Petition for Writ of Certiorari — National Posters, Inc. v. National Labor Relations Board

Supreme Court brief1990

Ask Donna

What actually matters in this document.

Text

E Supreme Court, U.S, |

89-914 |.

& as DEC 11 1989

=a JOSEPH F. SPANIOL, UR,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

NATIONAL POSTERS, INC., AND NATIONAL LITHO,

A DIVISION OF NATIONAL POSTERS, INC.,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MAURICE BASKIN *

VENABLE, BAETJER, HOWARD

& CIVILETTI

1301 Pennsylvania Avenue, N.W.

Suite 1200

Washington, D.C. 20004

(202) 662-4300

Attorneys for Petitioner

Date: December 11,1989 * Counsel of Record

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

ul o—.

= = > i S ~~ a — ~~ —_ ane rs a res -

QUESTIONS PRESENTED

1. Whether This Court Should Resolve a Conflict

Within the Circuits Concerning the Proper Standard for

the Enforcement of Bargaining Orders Issued by the

National Labor Relations Board, Where the Board Has

Failed to Consider Or Properly Address the Effects of

Changed Circumstances Resulting From the Board’s Own

Unexcused Delays In Processing A Case.

2. Whether the Board’s Bargaining Order in the Pres-

ent Case Should Be Enforced.

(i)

LIST OF PARTIES

The present Petitioner, Nationa] Posters, Inc. and

National Litho, a Division of National Posters, Inc., was

party to a final judgment of the United States Court

of Appeals for the Fourth Circuit from which certiorari

is being sought.

In National Posters, Inc. v. NLRB, 855 F.2d 175 (4th

Cir. 1989) (National Posters II), and 720 F.2d 13858

(4th Cir. 1983) (National Posters I), National Posters,

Inc. was a petitioner and cross-respondent and the Na-

tional Labor Relations Board was a respondent and cross-

petitioner. Local 61-C of the Graphic Communications

international Union intervened in National Posters II.

1 Pursuant to Rule 28.1 Petitioner National Posters, Inc. states

that it is affiliated with National Litho, National Graphics, Inc.

National Printing Prep, Inc., and National Decal, none of which are

publicly held or publicly traded corporations,

TABLE OF CONTENTS

QUESTIONS PRESENTED WWW... eeeeee eee eeeceeeeeeceeeseees

Se elas cceninseneninncreceanisierwsrsokeenmstnnssnbohnenns

REASONS FOR GRANTING THE WRIT ....................

I. This Court Should Resolve a Conflict Within the

Circuits Concerning the Proper Standard for

the Enforcement of Bargaining Orders Issued

By the National Labor Relations Board, and

Should Set Aside the Bargaining Order Here,

Where the Board Has Failed To Consider or

Properly Address the Effects of Changed Cir-

cumstances Resulting From the Board’s Own

Unexcused Delays in Processing a Representa-

tion Case ............... elcleecdeliaes RS Cand

A. The Decision of the Court Below Conflicts

With Numerous Holdings in Other Circuits

Which have Declined to Enforce Bargaining

Orders in Similar or Less Compelling Cir-

ALE RE a SRE NSS Es 79 Peat bc a

B. The Court Below has Misapplied the Hold-

ing of this Court in NLRB v. Financial In-

stitution Employees and has Erroneously

Failed to Considered Principles of Equity in

Enforcing the Board’s Order ..........................

C. This Case Raises an Important and Continu-

ing Issue in a Posture Which is Ripe for

Resolution by This Court ........0.0000000000000000...

ae aide cimanchipapenensieniemasesih

a secant nnbaniaocnlce

TABLE OF AUTHORITIES

Cases Page

American Cable Systems, Inc., 427 F.2d 446 (5th

Cir. 1970), cert. denied, 400 U.S. 957 (1970)... 13

American Federation of Labor v. NLRB, 308 U.S.

Sie aaa ar IPAS econo in Ane <= ce 21

Bridgeport Fittings, Inc. v. NLRB, 877 F.2d 180

CO Si I oa ciiccsceceestredacsentncaapeaienemmmaisnaiates 17

Brooks v. NLRB, 348 U.S. 96 (1954)......0000..200000.... 13, 18

Clark’s Gamble Corp. v. NLRB, 422 F.2d 845 (6th

Cir. 1970), cert. denied, 400 U.S. 868 (1970)... 18, 16

Ford Motor Co. v. NLRB, 305 U.S. 364 (1939)... 19

Local 28, Sheetmetal Workers Int’! Assn. v. EEOC

I ir Ce anaeawiicsacasesiccoeiactestnaecee 7

Mosey Mfg. Co. v. NLRB, 701 F.2d 610 (7th Cir.

sais cat atin once sadinceab aed ceaaadanncimamenincaiiadeis 13, 18

National Posters, Inc. v. NLRB, 720 F.2d 1358

CI FN: SII sosccscics cs ces agessesushaaeadiieieentiactounoans 1, 4, 6, 7, 10

National Posters, Inc. v. NLRB, 885 F.2d 175

CI A IED sack sscaccsesscttinisesipubncieaeinepacabiaitabaaitci akan 1, 4, 10

NLRB v. Conn. Foundry Co., 688 F.2d 871 (2d

(I ce Se ea ee 13, 15, 18

NLRB v. Financial Inst. Employees, 475 U.S. 192

| * TRIAS EEO Ras aarnelea ceeds sb res Sa nei Pema 12, 18, 19, 20

NLRB v. H.P. Hood, Ine., 496 F.2d 515 (1st Cir.

I icc ni ccusmpaccsdn coh dissed cheereiamaateaiicagiaasiadiebanadhiieaenaere 13, 14

NLRB v. Kaiz, 869 U.S. 736 (1962)........................ 18

NLRB v. Koenig Iron Works, 856 F.2d 1 (2d Cir.

» EA ERA EI IP MT Maat a cea a 21

NLRB v. Marion Rohr Corp., 714 F.2d 228 (2d

I ia eae 18

NLRB v. Nixon Gear, Inc., 649 F.2d 906 (2d Cir.

|e eth ELS at AB RE RR Ar Er LRN OAR AS EERIE 13

NLRB v. Pace Oldsmobile, 739 F.2d 108 (2d Cir

BO Sic sich hosctiatane wilted sda bacentaalhcs duit cpiliairiaeadbldaade swedeus 18

NLRB v. Ship Shape Maintenance Co., Inc., 474

pb ei 2 oa & SR | |, | SRaRUMNeCemn cree en eee 16

NLRB v. Star Color Plate Service, 843 F.2d 1507

(2d Cir. 1988), cert. denied, 109 S. Ct. 81

TABLE OF AUTHORITIES—Continued

Page

NLRB v. Triplex Mfg. Co., 701 F.2d 703 (7th Cir.

| OR IMS Merete nari ae ant COAST FRR Clr EF aby Sry 13, 14, 18

NLRB v. Western Temporary Services, 821 F.2d

i Be Ft RR | PRPC me ere irre see nnanks 17

Peoples Gas System, Inc. v. NLRB, 629 F.2d 35

CEE a, SII sracesstessdcctucchcanitiiasineninetescnitea thie 13, 15, 17

Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146

f. _ |) RRC resents gt SEH CBR AP SINT 21

St. Regis Paper Co. v. NLRB, 674 F.2d 104 (1st

OR I stich cccietsitiininrprtaeichciecn sabia eee ate 14

St. Regis Paper Co., 285 NLRB No. 39 (1987)....9, 14-15

Statutes

Se AAG Se NE OP ccntirinsnicenasedebonacecereenbndcionamiesooneaiaa 1

Fr ee Ey isiagieteocereen cere enctaseacipensanonmemnaddat 2

RP Se eh , SRR Oemeiee eestor een 2

Sr SNe te IE aissicihrecnencnevicenscinn sch neccincbahedideabeoanrtenine 2

ee ae Oe i ietninacsinttirnecccrcseicinnsspsoeesrnnine 3, 13

FF EE er adctitrsesccncttnioccttecaneaacnpnblacenadamanae 3

Be a i IONE Faceted orcessoceciinccncecpendadsduomigiansnsiuianii 4

Other Authorities

1B J. Moore, J. Lucas & T. Currier, Moore’s Fed-

Gvel Frectiee CHG TEE: TOD ncccveniccenccecicssenrceesns 7

IN THE

Siytreme Court of the United States

OCTOBER TERM, 1989

No.

NATIONAL POSTERS, INC., AND NATIONAL LITHO,

A DIVISION OF NATIONAL POSTERS, INC.,

. Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OPINIONS BELOW

Certiorari is being sought from a final judgment of

the United States Court of Appeals for the Fourth Cir-

cuit. The decision of that court dated September 13,

1989 (National Posters II), is reported at 885 F.2d 175.

(App. la). A previous decision of the same court in the

same matter (National Posters I) is reported at 720

F.2d 1358 (4th Cir. 1983). (App. 14a).

JURISDICTION

The United States Court of Appeals for the Fourth

Circuit entered final judgment in this case on September

13, 1989. Jurisdiction to hear this case is conferred on

this Court by 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS

The following provisions are pertinent to this case:

29 U.S.C. § 157 provides in pertinent part:

Employees shall have the right to self-organiza-

tion, to form, join, or assist labor organizations, to

bargain collectively through representatives of their

own choosing, and to engage in other concerted ac-

tivities for the purpose of collective bargaining or

other mutual aid or protection, and shall also have

the right to refrain from any or all of such activi-

ties...

29 U.S. § 158(a) (5) provides:

It shall be an unfair labor practice for an em-

ployer—(5) to refuse to bargain collectively with

the representatives of his employees, subject to the

provisions of Section 159(a) of this title.

29 U.S.C. § 159 provides in pertinent part:

(a) Representatives designated or selected for the

purposes of collective bargaining by the majority of

the employees in a unit appropriate for such pur-

poses, shall be the exclusive representatives of all

the employees in such unit for the purposes of col-

lective bargaining in respect to rates of pay, wages,

hours of employment, or other conditions of employ-

ment:

* * * *

filed, in accordance with such regulations as

may be prescribed by the Board

(B)(a) .. . the Board shall investigate

such petition and if it has reasonable cause

to believe that a question of representation

affecting commerce exists shall provide for

an appropriate hearing upon due notice.

3 See

29 U.S.C. § 160(c) provides in pertinent part:

The testimony taken by such member, agent, or

agency or the Board shall be reduced to writing and

filed with the Board. Thereafter, in its discretion,

the Board upon notice may take further testimony

or hear argument. If upon the preponderance of the

testimony taken the Board shall be of the opinion

that any person named in the complaint has engaged

in or is engaged in any such unfair labor practice,

then the Board shail state its findings of fact and

shall issue and cause to be served on such person an

order requiring such person to cease and desist from

such unfair labor practice, and to take such affirma-

tive action including reinstatement of employees with

or without back pay, as will effectuate the policies

of this subchapter: ...

29 U.S.C. § 160(e) provides in pertinent part:

Tne Board shall have power to petition any court

of appeals of the United States, or if all the courts

of appeals to which application 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 enforcement of such order and for appropri-

ate temporary relief or restraining order, and shall

file in the court the record in the proceedings, as

provided in section 2112 of Title 28. 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 ques-

tion determined therein, and shall have power to

grant such temporary relief or restraining order as

it deems just and proper, and 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.

29 U.S.C. § 160(f) provides in pertinent part:

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 United States court of appeals in the circuit

wherein the unfair labor practice in question was

alleged to have been engaged in or wherein such per-

son resides or transacts business, or in the United

States Court of Appeals for the District of Colum-

bia, by filing in such a court a written petition pray- —

ing 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. 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;...

STATEMENT OF THE CASE

This petition for writ of certiorari seeks plenary re-

view of the Fourth Circuit’s decision in National Posters,

Inc. v. NLRB, 885 F.2d 175 (4th Cir. 1989) (National

Posters II) (App. 1a), and 720 F.2d 1358 (4th Cir. 1983)

(National Posters I) (App. 14a). In National Posters II,

the Fourth Circuit denied a petition for review of a bar-

gaining order issued by the National Labor Relations

Board, eight years after the disputed election on which

the bargaining order was based. The Fourth Circuit

granted enforcement of the Board’s order, notwithstand-

ing the Board’s refusal to consider the effects of changed

circumstances resulting from the Board’s own unexcused

delays in processing the case.

‘nmienenihseiiniietaiaeeenii eaten

A. The Board’s Initial Failure To Hold a Post-Election

Hearing.

This action began on December 15, 1981, when the em-

ployees of National Posters, Inc., and National Litho (the

“Petitioner” or the “Company’’), voted in a secret ballot

election to decide whether they would be exclusively repre-

sented by Local 61 of the Baltimore Printing Pressman

and Assistants Union (“Local 61”). The principal issue

in the campaign was the Company’s decision to cut in-

surance benefits due to recent economic losses. The tally

of ballots showed that 24 employees voted for Local 61,

21 voted against the union and four ballots were chal-

lenged, a number sufficient to affect the results of the

election. (App. 3la).

Petitioner challenged the eligibility of one of the voters,

contending that he was ineligible due to his seasonal,

temporary status. Petitioner also filed objections to the

results of the election, contending that Local 61 had com-

mitted misrepresentations so serious as to improperly af-

fect the outcome of the election. (App. 3la). Specifically,

the Company alleged that in the week prior to the election,

Union representatives falsely told numerous employees

that the Company President had spent large sums of

money on gifts for his children, including the purchase of

a large farm for his daughter. Petitioner further alleged

that the Union had materially misrepresented its pension

plan and health and welfare benefits as well as the

amount of the union’s dues. The Petitioner supported its

allegations with sworn affidavits.

On March 16, 1982, without holding a hearing, the

Regional Director for Region 5 of the National Labor Re-

lations Board (the “Board”) issued a Report on Chal-

_ lenges and Objections. The Board overruled the Com-

pany’s challenge to the ballot of the allegedly seasoral,

temporary voter, notwithstanding the Company’s evidence

of the employee’s seasonal status. The Board also over-

oo 6

ruled the Company’s objections, without passing on the

truth of the Company’s evidence, finding that the allega-

tions were not sufficient to justify setting aside the elec-

tion. (App. 3la).

After opening two of the challenged ballots, the revised

tally became 25 to 22 in favor of Local 61, with the two

remaining ballots challenged by the Union left unopened.

Accordingly, on July 14, 1982, the Regional Director is-

sued a Certification of Representation to Local 61 for the

unit consisting of “all production and maintenance em-

ployees including truck drivers’ employed by the Peti-

tioner at its two plants. Petitioner refused to bargain in

order to test the validity of the certification. (App. 66a).

B. The Court of Appeals’ Remand.

Petitioner filed a Petition for Review of the Board’s

subsequent Bargaining Order with the United States

Court of Appeals for the Fourth Circuit. (App. 50a).

Petitioner contended, inter alia, that the Board’s failure

to hold a hearing or set aside the election on the misrep-

resentation issues deviated without explanation from es-

tablished Board law. Petitioner further argued that the

Board’s failure to hold a hearing on Petitioner’s chal-

lenged ballot was arbitrary and capricious.

The Court of Appeals agreed with Petitioner as to the

second issue and vacated the Board’s decision, finding that

the Board violated the Act by failing to conduct a hear-

ing on Petitioner’s challenge to the ballot of its temporary

worker. National Posters I, 720 F.2d 1358 (4th Cir.

1983). (App. 14a). With regard to the campaign mis-

representation issue, the court did not reach the question

of whether the Board misapplied its previous policy. By

the time the court heard the case, the Board had changed

its policy on election campaigns altogether, allowing either

side to commit misrepresentations with impunity. The

Court of Appeals permitted the Board’s retroactive ap-

plication of its new policy on misrepresentations to the

facts of this case. (App. 26a).

C. The Board’s Belated Hearing and Subsequent Unex-

cused Delay.

Pursuant to the Court’s remand, the Board ordered a

hearing on the issue of whether the temporary worker

should have been considered eligible to vote. (App. 14a).

The Board also ordered that the same hearing consider

the status of the two remaining challenged ballots. Said

hearing was held on June 12, 20 and 21, 1984, before the

Honorable Bernard Ries, Administrative Law Judge. On

November 23, 1984, Judge Ries ruled that the temporary

employee and one other challenged voter should be counted

as eligible voters while the remaining ballot should not be

counted. (App. 66a).

Petitioner filed timely exceptions to the judge’s decision.

The Board failed to act on these exceptions, however, for

approximately two-and-one-half years. Finally, without

any excuse or explanation for the delay, the Board affirmed

the judge’s findings concerning all challenged ballots on

February 4, 1987. National Posters, Inc., 282 NLRB No.

148 (1987). (App. 62a).

D. Post-Election Changes in the Union Seeking Repre-

sentation.

