Petition — Kable Printing Co. v. National Labor Relations Board

Supreme Court brief1980

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MICHAEL RODAK, JR., CLERK

In the

Supreme Court of the United States

OcroBeER TERM, 1980

KABLE PRINTING COMPANY,

PETITIONER,

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT,

and

LOCAL 91-P, GRAPHIC ARTS INTERNATIONAL

UNION, AFL-CIO,

INTERVENOR.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Ina F. JAFFE

Morris L. DEUTSCH

99 High Street

Boston, Massachusetts 02110

Tel: (617) 482-7370

DeutscH, WEINTRAUB & GLAZERMAN, P.C.

of Counsel

August 15, 1980

mae

Blanchard Press, Inc., Boston, Mass.--Law Printers

QUESTIONS PRESENTED

1. Do Section 10 (e) of the National Labor Relations Act, 29

U.S.C. §160 (e) and this Court’s decision in Universal Camera

v. NLRB, 340 U.S. 474 (1951), require that National Labor

Relations Board findings in representation decisions be

grounded upon substantial evidence based upon the record as

a whole; and further, does the substantial evidence standard

bar the Board in this case from considering certain evidence to

draw inferences therefrom adverse to one party, and then, on

equitable grounds, refusing to consider other implications that

necessarily flow from that same evidence but which would

lead to a result contrary to the Board’s holding?

2. Did the National Labor Relations Board and the Court

of Appeals err in departing from established case law without

justification to hold that striking employees whose jobs have

been permanently eliminated in part as a result of new equip-

ment introduced over three years after the beginning of the

strike and who have no substantial likelihood of reemployment

nonetheless are eligible to vote in a representation election

held after such automation was complete?

III

TABLE OF CONTENTS

Page

Questions Presented. ..........ccccccessrsnsescsevene |

Ss ck yk as eck bine e eS RS Il!

Opinion Below........ 0. cen cesses eneens 2

PRIPMOTIOR 0... ccc cert cnn see enreceneeaneeds 2

ss a sake ow one cena S hae wales 2

SIT re ee err ee err ee 2

Reasons for Granting the Writ...............0eeeeeee. 8

A. The Decision Below Is In Conflict With Several

Controlling Decisions Of This Court............. 8

B. The Decision Below Is In Conflict With Other

Courts Of Appeals Decisions.................: 12

C. The Decision Departs From A Series Of Long-

standing NLRB Decisions Without Justification.. 16

ccc cence eareeecnraversecteseeseas 18

TABLE OF AUTHORITIES

CASES

Allied Chemical and Alkali Workers of America,

Local No. 1 v. Pittsburgh Plate Glass Co., 404

8 RA ft) 3) eee 8, 11, 12, 14

Amalgamated Clothing Workers of America v. NLRB,

424 F.2d 818, 131 U.S. App. D.C. 330 (D.C.

re nee re 13

Choc-Ola Bottlers v. NLRB, 478 F.2d 461 (7th Cir.

Ds is ceed 6s cass ddicesascd iene ctany ghawes 14

Duncan Foundry & Machine Works, Inc. v. NLRB,

458 F.2d 933 (7th Cir. I972).............06.. 14, 15

E.J. Kelley Co., 98 NLRB 486 (1952)............00555 17

Follett Corp. v. NLRB, 397 F.2d 91 (7th. Cir.

| errr ere errr errr ee farcry ny) 8

Globe Molded Plastics Co., Inc., 200 NLRB 377

en Peer Pererrrrry eye yn 17

PREVIOUS PAGE WAS BLANK

Page

Hawaii Press Newspapers, Inc., 154 NLRB 99 (1965).... 16

Kustom Electronics v. NLRB, 590 F.2d 817 (10th

RIE ros PEA Rah Ov ee ee eee 13, 15

Magnesium Casting Co. v. NERB, 401 U.S. 137

| NAR SP Aire Aihara aan Same af PLM 13

Meridian Plastics, Inc., 108 NLRB 203 (1954)....... 16, 17

Midwest Stock Exchange v. NLRB, 620 F.2d 629

CPU, Es Sv ch a a pee ook ay oA es 17

NLRB vy. Jesse Jones Sausage Co., 309 F.2d 664

SONG a MG Soe Ath cae sce R Nr Oe ean 13, 15

NLRB v. Commercial Letter, Inc., 496 F.2d 35

Le Petey Pere wh rT e Te 7 ae 12

NLRB v. Olson Bodies, Inc., 420 F.2d 1187 (2d

Cir. 1970), cert. denied, 401 U.S. 954 (1971)....... 13

NLRB vy. Southern Health Corp., 514 F.2d 1121

LE MUI. pd Op ies oa Sa Rae ee eae re 8

NLRB vy. Texas Industries, 426 F.2d 813 (5th Cir.

MS Re ae Cass Ser Pee ee Coes cabs sek 12, 15

Pepperell Mfg. Co. v. NLRB, 403 F.2d 520 (5th Cir.

1968), cert. denied, 395 U.S. 922 (1969)........... 13

Retail Clerks, Local 428 v. NLRB, 528 F.2d 1225,

Se es I ce cass Chaka Raa eae ies 12

Rockwell Mfg. Co. v. NLRB, 330 F.2d 795 (7th Cir.),

cert. denied, 379 U.S. 890 (1964)................0. 8

Seafarers, Local 777 v. NLRB, 603 F.2d 862 (D.C.

ENG 665-5 540999 eRW RTS ONE ete wee 16

Universal Camera Corp. v. NLRB, 340 U.S. 474

BIS oa Nhs 25 kv ahaa be eeeenas aed I, 8, 9, 10, 12

W. Wilton Wood, Inc., 127 NLRB 1675 (1960)......... 16

STATUTES

Judicial Code of the United States, 28 U.S.C. §

| Ee tee eee eh eee ee frre ees 4

Page

National Labor Relations Act, 29 U.S.C. §151 et

seq.,

Section 7, Py Mis I sw bee weccccs eens 11

8 (a) (1), 7) ee 7

8 (a) (5), SiGe (a) BH)... 0s cece: 7

i. a: Se: U8 eee 2, 6

10 (e), §160 (

“ “Gsa, | Set eee 2, 7

In the

Supreme Court of the United States

Ocrober TERM, 1980

No.

KABLE PRINTING COMPANY,

PETITIONER,

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT,

and

LOCAL 91-P, GRAPHIC ARTS

INTERNATIONAL UNION, AFL-CIO,

INTERVENOR. !

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The Petitioner, Kable Printing Company, respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Seventh

Circuit entered in this proceeding on April 24, 1980.

' All parties to the proceeding in the Court of Appeals are

contained in the case caption.

OPINION BELOW

The opinion of the Court of Appeals, an unpublished order,

appears in Appendix A hereto. The decision of the National

Labor Relations Board in this matter, reported at 243 NLRB

No. 167 (1979), also appears in Appendix A hereto.

JURISDICTION

The judgment of the United States Court of Appeals for the

Seventh Circuit was entered on April 24, 1980. A timely peti-

tion for rehearing in banc was denied on July 25, 1980 and this

petition for certiorari was filed within 90 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C. §1254 (1).

STATUTE INVOLVED

This case involves Sections 9 (c) (3), 10 (e) and (f) of the Na-

tional Labor Relations Act (“the Act”), 29 U.S.C. §§159 (c)

(3), 160 (e) and (f), the texts of which are set forth in Appendix

B hereto.

STATEMENT OF THE CASE

Kable Printing Company (“Kable”) operates a commercial

printing plant in Mount Morris, Illinois, where it employs

members of a variety of printing trades, including some

employees engaged in rotogravure operations. (A. 22-23,

62-63).* Prior to 1974, Kable performed certain preparatory

rotogravure work, including film processing and cylinder

engraving, primarily in its own plant. (A. 33-48). This work

was performed by employees represented by Local 91-P,

Graphic Arts International Union, AFL-CIO (“the Union”).

Kable and the Union have had a long history of collective

* “A, 22-23” refers to pages 22-23 of Kable’s Appendix submitted

to the Court of Appezis for the Seventh Circuit in this matter.

bargaining spanning approximately 30 years. The last collec-

tive bargaining agreement between Kable and the Union ex-

pired on March 31, 1974. (A. 13, 185). On May 10, 1974, in

the midst of negotiations for a renewal collective bargaining

agreement, and in support of its bargaining demands, the

Union struck Kable. (A. 185). All 113 photoengravers

represented by the Union ceased work during the strike. (A.

84),

Negotiations continued after the start of the strike. On July

3, 1974 Kable advised the Union that it was considering per-

manently closing down its preparatory rotogravure operations

if a satisfactory collective bargaining agreement could not be

reached. (A. 185). This possibility was emphasized again at a

July 10, 1974 bargaining session. Finally, after no progress had

been made at the July 22, 1974 negotiations meeting, Kable

announced that it was permanently terminating its

preparatory rotogravure work and that it was willing to

bargain with the Union regarding the implementation and ef-

fects of the curtailment of its preparatory rotogravure opera-

tions. The Union refused to bargain regarding this phase-out

of bargaining unit work, even after repeatedly being requested

to do so by Kable both at the July 22 meeting and at a meeting

on August 5, 1974 called by Kable for that purpose. There

were no findings by the Board or any court that Kable acted

unlawfully in connection with this elimination of bargaining

unit work.°

Kable subcontracted its cylinder engraving work and film

processing work thereby terminating ail of its preparatory

rotogravure work (A. 42, 59), and further eliminating the

need for any of the 113 former photoengravers, with the

2 The Union filed charges with the Board alleging that Kable’s

conduct constituted a refusal to bargain in good faith. These charges

were dismissed after investigation. Appeals by the Union to the

Board’s General Counsel on at least 5 occasions were consistently

found to be completely without merit. (A. 131 n.9, 191 n.11, 237

n.7).

limited exception of a small amount of corrective work per-

formed on the purchased cylinders. This corrective work was

handled by seven employees hired after the strike began. (A.

20). The equipment previously used by the photoengravers

was sold or otherwise disposed of, leaving Kable without the

capacity to produce engraved cylinders at Mount Morris. (A.

186).

The Union picketed those shops to which Kable subcon-

tracted its rotogravure work. Kable filed secondary boycott

charges that were ultimately dismissed by the Board because

the Board found that Kable had not permanently contracted

out the preparatory rotogravure work and that the subcon-

tractors were, therefore, allies of Kable, not neutrals who

were uninvolved in the labor dispute. The Board’s conclusions

in some of these secondary boycott cases were ultimately

upheld by the United States Court of Appeals for the Seventh

Circuit.

In the midst of the secondary boycott cases, and after a

hiatus in negotiations of more than one year, the Union re-

quested a resumption of bargaining on September 22, 1975.

(A. 12). Kable declined to bargain‘ and filed a petition with

the National Labor Relations Board seeking an election to

determine whether the Union still represented a majority of

employees in the bargaining unit. (A. 12). The description of

the bargaining unit in the petition was taken verbatim from

the parties’ last collective bargaining agreement. (A. 13, 196).

Kable stated in the petition that there were approximately

seven employees in the bargaining unit, the same number of

employees then performing any residual and corrective work

on the purchased rotogravure cylinders. (A. 20).

The Union claimed that the bargaining unit included the

striking photoengravers, alleging that Kable had never per-

manently terminated the preparatory rotogravure work.

‘ There was no charge or finding that Kable acted unlawfully by

its refusal to bargain in 1975 or in its requesting an election.

The Union alleged that Kable’s elimination of this work was a

mere bargaining ploy and further asserted that upon the com-

pletion of the strike the unit would be restored to its former

size. (A. 15-16). Inasmuch as these arguments were related to

issues then pending in the secondary boycott cases, the hearing

was adjourned indefinitely. (A. 28-29).

After the completion of the secondary boycott cases, the

hearing was reopened on December 1, 1976. The record in the

representation case was completed on December 3, 1976 and

briefs were submitted on January 11, 1977 (A. 2, 120-42).

Nine months later, the Board still had not issued a decision.

