Gorbea, Perez & Morell S. en C.

GORBEA, PEREZ & MORELL S. EN C. 475 WE WILL NOT discourage membership in United Packinghouse, Food and Al- lied Workers, AFL-CIO, or any other labor organization , by discharging any individual, or in any other manner discriminating against any individual in re- gard to the hire, tenure of employment, or any term or condition of employment. WE WILL offer James R. Miller and John L . Woods immediate and full rein- statement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay they may have suffered by reason of our discrimination against them. WE WILL NOT interrogate our employees concerning their union membership, activities, or sympathies or threaten them with reprisals for engaging in such conduct. WE WILL NOT maintain, enforce, or apply any rule or regulation prohibiting our employees, during nonworking time, from soliciting their fellow employees to join or support United Packinghouse, Food and Allied Workers, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with , restrain, or coerce em- ployees in the exercise of their right to self-organization, to form , join, or assist any labor organization , to bargain collectively through representatives of their own choosing, to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. All our employees are free to become, remain, or refrain from becoming or re- maining, members of any labor organization. FLORIDA SUGAR CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Ross Building, 112 East Cass Street, Tampa, Florida, 33602, Telephone No. 223-4623, if they have any question concerning this notice or compliance with its provisions. Gorbea, Perez & Morell S. en C. and Amalgamated Clothing Workers of America, AFL-CIO. Case No. 24-CA-1373. May 6, 1963 SUPPLEMENTAL DECISION ON REMAND On September 26, 1961, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding, 133 NLRB 362, in which it found that the Respondent had violated Section 8(a) (1) of the Act by offering its employees a wage increase in order to defeat the Union's organizational efforts, and Section 8(a) (5) by refusing to bargain with the Union which had been designated, as bargaining representative by a majority of its employees. The Board specifically rejected the Respondent's contention that the authoriza- tion cards, upon which proof of majority was based, had been ob- tained by the Union on the promise that they would be used only for the purpose of filing a petition for an election. The Board or- dered the Respondent to cease and desist from the unfair labor prac- tices found and to bargain with the Union. 142 NLRB No. 55. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, on March 27, 1962, the Court of Appeals for the First Circuit sustained the Board's Section 8(a) (1) finding and enforced its Order in that respect.' The court also sustained the Board's finding that the employees knew that they were signing cards for membership in the Union, and had not been led to believe that the cards were merely to obtain an election. Thus, it appears that the court would have affirmed the Board's finding of a Section 8(a) (5) violation except for its doubts, for which the case was remanded to us, as to whether the employees were not unduly influenced by the Union's offer to waive initiation fees and by the fact that the cards themselves referred to a "regular initiation fee" when the Union had not been charging such fees in Puerto Rico' The Board has recently had occasion to reaffirm that the practice of offering special reduced initiation fees during an organizational campaign is not, of itself, interference with the conduct of elections.' The Board has held, however, that a reduction or a complete waiver of initiation fees does interfere with the conduct of the elections when the union's waiver is conditioned on how the employees vote or on the results of the election.4 Since it is not the waiver itself, but the specific circumstances under which it is offered that determine whether it constitutes substantial interference with the conduct of the election, it is worthwhile noting why unions charge, and why they may waive, initiation fees, as an illumination of the union's motives in this case. A recent treatise on unionism has this to say on the subject:' Initiation fees serve several sorts of union purposes. First, of course, they are a source of revenue, which is occasionally ex- pendable during an organization drive when the union is anxious to induce workers to join the union. Second, the initiation fee represents for the old member a kind of equity payment by the new member to compensate, at least partially, for the efforts that others have put into building the union. The feeling is that, quite aside from the revenue, the new members should be made to have some stake in the union. Finally, of course, the initiation fee can serve as a restrictive device in keeping down membership in the union. This device is serviceable only when union member- ship is a requirement for getting the job. The court recognized the propriety of a waiver when the union's campaign leads to an election, since an employee who had signed an authorization card would still retain his freedom of choice in the 1 300 P. 2d 886 (C A. 1). The cards stated : "Those who join now shall never have to pay an initiation fee. Those who wait until the contract is signed, shall have to pay the regular initiation fee." Gilmo, a Industries, Inc., 140 NLRB 100, and cases cited in footnote 3 thereof. • See Lobue Bros., 109 NLRB 1182. 