On or about July 1, 1983, the International Printing

and Graphic Communications Union (the “IPGCU”’), the

international governing body of Local 61, merged with the

Graphic Arts International Union (the “GAIU”’’) to form

the Graphic Communications International Union (the

2 Because the court in National Posters I remanded the case for

further proceedings, its retroactive application of the Board’s new

misrepresentation policy did not constitute a final judgment and is

subject to review by this Court in the present proceeding. See Local

28, Sheet Metal Workers’ International Assn. v. EEOC, 478 U.S.

421, 444, n.24 (1986); see also 1B J. Moore, J. Lucas & T. Currier,

Moore's, Federal Practice © 0.404 at 141 (2d ed. 1988).

“GCIU”). (App. 63a). Local 61 subsequently altered its

bylaws, officers, dues and office location, among other

things, and became Local 61-C of the GCIU (“Local

61-C”). (App. 119a). The Union failed to notify either

the Petitioner or the Board of the changes in its organiza-

tion and did not seek amendment of its certification.

After subsequently learning of these events, however,

Petitioner moved to reopen the record, contending inter

alia that the post-merger union lacked continuity with

the union on which the employees voted due to the sub-

stantial changes which had taken place at both the local

and international levels of the union. (App. 63a). The

Board granted Petitioner’s motion to reopen the record,

in part, in its Order of February 4, 1987, holding as

follows:

We find, in agreement with the [Petitioner] that a -

reopening of the record in this case is necessary to

determine if the merger between International Print-

ing and Graphics Union [sic], and Graphic Arts In-

ternational Union, so substantially changed Local

#61, as to raise a question concerning its continued

status as the certified bargaining representative of

the Petitioner’s unit employees.

(App. 68a). A hearing was held before Judge Ries on

July 29, 1987 on the union merger issue.

In the hearing, Petitioner presented additional evi-

dence of changes in the union’s local and international

structure, as well as the level of autonomy of the local

vis-a-vis the new international entity. Nevertheless, in

his Second Supplemental! Decision of February 11, 1988,

the judge found that “the 1983 merger of the Interna-

tional Unions did not cause a substantial change in the

identity of Local 61-C and a consequent lack of continuity

of representation by Local 61-C with respect to the | Pe-

titioner’s] employees in the certified unit.” (App. 156a).

He therefore recommended that the Board’s original

bargaining order be reissued.

E. Failure of the Board to Consider Evidence of Substan-

tial Change in the Bargaining Unit.

Petitioner filed exceptions to the judge’s second de-

cision and a second Motion to Reopen the Record, or in

the alternative, for Reconsideration, so as to present new

evidence of changes in the bargaining unit in light of the

Board’: recent decision in St. Regis Paper Co., 285 NLRB

No. 39 (August 10, 1987). (App. 119a). The Peti-

tioner’s evidence showed that 18 of the original 55 em-

ployees had left the bargaining unit since 1981, that the

total number of employees had expanded through new

hires to 137, and that only thirty-seven of the then cur-

rent 137 employees were employed at the time of the elec-

tion. In addition, none of the ten on-call employees em-

ployed at the time of the election worked any longer for

Petitioner. (App. 157a).

Petitioner further contended that the issues on which

the union won its disputed victory in 1981 were no

longer relevant to the existing complement of employees.

Finally, Petitioner argued that the present employees

should not be compelled to accept Local 61-C as their

exclusive representative based on a disputed vote by a

much smaller group of different employees pertaining to

a different union campaigning on different issues and

relying on material misrepresentations. (App. 119a).

Notwithstanding this evidence, on June 30, 1988, the

Board entered its Supplemental Decision and Order re-

jecting Petitioner’s contentions and refusing even to

consider the effect of changed circumstances on the em-

ployees’ choice of representative. (App. 50a). The Board

ordered that the Petitioner bargain with Local No. 61-C

and reissued its prior Order of December 10, 1982. On

August 22, 1988, the Petitioner filed a petition with the

Fourth Circuit to review and set aside the Orders of

the Board.

F. The Court of Appeals’ Final Decision.

On September 13, 1989, in National Posters II, the

Fourth Circuit granted enforcement of the Board’s order.

(App. la). The Court of Appeals found that the Board’s

findings with regard to the challenged ballot were sup-

ported by “substantial evidence’ and that the Union’s

- reaffiliation, in and of itself, had not so fundamentally

altered its identity as to raise a new question concern-

ing representation. ‘App. 7a, lla). Finally, the court

refused to require the Board to consider the Petitioner’s

proffered evidence of change in the bargaining unit re-

sulting from the Board’s own delay in processing the case.

(App. 13a).

With regard to the issue of unusual delay, the Court of

Appeals acknowledged that other circuit courts have de-

clined to enforce NLRB bargaining orders because of

such delay, attributable to the NLRB, in the resolution

of election disputes. (App. lla). The court further

conceded that “in some cases, courts have noted that

employee turnover during such delays may call into ques-

tion the continuing validity of close election results.”

(Id.). The court also recognized that in most of these

decisions, “the refusal to enforce bargaining orders was

justified on traditional principles of equity.” (Jd.). Fi-

nally, the court noted that “the NLRB’s disposition of

this case has been no model of administrative efficiency.

Almost two and a half years elapsed after the first hear-

ings on... voter eligibility and the NLRB’s decision.

3 Petitioner continues to challenge the correctness of each of the

lower court’s rulings, including those with regard to the challenged

ballot, the change in the union’s identity, and the unusual changed

circumstances resulting from the Board’s delay. In addition, con-

trary to the Court of Appeals’ assertion, Petitioner has not “‘aban-

doned” its claim from National Posters I that union misrepresenta-

tions unfairly prejudiced the election. (App. 3a, n.1). Rather, the

court improperly restricted Petitioner to bringing forward new

evidence sufficient to meet the criteria of the Board’s new, overly

permissive policy, which Petitioner has never claimed to possess.

No good reason for this delay has been offered by the

General Counsel.” (App. 12a, n.5).

Nevertheless, the Fourth Circuit held that the passage

of eight years and substantial employee turnover were

insufficient to deny enforcement of the Board’s order.

(App. 12a). Furthermore, the court expressly declined

to consider other equitable considerations present in this

case, despite the fact that courts in other circuits have

set aside NLRB bargaining orders in less egregious cir-

cumstances. (/d.).‘

REASONS FOR GRANTING THE WRIT

I. This Court Should Resolve a Conflict Within the Cir-

cuits Concerning the Proper Standard for the Enforce-

ment of Bargaining Orders Issued by the National

Labor Relations Board, and Should Set Aside the Bar-

gaining Order Here, Where the Board Has Failed to

Consider Or Properly Address the Effects of Changed

Circumstances Resulting From the Board’s Own Unex-

cused Delays In Processing A Representation Case.

This case involves enforcement of a bargaining order

issued by the National Labor Relations Board based on

a disputed representation election which took place eight

years ago. Because of the Board’s erroneous failure to

hold a hearing immediately following the election and its

subsequent two and one-half year delay in deciding the

case after a remand by the Court of Appeals, changed cir-

cumstances now exist under which enforcement of the

Board’s bargaining order would constitute a violation of

4 Among the factors not considered by the court below was the

extent to which the union’s electoral claim to majority status was

improperly dependent upon campaign misrepresentations. Also, the

court failed to consider whether the union’s new affiliation, even if

not sufficient in and of itself to raise a question of representation,

might constitute a sufficiently unusual circumstance in combination

with the other existing equitable factors, so as to justify denying

enforcement of the bargaining order.

the National Labor Relations Act. Specifically, massive

employee turnover and expansion of the bargaining unit,

combined with changes in the labor organization seek-

ing representation, and the tainted results of the original

election, raise a new question of representation. It can

no longer be said that a majority of the Petitioner’s pres-

ent employees wish to designate the present union as their

exclusive bargaining representative. Thus, the Board’s

bargaining order ignores or violates the wishes of Peti-

tioner’s employees in violation of the Act.

As is further demonstrated below, the Court of Ap-

peals’ decision conflicts directly with decisions in at least

six other circuits which have held that the Board is re-

quired to consider the effects of an unreasonable passage

of time and other equitable factors on the issuance of a

bargaining order. In addition, the court below reached

its holding by misapplying this Court’s decision in NLRB

v. Financial Institution Employees, 475 U.S. 192 (1986),

so as to preclude application of principles of equity to the

enforcement of Board bargaining orders, in further con-

flict with other courts. Finally, the court below mis-

apprehended the scope of the unusual changes and equita-

ble considerations affecting the bargaining unit in the

present case in reaching its erroneous result.

The effect of the Court of Appeals’ decision is to ignore

the Act’s fundamental goal of effectuating the wishes of

employees. In the guise of deterring alleged employer

intransigence in litigating post-election issues, the court’s

holding ignores the more important objective of imposing

an exclusive bargaining representative only on a work-

force whose majority desires such representation. In ad-

dition, the court’s decision fails to deter the Board from

engaging in similar inexcusable delays in the future.

It is vital that this Court act to resolve the conflict

within the circuits by recognizing that, at least in such

egregious and unusual circumstances as are present here,

enforcement of NLRB bargaining orders may not best

effectuate the policies underlying the Act. See 29 U.S.C.

§ 160(c).

A. The Decision of the Court Below Conflicts With

Numerous Holdings in Other Circuits Which have

Declined to Enforce Bargaining Orders in Similar

or Less Compelling Circumstances.

Courts of appeals in no fewer than six other circuits

have held that the Board is required to consider the ef-

fects of an unreasonable passage of time and other equita-

ble factors on the issuance of a bargaining order. Recog-

nizing the Act’s mandate that the wishes of the employees

themselves should be of paramount concern, these courts

have declined to enforce similar NLRB bargaining orders,

in direct conflict with the decision below. See Mosey Mfg.

Co. v. NLRB, 701 F.2d 610 (7th Cir. 1983); NLRB v.

Triplex Mfg. Co., 701 F.2d 703 (7th Cir. 1983); NLRB

v. Connecticut Foundry Co., 688 F.2d 871 (2d Cir. 1982) ;

NLRB v. Nixon Gear, lic., 649 F.2d 906 (2d Cir. 1981) ;

Peoples Gas System, Inc. v. NLRB, 629 F.2d 35 (D.C. Cir.

1980); NLRB v. H.P. Hood, Inc., 496 F.2d 515 (1st Cir.

1974) ; American Cable Systems, Inc., 427 F.2d 446 (5th

Cir. 1970), cert. denied, 4900 U.S. 957 (1970); Clark’s

Gamble Corp. v. NLRB, 422 F.2d 845 (6th Cir. 1970),

cert. denied, 400 U.S. 868 (1970).°

In Mosey Mfg. Co. v. NLRB, the Court of Appeals for

the Seventh Circuit declined to enforce a Board bargain-

ing order based upon a five and one half year delay fol-

lowing an election won by the union. There, as here,

the employer contended that the union’s victory was

tainted by union misrepresentations committed prior to

the election. There, too, the delay was caused primarily

5 See also Brooks v. NLRB, 348 U.S. 96 (1954), where, though not

presented with changed circumstances arising out of the Board’s

own delays, this Court affirmed that “unusual circumstances” could

justify a refusal to bargain even during the so-called “certification

year.” Id. at 98-99.

by the Board’s own indecision in resolving the post-

election dispute. The Court observed:

“In asking us to enforce its order the Board is ap-

pealing to our equitable powers [citation omitted].

. when a party asking a court to do equity has

strung out the proceedings to the point where the

Court cannot determine whether equitable relief

would achieve the legitimate purposes of the suit,

which in this case is to give a unit of [the employ-

er’s] workers the collective bargaining representative

of their choice, the court will withhold its assistance.

[citations omitted]. The best protection for these

workers’ freedom of choice would be a prompt new

election, which a remand would not accomplish.

Similarly, in NLRB v. Triplex Mfg. Co., 701 F.2d 703

(7th Cir. 1983), the Court of Appeals refused to enforce

a Board bargaining order or to remand the case for fur-

ther proceedings where “due to substantial employee

turnover in this relatively small unit, there is a serious

question as to whether a majority of current employees

desires representation by the union.” Jd. at 709. That

decision followed only a three-year delay by the Board.

Also directly on point, and in conflict with the decision

below, is NLRB v. H.P. Hood, Inc., 496 F.2d 515 (1st

Cir. 1974). There, the First Circuit Court of Appeals

found that a union had properly been certified after a

lengthy post-election dispute. The court nevertheless re-

manded to the Board for consideration of whether the

five year delay rendered bargaining inappropriate. The

court held: “[{WJle think fairness will be better served

than by immediately locking the parties into a lengthy

relationship on the basis of ancient events.” Jd. at 520.

See also St. Regis Paper Co. v. NLRB, 674 F.2d 104

(1st Cir. 1982), where the court similarly remanded a

long-delayed bargaining order for meaningful considera-

tion of changed circumstances.®

6 Following the First Circuit’s remand in St. Regis Paper Co.,

the Board agreed that the changes in the unit had been substantial

Two oft-cited cases in the Second Circuit have also

denied enforcement of Board bargaining orders under

similar circumstnaces. NLRB v. Connecticut Foundry

Co., 688 F.2d 871, 881 (2d Cir. 1982); and NLRB v.

Nixon Gear Inc., 649 F.2d 906, 914 (2d Cir. 1981). In

both of those decisions, the Second Circuit held that it

must “grant the relief that furthers the equitable prin-

ciples which govern judicial action”. NLRB v. Connecti-

cut Foundry Co., 688 F.2d at 881. Accordingly, the court

in both instances denied enforcement of NLRB bargain-

ing orders after disputed union electoral victories which

the Board had failed to resolve in an appropriate length

of time (4 years and 2 years respectively).

Another decision in conflict with the holding of the

court below is Peoples Gas System, Inc. v. NLRB, 629

F.2d 35 (D.C. Cir. 1980). There, the Court of Appeals

for the District of Columbia Circuit held that an em-

ployer who unlawfully withdrew recognition from a certi-

fied union should not be compelled to bargain with the

union after a five and one-half year delay caused by the

Board. The Court of Appeals held:

([Blargaining orders do not automatically flow from

a refusal to bargain if it is not clear that the em-

ployees desire the union as their representative. A

balance must be drawn in such cases between the

various purposes of the Act. For example, if the em-

ployer’s violation is deliberate and egregious enough,

the interest in deterrence of future violation may

override the employees’ wishes, especially if it is

likely that the workers’ rejection of the Union flows

from the company’s violations.

When the violation is less substantial and was com-

mitted in good faith the interest in deterrence is less

substantial as well. Correspondingly, the employees’

enough to render a bargaining order inappropriate, even though all

of the changes occurred after the union’s certification of majority

status. 285 NLRB No. 39 (1987).

rights to decide whether they want Union representa-

tion, and by which Union, should be given greater

weight. The Board should make findings as to the

likelihood of infringement of those rights and explain,

if it should conclude that a bargaining order is never-

theless necessary, why other remedies would not suf-

fice and why other purposes of the Act must outweigh

the employees’ rights.

629 F.2d at 47.

Finally, several court decisions have declined to en-

foree NLRB bargaining orders even where the employer

has committed egregious unfair labor practices not pres-

ent here. Thus, in Clark’s Gamble Corp. v. NLRB, 422

F.2d at 847, the Sixth Circuit set aside a bargaining or-

der after a two-year delay caused by the Board in ruling

upon unfair labor practices committed by the employer.

The court stressed the importance of determining and im-

plementing employee choice in the selection of an exclu-

sive bargaining agent and concluded that it would be con-

trary to the intentions of the Act to enforce a Board

order which did not take into account evidence of high

employee turnover. See also, NLRB v. Ship Shape Main-

tenance Co., Inc., 474 F.2d 434 (D.C. Cir. 1972), where

the Court held:

Where a remedial order has the primary effect of ne-

gating the rights of current employees rather than

furthering them, it defeats, rather than effectuates,

the policies of the NLRA. In the instant case, the

enforcement of the Labor Board’s proposed bargain-

ing order would impose representation upon a cur-

rent unit of employees, the vast majority of whom

were neither employed by the Company at the time

of its unfair labor practice violation nor meaning-

fully affected by its commission. Such enforcement

would ignore the fact that the NLRA expressly pro-

tects the right of employees to refrain from organiza-

tional activity if they so desire.

As contrasted with these cases in which the courts have

set aside NLRB bargaining orders, some court decisions

have reached contradictory results. But no court of appeals

has enforced an NLRB bargaining order involving the

combination of equitable factors existing in the present

case. Those factors include eight years of delay, sub-

stantial employee turnover, substantial expansion of the

bargaining unit itself, fundamental change in the union

seeking representation, a close election in which union

misrepresentations may have determined the outcome, the

failure of the Board to conduct a statutorily required

hearing, and subsequent delay in the Board’s decision of

the case. Thus, in Bridgeport Fittings, Inc. v. NLRB,

877 F.2d 180 (2d Cir. 1989), the court declined to set

aside a bargaining order where there had only been three

and one-half years of delay and 50% employee turnover,

and no other equitable factors were present. See also

NLRB v. Western Temporary Services, 821 F.2d 1258

(7th Cir. 1987) (delay of only one-and-one half years).