On October 17, 1977, the Union moved to reopen the record to

introduce evidence that after the close of the hearing and after

the filing of briefs, Kable had purchased a new cylinder

engraving machine, a Helio-Klischograph. (A. 184). With a

crew of only two to three employees, operating on a two shift

basis, the highly automated Helio-Klischograph sould engrave

more cylinders than Kable had produced prior to the strike

with its larger complement of employees utilizing the old

chemical etching method of manufacture. Kable further pro-

jected that no new employees would be required to operate the

Helio-Klischograph. (A. 164).

On September 29, 1978, almost three years after the filing of

the representation petition, twenty months after the close of

the hearing and the filing of briefs, and almost a year after the

Union's Motion to Reopen the Record, the Board finally issued

its Decision directing an election in the unit described in the

petition. (The Board’s Decision, reported at 238 NLRB No.

156 (1978), is included in Appendix A hereto.) In that Deci-

sion, the Board built inference upon inference, granted the

Union’s Motion, and admitted the evidence regarding the pur-

chase of the Helio-Klischograph. (A. 184 n.2). Despite the

long delays involved in the progress of the case, the Board con-

cluded from the subsequent purchase and installation of the

Helio-Klischograph that Kable had never previously intended

to permanently terminate the preparatory rotogravure work.

On the basis of this perceived “lack of candor” the Board con-

cluded that Kable was estopped, on equitable grounds, from

asserting that the new cylinder engraving equipment ex-

tinguished any reasonable expectancy of future employment of

the strikers. (A. 191).5 The Board, thus elected to ignore the

fact that as of the date of its Decision none of Kable’s striking

photoengravers possessed any reasonable likelihood of

reemployment. The Board then shifted focus and returned to

the situation which existed at the time of hearing in that case

when Kable had decided to permanently terminate its

preparatory rotogravure operations. While the Board “con-

ceded” that strikers whose jobs have been eliminated for

economic reasons forfeit their status for voting purposes under

Section 9 (c) (3) of the Act, it held that because Kable’s deci-

sion to leave the preparatory rotogravure operations occurred

after the commencement of the strike, it was not bona fide and

could not disenfranchise the strikers. (A. 192).

On the foregoing grounds the Board issued a Decision and

Direction of Election declaring the strikers eligible to vote. (A.

192). Member Murphy dissented from the Decision and from

“the anomalous result obtained herein, where the ghosts of a

multitude who have remained outside the employment rela-

tionship for more than four years, and are likely to so remain,

are allowed to determine the mode of industrial life for the few

who live within it.” (A. 201).

An election was held on October 27 and 28, 1978 in which

seventy voters cast ballots. (A. 209). Only 11 of the voters were

actively at work for Kable as of the date of the election. The

ballots of the strikers were challenged by Kable. The Regional

Director refused to hold a hearing and ordered these

5 The Board in its Decision labelled Kable as an “adverse party.”

This is incomprehensible since representation proceedings under

Section 9 of the Act are non-adversary in nature and Kable, at that

point, had never been before the Board in the posture of a respon-

dent.

challenges dismissed on the basis that the Board’s Direction of

Election conclusively decided the eligibility of the strikers. A

divided Board affirmed the Regional Director on this point.

Prior to overruling the challenges to the strikers’ ballots, the

tally was 1 for the Union, 4 against, and 65 challenges. (A.

206). After counting the strikers’ ballots (and the ballot of one

active employee whose challenge was overruled), the tally was

46 for the Union, 5 against, and 19 challenges. (A. 227).

The Board certified these results on March 14, 1979. Kable

declined a subsequent Union request to bargain in order to ob-

tain judicial review of the Board’s determinations in the

representation case. (A. 227, 240). On August 3, 1979, the

Board issued a Decision and Order finding that Kable refused

to bargain with the Union in violation of Sections 8 (a) (5) and

(1) of the Act, 29 U.S.C. §§158 (a) (5) and (1). (A. 239-51).

That Board Decision merely granted a Motion for Summary

Judgment by the Board’s General Counsel and did not review

or make additional findings with respect to the validity of the

certification or the strikers’ likelihood of reemployment.

Kable petitioned the United States Court of Appeals for the

Seventh C’ :cuit for review of the Board’s Decision and Order.

The Board cross-applied for enforcement of its Order and the

Union intervened. The Court of Appeals had jurisdiction to

hear the matter pursuant to Sections 10 (e) and (f) of the Act,

29 U.S.C. §§160 (e) and (f), the events in question having oc-

curred in Illinois, a state within the Seventh Circuit.

The Court of Appeals, in an unpublished order, denied

Kable’s petition for review and granted enforcement to the

Board’s Order in full. With respect to the Board’s selective

treatment of the evidence regarding the Helio-Klischograph,

the Court of Appeals held that the Board’s actions were

“somewhat questionable” but did not constitute an “abuse of

discretion” so improper as to require overturning the Board’s

findings in this matter. In connection with the issue of

® The Court of Appeals did not utilize the substantial evidence

standard mandated by Section 10 (e) of the Act and the

the eligibility of the Kable strikers, the Court of Appeals held

that the Board’s conclusion that the ties of the strikers to Kable

remained significant at the time of the election was not, as a

matter of law, improper.

Kable petitioned the Court of Appeals for rehearing in

banc, but that petition was denied (Swygart and Pell, JJ.,

dissenting).

In conclusion, Kable respectfully requests that this Court

recognize the clear errors of law and the manifest injustices

created by the Decision and Order of the Board in this case,

grant this Petition for Certiorari, reverse the Decisions below

and deny enforcement to the Board’s Order.

REASONS FOR GRANTING THE WRIT

A. The Decision Below Is In Conflict With Several

Controlling Decisions Of This Court.

It is respectfully submitted that for the reasons detailed

herein the decision below of the Court of Appeals is in conflict

with the decisions of this Court in Universal Camera Corp. v.

NLRB, 340 U.S. 474 (1951), as well as Allied Chemical and

Alkali Workers of America, Local Union No. 1 v. Pittsburgh

Plate Glass Co., 404 U.S. 157 (1971). Certiorari should issue to

correct these fundamental and important errors of law con-

tained in the decision below.

decisions of this Court. The Court of Appeals herein appeared to

follow a series of prior Seventh Circuit decisions in which it held

that, “In reviewing a Board decision in this [representation pro-

ceedings] area the substantial evidence test enunciated in Universal

Camera Corp. v. NLRB, 340 U.S. 474 (1951), has no applicability.

Rather, we must defer to the Board’s expertise unless we are

prepared to say that the discretion residing in the Board was

abused.” NLRB v. Southern Health Corp., 514 F.2d 1121, 1123-24

(7th Cir. 1975); Follett Corp. v. NLRB, 397 F.2d 91, 95 (7th Cir.

1968). See also Rockwell Mfg. Co. v. NLRB, 330 F.2d 795, 796-97

(7th Cir.) cert. denied, 379 U.S. 890 (1964).

In the underlying representation case, the Board granted a

motion by the Union for special permission to introduce

evidence establishing that the Company had purchased a new

Helio-Klischograph cylinder-making system. The Board relied

heavily upon the introduction of this system to support its con-

clusion that the Company was insincere in a prior statement,

made three and one-half years earlier, that it had permanently

contracted out and ceased the performance of rotogravure

preparatory work. Ha..ng admitted the evidence regarding

the introduction of the new system, and having further drawn

inferences from that evidence which were adverse to Kable,

the Board refused on equitable grounds to “permit Kable to

use [that] very evidence” to show that the introduction of this

equipment extinguished any reasonable expectancy of future

employment on the part of the striking employees. (A. 191).

The Court of Appeals, while characterizing the Board’s ac-

tions in this respect as “somewhat questionable,” nonetheless

affirmed the Board’s finding on the basis that the Court did

not perceive the Board’s conduct to constitute an abuse of

discretion.

It is respectfully submitted that the holding below utilizes

an improperly narrow standard of review and conflicts with

the decision of this Court in Universal Camera Corp. v.

NLRB, 340 U.S. 474 (1951).”7 In that case, the Court held

that it is incumbent upon the Court of Appeals to evaluate

whether a decision of the NLRB is supported by substantial

evidence based upon the record as « whole, as is required by

§10 (e) of the Act, 29 U.S.C. §160 (e). In an attempt to flesh

out the meaning of the substantial evidence standard, the

Court stated:

’ The Court of Appeals for the Seventh Circuit did not deem this

Court’s decision in Universal Camera applicable to factfinding in

representation proceedings. That conflict with the decisions of other

Courts of Appeals and this Court is discussed in Section B of this

Argument. The portion of Petitioner’s argument appearing in Sec-

tion A herein assumes the applicability of the substantial evidence

standard to the decision below.

Whether or not it was ever permissible for courts to deter-

mine the substantiality of evidence supporting a Labor

Board decision merely on the basis of evidence which in

and of itself justified it, without taking into account con-

trary evidence or evidence from which conflicting in-

ferences could be drawn, the new legislation definitely

precludes such a theory of review and bars its practice.

The substantiality of evidence must take into account

whatever in the record fairly detracts from its own

weight.

340 U.S. at 487-88.

It is clear, therefore, that the Board was precluded from

relying on the evidence regarding the use of the new cylinder-

making system to reach a conclusion adverse to the Employer

while simultaneously refusing to consider the fact that such

evidence foreclosed any reasonable expectancy of future

employment on the part of the striking Kable employees.® Fur-

ther, it is respectfully submitted that even assuming arguendo

that the Board is empowered in certain circumstances to reject

certain facts on the basis of equitable estoppel,° it was inap-

propriate to have done so in this case.

® This case involves more than a review of a simple ruling concer-

ning whether to admit certain evidence in the course of an NLRB

proceeding. All the evidence in question was received into the record

by the Board. What Kable objected to was the Board’s admitted

refusal to consider that evidence to the extent it would “disenfran-

chise the striking employees.” (A. 191).

® The Board cited no authority for this power, and Counsel is

aware of no other Board or Court decision in which the Board at-

tempted to reject certain facts on this basis. The result of the ap-

plication of equitable estoppel herein is particularly unjust since it

requires the new owner of Kable to bargain with the representative

of the strikers regarding the working conditions of the replacement

employees at work at Kable. The strikers have no interest in the

working conditions at Kable or in reaching a new collective bargain-

ing agreement, and the replacement employees are not fairly

represented in the bargaining.

This is particularly so, given the conflict of the decision

below with the analysis of this Court in Allied Chemical and

Alkali Workers of America, Local Union No. 1 v. Pittsburgh

Plate Glass Co., 404 U.S. 157 (1971). In that case, the Court

held the policy of efficient collective bargaining to require that

a functionally distinct g. oup of persons who lack any expecta-

tion of further employment should not be permitted to in-

terfere with the substancial and direct mutual interest of active

employees regarding wages, hours and other conditions of

employment.

Apart from whether retirees could be considered

‘employees’. . . they obviously were not employees

‘working’ or ‘who work’ on hourly rates of pay. Although

those terms may include persons on temporary or limited

absence from work, such as employees on military duty,

it would utterly destroy the function of language to read

them as embracing those whose work has ceased with no

expectation of return. In any event, retirees could not

properly be joined with the active employees in the unit

that the Union represents. ‘As a standard, the Board must

comply . . . with the requirement that the unit selected

must be one to effectuate the policy of the act, the policy

of efficient collective bargaining’ . . . . The Board must

also exercise care that the rights of employees under §7 of

the Act ‘to self-organization . . . [and] to bargain collec-

tively through representatives of their own choosing’ are

duly respected. In line with these standards, the Board

regards as its primary concern in resolving unit issues ‘to

group together only employees who have substantial

mutual interest in wages, hours and other conditions of

employment.’ Such a mutuality of interest serves to assure

the coherence among employees necessary for efficient

collective bargaining and at the same time to prevent a

functionally distinct minority group of employees from

being submerged in an overly large unit.

404 U.S. at 171-73.

The policy of Pittsburgh Plate Glass applies with equal vigor

to the situation in Kable where the strikers have no substantial

likelihood of reemployment. The Union therefore represents

and is controlled by a group with interests separate and

distinct from those of the replacement employees who are ac-

tively at work at the Company. The Supreme Court observed

in Pittsburgh Plate Glass that, “No decision under the Act is

cited, and none to our knowledge exists, in which an in-

dividual who has ceased to work without expectation of fur-

ther employment has been held to be an ‘employee.’ ” Id. at

168.

