Call-A-Mart

CALL-A-MART 225 Jefferson Food Mart, Inc., d/b/a Call-A-Mart and General Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Petitioner. Case 9- RC-10416 October 23, 1974 DECISION AND CERTIFICATION OF REPRESENTATIVE the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) of the Act. 4. The parties stipulated and we find that the fol- lowing employees constitute an appropriate unit for the purpose of collective bargaining within the mean- ing of Section 9(b) of the Act: By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election approved by the Acting Regional Director for Region 9 on February 1, 1974, a secret ballot election was conducted among the employees in the stipulated unit on February 21, 1974, to de- termine whether such employees desired to be repre- sented by the Petitioner for the purposes of collective bargaining. The tally of ballots furnished the parties showed that of approximately 41 eligible voters 39 ballots were cast, of which 22 were for, and 16 against, Petitioner, and 1 was challenged. The chal- lenged ballot is insufficient in number to affect the results. Thereafter, the Employer filed objections to conduct affecting the results of the election. Pursuant to Section 102.69(d) of the Board's Rules and Regulations, Series 8, as amended, the Acting Regional Director issued and served on the parties an order directing hearing, notice of hearing, and or- der transferring case to the Board, in which he or- dered that a hearing be held before a duly designated Hearing Officer to resolve the issues raised by the Employer's objections. Pursuant to that order, a hearing was held on May 14, 1974, before Hearing Officer Daniel J. Roketen- etz, at Louisville, Kentucky. Thereafter, on June 18, 1974, the Hearing Officer issued and served on the parties his Hearing Officer's Report and Recommen- dations, pertinent parts of which are attached hereto and marked "Appendix," wherein he recommended that the Employer's objections be overruled and that the Board issue an appropriate Certification of Rep- resentative. Thereafter, the Employer timely filed ex- ceptions to the Hearing Officer's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding the Board finds: 1. The Employer is engaged in commerce within All regular full-time and regular part-time truck- drivers employed by the Employer at its location at 2345 Carton Drive, Louisville, Kentucky; but excluding all warehouse employees, all office clerical employees, professional employees, guards, and supervisors as defined in the Act, and all other employees. 5. The Board has considered the Hearing Officer's Report and Recommendations and the Employer's exceptions and hereby adopts the Hearing Officer's findings, conclusions , and recommendations.' As the Petitioner received a majority of the valid ballots cast, we shall certify the said labor organiza- tion as the exclusive bargaining representative of the employees in the unit herein found appropriate. CERTIFICATION OF REPRESENTATIVE It is hereby certified that General Drivers, Ware- housemen and Helpers Local Union No. 89, affiliat- ed with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has been designated and selected by a majority of the employees employed by Jefferson Food Mart, Inc., d/b/a Call-A-Mart, Louisville, Kentucky, as their representative for the purposes of collective bargain- ing and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor or- ganization is the exclusive representative of all em- ployees in such unit for purposes of collective bar- gaining with respect to rates of pay, wages, hours of ' The Employer's exceptions, in our opinion, raise no issue which would warrant reversal of the Hearing Officer's findings, conclusions, and recom- mendations. Chairman Miller dissents , believing the record to show that employees were solicited to sign cards on the strength of representations that the initia- tion fee would increase from $5 to $50 after the election. While the evidence is in some conflict on this issue, the Chairman is of the view that there is substantial evidence in the record supporting the objection which asserts that employees were induced to sign cards in just the kind of "bandwagon" circumstances condemned by the Supreme Court in N.L.R.B. v. Savair Mfg. Co., 414 U .S. 270 ( 1973). He would, therefore, contrary to his colleagues. set aside this election and conduct a new one. 214 NLRB No. 30 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment, and other conditions of employment. APPENDIX Findings of Fact and Conclusions: At the request of two employees, representatives of the Petitioner, Charles Spond and Douglas Borders, attended a meeting of the Employer's employees at a local restaurant in Louisville, Kentucky on January 7, 1974. Both Spond and Borders are assistants to the local Union president. The meeting was attended by some 17 of approximately 40 employees of the Em- ployer. Spond, who was the primary spokesman for the Petitioner, expounded on the benefits of unionism for some 35 minutes when an employee inquired of Spond what it would cost to become a member of the Union. Spond informed employees that there would be an "organizational fee" of not less than $5 nor more than $10, and that anybody hired prior to the signing of an agreement between the Union and the Employer would pay that amount for membership in the Union. Spond testified that he then told employ- ees that after a contract had been negotiated and signed by the Union and the Employer, any "new" employees would be charged the Union's normal ini- tiation fee of between $50 and $100. Spond told em- ployees that in either case no fees at all would have to be tendered to the Union until after a contract had been signed with the Employer. Employer witness, Thomas P. Stossberg, testified that Spond told employees at the January 27 meeting that, .. . for those who joined the Union he had some cards that he would pass out and the cards were petitioning the NLRB for an election and he said that if we signed the cards before the election we would only have to pay $5.00 initia- tion fee and someone asked what the standard initiation fee would be-you know-if we didn't sign a card or say somebody that was hired after the election and he said it would be $50.00. Upon questioning by the undersigned Hearing Of- ficer, Stossberg testified that Spond said, "if we signed those cards that night that our initiation fee would only be $5.00 and someone asked him what the new