Overhead Door Corp.

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Advance Industries Division-Overhead Door Corpo- ration and Fox River Valley District Council of Car- penters, Local Union 2497, United Brotherhood of Carpenters and Joiners of America , AFL-CIO. Case 30-CA-2392 October 31, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 28, 1974, Administrative Law Judge Well- ington A. Gillis issued the attached Decision in this proceeding. Thereafter, the Charging Party filed ex- ceptions and a supporting brief, and the Respondent filed a brief in opposition to the Charging Party's exceptions and brief. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. IT IS HEREBY FURTHER ORDERED that the election held on April 19, 1973, among Respondent's employ- ees in Case 30-RC-1944 be set aside, that the Re- gional Director's Supplemental Decision and Certifi- cation of Representative of May 25, 1973, designat- ing the Union as collective-bargaining representative for Respondent's employees be rescinded, and that the Board's Decision and Order, dated November 26, 1973, finding that the Respondent had unlawfully re- fused to bargain with the Union be vacated.' IT IS ALSO FURTHER ORDERED that the Regional Di- rector for Region 30 take the appropriate action con- sistent with the above findings and conclusions in regard to Case 30-RC-1944. DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Administrative Law Judge: On December 18, 1972, Fox River Valley District Council of Carpenters, Local Union 2497, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereinafter referred to as the Union, filed a representation petition under Section 9(c) of the National Labor Relations Act, hereinafter referred to as the Act, in Case 30-RC- 1944, seeking certification as the collective-bargaining rep- resentative for the production and maintenance employees of Advance Industries Division-Overhead Door Corpora- tion, hereinafter referred to as the Respondent or the Com- pany. Thereafter, pursuant to a Decision and Direction of Election issued by the Regional Director for Region 30 on March 19 and 20, 1973, an election was held on April 19, 1973, the results of which revealed that 73 votes were cast for and 65 against the Union, with 7 challenged ballots, a number insufficient to affect the results of the election. Timely objections to conduct affecting the results of the election were filed on April 25, 1973, by the Respondent. Pursuant to an investigation the Regional Director, on May 25, 1973, issued his Supplemental Decision and Certi- fication of Representative, certifying the Union as the col- lective-bargaining representative of the Respondent's em- ployees in the production and maintenance unit. Thereaf- ter, on June 19, 1973, the Board denied the Respondent's request for review of the Regional Director's Supplemental Decision, thereby adopting the Regional Director's Certifi- cation of the Union. Pursuant to an unfair labor practice charge filed by the Union on July 6, 1973, in the instant proceeding, the Act- ing Regional Director, on July 11, 1973, issued a complaint alleging violation of Section 8(a)(1) and (5) of the Act. The Respondent, in its answer to the complaint filed on July 16, 1973, admitted the allegations of the complaint material to the instant proceeding but denied the legal effect or validi- ty of the Board's May 25, 1973, certification. Thereafter, pursuant to a Motion for Summary Judgment filed by the General Counsel on August 13, 1973, and a subsequent order of the Board transferring the proceeding to itself, the Board, on November 26, 1973, issued its Decision and Or- der in this matter,' finding that the Respondent had en- gaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act and ordering it, upon request, to bargain with the Union as the exclusive representative of its employees in the appropriate unit. On November 27, 1973, the Respondent petitioned the United States Court of Appeals for the Seventh Circuit for review of the Board's Decision and Order. On January 14, 1974, the Respondent requested the Board to reconsider its Decision and Order in light of the decision of the United States Supreme Court in N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270, rendered on December 17, 1973. Thereafter, on January 16, 1974, the Court of Appeals for the Seventh ' 207 NLRB 548 (1973) '207 NLRB 548 214 NLRB No. 79 ADVANCE INDUSTRIES DIV. Circuit granted the Board's motion to hold the proceedings therein in abeyance pending resolution of the Respondent's request for reconsideration before the Board. On April 22, 1974, the Board issued its Order Granting Motion, stating therein that the matters raised by the Re- spondent with respect to the Savatr issue could best be resolved at a hearing thereon . The Board ordered that a hearing be held before an Administrative Law Judge "for the purpose