The decision herein represents the first case in which strikers

who have been permanently automated out of their jobs, and

who have no expectation of further employment, have been

held to retain their status as employees and eligible voters

under the Act.

B. The Decision Below Is In Conflict With Other

Courts Of Appeals Decisions.

The Court of Appeals for the Seventh Circuit has consistent-

ly held that the substantial evidence standard enunciated in

this Court’s decision in Universal Camera v. NLRB, supra,

and contained in Section 10 (e) of the Act, 29 U.S.C. §160 (e)

does not apply to fact finding in representation proceedings.

See cases cited in n.6 infra. The Seventh Circuit instead

scrutinizes Board decisions in light of the much more limited

“abuse of discretion” standard. The Seventh Circuit’s deci-

sions, including the decision below, conflicts with the deci-

sions of other Courts of Appeals which do utilize the substan-

tial evidence standard to review Board representation pro-

ceedings. See e.g. Retail Clerks, Local 428 v. NLRB, 528 F.2d

1225, 1227 (9th Cir. 1975); NLRB v. Commercial Letter,

Inc., 496 F.2d 35, 37 (8th Cir. 1974); NLRB v. Texas

Industries, 426 F.2d 813 (5th Cir. 1970); NLRB v. Jesse Jones

Sausage Co., 307 F.2d 664, 666 (4th Cir. 1962). But see

Kustom Electronics, Inc. v. NLRB, 590 F.2d 817, 822 (10th

Cir. 1978); Amalgamated Clothing Workers of America v.

NLRB, 424 F.2d 818, 827, 131 U.S. App. D.C. 330 (D.C. Cir.

1970); NLRB v. Olson Bodies, Inc., 420 F.2d 1187, 1189 (2d

Cir. 1970), cert. denied, 401 U.S. 954 (1971); Pepperell Mfg.

Co. v. NLRB, 403 F.2d 520, 522-23 (5th Cir. 1968), cert.

denied, 395 U.S. 922 (1969) (Courts utilizing the abuse of

discretion standard to review fact finding in Board representa-

tion cases).'°

Petitioner contends that the substantial evidence test clearly

is the only appropriate standard for judicial review of the

Board proceedings below.'! The application by the Court of

Appeals for the Seventh Circuit of an impermissibly narrow

standard of review deprived Kable of meaningful judicial

review of the Board’s decision herein. It is therefore

respectfully submitted that this Court should grant certiorari

to eliminate the above cited conflict in the Circuits and resolve

this important and recurring question of federal labor law.

The abuse of discretion standard also conflicts with the

'0 The above recitation of conflicting decisions by the various

Courts of Appeals is intended to be representative rather than ex-

haustive.

\! Petitioner believes that Section 10 (e) of the Act, 29 U.S.C. §160

(e) requires the application of the substantial evidence standard

herein since this case is a refusal to bargain proceeding and,

therefore, an unfair labor practice case. The above cited cases all oc-

curred in the context of courts reviewing Board orders in refusal to

bargain unfair labor practice cases. There is no other procedure

available for securing judicial review of NLRB decisions in represen-

tation proceedings. Additionally, however, Petitioner believes the

Act contemplated that there be a single standard of judicial review

applicable to all Board findings of fact whether made in the context

of an unfair labor practice proceeding or a representation pro-

ceeding. Cf. Magnesium Casting Co. v. NLRB, 401 U.S. 137,

142-43 nn. 9-12 (1971), and accompanying text.

holding in Choc-Ola Bottlers, Inc. v. NLRB, 478 F.2d 461

(7th Cir. 1973), that a discharged employee was not entitled to

vote. The decision in Choc-Ola Bottlers rested upon this

Court’s decision in Pittsburgh Plate Glass, supra. The Court of

Appeals in Choc-Ola reasoned that inasmuch as the dis-

charged employee had ceased work, without expectation of

further employment, he was not entitled to have any voice in

determining the representation rights of his twelve former col-

leagues. In further support of its conclusion, the Court noted

that, “It is apparent that the discharged employee’s vote will

be directed more toward a result that seems to him in the

employer’s worst interest than to one in his former colleagues’

best interests.” 478 F.2d at 464.

The divergence of interests between the Kable strikers and

Kable’s active employees is even greater than that which ex-

isted in Choc-Ola Bottlers and of far more overwhelming im-

pact. In the case at bar, the Kable strikers have been on strike

for over six years. The active employee complement consists

exclusively of employees who were hired as replacements for

the strikers and who daily crossed the picket line established by

the Kable strikers. Thus, the votes of the Kable strikers were

obviously not in sympathy with the best interests of the

replacement employees, and surely, after such a bitter strug-

gle, must have been directed instead toward a result that

seems to them in the worst interest of Kable and the replace-

ment employees (who are hopelessly outnumbered by the

strikers).

It is also submitted that the decision of the Court of Appeals

below is in direct conflict with Duncan Foundry & Machine

Works, Inc. v. NLRB, 458 F.2d 933 (7th Cir. 1972) (opinion

by then Circuit Judge Stevens). In Duncan Foundry, the

Court of Appeals recognized that:

The Board has held that where elimination or consolida-

tion of jobs due to streamlining of operations occurs

with no additions to the present working force con-

templated, there is a complete elimination of the job

rendering the striking employees who no longer have jobs

ineligible. Similarly, where an employer no longer has

the means of providing the jobs which were formerly

filled by strikers because of the sale of machinery or sub-

contracting of work, and the Employer does not an-

ticipate increasing the work force in the foreseeable

future, former strikers not recalled have been found to be

ineligible.

In the instant case, however, the Employer’s evidence

does not support a conclusion that the jobs of strikers have

been permanently eliminated .... There has been no

fundamental change in the Employer’s operations, no

cessation of any segment of its business activities, no sale

of equipment and no subcontracting of its functions. The

Employer still retains the capacity to accommodate pre-

strike levels of production and employment, which

distinguishes the instant case from those described above.

Id. at 937 (emphasis added). The Court in Duncan went on to

note that, “The decision on the challenges must be based on

the evidence and probabilities at the time of the election.” Jd.

at 937 n.10. See also Kustom Electronics, Inc. v. NLRB, 590

F.2d 817, 820 (10th Cir. 1978) (Court using likelihood of

reemployment on day of the election to ascertain voter

eligibility); NLRB v. Jesse Jones Sausage Co., 309 F.2d 664,

666 (4th Cir. 1962) (same).

In its Decision, the Board focused exclusively upon the

veracity and good faith of Kable’s claim that in 1974 it had

permanently subcontracted its rotogravure preparatory opera-

tions and that it had permanently terminated that segment of

its printing operations. But under the “day of the election”

standard utilized by the Tenth and Fourth Circuits and by the

Seventh Circuit panel in Duncan, it was clear error for

the Board to have ignored the impact of the Helio-

Klischograph cylinder-making system upon the probability of

reemployment of the strikers. Although the Court of Appeals

in Kable referred to that standard in its opinion, it is respect-

fully submitted that the Court of Appeals erred in not requir-

ing the Board to use a similar focus.

C. The Decision Departs From A Series Of Long-

standing NLRB Decisions Without Justification.

While the decisions of the Board are entitled to deference

based on the expertise of the agency, the Courts have recog-

nized that the foundation for such deference is undercut

somewhat when the expert agency departs from its own prior

holdings and decisions without explanation. See e.g. Seafarers,

Local 777 v. NLRB, 603 F.2d 862 (D.C. Cir. 1979), The

Board's decision in this case represents the first time that it has

ruled that strikers whose jobs were eliminated as a result of

automation and who lacked a substantial likelihood of recall in

the foreseeable future were nonetheless eligible to vote in a

representation election. In all prior reported NLRB decisions

in this area the Board has held that strikers whose jobs no

longer existed as a result of automation lacked sufficient com-

munity of interest with other unit employees and were thus

not eligible to participate in representation elections. See

Hawaii Press Newspapers, Inc., 154 NLRB 99 (1965) (Board

holding composing room employees ineligible to vote “by vir-

tue of the permanent replacement of strikers and the lapse of

more than one year’s time, and the partial elimination of unit

jobs.”); W. Wilton Wood, Inc., 127 NLRB 1675, 1677 (1960)

(“Although it is a question to be determined on the basis of the

facts and circumstances of each case, generally, an economic

striker forfeits such status, for voting purposes, where prior to

the election . . . the employer eliminates his job for economic

reasons.”); Meridian Plastics, Inc., 108 NLRB 203, 205-06

(1954) (“The record shows further that the company has sold

or leased indefinitely one of the machines that operated at the

time the strike started, eliminating the jobs formerly filled by

strikers; that after the strike started, the company subcon-

tracted its packing operations and will continue to do so in the

future, eliminating another thirteen jobs; and that the com-

pany does not anticipate increasing its work force in the

foreseeable future. Thus, it is clear that the former strikers not

recalled, have been permanently replaced or that their jobs

have been abolished. Accordingly, we find that the former

strikers who have not been reemployed are not entitled to

reinstatement and are ineligible to vote in the election.”); E.J.

Kelley Company, 98 NLRB 486 (1952) (Board holding strikers

ineligible where jobs have been eliminated for efficiency

reasons and as a consequence the employer did not con-

template additions to its present work force whether or not the

strike terminated.). See also Globe Molded Plastics Company,

Inc., 200 NLRB 377, 378 (1972), affirming the rule set forth in

Meridian Plastics and E.J. Kelley, supra.

Shortly after the issuance of the instant decision, the Court

of Appeals for the Seventh Circuit in a panel decision (Peck,

Pell and Wood, JJ.) held that it was unfair to grant enforce-

ment to an NLRB decision where the Board failed to act con-

sistently with clearcut standards set forth in its prior decisions.

Midwest Stock Exchange v. NLRB, 620 F.2d 629 (7th Cir.

1980). “Where the Board has promulgated stand-

ards . . . those standards are controlling until the Board an-

nounces a change and its reason for the change. Until such a

change is announced, the Board’s application of its standards

must be reasonably consistent with its prior decisions. Id. at

633. It is respectfully submitted that the Board’s unexplained

departure in Kable from all its own prior decisions and from

controlling precedent of the Supreme Court and Courts of Ap-

peals for the Fourth, Seventh and Tenth Circuits, should

render the Board’s decision unenforceable under the Midwest

Stock Exchange standard. In light of the importance of the

questions presented and their likely repetition, this Court is

respectfully requested to grant certiorari and resolve these

issues.

CONCLUSION

For these reasons, a writ of certiorari should issue to review

the judgment and opinion of the Court of Appeals for the

Seventh Circuit.

Respectfully submitted,

IRA F. JAFFE

Morais L. Deutscu

99 High Street

Boston, Massachusetts 02110

Counsel for Petitioner

DeutscH, WEINTRAUB & GLAZERMAN, P.C.

of Counsel

August 15, 1980

A-1

APPENDIX A

UNPUBLISHED Orper Not To Be CITED

Per Circuit Rute 35

United States Court of als

For the Seventh i. > pe

Chicago, Illinois 60604

Argued: February 25, 1980

Before

Hon. Rosert A. SPRECHER, Circuit Judge

Hon. Har.incton Woon, Jr., Circuit Judge

Hon. Nicuo.as J. Bua, District Judge*

No. 79-1891

KABLE PRINTING COMPANY,

PETITIONER,

vs.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT,

and

LOCAL 91-P, GRAPHIC ARTS

INTERNATIONAL UNION, AFL-CIO,

INTERVENOR.

ON PETITION TO REVIEW AND CROSS-APPLICATION TO ENFORCE

AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD

*District Judge Nicholas J. Bua of the Northern District of Illinois

is sitting by designation.

A-2

ORDER

The present matter involves the contention of the petitioner,

the Kable Printing Company [Kable], that a finding made by

the National Labor Relations Board [the Board] when entering

summary judgment against it (Kable) and in favor of the in-

tervenor, Local 91-P of the Graphic Arts International Union,

AFL-CIO [the Union], that Kable violated Section 8(a)(5) and

(1) of the National Labor Relations Act, 29 U.S.C.

