbea, Perez & Morell, 328 F.2d 679, 682 (C.A. 1). And see Dahlstrom Metallic
Door Co, 112 F.2d 756 (C.A. 2); I. Taitel and Son, 261 F.2d 1 (C.A. 7), cert.
denied 359 U.S. 944. An unconditional offer to waive or reduce initiation fees
during a campaign does not constitute an unlawful inducement. The Gruen Watch
Company, 108 NLRB 610; Ottis Elevator Company, 115 NLRB 1490. It is not
asserted by the Respondent in its offer of proof in the response to Trial Examiner
Kessel's Order to Show Cause (though it was so alleged in the original objections
which the Respondent withdrew) that the waiver reduction or increase of initiation
fees was "contingent on how the employees voted in the election or on the results
KRIEGER-RAGSDALE & COMPANY, INC 499
of the election ." ( The Gruen Watch Co., supra, 612). "Absent a showing that
the employees would be rewarded or penalized because they voted for or against
[the union ] such statements do not warrant setting aside the election ." ( Otis Eleva-
tor Co., supra 1493 ). The alleged statements detailed by the Respondent in its
response to the Order to Show Cause as to the waiver or amount of initiation fees
and the cost of union insurance thus do not constitute conduct interfering with the
election or unfair inducement of employees.
As to the allegation that the lithography employees were "promised" a pay scale
cut in hours , there is nothing in the offer of proof to suggest that this was anything
more than campaign propaganda as to what the union would hopefully be able to
secure from the employer . With respect to the asserted "apparently" false state-
ments concerning the union retirement plans, the Respondent 's response to the
Order to Show Cause does not comply with Trial Examiner Kessel 's direction for
a summary of the evidence which the Respondent would present at a hearing.
Conclusory assertions that the alleged statements to employees were "apparently
false" and that the Respondent "will introduce proof" to the effect that the retire-
ment plans of the unions are in "severe financial straits" are neither probative nor
informative as to the evidence upon which the Respondent would rely.
Finally it is to be noted that the offer of most of this evidence is hearsay several
times removed . It has been noted that the Respondent might be reluctant to
disclose the names of the employee informants-though it does not claim so. How-
ever, the Respondent significantly does not assert that it will attempt to produce
the employees at a hearing . While hearsay is admissible in Board-as in court-
proceedings , in some instances , such as where primary testimony is unavailable, no
such factors are said to be present here , unless it be in the representation that
employees are "afraid to testify ." Whether the secondary evidence is correct (that
is, whether the employees made the statements which the supervisors say they did)
presumably even the Respondent does not know, since there is no -assertion that
counsel or others have investigated it or contacted the employees themselves
The Respondent 's present objections are therefore untimely , and no sufficient
basis is established to justify the late filing. The evidence is of a character which
due diligence should have uncovered prior to the expiration of the time for filing
objections, and, as we have seen, the Respondent does not assert that it did not
have the information at that time . In addition, the evidence , even if accepted,
does not on its face establish conduct tending to interfere with the election does
not comply with Trial Examiner Kessel's Order to Show Cause , and is not
sufficiently specific as to warrant further investigation and reopening of the election
proceedings.
7. Final conclusions as to summary judgment
There being no material factual issues to be decided , no hearing is necessary and
the matter is therefore to be resolved on the basis of the existing record.
The General Counsel has moved to strike the Respondent 's denials in its
answers to the allegations in subparagraphs 5(a), (b), and ( c) of the respective
complaints, and has moved for summary judgment. The motion for summary
judgment is granted.
Subparagraph 5(a) of each complaint alleges that the unit found by the Regional
Director is appropriate , 5(b) alleges, in sum, that a majority of the employees in
the unit by secret-ballot election on September 2, 1965, "designated and selected"
the union as their bargaining representative, and that the Regional Director certi-
fied the union on or about September 20, 1965, as such representative; 5(c)
alleges, in sum, that the union , is the representative of' the employees in the
appropriate unit by virtue of Section 9(a) of the Act.
Subparagraphs 5(a) and ( c) and the Respondent's denials of them raise the
legal issue which is the basis of the Respondent 's defense-namely, whether the
units are appropriate and whether the unions can therefore be the respective legal
representatives therein . The same may be said of the allegation in 5(b ) as to the
election results, since what is alleged is that the employees thereby "designated and
selected" the union . The quoted phrase seems a term of art denoting a legal
conclusion rather than a factual allegation .ii On the other hand , the allegation
in 5(b ) to the effect that the Regional Director certified the union on or about
September 20, 1965, as the representative of the employees is an allegation of fact.
11Thus Section 9(a) of the Act states that representatives "designated or selected" by
employees are the collective -bargaining representatives of employees in an appropriate unit.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under these circumstances the motion of the General Counsei to strike the
answers relating to paragraphs 5(a) and (c) of the complaint and the portion of
5(b) relating to the election is denied. That the Respondent's denials may not be
ultimately legally supported does not preclude their effectiveness as responsive
and genuine pleadings. Were the Respondent to admit those allegations it
would have no issue to contest before the Board and the courts. However, that the
Regional Director certified the unions is officially noted as a fact, and the Respond-
ent's denials thereof are therefore stricken as not genuine. It is also officially noted
that the elections were held on the date indicated and that a majority of the
employees in the units cast their ballots for the respective unions.