of receiving evidence on the issues raised by the Respondent's Request for Reconsideration," and di- recting that the judge prepare and serve on the parties a decision containing findings of fact, conclusions of law, and recommendations based on the evidence received. Pursuant to the Order of the Board , this case was tried before me on May 30, 1974 , at Appleton, Wisconsin. All parties were represented by counsel , and were afforded full opportunity to examine and cross -examine witnesses, to in- troduce evidence pertinent to the issues, and to engage in oral argument. Subsequent to the close of hearing, timely briefs were submitted by counsel for the Charging Party and the Respondent. Upon the entire record in this case , and from my obser- vation of the witnesses, and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of tes- timony" (Universal Camera Corp. v. N.L.R.B., 340 U .S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS The matter raised by the Respondent in its Request for Reconsideration with respect to the Savair issue, upon which the Board directed the instant hearing, involves that portion of the Employer's objection to conduct affecting the results of the election which asserts that, The Union, by its agents and others whom it encour- aged and/or supported, interfered in the election by soliciting employees to sign membership application cards containing a pledge which coerced and inter- fered with employees in the exercise of their right to vote and which imposed on those who signed such cards the obligation to vote for the Union or be in violation of the pledge set forth therein. The Union, by its agents and others whom it encouraged and/or supported, induced employees to sign the membership application cards containing the above mentioned coercive pledge by telling them that if they signed such applications prior to the election their membership fee would be $1.00, whereas if they signed applications or otherwise attempted to loin the Union after the elec- tion the membership or initiation fee would be $25.00 or more. The Union, by its agents and others whom it encour- aged and/or supported, advised employees that if they joined the Union prior to the election [and the Union was successful] their membership fee and/or intitia- tion fee would be $1.00, otherwise it would be $25.00 or more.2 519 The record herein reveals that the Union commenced its organizing campaign among the employees at the Respondent's plant in November 1972. During the period between November and the election on April 19, 1973, the Union conducted four general meetings attended by the Respondent employees, two of which were held at the "Su- per Bowl" on January 15 and April 16, 1973, and the other two held at the Union's office on Lyndale Avenue on Feb- ruary 8 and March 28, 1973. Also during this period, ap- proximately 90 of the Respondent's employees signed an application for membership in the Union, each paying a $1 initiation fee, most of whom signed in the presence of a business agent. In addition to the above-stipulated facts, it was further stipulated by the parties that "By letter dated January 2, 1973, the International Carpenters' Union granted Local Union No. 2497 a dispensation to accept employee appli- cants of Advanced Industries Division-Overhead Door Corporation into membership of the Union without pay- ment of the initiation fee for the period beginning Decem- ber 20, 1972, through March 31, 1973. An extension of this dispensation was granted by the International Union by letter dated April 16, received by the Union on April 18, for the period, April 1, 1973, through September 30, 1973." 3 The affidavits of a number of employees obtained by the Board in early May 1973 during the investigation of the objections were received in evidence by stipulation of all parties that the contents of the affidavits would reflect the testimony of each, were he called, and that the affidavits were to be accepted as truth of the matter stated herein. Thus, according to the affidavit of Darlene Romenesko, an employee identified as one of the leading union organiz- ers, at the third union meeting which was held at the union office on March 28, it was decided by a hand vote of the employees attending that "employees could loin the Union and pay a $1 initiation fee until March 31, 1973, after which they would have to pay $25," and further, that "new employees hired after March 31, but prior to the election would have the opportunity of joining the Union for a $1 fee." Corroborative of Romenesko is the affidavit of employ- ee Gail Criscione who states that, during a union meeting at the union office, she raised her hand and, in answer to her question, Business Agent Barnett 4 confirmed that it 2 With respect to this objection, in his Supplemental Decision and Certifi- cation of Representatives , the Regional Director , pursuant