Media Mailers, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1971

191 N.L.R.B. 251 (N.L.R.B. 1971)

MEDIA MAILERS, INC.
Media Mailers , Incorporated and Los Angeles Mail-
ers' Union No. 9, International Typographical
Union, AFL-CIO. Case 21-RC-12018
June 17, 1971
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was con-
ducted on December 23, 1970, under the direction and
supervision of the Regional Director for Region 21,
among the employees in the stipulated unit. At the
conclusion of the election, the parties were furnished a
tally of ballots which showed that of approximately 20
eligible voters, 7 cast ballots for, and 13 cast ballots
against, the Petitioner. There were no void or chal-
lenged ballots. Thereafter, on December 31, 1970, the
Petitioner filed timely objections to conduct affecting
the results of the election.
Pursuant to Section 102.69 of the National Labor
Relations Board Rules and Regulations, as amended,
the Regional Director conducted an investigation of
the issues raised by the objections and on February 9,
1971, issued and duly served upon the parties his Re-
port on Objections, finding that Objection 2 was with-
out merit and recommending that it be overruled. The
Regional Director further found, however, that Objec-
tion 1 had sufficient merit to warrant setting the elec-
tion aside.
Thereafter on February 19, 1971, the Employer filed
exceptions to the Regional Director's disposition of the
issues raised by Objection 1 and a brief in support
thereof.
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 powers
in connection with this case to a three-member panel.
Upon the entire record in this case, including the
exceptions and briefs, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of the employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for the
purpose of collective bargaining within the meaning of
Section 9(c) of the Act:
191 NLRB No. 50
251
All production and maintenance employees; ex-
cluding office clerical employees, guards, and
supervisors as defined in the Act.
5. The Board has considered the Regional Director's
report and the Employer's exceptions thereto, and
hereby adopts the Regional Director's findings and
recommendations.
The Regional Director's investigation revealed that
shortly after the petition was filed, the Employer's
president, Ubleman, called employees Kendall, Mor-
gan, and Contreras to the office. According to Kendall,
Ubleman asked what the employees thought about the
Union and said that if the Union came in none of the
mailers could work on the inserters; that the Spanish-
speaking employees could not find work in a union
shop;' that certain inserting work previously done by
men would be done by women; and that there would
not be enough work for everybody. Morgan generally
corroborated parts of Kendall's testimony and added
that Ubleman stated that " ... most shops that went
union went out of business," and that the employees
involved with the Union would not be able to find work
at other shops in the event the Employer chose to close
its shop.
Ubleman's affidavit does not contradict the sub-
stance of the above employee statements. Thus, Uble-
man admitted calling the employees into the office and
asking them "what was going on." He also stated that
there were only three union shops as opposed to about
40 nonunion shops in the area and pointed out that
" ... the industry employment opportunities is [sic]
greater in open shops for continued employment."
Ubleman also mentioned that the union shops had no
Spanish-speaking foremen whereas the open shops did
and " . . . told them of the advantages of being able to
work at various jobs in a nonunion shop versus being
restricted to certain operations in a union shop." In this
regard, Ubleman pointed out that the inserting ma-
chines were not covered by union contracts,' by which
he meant, as he explained in his affidavit:
What I was saying was that the union could not
supply me with inserting machine operators, so
that portion would remain non union, so that Che-
shire labeling operators would not be moved to
inserting and inserters would not be moved to
Cheshire labeling because of the restrictions
within the union contract.
At the time of the election, six employees were in
layoff status, of whom five were women. Ubleman ad-
mitted having contacted them by telephone and having
"urged them to vote to keep it an open shop." Two of
A large number of the employees are Spanish speaking
z This appears to be a misstatement for, as pointed out by the attachment
to the Regional Director's report, the Union does claim jurisdiction over the
operation of inserting machines.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the women testified that Ubleman said, in part, that "if
we voted the union in he would not be able to call us
back like he used to," or "if the union comes in I won't
be able to hire you girls anymore." Ubleman did not
know whether he made the foregoing statements, but
admitted that during the course of the conversations he
also said:
... if we lost the election, I would be required to
call the union hall for surplus people. I told them
there were no women in the union to the best of
my knowledge and I did not know what their
status would be with them.
The Regional Director found on consideration of the
evidence and, in particular, that which could be
deemed uncontroverted by Ubleman's affidavit, that it
was clear that Ubleman told the male employees that
if the Union won the election they would no longer be
given work on the inserting machine since that work
was not covered by union contracts and that a union
victory would be detrimental to their future employ-
ment in most of the industry.