I hereby make the following additional:
FINDINGS OF FACT
1. JURISDICTION
Krieger-Ragsdale and Company, Inc., the Respondent herein, is and has been at
all times material herein , a corporation duly organized under , and existing by virtue
of, the laws of the State of Indiana.
At all times material herein , Respondent has maintained its principal office and
place of business at 109 SE. Second Street, Evansville, Indiana, and is, and has
been at all times material herein, engaged at said location in commercial job print-
ing and paper conversion.
During the past year , Respondent , in the course and conduct of its business
operations, purchased and caused to be transferred and delivered to Evansville,
Indiana, location, goods and materials valued in excess of $50 ,000 which were
transported to said location directly from States other than the State of Indiana.
Respondent is now , and has been at all times material herein , an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Brotherhood of Bookbinders , AFL-CIO and Local 73L, Lithog-
raphers and Photoengravers International Union, AFL-CIO, are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The Bookbinders unit
All of the employees in the Employer 's bindery and shipping and receiving depart-
ment at its Evansville, Indiana , plant ; excluding office clerical and professional
employees , guards and supervisors as defined in the Act and all other employees,
constitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9 (b) of the Act.
On September 2, 1965, a majority of the employees of Respondent , in the appro-
priate unit described above, by a secret ballot election conducted under the super-
vision of the Regional Director for Region 25 of the Board , designated and
selected the Bookbinders Union as their representative for the purposes of collective
bargaining with Respondent , and on or about September 20, 1965, said Regional
Director certified the Bookbinders Union as the exclusive collective -bargaining rep-
resentative of the employees in said unit.
At all times since September 21, 1965 , and continuing to date, the Bookbinders
Union has been the representative for the purposes of collective bargaining of the
employees in the unit described above and , by virtue of Section 9 (a) of the Act,
has been, and is now, the exclusive representative of all the employees in said unit
for the purposes of collective bargaining with respect to rates of pay, wages, hours
of employment , and other terms and conditions of employment.
On September 29, 1965 , the Bookbinders Union requested the Respondent to
bargain collectively with the Bookbinders Union as the exclusive collective-
bargaining representative of all the employees of Respondent in the above-described
appropriate unit.
On September 29, 1965, and October 13, 1965 , Respondent refused to bargain
collectively with the Bookbinders as the representative of the employees in the
appropriate unit above described , and continues to so refuse.
KRIEGER-RAGSDALE & COMPANY, INC 501
B. Lithographers unit
All lithographic production employees at the Employer's Evansville, Indiana,
plant, including offset press operators, platemakers, strippers, '2 cameramen, pasteup,
layout, and art employees; but excluding compositors, letter pressmen, proofreaders,
office clerical, and professional employees, guards, and supervisors as defined in
the Act and all other employees, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of the Act.
On September 2, 1965, a majority of the employees of Respondent in the appro-
priate unit described above, by secret-ballot election conducted under the supervi-
sion of the Regional Director for Region 25 of the Board, designated and selected
the Lithographers Union as their representative for the purposes of collective bar-
gaining with Respondent, and on September 20, 1965, said Regional Director certi-
fied the Lithographers Union as the exclusive collective-bargaining representative
of the employees in said unit.
At all times since September 2, 1965, and continuing to date, the Lithographers.
Union has been the representative for the purposes of collective bargaining of the
employees in the above-described appropriate unit, and, by virtue of Section 9(a)
of the Act, has been, and is now, the exclusive representative of all the employees
in said unit for the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment.
On September 29, 1965, the Respondent, by its attorney, stated that it would not
negotiate with the Lithographers Union until it was finally judicially determined
that the bargaining unit was appropriate.
On October 6, 1965, the Lithographers Union requested the Respondent to bar-
gain collectively with the Lithographers Union as the exclusive bargaining repre-
sentative of all the employees of Respondent in the above-described appropriate
unit.
On October 13, 1965, the Respondent refused to bargain collectively with the
Lithographers Union as the representative of the employees in the appropriate
unit above described, and continues to so refuse.
By its refusals to bargain collectively with the Bookbinders and the Lithographers
as the representatives of the Respondent's employees in the respective appropriate
units, the Respondent has violated Section 8(a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in secton I above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it be ordered to cease and desist therefrom and that it bar-
gain collectively with the unions and take other affirmative action designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Krieger-Ragsdale and- Company, Inc., Evansville,, Indiana, is an employer
within the meaning of Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Bookbinders, AFL-CIO, and Local 73L, Lithog-
raphers and Photoengravers International Union, AFL-CIO, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. All of the employees in the employer's bindery and shipping and receiving
department at its Evansville, Indiana, plant; excluding office clerical and profes-
12 Incorrectly spelled "stippers" in the certification.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sional employees, guards and supervisors as defined in the Act and all other
employees, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. On and at all times since September 2, 1965, the Bookbinders Union has
been, and is now, the exclusive representative for the purposes of collective bar-
gaining of all employees in the appropriate unit described in 3 above, within the
meaning of Section 9(a) of the Act.
