The Lord Baltimore Press

National Labor Relations Board - Board Decisions

Apr 26, 1963

142 N.L.R.B. 328 (N.L.R.B. 1963)

328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Lord Baltimore Press and Amalgamated Lithographers of
America, Local 17, Petitioner. Case No. 2O-RC-4568. April
26, 1963
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to the Board's Decision, Order, and Direction of Election
dated October 3, 1961,1 an election by secret ballot was conducted by
the Regional Director for the Twentieth Region on November 2, 1961,
among the employees in the appropriate unit. At the conclusion of
the balloting the parties were furnished with a tally of ballots which
showed that of approximately 22 eligible voters, 21 ballots were cast,
of which 9 were for the Petitioner, 11 were for the Intervenor, Print-
ing Specialties and Paper Products Local Unions Nos. 362 and 382,
International Printing Pressmen and Assistants Union, AFL-CIO,
and 1 ballot was challenged. Thereafter, the Petitioner filed timely
objections to conduct affecting the results of the election.
The Regional Director conducted an investigation and, on Novem-
ber 16, 1961, issued his report on objections, in which he recommended
that the objections be overruled and that the appropriate certification
be issued . Thereafter, the Petitioner filed, timely exceptions to the
Regional Director's report.
The Board has considered the Petitioner's objections, the Regional
Director's report and recommendations, and the exceptions thereto,
and makes the following findings :
The Petitioner's objections to the election are based on a letter
to the employees, attached hereto, in which the Employer set forth the
possible consequences of choosing the Petitioner as a bargaining rep-
resentative. These were: (1) The Employer might be forced out of
the offset business, thus eliminating the jobs of these employees; (2)
the Petitioner's demands would be so unreasonable that the Employer
would have to resist and Petitioner would have to call a strike; (3)
the Employer would in no event bargain with Petitioner because it
deemed the unit inappropriate.
The Regional Director found this letter within the bounds of per-
missible campaigning. We do not agree.
We have recently been reexamining the scope of the preelection ma-
terial and have set forth the principles which now guide us in cases
such as Oak,2 Dal-Tex,' and Sewell Manufacturing Company.4 We
have there rejected a narrow legalistic approach and indicated that we
shall consider the entire situation of employer and employee and the
1 Not published in NLRB volumes.
2 Oak 3fanujacturing Company/, 141 NLRB 1323.
$ Dal-Tex Optical Company, Inc., 137 NLRB 761.
• Sewell Manufacturing Company, 138 NLRB 66.
142 NLRB No. 40.
THE LORD BALTIMORE PRESS 329
entire context of what has been said. We will not consider words in
isolation. We cannot properly assess the effect of campaign material
as our dissenting colleague does hereby plucking out a few statements
which, in isolation, might be considered innocuous 5 To read the
letter herein as a whole, as we must, is to realize that its entire thrust,
achieved by the careful juxtaposition of foreboding possibilities, is
to impress upon the employees the futility of choosing the Petitioner.
Whether the Employer's legal position is plausible or not,6 its state-
ment does not protect the entire message of which it is an integral part
from scrutiny to determine the total impact of that message upon the
freedom of choice of the employees. We rejected such a theory in
Dal-Tex. Nor do we agree that the coercive effects of the threats we
find the Employer to have conveyed could be dissipated by any state-
ments of the Petitioner?
Therefore, we can only view this kind of statement of legal position
as a threat to use the delaying processes of the law to the fullest extent
possible in order to thwart the policies of the Act we enforce. Such
conduct, combined with the fear of economic loss that must flow from
the Employer's predictions of its reaction to the Petitioner's unknown
demands must be held to have destroyed the laboratory conditions we
seek to maintain and, consequently, to have prevented the employees'
free choice. We shall therefore set the election herein aside, and
direct the Regional Director to hold another election.
ORDER
IT IS HEREBY ORDERED that the election conducted November 2, 1961,
be, and it hereby is, set aside.
[Text of Direction of Second Election omitted from publication.]
MEMBER RODGERS, dissenting :
The Employer about a week before the election distributed to its
employees a letter which, inter alia, made the following observations :
(1) The Petitioner was a Union composed mostly of employees in
the commercial printing industry and that it did not have a single
collective-bargaining contract in the area with a company in the fold-
ing box industry; (2) the petitioning Union withdrew from the
5 See Oak Manufacturing Company, supra, and see also Arch Beverage Corporation, 140
NLRB 1385, and Decorated Products, Inc., 140 NLRB 1383, where the same principle is
applied in a converse situation.
"The Board has uniformly granted units such as here sought, and its position was re-
cently sustained in N.L R.B. v. Weyerhaeuser Company, 276 F 2d 865 (C A 7), cert denied
364 U.S. 879 It could be noted in passing that in a case involving another of its plants,
the Employer consented to an election in a unit similar to that involved here See 131
NLRB 710.
We do not find our dissenting colleague 's attempted distinction of this latter case per-
suasive, and we note that the decision of the court of appeals (C.A. 4, 300 F. 2d 671) is
on other grounds.
