S-B Printers, Inc.

National Labor Relations Board - Board Decisions

Jan 19, 1977

227 N.L.R.B. 1274 (N.L.R.B. 1977)

1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S-B Printers , Inc. and John Yuen , et al., Petitioners,
and Hawaii Newspaper Guild , Local 117, The
Newspaper Guild . Case 37-RD-99
January 19, 1977
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Edward J. Parnell on
July 8, 1976. Following the hearing, pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
this case was transferred to the National Labor
Relations Board for decision. Thereafter, the Em-
ployer and the Union filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
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
purposes of the Act to assert jurisdiction herein.
2. The Petitioners, employees of the Employer,
assert that the Union, which has been recognized as
the exclusive bargaining representative of the em-
ployees designated in the petition, is no longer a
representative as defined in Section 9(a) of the Act.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. Petitioners seek a decertification election in the
unit for which the Union is the currently recognized
bargaining agent.
Prior to July 1, 1972, the employees in the unit to
which the decertification petition relates were em-
ployed by the Star Bulletin Punting Company. On
July 1, 1972, several of the employees of Star Bulletin
organized Employees Printing Inc. to purchase Star
Bulletin and continue its operations. Under the
purchase agreement Employees Printing Inc. as-
sumed the collective-bargaining agreements then in
effect between Star Bulletin and the various unions
representing the employees. Following the purchase,
Employees Printing Inc. formed S-B Printers, Inc.,
the Employer in this proceeding, as a wholly owned
subsidiary. S-B Printers continued to recognize the
Union's collective-bargaining agreement until its
expiration in 1974. On June 19, 1975, Petitioners filed
the instant petition. As of the date of the hearing, the
Employer employed 45 employees, 38 of whom were
either stockholders or stock subscribers.' The unit
involved here consists of 13 employees, 10 of whom
are stockholders or subscribers.
The Union contends that the employees who are
stockholders or subscribers should be excluded from
the unit because they possess an effective voice in the
determination of employer policy. The Employer
contends that in a decertification election all employ-
ees in the existing unit should be included and, in any
event, employee stockholders should not be excluded
from a unit unless there is a showing, absent here,
that their stock ownership results in their being
afforded special benefits or privileges which align
their interests with management rather than with
their fellow employees.
Board precedent clearly establishes that, unless
contrary to the statute or Board policy, the scope of
the unit in a decertification election should be
coextensive with the certified or recognized bargain-
ing unit.2 The Union does not contend that there is a
statutory basis for excluding employee stockholders
but, citing Sida of Hawaii, Inc., 191 NLRB 194 (1971),
and Cab Services, Inc., d/b/a Red and White Airway
Cab Company, 123 NLRB 83 (1959), argues that they
should be excluded because they control a substantial
portion of the outstanding stock and can affect
management decisions. In Red & White Cab, the
Board excluded stockholder employees from the unit
because their stock interest gave them "an effective
voice in the formulation and determination of corpo-
rate policy" and they enjoyed preferential treatment
as a result of their status as stockholders. In Sida, the
Board excluded stockholder employees because they
had almost absolute control over the selection of
directors and officials and enjoyed some preferential
treatment as stockholders. These cases involve origi-
nal representation rather than decertification elec-
tions. The exclusion of employees in an existing unit
from voting in decertification elections may pose
problems not present when only the composition of
an original unit is under consideration. We need not
address that question here, however, since the record
does establish adequate grounds against exclusion in
either situation.
The evidence does not support a finding that the
stock held by the employees in the unit "gives [them]
an effective voice in the formulation and determina-
' Those employees who have subscribed to buy stock have been given 2 Newhouse Broadcasting Corporation d/b/a WAPI-TV-AM-FM, 198
voting rights to the same extent as stockowners
227 NLRB No. 210
NLRB 342 (1972)
S-B PRINTERS , INC. 1275
tion of corporate policy." Red and White Airway Cab
Co., supra. There is no showing that the 10 unit
stockholders owning approximately 25 percent of the
stock would vote in a bloc. The record contains no
testimony as to the distribution of the remaining
stocks. Accordingly, there is no basis for determining
whether the 25 percent, even if voted as a bloc, would
be a controlling interest or an ineffective minority.
We also note that the stockholders appear to hold
stock in Employees Printing Inc., which in turn owns
all of the stock of the Employer. Thus, the unit
employee stockholders' 25-percent stock control
might very well permit them to elect a comparable
percentage of the directors of Employees Printing
Inc. under Hawaii's cumulative voting statute, but the
record does not establish that this 25-percent minori-
ty would have any real voice in that board of
directors electing the directors of its wholly owned
subsidiary, the Employer herein. None of the stock-
holders within the unit is a member of the board of
directors.3 Furthermore, there is no evidence that any
3 The record shows that Eleanor Morisato , an employee in the unit, is also
assistant treasurer of the Employer However , the record does not disclose
what her functions are or whether her status as assistant treasurer in any way
affects her employee status within the bargaining unit Accordingly, we shall
permit her to vote a challenged ballot
4 We reach this conclusion without considering the question whether a
unit of employees, excluding stockholders and subscribers, would be
of the employee stockholders has received special or
preferential treatment. We conclude, therefore, that
the employee stockholders are eligible to vote in the
decertification election directed herein .4
On the basis of the foregoing, we find that the
following unit constitutes an appropriate unit for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All employees of S-B Printers, Inc. employed at
its plant at 420 Ward Avenue, Honolulu, Hawaii,
excluding confidential secretary, professional em-
ployees, guards and/or watchmen and supervisors
as defined in the Act, all Mechanical Department
employees, all employees covered by other collec-
tive bargaining agreements ,5 and all temporary
and casual employees.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
appropriate or whether a vote for decertification in this proceeding would
bar an election in such a modified unit We do not, however, regard a
decertification proceeding as a proper vehicle for restructuring a recognized
bargaining unit
5 The unit descnption is as set forth in the most recent collective-
bargaining agreement and speaks as of the date of that agreement