In NLRB v. Star Color Plate Service, 843 F.2d at 1507

(2d Cir.), cert. denied, 109 S. Ct. 81 (1988), the Second

Circuit acknowledged that its enforcement of the Board’s

bargaining order “may impose a bargaining representa-

tive that is not wanted by a majority of employees and

... this result is contrary to the policies of the Act.”

Even so, contrary to the Court of Appeals below, the

Second Circuit at least required the Board to give actual

notice to the current employees of their statutory right

to petition for a decertification electon. 7d. at 150. While

this attempt at mitigation is wholly inadequate to remedy

the deficiencies of the Board’s bargaining order,‘ the fail-

7 Informing employees of their right to petition for a decertifica-

tion election provides little consolation to those employees when they

realize that they are precluded from filing any such petition for a

period of one year after the employer begins bargaining with the

union. See Peoples Gas System, Inc. v. NLRB, 629 F.2d at 45,

n.17. During that one year period, the parties may reach an agree-

ment which applies to all covered employees, which could bar a

ure of the court below to provide even this much relief

directly conflicts with the holding of the Second Circuit.®

B. The Court Below has Misapplied the Holding of

this Court in NLRB v. Financial Institution Em-

ployees and has Erroneously Failed to Considered

Principles of Equity in Enforcing the Board’s

Order.

No other court of appeals has held that enforcement of

a Board bargaining order in the face of unusual, changed

circumstances caused by NLRB delay is in any way con-

trolled by this Court’s decision in NLRB v. Financial

Institution Employees, 475 U.S. 192 (1986). Most of

the circuits, regardless of the outcome of their particular

cases, have held that challenges to NLRB bargaining

orders should be analyzed under principles of equity, in

order to determine whether “unusual circumstances” ex-

ist such as those allowed for in Brooks v. NLRB, supra.

See Mosey Mfg. Corp. v. NLRB, 701 F.2d at 617; see

also NLRB v. Pace Oldsmobile, 739 F.2d 108, 112 (2d

Cir. 1984); NLRB v. Marion Rohr Corp., 714 F.2d 228,

232 (2d Cir. 1983); NLRB v. Connecticut Foundry Co.,

688 F.2d at 881; NLRB v. Triplex Mfg. Co., 701 F.2d

at 709.

In the present case, however, the Court of Appeals

erroneously relied on certain dictum from this Court’s

decertification election for an additional three years. Jd. Alterna-

tively, the employer and the union could reach an impasse in

collective bargaining, resulting in a costly and disruptive strike, and

subjecting the employees to numerous pressures should they be

asked to cross union picket lines.

8 Nor does the lower court’s decision here draw any support from

this Court’s holding in NLRB v. Katz, 369 U.S. 736 (1962). In that

case, the Court held only that the mere existence of some delay,

without any other unusual circumstances, did not justify setting

aside a Board bargaining order in that particular case. The Court

was not presented with, and has never ruled on, the effects of the

types of equitable factors present in the instant case.

opinion in Financial Institution Employees, taking the

language out of its proper context in order to establish

a new standard for review of unlawfully delayed Board

bargaining orders. According to the Court of Appeals,

this Court’s passing reference to the requirements of

“objective considerations” supporting “loss of majority

status” somehow precludes appellate courts from consider-

ing unusual changed circumstances arising out of multi-

year Board delays. This view is clearly wrong and di-

rectly conflicting with other circuits. Therefore, review

by this Court is necessary, in order to prevent an errone-

ous and conflicting standard of review from being en-

forced.

NLRB v. Financial Institution Employees solely con-

cerned the question of whether the failure of a union to

allow non-member employees to vote on a proposed re-

affiliation raised a sufficient question of representation to

justify withdrawal of recognition of the previously certi-

fied or recognized union. None of the factors present

here, such as turnover, Board-sponsored delay, campaign

misrepresentations or otherwise disputed elections, were

considered by the Court or were otherwise at issue in the

Financial Institution Employees case. Therefore, no basis

existed for the court below to interpret that decision as

somehow precluding the courts of appeals from exercising

their equitable powers in connection with the enforce-

ment of Board bargaining orders generally. In this con-

nection, the Court of Appeals’ decision squarely conflicts

with each of the decisions cited above from the different

circuits, in that the other courts of appeals have tradi-

tionally considered equitable factors in ruling upon Board

orders.° |

9 See also Ford Motor Co. v. NLRB, 305 U.S. 364, 373 (1939)

(“The jurisdiction to review rulings of the Labor Relations Board

is vested in a court with equity powers, and while the Court must

act within the bounds of the statute and without intruding upon the

administrative province, it may adjust its relief to the exigencies of

the case in accordance with the equitable principles governing

judicial action.”).

It should be noted that, even if the Financial Institu-

tion Employees standard adopted by the court below were

the correct one, the Court of Appeals decision would still

present a clear conflict among the circuits in need of res-

olution by this Court. This is because the court below

erroneously failed to find that the combined factors of

turnover, delay, change of union affiliation, and disputed

election, constituted “objective considerations that pro-

vide some reasonable for grounds for believing that the

union has lost its majority status,’ within the meaning

of Financial Institution Employees. Id. at 198."° In

other words, the present facts clearly meet the standard

for review set forth in this Court’s opinion to the extent

that the opinion establishes a new standard, which Peti-

tioner reiterates is not the case. In any event, the Court

of Appeals decision must be reversed because it purports

to remove equitable considerations of unusual changed

circumstances entirely from judicial consideration of

NLRB bargaining orders, which conflicts with the stand-

ard applicable in other circuits.

C. This Case Raises an Important and Continuing

Issue in a Posture Which is Ripe for Resolution by

This Court.

As has already been shown, the issue of the effects of

Board-sponsored delay upon NLRB bargaining orders is

a recurring one which has divided the circuits over an

extended period of time. Absent review and reversal by

this Court, together with announcement of a clear stand-

ard for review, the policy favoring employee free choice

will be frustrated and the Board will have no incentive

to avoid those unnecessary delays which result in bar-

10 The court below erroneously attempted to characterize this case

as involving the issue of employee turnover “without more.” (App.

12a). The court thereby failed to consider in combination the

additional factors relating to the dramatic expansion in the size of

the unit itself, the disputed nature of and misrepresentations con-

nected with the close election, and the union’s change in affiliation.

ee ee eT nee a ae Cee ee

T Pbiits X

gaining representatives being imposed upon employees

who no longer have any interest in such representation.

The competing policy considerations involved in deciding

this issue are uniquely suited to resolution by this Court.

Moreover, the facts of this case are better suited than

most such cases for certiorari review. The employer here

has committed no unfair labor practices other than the

initial refusal to bargain, which has been held to be a pre-

requisite to obtaining judicial review.’ The length of

time which has passed since the election on which the

bargaining order was based is substantial (eight years).

Indeed, this delay is greater than the vast majority of

the cases in which Board bargaining orders have been

challenged.'*? The delay is principally the responsibility

of the Board, which first failed to conduct a statutorily

required hcaring, and then failed to issue its decision on

remand for two-and-one-half years.

The Union also lacks “clean hands” in the matter, hav-

ing failed to inform either the Board or the Employer of

its reaffiliation in a timely manner. The Petitioner also

contends that the Union committed campaign misrepre-

sentations in order to achieve its disputed electoral vic-

tory, a contention which the court below avoided by er-

roneously allowing the Board to apply new policies retro-

actively to this case.

Finally, the amount of turnover which has occurred

here has been substantial. Over 73% of the current work

force has become employed since the time of the election. ©

Moreover, the expansion in the size of the unit has been

11 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941);

American Federation of Labor v. NLRB, 308 U.S. 401 (1940).

12 Petitioner is aware of only one similar case in which a longer

period transpired from the refusal to recognize a union to the court

decision on enforcement of a subsequent bargaining order. NLRB

v. Koenig Iron Works, 856 F.2d 1 (2d Cir. 1988). In that case,

following a twelve year delay, the court of appeals denied enforce-

ment of the Board’s bargaining order.

equally dramatic, growing by over 200%. Thus, no better

vehicle could be presented for this Court to resolve the

important issues presented herein.

CONCLUSION

For the reasons set forth above, and upon the entire

record herein, Petitioner respectfully asks this Court to

issue a writ of certiorari to review the judgment and

opinions of the United States Court of Appeals for the

Fourth Circuit.

Respectfully submitted,

MAURICE BASKIN *

VENABLE, BAETJER, HOWARD

& CIVILETTI

1301 Pennsylvania Avenue, N.W.

Suite 1200

Washington, D.C. 20004

(202) 662-4300

Attorneys for Petitioner

Date: December 11,1989 * Counsel of Record

APPENDIX

TABLE OF CONTENTS

Document

National Posters, Inc., and National Litho., a Di-

vision of National Posters Inc. v. NLRB 885

FO STE tae Cae. SOE pire

National Posters, Inc. and National Litho, a Di-

vision of National Posters, Inc. v. NLRB, 720

FDe TS CGR CAR, Be cnseccanecicesiomsinn on

Report on Challenges & Objections (March 16,

QOD no ciceiseeciccehanconennth aden pains tania tame

National Posters, Inc., 265 NLRB No. 115 (Dec.

10, 1982) (Reissued June 30, 1988) .....................

National Posters, Inc., 282 NLRB No. 148 (Feb.

4, 1987), including Supplemental Decision of

Administrative Law Judge (Nov. 23, 1984)......

National Posters, Inc., 289 NLRB No. 58 (June 30,

1988), including Second Supplemental Decision

of Administrative Law Judge (Feb. 11, 1988)..

Affidavit filed with NLRB in 1988

Page

l4a

3la

50a

62a

119a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-2602

NATIONAL POSTERS, INC.; NATIONAL LITHO,

A DIVISION OF NATIONAL POSTERS, INC.,

Petitioners,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent,

BALTIMORE GRAPHIC COMMUNICATIONS UNION,

LOCAL No. 61-C

Intervenor.

On Petition for Review and Cross-Application for

Enforcement of an Order of the National Labor

Relations Board

(Board Case No. 5-CA-14585)

Argued: April 11, 1989 Decided: September 13, 1989

Before ERVIN, Chief Judge, and PHILLIPS and

SPROUSE, Circuit Judges.

Maurice Baskin (Rosemarie Schmidt, VENABLE,

BAETJER, HOWARD & CIVILETTI on brief) for Peti-

tioner. Marsha 8S. Berzon (Jeffrey B. Demain, ALT-

SHULER & BERZON; Laurence Gold; Sandra Hughes,

O’DONNELL, SCHWARTZ, & ANDERSON on brief)

for Intervenors. Joseph Henry Bornong (Rosemary M.

Collyer, General Counsel; Robert EK. Allen, Associate Gen-

eral Counsel; Aileen A. Armstrong, Deputy Associate

General Counsel; Paul J. Speilberg, Deputy Assistant

General Counsel on brief) for Respondent.

Ervin, Chief Judge:

National Posters Inc. (“NPI”), petitions for review

of a bargaining order issued by the National Labor Re-

lations Board (“NLRB”). NPI presses several argu-

ments in support of a claim that it should not be required

to recognize the Baltimore Graphic Communications

Union, Local 61-C (‘Local 61-C’’) as the collective bar-

gaining agent for its employees. Finding no merit in any

of these arguments, we grant enforcement of the NLRB’s

order.

NPI is a commercial poster printer that employed over

fifty people at two Baltimore plants during 1981. During

that year, the predecessor to the Local 61-C, the Balti-

more Printing Pressmen and Assistants Union, Local 61

(“Local 61”), conducted a bitter organizing campaign.

On December 15, 1981, a representation election was held

for the stipulated bargaining unit which included NPI’s

production and maintenance workers. The initial vote

tally revealed 24 votes in favor of Local 61 and 21 votes

opposed, with three ballots challenged by Local 61 and

one ballot challenged by NPI. Without holding a hearing,

the NLRB’s Regional Director rejected NPI’s challenge

to the ballot cast by Samuel John. John’s ballot was sub-

ag ees RAS

sequently opened and counted. Since it was cast in favor

of the union, his ballot gave the union a decisive 25 to

21 majority and the three remaining ballot challenges be-

came moot. Local 61 was thereafter certified and on

December 10, 1982, the NLRB issued an order requiring

NPI to bargain collectively with Local 61.

This is the second time the parties’ disputes over the

results of that election have been before us. In National

Posters Inc. v. N.L.R.B., 720 F.2d 1858 (4th Cir. 1983)

(“National Posters I”), we vacated the NLRB’s Decem-

ber 10th bargaining order because the NLRB’s Regiona!

Director rejected NPI’s challenge to John’s ballot without

affording NPI the opportunity for a hearing on the

underlying factual issues.’ On remand, Administrative

Law Judge Bernard Ries conducted a hearing on NPI’s

and Local 61’s ballot changes. After hearing three days

of testimony in June of 1984, Ries issued a lengthy opin-

ion in which he found that John was eligible to vote. He

also found that among the ballots challenged by Local

61, Wesley Souders was eligible to vote and Albert Amend

was not. After an unexplained two year delay, the NLRB

adopted ALJ Ries’ decision. On NPI’s motion, though,

the NLRB reopened the hearings in light of the inter-

vening merger of the International Printing and Graphic

Communications Union (Local 61’s former national affil-

iate) with the Graphie Arts International Union. As a

result of this merger, Local 61 adopted its current name

as the Baltimore Graphic Communications Union, Local

61-C. NPI charged that this merger substantially changed

the local union and therefore raised a question concern-

ing the local union’s continued majority status among

bargaining unit employees.

1 For reasons not pertinent here, we also instructed the NLRB

to allow NPI to amend its allegations of election campaign mis-

representations by Local] 61. National Posters I, 720 F.2d, at 1364.

NPI subsequently abandoned these allegations and the issue is no

~ longer before us.

ALJ Ries conducted a second hearing in July of 1987.

In an opinion issued in February of 1988, he concluded

that the merger did not so substantially change the local

union as to require its decertification as the bargaining

representative for NPI’s employees. On June 30, 1988,

the NLRB adopted ALJ Ries’ findings and declined NPI’s

invitation to reopen the case yet again to consider whether

turnover among employees in the bargaining unit during

the seven years since the election required a new election.

Continuing its all out efforts to avoid the bargaining

table, NPI now petitions for review of each and every

decision by the NLRB recounted above.

IT.

We turn first to NPI’s claim that the NLRB errone-

ously found that John was eligible to vote in the repre-

sentation election. John worked at NPI off and on for

roughly six months prior to the representation election

as an on-call “racker” in the silk screen department.

Unlike NPI’s regular “rackers”, John was only paid the

minimum wage and received no fringe benefits. His time

cards show that some weeks he worked over forty hours

while during other weeks he did not work at all. For

purposes of determining voter eligibility, the NLRB dis-

tinguishes between part-time employees and seasonal or

casual workers. Seasonal workers are generally not eligi-

ble members of the relevant bargaining unit, while part-

time employees may be included in the bargaining unit

if they share a sufficient “community of interests” with

full time employees. Where part-time employees are in-

cluded in the bargaining unit, such employees are eligible

to vote if they average four hours of work per week in

the quarter preceding the election. V.J.P. Movers, Inc.,

232 NLRB 14, 97 LRRM 1498 (1977). Applying this

2 John’s weekly hours from the date of his hiring up until two

weeks after the election are reproduced in our prior opinion in

National Posters v. N.L.R.B., 720 F.2d, at 1359, n.1.

ORR Ra ee ST 7 aA

Pa AERP err Fa

objective hours per week test, ALJ Ries found that John

was an eligible part-time employee.

NPI does not contest the propriety of including part-

time workers in the bargaining unit. Instead, it con-

tends that John was a casual or seasonal employee hired

solely to work for the 1981 Christmas peak season. Ac-

cording to NPI, John was not a part-time worker and

therefore the objective hours test was erroneously ap-

plied. Further, NPI argues that this conclusion is com-

pelled by the law of the case. In our previous decision,

we noted that NPI had made out a prima facie case that

John was a seasonal employee by alleging:

(1) [NPI] experienced a Christmas peak season;

(2) [NPI] maintains a pool of peak season em-

ployees; (3) John was hired to work only on a peak

season basis; (4) John was paid less than and re-

ceived none of the benefits available to full-time

employees and had no assurance of recall; and (5)

John, in fact, worked primarily during the Christ-

mas peak season and stopped work thereafter.

National Posters I, 720 F.2d, at 1863. NPI now claims

that evidence produced at the June 1984 hearing before

ALJ Ries proved each of these allegations and thus, ac-

cording to the law of the case, the ALJ was required to

find that John was ineligible.

