Pacific Southwest Container, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1987

283 N.L.R.B. 79 (N.L.R.B. 1987)

PACIFIC SOUTHWEST CONTAINER
Pacific Southwest Container, Inc. and Printing Spe-
cialties & Paper Products Union, Local 609,
District Council No. 1, a/w International Print-
ing & Graphic Communications Union, AFL-
CIO, Petitioner. Case 32-RC-1829
26 February 1987
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 28 July 1983 and the hearing officer's
report recommending disposition of 'them, The
election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 23
for and 20 against the Petitioner, with 2 challenged
ballots, an insufficient number to affect the results.
The Board 'has reviewed the record in light of
the exceptions and briefs, and has decided to adopt
the hearing officer's findings' and recommenda-
tions2 only to the extent consistent with this deci-
sion,
The hearing officer recommended overruling the
Employer's Objection 2, which alleged that the Pe-
titioner materially misrepresented its nature, struc-
ture, and identity to unit employees during the
election campaign. We find merit in the Employ-
er's exception to this recommendation.
The pertinent facts are as follows. Printing Spe-
cialties & Paper Products Union, Local 609, Dis-
trict Council No. 1, a/w International Printing &
Graphic Communications Union, AFL-CIO
(PGCTJ Local 609) began organizing the' unit em-
ployees in mid-May 1983.3 The parties signed ` a
Stipulated Election Agreement on 15 June, listing
PGCU Local 609 as the petitioning organization.,
On 1 July the PGCU merged with' the Graphics
Arts International Union (GAIU) and formed the
Graphic Communications International Union
(GCIU), culminating approximately 1 year of nego-
tiations. PGCU's District Council No.^ 1, which in-
cluded PGCU Local 609 and 12 other PGCU
locals, officially merged with GAIU's Western
Graphic Arts Union No. 14 on 13 July and created
GCIU Local 777. The 28 July election ballots,
i The Employer has excepted to some of the hearing officer's credibil-
ity findings The Board's established policy is not to overrule a hearing
officer's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Stretch-Tex Co,
118 NLRB' 1359, 1361 (1957). We find no basis for reversing the findings
2 Absent exceptions, we adopt pro forma the hearing officer's recom-
mendations to overrule the Employer's Objections 8 and 9 and to ap-
prove the Employer's'withdrawal of Objection I
3 All dates are in 1983 unless otherwise indicated
79
however, did not reflect the merger but listed
PGCU Local 609 as the petitioner.
During the election campaign, Local 609 , Orga-
nizer James Ziolkowski conducted weekly meet-
ings with some of the Employer's employees. Ziol-
kowski testified that at each meeting he reported
the merger's progress to the group. At the 24 July
meeting he informed the' employees of the new
union's name, structure, and membership, and dis-
tributed two documents to be signed by employees
stating that they acknowledge Local 777 as Local
609's successor and designate it as their collective-
bargaining representative.4 Twenty-seven of the
forty-five unit employees signed both of these doc-
uments. The record does not indicate whether the
employees who attended the meetings disseminated
the merger information to those who were absent,
but unit employees Kris Mavity testified that at the
time of the election he was unaware of the merger.
The hearing officer concluded that the merger
did not, result in a change in the continuity of the,
bargaining representative. We disagree. While
Local 609 encompassed only San Joaquin, Stanis-
laus, and Merced counties in California, Local 777
additionally includes the widespread jurisdictions
of 12 other PGCU -locals throughout Northern
California, as well as GAIU's Western Graphic
Arts Union No. 14.5 The new union presumably
4 The documents read in full
TO, The Officers and Representatives of Graphic Communications
Union Local 777. The successor to Printing Specialties and Paper
Products Union, Local 609, District Council #1, affiliated with
International Printing and Graphic Communications Union, AFL-
CIO.
We, the undersigned, are employees of Pacific Southwest Contain-
er, Inc understand and acknowledge that Graphic Communications
Union Local 777 is the successor to Printing Specialties and Paper
Products Union, Local 609, District Council #1, affiliated with
International Printing and Graphic Communications Union, AFL-
CIO and it is our entent [sic' that the authorization cards we signed
for Printing Specialties and Paper Products Union, Local 609, Dis-
trict Council #1 affiliated with International Printing and Graphic
Communications Union, AFL-CIO indicates our desire to be repre-
sented for the purpose of negotiating our wages, hours and working
conditions by Graphic Communications Union Local 777 The suc-
cessor. '
TO: The Officers and Representatives of Graphic Communications
Union Local 777.
We, the undersigned, are employees of Pacific Southwest Contain-
er, Inc By our signatures we hereby make application to Graphic
Communications Union, Local 777, an affiliate of the Graphic Com-
munications International Union (AFL-CIO), and hereby designate
the Officers and Representatives of your Union as our chosen collec-
tive bargaining representatives for the purpose of negotiating wages,
hours and working conditions on our behalf. .
