Inland Shoe Manufacturing Co., Inc.

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inland Shoe Manufacturing Co., Inc. and United Shoe Workers of America, AFL-CIO, CLC, Petitioner. Case 14-RC-7487 June 19, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION By CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties on October 26, 1973,1 a secret ballot election was conducted -on November 30, and a runoff election was conducted on December 14. At the conclusion of the runoff election, a tally of ballots was served on the parties which showed that of approximately 343 eligible voters, 314 cast valid ballots, of which 177 were for, and 130 against, the Petitioner. There were seven challenged ballots which were insufficient to affect the results of the election. Thereafter, the Employer filed timely objections to conduct affecting the results of the election. Pursuant to the provisions of Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the Regional Director caused an investigation to be made of the objections. Thereafter, on January 18, 1974, the Acting Regional Director for Region 14 issued and served on the parties his Report on Objections and Recommendations, finding the ob- jections without merit and recommending that they be overruled in their entirety, and that Petitioner be certified as the exclusive collective-bargaining repre- sentative of the employees in the stipulated unit. Thereafter, the Employer filed timely exceptions to the Acting Regional Director's report, with affidavits in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the Acting Regional Director's report,2 the Employer's exceptions,3 and the entire record in this case and makes the following findings and conclusions: 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. 1 All dates are 1973 unless otherwise indicated. 2 In the absence of exceptions thereto, the Board adopts, pro forma, the Acting Regional Director's recommendation that the Employer's Objections 1, 2, 3, 4, 7, 8, 10, and I I be overruled. 3 We find without merit the Employer's contention that it was denied due process and administrative fairness by the Acting Regional Director's denial of its request to read the affidavits of all persons interviewed by the Regional Office in connection with its objections , and its request to read the 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 employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees in- cluding truckdrivers employed at the Employer's Advance, Missouri, facility, excluding all office clerical employees, professional employees, sales- men, managerial employees, guards, and supervi- sors as defined in the Act. 5. In Objection 6, the Employer alleged that Petitioner made unlawful promises of benefit by offering a waiver of initiation fees to induce employees to support Petitioner by signing authoriza- tion cards and voting for Petitioner. In support of its objection, the Employer submitted a one-page leaflet distributed by the Petitioner to the employees which stated in pertinent part: "There are no initiation fees for charter members of a new local (and that is what you would be)[.] Monthly dues will start when a contract has been made with the Company." At the bottom of the leaflet appeared the names of three of Petitioner's organizers. According to a witness presented by the Employer, the leaflet was received during the week before the runoff election. Another employer witness stated that, at an organizational meeting held by Petitioner 10 days before the first election, one of Petitioner's organizers told employ- ees present that "charter members" would not have to pay an initiation fee to join Petitioner, and explained that all employees working at the time of the election would be "charter members" if Petition- er was voted in and those hired after the election would have to pay an initiation fee to join. Petitioner, in defending the legality of its waiver offer, presented a copy of its constitution and bylaws, as amended, which provide in pertinent part: "Initiation or reinstatement fees may be waived in organizing a new factory, but any such waiver shall apply to all persons who are employees in the new factory during the organizing period up to and including the date of election." tentative draft of the "Regional Director's" Report on Objections. It is the Board's established policy to direct the production of only those affidavits given by employees who have testified at Board hearings for purposes of cross-examination as required by Jencks v. United States, 353 U.S. 657. Ra- Rich Manufacturing Corporation, 121 NLRB 700. See also Wellman Industries v. N.L.R.B., 490 F.2d 427 (C.A. 4, 1974). Nor do we perceive any reason, and indeed the Employer asserts none , for allowing it to read the tentative draft of the Acting Regional Director's report. 211 NLRB No. 73 INLAND SHOE MFG. CO. On the basis of the above facts, the Acting Regional Director found that Petitioner's offer of a waiver of initiation fees to those who became charter members contained an unconditional waiver for all employees employed at the time of the election, available to employees both before and after the election, and was therefore the type of waiver of initiation fees permitted under the Supreme Court's decision in N.L.R.B. v. Savair Manufacturing Compa- ny, 414 U.S. 270 (1973). The Employer contends that the offer contained in Petitioner's leaflet is sufficiently ambiguous so as to constitute unlawful inducement under Savair be- cause employees could have reasonably believed that only by signing a card prior to the election would they be "charter members" and eligible for waiver of initiation fees. The Employer asserts that the ambi- guity was not removed by either the organizer's statements at Petitioner's meeting nor by the provi- sions of its constitution and bylaws. With respect to the latter, the Employer notes that there was no evidence Petitioner ever communicated the provi- sions of its constitution to employees. We agree with the Employer's contention. The Supreme Court in N.L.R.B. v. Savair, supra, held that the Board had erred in its determination that a union does not interfere with the conduct of the election when it offers to waive initiation fees for those who join the union before the election. The Court relied on various factors to reach its conclu- sion. The Court was concerned with the Section 7 right of employees to refrain from union activity, and with the buying of endorsements through the waiver of initiation fees to those joining before the election to paint a false portrait of employee support. The Court also stressed that there is no legitimate union interest which justifies limiting waiver offers to those signing cards prior to the representation election. In the instant case, Petitioner, through its organiza- tional leaflet, has offered a waiver of initiation fees for "charter members." It is not clear from the leaflet, however, when employees must join Petition- er to be eligible for the waiver. The wording of the leaflet indicates that there are "no initiation fees for charter members of a new local." The term "charter member" was nowhere defined in the leaflet. Thus, it was not made clear whether employees' initiation fees would be waived for those signing after the election, or only prior thereto. Webster's Third International Dictionary defines "charter member" as "an original member of a society or corporation; esp: one named in a charter." Employees could well have been induced to become early card signers on the reasonable belief that only thereby could they be 725 "charter members" eligible for a waiver of initiation fees. Indeed, part of the thrust of Petitioner's leaflet was that employees should sign at once. It ended with the exhortation: "Didn't sign a card? Have a reason now?" In our view, the ambiguity was not sufficiently resolved by the statement of Petitioner's organizer at a meeting that all employees working at the time of the election would be "charter members" if the Petitioner was voted in, and that those hired after the election would be required to pay an initiation fee to join. The organizer's statement may be interpreted as requiring that an employee not only be employed but actually have joined the Union at the time of the election in order to secure the waiver; the very term "charter member" carries with it an implication that an employee need be a member before he can become a "charter member." In any event, it is by no means clear that all employees who received the pamphlet attended this meeting. Nor is the ambiguity clarified by the provisions of Petitioner's constitution and bylaws, for not only do those provisions merely permit, rather than require, a waiver, but they may also be interpreted as granting a waiver only to those who have actually joined and are employed by the election date and do not clearly extend any waiver to such employees signing after the election. As with the meeting, furthermore, it is not evident how many of the employees being organized were aware of Petitioner's constitution. We find that employees who read Petitioner's leaflet could reasonably have concluded that it was to their benefit to join Petitioner before the election-to come in at the ground floor-to avoid the possibility of having to pay initiation fees later. Petitioner's offer to "charter members," therefore, was ambiguous and subject to various interpreta- tions. In these circumstances, we believe it was Petitioner's duty to clarify that ambiguity or suffer whatever consequences might attach to employees' possible interpretations of the ambiguity.4 We find that Petitioner's offer of a waiver of initiation fees for charter members of a new local, where the term "charter member" was not clearly defined, was the kind of preelection offer of waiver of initiation fees condemned by the Supreme Court in Savair. Accordingly, we sustain the Employer's Objection 6 and we shall set the election aside and direct that a second election be conducted. The Employer also contends, in its Objections 5 and 9, that Petitioner made material misrepresenta- tions at a time when the Employer had insufficient time to reply. With respect to Objection 5 the Employer contends that Petitioner materially misrep- 4 Cf. Endless Mold, Inc., 210 NLRB No. 34. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resented to employees the Employer's financial condition, its move to new offices in St. Louis, and its plans for financial investments. With respect to Objection 9 the Employer argues that Petitioner made material misrepresentations concerning a Decision and Order in an unfair labor practice case before the Board by giving the impression that the recommended Order of an Administrative Law Judge was, in fact, the final order of the Board. Based on the investigation of objections the Acting Regional Director found that 1 or 2 days before the runoff election a rumor spread through the plant that the Employer was constructing a multimillion dollar office building in St. Louis. The Employer in fact was moving its executive offices from a leased facility in University City, Missouri, to a smaller, less expensive facility in Hazelwood, Missouri. The Acting Region- al Director found that Petitioner's observer was responsible for the rumor but concluded that the observer's remarks were not attributable to Petition- er, and that because the Employer, in prepared speeches delivered to employees on December 11 or 12, had stressed its economic plight the employees could have believed the Employer had authoritative data with respect to its financial condition and employees could have effectively evaluated repre- sentations made concerning that condition. He concluded that the misrepresentations concerning the multimillion dollar building and movement of offices were not so substantial and material as to interfere with the election, and recommended that 5 Chairman Miller would direct a hearing on Objection 5, but notes that because Objection 6 is sustained no hearing is necessary He would find that the present state of the record fails to reveal the relative importance of the issue of the Employer's declarations of its financially precarious situation with respect to the impact , if any, the rumor may have had on employees. 6 Indeed, the deadline for filing of exceptions had not expired as of December 4 1 We do not consider Petitioner's labelling of the Administrative Law Objection 5 be overruled. We agree with the Acting Regional Director's findings, conclusions, and rec- ommendations.5 With respect to Objection 9 the Acting Regional Director found that attached to Petitioner's letter, dated December 4, was a true copy of the notice to employees issued pursuant to a decision in the recommended Order of the Administrative Law Judge in Case 14-CA-7480. The notice was de- scribed as "the original order by the National Labor Relations Board." The Acting Regional Director found Petitioner did not communicate to employees the impression that exceptions could not be filed to the recommended Decision and Order6 and that the Employer had sufficient time to present its version of the matter to employees. He therefore concluded that the letter and copy of the notice were not so misleading as to have affected the results of the election, and recommended that Objection 9 be overruled. We agree with his recommendation.7 ORDER It is hereby ordered that the runoff election conducted on December 14, 1973, among employees of Inland Shoe Manufacturing Co., Inc., working out of its Advance, Missouri, facility, be, and it hereby is, set aside, and that Case 14-RC-7487 be, and it hereby is, remanded to the Regional Director for Region 14 for the purpose of conducting a new election. [Direction of Second Election and Excelsior foot- note omitted from publication.] Judge's recommended notice as the "original order by the National Labor Relations Board" to be a substantial mischaracterization or misuse of a Board document Cf Dubre-Clark Co, Incorporated, 209 NLRB No 21 (Member Penello dissenting) Chairman Miller concurs in the result, since the Employer had sufficient time to reply to the contents of the letter Member Penello agrees for the reasons set forth in his dissenting opinion in Dubre-Clark