5. All lithographic production employees at the employer's Evansville, Indiana,
plant, including offset press operators, platemakers, strippers, cameramen, pasteup,
layout, and art employees; excluding compositors, letter pressmen, proofreaders,
office clerical, and professional employees, guards, and supervisors as defined in the
Act and all other employees, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the Act.
6. On and at all times since September 2, 1965, Local 73L, Lithographers and
Photoengravers International Union, AFL-CIO has been and is now, the exclu-
sive representative for the purposes of collective bargaining of all employees in the
appropriate' unit described in 5 above, within the meaning of Section 9(a) of the
Act:
7. The Respondent has engaged and is engaging in unfair labor practices within
the meaning of Section' 8(a)'(5) and (1) of the Act by the following conduct:
(a) By refusing on October 29 and 13, 1965, and at all times since, to bargain
collectively with the Bookbinders Union.
(b)' By refusing on October 13, 1965, and at all times since, to bargain collec-
tively with the Lithographers Union. -
8. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and' (7)' of the Act.
Upon the basis of the foregoing findings and conclusions and upon the record
before me, I recommend that the Board issue the following:
ORDER
Krieger-Ragsdale and Company; Inc., Evansville, Indiana, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease arid desist from:
(a) Refusing to bargain collectively with International Brotherhood of Book-
binders, AFL-CIO as the exclusive collective-bargaining representative of all
employees in the Bookbinders, appropriate unit.
(b) Refusing to bargain collectively with Local 73L, Lithographers and Photo-
engravers International Union, AFL-CIO as the exclusive bargaining representa-
tive of all employees in the Lithographers' appropriate unit.
(c). Interfering with the efforts of the Bookbinders or the Lithographers to nego-
tiate for or to represent the employees in their respective appropriate units as
exclusive bargaining agent.
2. Take the following affirmative action which I find necessary to effectuate the
policies of the Act:
(a) Upon request bargin collectively with-the Bookbinders and the Lithographers
as the exclusive representative of all the employees in their respective appropriate
units with regard to rates of pay, wages, hours of employment, and other condi-
tions of employment, and if an understanding is reached with either organization,
embody such 'understanding in a signed agreement.
(b) Post at its plant at Evansville, Indiana, copies of the attached notice marked
"Appendix." Copies of said Notice, to be furnished by Regional Director for
Region 25, after being duly signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
- (c) Notify the Regional Director for Region 25, in writing, within 20 days
from the date of receipt of this Decision, what steps the Respondent has taken to
comply herewith.13
13 In the event that the Recommended Order is adopted by the Board this provision
shall be modified to read: "Notify the Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
CENTRAL MARKETS 503
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with International Brotherhood
of Bookbinders , AFL-CIO, as the exclusive bargaining representative of our
employees in the following appropriate unit:
All the employees in the bindery and shipping and receiving depart-
ment at our Evansville , Indiana, plant ; excluding office clerical and pro-
fessional employees, guards and supervisors as defined in the National
Labor Relations Act and all other employees.
WE WILL NOT refuse to bargain collectively with Local 73L, Lithogra-
phers and Photoengravers International Union , AFL-CIO, as the exclusive
bargaining representative of our employees in the following appropriate unit:
All lithographic production employees at our Evansville , Indiana,
plant , including offset press operators , platemakers , strippers , camera-
men, pasteup , layout, and art employees ; excluding compositors , letter
pressmen , proofreaders , office clerical , and professional employees,
guards, and supervisors as defined in the National Labor Relations Act
and all other employees.
WE WILL, upon request , bargain , collectively with the aforesaid labor
organizations and, if an understanding is reached with either organization,
embody such understanding in a signed agreement.
KRIEGER -RAGSDALE AND COMPANY, INC.,
Employer.
Dated-- ----------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 614
ISTA Center , 150 West Market Street, Indianapolis , Indiana 46204 , Telephone
633-8921.
The Golub Corporation, Mechanicville Central , Inc. d/b/a Central
Markets and Amalgamated Meat Cutters , Butcher Workmen
and Store Clerks of North America, District Union Local No. 1,
AFL-CIO . Case 3-CA-2565. June 16, 1966
DECISION AND ORDER
On February 15, 1966, Trial Examiner Stanley Gilbert issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action," as set forth in the attached Trial Examiner's
1 The Trial Examiner inadvertently failed to pass on the question of the validity of the
union authorization card of employee Louis Paluso as raised by the Respondent in Its
brief to the Trial Examiner . The Respondent in its exceptions again questions the validity
of such card . On the basis of the record herein, we find the union authorization card of
Louis Paluso to be valid. We need not pass upon the validity of any of the other cards
held by the Union and not counted by the Trial Examiner.
159 NLRB No. 48.