§ 158(a)(5) and (1), by refusing to bargain with the Union after

it had been certified by the Board as ‘he exclusive bargaining

representative of a unit of Kable employees, is both erroneous

and invalid. Kable concedes that it has refused the Union’s re-

quests to bargain, but claims that it did so solely to preserve its

ability to obtain judicial review of the Board’s action in certify-

ing the Union. The petitioner maintains that said certification is

invalid and contrary to law because it was based upon the

results of an election in which the Board improperly extended

voting eligibility to a number of striking Kable employees whose

jobs, in the petitioner’s view, had been permanently abolished

prior to the election through changes in Kable’s methods of

operation and/or through the introduction of new, fully

automated equipment. Kable accordingly seeks in this appeal to

have the Board’s certification of the Union declared invalid,

and to have overturned the judgment entered against it on the

Union’s subsequent unfair labor practice claim.

In support of its contention, Kable argues initially that the

Board, in refusing on equitable grounds to allow Kable to pre-

sent certain evidence related to the purported elimination of the

strikers’ jobs, acted improperly. As regards this argument, the

court first notes that when making determinations of this

nature, the Board must be accorded wide discretion. See

generally NLRB v. A. J. Tower Co., 329 U.S. 324, 330 (1946).

We nonetheless feel, after reviewing the memoranda and

various other materials submitted by the parties, that the

Board’s actions in this respect were somewhat questionable. It is

A-3

our belief, however, that the evidentiary ruling complained of

was not so improper as to constitute an abuse of discretion

which would warrant overturning the Board’s findings in this

matter. To the contrary, we are of the opinion that the evidence

in question was not, when viewed in conjunction with the other

evidence presented, of such significance as to reasonably in-

crease the likelihood that a different result would have been

reached.

Kable secondarily contends that the Board’s findings regard-

ing the strikers’ eligibility to vote in the representation election

at issue were not supported by substantial evidence. We find

this argument, however, also to be without merit. With respect

to this contention of the petitioner, it again must be noted at the

outset that the National Labor Relations Act confers upon the

Board broad discretion. Such discretion, moreover, clearly ex-

tends to the Board’s ability to administer representation elec-

tions — including its authority to determine the scope of the

employee unit and to rule upon issues of voting eligibility.

NLRB v. A. J. Tower Co., supra at 330; NLRB v. Sun Drug

Co., 359 F.2d 408, 413-14 (3d Cir. 1966); NLRB v. J. J. Collins’

Sons, Inc., 332 F.2d 523, 525 (7th Cir. 1964).

As a rule, eligibility to vote in a representation election “is

tested by determining whether the employee is sufficiently con-

cerned with the terms and conditions of employment in a unit

to warrant his participation in the election of its bargaining

agent.” NLRB v. Certified Testing Laboratories, Inc. , 387 F.2d

275, 277 (3d Cir. 1967). Absent some clear showing that their

ties to the employee unit have been cut, striking employees nor-

mally will meet that test.'! From the materials submitted by the

' Under Section 2(3) of the National Labor Relations Act, 29

U.S.C. § 152(3), strikers retain their status as employees until they

secure regular and substantially equivalent employment elsewhere.

See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967);

Laidlaw Corp. v. NLRB, 414 F.2d 99, 104 (7th Cir. 1969). Although

elimination of strikers’ jobs may defeat their reinstatement, and ac-

cordingly their voting rights, the burden is on the party challenging

those rights to establish that the strikers’ jobs have been eliminated

“for substantial and bona fide reasons other than considerations relating

to labor relations.” NLRB v. Fleetwood Trailer Co., supra at 379.

A-4

parties, it is clear that the Board had ample evidence before it to

allow for the conclusion that the ties of the Kable strikers to the,

petitioner’s working employees remained significant at the time

of the election in question. The Board’s decision to allow them

to participate in said election thus cannot, as a matter of law, be

considered improper.

For the reasons stated above, the Kable Printing Company's

petition for review is DENIED. It is further directed that the

order of the National Labor Relatioms Board be ENFORCED in

full.

A-5

United States Court of als

For the Seventh abt pe

Chicago, Illinois 60604

July 25, 1980.

Before

Hon. Rosert A. SpRECHER, Circuit Judge

Hon. Hartincron Woon, Jr., Circuit Judge

Hon. Nicuo.as J. Bua, District Judge*

No. 79-1891

KABLE PRINTING COMPANY,

PETITIONER,

vs.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT,

and

LOCAL 91-P, GRAPHIC ARTS

INTERNATIONAL UNION, AFL-CIO,

INTERVENOR.

ON PETITION TO REVIEW AND CROSS-APPLICATION TO ENFORCE

AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD

ORDER

On consideration of the petition for rehearing and sugges-

tion for rehearing in banc filed in the above-entitled cause by

petitioner, a vote of the active members of the Court was re-

quested, and a majority of the active members of the Court

*District Judge Nicholas J. Bua of the Northern District of Illinois

is sitting by designation.

A-6

have voted to deny a rehearing in banc.** All of the judges on

the original panel have voted to deny the petition for rehearing.

Accordingly,

IT IS ORDERED that the aforesaid petition for rehearing

be, and the same is hereby, DENIED.

** Judges Swygert and Pell voted to grant rehearing in banc.

A-7

FPM

243 NLRB No. 167

D—5374

Mount Morris, IL

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

KABLE PRINTING COMPANY,

A WHOLLY OWNED SUBSIDIARY OF

WESTERN PUBLISHING COMPANY, INC.!

and Case 33-CA-4225

LOCAL 91-P, GRAPHIC ARTS

INTERNATIONAL UNION, AFL—CIO

DECISION AND ORDER

Upon a charge filed on April 11, 1979, by Local 91-P,

Graphic Arts International Union, AFL-CIO, herein called the

Union, and duly served on Kable Printing Company, a wholly

owned subsidiary of Western Publishing Company, Inc., herein

called Respondent, the General Counsel of the National Labor

Relations Board, by the Regional Director for Region 33, issued

a complaint on April 13, 1979, against Respondent, alleging

that Respondent had engaged in and was engaging in unfair

labor practices affecting commerce within the meaning of Sec-

tion 8(a)(5) and (1) and Section 2(6) and (7) of the National

Labor Relations Act, as amended. Copies of the charge, com-

plaint, and notice of hearing before an administrative law judge

were duly served on the parties to this proceeding.

' All prior cases named Respondent as Kable Printing Company.

A-8

With respect to the unfair labor practices, the complaint

alleges in substance that on March 14, 1979, following a Board

election in Case 33—RM—118,* the Union was duly certified as

the exclusive collective-bargaining representative of Respon-

dent’s employees in the unit found appropriate; * and that, com-

mencing on or about March 16, 1979, and at all times

thereafter, and particularly by letter dated March 27, 1979,

Respondent has refused, and continues to date to refuse, to

bargain collectively with the Union as the exclusive bargaining

representative, although the Union has requested and is re-

questing it to do so. On April 19, 1979, Respondent filed its

answer to the complaint admitting in part and denying in part,

the allegations in the complaint.

On May 9, 1979, counsel for the General Counsel filed di-

rectly with the Board a Motion for Summary Judgment. Subse-

quently, on May 22, 1979, the Board issued an order transfer-

ring the proceeding to the Board and a Notice To Show Cause

why the General Counsel’s Motion for Summary Judgment

should not be granted. Respondent thereafter filed a response to

Notice to Show Cause.

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.

2 On August 1, 1978, the General Counsel of the National Labor

Relations Board transferred this case from the former Subregion 38 to

its newly created Region 33 and changed its case number from

38—RM—118 to 33—RM—118.

3 Official notice is taken of the record in the representation pro-

ceeding, Case 33—RM—118, as the term “record” is defined in Secs.

102.68 and 102.69(g) of the Board’s Rules and Regulations, Series 8,

as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967),

enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167

NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v.

Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB

378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA,

as amended.

A-9

Upon the entire record in this proceeding, the Board makes the

following:

RULING ON THE MOTION FOR SUMMARY JUDGMENT

In its answer to the complaint and response to the Notice To

Show Cause, Respondent admits that it has refused to bargain

as alleged but attacks the Union’s certification on the ground

that it is based upon a revised tally of ballots which improperly

included a determinative number of votes cast by former

employees of Respondent whose jobs had been permanently

abolished by changes in Respondent’s operating procedure and

by the introduction of new and automated equipment which

eliminated any reasonable prospect of their reemployment in

the unit in the foreseeable future. Counsel for the General

Counsel argues that there are no matters warranting a hearing

because the issues concerning the Union’s certification were

litigated and determined in the representation case. We agree

with the General Counsel.

A review of the record herein, including the record in Case

33—RM—118, indicates that upon a petition duly filed under

Section 9(c) of the Act a hearing was held before Hearing Of-

ficer Ira S. Epstein. Following the hearing, and pursuant to

Section 102.67 of the National Labor Relations Board Rules and

Regulations and Statements of Procedure, Series 8, as amended,

the case was transferred to the Board for decision. On

September 29, 1978, the Board (Member Murphy dissenting)

issued a Decision and Direction of Election in the unit found

appropriate.‘ In its Decision, the Board found that the jobs of

the approximately 113 economic strikers involved in the case

had not been permanently abolished and the strikers remained

employees for the purpose of voting in the directed election. In

so deciding, the Board refused to allow Respondent to use

evidence, previously withheld by Respondent, to disenfranchise

the striking employees by asserting that its new cylinder-

* 238 NLRB No. 156.

A-10

engraving system extinguished any reasonable expectancy of

future employment for those employees. On October 27 and 28,

1978, pursuant to the Board’s direction, an election by secret

ballot was conducted under the supervision of the Regional

Director for Region 33. The tally of ballots showed 1 for and 4

against the Union; there were 65 challenged ballots, a sufficient

number to affect the results. No objections to the conduct of the

election or to the conduct affecting the results of the election

were timely filed by the parties. On December 1, 1978, the

Regional Director issued a Report on Challenged Ballots,

wherein he recommended that Respondent’s challenges to the

ballots of 45 striking employees be overruled,* finding that these

employees were among the 113 strikers which the Board found

to be eligible voters in its Decision and Direction of Election,

and that the arguments raised by Respondent’s challenges to the

ballots of these employees had been considered by the Board in

its Decision. The Regional Director further recommended that

a hearing be held to resolve the issues raised by the challenges to

7 ballots of striking employees and 11 ballots of nonstriking

employees in the event the revised tally of ballots showed that

these ballots were determinative. Respondent filed timely ex-

ceptions to the Regional Director’s report, contend ng that its

challenges to the ballots of 52 striking employees should be

sustained or, in the alternative, a hearing should be held to

determine whether, in view of Respondent’s changes in

methods of operation, any of those strikers had a reasonable ex-

pectancy of reemployment in the unit at the time of the elec-

tion. In this connection, Respondent argued that the Regional

Director incorrectly determined that the Board, in its preelec-

tion Decision, foreclosed consideration, at the postelection stage

of the case, of evidence regarding Respondent’s cylinder-

engraving system. On February 27, 1979, the Board (Member

Murphy dissenting in part) issued a Decision and Direction,®

5 The Regional Director also recommended that the challenged

ballot of a nonstriking employee be overruled.

® Not reported in bound volumes of Board Decisions.

A-11

adopting the Regional Director’s findings and recommenda-

tions. On March 8, 1979, those ballots, the challenges to which

were overruled, were opened and counted, and a revised tally

of ballots was issued showing 46 for, and 5 against, the Union;

there were 18 nondeterminative challenged ballots, a number

insufficient to affect the results. On March 14, 1979, the

Regional Director issued a Certification of Representative.

It is well settled that in the absence of newly discovered or

previously unavailable evidence or special circumstances a

respondent in a proceeding alleging a violation of Section

8(a)(5) is not entitled to relitigate issues which were or could

have been litigated in a prior representation proceeding.’