As to the female employees, the Regional Director
concluded that Ubleman sought to convey the impres-
sion that their future employment would be condi-
tioned upon membership in and referral by the Union
and that membership and referral would be denied
them because the Union did not accept female mem-
bers. The Regional Director found the implication that
the Union could lawfully affect the women's job tenure
by denial of membership to them had no basis in law.'
The Regional Director found, and we agree, that the
foregoing conduct by the Employer interfered with the
election. Under all the circumstances, as set forth in the
Regional Director's report, we find the entire content
of Ubleman's admitted statements, taken as a whole,
clearly threatened that if the Union won the election it
would be detrimental to the future employment oppor-
tunities of both groups of employees. Thus the conclu-
sion is inescapable that such conduct tended to create
unjustified apprehensions in the minds of the em-
ployees as to future employment and can hardly be said
to be conducive to the laboratory conditions necessary
for the exercise of free choice in Board elections. For
these reasons we cannot agree with our dissenting col-
league's view that Ubleman's statements were mere
3 The Regional Director's investigation disclosed that article XXVI, sec-
tion 1, of the International 's constitution provides as follows for women
members:
Equal wages and conditions shall prevail for both sexes in every local
jurisdiction of the International Typographical Union, subject to the
requirements of the law of the various States as these laws affect women
workers. Any member who violates the provision of this section, upon
conviction, shall be punished by a fine of not less than $25 or suspended
as the union may determine , in accordance with International law
Although Petitioner had no female members at the time of the election, the
Regional Director 's investigation disclosed that Petitioner has no policy of
excluding females from membership Additionally, Petitioner presented evi-
dence that it indeed has had female members in the past.
nothings and not likely to have an adverse impact on
the exercise of free choice in the election.' Accordingly,
as we are of the view that Ubleman's admitted state-
ments were sufficiently coercive to warrant setting the
election aside, we find, contrary to the dissenting opin-
ion, that it is unnecesary to direct a hearing on the
disputed evidence relative to Objection 1.
ORDER
It is hereby ordered that the election conducted
herein on December 23, 1970, be, and it hereby is, set
aside.
[Direction of Second Elections omitted from publica-
tion.]
CHAIRMAN MILLER, dissenting:
I cannot agree that this election should be set aside
on the basis of any statements admittedly made by
President Ubleman to his employees before the election
was held.
Ubleman admits telling his employees, in effect, that
there were greater employment opportunities in the 40
nonunion shops than in the 3 union shops in the area;
that nonunion shops permit an employee to work at
various jobs whereas union contracts do not cover in-
serting machine operations and restrict employee
movement from labeling to inserting work and vice
versa; that if the Union won he would be required to
call the union hall for surplus people; and that the
Union has no women members. These statements did
not imply that the Employer would engage in any con-
duct to its employees' detriment in the event of a union
victory. To the extent that they implied that the em-
ployees might be disadvantaged by restrictive practices
which Ubleman understood to obtain in union shops
under union contracts, I note the absence of any con-
tention or finding that the statements were false, and
the Union concedes it has no women members. In these
circumstances, I find Ubleman's admitted statements
to be protected comment under Section 8(c) of the Act
" In addition we disagree with the application of Section 8(c) to this case.
The Board has consistently held that Section 8(c) has no application in
representation proceedings. See, e.g., Dal-Tex Optical Company, Inc, 187
NLRB 1782, 1787, fn. 11 See also Eagle-PicherIndustries, Inc., 171 NLRB
No 44, Board fn. 1
5 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them. Excelsior Underwear
Inc, 156 NLRB 1236, NL.R.B. v. Wyman-Gordon Co.,, 394 U.S. 759
Accordingly, it is hereby directed that an election eligibility list, containing
the names and addresses of all the eligible voters, must be filed by the
Employer with the Regional Director for Region 21, within 7 days after the
date of issuance of the Notice of Second Election by the Regional Director.
The Regional Director shall make the list available to all parties to the
election No extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed
MEDIA MAILERS, INC. 253
and that they did not create an atmosphere in which the President Ubleman, but denied by him would, if made,
employees were not likely to be able to make a free and require a second election. Accordingly, I would re-
informed choice. mand this case for a hearing on the disputed testimony
On the other hand, other statements attributed to relative to Objection 1.