Continental Composition, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 942 (N.L.R.B. 1984)

942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continental Composition, Inc. and Linda Dziwak,
Petitioner and Chicago Typographical -Union,
No. 16. Case 13-RD-1400 -
. 14 December 1984
DECISION AND CERTIFICATION OF
. RESULTS OF ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER •
The National Labor Relations Board, by a three-
member panel, has considered an objection • to an
election held 22 March 1984 and the Regional Di-
rector's report recommending disposition of it. The
election was Oonducted pursuant to a Stipulated
Election Agreement. The tally of ballots shoWs
none for and 11 against the Union, with no chal-
lenged ballots.
The Board has reviewed the record in light of
the exceptions and briefs, has adopted the Regional
Director's findings' and recommendations, and
finds that a certification of results of election
should be issued.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for Chicago Typographical
Union, No. 16, and that it is not the exclusive 'rep-
resentative of these bargaining unit employees.
-
MEMBER HUNTER, dissenting.
Contrary to my colleagues in: the majority, I
would remand the instant case to the Regional Di-
rector for a hearing on the issue of whether, as al-
leged, Regional Office personnel advised bargain-
ing unit employees, that they were not required to
abide by the, union-security clause of the collective-
bargaining agreement between the Union and the
Employer.' In my view, this allegation raises a
substantial and material issue of fact which should
be resolved in a hearing. •
Two weeks after filing its objection, the Union filed a position state-
ment which alleged that during the critical period "one or more Board
representatives provided information and advice" to unit employees to
the effect that they should not comply with the union-security clause
until after the election The Regional Director did not address this allega-
tion When considering this allegation in a representation proceeding, the
Board presumes the union-security clause to be valid unless found other-
wise in an unfair labor practice proceeding In Typographical Union 16
(Continental Composition), 268 NLRB 347 (1983), the Board found that
the union-secunty clause involved here violated Sec 8(b)(2) of the Act
because it did not provide present employees with the statutory 30-day
grace penod The Union does not proffer evidence showing that the
compliance stage of the earlier proceeding was completed before the
election We therefore find that the parties did not have a valid union-
security clause in effect during the cntical period Consequently, we find
no merit in the Union's allegation
The majority dismisses the, allegations concern-
ing Regional Office communications with employ-
ees on the grounds that the Board, considering this
allegation in a representation proceeding, presumes
the parties' union-security clause valid unless it has
been found invalid in an unfair labor practice pro-
ceeding and that in Typographical Union 16 (Conti-
nental Composition), 268 NLRB - 347 (1983), the
Board 'found- the union-security clause in question
to be unlawful because it did not - provide existing
employees with the statutory 30-day grace period.
The majority's reliance on Typographical Union is
misplaced. In that case, the Board held that the
Union violated Section 8(b)(2) of the Act by en-
forcing the union-security clause in the collective-
bargaining agreement—the same bargaining agree-
ment involved in the instant case—by requiring all
bargaining unit employees who were on the payroll
as of the date on which the contract was ratified to
'be members of the Union on that date. The Board
found that this provision violated the requirement
of Section '8(a)(3) of the Act that 'employees must
be given a 30-day grace period before being re-
quired to join a union pursuant to a union-security
clause and ordered, the Union, inter alia, to cease
'and desist from entering into, maintaining, or en-
forcing such a provision. The Board's decision did
not address the more, general provision of the par-
ties' union-security clause requiring employees to
join . the- union by the 45th- day following .com-
mencement of employment. 'Indeed, there would
appear to be no basis for invalidating that portion
of the parties' agreement since it prbvides for more
• than the statutorily required minimum" 30-day grace
period. Consequently, there is no basis for infer-
ring, as the majority - implicitly does, that. whatever
Regional Office personnel may have said to , em-
ployees about not being required to join the Union
or pay dues in accordance with the union-security
clause such statements were not objectionable be-
cause the clause had been invalidated. 2 Depending
'Although this allegation was not specifically raised in an objection it
should have been addressed by the Regional Director in his report, and is
properly addressed by the Board on review, since It is a matter which
came to the attention of the Regional Director during the -course of his
investigation of the objections and which rises an issue of possible elec-
tion taint See Thomas Products Go, 169 -NLRB 706 (1968), American
Safety Equipment Corp, 234 NLRB 501 (1978) '
2 Moreover, in view of the fact that the 'Board's decision in Chicago
Typographical Union issued more than 100 days prior to the election, It is
certainly possible that the Union had completed compliance with the
'Board's Order not only before the election but also before any comments
by Board Personnel to employe-es doncerning their union-security obliga-
tions were made This is another reason why I believe a hearing should
be held in the present case I cannot agree with the majority's implicit
requirement that the Union was obligated to come forth with evidence as
to whether Or not compliance with the Board Order in the unfair labor
practice proceeding had been completed pnor to the election This is es-
pecially so since completion of compliance is particularly within the
Continued
273 NLRB No. 121
CONTINENTAL COMPOSITION 943
on what the Regional Office personnel said to em-
ployees regarding their obligations under the
knowledge of the Board's Regional Office personnel Thus, requinng an
objecting party in a representation case to come forward with such evi-
dence as a precondition of obtaining a hearing on its Objections Is to re-
quire it to Inform the Regional Office (and/or,the Board) of the status of
the Region's own proceedings in a related unfair labor practice case In
my view, an objecting party should not be required to present such evi-
dence in order to obtain a hearing, so long as other requirements for or-
dering a hearing are met
clause, and the circumstances under which such
statements were made, such statements may have
affected employees' free choice in the election. For
this reason, an evidentiary hearing should be held
to determine what, if anything, Board personnel
said to bargaining unit employees during the criti-
cal period concerning the employees' obligations
under the union-security clause. Accordingly, I dis-
sent.