This argument is unpersuasive for two reasons. First,

as discussed more fully below, ALJ Ries did not find

that NPI had proved all of its allegations. Second, by

expressly noting NPI’s allegations, we in no way intended

to alter the legal standard for determining whether John

was a seasonal or part-time employee. Instead, we merely

noted NPI’s allegations were sufficient to raise a prima

facie case and entitle NPI to a hearing. We explicitly

stated that “other facts might tend to support the Re-

gional Director’s conclusion [that John was a part-time

employee and], whether that conclusion is supported by

substantial evidence is a question apart from whether

[NPI] was entitled to a hearing on the underlying factual

issue.” National Posters I, 720 F.2d, at 13863. Thus, even

if NPI had proved each of its allegations, ALJ Ries’ was

not bound by the law of the case to conclude that John

was a seasonal worker so long as other evidence sup-

ported a contrary conclusion. The “law of the case”

here is of no particular assistance to NPI’s cause for it

merely requires us to review the NLRB’s decision ac-

cording to the general principles of labor law.

Distinguishing between seasonal and part-time employ-

ees is no easy task. See N.L.R.B. v. Western Temporary

Services, 821 F.2d 1258 (7th Cir. 1987). Addressing is-

sues regarding the eligibility of non-permanent individ-

ual employees, courts have commonly looked to the lan-

guage defining the bargaining unit and where that lan-

guage was ambiguous, allowed the NLRB to resolve the

issues according to the “community of interests” stand-

ard. See, e.g., N.L.R.B. v. Boston Beef, 652 F.2d 223

(1st Cir. 1981); and N.L.R.B. v. Speedway Petroleum,

768 F.2d 151 (7th Cir. 1985). See also I.T.0. Corp of

Baltimore v. N.L.R.B., 818 F.2d 1108, 1112-13 (4th Cir.

1987) (discussing “community of interests” standard

generally). Applying this standard, “[{t]he Fourth Cir-

cuit has upheld [NLRB] decisions which permitted un-

employed seasonal employees to vote where they ‘had at

the time of the election a reasonable expectation of re-

employment within a reasonable time in the future.’ ”’

N.L.R.B. v. Atkinson Dredging, 329 F.2d 158, 162 (4th

Cir. 1964), quoting N.L.R.B. v. Jesse Jones Sausage Co.,

309 F.2d 664, 665 (4th Cir. 1962). The NLRB’s policy

is that on-call employees share the requisite “community

of interests” if their work history satisfies the objective

hours test. See V.I.P. Movers, 232 NLRB 14, 97 LRRM

1498 (1977).

The ALJ’s determination of John’s employment status

at NPI is a conclusion of law. National Posters I, 720

F.2d, at 1362-63. The correctness of that conclusion

turns, however, upon factual findings regarding NPI’s

intention in hiring John. See Id. As suggested in Na-

tional Posters I, if NPI hired John “based on the periodic

availability of work rather than on peak season demand,”

John was eligible to vote. ZJd., at 1363. NLRB deter-

minations of fact are to be upheid if supported by sub-

stantial evidence on the record as a whole, “even though

we might have decided the case differently de novo.” ARA

Leisure Services, Inc. v. N.L.R.B., 782 F.2d 456, 462

(4th Cir. 1986). See also N.L.R.B. v. Atkinson Dredging

Co., 329 F.2d, at 162.

ALJ Ries’ decision that John was hired with a reason-

able probability of working on more than a one-time sea-

sonal basis is supported by substantial evidence. NPI’s

Treasurer, Diane Hild, testified that the company main-~

tained a pool of on-call individuals who were routinely

called in to work as temporary replacements for sick or

vacationing workers in addition to helping fulfill peak

season labor needs. She also stated that NPI preferred

to rehire responsible people from its “call list” and that

“call list” employees were sometimes hired to fill full-

time positions. John was on this list for the six months

preceding the election. The record reveals that John was

hired to perform several different jobs prior to the elec-

tion and the NPI appeared to be satisfied with his work.

Hild testified that John was retained on the “call list’

after the Christmas, 1981, season. She could not explain,

however, why his name was removed from the list shortly

after the election. This evidence provides substantial

support for the ALJ’s finding that John had a reasonable

expectation of continued, albeit sporadic, employment and

that he was therefore eligible to vote. Accordingly, we

uphold the NLRB’s decision to count John’s ballot and to

certify Local 61.*

3 NPI also challenges the ALJ’s decision that Albert Amend was

a supervisor and therefore ineligible to vote. Having affirmed the

ALJ’s decision regarding John, it is unnecessary for us to review

III.

Changes in circumstances may erode employee support

for a certified bargaining agent. For this reason, the

NLRA allows both employees and employers to petition

the NLRB to conduct new representation elections.

N.L.R.B. v. Financial Institution Employees, 475 U.S.

192, 198 (1986), 29 U.S.C. §159(¢) (1) (A) (ii) (pe

tition by employees), and 29 U.S.C. § 159(c) (1) (B)

(petition by employer). The NLRB may then direct a

new election if, after investigation, it finds that a ques-

tion of representation exists. 29 U.S.C. §159(c). In

order to raise a question of representation, “[t]he em-

ployer, however, must ‘demonstrate by objective con-

siderations that it has some reasonable grounds for be-

lieving that the union has lost its majority status.’” Fi-

nancial Institution Employees, 475 U.S., at 198, quoting

United States Gypsum Company, 157 NLRB 652, 656

(1966). A union reorganization, such as a merger or

a change in affiliation, may erode rank and file support,

especially if the reorganization “substantially change[s]

a certified union’s relationship with the employees it

represents.” Jd., at 202. In most instances, however,

organizational adjustments are generally internal union

affairs with which neither courts nor the NLRB should

lightly interfere.

NPI claims that the July, 1983, merger of the Inter-

national Printing and Graphic Communications Union

(“IPGCU”) with the Graphic Arts International Union

(“GAIU”) to form the Graphic Communications Inter-

national Union (the “GCIU’’) raises a question of repre-

sentation. As noted above, this reorganization merged

Local 61’s former national affiliate into a newly created

Amend’s eligibility. Once counted, John’s ballot brings the vote

tally to 25 in favor and 21 opposed to unionization. The three

remaining challenged ballots can not alter the outcome of the elec-

tion and we see no purpose in reviewing the merits of those chal-

lenges.

ates stamens, ee

national affiliate, the GCIU. NPI argues that this merger

brought about such drastic changes that the substantial

continuity of Local 61 with the current Local 61-C is in

doubt.

In determining whether reorganizations “substantially

change a certified union’s relationship with the employees

it represents,” courts and the NLRB typically consider

the effect on a local union’s structure, administration,

officers, assets, craft jurisdiction, autonomy, by-laws, and

the rights and obligations of the union’s membership and

leadership. See N.L.R.B. v. Pearl Bookbinding, 517 F.2d

1108, 1111-12 (1st Cir. 1975); J. Ray McDermott & Co.

v. N.L.R.B., 571 F.2d 850, 857 (5th Cir. 1978); and

N.L.R.B. v. Insulfab Plastics, 789 F.2d 961, 966 (1st Cir.

1986). Whether corporate-style reorganizations of unions

and their affiliates so substantially change a union that

a new representation election is required depends on

factual determinations of the effects of reorganization.

See N.L.R.B. v. Insulfab Plastics, 789 F.2d, at 966. And,

of course, the NLRB’s determinations of the effects of

such reorganizations must be upheld if supported by sub-

stantial evidence.

NPI strenuously argues that several differences be-

tween the structure, officers, and craft jurisdiction of the

IPGCU and the new GCIU have transformed Local 61.

Specifically, NPI points to the fact that GCIU’s charter

expands the union’s craft jurisdiction beyond the printing

industry, and most of the new union’s national officers

are former officers of GAIU rather than IPGCU.‘ The

4 NPI also challenges the ALJ’s refusal to grant a delay in the

hearings so that NPI could subpoena GCIU Vice-President James

J. Mitchell. Mitchell was formerly an IPGCU officer. We find no

harm in the fact that NPI was unable to present Mitchell’s prof-

fered testimony regarding the existence of a conspiracy on the

part of former GAIU officers to dominate the new GCIU to the

exclusion of former IPGCU officers, and to ignore provisions of the

merger agreement. We see little relevance in this proffered testi-

10a

ALJ, however, discounted the effect of these and other

changes at the national affiliate level and instead focused

his inquiry on changes at the local level and alleged

changes in Local 61’s autonomy. This decision was en-

tirely appropriate on the facts of this case. Local 61 was

the former representative for NPI’s unit employees and

differences between Local 61 and Local 61-C clearly have

the most dramatic effect on the relationship between

unit employees and their representative. While changes

in the governing structure of a local union’s nationa!

affiliate could alter the identity of the local, especially if

the local’s bargaining autonomy is consequently restricted,

it is the substantial continuity of the local union rather

than the affiliate that remains at issue. See Financial

Institution Employecs, 475 U.S., at 207.

Turning, then, to the asserted differences between Local

61 and Local 61-C, we find that the record strongly sup-

ports the ALJ’s conclusion that these differences were

minor or illusory. In several important areas, the merger

brought no changes. All of Local 61’s officers except one

vice-president retained their offices in Local 61-C. Local

strike action had to be approved by the national both

before and after the merger. And per capita dues to the

affiliate remained unchanged by the merger. After the

merger, Local 61-C did relocate its offices and did raise

local dues, but this dues increase was proportional to pre-

merger dues increases. These changes were, at best, only

tangentially related to the merger. Other changes noted

by NPI hardly call rank and file support into question.

At GCIU’s instruction, Local 61-C obtained new legal

counsel and, as a result of the merger, local assets and

revenues rose moderately.

On these facts, we can hardly say that NPI has “dem-

onstrated by objective considerations” that Local 61-C

mony to the issue of substantial continuity between Local 61 and

Local 61-C.

Maite ei nrricrn tre

lla

has lost majority support. Thus the ALJ’s decision that

NPI has not raised a question of representation must be

upheld.

IV.

Finally we turn to NPI’s assertion that it was entitled

to have the hearings reopened so that it could present

evidence that employee turnover since the 1981 election

required a new election. NPI points out that its work

force has grown to over 130 employees and that 18 of the

original 55 workers have left the company since the

election. NPI suggests that under precedent established

in St. Regis Paper Co., 285 NLRB No. 39, 126 LRRM

1017 (1987), the NLRB was required to consider whether

employee turnover and the inordinate delay since the

election constitute changed circumstances which warrant

a withdrawal of the bargaining order. NPI also urges

that the eight year delay was solely the NLRB’s fault

and that we should therefore deny enforcement rather

than remanding the case for further hearings.

Courts have, albeit rarely and in extreme cases, de-

clined to enforce bargaining orders because of undue

delay, attributable to the NLRB, in the resolution of

election disputes. See Mosey Mfg. Co. v. N.L.R.B., 701

F.2d 610 (7th Cir. 1983). And in some cases, courts

have noted that employee turnover during such delays

may call into question the continuing validity of close

election results. See N.L.R.B. v. Katz, 701 F.2d 703 (7th

Cir. 1983); N.L.R.B. v. Nixon Gear, Inc., 649 F.2d 906

(2nd Cir. 1981); N.L.R.B. v. Connecticut Foundry Co.,

688 F.2d 871 (2nd Cir. 1981); N.L.R.B. v. Connecticut

Foundry Co., 688 F.2d 871 (2nd Cir. 1982). In most

of these decisions, the refusal to enforce bargaining

orders was justified on traditional principles of equity.

See, e.g., Mosey Mfg. Co., 701 F.2d at 613 (“When a

party asking a court to do equity has strung out the pro-

ceeding to the point where the court cannot determine

whether equitable relief would achieve the legitimate pur-

12a

poses of the suit . . . the court will withhold its assist-

ance.”). On this authority, NPI argues that employee

turnover and NLRB delays in deciding this case justify

denying enforcement of the NLRB’s bargaining order.

Unlike the delays in the cases relied upon by NPI, we

hesitate to lay the entire blame for the eight year delay

in the proceedings below on the NLRB.’ Without at-

tempting to further distinguish the decisions of our sister

circuits, though, we hold that NPI’s challenge must be

analyzed under the principles set forth in Financial In-

stitution Employees, supra, rather than the principles of

equity. In other words, employee turnover, just like a

union reorganization, is a change in circumstance of no

particular consequence unless it raises a question of rep-

resentation. And again, to raise a question of represen-

tation, NPI must “demonstrate by objective considera-

tions that it has some reasonable grounds for believing

that the union has lost its majority status.” Financial

Institution Employees, 475 U.S., at 198.

NPI’s only evidence, however, is the bare fact that

employee turnover has occurred during the eight years

since the election. This, without more, is insufficient to

raise a question of representation. Cf. Universal Se-

curity Instruments Inc., v. N.L.R.B., 649 F.2d 247, 255

(4th Cir., 1981) (“Replacement employees are presumed

to support the unit in the same ratio as those replaced.’’),

and N.L.R.B. v. 1199, National Union of Hospital and

Health Care Employees, 824 F.2d 318, 323 (4th Cir.

1987) (‘Where a union is certified after a representa-

tion election, the employer cannot challenge majority

status until it has bargained with the union for a rea-

sonable period, usually one year.’”’). Indeed, the record is

entirely devoid of evidence that new employees are dis-

5 We do note, however, that the NLRB’s disposition of this case

has been no model of administrative efficiency. Almost two and a

half years elapsed after the first hearings on John’s voting eligi-

bility an the NLRB’s decision. No good reason for this delay has

been offe ed by the General Counsel.

13a

satisfied with or otherwise opposed to Local 61-C’s rep-

resentation. Were we to adopt NPI’s argument that it

was entitled to a hearing on this evidence, we would

effectively hold that the passage of time and employee

turnover are sufficient to raise doubts about rank and

file support. This we will not hold. Since NPI failed to

present sufficient evidence to raise a question of repre-

sentation, the NLRB properly declined to hold hearings

on the issue of employee turnover.

We conclude that the record supports the NLRB’s de-

terminations that John was eligibile to vote in the 1981

election and that the intervening merger of Local 61-C’s

former affiliate did not call into question Local 51-C’s

rank and file support. We also conclude that NPI’s bare

assertions of employee turnover did not necessitate fur-

ther hearings and further delays in these already unduly

protracted proceedings. The NLRB’s order directing Na-

tional Posters, Inc., to bargain with the Baltimore

Graphic Communications Union, Local 61-C is hereby

ENFORCED,

14a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 82-2140

NATIONAL POSTERS, INC. and NATIONAL LITHO a division

of National Posters, Inc.,

Petitioners,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Petition for Review and Cross-Application for

Enforcement of

an Order of the National Labor Relations Board

Argued: July 12, 1983 Decided: November 3, 1983

Before PHILLIPS, SPOUSE and ERVIN, Circuit

Judges.

Maurice Baskin (Venable, Baetjer, Howard & Civiletti

on brief) for Petitioner; Daniel R. Pollitt, National La-

bor Relations Board (William A. Lubbers, General Coun-

sel, John E. Higgins, Jr., Deputy General Counsel, Rob-

ert E. Allen, Associate General Counsel, Elliott Moore,

15a

Deputy Associate General Counsel, Jolane A. Findley on

brief) for Respondent.

ERVIN, Circuit Judge:

This is a petition by National Posters, Inc. (“Em-

ployer’) for review of an order by the National Labor

Relations Board (“Board”). That order, issued De-

cember 10, 1982, requires Employer to bargain collec-

tively with the Baltimore Printing Pressmen and As-

sistants Union (“Union”). Employer had refused to

bargain with the Union in order to obtain judicial re-

view of the Board’s certification of the Union as the

bargaining representative of all production and main-

tenance employees at Employer’s two Baltimore plants.

Because we conclude that the Board improperly certified

the Union, we vacate the order and remand to the Board

fr further proceedings.

Employer is a commercial poster printer. It employs

over 50 people at its two Baltimore plants. Ear! Seth,

Jr., is president and owner of Employer. In the fall of

1981, the Union conducted an organizing campaign

among Employer’s employees. A central issue in the

campaign was the level of wages and benefits, which had

been cut back as a result of Employer’s financial prob-

lems. The campaign culminated in a representation elec-

tion which was held on December 15, 1981. The initial

election tally was 24 for the Union and 21 against, with

4 challenged ballots, three by the Union and 1 by Em-

ployer.

Employer challenged the vote of employee Samuel John.

The challenge was supported by an affidavit submitted

by Seth, who indicated that he intended John to be em-

ployed only on a peak seasonal basis. John was hired

in June, 1981 as a seasonal employees who is “on call”

16a

to perform the job of “racking.” ! When John worked,

he did so “shoulder-to-shoulder” with Employer’s two

full-time rackers. John was paid the minimum wage,

$3.35 per hour, while the two full-time rackers earned

$3.47 and $4.37 per hour respectively. Unlike John, their

salaries would increase with their length of service. John

also did not receive any of the benefits enjoyed by full-

time employees such as health and welfare insurance,

vacation pay, sick pay, or holiday pay.

1From the date of his hiring through the end of 1981, John

worked the following number of hours during the weekly pay

periods.