7 See Oak Manufacturing Company, supra , footnote 4.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO rather than adhere to the no-raid pact and was violating
such pact by attempting to sever a group of "lithographic employees"
from an established AFL-CIO bargaining unit; (3) since the Peti-
tioner's interests were principally in the lithographic printing indus-
try, offset jobs would be jeopardized and working conditions would
be imposed requiring the Employer, a folding box company, to resist
the unreasonable demands certain to be made; and (4) the Board
erred in the unit determination and that it intended to contest the
Board's finding "by proper legal means, if necessary," that this would
be a "time consuming process which might take several years from
the date of the election," and that it did not "intend to recognize and
bargain with the ALA in an inappropriate unit."
On the basis of the above letter my colleagues would set aside the
election. I disagree. For the reasons stated below, I find, in agree-
ment with the Regional Director, the letter to be a reasonable pre-
election statement insufficient to warrant setting the election aside.
The Board in a long line of established cases has found preelection
statements of this type permissible, and I see no compelling reason
for departing from precedent on the facts of this case.' I regard the
letter, the only misconduct alleged, as nothing more than a factual
statement. No contentions have been made that any statements con-
tained therein were false or in any way misleading. I am unable to
find shocking or coercive the Employer's frank and forthright state-
ments, taking issue with the Board's unit finding, indicating that it
intended to contest such determination "by proper legal means, if
necessary," and pointing out that such procedure could be "time-
consuming." I interpret the Employer's announcement simply a bona
fide statement of an intention to use the only method permitted by the
statute we administer to obtain court review of the Board's unit de-
8 See, e.g, National Furniture Company, Inc, 106 NLRB 1300; Esquire, Inc (Coronet
Instructional Films Division ), 107 NLRB 1238 ; Westinghouse Electric Corporation, 110
NLRB 332; F. W. Woolworth Company, 111 NLRB 766; LaPointe Machine Tool Com-
pany, 113 NLRB 171.
Contrary to my colleagues , I cannot accept the so-called "principles" of the Oak, Sewell,
and Dal-Tea cases as governing precedent in the instant case. Here again, as I did in my
dissent in Oak, I must express my disapproval of my colleagues ' method of evaluating
employer preelection propaganda . For here again my colleagues have failed to adhere to
the principles which they have set forth as guidelines . Thus they do not appear to have
consideredthe fact that the letter in question must be evaluated in the context of a 4-week
preelection campaign. Moreover , there was ample time for the Petitioner to answer and
counteract whatever influence it might have had, and it is likely that the coercive effects
my colleagues would read into the letter were dissipated by the day of the election.
Similarly , to find this single letter by the Employer the basis for overturning the elec-
tion is, in my opinion, to ignore "the strictures of the First Amendment"-strictures
which the majority of the Dal-Tex decision asserted "must be considered in all cases."
Under all the circumstances , I believe the majority 's condemnation of the letter in question
constitutes an unwarranted infringement upon the Employer 's rights of "free speech," and
is contrary to guidelines which the courts have recently set forth in regard thereto. See,
e g., N.L .R B. v. Threads , Inc, 308 F 2d 1 (C A 4 ) ; Union Carbide Corp v. N .L.R B., 310
F. 2d 844 (CA. 6) ; NLR.B. v. Transport Clearings , Inc., 311 F. 2d 519 ( C.A. 5). See
also, Weyerhaeuser Co. v. N.L R.B., 311 F. 2d 19 (C A. 7). Cf. Seven-up Bottling Co.,
140 NLRB 611; Allen-Morrison Sign Co ., 138 NLRB 73 ; Decorated Products, Inc., 140
NLRB 1383 ; Arch Beverage Corp ., 140 NLRB 1385.
THE LORD BALTIMORE PRESS 331
termination. An employer has the legal right to use that method
and I can see no persuasive reason for not permitting him to inform
employees of his intention to use that right.
I find the Employer's doubts particularly plausible in the instant
proceeding since it is concerned with the severance of a so-called
"lithographic unit," a type of unit determination which the Board
itself has generally found troublesome. We have held such units to
be neither "craft" nor "departmental," but have based our determi-
nations upon the elusive, and ofttimes controversial criteria of "com-
mon interests and duties." s Only recently the full Board has formally
recognized the inherent problems in unit determinations in this area
and indicated that such unit findings are neither static nor fixed and
will be subject to reconsideration because of the technological advances
which are taking place in the industry.lo
I would, therefore, affirm the Regional Director that the objections
be overruled and that the appropriate certification of the Locals of
the International Printing Pressmen and Assistants Union, AFI.
CIO, issue.
MEMBERS LEEDOM and BROWN took no part in the consideration of the
above Supplemental Decision, Order, and Direction of Second
Election.