All issues raised by Respondent in this proceeding were or

could have been litigated in the prior representation pro-

ceeding, and Respondent does not offer to adduce at a hearing

any newly discovered or previously unavailable evidence, nor

does it allege that any special circumstances exist herein which

would require the Board to reexamine the decision made in the

representation proceeding. We therefore find that Respondent

has not raised any issue which is properly litigable in this unfair

labor practice proceeding. Accordingly, we grant the Motion

for Summary Judgment.

On the basis of the entire record, the Board makes the fol-

lowing:

FINDINGS OF Fact

I. The Business of Respondent -

Respondent is an Illinois corporation with its office and place

of business located at Mt. Morris, Illinois, where it is engaged in

the business of printing magazines, catalogues, and other

7 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162

(1941); Rules and Regulations of the Board, Secs. 102.67(f) and

102.69(c).

A-12

related items. During the preceding 12 months, Respondent

sold and shipped from its Mt. Morris, Illinois, facility, products

valued in excess of $50,000 to points outside the State of Illinois,

and received goods and materials valued in excess of $50,000

from points outside the State of Illinois.

We find, on the basis of the foregoing, that Respondent is,

and has been at all times material herein, an employer engaged

in commerce within the meaning of Section 2(6) and (7) of the

Act, and that it will effectuate the policies of the Act to assert

jurisdiction herein.

II. The Labor Organization Involved

Local 91—P, Graphic Arts International Union, AFL-CIO,

is a labor organization within the meaning of Section 2(5) of the

Act.

III. The Unfair Labor Practices

A. The Representation Proceeding

1. The unit

The following employees of Respondent constitute a unit ap-

propriate for collective-bargaining purposes within the mean-

ing of Section 9(b) of the Act:

All employees performing any of the following work: all

work, processes, operations and productions directly

related to lithography, offset (including dry or wet), ph«

toengraving, intaglio, and gravure methods of printing

(excluding production presswork) employed by the

Employer at its plant located at 404 N. Wesley Avenue,

Mt. Morris, Illinois; but excluding all office clerical

employees, professional employees, guards and supervisors

as defined in the Act and all other employees.

2. The certification

On October 27 and 28, 1978, a majority of the employees of

Respondent in said unit, in a secret-ballot election conducted

under the supervision of the Regional Director for Region 33,

designated the Union as their representative for the purpose of

A-13

collective bargaining with Respondent. The Union was certified

as the collective-bargaining representative of the employees in

said unit on March 14, 1979, and the Union continues to be

such exclusive representative within the meaning of Section 9(a)

of the Act.

B. The Request To Bargain and

Respondent's Refusal

Commencing on or about March 16, 1979, and at all times

thereafter, the Union has requested Respondent to bargain col-

lectively with it as the exclusive collective-bargaining represen-

tative of all the employees in the above-described unit. Com-

mencing on or about March 16, 1979, and continuing at all

times thereafter to date, Respondent has refused, and continues

to refuse, to recognize and bargain with the Union as the ex-

clusive representative for collective bargaining of all employees

in said unit.

Accordingly, we find that Respondent has, since March 16,

1979, and at all times thereafter, refused to bargain collectively

with the Union as the exclusive representative of the employees

in the appropriate unit, and that, by such refusal, Respondent

has engaged in and is engaging in unfair labor practices within

the meaning of Section 8(a)(5) and (1) of the Act.

IV. The Effect of the Unfair Labor Practices

Upon Commerce

The activities of Respondent set forth in section III, above,

occurring in connection with its operations described in section

I, above, have a close, intimate, and substantial relationship to

trade, traffic, and commerce among the several States and tend

to lead to labor disputes burdening and obstructing commerce

and the free flow of commerce.

V. The Remedy

Having found that Respondent has engaged in and is engag-

ing in unfair labor practices within the meaning of Section

8(a)(5) and (1) of the Act, we shall order that it cease and desist

therefrom, and, upon request, bargain collectively with the

A-14

Union as the exclusive representative of all employees in the ap-

propriate unit, and, if an understanding is reached, embody

such understanding in a signed agreement.

In order to insure that the employees in the appropriate unit

will be accorded the services of their selected bargaining agent

for the period provided by law, we shall construe the initial

period of certification as beginning on the date Respondent

commences to bargain in good faith with the Union as the

recognized bargaining representative in the appropriate unit.

See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962);

Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229

(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379

U.S. 817; Burnett Construction Company, 149 NLRB 1419,

1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).

The Board, upon the basis of the foregoing facts and the en-

tire record, makes the following:

CONCLUSIONS OF LAW

1. Kable Printing Company, a wholly owned subsidiary of

Western Publishing Company, Inc., is an employer engaged in

commerce within the meaning of Section 2(6) and (7) of the

Act.

2. Local 91—P, Graphic Arts International Union, AFL-

CIO, is a labor organization within the meaning of Section 2(5)

of the Act.

3. All employees performing any of the following work: all

work, processes, operations and productions directly related to

lithography, offset (including dry or wet), photoengraving, in-

taglio, and gravure methods of printing (excluding production

presswork) employed by the Employer at its plant located at

404 N. Wesley Avenue, Mt. Morris, Illinois; but excluding all

office clerical employees, professional employees, guards and

supervisors as defined in the Act and all other employees, con-

stitute a unit appropriate for the purposes of collective bargain-

ing within the meaning of Section 9(b) of the Act.

4. Since March 14, 1979, the above-named labor organiza-

tion has been and now is the certified and exclusive represen-

A-15

tative of all employees in the aforesaid appropriate unit for the

purpose of collective bargaining within the meaning of Section

9(a) of the Act.

5. By refusing on or about March 16, 1979, and at all times

thereafter, to bargain collectively with the above-nained labor

organization as the exclusive bargaining representative of all the

employees of Respondent in the appropriate unit, Respondent

has engaged in and is engaging in unfair labor practices within

the meaning of Section 8(a)(5) of the Act.

6. By the aforesaid refusal to bargain, Respondent has in-

terfered with, restrained, and coerced, and is interfering with,

restraining, and coercing, employees in the exercise of the rights

guaranteed them in Section 7 of the Act, and thereby has en-

gaged in and is engaging in unfair labor practices within the

meaning of Section 8(a)(1) of the Act.

7. The aforesaid unfair labor practices are unfair labor

practices affecting commerce within the meaning of Section

2(6) and (7) of the Act.

ORDER

Pursuant to Section 10(c) of the National Labor Relations

Act, as amended, the National Labor Relations Board hereby

orders that the Respondent, Kable Printing Company, a wholly

owned subsidiary of Western Publishing Company, Inc., Mt.

Morris, Illinois, its officers, agents, successors, and assigns,

shall:

1. Cease and desist from:

(a) Refusing to bargain collectively concerning rates of

pay, wages, hours, and other terms and conditions of employ-

ment with Local 91—P, Graphic Arts International Union,

AFL—CIO, as the exclusive bargaining representative of its

employees in the following appropriate unit:

All employees performing any of the following work: all

work, processes, operations and productions directly

related to lithography, offset (including dry or wet), pho-

toengraving, intaglio, and gravure methods of printing

(excluding production presswork) employed by the

Employer at its plant located at 404 N. Wesley Avenue,

A-16

Mt. Morris, Illinois; but excluding all office clerical

employees, professional employees, guards and supervisors

as defined in the Act and all other employees.

(b) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of the rights

guaranteed them in Section 7 of the Act.

2. Take the following affirmative action which the Board

finds will effectuate the policies of the Act:

(a) Upon request, bargain with the above-named labor

organization as the exclusive representative of all employees in

the aforesaid appropriate unit with respect to rates of pay,

wages, hours, and other terms and conditions of employment,

and, if an understanding is reached, embody such understand-

ing in a signed agreement.

(b) Post at its plant located at Mt. Morris, Illinois, copies

of the attached notice marked “Appendix.”*® Copies of said

notice, on forms provided by the Regional Director for Region

33, after being duly signed by Respondent's representative, shall

be posted by Respondent immediately upon receipt thereof,

and be maintained by it for 60 consecutive days thereafter, in

conspicuous places, including all places where notices to

employees are customarily posted. Reasonable sters shall be

taken by Respondent to insure that said notices are not altered,

defaced, or covered by any other material.

writing, within 20 days from the date of this Order, what steps

have been taken to comply herewith.

Dated, Washington, D.C. August 3, 1979

JoHN H. FANNING Chairman

JouN A, PENELLO Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

8 In the event that this Order is enforced by a judgment of a United

States Court of Appeals, the words in the notice reading “PosTED By

ORDER OF THE NATIONAL LaBor RELATIONS Boarp” shall read “PosTED

PURSUANT TO A JUDGMENT OF THE UNITED STaTEs Court OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LaBor RELATIONS BOARD.”

A-17

MEMBER Murpny, dissenting:

I decline to take the final step on the path followed by my

colleagues which, as I predicted, has led to a predictable and

totally unsupportable result.

In the underlying representation case herein, I did not join

my colleagues in the adoption of the Regional Director's recom-

mendation that the challenges to the ballots of 45 of the strikers

be overruled and counted, and that a hearing be held to resolve

the issues raised by the challenges to the ballots of 7.strikers in

the event they remained determinative. Instead, I would have

sustained the challenges to the ballots of these 52 strikers, inter

alia, and would have issued a certification of results of election

based upon the valid votes cast. Therefore, I would deny the

General Counsel’s Motion for Summary Judgment here. My

colleagues’ decision to the contrary permits, as I feared, the

ghosts of a multitude who have remained outside the employ-

ment relationship for more than 4 years, and are likely to so re-

main, to determine the mode of industrial life for the few who

live within it. See Kable Printing Company, 238 NLRB No. 156

(1978).

Dated, Washington, D.C. August 3, 1979.

Berry SouTHARD Murpny, Member

NATIONAL LABorR RELATIONS BOARD

A-18

APPENDIX

NOTICE TO EMPLOYEES

PosTEep BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An AGENCY OF THE UNITED STATES GOVERNMENT

WE Wit Not refuse to bargain collectively concerning rates

of pay, wages, hours, and other terms and conditions of

employment with Local 91—P, Graphic Arts International

Union, AFL—CIO, as the exclusive representative of the

employees in the bargaining unit described below.

WE Wit Not in any like or related manner interfere with,

restrain, or coerce our employees in the exercise of the rights

guaranteed them by Section 7 of the Act.

We WIL, upon request, bargain with the above-named

Union, as the exclusive representative of all employees in the

bargaining unit described below, with respect to rates of pay,

wages, hours, and other terms and conditions of employment,

and, if an understanding is reached, embody such understand-

ing in a signed agreement. The bargaining unit is:

All employees performing any of the following work: all

work, processes, operations and productions directly

related to lithography, offset (including dry or wet), pho-

toengraving, intaglio, and gravure raethods of printing

(excluding production presswork) employed by the

Employer at its plant located at 404 N. Wesley Avenue,

Mt. Morris, Illinois; but excluding all office clerical

employees, professional employees, guards and supervisors

as defined in the Act and all other employees.

ee ee

A-19

KABLE PRINTING COMPANY,

A WHOLLY OwNneED SUBSIDIARY OF

WESTERN PUBLISHING COMPANY, INC.

(Employer)

Dated _________ By

(Representative) (Title)

This is an official notice and must not be defaced by anyone.

This notice must remain posted for 60 consecutive days from the

date of posting and must not be altered, defaced, or covered by any

other material. Any questions concerning this notice or compliance

with its provisions may be directed to the Board’s Office, Savings

Center Tower, 16th Floor, 411 Hamilton Avenue, Peoria, Illinois

61602, Telephone 309-671-7081.

A-20

FPM

238 NLRB No. 156

D—4193

Mount Morris, IL

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

KABLE PRINTING COMPANY,

EMPLOYER- PETITIONER

and Case 38-RM-118

LOCAL 91—P GRAPHIC ARTS

INTERNATIONAL UNION, AFL—CIO,

UNION

DECISION AND DIRECTION OF ELECTION

Upon a petition duly filed under Section 9 (c) of the Na-

tional Labor Relations Act, as amended, a hearing was held

before Hearing Officer Ira S. Epstein. Following the hearing

and pursuant to Section 102.67 of the National Labor Rela-

tions Board Rules and Regulations and Statements of Pro-

cedure, Series 8, as amended, this case was transferred to the

Board for decision. The Employer and the Union filed briefs.