Week ending 1981 Hours Worked

6/30 9

7/3 6

7/10 0

7/17 0

7/24 36

7/31 8

8/7 0

8/14 0

8/21 0

8/28 2215

9/4 0

9/11 0

9/18 0

9/25 301%

10/2 4334

10/9 0

10/16 0

10/23 27

10/30 36

11/6 45

11/13 5114

11/20 AT%,

11/27 2834

12/4 81%,

12/11 35%

12/18 50

12/25 261%

1/2/82 16

Pe er rer Pei eee ee ere

17a

Employer’s business experienced a seasonal surge of

business during the Christmas rush season. Employer

maintained a pool of seasonal employees who could work

during that period of increased demand. Seasonal em-

ployees, including John, were free to work elsewhere

when not working for Employer. These employees had no

assurance of recall.

Employer maintains that John’s hours during late Sep-

tember through December reflect the Christmas rush and

that John did not work after the payroll period ending

January 2, 1982, because the Christmas rush period

ended.

Employer also objected to the ele tion on grounds that

the Union had engaged in campaign misconduct by mak-

ing five material misrepresentations that affected the

election results. In its Objection 1, Employer alleged

that in the week prior to the election, Union President

Gerald Brown, as well as other Union representatives,

falsely told numerous employees that Employer had spent

large sums of money on gifts for his children, including

the purchase of a large farm for his daughter. In its

Objection 2, Employer alleged that the Union had ma-

terially misrepresented the Union’s pension plan by stat-

ing or implying that employees automatically would be

entitled to participate in the Union’s plan upon select-

ing the Union, and that employees’ participation in the

plan automatically would be paid for out of union dues.

In its Objection 3, Employer alleged that the Union ma-

terially misrepresented the health and welfare benefits

to which the employees would be entitled if the Union

were selected by stating or implying that all of the

Union’s contracts contained all health and welfare bene-

fits being promised by the Union and leading the em-

ployees to believe that they automatically would be en-

titled to optical coverage and other benefits upon mere

payment of dues following the Union’s certification. In

its Objection 4, Employer alleged that Union representa- —

18a

tives misrepresented to numerous employees the amount

of dues employees would be required to pay to join the

Union. Lastly, in its Objection 5, Employer generally

alleged that “various other false and misleading state-

ments” were made by Union representatives. These ex-

ceptions were supported by the affidavits of Seth and

three supervisors.

On March 16, 1982, the Board’s Regional Director is-

sued, without a hearing, a report recommending that

Employer’s challenges be overruled. The Regional Di-

rector found that John was an eligible voter, rejecting

Employer’s claim that John was a seasonal employee.

Instead, the Regional Director characterized John as a

part-time employee, finding that “Employer’s need for

John’s services is more dependent upon the availability

of jobs requiring extra racking, than upon particular

peak periods of the business year.” The Regional Di-

rector considered the ruling supported by (1) John work-

ing in each of the six months prior to the December

election, (2) John performing, when he did work, the

same tasks as full-time workers and working shoulder-

to-shoulder with those workers and (3) John being su-

pervised by the supervisor of the full-time employees.

The Regional Director then applied the Board’s objective

number of hours test for determining if part-time em-

ployees are eligible voters: part-time employees are eligi-

ble voters #f they average four hours of work per week

in the quarter preceeding the election. See V.I.P. Mov-

ers, Inc., 232 NLRB 14 (1977); Davison-Paxon Co., 185

NLRB 21 (1970). Since John averaged more than four

hours per week, he was found to be eligible.

The Regional Director also overruled one of the Union’s

voter challenges and after counting the two challenged

ballots, the new tally became 25-22 in favor of the Union.

Thus, the two remaining challenged votes could not affect

the election, assuming the challenges to the other two votes

were properly overruled,

eee

19a

The Regional Director rejected all of the objections

concerning Union misrepresentations. The Regional Di-

rector found that even if the allegations in Objection 1

were true, the misrepresentations did not accuse Seth of

corporate malfeasance and, thus, under the standard set

out in Hollywood Ceramics/General Knit did not affect

election results. See General Knit of California, Inc., 239

NLRB 619 (1978) ; Hollywood Ceramics Co., 140 NLRB

221 (1952). Objections 2 through 5 were overruled be-

cause they were supported by only the hearsay affidavits

of three supervisors, and not by the statements of wit-

nesses to the alleged misrepresentations.

Employer filed timely objections to the Regional Di-

rector’s decision, but on June 29, 1982, the Board af-

firmed that decision. The Board did so without a hear-

ing and without review of the affidavits submitted by

Employer to the Regional Director in support of its chal-

lenges. The Regional Director did not transmit the affi-

davits to the Board as part of the record. In its opinion,

the Board did not specifically address Employer’s chal-

lenge to John’s eligibility or the alleged misrepresenta-

tion in Objection 1. With respect to Objections 2-5, the

Board affirmed the Regional Director on the grounds

that the alleged misrepresentations did not violate Holly-

wood Ceramics/General Knit standards:

Assuming the veracity of the Employer’s claims re-

garding Employer’s Objections 2-5, we find that the

Employer failed to establish a prima facie case that

the Petitioner made representations which would war-

rant setting aside the results of the election.

On July 14, 1982, the Regional Director certified the

Union. Employer refused to bargain with the Union,

and on December 10, 1982, the Board issued a cease and

desist order requiring Employer to bargain collectively

with the Union. Employer then petitioned this court for

review of the Board’s order.

20a

Il.

Employer first claims that under NLRB v. Cambridge

Wire Cloth Co., Inc., 622 F.2d 1195 (4th Cir. 1980), this

case should be remanded to the Board with direction to

the Regional Director to transmit all material included

in his decision, including the various affidavits submitted

by Employer, to the Board for its consideration. Cam-

bridge Wire involved facts identical in material respects

with those here. In that case, as here, the employer con-

tended for the first time on appeal to this court that the

Regional Director failed to transmit to the Board certain

affidavits submitted by the employer. The Regional Di-

rector had issued his decision without a hearing and

the employer had assumed that upon filing its request for

heview by the Board, the Regional Director would trans-

mit to the Board all the material that had been pre-

sented to or considered by him.

This court, relying on 29 C.F.R. § 102.69(g) and

Prestolite Wire Division v. NLRB, 592 F.2d 302 (6th

Cir. 1979), held that it was the Regional Director’s re-

sponsibility to transmit the record, including the affi-

davits, to the Board and that his failure to do so re-

quired a denial of enforcement. In Prestolite, the Sixth

Circuit had held that “[wl]ithout expressly ruling that

the Regional Director is invariably required under Sec-

tion 102.69(g) to transmit to the Board all of the ma-

terials considered by him (although the language says

‘shall’), we think that the better practice is to do so and

we are unable to fault the company for having failed to

anticipate that this procedure would not have been fol-

lowed here.” * Jd. at 305. In adopting the Prestolite rea-

soning, this court stated:

2 Section 102.69 (g), as it read at the time, provided:

The notice of hearing, motions, rulings, orders, stenographic

report of the hearing, stipulations, exceptions, documentary

evidence, together with the objections to the conduct of the

as A

ee ee ae een

2la

We are asked to construe a somewhat ambiguous

regulation, 29 C.F.R. §102.69(g) ....

The Board argues that 29 C.F.R. § 102.69(g) sup-

ports its assertion that it was Cambridge Wire’s re-

sponsibility to transmit the record. Subsection (g)

permits the party filing objections to “append to its

submission to the Board copies of documents it has

timely submitted to the regional director and which

were not included in the report or decision.” As did

the Court in Prestolite Wire, we do not find that

this language imposes responsibility on Cambridge

Wire to transmit to the Board all the material it

furnished the Regional Director in his investigation.

Cambridge Wire, 622 F.2d at 1199.

The Board replies that in response to the Prestolite de-

cision (and, presumably, Cambridge Wire), the Board

amended § 102.69(g), effective September 14, 1981, to

make it clear that it is the employer’s, and not the Re-

gional Director’s, responsibility to file supporting affi-

davits with the Board. We agree that new § 102.69(g)

requires a result contrary to that reached in Cambridge

Wire. The new section clearly provides that supporting

affidavits are not part of the record unless submitted to

to the Board by the employer and that “[flailure to

election or conduct affecting the results of the election, any

report on such objections, any report on challenged ballots,

exceptions to any such report, any briefs or other legal memo-

randa submitted by the parties, the decision of the regional

director, if any, and the record previously made as described

in § 102.68, shall constitute the record in the case. Materials

other than those set out above shall not be a part of the record;

except that in a proceeding in which no hearing is held, a party

filing exceptions to a regional director’s report on objections

or challenges, a request for review of a regional director’s

decision on objections or challenges, or any opposition thereto,

may append to its submission to the Board copies of docu-

ments it has timely submitted to the regional director and

which were not included in the report or decision.

22a

timely .. . append that evidence to its submission to the

' Board ... shall preclude a party from relying on such

evidence.” * Furthermore, in a notice included at the

end of his decision, the Regional Director informed Em-

ployer that it was its responsibility to transmit the affi-

davits to the Board.*

3 New § 102.69(g) provides, in pertinent part:

(g) (1) Gii) In a proceeding pursuant to this section in which

no hearing is held, the record shall consist of the objections to

the conduct of the election or to conduct affecting the results

of the election, any report on objections or on challenged

ballots and any exceptions to such a report, any regional direc-

tor’s decision on objections or on challenged ballots and any

request for review of such a decision, any documentary evi-

dence, excluding statements of witnesses, relied upon by the

regional director in his decision or report, any briefs or other ;

legal memoranda submitted by the parties, and any other

motions, rulings, or orders of the regional director. Materials

other than those set out above shall not be a part of the record,

except as provided in paragraph (g) (3) of this section.

* * é

(g) (3) In a proceeding pursuant to this section in which no

hearing is held, a party filing exceptions to a regional direc-

tor’s report on objections or challenges, a request for review

of a regional director’s decision on objections or challenges,

or any opposition thereto may support its submission to the

Board by appending thereto copies of documentary evidence,

including copies of any affidavits, it has timely submitted to

the regional director and which were not included in the ;

report or decision. Documentary evidence so appended shall

thereupon become part of the record in the proceeding. Failure .

to timely submit such documentary evidence to the regional i

director, or to append that evidence to its submission to the

Board in the representation proceedings as provided above,

shall preclude a party from relying on such evidence in any

subsequent related unfair labor practice proceedings. :

isis So

4 The notice informed Employer: ;

Under the provisions of Section 102.69 of the Board’s Rules |

and Regulations, exceptions te this report may be filed with

the Board in Washington, D.C. Under the provisions of Sec-

tion 102.69(g) of the Board’s Rules, documentary evidence,

including affidavits, which a party has timely submitted to

23a

ITI.

Employer next claims that the Board erred by not

granting a hearing on the issue of John’s eligibility to

vote. The Board is required by “both due process of law

and the Rules and Regulations of the Board itself” to

hold a post-election hearing when the objecting party

raises a “substantial and material issue of fact relating

to the validity of a representation election.” The Metho-

dist Home v. NLRB, 596 F.2d 1173, 1178 (4th Cir. 1979).

See 29 C.F.R. §§ 102.69(c) (1), 102.69(d) (“hearing shall

be conducted with respect to those objections or challenges

which the regional director concludes raise substantial

and material factual issues”). Whether there is such a

material and substantial factual issue is ‘“‘a question of

law and ultimately a question for the courts.” NLRB v.

Bata Shoe Co., 377 F.2d 821, 826 (4th Cir.), cert denied,

389 U.S. 917 (1967). Furthermore, it is not sufficient

for an employer merely to question the interpretation of

or legal conclusions drawn from the facts by the Re-

gional Director. See Macomb Pottery Co. v. NLRB, 376

F.2d 450, 453 (7th Cir. 1967); NLRB v. Sun Drug Co.,

359 F.2d 408, 414 (3d Cir. 1966).

The critical legal conclusion drawn by the Regional

Director was that John was a part-time, and not a sea-

sonal, employee.’ That legal conclusion allowed the Re-

the Acting Regional Director in support of its challenges and

objections and which are not included in the Report, are not a

part of the record before the Board unless appended to the

exceptions or opposition thereto which a party files with the

Board. Failure to append to the submission to the Board

copies of evidence timely submitted to the Acting Regional

Director and not included in the Report shall preclude a party

from relying vpon that evidence in any subsequent related

unfair labor practice proceedings. Exceptions must be received

by the Board in Washington by March 29, 1982.

5 Because we decide that a hearing should have been granted,

we do not reach the question of whether this conclusion is sup-

ported by substantial evidence.

24a

gional Director to apply the objective number of hours

test, which test the Board does not apply to seasonal em-

ployees. See Davison-Paxon Co., 185 NLRB 21 (1970).

The conclusion is based on the Regional Director’s factual

finding that Employer’s need for John’s services was

based on the periodic availability of work rather than on

peak season demand.* That finding, however, is a reso-

lution of the substantial and material factual issue

raised by Employer. Employer’s affidavits contain alle-

gations that are prima facie sufficient to support the

opposite finding that the need for John’s services was

dependent upon the Christmas peak season: (1) Em-

ployer experienced a Christmas peak season; (2) Em-

ployer maintains a pool of peak season employees; (3)

John was hired to work only on a peak season basis; (4)

John was paid less than and received none of the bene-

fits available to full-time employees and had no assurance

of recall; and (5) John, in fact, worked primarily during

the Christmas peak season and stopped work thereafter.

See Seneca Foods Corp., 248 NLRB 1119 (1980); See’s

Candy Shops, Inc., 202 NLRB 538 (1973) ; United Foods,

Inc., 174 NLRB 91 (1969). While other facts might

tend to support the Regional Director’s conclusion,’

whether that conclusion is supported by substantial evi-

dence is a question apart from whether Employer was

entitled to a hearing on the underlying factual issue. We

believe that Employer’s allegations created a substantial

fact but depends on a legal conclusion alone—whether John was a

part-time or seasonal employee. The question of what motivated

Employer to call John to work, however, seems clearly to be a

factua! question, the resolution of which leads to a legal conclusion

concerning John’s status at work.

7 We note, however, that employees have been held to be seasonal

employees even though they worked sporadically outside the busy

season, NLRB v. Sandy's Stores, Inc., 398 F.2d 268 (1st Cir. 1968),

or performed the same duties as regular employees, Sce’s Candy

Shops, Inc., 202 NLRB 538 (1973).

25a

and material issue of fact and that Employer is entitled

to a hearing on that issue.

IV.

During the past ten years, the Board has flip-flopped

several times on the standard to be applied in deter-

mining whether an election should be set aside where

the successful party has made a material misrepresenta-

tion during the campaign. Under Hollywood Ceramics

Co., 140 NLRB 221, 224 (1962), an election would be

set aside where the misrepresentation ‘may reasonably

be expected to have a significant impact on the election,”

and was made at a time when the other party could not

make an effective reply. In 1977, the Board overruled

Hollywood Ceramics to the extent that it permitted the

setting aside of an election because of misleading cam-

paign statements. Shopping Kart Food Market, 228

NLRB 1311 (1977). The Hollywood Ceramics test then

was reinstated in General Knit of California, Inc., 239

NLRB 619 (1978), but General Knit itself was over-

ruled and the Shopping Kart test reinstated in Midland

Nat'l Life Ins. Co., 263 NLRB No. 24, 110 L.R.R.M.

1489 (1982). At present, the Board “will_not set elec-

tions aside on the basis of misleading campaign state-

ments,” but “will . . . intervene in cases where a party

has used forged documents which render the voters unable

to recognize propaganda for what it is.” Jd. at 1494.

Midland was decided subsequent to the Board’s deci-

sion in this case and Employer would have us apply it

- prospectively only. Appellate courts, however, ordinarily

apply the law in effect at the time of the appellate de-

cision. Bradley v. School Board of Richmond, 416 U.S.

696, 711 (1974). Where, as here, there is an interven-

ing change of agency policy, the central question is

“whether giving the change retrospective effect will best

effectuate the policies underlying the agency’s governing

act,” and that question is committed, in the first instance,

26a

to the agency’s sound discretion. NLRB v. Food Store

Employees Union, 417 U.S. 1, n.10 (1974). The Board

clearly has indicated that Mid/and should apply to this

case. In Midland, the Board balanced the hardships im-

posed by retroactivity against the prospect of producing

results contrary to the statutory design and determined

that Midland would apply “to all pending cases in what-

ever stage.” * Midland, 110 L.R.R.M. at 1494 n.24. In-

deed, the only hardship to employer is that, in reliance on

the Hollywood Ceramics/General Knit standard, it re-

frained from making any misrepresentations of its own

during the campaign. We thus join those other courts of

appeals that have applied Midland retroactively. See

NLRB v. Monarch Boat Co., No. 82-1963 (8th Cir., filed

July 22, 1983); NURB v. Milwaukee Brush Mfg. Co.,

705 F.2d 257 (7th Cir. 1983); NLRB v. Rollingon Corp.,

702 F.2d 589 (5th Cir. 1983).

Nevertheless, since Employer’s objections were drawn

under the Hollywood Ceramics/General Knit standard

and no hearing was held on the misrepresentations issue,

we carnot determine whether the alleged misrepresenta-

tions included the kind of forged document use discussed

in Midland. Thus, on remand, Employer should be given

the opportunity to amend its objections in light of the

Midland standard. Furthermore, we decline to resolve

Employer’s challenge to the validity of the Midland

standard. Given the incompleteness of the record before

us, resolution of that challenge would be premature.’

