Printhouse Co., Inc.

National Labor Relations Board - Board DecisionsDec 5, 1979

246 N.L.R.B. 741 (N.L.R.B. 1979)

PRINTHOUSE ()MI'ANY. INC. Printhouse Company, Inc. and Dennison Ticket, Printhouse Division and Local 1, Amalgamated Lithographers of America a/w International Typo- graphical Union, AFL-CIO, Petitioner. Case 22- RC-7632 December 5, 1979 DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and ap- proved by the Regional Director for Region 22, an election by secret ballot was conducted on October 27, 1978, 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 ap- proximately 12 eligible voters, 5 cast ballots for, and 5 against, Petitioner. There was one challenged ballot, a number sufficient to affect the results of the election. Thereafter. Petitioner filed a timely objection to con- duct affecting the results of the election. Pursuant to Section 102.69 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an inves- tigation of the challenge and objection and, on No- vember 24, 1978, the Acting Regional Director issued and duly served on the parties his report on the objec- tion and the challenged ballot. In his report, the Act- ing Regional Director recommended that the chal- lenge to the ballot of William Leppert and Petitioner's objection be sustained, and that the elec- tion held herein be set aside. Thereafter, the Em- ployer filed timely exceptions and a supporting brief limited to the Acting Regional Director's recommen- dations that the objection be sustained and the elec- tion be set aside based thereon. 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 pur- poses of the Act to assert jurisdiction herein. 2. Petitioner is a labor organization claiming to represent certain employees of the Employer. 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. The parties stipulated. and we find, that the fol- lowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All lithographic production employees, including pressmen. camera employees, stripping employ- ees, platemaking employees, and operators em- ployed at the Employer's Hackensack, New Jer- sey facilities, but excluding all professional employees, office clerical employees, guards and supervisors as defined in the Act, and all other employees. 5. The Board has considered the Acting Regional Director's report. the Employer's exceptions and brief, and the entire record in this case and hereby adopts the Acting Regional Director's finding and recommendations only to the extent consistent here- with.' In its objection. Petitioner alleged, in substance. that the Employer interfered with the employees' ree exercise of' their rights by posting the Board's official notice of election only I day prior to the date of the election. The evidence with respect to this objection is as follows. The unit herein consists of approximately 12 employees at 2 facilities of the Employer, the Printhouse and Dennison Ticket locations. These fa- cilities are about three blocks apart. The election was conducted in the vault at the Dennison Ticket loca- tion from 3:30 to 4:15 p.m. on October 27. 1978. All eligible voters voted, with the exception of one em- ployee who was hospitalized at the time of the elec- tion. On October 11. 1978, the Regional Director mailed 10 official election notices to the Employer, with the request that they be posted "immediately in conspicu- ous places about its plant so that the eligible employ- ees may be duly notified of the election." The Em- plover's witness stated that official notices were posted at the timeclocks at the Printhouse and Denni- son Ticket locations, respectively, about 9 a.m. on October 25, 2 days before the election. As noted above, Petitioner contends that the notices were not posted until October 26, the day before the election. Petitioner's three witnesses, all of whom work ex- clusively at the Dennison Ticket location, observed notices posted on the outside wall of' the vault where the election was to be held, and by the timeclock about 100 feet away. All but two of the unit employ- ees clock in and out at the beginning and end of their shifts. Those two employees, who work at the Print- house location, routinely clock in and out for lunch. Employees apparently do not make it a practice to congregate at the timeclock of either facility. They take their breaks at their work stations and eat lunch either at their stations or in the street outside their buildings. The Employer has excepted to the Acting Regional Director's recommendation that Petitioner's objection be sustained, contending, inter alia, that the official I In the absence of exceptions thereto. e Idop, pro /',rma. the Acting Regional Director's recommendati: n thatl he challenge to the hallot of Wil- liam I epperl he ustained. 246 NLRB No. 112 741 DECISIONS OF NATIONAL ABOR RELATIONS BOARD election notices were posted 2 days before the election in conspicuous places. and that the timing of the post- ing of the election notices did not undermine the laboratory conditions essential for the holding of a fair election. We conclude in view of all the circum- stances herein that, even assuming that the election notices were posted I day before the election as Peti- tioner contends, the timing of the posting of the offi- cial election notices was not such as to warrant setting the election aside. Accordingly. we hereby overrule Petitioner's objection and we shall certify the results of the election.' CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Local 1, Amalgamated Lithographers of America a/w International Typo- graphical Union, AFL CIO, and that said labor or- ganization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Rela- tions Act, as amended. 