Gazette Printing Co.

National Labor Relations Board - Board Decisions

May 19, 1969

175 N.L.R.B. 1103 (N.L.R.B. 1969)

GAZETTE PRINTING CO.
Gazette Printing Company Petitioner and Janesville
Typographical Union No. 197, International
Typographical Union , AFL-CIO. Case 30-RM-136
May 19, 1969
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 8, 1968, the Regional Director for
Region 30 issued a "Supplemental Decision
Withdrawing Direction of Election and Order
Dismissing Petition" in the above-entitled
proceeding, in which he found that there was no
question concerning representation and, therefore,
no basis for conducting an election because the
Union had effectively disclaimed its interest in
representing the Employer's employees. Thereafter,
pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Employer filed a timely request for
review of the Regional Director's Supplemental
Decision and Order. The Employer filed a brief in
support of its request and the Union filed a brief in
support of the Regional Director's Supplemental
Decision. In its request for review, the Employer
contended that: (1) The Regional Director's
Supplemental Decision raised substantial questions
of law and policy because of departure from and/or
absence of officially reported Board precedent; (2)
The Regional Director's Supplemental Decision
resolved substantial issues of fact without
conducting a hearing.
On January 27, 1969, the Board by telegraphic
Order granted the request for review and directed
that a hearing be held on the issues raised by the
Employer's request. A hearing was held on February
6, 1969, before Hearing Officer Wallace Taine. The
Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
The Union and the Employer have filed
supplemental briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has considered the entire record in the
case, including the briefs filed by the parties, and
makes the following findings:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of Section
9(c)(1) and Section 2(6) and (7) of the Act.
1103
In March 1967, the Union was certified as the
collective-bargaining representative. for certain of the
Employer's composing room employees. Shortly
thereafter, the parties began negotiating the terms of
a collective-bargaining agreement. Unable to secure
the contractual provisions that it was requesting, the
Union, in late June 1967, began a strike in support
of its bargaining demands. The strike continued
unabated through June 1968. On June 25, the
Employer filed a petition seeking an election in the
unit for which the Union had previously been
certified. The Employer contended that all but one
of the strikers had been replaced and that the Union
no longer represented a majority of its employees.
The election was not held immediately because the
Union had filed unfair labor practice charges which
were then pending before the Agency.' The Regional
Director dismissed the charges and, on October 18,
the General Counsel sustained the dismissal. The
eligibility problems having been resolved, the
Regional Director, on October 22, 1968, issued his
Direction of Election. On October 24, the Union
sent a letter to the Regional Director stating that it
no longer had any interest in representing the
"present employees" of the Employer.
Simultaneously, the Union stopped picketing the
Employer's plant. In response to the Union's
disclaimer of interest and simultaneous cessation of
picketing activity, the Employer, on October 25,
requested that it be permitted to withdraw its
election petition.
On October 28, the Union resumed picketing the
Employer's plant. But whereas the picket signs used
prior to October 24, simply read "On Strike", the
signs carried on and after October 28 stated:
"Gazette Unfair, Decency & Fairness, A Job" and
"Gazette Unfair, Justice is a Job." Consistent with
the language on the picket signs, the Union claimed
that it was no longer picketing in support of
bargaining demands but was simply trying to exert
economic pressure on the Employer to compel
reinstatement of the striking employees.' In response
to the renewed picketing, the Employer again sought
an election.
On November 8, 1968, the Regional Director
issued his Supplemental Decision Withdrawing
Direction of Election and Order Dismissing Petition.
In that Decision, the Regional Director found that
'The charges alleged that the Employer had been bargaining in bad faith
and had violated Sec. 8(a)(5) of the Act in other respects as well. If
these charges were valid , the strikers would have been unfair labor practice
strikers and, therefore, eligible to vote in the election . If the charges were
without merit, the strikers would have been ineligible to vote because they
would have been economic strikers not entitled to reinstatement who had
been on strike for more than 12 months (Sec. 9(c)(3).) Since the
composition of the electorate was contingent upon the Agency's treatment
of these charges , the election was stayed pending final Agency action.
'On October 28, 1968 , the Regional Director requested the parties to
explain their positions in regard to the resumption of picketing. In
responding to the Regional Director 's request , the Union stated its position
as follows: "We reiterate our demand that the employer reinstate all
striking employees now. We will continue to apply economic pressure
toward that objective."
175 NLRB No. 177
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union had effectively disclaimed interest in
representing the employees involved; that neither the
post-October 28 picketing nor any other actions of
the Union were inconsistent with the disclaimer; and
that, in view of the disclaimer, there was no
question concerning representation and no basis for
conducting an election.
The Union, in support of the Regional Director's
Decision, contends that its shift in purpose on
October 24 was caused by the General Counsel's
action affirming the dismissal of the Union's unfair
labor practice charges. When the charges were