drivers who were hired later on would have to pay-the new people who came in and he said it would be $50.00." Upon further questioning, Stossberg testified as follows: Q. What was meant by new people; did he tell you? A. Who would come to be hired after the election. Q. Those employees who were hired after the election, did he say anything about employees who came to join the Union after the election who had not signed cards prior to the election? A. After the election that had not signed cards prior to the election? Q. Did he make any reference to what the initiation fee would be for employees who ne- glected to sign cards before the election who wanted to join the Union after the election? A. No, sir. Q. You don't know if any reference was made to any employees who would be in that situa- tion? A. I don't recall him saying anything about that. Q. The discussion was about employees that signed that date and new employees who were hired after the election is what you recall? A. Yes. Q. Was any mention made of the election it- self? A. Someone asked when it would be and- Q. With reference to the initiation fee, do you recall any conversation along those lines? A. About the election with reference to the initiation fees? Q. Right? A. No, sir. Employer witness, Donald Nunn, testified: I believe it was Don Cunningham asking what the initiation fee would be and Mr. Spond said that for the initial men, in other words that we were organizing the Union, meaning now, you know, that the initiation fee would be $5.00 and I don't really remember whether he was inter- rupted at that point or if it was one continu- ous-1 believe one of the other drivers asked him whether-you know-how much it would be later, whether you know, there was an exact pause in there or not, but he said that for the men who would join the Union later, meaning after the election, it would be the regular fee of $50.00 and at that point I interrupted him and asked him if it was $50.00 because I had a with= drawal card from another union and the reason I asked was because when I joined the union it was $35.00. Employer witness, Michael S. Mayfield, testified CALL-A-MART 227 that he recalled Spond's reply to the question about initiation fees as follows: He said the drivers that were there that eve- ning, any drivers that would sign cards before the election, before the Union got in would only have to pay a $5.00 fee, initiation fee, instead of $50.00. When questioned by Employer counsel- as to when the $50 initiation fee would take effect, Mayfield re- plied, "If the Union got in-after the Union was in anybody that was hired after the contract was negoti- ated." Employee witness, John F. Wiegel, Larry DeBurg- er, and William J. McGuire, all of whom testified on behalf of the Petitioner, stated in substance that Spond told them that all employees would be subject to an organizational fee of between $5 and $10 but new employees hired after the execution of a con- tract between the Employer and the Union would have to pay the regular initiation fee. Following his statements about organizational fees and initiation fees, Spond told employees that it was up to them whether or not they wanted to "get the ball rolling" with the Union and that if they were interested, all they had to do was fill in the authoriza- tion cards. Spond left a book of 25 authorization cards and he and Representative Borders left the room. During their absence, employees discussed what course of action they wanted to take and also the initiation- fees. Apparently, some drivers believed it would be cheaper to join the Union at that time rather than after the election. Shortly, Spond and Borders returned and were given 14 signed authori- zation cards. One employee, volunteered to obtain additional authorization cards from the Union the following day. The next few days, employees Don Cunningham and John Weigel solicited support from fellow em- ployees for the Union, telling them, among other things, about the initiation fees and that it would "$5.00 now and $50.00 later." Whether or not there was any further explanation as to what was meant by the $50 initiation fee at the later date remains unclear on the record before me. It is also unclear as to how many employees were ultimately solicited in this fashion and what they were told about the initiation fee prior to the execution of their authorization cards. Approximately 33 cards were turned in to the Union prior to the election. Based on the totality of evidence, the record before me portrays a situation where representative Spond, in vague and general terms, explained to employees at the January 7th meeting what the organizational fees and initiation fees would be. According to Spond's testimony the discussion centered around those employees being organized and new employees hired sometime after the election; while that specific area having to do with current employees who ne- glected to or refused to sign authorization cards went unexplained as to their financial responsibilities. The general tenor of Spond's remarks are substan- tiated by at least two witnesses called by the Employ- er, namely, Thomas Stossberg and Michael Mayfield. As a result of Spond's vagueness in explaining the fee set-up of the Union, it appears that some employees misunderstood what was being said. Such misunder- standing was then apparently perpetuated by Cun- ningham and Wiegel in soliciting the signatures of other employees. As noted above, the extent to which such misunderstanding was perpetuated is not clear on the record before me. An analysis of N. L. R. B. v. Savair Manufacturing Company, 414 U.S. 270, December 17, 1973, readily reveals that the conduct with which the Supreme Court concerned itself was not the innocent misun- derstandings of employees, as in the instant case, but rather with the intentional and deliberate waiver or reduction of initiation fees conditioned upon the out- come of an impending election. The test for the ob- jectionable conduct espoused by the United States Supreme Court in the Savair case must, of necessity, be an objective one, based upon the representations made to employees prior to the election and not upon the subjective considerations of employee be- liefs or misunderstanding. Thus, Savair is directed at the coercive effects of requiring employees to desig- nate the union as their representative prior to the election or otherwise lose the economic benefit of reduced or waived initiation fees or dues. It is