2 Member Penello finds that, since all eligible unit employees except one who was hospitalized voted in the election, the notice served its purpose of informing the employees of the time and place of the election. In addition, there is no evidence that employees were unaware of or misunderstood their rights or the procedures involved in the election. Accordingly, he would overrule the objection on the basis of his dissenting opinions in Kilgore Cor- poratrion, 203 NLRB 118 (1973); Congoleum Industries. Carpet Division. 227 NLRB 108 (1976); The Singer Company, U.S. Sewing Products Division. Dis- trict One. 238 NLRB 264 (1978); and Thermalloy Corporation. 233 NLRB 428 (1977). Member Murphy would overrule Kilgore Corporaion, supra, enforcement denied 510 F.2d 1165 (6th Cir. 1975), and agrees with Members Penello and Truesdale that the facts of this case do not warrant setting the election aside. In reaching this conclusion, she particularly relies on the fact that virtually all of the eligible voters in fact voted, which was also the case in Kilgore Corporation and in Cerlo Manufacturing Corporation, 234 NLRB 397 (1978), enforcement denied 585 F.2d 847 (7th Cir. 1978), and was a factor upon which the courts relied in denying enforcement to the Board's Orders in both cases. Contrary to her colleagues, Member Murphy is persuaded that the Board should explicitly require that, in the future, election notices be posted in appropriate places at least 2 full working days prior to the election, and that an employer's failure to timely post the notices would prima facie be considered objectionable and warrant setting the election aside, unless, as in the instant case and those cited above, virtually all of the eligible employees in fact voted and no basis exists for concluding the employees as a group did not comprehend the time, place, procedures, and purpose of the election. In the absence of an appropriate rule specifying the time (e.g., immedi- ately upon receipt) and place of official election notice posting. Member Truesdale continues to adhere to the principles established in Kilgore Corpo- ration and would look to the facts of each case to determine whether the employees had sufficient opportunity to be informed of the details of the election and their rights under the Act and to discuss the issues of the elec- tion. In concluding that the posting here was sufficient to achieve these ends. Member Truesdale notes particularly the very small size of the unit involved here, the undisputed conspicuous nature of the notice posting, and the fact that all eligible unit employees, except one who was hospitalized, vote in the election. Member Truesdale finds this case distinguishable from Kilgore C'or poration, supra, Congoleum Industries, supra, and The Singer Companys. supra: particularly inasmuch as in those cases the units were considerably larger than the one involved herein. Furthermore, in The Singer Corpant. he Board's official election notice had not been posted at all in one of the employer's facilities. CHAIRMAN FANNIN(;, dissenting: For the reasons set forth in my dissent in Kane Industries. A Division of Chroma(lov American Corpo- ration, 246 NLRB 738 (1979), 1 would find. contrary to my colleagues, that the delayed posting of the elec- tion notices warrants setting the election aside. As the Board emphasized in Kilgore Corporation,3 and I reemphasized in Kane, these notices contain impor- tant information about employees' rights so that it is necessary for employees to have a sufficient opportu- nity before the election to read and consider the mat- ters contained therein. Posting the notices only I to 2 days before the election-as the Employer did here- cannot adequately satisfy the stated purpose for the notice posting.4 In declining to set aside the election both here and in Kane, the different majorities are departing from the holdings in Kilgore and its successor cases,5 but they fail to explicitly overrule them. Thus, factors previously deemed not dispositive by a Board major- ity-i.e., the percentage of employees who voted, the employer's fault in failing to post the notices timely, and the size of the unit-are now being considered relevant, although the earlier cases to the contrary remain good law. What is most troublesome, however, is not so much that new criteria are being emphasized, but that in reversing prior Board policy my colleagues cannot agree on one precise rationale for their holding. Ac- cordingly, today, while Members Penello and Mur- phy reject the rationale in Kilgore which places a pre- mium on the employees' opportunity to read and discuss the material in the notices, Member Jenkins distinguishes that case on the ground that there the employer showed bad faith in posting the notices. Member Truesdale follows Kilgore, as I do, but in addition considers the size of the unit as a determina- tive factor. This variety of positions within the majority itself can only cause confusion in the Regions and among the parties as to what the Board requires in future notice-posting cases. In this area, it goes without say- ing that one cohesive majority rationale is essential. As evidenced from the above, my colleagues have yet to adopt one. MEMBER JENKINS, dissenting: This case is controlled by Kilgore Corporation, 203 NLRB 118 (1973), and thus I would set aside the election because the employer did not post the elec- tion notice properly. )20 3 NLRB 118 (1973). See a:so Congoleum Industries (Carper Division, 227 NLRB 108: hermallor Corp.. 233 NLRB 428; Crt Manufacturing (Corporation, 234 NLRB 397. 'See Kilgore, supra. (ongolerum Industries, upra; and Thermallnv Corp. supra, where the elections were set aside although the notices were posted for I to 2 days. I See In. 3. iupra. 742