to his investiga- tion, found, inter alia, that "during one of the several union campaign meet- ings prior to the election, the employees in attendance agreed by a hand vote that employees who joined the Union prior to March 31, 1973, would be allowed to pay the reduced initiation fee of $1, but that employees who joined subsequent to that date would be required to pay a $25 fee," and that "it was further agreed that new employees, hired after March 31, 1973, but prior to the election on April 19, 1973 (or later if the Employer's Request for Review was granted), could pay the reduced fee " As the Regional Director found that such conduct , under applicable Board law at that time, was not ob4ectionable , he found the objection to be without merit A further stipulation by the parties reveals that after the April 19 elec- tion, employees were still joining the Union by paying a $1 initiation fee " Barnett, whose first name does not appear, was identified on the record as an official of the International Union 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was true that she could pay $ 1 now and get a union mem- bership, but that if she waited until after the election she would have to pay $25. According to Criscione, either Bar- nett or Business Agent Jerry Jahnke followed up by stating that "the $1 payment was just like going to a sale-pay now and it's cheaper." At the meeting, according to Cris- cione, a date of March 30 was set by Barnett "before which a $1 fee could be paid," and a vote was taken which per- mitted any new girl hired prior to the election to pay the $1 fee. Several employees, namely Marge Wallace, Laurie Hartzeim, Margaret Van Hout, and Anita Berg, among others, told Criscione before the election that they paid the $1 then rather than having to pay $25 later on. Further corroborative of Romenesko and Criscione, is the affidavit of employee Violet Poolman, who stated that at the March 28 meeting at the union office, one of the union representatives, whose name she did not know, told the employees that anyone could sign a membership appli- cation and pay $1 until the end of March, after which it would go up to $25. Poolman signed the application and paid $1 because she thought she would be better off paying $1 at that time rather than $25 later. According to Pool- man, the business representative told the employees that the fee would be returned if the Union lost the election. The affidavit of employee Kris Ganzel also states that at a union meeting a majority of the employees voted that "all employees who did not join the Union and pay $ 1 initia- tion fee prior to March 31, 1973, would have to pay $25 after that date," and that, "new employees hired after March 31 ... would be required to pay only $1 until the election." According the affidavit of employee Geane Litscher, she paid a $1 initiation fee at one of the meetings "with the understanding that if I paid at that time, I would not have to pay $25 later if the Union won the election." Four employee witnesses and one of the two union offi- cials involved in the organizing campaign, Jerry Jahnke, testified on behalf of the Charging Union. Jahnke testified that at the February 8 meeting, some of the employees wanted to raise the initiation fee, that he prevailed upon them to wait "until we got to the bargaining table" to es- tablish the initiation fee, and that it was voted to keep it at $1. Jahnke also testified that at some meeting he had men- tioned $25 as a normal fee, that such a fee was discussed, and that "he got the impression from the people that that's what they would establish at a later date, $25." Somewhat inconsistent with his testimony as to his "impression" of what the people "would" do, Jahnke also testified that at this meeting, the date unspecified, a motion was made and carried to raise the initiation fee to $25 at the time we got to the bargaining table. On cross-examination, Jahnke admitted that "more than likely" he read to the employees at the February 8 meeting the letter of January 2 from the International granting the Local Union dispensation to accept applicants without payment of an initiation fee until March 31, 1973, which letter in pertinent part reads as follows: This will acknowledge receipt of your letter dated De- cember 20, requesting dispensation of initiation fee for employees of Advanced Industries, Inc., Division of Overhead Door Company on behalf of Local Union No. 2497. In compliance with your request, dispensation is here- with granted to Local Union No. 2497 to accept appli- cants of the above named Company into membership without payment of initiation fee for the period begin- ning December 20, 1972, through March 31, 1973. The Local Union is also exempt from forwarding the re- quired fee to the General Secretary 's department, dur- ing this period of dispensation. In this regard, Jahnke admitted