the potential impact and effect of requiring such affirma- tive action by employees before the election which the Supreme Court held interfere with employees free choice in the election. Unlike Savair there is no evi- dence in the case before me that the Union, through Spond or any designated agents, conditioned the waiver of initiation fees on such affirmative action by employees prior to the Board election. Rather, I find, in crediting the testimony of Union representative Spond, that he informed employees that they would be admitted to membership after payment of an organizational fee of from $5 to $10 whereas new employees hired after the signing of a contract would pay the standard initiation fee rang- ing from $50 to $100. Nowhere in the record before me is there evidence that Spond specifically or with a coercive intent, as envisioned by the Supreme Court's Savair decision, told employees present at the January 7, meeting that only those employees who 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD executed authorization cards prior to the election would be entitled to the reduced rate if the Union was successful in the election, and that those who failed or neglected to do so, even though employed on the date of the election, would not be so entitled. In B. F. Goodrich Tire Company, 209 NLRB 1175, a situation was presented where the Secretary-Trea- surer of the petitioning union admitted that he had told employees that they could join at a reduced rate, as it was the union's standard practice to accept new groups of employees at the lower rate. The Board, in finding that the Petitioner's conduct in this regard was not objectionable in light of the Savair decision held, the guidelines of Savair, supra. In so finding, the Board noted: The additional fact that the union, in its oral waiver of initiation fees, limited the availability of that waiver to only those individuals who were employed when it was "voted in" could not, in our view, be deemed to have affected the election. Whatever the impact of such a limita- tion, it is clear that it would only affect those individuals hired after the election, who, in any event, could not have participated in the election and could not have any effect on its outcome. Endless Mold, Inc., supra, footnote 4. The practice of offering special, reduced rates during an organizational campaign has long been one of the union's traditional methods of enhancing its appeal to employees. We have never found such conduct to be objectionable where as here it was an unconditional offer not dependent on how an employee voted. (Weyer- hauser Company, 146 NLRB 1; Gilmore Indus- tries, Inc., 140 NLRB 100; The Gruen Watch Company, The Gruen National Watch Case Com- pany, 108 NLRB 610) Neither do we feel that this position is affected by the Supreme Court in Savair. In forbidding the Union offer of reduc- tion or elimination of initiation fees on condi- tion the employee signs an authorization card prior to the election, the Supreme Court denied unions the right to "buy endorsements and paint a false portrait of employee support during its election campaign." However, the Court did rec- ognize that initiation fees could be an artificial obstacle to an employee's endorsement of a union with which he was in sympathy. It further recognized that a union had a legitimate interest in removing such an obstacle through the waiver of its initiation fees and this interest could be similarly preserved . . . by waiver of its initia- tion fees available not only to those who have signed up with the union before an election, but also to those who joined after the election. Thus, where a union offered to waive its initiation fees for all the employees in the unit who joined at any time during the organizational stage of pre- sentation, prior or subsequent to the election, such waiver was legitimate and did not affect the election. B. F. Goodrich, supra. In Endless Mold, Inc., 210 NLRB 159, the Board found that a union's waiver of initiation fees for all employees, employed by the employer, when the pe- titioner was "voted in" was not objectionable under Lastly, the Board did not find objectionable the conduct of a union which offered to waive the initia- tion fees for all employees employed when the con- tract was signed as the offer was not limited to those employees who joined the union before the election but was equally available to all employees after the election and up to the date of signing a contract. Irwindale Division, Lau Industries, a Division of Phil- lips Industries, Inc., 210 NLRB 182. In so finding, the Board stated: The Employer contends that the 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 refer- ence to the practical reality that initiation fees have no real significance for employees unless the union becomes the bargaining representa- tive; i.e., wins the election. It is true that the Sixth Circuit's opinion in Savair found the waiv- er 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. Irwindale Division, supra, foot- note 3. With respect to the solicitation of authorization cards by employees, there is no evidence that the em- ployees who were engaged in such activities and made representations to their fellow employees that it would be cheaper for them to join the union before the election than after were acting as duly designated representatives of the Union. Without such a show- ing, I find that these employees were acting gratu- itously for their own ends (as opposed to those of the petitioning Union) and that their actions cannot, CALL-A-MART therefore, be attributed to the Union so as to charge the Union with having engaged in coercive conduct which would warrant setting aside the election. Moreover, the evidence only shows that at most only three employees who did not attend the meeting of January 7th were told by either employees Weigel or Cunningham that it would be cheaper for them to join the Union prior to the election. Finally, a fair application of the Supreme Court's 229 Savair guidelines would seem to dictate that the peer pressures exerted upon fellow employees by those pro-Union employees in order for the totality of con- duct to be objectionable must have been fostered by the prior action of the Union in telling employees that initiation fees would only be waived for those individuals who executed authorization cards prior to the outcome of the election. As I have previously found, those facts are not present in the instant case.