8 This case is unlike Cedar Coal Co. v. NLRB, 678 F.2d 1197,

1199 (4th Cir. 1982), where we declined to apply retroactively an-

other Board decision because the Board had “not indicated its

policy on retroactive application to earlier Board decisions which

have been appealed.”” We read the “to all pending cases in whatever

stage” statement to mean that the Board would apply Midland to

earlier decisions that have been appealed, including this one.

® Employer claims that it was entitled to a hearing on the mis-

representation issue. The Board affirmed the Regional Director’s

overruling, withouf a hearing, of Employer’s objections 2-5 on the

27a

For the foregoing reasons, the Board’s order is va-

cated and the case is remanded to the Board for further

proceedings.

VACATED AND REMANDED.

grounds that they failed to establish a prima facie case for setting

aside the election under the Hollywood Ceramics/General Knit

standard. On appeal, the Board does not argue that the objections

did not warrant a hearing under the Hollywood Ceramics/General

Knit standard. Rather, it argues that the Midland standard applies

and since the objections contain no allegation of union use of forged

documents, Employer failed to allege a prima facie case. Thus,

no hearing was required. On remand, if the Board decides that

the Hollywood Ceramics/General Knit standard should apply—

although, as discussed above, we believe the Board clearly has

indicated that Midland applies to this case—then Employer is en-

titled to a hearing on the misrepresentation issue. A central issue

in the Union campaign was the level of employee benefits and

Objections 2-4 contain allegations of material misrepresentations

concerning benefits. Whether Employer is entitled to a hearing if

the Mid/and standard is applied will depend on the allegations in

the amended objections.

28a

SPROUSE, Circuit Judge, dissenting:

I respectfully dissent.

I disagree with the pivotal point of the majority de-

cision—that National Posters raised substantial issues

of fact about Samuel John’s employment status requir-

ing a hearing by the Regional Director.

A post-election hearing undoubtedly must be conducted

when the objecting party raises a “substantial and ma-

terial issue of fact relating to the validity of a repre-

sentation election.” Methodist Home v. NLRR, supra.

One cannot, however, raise a substantial issue of fact

merely by questioning the interpretation of the Regional

Director’s findings. Macomb Pottery Co. v. NLRB, 376

F.2d 450, 453 (7th Cir. 1967); NLRB v. Sun Drug Co.,

359 F.2d 408, 414 (3d Cir. 1966).

The Director carefully considered all the objective evi- |

_ dence before reaching a decision on John’s employment |

status. He correctly credited John with working at least |

some hours in each month from June through December, i

1981. He found that John was paid slightly less and |

received fewer benefits than his co-workers because he |

had only recently been employed. He found, however, |

that John worked shoulder to shoulder with full-time em-

ployees, performing the same job assignments and report-

ing to the same supervisors.

National Posters relies on the affidavit of Earl Seth,

its president and sole owner, as sufficient to raise a sub-

stantial and material issue of fact as to whether John

was a “part-time” or “seasonal” employee. Seth’s affi-

davit essentially stated his subjective view that he had

hired John in anticipation of increased seasonal work.

The Regional Director, in rejecting this bare assertion,

based his findings on uncontested documented evidence.

In my mind, the entirely subjective intent of the em-

ployer under these circumstances is entitled to little

———E eee

29a

weight. Specific and objective facts from company rec-

ords were introduced into evidence and fully considered

by the Regional Director. A single self-serving, and en-

tirely subjective, impression simply does not have the

probative force to create an issue of fact when measured

against that evidence.

I have, moreover, a more fundamental difference with

the majority opinion. It states: “the critical legal con-

clusion drawn by the Regional Director was that John

was a part-time, and not a season employee .... The

conclusion is based on the Regional Director’s factual

finding that Employer’s need for John’s services was

based on the periodic availability of work rather than

on peak season demand. That finding, however, is a reso-

lution of the material factual issue raised by Employer.”

I suggest that my respected colleagues have not sep-

arately stated a legal conclusion and a factual finding

upon which it was based; rather, they have simply taken

the legal conclusion—that John was a part-time employee

and recategorized it as a finding of fact under the cloak

of factual terminology. The Director’s findings of fact

were that John worked a stated number of hours in each

-month, received a certain level of pay and benefits, and

worked “shoulder to shoulder” with regular employees.

The Director concluded from these facts that John’s serv-

ice was based on the periodic availability of work. This

was, at least, an ultimate conclusion of fact from which

only one conclusion of Jaw was possible—that John was a

part-time employee. To create an issue of fact under the

circumstances of this case, National Posters must offer

evidence, by affidavit or otherwise, contradicting the Di-

rector’s factual findings as to hours worked, job assign-

ments, and the conditions of his employment. Instead,

it by affidavit merely disputed the inferences and con-

clusions drawn by the Regional Director from record

facts. I feel the Board correctly rejected the contention

that such a subjective impression created a substantial

30a

and material issue of fact. Macomb Pottery Co. v. NLRB,

376 F.2d 450, 453 (7th Cir. 1967); NLRB v. Sun Drug

Co., 359 F.2d 408, 414 (3d Cir. 1966). a

I agree with the majority that the standard announced

by the Board in Midland controls the misrepresentation

issues, but since National Posters raised no Midland is-

sues, I do not feel a remand is necessary.

I would enforce the Board’s order.

‘i diseD ie Raifeiteinind teal dea '

3la

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

REGION 5

Case 5-RC-11680

NATIONAL POSTERS, INC., AND NATIONAL LITHO, A

DIVISION OF NATIONAL POSTERS, INC.,

Employer

and .

BALTIMORE PRINTING PRESSMEN AND

ASSISTANTS UNION #61

Petitioner

REPORT ON CHALLENGES AND OBJECTIONS

Pursuant to a Stipulation for Certification Upon Con-

sent Election! approved by the undersigned on November

10, 1981, a secret-ballot election was conducted under

his supervision on December 15, 1981, with the following

results:

Approximate number of eligible voters 53

Void ballots 0

Votes cast for Petitioner 24

Votes cast against participating labor

organization 21

Valid votes counted 45

Challenged ballots 4

Valid votes counted plus challenged ballots 49

1The unit is: “All production and maintenance employees in-

cluding truck drivers, employed by the Employer at its 800 Debelius

Avenue, Baltimore, Maryland and 4206 Shannon Drive, Baltimore,

Maryland locations; but excluding all office clerical employees,

guards and supervisors as defined in the Act.” The eligibility pe-

riod is the payroll period ending Sunday, November 8, 1981.

32a

The challenged ballots affect the results of the election.

Timely objections to conduct affecting the results of

the election were filed by the Petitioner and the Em-

ployer on December 22, 1981.7

THE CHALLENGES

The Empleyer challenged the ballot cast by Samuel

John on the grounds he was a casual employee, and there-

fore not eligible to vote. Petitioner challenged the ballots

east by Albert Amend and Wesley Souders on the grounds

they were supervisors and/or managerial employees within

the meaning of the Act. Additionally Petitioner chal-

lenged the ballot cast by Robert Beddoe on the grounds

he was an Office clerical employee, and therefore not eligi-

ble to vote.

SAMUEL JOHN

With respect to the challenged ballot of Samuel John,

Petitioner contends he is eligible as a regular part-time

employee but failed to submit evidence in support of its

position. The Employer maintains John was hired in

June 1981, as a casual, seasonal employee who is “on

call” to perform the job of “racking” * on an as-needed

basis. John is paid the minimum wage ($3.35 per hour),

while the Employer’s two full-time rackers earn $3.47 and

$4.37 per hour respectively. Unlike John, their salaries

increase with their length of service. Moreover, John

does not receive any of the benefits enjoyed by other em-

ployees such as health and welfare insurance, vacation

pay, sick pay or holiday pay.

2 The petition was filed on October 22, 1981. The undersigned

will consider on its merits only that alleged interference which

occurred during the critical period which begins on and includes

the date of the filing of the petition and extends through the elec-

tion. Goodyear Tire and Rubber Company, 138 NLRB 453.

3 Racking is a job essentially consisting of helping to lift sheets

of completed posters off machines,

33a

The Employer telephonically offers racking work to

John when there is too much work for the two regular

full-time rackers to complete. Inasmuch as the need for

an extra racker fluctuates with the availability of jobs

requiring racking, the Employer has had occasion to use

John anywhere from one to over ten consecutive days.

Conversely, there are periods during which John was not

used for as much as three weeks. The table below lists

the hours John has worked during the weekly pay periods

covering his employment:

Week Ending (1981) Hours Worked

6/30 9

7/3 0

7/10 0

T/17 0

7/24 36

7/31 8

8/7 0

8/14 0

8/21 6

8/28 2214

9/4 0

9/11 0

9/18 0

9/25 3014

10/2 433),

10/9 0

10/16 0

10/23 27

10/30 36

11/16 45

11/13 5114,

11/20 473/,

11/27 2834,

12/4 81%

12/11 3534,

12/18 50

12/25 ' 2614,

January 2, 1982 16

34a

The Employer maintains that John’s increased hours

between October and December reflect the Employer’s sea-

sonal increase in business as well_as the Employer’s

acquisition of a “large account” which necessitated rack-

ing. John has not worked since the payroll period ending

January 2, 1982, because the seasonal period has ended

and because the “large account” has been completed.

The Board normally determines eligibility for part-time

and on-call employees on the basis of a representative

period, in some cases, the three month quarter which

immediately precedes the eligibility date. Motor Trans-

port Labor Relations, Inc., 189 NLRB 70, 72; Davison-

Paxon Company, 185 NLRB 21, 23; Sears, Roebuck and

Co., 193 NLRB 330; Hardy Herpolsheimer’s—A Division

of Allied Stores of Michigan, Inc., 227 NLRB 652. In

several cases the Board has found part-time and on-call

employees eligible to vote if they regularly averaged four

hours of work per week in the quarter preceding the

election. Davison-Paxon Company, supra.; V.I.P. Movers,

Inc., 232 NLRB 14. Moreover, in some cases cited herein

_the Board has applied these standards even though part-

time and on-call employees receive different benefits than

regular full-time employees. V.J.P. Movers, Inc., supra.

As noted above, the Employer contends John is a seasonal

and/or casual employee. This conclusion does not follow

from the facts supplied by the Employer. The Employer’s

need for John’s services is more dependent upon the avail-

ability of jobs requiring extra racking, than upon par-

ticular peak periods of the business year. In this re-

gard, it is noted that John, following his hire in June

1981, worked during each of the six successive months.

When John reports to work he performs racking duties

also performed by full-time rackers who were eligible to

vote. Moreover, John labors “shoulder to shoulder” with

employees regularly assigned to operate printing presses

and he is supervised by the supervisor of the regular

full-time and part-time employees.

35a

In view of the above, and considering that John aver-

aged in excess of four hours per week in each of the two

quarters preceding the election, it appears John has a

substantial community of interest with other employees.

Accordingly, the undersigned recommends the challenge

to his ballot be overruled.

ALBERT AMEND AND WESLEY SOUDERS

With respect to the challenged ballots of Albert “Pete”

Amend and Wesley Souders, Petitioner contends they are

supervisors within the meaning of the Act because, inter

alia, they receive greater wages and benefits than other

employees, enjoy different working conditions and exer-

cise independent judgment in matters such as hiring,

firing, disciplinary section, assignment of work and the

adjustment of grievances. Conversely, the Employer as-

serts that Amend and Souders are merely working fore-

men and do not have the supervisory authority alleged

by the Petitioner. Inasmuch as the challenges to the bal-

lots of Amend and Souders raise substantial issues of fact

which can best be resolved by record testimony, the un-

dersigned recommends a hearing be held with respect

to the challenges of Albert Amend and Wesley Souders.

ROBERT BEDDOE

Regarding the challenge to the ballot cast by Robert

Beddoe, Petitioner contends he is an office clerical and,

therefore, does not share a sufficient community of in-

terest with the eligible employees. Petitioner failed to

submit any evidence in support cf its challenge. The

Employer contends Beddoe is eligible to vote in the

election inasmuch as he is a shipping clerk spending sub-

stantial time working in the plant among other eligible

employees. According to the testimony of Earl Seth, Jr.,

president of the Emplover, Beddoe is responsible for

keeping the inventory of paper stock as it proceeds

through the plant. In addition, Beddoe loads and un-

36a

loads trucks and actually moves paper supplies around

the plant via forklifts. Beddoe also lifts and stores paper

stock when it is delivered to the National Litho facility

and works in the warehouse. Finally, Seth asserts that

Beddoe does not perform typing and secretarial functions

at National Litho inasmuch as the Employer employs

_- another employee who is responsible for those duties.

Based upon the evidence submitted during the investi-

gation it appears that Beddoe is a plant clerical em-

ployee since his duties are directly related to unit work

and are, in fact, largely performed in the plant where

other employees work. Risdon Manufacturing Company,

195 NLRB 579. Accordingly, the undersigned recom-

mends the challenge to his ballot be overruled.

THE EMPLOYER’S OBJECTIONS

Objection 1

Throughout the week prior to the election, represent-

atives of the Petitioner, including President Gerald

L. Brown, told numerous employees that Ear] Seth,

Sr., President of the Company, had spent large

amounts of company funds on presents for his

children (i.e., a large tract of expensive property

for his daughter). The Union made these state

ments, which were completely false, during visits to

the homes of the employees, of which the Employer

was unaware until after the election. The Union’s

purpose in making these misrepresentations was to

indicate that the Employer had more money available

than it was telling the employees, and/or to indi-

cate that the Employer was committing malfeasance

in spending the money which it did have. This mone-

tary issue was one of the central issues in the cam-

paign due to a recent decrease in wages and bene-

fits resulting from the company’s financial condi-

tion.

ai al es Pn

37a

In support of this Objective, the Employer submitted

the statement of its President and sole owner, Earl

Seth, Jr., as well as the statements of two employees

eligible to vote in the election. According to Seth, fol-

lowing the election several employees told him that Peti-

tioner representatives, including Union President Gerald

L. Brown, had visited the employees’ homes a few days

prior to the election and told them, inter alia, that Seth

had spent large sums of money on presents for his child-

ren, three of whom are employed by the Employer. The

employees told Seth the Petitioner’s representatives

stated the presents included the purchase of a large

farm for Seth’s daughter and similar gifts for his other

children, money which supposedly should have been spent

on behalf of Seth’s other employees. The Employer con-

tends Seth did not learn of Brown’s statements until

after the election. According to the employee statements

submitted in support of this Objection, about a week prior

to the election Brown stated the Employer had money

available (for the employees) and that Earl Seth had

bought a lot of property for his children. One employee

witness states Brown told him Seth had purchased “a

lot of property” for his daughter’s wedding present and

Brown either characterized the property as consisting of

30 acres or as costing $30,000. The Employer denies the

contents of the statements attributed in Brown. The

Employer maintains its financial status was a central

campaign issue especially since the Employer had been

forced to lay off several employees and impose an across-

the board ten percent pay reduction in October 1981. The

Petitioner denies having engaged in objectionable conduct

as described in Objection 1.

The Board has held an election may be set aside where

a party engages in last-minute misrepresentations involv-

ing a substantial departure from the truth which may

reasonably be expected to have a significant impact on

the election. General Knit of California, Inc., 239 NLRB

38a

619. Moreover, the Board has been sensitive to union

misrepresentations regarding the financial status and ac-

tivities of an employer during a campaign in which such

matters are central to the employees. In Comier Hosiery

Mills, Inc., 248 NLRB 19, the Board directed a new elec-

tion based upon the Union’s misrepresentations that the

Employer’s poor financial statement was the result of an

inprudent two million dollar loan by the Employer to a

wholly owned subsidiary. In fact, the Employer had not

made such a loan. In the instant case, however, even

assuming, arguendo, that the Employer’s allegations are

accurate, this merely establishes that the Petitioner rep-

resented: 1) the sole owner of the Employer had money

available and; 2) had purchased a substantial amount of

property and gifts for his children. The Employer’s evi-

dence does not show the Petitioner accused Seth of cor-

porate malfeasance. In all these circumstances, it does

not appear reasonable to conclude that Petitioner’s alleged

misrepresentations affected the results of the election. Ac-

cordingly, the undersigned recommends Employer’s Ob-

jection 1 be overruled in its entirety.

Objection 2

Representatives of the Petitioner also materially mis-

represented the Union’s pension plan by stating or

implying that the employees would automatically be

entitled to participate in the Union’s plan upon vot-

ing in the Union, and that the employees’ participa-

tion in the plan would be automatically paid for out

of union dues.