5 Barbash , "The Practice of Unionism," Harper & Brothers, 1956, p. 79. GORBEA, PEREZ & MORELL S. EN C. 477 election. The court pointed, out, however, that "[A]lthough waiv- ing initiation fees before an election may be harmless because it buys only membership cards but not votes, it seems to us that it ceases to be harmless when the cards, as in this case, become the equivalent of votes. The union has then bought the very affirmative action it needed." Even though the employees did not sign the cards under a specific promise that they would only be used to obtain an election, it is im- portant to note that the Union may not be charged with engaging in sharp practices by its reliance on authorization cards for proof of its majority. Its good faith is shown by the fact that it filed a petition with the Board, thereby indicating its preference for validation of its majority through a secret election. It was only after the Respondent's unfair labor practices made a free election impossible that the Union availed itself of the alternative method under the statute and estab- lished its majority through authorization cards. If, as the court says, the cards are now the equivalent of votes, it was the Respondent who made them so. If we should now refuse to recognize the Union's majority status because the Respondent destroyed the basis for a fair election, we would be bestowing on the guilty party the very advantage which it hoped to gain when it committed its unfair labor practices.' Since the Union was unlawfully deprived of a chance to establish its majority through a Board-conducted election, we believe that equity requires that the validity of the authorization cards should now be judged by the principles which would have been applied if the Union had won an election, and if the Respondent was now seeking to over- turn it on the ground that the waiver of initiation fees had interfered with the election. If this case had arisen in that manner, we are satisfied that the Board's precedents establish that the Union's waiver of initiation fees was not such interference as would warrant setting an election aside. Thus, it is not clear to whom the waiver offer addressed itself. It first promises "those who join now" that they will not have to pay an initia- tion fee. Immediately thereafter, the class of employees whose fees are waived is broadened to include those who join before the contract is signed. That eventuality could conceivably be weeks or months after recognition was achieved. Any employee who read the card carefully and pondered the meaning of these two sentences could with good reason decide that he would be entitled to claim remission of the initiation fee even if he joined after recognition had been obtained, since "now" is nowhere limited to the period of the organizational campaign, but is set off only from the period beginning after the con- tract is signed. But even if we assume, as is more probable, that the employees did not subject the phrasing of the waiver to so close an ^Cf. Joy Silk MiIZS v. N.L R.B., 185 F. 2d 732, 741 (C.A.D.C.) cert. denied 341 U.S. 914. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD analysis, we are nevertheless satisfied that no one could have been mis- led into thinking that if he did not sign the card the instant it was offered him, he ran the risk of losing the benefit of the waiver. When the waiver was offered with the distribution of the authorization cards, the only determinable event, and the only cutoff date mentioned, was the signing of a contract. In other words, if the Union achieved recog- nition and if it were then able to negotiate a contract with the Respond- ent, there would still be time for anyone then employed at the plant to join the Union without payment of an initiation fee. The court's opinion recognizes that it is not unreasonable for the Board to hold that a waiver of an initiation fee for employees who join a union prior to a Board election is a permissible promotional tech- nique, and to distinguish such a situation from that in Lobue Bros., 109 NLRB 1182, where the waiver was held to be improper interference be- cause it was conditioned on whether the union won the election. In Lobue, the quid pro quo for the waiver was signing up before the union was certified. In this case, on the contrary, there was no price exacted or expected for the waiver, since it would have been freely available to anyone employed before the contract was signed, whether or not he had signed a card. Finally, we do not believe that waiver or reduction of initiation fees during a campign to obtain authorization cards is the type of benefit which improperly affects an employee's decision to sign or not to sign such a card. The motives for designating a union as bargaining rep- resentative or for joining it are normally based on what one expects the union to accomplish. The cost of affiliation will, of course, be a factor in reaching a decision to join or not to join, but the major ele- ment of cost (except for unions which impose high initiation fees as a restrictive device) is not the initiation fee but the cumulated monthly dues. In any event, the effect on employees of waiver of initiation fees is too speculative to be viewed as a coercive influence. The em- ployee who refuses to take advantage of the union's waiver offer will suffer detriment only if the union succeeds in signing up a majority of the employees, if the union is then able to persuade the employer to give it a union-security clause, and if the union actually decides to collect an initiation fee from the employees who had not previously paid one. This brings us to the second query posed by the court. Although the cards themselves mention an initiation fee which the Union offered to waive for those "who join now" or before a contract be signed, the record shows that the Union had not been collecting such fees in its few other organizational situations in Puerto Rico. Whatever un- truthfulness one might read into a "waiver" in these circumstances, we do not consider it of such substantiality or