Thereafter, the Union filed a motion for special permission to

introduce new evidence and to dismiss the petition or, in the

alternative, to reopen the hearing, and the Employer filed a

responding brief.

Pursuant to the provisions of Section 3 (b) of the National

Labor Relations Act, as amended, the National Labor Rela-

tions Board has delegated its authority in this proceeding to a

three-member panel.

A-21

The Board has reviewed the hearing officer's rulings made

at the hearing and finds that they are free from prejudicial er-

ror. They are hereby affirmed.

Upon the entire record in this case, the Board finds:

1. Kable Printing Company, the Employer herein, is a ma-

jor printing house with facilities at Mount Morris, Illinois,

where it prints magazines, catalogs, and related items for

publishers, large merchandisers, and other businesses located

throughout the country. The parties stipulated, and we find,

that the Employer is engaged in commerce within the mean-

ing of the Act.

2. Local 91 — P is a labor organization, with the meaning

of the Act, which claims to represent certain employees of the

Employer.

3. A question affecting commerce exists concerning the

representation of employees of the Employer within the mean-

ing of Sections 9 (c) (1) and 2 (6) and (7) of the Act.

The Employer questions the majority status of the Union on

the grounds that the latter has engaged in an economic strike

for more than one year and that the approximately 113 strikers

have either been permanently replaced or their jobs have been

permanently abolished. Specifically, in its brief in support of

the petition, the Employer contends that it has discontinued

the production of rotogravure cylinders for use on its presses

and has no intention of reverting to its former practice of pro-

ducing them. The Employer also asserts that it sold most of the

equipment necessary to produce these cylinders, thus losing

the capacity to do so, and that it has entered into long term

contracts with outside suppliers to furnish such cylinders as are

required. Based on these contentions, the Employer avers that

its present employee complement of approximately seven in-

dividuals is sufficient for its anticipated business needs and

that no striker has a reasonable expectation of any further

employment.

A-22

In its initial brief, the Union contends that there is no valid

reason for questioning its continued majority status and accor-

dingly that the petition filed herein should be dismissed. In the

alternative, it argues that, should the Board hold otherwise

and direct an election, all unreplaced economic strikers should

be entitled to vote therein. In support of these contentions, the

Union alleges, as it had ofttimes in the past,’ that Kable’s

announced decision to discontinue permanently the produc-

tion of rotogravure cylinders was a bargaining stratagem

designed to force capitulation by the Union in the labor

dispute which followed a breakdown in contract negotiations

between the parties. Therefore, the Union argues, Kable can

be expected to resume the production of rotogravure cylinders

upon termination of the strike. Likewise, the Union argues

that, as Kable’s announced decision to subcontract the

disputed work has no economic component independent of the

strike, resumption of such work is likely and, accordingly, the

unreplaced strikers do have a reasonable expectation of further

employment. In this respect, the Union asserts that the

substantial size and weight of the cylinders, which during the

correction process must be moved many times over great

distances between Kable’s pressroom and the subcontractors’

rotogravure preparatory areas, result in an inefficiency which

can be remedied only by Kable itself performing the

rotogravure preparatory work currently in the hands of the

subcontractors.

More recently, in its brief in support of its motion, the

Union asserts, inter alia, that it is in possession of new evidence

which shows that Kable never intended to discontinue per-

manently its rotogravure preparatory operations and, indeed,

has continued to plan for the purchase of new, more

sophisticated cylinder-producing equipment at the same time

it represented to the Board and the General Counsel that it

had no intention of resuming this bargaining unit work.*

' See fn. 5, infra.

2 The Union’s motion for special permission to introduce new

evidence, in the form of exhibits attached thereto, is hereby

A-23

In its responding brief, Kable contends that its decision to

institute the operational changes cited by the Union was made

only recently, and only after the Company had adhered to its

initial decision (i.e., permanently to subcontract the work) for

nearly 3-' years after that decision was announced. The

Employer also contends that the proffered evidence does not

show that when company representatives announced the

discontinuation of rotogravure preparatory operations in July

1974, they did so falsely or in bad faith. Further, Kable argues

that, with the installation of the new automated equipment,

the old chemical engraving process will be replaced by a com-

puterized electronic engraving process which substantially

reduces the need for the number of unit employees formerly

required. Therefore, Kable contends that the jobs of the strik-

ing employees have been permanently abolished, initially

through subcontracting arrangements and now “altogether by

automation.” Accordingly, Kable argues that installation of

the new equipment extinguishes any expectation of future

employment on the part of striking employees “more per-

manently than ever.”

On the facts and for the reasons hereinafter set forth, we

shall direct than an election be held in this case.

For many years, the union bargained with the Employer on

behalf of employees engaged in rotogravure preparatory work

in the unit hereinafter found appropriate. The last contract

between the parties expired on March 31, 1974. They were

unable to reach agreement on the terms of a new contract and

on May 10 the Union struck. Thereafter, the Employer made

arrangements to have the struck rotogravure preparatory work

performed by “front-end” shops in order to maintain produc-

tion of the rotogravure cylinders necessary for Kable’s

granted. Although Kable argues against the probative value of the

aforesaid exhibits, no objection is raised with respect to their being

made a part of the record herein.

A-24

presses. These efforts generally proved unsuccessful, as the

Union and other affiliated locals were able to follow the

“struck work,” effectively interfering with the performance of

such work by the front-end shops which had allied themselves

with Kable in the latter’s dispute with the Union.’

Thus, on July 3, 1974, Kable advised the Union for the first

time, after subsequent bargaining sessions failed to bring the

parties closer to agreement, that the company was considering

shutting down permanently the rotogravure preparatory por-

tion of its business if the Union did not call off the strike. This

warning was repeated at a bargaining session held on July 10,

but to no avail. The parties made no progress at the next

meeting, which was held on July 22. In the course of that

meeting, Kable’s bargaining representatives caucused, and a

decision was made to announce the termination of the

rotogravure preparatory operations. An announcement to that

effect was made to the union representatives, when the

meeting resumed, by Kable’s chief negotiator, who stated that

the company would begin phasing out certain opera\.ons im-

mediately but offered to bargain on the effects of termination.

The parties met again on August 5, at Kable’s request, to

discuss the effects of the phase out. On that occasion, the com-

pany also asked union representatives for any new substantive

proposals. At a bargaining session held the next day, the Union

presented and explained their new substantive proposals,

which the company rejected after a 1-hour caucus as “too little

too late.”

3 The following cases provide background on this aspect of the

far-ranging dispute between Kable and the Union: Mount Morris

Graphic Arts International Union Local No. 91—P (G.A.1.U.)

(Blackhawk Engraving Co.), 219 NLRB 1030 (1975), affd. sub nom.

Blackhawk Engraving Co. v. N.L.R.B., 540 F.2d 1296 (C.A. 7,

1976). Graphic Arts International Union (G.A.1.U.) Local No. 277;

and Graphic Arts International Union, AFL-CIO (S&M

Rotogravure Services, Inc.), 219 NLRB 1053 (1975), and Local No.

245, Graphic Arts International Union, AFL-CIO (Graphicscans

Corporation), 220 NLRB 407 (1975), both cases affd. sub nom.

Kable Printing Co. v. N.L.R.B., 540 F.2d 1304 (C.A. 7, 1976).

A-25

Meanwhile, the company began to implement its

announced decision by contracting directly with several front-

end shops for the performance of rotogravure preparatory

work required in connection with customer contracts, albeit

with some difficulty, according to some company officials,

because of the effectiveness of the Union’s countermeasures.

Kable also began disposing of much of its rotogravure

preparatory equipment. By the end of January 1975, it had

lost its capacity to produce film positives as well as each

cylinder size required by its customers.‘

As matters thus stood, the Board again had occasion, in S &

M II, to determine whether the various subcontractors perfor-

ming rotogravure preparatory work were likewise allies of

Kable in the latter’s dispute with the Union. We so held, rejec-

ting the contention that Kable had permanently and ir-

revocably discontinued the rotogravure preparatory portion of

its business thereby converting the continuing controversy bet-

ween Kable and the Union herein to one no longer involving

“struck work” — namely, work which, but for the strike,

would have been performed by Kable’s striking employees. By

doing so, we rejected the notion that those employees had no

expectation of returning to the work involved in that con-

troversy. Specifically, the Board observed:

‘ We do not view Kable’s disposal of a substantial amount of its

rotogravure preparatory equipment as substantial evidence of its in-

tent to liquidate permanently that portion of its business. Indeed,

one aspect of the labor dispute between the parties concerned man-

ning requirements which, in the company’s view, discouraged the

introduction of new, more technically advanced equipment, consis-

tent with its declared objective announced by Western Publishing

Corporation, the parent company, in its 1974 third quarter report:

“We desired to expand this facility [Kable Printing], to install new

equipment and to move into new {ields of activity but these could

not be accomplished without a major revision of the existing labor

contracts.” [Emphasis supplied. ]

5 Graphic Arts International Union, AFL-CIO; and Local # 277,

Graphic Arts International Union, AFL-CIO (S & M Rotogravure

Service, Inc.), 225 NLRB 1253 (1976) (then Chairman Murphy,

dissenting), affd. sub nom. Kable Printing Company v. N.L.R.B.,

545 F.2d 1079 (C.A. 7, 1976).

A-26

Kable concedes that it continues to perform and has

maintained the capacity to perform much of the work

here in question. However, it attributes its unactualized

intent to transfer permanently all of the controversial

rotogravure preparatory operations to subcontractors and

the performance of residual preparatory work as being

caused by the effectiveness of the Unions’ countermoves

which necessitates retention of a limited production

capacity. It asserts that the short duration of its

agreements with subcontractors and the lack of specifici-

ty are occasioned by the absence of those contractors’ pro-

ven ability, which also explains the “high profile” of

Kable’s so-called quality control personnel who were

engaged to oversee the work of the subcontractors. The

continued chroming and stripping of cylinders at Kable’s

facility and the marking up of proofs, which was

previously done by Kable’s striking employees, were ex-

plained for the most part as necessitated by a lack of sub-

contractor capability.

Accepting the foregoing assertions and explanations,

we are satisfied that Kable has not gone out of the

business of furnishing finished rotogravure work to its

customers. Significant in our view is the fact that,

throughout this controversy, Kable has maintained in all

its essential characteristics the same relationships with its

customers as it had previously, under contractual ar-

rangements which establish Kable as the sole producer of

its customers’ printed materials. In the beginning, Kable

authored arrangements, nominally betweerrits customers

and front-end shops, in an attempt to have the struck

work performed without drawing those shops into the

controversy as allies of Kable. Those efforts proved un-

successful. Thereafter, Kable dealt directly with the

front-end shops as subcontractors, while maintaining the

traditional form and content of its contracts with

customers. These contracts call for the production of

finished materials, and encompass all phases of the work

A-27

entailed in the production of same, including the

rotogravure preparatory work, printing, binding, and

distribution. Clearly, by so contracting, Kable assumes

liability for any failure in contract performance. It can

hardly be said in such circumstances that Kable, which

continues to contract for the performance of rotogravure

preparatory work with customers seeking this service and

stands ready to assume the risks attendant upon failure to

perform such contracts, has hired additional engravers

for quality control purposes, and continues to chrome

and strip cylinders and to mark up proofs, has per-

manently gone out of the rotogravure preparatory por-

tion of its business. It still sells and furnishes rotogravure

services and products to its customers. The fact that it has

determined to subcontract all or substantially [all] of the

rotogravure production work does not alter the fact that

it is the work of the striking employees that has been con-

tracted out. The fact that the decision to do so, and to do

so on a permanent basis, was a good-faith business deci-

sion necessitated in part or in whole as a response to con-

ditions growing out of the Unions’ strike in support of

their refusal to accept Kable’s bargaining proposais con-

cerning terms and conditions under which such work

would be performed by Kable’s employees, can hardly

take it out of the category of struck work, at least during

the time the labor dispute between Kable and

Respondents continues [footnotes omitted].°

Since our supplemental decision in § & M II, certain

additional facts have come to light. The record herein

reveals that Kable sold or otherwise removed most of its

rotogravure preparatory equipment and, as a result, does

not have the capacity to produce engraved cylinders at its

own plant. It also entered into long term contracts with

front-end shops which establish minimum production

~ 6 995 NLRB 1253, 1254.