Objection 3 =

Representatives of the Union materially misrepre-

sented the health and welfare benefits to which the

employees would be entitled if the Union were se-

lected as the employees’ representative, stating or

implying that all of Local 61’s contracts contained

all the health and welfare benefits being promised by

39a

the Union, and leading the employees to believe they

would automatically be entitled to optical coverage

and other benefits upon mere payment of dues fol-

lowing certification of the Union.

Objection 4

The Union representatives misrepresented to numer-

ous employees the amounts of dues which the em-

ployees would have to pay to join the union.

Objection 5

The Union made various false and misleading state-

ments to the employees during the days immediately

prior to the election. Each of these statements and

the statements described above misrepresented ma-

terial and significant facts, to which the Employer

had no effective opportunity to reply, and consti-

tuted such improper conduct as to destroy the condi-

tions necessary to a fair and impartial election.

Due to certain similarities, Employer’s Objections 2,

3, 4, and 5 will be discussed together.

In support of these Objections the Employer submitted

the statements of President Seth and Supervisors Janis

Trogden and Dave Sutphin. In their statements, Seth,

Trogden and Sutphin described how employees, during

a post election company meeting, apprised them of numer-

ous misrepresentations made by Petitioner during the

election campaign. The employee told the Employer, Pe-

titioner’s agents had falsely stated or implied that em-

ployees would automatically be entitled to participate in

the Union’s pension plan upon Union certification, and

that the employees’ participation in the plan would be

automatically paid for out of union dues. According

to the Employer, employees also claimed that union repre-

sentatives inaccurately represented that if Petitioner wor

the election employees would be entitled to all benefits

contained in a standard union health plan such as free

40a

optical coverage. Further, Petitioner allegedly claimed

that employee participation in the health plan would be

paid for out of union dues. Finally, Seth, Trogden and

Sutphin describe how the employees told them that Pe-

titioner’s agents claimed the union dues would be $15

per month. The Employer contends the actual union dues

are $21 per month for apprentices and $23 per month

for journeymen. Further, the Employer asserts it did not

have an opportunity to reply to Petitioner’s misrepre-

sentations since the Employer did not learn of them

until after the election. Petitioner denies the allegations

contained in Objectives 2, 3, 4 and 5.

By mailgram dated December 23, 1981, the Employer

was advised as follows:

Objections received. As set forth in Notice of Pro-

cedures served with the Notice of Election in this

case, submit all affidavits, signed statements, docu-

ments, other supporting evidence. Absent receipt by

December 30, 1981 of specific evidence which prima

facie would warrant setting aside the election and

objections will be dismissed. Section 102.69 of the

rules and regulations requires immediate service of

objections on other parties.

The Employer’s representative was also given a copy

of the above-noted Notice of Proceedings by the Board

agent who conducted the election on December 15, 1981.

As set forth above, the Employer was notified on three

separate occasions that the Notice of Procedures spe-

cifically requires the objecting party to submit evidence

which prima facie warrant setting aside the election.

Moreover, paragraph 3(a) of the Notice of Procedures

fully apprised the Employer of the Region’s requirements

as to the form of the evidence submitted:

As to witnesses, a list of all witnesses whose testi-

mony is relied on to support the objections, together

with the written statements or affidavits incorporat-

4la

ing the witnesses’ testimony and signed by the wit-

ness.

In support of Objections 2, 3, 4 and 5, the Employer

merely submitted the hearsay statements of three super-

visors. The Employer failed to provide a statement from

any of the employees who witnessed the alleged acts of

Petitioner misconduct described in Objections 2, 3, 4 and

5. Accordingly, in light of the Employer’s failure to com-

ply with established Board procedures and the specific

instructions of the undersigned to provide signed state-

ments of witnesses, the undersigned recommends Em-

ployer’s Objections 2, 3, 4 and 5 be overruled in their

entirety. Bob G. Lewis d/b/a Classic Courts, 246 NLRB

603.

THE PETITIONER’S OBJECTIONS

Objection 1

Subsequent to the filing of the petition-herein and

prior to the election on December 15, 1981, the Em-

ployer, by and through its agents, representatives,

and others, began making payments for health care

benefits on behalf of employees, in order to per-

suade said employees to oppose Petitioner.

In support of this Objection, Petitioner submitted the

statements of several employees who testified prior to

July 1981, the Employer furnished employees a free health

plan, but, in August 1981, the Employer required em-

ployees to pay for the plan, apparently due to the poor

financial status of the Employer. The employee wit-

nesses further state on or about November 15, 1981,

after the Union campaign began, the Employer reestab-

lished its practice of providing the plan to employees

free of charge. Petitioner contends the Employer’s con-

duct in November was designed to persuade employees

to oppose the Petitioner. The Employer desires the Peti-

tioner’s contentions. In support of its position the Em-

ployer furnished statements and profit/loss figures dem-

42a

onstrating how the Employer’s conduct was based entirely

upon business conditions which were poor in the first

half of 1981 and dramatically improved during the latter

months of the year.

Accordingly, as it appears substantial and material

issues of fact have been raised which can best be resolved

_ by record evidence, the undersigned recommends a hear-

ing be held with respect to Petitioner’s Objection 1.

Objection 2

Subsequent to the filing of the petition herein and

prior to the election on December 15, 1981, the Em-

ployer, by and through its agents and representa-

tives, propounded misleading and inflammatory cam-

paign material in a clear and deliberate attempt to

appeal soley to emotion and prejudice, thereby inter-

fering improperly with the voters’ free choice in the

election.

Objection 6

By the foregoing, and by other acts and conduct, the

Employer, through its agents, representatives, ad-

herents and others, interfered with, restrained, and

coerced eligible voters in the exercise of their rights

under the Act and destroyed the requisite laboratory

conditions necessary for the voters to make a free,

fair, and reasoned choice in the election conducted

herein.

Petitioner’s Objections 2 and 6 will be discussed

together.

The Petitioner had previously received the Notice of

Procedures on two occasions and the December 13, 1981,

mailgram, referred to above in Employer’s Objections

2, 3, 4, and 5. Petitioner submitted no evidence in sup-

port of Objection 2 and no evidence of the “other acts

and conduct” referred to in Objection 6.

43a

Accordingly, inasmuch as Petitioner has failed to sub-

mit prima facie evidence in support of Objections 3 and

6, the undersigned recommends those Objections be over-

ruled. Bob G. Lewis d/b/a/ Classic Courts, supra.

Objection 3

Subsequent to the filing of the petition herein, and

prior to the election on December 15, 1981, the Em-

p'oyver, by and through its agents and representatives

discouraged employees from participating in the elec-

tion, by changing the hours of work for certain

second shift employees so that their work hours did

not commence until one hour after the stipulated |

period for voting had terminated.

In support of this Objection, Petitioner submitted the

statements of employees who describe how the Employer,

on election day, changed the shift hours of the second

shift employees assigned to the National Litho facility,

one of two facilities involved herein. Prior to election

day, the second shift hours had been 4:00 p.m. to 2:00

a.m. and on election day they were allegedly changed to

5:00 p.m. to 3:00 a.m. The voting hours at the National

Litho facility were 3:30 to 4:00 p.m. Petitioner asserts

the election day change in shift hours was unprecedented

at National Litho and was designed to discourage second

shift employees from voting in the election. The Em-

ployer denies Petitioner’s allegations. According to the

Employer, no change in shift hours occurred on election

day. Although there is a dispute regarding the precise

shift hours on election day, both parties agree all second

shift employees eligible to vote in the election did, in

fact, vote. This fact has been corroborated by the under-

signed’s review of the E'xcelsior list.

Assuming arguendo the shift change did occur, all

eligible employees participated in the election. In these

circumstances and absent evidence that the change in

any way affected the results of the election, the under-

signed recommends Petitioner’s Objection 3 be overruled.

44a

Objection 4

Subsequent to the filing of the petition herein and

prior to the election on December 15, 1981, the Em-

ployer, by and through its agents and representa-

tives, failed and refused to provide Petitioner with

accurate addresses for all employees listed on the

Excelsior list, despite Petitioner’s request that it do

SO.

In support of this Objection, Petitioner submitted the

statements of its President, Gerald Brown. Brown states

he made a mailing to employees upon his receipt of the

Excelsior list on November 18, 1981. On or about No-

vember 20, 1981, Brown telephoned the Employer to in-

form President Seth that the Employer had furnished in-

correct addresses for four named employees. Inasmuch

as Seth was out of the office at the time, an unidentified

person spoke with Brown and told him she couldn’t do

anything about the incorrect addresses, but she would

inform Seth of the problem. Brown states Seth failed to

return his call or correct the deficiencies on the list.

According to Brown, a total of eight addresses were in-

correct and, therefore, the Petitioner’s campaign was

hindered. “ounsel for Petitioner concedes Brown may

not have informed the Employer that the list contained

more than four address errors. The Employer asserts

it furnished the Fyxcelsior list in full compliance with

Board requirements. In support of its position, the Em-

ployer’s president states its treasurer accurately pre-

pared the list based upon the best records of the Em-

ployer. Counsel for the Employer contends that, even

assuming, arguendo, the Employer was apprised of four

address errors on or about November 20, 1981. the Em-

ployer was not obligated to investigate the matter and

furnish the Board correct addresses.

The investigation reveals there were 56 names and

addresses on the Excelsior list submitted by the Em-

= sits Kineibts

45a

ployer. According to Brown, the Employer failed to fur-

nish accurate addresses of eight employees. Therefore,

the percentage of alleged errors is approximately 14 per-

cent. In addition, at the pre-election conference held on

election day the parties agreed to add to the list the

names of William Johnson, Brian Eckstein, and Samuel

John, who was subsequently challenged by the Employer.

Petitioner maintains it never received addresses on these

three employees. Assuming, argwendo, these three em-

ployees are eligible voters, the Employer’s list omitted

names of approximately five percent of the employees.

The Board has held it will not apply the Excelsior rule

mechanically and that, generally, the Board will not set

aside an election due to an insubstantial failure to com-

ply with the rule as long as the Employer has not been

grossly negligent and has acted in good faith. Texas

Christian University, 220 NLRB 396.

The issues present in this Objection are very similar to

those resolved by the Board in Texas Christian Univer-

sity, supra. In that matter, 18 percent of the addresses

‘on the list were inaccurate and there was a three per-

cent omission rate. The Bourd recognized that the Em-

ployer prepared the list based upon its best records and

was not aware of inaccuracies at the time the Employer

submitted the list to the Board. Moreover, the evidence

revealed the Employer, after its first mailing, discovered

11 address changes and received eight returned letters

marked, “Address Unknown”. The Employer took no

action to correct its list following the discovery of the

inaccuracies. The Board refused to sustain the Union’s

objection to this conduct even though the Employer may

have been negligent by not disclosing the address changes

it apparently received before the election. Regarding the

omissions, the Board, while not condoning the Emplover’s

actions, concluded that the errors were not so substantial

as to require the setting aside of the election. Based upon

the foregoing, it does not appear the Employer’s conduct

46a

in the instant matter was either grossly negligent or

done in bad faith. See West Coast Meat Packing Com-

pany, Inc., 195 NLRB 37. Accordingly, the undersigned

recommends Petitioner’s Objection 4 be overruled.

Objection 5

In the hours immediately prior to the election, the

Employer refused to release from work the employee

previously designated by Petitioner as its observer,

despite its verbal agreement, so that Petitioner was

not permitted to have any observer present for the

balloting.

In support of this Objection, Petitioner produced the

statements of President Brown and employee Frank Li-

berto, its designated observer at the National Litho fa-

cility polling place. Brown states on November 27, 1981,

he and the Employer’s Counsel Harry Adelberg verbally

agreed to utilize one observer each during the election.*

They further agreed that one observer for each party

would represent them at both polling places. In response

to Adelberg’s query, Brown told him Liberto or em-

ployee Patricia Hastings, both assigned to National Post-

ers, would serve as Petitioner’s observer. On December

14, Brown informed Liberto that he had been selected as

Petitioner’s observer. The next morning, Liberto asked

his supervisor for permission to leave work at 2:45 p.m.

in order to attend the 3:00 p.m. pre-election conference.

Later that morning, Liberto’s supervisor told him that

Earl Seth_denied the request because there was work for

him to complete prior to the end of the shift at 4:00

p.m. Liberto’s supervisor further told him Seth would

have honored his request had Liberto notified the Em-

ployer in advance that he wished to leave prior to the

completion of his shift. Liberto states he had only clean-

4The Employer, subsequent to the election date, retained new

counsel.

47a

up duties to perform the afternoon of December 15. The

Employer denies having engaged in the conduct described

in Objection 5. Counsel for the Employer maintains Li-

berto failed to make prior arrangements with his super-

visor for his early release and at the time of the election

Liberto could not be spared because supervisors had in-

sufficient notice to arrange for a replacement. The Em-

ployer maintains that at the pre-election conference Peti-

tioner made no effort to locate another employee to serve

as its observer. Finally, it is noted that neither party

utilized an observer at the National Litho facility polling

place.

The Board has held where an observer is unavailable

to a party, the election is not to be set aside in circum-

stances where the party’s plight is attributable to its own

lack of diligence. San Francisco Bakery Employers As-

sociation, 121 NLRB 1204, 1206; Westinghouse Appliance

Sales and Service Co., A Division of Westinghouse Elec-

tric Corporation, 182 NLRB 481. Even though there is

some dispute as to the urgency of the work Liberto per-

formed the afternoon of the election, it does not appear

Petitioner was sufficiently diligent in insuring that it’s

observer would be available to serve at the first polling

session. Prior to election day, neither Petitioner nor

Liberto told the Employer that Liberto would be an ob-

server. Moreover, Petitioner waited until the day prior

to the election to notify Liberto that he had been desig-

nated. In addition, when Petitioner learned that Liberto

could not attend the first polling session it did nothing

to procure a replacement. It is also noted that neither

party had an observer at National Litho and finally, Pe-

titioner has not claimed or shown that it was unable to

challenge particular voters as a result of the Employer’s

alleged conduct. Based on the foregoing, Objection 5 does

not constitute grounds for overturning the election. Ac-

cordingly, the undersigned recommends Petitioner’s Ob-

jection 5 be overruled.

48a

Summary

In summary, the undersigned recommends the chal-

lenges to the ballots cast by Robert Beddoe and Samuel

John be overruled, their ballots counted and a Revised

Tally of Ballots issue. If the Revised Tally indicates that

Petitioner has received a majority of the valid votes

cast, it will not be necessary to hold a hearing regarding

the two remaining challenges and Petitioner’s Objection

1. However, if the Revised Tally reveals no determinative

result, it is recommended a hearing be held regarding the

challenges to Albert Amend and Wesley Souders and

Petitioner’s Objection 1. Finally, the undersigned recom-

mends Employer’s Objections 1, 2, 3, 4 and 5 and Peti-

tioner’s Objections 1, 3, 4, 5, and 6 be overruled in their

entirety.

Dated at Baltimore, Maryland this 16th day of March

1982.

/s/ Louis J. D’Amico

Loulis J. D’AMICO,

Acting Regional Director

National Labor Relations Board,

Region 5

9100 Garmatz Federal Building and Courthouse

101 West Lombard Street, Ninth Floor

Baltimore, Maryland 21201

Under the provisions of Section 102.69 of the Board’s

Rules and Regulations, exceptions to this report may be

filed with the Board in Washington, D. C. Under the

provisions of Section 102.69(g) of the Board’s Rules,

documentary evidence, including affidavits, which a party

has timely submitted to the Acting Regional Director in

support of its challenges and objections and which are

not included in the Report, are not a part of the record

49a

before the Board unless appended to the exceptions of

opposition thereto which a party files with the Board.

Failure to append to the submission to the Board copies

of evidence timely submitted to the Acting Regional Di-

rector and not included in the Report shall preclude a

party from relying upon that evidence in any subsequent

related unfair labor practice proceeding. Exceptions must

be received by the Board in Washington by March 29,

1982. |

50a

265 NLRB No. 115 D—9554

Baltimore, MD

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Case 5—CA—14585

NATIONAL POSTERS, INC., AND NATIONAL LITHO, A

DIVISION OF NATIONAL POSTERS, INC.,

and

BALTIMORE PRINTING PRESSMEN AND

ASSISTANTS UNION #61

DECISION AND ORDER

Upon a charge filed on August 6, 1982, by Baltimore

Printing Pressmen and Assistants Union #61, herein

called the Union, and duly served on National Posters,

Ine. and National Litho, A Division of National Posters,

Inc., herein called Respondent, the General Counsel of

the National Labor Relations Board, by the Regional Di-

rector for Region 5, issued a complaint on August 31,

1981, against Respondent, alleging that Respondent had

engaged in and was engaging in unfair labor practices

affecting commerce within the meaning of Section 8

(a) (5) and (1) and Section 2(6) and (7) of the Na-

tional Labor Relations Act, as amended. Copies of the

charge and complaint and notice of hearing before an

administrative law judge were duly served on the par-

ties to this proceeding.

