Phillips Industries, Inc.

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Irwindale Division, Lau Industries, a Division of Phillips Industries, Inc. and Aluminum Workers International Union, AFL-CIO, Petitioner. Case 21-RC-13308 April 24, 1974 DECISION AND CERTIFICATION OF REPRESENTATIVE Pursuant to a Stipulation for Certification Upon Consent Election, executed by the parties and approved by the Regional Director on July 30, 1973, an election by secret ballot was conducted on September 21, 1973, under the direction and supervi- sion of the Regional Director for Region 21 among the employees in the unit described below. At the conclusions of the election, the parties were fur- nished a tally of ballots which showed that of approximately 75 eligible voters, 72 cast ballots, of which 38 were for, and 31 against, the Petitioner. There were three challenged ballots and no void ballots. The challenged ballots are not sufficient to affect the results of the election. On September 28, 1973, the Employer filed timely objections to the election. The Regional Director conducted an investigation of the objections and thereafter, on November 26, 1973, issued and served on the parties his Report on Objections. In his report, the Regional Director recommended that the Em- ployer's objections be overruled in their entirety, and that the Petitioner be certified as the collective- bargaining representative of the employees in the unit described below. Thereafter, the Employer filed timely exceptions to the Regional Director's Report on Objections. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Employer within the meaning of Sections (9)(c)(1) and 2(6) and (7) of the Act. I In adopting the Regional Director's recommendation overruling Objection 2, we do not rely upon Thiem Industries, Inc., 195 NLRB 1128, enforcement denied 489 F 2d 788 (C A. 9, 1973). The Petitioner here invited employees to compare their average weekly pay with that of aluminum workers generally This invitation is distinguishable from the unequivocal misrepresentations in the Thiem case in which the union claimed responsibility for six wage increases which the Ninth Circuit found were false in "five of the six cited industry settlements " Y 414 U.S 270 (1973), 94 S. Ct. 495. s The Employer contends that Petitioner's waiver was invalid because phrased in terms of "if we win the election." We do not view such a statement as a condition, but rather as a reference to the practical reality 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, including shipping and receiving employees, lead employees, inspectors, and truckdrivers employed by the Employer at its 15601 Arrow Highway, Irwindale, California, facility; excluding office clerical employees, casual or temporary employ- ees, draftsmen, professional employees, guards, and supervisors as defined in the Act. 5. The Board has considered the objections, the Regional Director's report, and the Employer's exceptions, and hereby adopts the Regional Direc- tor's findings, conclusions, and recommendations.' In our opinion, the exceptions raise no material and substantial issues of fact or law which warrant reversal of the findings and recommendations of the Regional Director. The Regional Director's investigation disclosed that Petitioner told all employees that if it, the Petitioner, won the election initiation fees for all employees would be waived, if they were employed at the time the contract was signed. In N.L.R.B. v. Savair Mfg. Co.,2 the Supreme Court observed that a union could preserve its legitimate interest by the waiver of initiation fees available not only to those who have signed up with the union before an election but also to those who join after the election. The Court also noted that promising benefits or conferring benefits before representation elections may unduly influence the representational choices of employees where the offer is not across the board to all employees but only to those who sign up prior to the election. Petitioner offered to waive the initiation fees for all employees employed when a contract was signed. Thus, the offer was not limited to those employees who joined Petitioner before the election, but was equally available to all employees after the election and up to the date of signing of a contract. Accordingly, we find this waiver permissible under Savair and we overrule this exception.3 As the Petitioner has received a majority of the valid ballots cast, we shall certify it as the exclusive that initiation fees have no real significance for employees unless the union becomes the bargaining representative; i.e , wins the election. It is true what the Sixth Circuit's opinion in Savair found the waiver in that case objectionable, relying on a similar statement, which it found to be a "condition." The Supreme Court, however, while reaching the same result as the Sixth Circuit, clearly did not rely upon the same rationale, but instead found the waiver objectionable because it was conditioned upon the employees' signing cards before the election. For these reasons, we reject the Employer's contention and have instead analyzed the waiver here in terms of the Supreme Court's tests for validity of waivers, as outlined in its Sarafr opinion 210 NLRB No. 42 IRWINDALE DIVISION, LAU INDUSTRIES 183 bargaining representative of the employees in the unit found appropriate. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Aluminum Workers International Union, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.