of such consequence to require invalidation of the Union's majority status. No specific GORBEA, PEREZ & MORELL S. EN C. 479 amount for the initiation fee was listed and no impression was given that the waiver had a particular monetary value. Moreover, the Union's constitution does provide for regular initiation fees and the Union could at some later time have made the waiver worth some- thing by deciding to collect initiation fees in Puerto Rico, as elsewhere, from those who joined after a contract at the Respondent's plant was signed. The situation here, in our opinion, does not compare in gravity with that struck down by the court in Rou t stein.' The waiver here was only one of the persuasions which may have influenced the 65 or so em- ployees who signed cards, whereas in Rohtstein the one crucial card was signed only because of the nakedly false assertion that the union had already achieved its majority. For the foregoing reasons, we reaffirm our previous Decision and Order herein, and respectfully recommend to the court that it sustain our findings of violations of Section 8 (a) (5) and enforce our Order in that respect. MEMBERS RODGERS and LEEnoM, dissenting : Unlike our colleagues, we would dismiss the Section 8(a) (5) allega- tions, as we cannot overlook the fact that the cards were obtained in a fraudulent manner.8 The vice in this situation is that the Union offered to waive pay- ment of its "regular initiation fee" to induce employees to sign the bargaining authorization cards, although the Union, in practice, charged no initiation fee, and thus had no "regular initiation fee." Not only was this representation false, but the Union knew it to be false. Further, the representation was of a character not subject to ready check by the employees as to its truth. Although the Union did not describe its so-called "regular initiation fee" in monetary terms, employees in general know that waiver of an initiation fee involves a substantial monetary saving. In this connection, we agree with the court's observation, made in the course of its opinion remanding this case to the Board, that ". . . initiation fees are dollars, and their significance in this case is attested by the prominence the Union gave to the matter." The effect of this misrepresentation is revealed in the proffered testimony, which we accept as true, that a majority of the employees in 'the unit signed the authorization cards in question at T N.L R.B. v. H. Rohtstein & Co ., Inc, 266 F. 2d 407 (C A. 1). $ Member Leedom agrees that the authorization cards are not rendered invalid as bargaining designations solely because they were obtained in return for the waiver of initiation fees. Member Rodgers , on the other hand, believes that the practice of waiving initiation fees-real and not fictitious fees-in return for signatures on authorization cards constitutes the buying of votes, and therefore the buying of representative status, if the cards are used to establish majority status under an 8(a )( 5) allegation; con- sequently, following Lobue Bros., 109 NLRB 1182, Member Rodgers would, for this reason also, rule that the cards here are invalid. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD least in part because of the Union's representation that it was waiving payment of its "regular initiation fee." It is manifest from all the foregoing that the Union's purported waiver of its so-called "regular initiation fee" involved a substantial misrepresentation as to a material fact," and that cards obtained through such misrepresentation do not reflect the free will of em- ployees signing them. Accordingly, as the Union was not freely designated by a majority of the employees as their representative in the appropriate unit, the Union was not entitled to exclusive recognition. This being so, the Respondent did not violate Section 8(a) (5) by refusing to recognize the Union. 9 We do not agree with our colleagues that the "misrepresentation here does not com- pare in gravity with that struck down by the court in Rohtstein." We consider the misrepresentation involved in the instant case to be as grave as that involved in Rohtstein or, at least, sufficiently serious to vitiate the cards. And, there appears to be no warrant for our colleagues' assertion that "in Rohtstein the one crucial card was signed only because of the nakedly false assertion that the union had already achieved its majority." For all that appears, there may well have been one or more other factors which induced the employee to sign the crucial card. In any event , it is clear that the misrepresenta- tion in the instant case substantially contributed to induce the employees to execute the cards. Carl T. Mason Co., Inc. and Machinery, Scrap Iron, Metal and Steel Chauffeurs, Warehousemen, Handlers, Helpers and Alloy Fabricators Union, Local No. 714, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case No. 13-RC-8195. May 6, 1963 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted by the Regional Director on December 20, 1961, among the employees in the unit described below. After the election, the parties were furnished with a tally of ballots which showed that, of approximately 69 eligible voters, 12 ballots were cast for, and 50 ballots were cast against, the Petitioner, and 2 ballots were challenged. Thereafter, the Petitioner filed objec- tions to conduct affecting the results and conduct of the election. After investigation, the Regional Director, on February 8, 1962, issued and served upon the parties his report on objections in which he recommended that all the objections be overruled. Thereafter, the Petitioner filed timely exceptions to the Regional Director's report. Upon the entire record in this case the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 142 NLRB No. 56.