5 See, e g, Shumate, Incorporated, 131 NLRB 98 , footnote 6.
10 See Allen, Lane & Scott , et al, 137 NLRB 223 N L.R.B. v Weyerhaeuser Company,
etc., 276 F. 2d 865 (C A. 7 ), which my colleagues rely upon clearly does not stand for the
proposition that an employer may not question unit determinations by the Board involving
lithographic press employees . That the court sustained the Board ' s findings of a litho-
graphic craft unit as appropriate in that case is true, but it did so upon the "record" be-
fore it and "the factual setting of respondent ' s manufacturing operations ." Moreover,
the court specifically noted that a separate unit for lithographic employees is not always
"proper," and such determinations are dependent upon the facts of the production process
involved
As for Lard Baltimore Press, Inc ., 131 NLRB 710, in which this Employer stipulated to
a "lithographic unit," I not only deem it not irrelevant , but most relevant In that case:
(1) there was no history of bargaining with an established AFL-CIO union and conse-
quently no issue of craft severance ; ( 2) the departmental unit therein agreed to does not
appear to be identical to the unit questioned by the Employer ; and (3 ) not only did the
Employer refuse to bargain with the Amalgamated Lithographers in that case , but the
circuit court refused enforcement of the Board 's Order requiring the Employer to bargain
and directed that further evidence and arguments with respect to the Objections to the
election be permitted . See N.L.R.B. v Lord Baltimore Press, Inc., 300 F. 2d 671 (C.A. 4).
APPENDIX
THE LORD BALTIMORE PRESS
of California
2701 Merced Street-San Leandro , California
October 25, 1961
Thursday, November 2, 1961 , is a most important date for you and the Company.
Before you vote, I want to give you a few more facts about the Amalgamated
Lithographers . The ALA wants to control your future and destroy a relationship
which has been a benefit to you and your Company . Let's look at the reasons why.
The ALA is a small union , composed mainly of employees in the commercial
printing industry . The ALA does not have a single contract with a company like
Lord Baltimore Press in the Bay Area. Its policies are dictated and controlled by
the interests of its members in the printing industry in large cities such as New York,
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chicago and Pittsburgh. For example, almost 25% of the ALA's total membership
is located in New York City alone.
Furthermore, the ALA is no longer a member of the AFL-CIO. It withdrew from
that body in 1958 rather than live up to the AFL-CIO constitution and no-raid pact.
As a result, the ALA cannot look to the AFL-CIO for support or assistance. In
fact, it is in direct conflict with the AFL-CIO unions whose jurisdiction the ALA is
attempting to raid when, as in this case, it strays outside the field of commercial
printing.
The ALA severed its connection with the AFL-CIO principally in order to con-
tinue an attempted raid on another unit at Sutherland Paper Company, a large fold-
ing carton manufacturer in Kalamazoo, Michigan.
As an employee in the folding carton industry, you should know that the ALA
did not attempt to justify either its raid at Sutherland or its disaffiliation with the
AFL-CIO on any alleged interest in the employees of Sutherland as such. To the
contrary, ALA officials publicly stated they were really out to protect the interests
of their members in "established lithographic companies" by attempting to force fold-
ing box companies to meet conditions existing in the lithographic printing industry.
In other words, what the ALA s seeking here is to further the interests of its mem-
bers in the non-comparable commercial printing industry which would be uneconomic
and non-competitive in our industry.
In either case, you would be caught in the middle of a pressure move by the ALA
for the benefit of its members in a different industry.
If LBP were forced out of offset, your jobs would be eliminated. Similarly, if the
ALA attempted to impose uneconomic and non-competitive conditions such as a
35 hour work week and commercial scale of wages on our offset operations, we would
have no choice but to resist. In turn, the ALA would have no choice but to either
agree or force you out on strike.
Furthermore, we believe the ALA is not only trying to use you to achieve objec-
tives that have nothing to do with you as an employee of Lord Baltimore Press, as
such, but is also seeking to represent you in an inappropriate bargaining unit.
We feel very strongly that the National Labor Relations Board made a serious legal
mistake in ordering an election for a separate bargaining unit for offset employees.
We believe the Board's ruling is contrary to the law, and think you ought to know
that we have every intention of contesting them by proper legal means, if necessary.
The traditional method for testing such findings is to refuse to honor a Board cer-
tification that might result if the ALA wins an election in an appropriate unit.
When the NLRB seeks to enforce a refusal to bargain claim, such cases are referred
to a U.S. Court of Appeals which then reviews the validity and legality of the
Board's unit findings. This is a time consuming process which might take several
years from the date of the election.
For this reason alone, we hope it will not be necessary to invoke this traditional
method of protecting the legal interests involved. But we are convinced the Board
erred in this case, and we do not intend to recognize and bargain with the ALA in
an inappropriate unit.
The best way to not only prevent this situation from occurring, but also prevent
the ALA from attempting to use you for its own selfish interests is to vote "NO"
when you cast your secret ballot on November 2.
Sincerely yours,
(S) H. W. Hicks,
HUGH W. HICKS,
Vice President & General Manager.
Square D Company and International Union of Electrical, Radio
& Machine Workers , AFL-CIO, Local 1503, IUE, AFL-CIO.
Case No. 21-CA-4.374. April 29, 1963
DECISION AND ORDER
On September 13, 1961, Trial Examiner Martin S. Bennett issued
his Intermediate Report in the above-entitled proceeding, finding
142 NLRB No. 43.