The Johnson & Hardin Co.

National Labor Relations Board - Board Decisions

May 16, 1975

217 N.L.R.B. 993 (N.L.R.B. 1975)

THE JOHNSON & HARDIN COMPANY 993
The Johnson & Hardin Company and Graphic Arts
International Union, Local 508 , O-K-I,
AFL-CIO-CLC, Petitioner. Case 9-RC-10626
May 16, 1975
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret ballot election was con-
ducted among the employees in the stipulated unit de-
scribed below. The tally of ballots furnished the parties
showed that of approximately 156 eligible voters 151
cast ballots, of which 74 were for, and 64 were against,
the Petitioner. There were 13 challenged ballots, which
were sufficient in number to affect the results of the
election. However, subsequent to the election, the Peti-
tioner and the Employer had entered into a Stipulation
for Resolution of Challenged Ballots whereby the par-
ties had agreed that the challenged voters would be
ineligible to vote and that their challenged ballots
should neither be opened nor counted. Thereafter, the
Employer timely filed objections to conduct affecting
the results of the election.
Pursuant to the Board's Rules and Regulations, the
Regional Director investigated the objections and,
thereafter, on September 20, 1974, issued and served on
the parties his order directing hearing, order transfer-
ring case to the Board, and notice of hearing, wherein
he concluded that the objections raised substantial and
material issues which could best be resolved by the
conduct of a hearing. Accordingly, the Regional Direc-
tor directed that a hearing be held for the purpose of
resolving the issues raised with respect to the objec-
tions. He further ordered that the Hearing Officer
designated to conduct the hearing prepare and cause to
be served on the parties a report containing resolutions
of the credibility of witnesses, findings of fact, and
recommendations to the Board as to the disposition
of said issue.
Pursuant to notice, a hearing was held on October 9
and 10, 1974, before Hearing Officer James Schwartz.
All parties appeared and participated and were af-
forded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence
bearing on the issues.
On January 9, 1975, the Hearing Officer issued and
served on the parties his Report and Recommendations
on Objections to Election, in which he recommended
that all the objections (1, 2, and 3) be overruled in their
entirety. Thereafter, the Employer filed timely excep-
tions to the Hearing Officer's report and a supporting
brief, and the Petitioner filed an answering brief.
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 au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the 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 certain employees of the Em -
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for
collective bargaining within the meaning of Section
9(b) of the Act:
All production and maintenance employees em-
ployed by the Employer at its Cincinnati, Ohio,
location, excluding all office clerical employess,
professional employees, guards and supervisors as
defined in the Act.
5. The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby af-
firmed. The Board has considered the Hearing Officer's
report, the Employer's exceptions thereto, and the,
briefs, and hereby adopts the Hearing Officer's
findings,' conclusions, and recommendations.'
Accordingly, as the tally shows that a majority of the
valid ballots have been cast for the Petitioner, we shall
certify the Petitioner as the exclusive collective-bar-
gaining representative of the employees in the appro-
priate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Graphic Arts International
Union, Local 508, O-K-I, AFL-CIO-CLC, and that,
pursuant to Section 9(a) of the National Labor Rela-
tions Act, as amended, the said labor organization is
the exclusive representative of all the employees in the
unit found appropriate herein for the purposes of col-
lective bargaining with respect to rates of pay, wages,
hours of employment, or other conditions of employ-
ment.
MEMBER KENNEDY, dissenting:
Contrary to the majority, 'I find that the misrepresen-
I The Employer has excepted to certain credibility findings made by the
Hearing Officer. It Is the Board's established policy not to overrule a Hear-
ing Officer's resolutions with respect to credibility unless the clear prepon-
derance of all of the relevant evidence convinces us that the resolutions are
incorrect The Coca-Cola Bottling Company of Memphis, 132 NLRB 481,
483 (1961). We have carefully examined the record and find no basis for
reversing his findings.
2 Member Penello agrees with the Hearing Officer's recommendations
that Objection 2 be overruled for the reasons set forth in his dissents in
Medical Ancillary Services, Inc, 212 NLRB 582 (1974), and Ereno Lewis,
217 NLRB 239 (1975)
217 NLRB No. 166
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tations described in Objection 2 were material and sub-
stantial and could reasonablly have been expected to
have a significant impact on the outcome of the elec-
tion. Accordingly, I would sustain Objection 2 and set
aside the election results.
On August 15, 1974, a representation election was
held among the Employer's production and mainte-
nance employees. On August'l3 or 14 union organizers