dismissed, it was clear that the striking employees
had neither a legal right to reinstatement nor a right
to vote in an election. As stated in the Union's brief
in support of the Regional Director's Decision (p.
5):
Because of the dramatic change in objective
circumstances, and the clear shift in the balance
of power in favor of the employer, the Union, at
this point in time, decided to switch to a new
strategy to salvage the remains of the dispute.
Unable to win on the strike issues, and unable to
use the legal process to get immediate
reinstatement of all strikers, the Union decided to
apply economic pressure through picketing for the
limited purpose of compelling immediate
reinstatement of all strikers.
Thus, the Union contends that after its disclaimer,
the Union, while possibly retaining its interest in
representing the employees at some future date, was
no longer making a present demand for recognition.
The Employer asserts that by continuing to strike
and by other actions the Union was engaging in
conduct inconsistent with its disclaimer of interest;
that, in view of such conduct there was a question
concerning representation; and that the Regional
Director erred when he dismissed the election
petition.
The Board has frequently been called upon to
determine whether a disclaimer of interest by a
union should be accepted at face value or whether,
despite the disclaimer, the union actually continues
to have an immediate recognitional object. The
question in such cases is one of fact to be resolved
by evaluating the union's course of conduct before
and after the disclaimer.' In the circumstances
present here, we are not persuaded that the Union
has in fact withdrawn its demand for present
recognition as evidenced by its earlier picketing.
We view it as highly significant in this case that
the Union was not picketing for reinstatement of
one or a small number of employees, but for a mass
reinstatement of all strikers. Since the strikers were
union adherents, the immediate consequence of mass
reinstatement would have been the reestablishment
of the Union's earlier majority status. Under these
'Capitol Market No 1, 145 NLRB 1430, 1432; Peninsula General Tire
Company, 144 NLRB 1459, Warehouse A Mad Order Employees. Local,
743, IBT (Aetna Plywood & Veneer Company ), 140 NLRB 707, 709.
circumstances, we no not believe that the Union, in
pressing for a mass reinstatement, can realistically
be said to have had only a future, but not a present,
object of recognition.
In finding that the Union took actions
inconsistent with its disclaimer, we do not rely only
on the Union's continued picketing for mass
reinstatement which, if achieved, would immediately
have given the Union majority status. We also think
it significant that from June 1967, until October 24,
1968, the Union had continuously picketed in
support of bargaining demands. The Board has
stated that if there is recognitional picketing
immediately prior to the alleged shift in purpose, it
will view the alleged shift in purpose with "some
skepticism."4 This is particularly true where, as
here, the Union resumes picketing after a very brief
hiatus.'
For all of these reasons, we find that the
post-October 28 picketing had an immediate
recognitional objective, notwithstanding the Union's
disclaimer. Accordingly, we shall direct that an
election be held.
4. The following employees of the Employer
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All composing room employees of the Employer
at its Janesville, Wisconsin, plant, including
typesetting employees, machine operators,
compositors, teletype setter operators,
proofreaders, and machinists for typesetting
machines, but excluding office clerical employees,
guards, and supervisors as defined in the Act.
[Direction of Election' omitted from publication.]
'Waiters & Bartenders Local 500 ( Mission Valley Inn), 140 NLRB 433,
442 We do not believe that the Mission Valley case is indistinguishable
from the instant case as the Union suggests . First , in Mission , the Board
found that the Union abandoned its recognitional purpose in August 1959.
The picketing alleged to be illegal occurred on and after March 1960-more
than 6 months later . In the instant case , there was admittedly recognitional
activity several days before the alleged nonrecognitional activity . The fact
that there was recognitional picketing immediately prior to the disclaimer
in the instant case supports our view that the post -October 28 activity was
merely an extension of the picketing which preceded it, and was for the
same objective . Because there was no recognitional activity for 6 months
prior to the alleged recognitional picketing in Mission , such a finding
would have been unreasonable in that case . Moreover , in Mission, the
Union was seeking reinstatement for 22 strikers in a unit of 70.
Reinstatement of the strikers would not, therefore , have resulted in
immediate attainment of majority status , as is the case here.
'In finding that the post -October 28 picketing had a recognitional
objective, we do not imply or hold that picketing for reinstatement
necessarily has a recognitional object in all situations . Our holding is based
on the particular facts of this case and in no way modifies the holding set
forth in Local 259, UA W, AFL-CIO ( Fanelli Ford Sales Inc.), 133 NLRB
1468
'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
addresses which may be used to communicate with them Excelsior
Underwear Inc., 156 NLRB 1236; N. L.R.B. v. Wyman-Gordon Company,
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 30 within 7
GAZETTE PRINTING CO. 1105
days of the date of this Decision on Review and Direction of Election. The Regional Director except in extraordinary circumstances . Failure to
Regional Director shall make the list available to all parties to the comply with this requirement shall be grounds for setting aside the election
election . No extension of time to file this list shall be granted by the whenever proper objections are filed.