A-28

levels and contain provisions for liquidated damages.

However, Kable continues to employ individuals who perform

some of the work which was done previously by the 113 strik-

ing employees, relating to the inspection and maintenance of

cylinders. This work includes chroming, dechroming, lacquer-

ing, dallicking (spot electroplating to erase images from small

areas), sanding and rubbing to remove scratches, plating and

grinding, and some handtooling, staging and spot reetching.

Moreover, Kable continues to solicit customers and enters into

contracts with them for the performance of services encom-

passing the entire rotogravure process, including film work,

cylinder engraving, correction, printing, and binding.

More recently, additional facts have been brought to light.

The record now shows that on February 1, 1977, George

Kaplan, vice president (manufacturing services) of Western

Publishing Corporation, the parent company, directed a

memorandum to Howard Anderson, Western’s treasurer, re-

questing an appropriation of funds in excess of $1,200,000 for

the purchase of a Helio-Klischograph cylinder-making system.

According to Kaplan, the increased capacity of this system, as

compared with the system formerly used by Kable, would

bring cylinder production up to Kable’s anticipated press

capacity, which was concededly measured by including a new

Motter press which had been ordered for Kable almost 1 year

before contract negotiations between Kable and the Union

foundered. Kaplan estimated production start-up time to be

8-'% months from the date of purchase. Significantly, Kaplan’s

request was made only 3 weeks after Kable filed with this

Board its brief in support of the instant petition, in which it

represented unequivocally, as it had since S & M II,’ that a

decision had been reached to discontinue rotogravure

preparatory operations permanently, including cylinder mak-

ing.

Indeed, funds for the purchase of this system were

7 See fn. 5, supra.

A-29

authorized and on April 4, 1977, Western announced its ac-

quisition, although stating that no decision had yet been made

as to its intended location.® In , -seagpRRaR Gerald J.

Slade, Western’s chairman and pfésident, is quoted as stating

that the Helio-Klischograph, representing the very latest in

graphic arts technology,

. . . plus Kable’s extensive printing capacity, will enable

Western’s Commercial Products sales force to pursue new

business since they will now be in an excellent position to

assure present and prospective rotogravure printing

customers that Western can supply all their cylinder-

printing needs regardless of time requirements. [Em-

phasis supplied. ]

Slade also noted that:

The addition of this new equipment will enhance con-

siderably Western’s already highly-diversitied commer-

cial printing capabilities by affording us the opportunity

to increase penetration in the gravure catalog and

publications markets. It also opens the door to the

substantial tabloid market.

These remarks demonstrate that the acquisition of the Helio-

Klischograph fulfills, precisely and in the only way

® We view with some suspicion this caution on the part of Western

to announce the intended location of the Helio-Klischograph.

Western representatives conceived of two possibilities: Kable,

located at Mount Morris, Illinois, or at a proposed new film center

to be built at a yet undetermined site somewhere in the mid-South.

However, it was conceded that all cylinders, which weigh approx-

imately 2000 pounds each, were for use exclusively on Kable’s

presses, that time is a critical factor in the performance of

rotogravure preparatory work, and that in the correction process,

which is a part of this work, it might be necessary to move cylinders

several times between Kable’s press area, where the proofing is

done, and the cylinder-producing area, where corrections are made.

Kable was the logical choice and that choice was ultimately an-

nounced.

A-30

possible, Western’s business objectives as previously

determined and set forth in its 1974 third quarter report.°

Thereafter, during the week of September 26, 1977, union

pickets noted maior construction activity within Kable’s

cylinder-engraving area. On September 28, Kable announced

that it had been selected by Western to operate the Helio-

Klischograph, which was scheduled to reach the Kable plant

in October for installation.

Based on the above facts, we conclude, contrary to Kable’s

assertion, that at no time relevant herein did Kable intend to

abandon permanently its rotogravure preparatory operations.

Kable’s substantial lack of candor in this regard, as evidenced

both by its continued insistence on January 11, 1977, that it

had done so at a time during which we can reasonably infer

that its representatives were actively investigating the ad-

visability of obtaining a Helio-Klischograph and, secondly, by

delaying the announcement that Kable, the only plausible

operator, had been “selected” for that purpose, leads us to con-

clude otherwise. We also note that this cylinder-engraving

system is admittedly the only known means by which cylinder

capacity can match Kable’s anticipated press capacity, which

was in fact planned prior to the company’s first suggestion that

it would permanently abandon the rotogravure preparatory

portion of its business. Indeed, after examining all the

evidence pertaining to the acquisition of the Helio-

Klischograph in the light of Western’s admitted long-term

business objectives, as reported in 1974, we conclude that

Kable intended at all times herein relevant to continue perfor-

ming rotogravure preparatory work as the only means by

which to achieve those business objectives to which it was

unalterably bound.'°

° See fn. 4, supra.

10 It would indeed be the unusual case in which the intent of an

adverse party could be proven by disoct evidence. Intent is subjec-

tive and in many cases can be proven only by the use of circumstan-

A-31

In these circumstances and at this stage of the instant pro-

ceeding, we deem it inequitable and unjust to permit Kable to

use the very evidence it withheld for so long to disenfranchise

the striking employees, by asserting that its new cylinder-

engraving system extinguishes any reasonable expectancy of

future employment on the part of those employees."!

Moreover, even if we were to have found that Kable per-

manently’ discontinued the production of rotogravure

cylinders, as it had announced, we would not reach a different

result. In this respect Kable contends, as previously

mentioned, that, as a result of its decision to depend on outside

suppliers to furnish such cylinders as are required, the jobs of

the 113 striking employees were permanently abolished and,

therefore, those employees are not eligible to vote in any elec-

tion herein directed. We disagree.

Concededly, where the jobs of economic strikers have been

eliminated for economic reasons, those strikers may forfeit

their status as employees for voting purposes under Section 9

justification warranting such forfeiture cannot be predicated

wholly on considerations flowing from the strike itself. In this

case, it is clear that Kable evidenced no intention to abolish its

rotogravure preparatory operations prior to the onset of the

strike. Indeed, the labor dispute between Kable and the

Union, which precipitated the strike, arose over the terms and

conditions of employment applicable to individuals engaged

cial evidence. Furthermore, in analyzing the evidence, the Board is

free to draw any reasonable inference. See, e.g., N.L.R.B. v.

Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8, 1965).

!! Board consideration of this case was delayed for almost 1 year

pending resolution of blocking charges in a number of related unfair

labor practice cases which arose, in part, as a result of the events

described above. We were administratively advised on September

28, 1978, that no charges remain as a bar to our Decision herein.

\2 See Gulf States Paper Corporation, 219 NLRB 806 (1975).

—

A-32

in that very work. Only after the strike proved effective, did

Kable seek to establish alliances with front-end shops, first in-

directly, and later, directly, in order to preserve the integrity

and the traditional form of its contracts with customers and to

avoid the economic impact of the strike. Such economic con-

siderations, which were generated by the effectiveness of the

strike itself, are insufficient, in our view, to justify disenfran-

chising strikers who are otherwise eligible to vote in a unit

which continues to perform much of the work manifestly

within its jurisdiction.

Based on the foregoing, we are of the opinion that the ap-

proximately 113 economic strikers in this case remain

employees for the purpose of voting in the election we shall

direct.

Kable also contends that the six individuals currently perfor-

ming inspection and maintenance work on its cylinders and

the cylinder scheduler are entitled to vote in any election

herein directed. The Union, on the other hand, asserts that

they are not. The Union would exclude cylinder maintenance

operatives Webber, Hildebrandt, and Marshall as temporary

employees. The record in this respect reveals that Webber and

Hildebrandt were reassigned as cylinder maintenance

operatives by Kable in January 1975. According to Webber,

there was no discussion concerning the permanency of the

transfer. Hildebrandt, on the other hand, was advised that his

assignment as a cylinder maintenance operative was tem-

porary. Marshall, a janitorial foreman who had no prior

rotogravure preparatory experience, merely “assumed” that

his reassignment as a cylinder maintenance operative in

September 1974 was temporary. All three individuals have,

since their respective assignments, been continuously

employed as operatives, performing duties admittedly within

the work jurisdiction of the unit represented by the Union and

herein found appropriate. Further, there is no indication of

any impending change in the work assignments of these in-

dividuals.

A-33

The Board has held that replacements for economic strikers

are presumed to be permanent employees and eligible to vote

unless the party challenging their eligibility status establishes

by affirmative objective evidence that the replacements were

employed on a temporary basis.'* In our view, the foregoing

facts do not rebut that presumption. Accordingly, we find that

Webber, Hildebrandt, and Marshall are permanent employees

who are eligible to vote in the election herein directed.

The Union also contends that quality control engineers In-

contro and Kaville should be excluded from the unit as

managerial or professional employees. These individuals in-

spect and mark up proofs; perform the necessary maintenance

work on the corrective materials that have been applied to the

cylinder surfaces by the suppliers, including lacquering,

dallicking, rubbing, and, occasionally, staging and reetching.

They also assist in the handling and moving of cylinders and in

chroming and dechroming. Like the cylinder maintenance

operatives, quality control engineers are salaried. However,

unlike the operatives, they are treated as exempt from the

overtime provisions of the Fair Labor Standards Act, receive a

higher rate of pay, are paid biweekly rather than weekly, and

receive more liberal vacation benefits. This distinction, the

Union contends, renders quality control engineers ineligible to

vote in any unit election. We disagree.

Section 2 (12) (a) of the Act defines professional employees

as those whose work is predominantly intellectual and varied,

involves the exercise of discretion and judgment, cannot be

standardized in the output produced or the result accom-

plished, and requires knowledge of an advanced type in a field

of science or learning customarily acquired by a prolonged

course of specialized intellectual instruction and study in an

institution of higher learning. It is clear from the foregoing

that the work performed by Incontro and Kaville does not fall

within this definition. Neither do these individuals formulate or

'3 Pacific Tile and Porcelain Company, 137 NLRB 1358 (1962).

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effectuate management policies by expressing and making

operative the decisions of their employer; nor do they have

discretion in the performance of their jobs, independent of

their employer’s established policy, thus excluding them from

the unit as managerial employees.'* Accordingly, we shall

allow both Incontro and Kaville to vote in the election herein

directed.

The Union also asserts that McKeone, another quality con-

tre' engineer, should be excluded from the unit as a profes-

sional employee. Among other things, McKeone assists in

cylinder repair and correction, proof markup, and in the in-

spection of offset plates and negatives. However, his principal

responsibility involves the testing and analysis of chemical

solutions, using a standard analytical chemical procedure. He

alone is authorized to perform such tests. Although McKeone

has a baccalaureate degree in chemistry and has taken

postgraduate courses in analytical chemistry, it does not ap-

pear that this educational background is a prerequisite to per-

forming such work. Indeed, McKeone testified that “techni-

cians in laboratories all over the country do these routine tests”

and that others at Kable could be trained to perform the work

in question. Further, it is uncontested that prior to the strike,

the individuals who performed these tests were unit employees

represented by the Union. In these circumstances, we find

that, although McKeone is paid approximately one-third more

than the other quality control engineers for the performance of

work which concededly requires a greater degree of

knowledge and skill, he is not a professional employee and thus

disqualified from voting in the election.

The Union also asserts that Hollinger, the scheduler, should

4 N.L.R.B. v. Bell Aerospace Company, Division of Textron,

Inc., 416 U.S. 267 (1974); Eastern. Camera and Photo Corp., 140

NLRB 569 (1963); Palace Laundry; Dry Cleaning Corporation, 75

NLRB 320 (1947). Cf. Sutter Community Hospitals of Sacramento,

Inc., 227 NURB 181, 193 (1976).