distributed to the Employer's unit employees a handbill
entitled, "Examples of Some of the Fringe Benefits
Enjoyed by Cincinnati Union Members." Among the
wage rates listed in the handbill were those for compos-
ing room personnel. However, the Petitioner's vice
president and director of organizing admitted at the
hearing that the Petitioner's citywide contract (from
which all the other wage rates were quoted) does not
have a provision for wages to be paid to composing
room employees. The wages that were listed, $7.67 per
hour as of May 1, 1974, and $8.29 per hour as of May
1, 1975, were taken directly from the contract between
The Cincinnati Daily Newspaper Publishers Associa-
tion and Cincinnati Typographical Union No. 3. The
two unions are admittedly unrelated. Also included
among the fringe benefits outlined in the handout was
the claim that employees with 1 year of company serv-
ice or 10 years of industrywide experience are eligible
for 4 weeks' vacation. In actuality the Union's citywide
contract states that workers with 1 year of company
service and 10 years of experience in the field are enti-
tled to 4 weeks of leave. One year of service alone
entitles an employee to only 3 weeks' vacation. The
Petitioner offered no explanation for this discrepancy.
The Petitioner claimed to be ignorant of the wage
rates for composing room employees included in its
own collective-bargaining agreement with the Beding-
haus Business Forms Company: $4.95 per hour as of
January 1, 1973, and $5.30 per hour as of January 1,
1974. The Petitioner also claimed to be ignorant of the
hourly pay of composing room workers at Westerman
Print Company, which had a collective-bargaining con-
tract with the Photoengravers Union: $5.31 per hour as
of August 1, 1973.
If a misrepresentation should ever be the cause for
setting aside the election, then this case should stand as
a textbook example. Without question the topic of
wages and vacation benefits is especially material and
germane to employee voters in representation elections.
Further, the magnitude of the mispresentation, $5.31
per hour as compared to $7.67, is certainly substantial.
Contrary to the conclusion reached by the Hearing
Officer, it seems far more plausible to assume that a
handbill written and distributed by the Petitioner
would lead readers to believe that the benefits described
were the result of the Petitioner's collective-bargaining
efforts. The Petitioner's vice president openly admitted
at the hearing that the composing room wages were
those of a separate and distinct union. Yet the majority
seems content to accept the Hearing Officer's rationale
that since the handout did not specify which union was
enjoying these comparatively vastly superior wages
then the statement was not, for all intents and purposes,
a true misrepresentation. However, in Western Health
Facilities, Inc., 208 NLRB 56 (1974), the Board held
that where wage rates were falsely made to appear as
part of an existing contract, and the employer and em-
ployee voters had little opportunity to determine the
falsity of the statement (as in this situation), the elec-
tion should be set aside and a second election directed.
In Thiem Industries, Inc. v. N.L.R.B., 489 F.2d 788
(C.A. 9, 1973), the court of appeals refused to enforce
the Board's bargaining order because of false represen-
tations by the union preceding the election. The court
recited the following factors as influencing its judgment
that the election was invalid:
1. The misrepresentation was made at the last
possible moment prior to the election, and no ef-
fective reply by employer was possible.
2. Wage rate issues are of particular sensitivity
to employees.
3. The misrepresentation went to the union's
special knowledge in a subject the employees
might reasonably expect the union to have.
4. "A flat misrepresentation" cannot be excused
"on the ground that the deceived party, bearing no
duty to do so, could have investigated and learned
the truth."
5. "It is always a dangerous game for a union to
pass off another union's work as its own. . .."
6. "Assertions about union benefits must be
held to a fairly close standard of accuracy since a
union's statements about its own contracts sound
authoritative. Employees are liable to accept them
uncritically." [Footnotes omitted.]
I find these same six factors present in the case at hand.
The situation includes a gross misrepresentation of
union benefits distributed to the voting constituency at
a point in time when an effective reply was impossible.
The Petitioner passed off the accomplishments of
another union as its own and, since the source of the
handbill was the Petitioner, there was no reason for the
employees to question its accuracy.
For the reasons stated above, I would find the misre-
presentations described in the Employer's second ob-
jection sufficient to set aside the results of the election
and to direct a second election.'
3 See NL.R.B. v Millard Metal Service Center, Inc., 472 F 2d 647 (C A
1, 1973), Cross Baking Company, Inc. v. NL.R.B., 453 F.2d 1346 (C A 1,
1971), NL R B. v. Winchell Processing Corporation, 451 F.2d 306 (C A 9,
1971), Collins & Aikman Corporation v. NL.R B., 383 F.2d 722 (C A 4,
1967); N.L.R B. v. Houston Chronicle Publishing Company, 300 F.2d 273
(C.A 5, 1962)