With respect to the unfair labor practices, the com-

plaint alleges in substance that on July 14, 1982, fol-

5la

lowing a Board election in Case 5—RC—11680', the

Union was duly certified as the exclusive collective-bar-

gaining representative of Respondent’s employees in the

unit found appropriate; and that, commencing on or

about August 3, 1982, and at all times thereafter, Re-

spondent has refused, and Gontinues to date to refuse,

to bargain collectively with the Union as the exclusive

bargaining representative, although the Union has re-

quested and is requesting it to do so. On August 26,

1982, Respondent filed its answer to the complaint ad-

mitting in part, and denying in part, the allegations in

the complaint.

On October 12, 1982, counsel for the General Counsel

filed directly with the Board a Motion for Summary

Judgment. Subsequently, on October 18, 1982, the Board

issued an order transferring the proceeding to the Board

and a Notice To Show Cause why the General Coun-

sel’s Motion for Summary Judgment should not be

granted. Respondent thereafter filed an opposition to the

Motion for Summary Judgment.

Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National

Labor Relations Board has delegated its authority in this

proceeding to a three-member panel.

Upon the entire record in this proceeding, the Board

makes the following:

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

ceeding, Case 5—RC—11680, 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 Bever-

age 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.

52a

Ruling on the Motion for Summary Judgment

In its answer to the complaint and opposition to the

General Counsel’s Motion for Summary Judgment, Re-

spondent admits that the Union was certified, that it

received a request to bargain, and that it has refused

to bargain, but denies that it has violated Section 8

(a) (5) of the Act. Specifically, Respondent maintains

that it has no obligation to bargain with the Union be-

cause the underlying certification of the Union was im-

properly issued inasmuch as the results of the election

in Case 5—RC—11680 are invalid as a matter of law.

Review of the record herein, including the record in

Case 5—RC—11680, reveals that, pursuant to a Stipu-

lation for Certification Upon Consent Election, an election

was conducted on December 15, 1981. The tally showed

24 votes for and 21 votes against the Union, with 4

challenged ballots. The Employer (and Petitioner) there-

after filed objections to conduct affecting the results

of the election, as well as statements of position concern-

ing the challenged ballots. Following an investigation,

the Regional Director for Region 5, on March 16, 1982,

issued a Report on Challenges and Objections in which

he recommended that the Employer’s objections be over-

ruled, and that two challenged ballots be opened and

counted. On March 31, 1982, the Employer filed ex-

ceptions to the report with the Board. Thereafter, on

June 29, the Board issued a “Decision, Direction To Open

and Count Certain Challenged Ballots, Contingent Di-

rection of Hearing,” in which it directed that the two

challenged ballots be opened and that, if the two remain-

ing challenged ballots were no longer determinative, the

Regional Director issue a certification of representa-

tive. The Board further directed that, if the revised tally

indicated that the two challenged ballots were determina-

tive, that a hearing be held with respect to those chal-

lenged ballots, as well as with respect to Petitioner’s

Objection 1. The two challenged ballots were opened and

nh Om HAN: Nid atte lel MD ga” tanner tinea nd

53a

counted, with the revised tally showing 25 valid votes

for and 22 against the Union, thereby making the re-

maining 2 challenged ballots nondeterminative. On July

14, 1982, 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 circum-

stances 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 rep-

resentation proceeding.”

All issues raised by Respondent in this proceeding were

or could have been litigated in the prior representation

proceeding, 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 Sum-

mary Judgment.

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

following:

Findings of Fact

I. The Business of Respondent

National Posters, Inc. and National Litho, A Division

of National Posters, Inc., is a Maryland corporation en-

gaged in the business of printing and sign creation at

its 800 Debelius Avenue and 4206 Shannon Drive, Balti-

more, Maryland, locations. During the past 12 months,

a representative period, the Respondent purchased and

2See Pittsburgh Plate Glass Co. v. N* °.B., 313 U.S. 146, 162

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

102.69 (c).

54a

received goods valued in excess of $50,000 directly from

points located outside the State of Maryland.

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

is, and has been at all times material herein, an em-

ployer engaged in commerce within the meaning of Sec-

tion 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

Baltimore Printing Pressmen and Assistants Union

#61 is a labor organization within the meaning of Sec-

tion 2(5) of the Act.

III. The Unfair Labor Practice

A. The Representation Proceeding

1. The unit

The following employees of Respondent constitute a

unit appropriate for collective-bargaining purposes within

the meaning of Section 9(b) of the Act:

All production and maintenance employees includ-

ing truck drivers, employed by the Employer at its

800 Debelius Avenue and 4206 Shannon Drive, Bal-

timore, Maryland locations; but excluding all office

clerical employees, guards and supervisors as defined

in the Act.

2. The certification

On December 15, 1981, a majority of the employees of

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

ducted under the supervision of the Regional Director

for Region 5, designated the Union as their representative

for the purpose of collective-bargaining with Respondent.

The Union was certified as the collective-bargaining

representative of the employees in said unit on July 14,

1982, and the Union continues to be such exclusive rep-

55a

resentative within the meaning of Section 9(a) of the

Act.

B. The Request To Bargain and Respondent’s Refusal

Commencing on or about July 27, 1982, and at all times

thereafter, the Union has requested Respondent to bar-

gain collectively with it as the exclusive collective-bar-

gaining representative of all the employees in the above-

described unit. Commencing on or about August 3, 1982,

and continuing at all times thereafter to date, Respondent

has refused, and continues to refuse, to recognize and

bargain with the Union as the exclusive representative

for collective bargaining of all employees in said unit.

Accordingly, we find that Respondent has, since August

1, 1982, 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 en-

gaging 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 de-

scribed 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 dis-

putes burdening and obstructing commerce and the free

flow of commerce.

V. The Remedy

Having found that Respondent has engaged in and is

engaging 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 Union as the exclusive rep-

56a

resentative of all employees in the appropriate unit, and,

if an understanding is reached, embody such understand-

ing in a signed agreement.

In order to insure that the employees in the appropriate

unit will be accorded the services of their selected bar-

gaining 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 repre-

sentative in the appropriate unit. See Mar-Jac Poultry

Company, Inc., 186 NLRB 785 (1962) ; Commerce Com-

pany d/b/a 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 entire record, makes the following:

Conclusions of Law

1. National Posters, Inc. and National Litho, A Di-

vision of National Posters, Inc., is an employer engaged

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

of the Act.

2. Baltimore Printing Pressmen and Assistants Union

#61 is a labor organization within the meaning of Sec-

tion 2(5) of the Act.

8. All production and maintenance employees includ-

ing truck drivers, employed by the Respondent at its 800

Debelius Avenue and 4206 Shannon Drive, Baltimore,

Maryland locations; but excluding all office clerical em-

ployees, guards and supervisors as defined in the Act,

constitute a unit appropriate for the purposes of col-

lective bargaining within the meaning of Section 9(b)

of the Act.

4. Since July 14, 1982, the above-named labor organi-

zation has been and now is the certified and exclusive

;

57a

representative of all employees in the aforesaid appro-

priate unit for the purpose of collective bargaining within

the meaning of Section 9(a) of the Act.

5. By refusing on or about August 3, 1982, and at

all times thereafter, to bargain collectively with the above-

named labor organization as the exclusive bargaining rep-

resentative of all the employees of Respondent in the

appropriate unit, Respondent has engaged in and is en-

gaging in unfair labor practices within the meaning of

Seceion 8(a) (5) of the Act.

6. By the aforesaid refusal to bargain, Respondent has

interfered with, restrained, and coerced, and is interfer-

ing with, restraining, and coercing, employees in the ex-

ercise of the rights guaranteed them in Section 7 of the

Act, and thereby has engaged in and is engaging in un-

fair 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 Re-

lations Act, as amended, the National Labor Relations

Board hereby orders that the Respondent, National Post-

ers, Inc. and National Litho, A Division of National

Posters, Inc., Baltimore, Maryland, 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

employment with Baltimore Printing Pressmen and As-

sistants Union #61 as the exclusive bargaining repre-

58a

sentative of its employees in the following appropriate

unit:

All production and maintenance employees including

truck drivers, employed by the Employer at its 800

Debelius Avenue and 4206 Shannon Drive, Balti-

more, Maryland locations; but excluding all office

clerical employees, guards and supervisors as de-

fined in the Act.

(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 em-

ployees in the aforesaid appropriate unit with respect to

rates of pay, wages, hours, and other terms and condi-

tions of employment and, if an understanding is reached,

embody such understanding in a signed agreement.

; (b) Post at its facilities at 800 Debelius Avenue and

4206 Shannon Drive, Baltimore, Maryland, copies of the

attached notice marked ‘‘Appendix.” * Copies of said no-

tice, on forms provided by the Regional Director for Re-

gion 5, after being duly signed by Respondent’s repre-

sentative, shall be posted by Respondent immediately upon

receipt thereof, and be maintained by it for 60 consecu-

tive days thereafter, in conspicuous places, including all

places where notices to employees are customarily posted.

Reasonable steps shall be taken by Respondent to insure

%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 RELA-

TIONS BOARD” shall read “POSTED PURSUANT TO A JUDG-

MENT OF THE UNITED STATES COURT OF APPEALS EN-

FORCING AN ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD.”

59a

that said notices are not altered, defaced, or covered by

any other material.

(ec) Notify the Regional Director for Region 5, in writ-

ing, within 20 days from the date of this Order, what

steps have been taken to comply herewith.

Dated, Washington, D.C. December 10, 1982

JOHN H. FANNING, Member

HOWARD JENKINS, JR., Member

Don A. ZIMMERMAN, Member

NATIONAL LABOR RELATIONS BOARD

(SEAL)

ae ee a es ee ‘

60a

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT refuse to bargain collectively con-

cerning rates of pay, wages, hours, and other terms and

conditions of employment with Baltimore Printing Press-

men and Assistants Union #61 as the exclusive repre-

sentative of the employees in the bargaining unit de-

scribed below.

WE WILL NOT in any like or related manner inter-

fere with, restrain, or coerce our employees in the exer-

cise of the rights guaranteed them by Section 7 of the

Act.

WE WILL, upon request, bargain with the above-

named Union, as the exclusive representative of all em-

ployees in the bargaining unit described below, with re-

spect to rates of pay, wages, hours, and other terms

and conditions of employment and, if an understanding

is reached, embody such understanding in a signed agree-

ment. The bargaining unit is:

All production and maintenance employees including

truck drivers, employed by the Employer at its 800

Debelius Avenue and 4206 Shannon Drive, Balti-

more, Maryland locations; but excluding all office

clerical employees, guards and supervisors as defined

in the Act.

NATIONAL POSTERS, INC. AND

NATIONAL LITHO, A DIVISION

OF NATIONAL POSTERS, INC.

(Employer)

NE 5 cance’ By

(Representative) Title

WR Dede Fah i elt ace lat Ml i Sil

6la

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, de-

faced, or covered by any other material. Any questions

concerning this notice or compliance with its provisions

may be directed to the Board’s Office, Candler Building,

109 Market Place, Suite 4200, Baltimore, Maryland

21202, Telephone 301—962—2772.

62a

282 NLRB No. 148 D—4247

Baltimore, MD

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Case 5——-CA——_14585

NATIONAL PosTERS, INC. AND NATIONAL LITHO, A

DIVISION OF NATIONAL Posters, INc.

and

BALTIMORE PRINTING AND PRESSMEN AND

ASSISTANTS UNION #61

DECISION AND ORDER REMANDING FOR

FURTHER HEARING

On 23 November 1984, Administrative Law Judge

Bernard Ries issued the attached decision.! The Re-

spondent filed exceptions, a brief in support of exceptions,

and a motion to reopen the record. The Charging Party,

Baltimore Printing Pressmen and Assistants Union +61 F

filed a brief in answer to the Respondent’s exceptions.

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

1 Although the judge refers to his decision as being a “supple-

mental” one, technically it is not since there has been no prior

judge’s decision issued in this case.

63a

The Board has considered the decision and the record

in light of the exceptions and briefs and has decided to

affirm the judge’s rulings,’ findings, and conclusions.

In its motion to reopen the record, the Respondent con-

tends that it has evidence, which was previously unavail-

able, showing that Local +61, which the Board certified

on 14 July 1982 as the bargaining representative of the

Respondent’s employees in an appropriate unit, no longer

exists due to a merger between its parent organization.

International Printing and Graphics Union, and Graphics

Arts International Union. It claims that its evidence

shows that Local +61’s governing body was taken over

by new officers and a new organizational structure of a

different union with different dues and membership re-

quirements, and that it now transacts business under a

different name and structure known as Baltimore Graph-

ics Communication Union, Local 61C. The Respondent

thus contends that due to the changes resulting from the

merger, the labor organization which was certified by the

Board in 1982 is not the same organization which now

seeks to obtain a bargaining order, and that the Board

should reopen the record to allow it to introduce the pre-

viously unavailable evidence.

We find, in agreement with the Respondent, that a re-

opening of the record in this case is necessary to deter-

mine if the merger between International Printing and

Graphics Union, and Graphic Arts International Union,

so substantially changed Local +61 as to raise a question

concerning its continued statute as the certified bargain-

ing representative of the Respondent’s unit employees.*

2 With respect to the cha!lenged ballots that were opened and

counted, we do not adopt the judge’s speculation as to which chal-

lenged voters voted for the Union and which did not.

3In its brief to the Board in answer to the Respondent’s excep-

tions, Local #61 admits that a merger occurred, but contends that

the merger resulted only in a change of name. It further contends

that the Respondent presented no evidence during the hearing to

show that there has been a change in the identity and continuity

64a

Pursuant to the Board’s order of 6 April 1984 the sole

issue before the judge involved the voter eligibility of

employees Samuel John, Albert Amend, and Wesley

Souders. Consequently, the question whether the merger

of the two Internationals had affected Local +61’s rep-

resentative status was never raised nor litigated at the

hearing. Further, the Respondent’s claim, that the evi-

dence in support of its assertion was previously unavail-

able, is not disputed by Local #61. Under these circum-

stances, we grant the Respondent’s motion to reopen the

record, and shall direct that a further hearing be held to

determine if the merger between Local #61’s parent

organization, International Printing and Graphics Union,

with Graphic Arts International Union, resulted in a sub-

stantial change in the identity of, and in a lack of con-

tinuity of representation by, Local +61 with respect to

the Respondent’s employees in the unit for which it was

certified.‘

a ORDER

It is ordered that the record in this case be reopened

and that a hearing be held before an administrative law

judge for the sole purpose of adducing evidence on the

question whether the merger between International Print-

ing and Graphics Union and Graphic Arts International

Union resulted in a substantial change in the identity of

of Local #61 as bargaining representative as a result of the merger.

However, as noted, infra, this issue was not before the judge for

resolution.

4 The Respondent’s assertion, that its employees were denied due

process because only union members were allowed to vote on the

merger question, is without merit, see NLRB v. Financial Institu-

tion Employees Local 1182, 89 L.Ed.2d 151 (1986), as is its claim

that the high turnover rate among its employees since the last

election requires the holding of a new election. Accordingly, the

sole issue for determination shall be whether the merger of the

Internationals caused such a substantial change in Local #61 as to

have affected its status as the certified bargaining representative

of the Respondent’s unit employees.

65a

and in a lack of continuity of representation by Balti-

more Pressmen and Assistants Union #61 with respect

to the Respondent’s employees in the unit for which it

was certified.

IT IS FURTHER ORDERED that this case is re-

manded to the Regional Director for Region 5 for the

purpose of arranging the hearing and that the Regional

Director is authorized to issue notice thereof.

IT IS FURTHER ORDERED that upon conclusion of

the hearing the administrative law judge shall prepare

and serve on the parties a supplemental decision con-

taining findings of fact based on the evidence received,

conclusion of law, and recommendations. Following serv-

ice of the decision of the parties, the provisions of Sec-

tion 102.46 of the Board’s Rules and Regulations shall

apply.

Dated, Washington, D.C. 4 February 1987

DONALD L. DOTSON, Chairman

MARSHALL B. BABSON, Member

JAMES M. STEPHENS, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

66a

J D—451—-84

Baltimore, MD

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

Case No. 5-CA-14585

NATIONAL POSTERS, INC. AND NATIONAL LITHO, A

DIVISION OF NATIONAL POSTERS, INC.

and

BALTIMORE PRINTING AND PRESSMEN AND

ASSISTANTS UNION +61

Namsoo Dunbar, Esq., of Baltimore, Maryland, for

the General Counsel.

Robert L. Scott-Clayton, Esq. (Delson & Gordon), of

Washington, DC, for the Charging Party.

Maurice Baskin, Esq. (Venable, Baetjer, Howard &

Civiletti), of Washington, DC, for the Respondent.

SUPPLEMENTAL DECISION

Bernard Ries, Administrative Law Judge: On De-

cember 15, 1981, a representation election was con-

ducted by Region 5 among the approximately 53 eligible

voters at Respondent’s two plants in Baltimore, Mar

This text is long and has been trimmed here. Open the source document for the complete record.

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.