5 The jurisdictions of the other merging PGCU locals were as follows:
#362, San Francisco, #382, East Bay Cities, #460, Sacramento; #618,
Salinas; #653, Modesto; #677, Richmond; #678, San Leandro, #679,
Idaho, #706, Sacramento ; #748, Benecia; #777, San Mateo and Santa
Clara Counties, and Ink and Roller Makers #5, San Francisco and East
Bay Counties
283 NLRB No. 15
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contains far more members than Local 609. Local
777's executive board has 60 members; Local 609's
had approximately 6. Local 777 drew its first offi-
cers from the former officers of PGCU's District
Council No. I and Western Graphic Arts Local
No. 14; none of them had served as Local 609's of-
ficers. Additionally, Local 777 has an entirely new
constitution and bylaws. Although it did not imme-
diately change the- former PGCU and GAIU local
dues payment formulas , the merger agreement
states that "careful consideration of an equitable
formula for a dues structure will be provided
which will ultimately, equally apply to all mem-
bers."
We find that the merger substantially trans-
formed Local 609. It significantly diluted the
strength of any individual employee's influence in
internal union matters, because Local 777 is a far
larger organization than Local' 609, in scope and in'
membership. Additionally, the new local is gov-
erned by entirely different officers, its executive
board is 10 times larger; and its members are sub-
ject to a new constitution and bylaws. The merger
thus did not merely effect minor administrative
changes in the local. Local 609 lost its original
identity and became part of a local with a vastly
different structure and entirely new leadership.6
We therefore find, contrary to the hearing officer,
that the merger resulted in a meaningful change in
the bargaining representative. Independent Drug
Store Owners, 211 NLRB 701 (1974), affd. 528 F.2d
1225 (9th Cir. 1975); Gulf Oil Corp., 135 NLRB 184
(1962).
Although 27 of the 45 unit employees signed
statements prior to the election indicating that they
knew of the merger and desired representation by
GCIU Local 777, there is no evidence suggesting
that as of the election date the 18 other unit em-
ployees had heard of the merger;' indeed, 1 employ-
ee testified that he voted while unaware of it. Be-
cause the Petitioner failed adequately to inform all
unit employees of the merger, it'is uncertain that a
majority of the employees who voted actually in-
tended to vote for Local 777. Because of the cir-
cumstances, we cannot be certain that the employ-
ees knew for which union they were voting.
Thus, ' the employees' right to select their bar-
gaining representative, a right embedded in Sec-
8 Although the merger agreement provides that, Local 777 "is the legal
successor to all the rights , duties and obligations of each of the merging
Local Unions," this is outweighed by the evidence demonstrating that
Local 777 is a substantially different entity from Local 609.
We place little weight on Ziolkowski's conclusory testimony that, fol-
lowing the merger, "representation of the membership remained the
same."
tions 7 and 9 of the Act, was compromised. In 0 &
T Warehousing Co., 240 NLRB 386 (1979), the
Board stated (at 386), "That 'statutory right can
only be meaningfully exercised if the employees are
presented on the election ballot with the choice of
a clearly identified labor organization." The Board
in 0 & T Warehousing found that the petitioner
could not appear on the ballot with the designation
"AFL-CIO and/or its Appropriate Affiliate." The
Board concluded that it was "far from clear what
labor organization or organizations are seeking rep-
resentative status." The Board will thus not certify
a labor organization to represent employees unless
the election results unquestionably reflect the em-
ployees' intent. Employees must be informed of
any substantial change in the representative, occur-
ring during the election campaign, and the correct
labor organization must be listed on the ballot.
Moreover, the petitioning union may not selective-
ly inform employees of the changes; it must notify
all potential voters. Only then are employees en-
sured the opportunity meaningfully to exercise
their voting rights. We therefore sustain Objection
2 and set aside the election.7
Although we cannot certify GCIU Local 777 to
represent the unit employees based on the 28 July
election results, we shall not dismiss the petition.
We find that the documents signed by 27 unit em-
ployees on 24 July expressing a desire to be repre-
sented by Local 777 constitute an adequate show-
ing of interest to justify a second election. Accord-
ingly, we shall direct a second election, listing
GCIU Local 777 on the ballot.8
[Direction of Second Election omitted from pub-
lication.]
MEMBER JOHANSEN , concurring.
I concur in the result.
7 J. F. Husk & Son, 252 NLRB 1187 (1980), enfd 654 F 2d 729 (9th
Cir. 1981), and American Enka Co., 231 NLRB 1335 (1977), relied on by
the hearing officer, are distinguishable . Both cases involved mergers only
at the International level, and in neither case was it established that the
merger significantly affected employee representation.
The hearing officer correctly distinguished this case from Midland Na-
tional Life Insurance, 263 NLRB 127 (1982), which held that the Board
will not set aside elections due to parties' misrepresentations during the
campaign . Although the Employer framed Objection 2 in misrepresenta-
tion terms, we are not setting aside the election for that reason Rather,
we find that the election did not comport with Sec. 9(a) because we
cannot ascertain that a majority of the employees intended to designate
Local 777 as their collective-bargaining representative
The Employer request that because of the potential for confusion sur-
rounding the election, the Board should permit it to withdraw from the
Stipulated Election Agreement . We shall leave this matter for resolution
by the Regional Director
8 Monmouth Medical Center, 247 NLRB 508 (1980); 0 & T Warehous-
ing Co, supra
As we have sustained the Employer's Objection 2, we find it, unneces-
sary to pass, and we do not pass, on the issues raised by its Objections 4
ands