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be excluded from the unit. Hollinger coordinates the move- —

ment of cylinders and the activities of the department with the

pressroom, the outside suppliers of rotogravure preparatory

services, and the cylinder makers. Occasionally, during peak

periods, he may assist in the boxing, unloading, and moving of

cylinders, which is concededly unit work. The scheduling

functions performed by Hollinger are not included within the

work jurisdiction of the historical unit which the parties

stipulate to be appropriate, and which we so find, nor were

those functions previously undertaken by any member of the

aforesaid unit. In these circt:mstances, we agree that Hollinger

should be excluded from the unit.

Accordingly, in view of the foregoing, we shall direct an

election by secret ballot in the following unit of employees,

which we find to be appropriate for the purposes of collective

bargaining within the meaning of the Act:

All employees performing any of the following work: all

work, processes, operations and productions directly

related to lithography, offset (including dry or wet), pho-

toengraving, intaglio, and gravure methods of printing

(excluding production presswork) employed by the

Employer at its plant located at 404 N. Wesley Avenue,

Mt. Morris, Illinois; but excluding all office clerical

employees, professional employees, guards and super-

visors as defined in the Act and all other employees.

DIRECTION OF ELECTION

An election by secret ballot shall be conducted among the

employees in the unit found appropriate, as early as possible,

but not later than 30 days from the date below. The Regional

Director for Region 33 shall direct and supervise the election,

subject to the National Labor Relations Board Rules, Series 8,

as amended. Eligible to vote are those in the unit who were

employed during the payroll period ending immediately

before the date below, including employees who did not work

during that period because they were ill, on vacation, or

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temporarily laid off. Also eligible are employees engaged in an

economic strike which commenced less than 12 months before

the election date and who retained their status as such during

the eligibility period and their replacements. Also eligible are

the approximately 113 employees here involved who have

been engaged in an economic strike which commenced more

than 12 months prior to the election date and who retained

their status as such during the eligibility period. Those in the

military services of the United States may vote if they appear

in person at the polls. Ineligible to vote are employees who

have quit or been discharged for cause since the designated

payroll period; employees engaged in a strike who have been

discharged for cause since the commencement thereof and

who have not been rehired or reinstated before the election

date; and employees engaged in an economic strike which

commenced more than 12 months before the election date and

who have been permanently replaced.'® Those eligible shall

vote whether or not they desire to be represented for

collective-bargaining purposes by Local 91—P, Graphic Arts

International Union, AFL-CIO.

Dated, Washington, D.C. September 29, 1978

John H. Fanning, Chairman

John A. Penello, Member

National Labor Relations Board

(seal)

'5 In order to assure that all eligible voters may have the oppor-

tunity 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 (1966); N.L.R.B.

v. Wyman-Gordon Co., 394 U.S. 759 (1969). 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 33 within 7 days of

the date of this Decision and Direction of Election. The Regional

Director shall make this list available to all parties to the election.

No extension of time to file this list shall be granted by the Regional

Director except in extraordinary circumstances. Failure to comply

with this requirement shall be grounds for setting aside the election

whenever proper objections are filed.

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MEMBER MURPHY, dissenting:

Once again I decline to take the path followed by my col-

leagues which, as I have long feared, has now led inexorably to

a result totally unsupportable by fact, law, or reason.

I disagree with my colleagues’ assessment of recent events as

proving that Kable never intended to abandon permanently its

rotograure preparatory operations. Indeed, the evidence

demonstrates that management’s recent decision to institute

the operational changes here in question was made in response

to changing circumstances, both internal and external, and

only after Kable had adhered to its initial decision to subcon-

tract permanently rotogravure preparatory work for nearly

2-2 years. There is no evidence tending to show that when the

company announced its initial decision in July 1974, it did so

falsely or in bad faith.

My colleagues make much of what they infer to be Kable’s

lack of candor in January 1977, when funding was first re-

quested for the purchase of the Helio-Klischograph. By thus

building inference upon inference, they impute to Kable a hid-

den motive behind its initial announcement and conclude that

a decision to abandon permanently the work in question had

never taken place. I do not agree with that conclusion which

proceeds on the erroneous notion that once a business decision

is reached it must move along an unalterable course without

regard to changing circumstances or, otherwise, become

suspect.

Moreover, I cannot, with them, countenance the perpetua-

tion of a phantom unit of employees and subvert the Board’s

processes by holding an election among individuals who, hav-

ing struck their Employer more than four years ago, have long

since been lawfully advised that the services they withheld

were no longer needed, as those services had been

permanently and irrevocably subcontracted to other firms

willing to undertake the work. As I stated in an earlier dissent:

The labor dispute between Kable and employees

represented by Local 91—P effectively ran its course

A-38

when Kable succumbed to the economic pressures caused

by the strike which followed a clash of equally im-

placable negotiating objectives. Kable capitulated when

paralysis of an integral part of its production process

threatened the Company’s very existence as an economic

entity. Not all capitulations end in a realization of the op-

ponent’s objectives. Here, Kable’s only feasible course of

action was to discontinue rotogravure preparatory opera-

tions, subcontract that work to others, and integrate the

work thus performed into its remaining printing opera-

tions. There is no allegation that the decision to subcon-

tract was unlawful. Indeed, the Administrative Law

Judge specifically found that Kable’s decision to subcon-

tract was made in good faith based upon legitimate

business considerations and not as a bargaining stratagem

to impose its will in the dispute with employees. Follow-

ing Kable’s decision, the individuals represented by the

Union no longer had a reasonable expectancy of doing

work which was, in fact, no longer done by the Com-

pany.!®

This, in my opinion, terminated the “strikers’ ” interest in the

unit here in question. The labor dispute thus developed into

something far different from what it had been earlier when

Kable, reacting immediately to the strike, made arrangements

with allies for the continuation of the struck work through its

customers, thereby temporarily displacing members of the

striking unit. Indeed, I joined with my colleagues and found

‘6 Graphic Arts International Union, AFL-CIO; and Local # 277,

Graphic Arts International Union, AFL-CIO (S & M Rotogravure

Service, Inc.), 222 NLRB 280, 283, remanded by unpublished Order

sub nom. Kable Printing Company v. N.L.R.B., Case 76—1038

(C.A. 7, 1976), supplemental Decision of the Board, 225 NLRB 1253

(1976), then Chairman Murphy dissenting, affd. 540 F.2d 1304

(C.A. 7, 1976).

A-39

alliances in those cases.'? It is, however, in the present cir-

cumstances, a mockery to say that the economic strikers in-

volved had not been permanently replaced by the employees

of those subcontractors who have since entered into bona fide

transactions with Kable. My colleagues’ reliance upon Gulf

States Paper Corporation "® is therefore misplaced. In that case

the Board held that unreplaced economic strikers were entitled

to vote in an election to be held more than 12 months

after commencement of the strike as there was no showing that

their jobs were permanently eliminated or abolished. In asser-

ting their ineligibility, the employer merely argued that

because of economic conditions, it would have been forced to

lay off some of its employees due to a decrease in customer

orders. The Board rejected the notion that mere curtailment of

production due to economic conditions, or perhaps to the ef-

fectiveness of a strike, can be grounds for disenfranchising

otherwise eligible voters.'® I wholly subscribe to this view.

But this case is patently distinguishable. It does not involve

curtailed production, but rather, at the time herein relevant, a

total and permanent discontinuation of an operation

heretofore performed by an employer. A different rule should

apply, and, indeed, the Board has fashioned and applied such

a rule in the past.

17 Mount Morris Graphic Arts International Union Local No.

91—P (G.A.1.U.) (Blackhawk Engraving Co.), 219 NLRB 1030

(1975), affd. 540 F.2d 1296 (C.A. 7, 1976). See also Graphic Arts In-

ternational Union (G.A.I.U.) Local No. 277; and Graphic Arts In-

ternational Union, AFL-CIO (S & M Rotogravure Services, Inc.),

219 NLRB 1053 (1975), and Local No. 245, Graphic Arts Interna-

tional Union, AFL-CIO (Graphicscans Corporation), 220 NLRB

407 (1975), both cases affd. sub nom. Kable Printing Company v.

N.L.R.B., 540 F.2d 1304 (C.A. 7, 1976).

'8 219 NLRB &06 (1975).

18 See also Globe Molded Plastics Company, Inc., 200 NLRB 377

(1972).

A-40

In Meridian Plastics, Inc.,®° the Board held that economic

strikers who were not recalled to work when their jobs were

eliminated by the sale or lease of equipment and the subcon-

tracting of certain operations after the strike started, were in-

eligible to vote in the election therein directed. My colleagues

point to no case where, in similar circumstances, a contrary

result obtained, and none is likely to be found.*! For the rule

itself is based on reason, as can be seen from the anomalous

result obtained herein, where the ghosts of a multitude who

have remained outside the employment relationship for more

than four years, and are likely to so remain, are allowed to

determine the mode of industrial life for the few who live

within it. For these reasons, I must dissent.

Dated, Washington, D.C. September 29, 1978

Betty Southard Murphy, Member

NATIONAL LABOR RELATIONS

BOARD

20 108 NLRB 203 (1954).

2! Intervening amendments to the National Labor Relations Act,

affecting voter eligibility, warrant no departure from the rule ap-

plied in Meridian. Indeed, following enactment of The Labor-

Management Reporting and Disclosure Act of 1959 (Public Law

86—257, 86th Congress), the Board cited Meridian favorably,

evidencing the continued viability of the holding therein. See W.

Wilton Wood, Inc., 127 NLRB 1675 (1960).

A-41

APPENDIX B

STATUTES INVOLVED

29 U.S.C. §159 (c) (3)

No election shall be directed in any bargaining unit or any

subdivision within which, in the preceding twelve-month

period, a valid election shall have been held. Employees

engaged’ in an economic strike who are not entitled to

reinstatement shall be eligible to vote under such regulations

as the Board shall find are consistent with the purposes and

provisions of this Act in any election conducted within twelve

months after the commencement of the strike... .

29 U.S.C. §160 (e)

The Board shall have power to petition any court of appeals

of the United States, or if all the courts of appeals to which ap-

plication may be made are in vacation, any district court of

the United States, within any circuit or district, respectively,

wherein the unfair labor practice in question occurred or

wherein such person resides or transacts business, for the en-

forcement of such order and for appropriate temporary relief

or restraining order, and shall file in the court the record in the

proceedings, as provided in section 2112 of title 28, United

States Code. Upon the filing of such petition, the court shall

cause notice thereof to be served upon such person, and

thereupon shall have jurisdiction of the proceeding and of the

question determined therein, and shall have power to grant

such temporary relief or restraining order as it deems just and

proper, and to muke and enter a decree enforcing, modifying,

and enforcing as so modified, or setting aside in whole or in

part the order of the Board... . . The findings of the Board

with respect to questions of fact if supported by substantial

evidence on the record considered as a whole shall be con-

clusive. ... The Board may modify its findings as to the

facts, or make new findings, by reason of additional evidence

so taken and filed, and it shall file such modified or new find-

ings, which findings with respect to questions of fact if sup-

ported by substantial evidence on the record considered as a

whole shall be conclusive... .

A-42

29 U.S.C. §160 (f)

Any person aggrieved by a final order of the Board granting

or denying in whole or in part the relief sought may obtain a

review of such order in any circuit court of appeals of the

United States in the circuit wherein the unfair labor practice

in question was alleged to have been engaged in or wherein

such person resides or transacts business, or in the United

States Court of Appeals for the District of Columbia, by filing

in such court a written petition praying that the order of the

Board be modified or set aside. A copy of such petition shall be

forthwith transmitted by the clerk of the court to the Board,

and thereupon the aggrieved party shall file in the court the

record in the proceeding, certified by the Board, as provided

in section 2112 of title 28, United States Code. Upon the filing

of such petition, the court shall proceed in the same manner as

in the case of an application by the Board under subsection (e)

of this section, and shall have the same jurisdiction to grant to

the Board such temporary relief or restraining order as it

deems just and proper, and in like manner to make and enter a

decree enforcing, modifying, and enforcing as so modified, or

setting aside in whole or in part the order of the Board; the

findings of the Board with respect to questions of fact if sup-

ported by substantial evidence on the record considered as a

whole shall in like manner be conclusive.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.