that such authority was limited through March 31, and, although denying that the employees were told that they must sign up before March 31 to take advantage of the $1 initiation fee, Jahnke testi- fied, without corroboration by any of the other witnesses, that the employees were told "that we could get another dispensation at any time I so desired to write the letter and keep it at $1." Employee Irene Garretts testified that at some meeting the motion was made and passed that "We would possibly raise our initiation fee to $25," but that we wait until after we negotiate it with Mr. Sumnich. Employee Varlee Frei- muth testified that at some meeting, "the motion was made to raise the initiation fee, but we had voted that we didn't want it raised at this time until we had negotiated with Vic Sumnich." Employee Agnes Brinkman also testified that at some meeting it was voted to leave the initiation fee of $1 until we get to the bargaining table. Brinkman recalled on cross- examination that, in connection with the hand vote, it was decided that employees could join for $1 until March 31, but did not recall the $25. She also testified that at one of the earlier meetings Barnett, International officer, told the employees that the initiation fee will be $1 until March 31, and that "When we had our own local with our own offi- cers that we would vote as members of our union on our initiation fee." Also on cross-examination, when confront- ed with Romenesko's affidavit and asked again whether "the vote was people ... signing the application after March 31 would have to pay $25," Brinkman answered, "It could be, but I doubt it." Employee Karne Thorn testified that, at some meeting, Jahnke mentioned that at a later time, if the members so voted, the initiation fee could be raised to $25 or more. Thorn testified on cross-examination, after looking at the affidavits of Romenesko and Barbara Vick, that it was her recollection that anyone could join the Union for $1 and that people who waited until March 31 would have to pay a $25 fee "if it was voted on by the members." Thorn's recollection, if not her credibility, is subject to question on the ground that she testified that the second letter of dis- pensation was ready by Barnett to employees at "one of those meetings from the first of the year of '73 prior to the election," whereas the last meeting before the election was held on April 16, 2 days before the letter was received. ANALYSIS AND CONCLUSIONS Obviously, there exists a vital disparity between the testi- monial affidavits of Romenesko, Criscione, Poolman, Gan- ADVANCE INDUSTRIES DIV. zel, and Litscher, on the one hand, and the testimony of Jahnke, Garretts, Freimuth , Brinkman, and Thorn, on the other Based on my appraisal of their demeanor while testi- fying, I found but one of the five witnesses to appear be- fore me impressive. In observing Jahnke I could not help but feel that he was well-aware of the Savair waiver and knew what he should and should not testify to. I was not then nor am I now convinced that he was being entirely truthful As to the four employee witnesses, not one of them had any sort of recollection as to which meetings they were testifying to, or the specifics as to the meetings or the vote taken. The testimony of all four, particularly Garretts, Freimuth, and Brinkman, was vague and often evasive, and varied in some particulars as to what really was said or what was voted. In some instances, again particularly Gar- retts. Freimuth, and Brinkman, I formed the opinion that, when asked a crucial question on cross-examination, they simply were not being truthful in their answers. Thorn, the one witness who did impress me with her candor, I feel, was perhaps testifying to the facts as she remembered them, but that her ability to recall may have been hindered by the fact that over a year had transpired since the events occurred By contrast, the affidavits of the five employees whose statements reveal that, by the statement of either Jahnke and Barnett,' or by vote of the employees, the $1 initiation fee was valid only until March 31, after which a $25 fee would be charged, were executed before Board agents in- vestigating the matter less than a month after the April election. This factor alone, compared with the evasive testi- mony of those testifying more than a year later, must be given substantial weight in determining the true facts 6 Further, as none of the four employee witnesses testified that she had attended all of the union meetings, it is entire- ly possible, consistent with the outstanding dispensation of the International valid through March 31, that, notwith- standing the earlier statements and possibly an earlier vote if actually made, such a vote, as suggested by the affidavits, was in fact taken on March 28 with none of these four girls present. It is apparent that the topic of an initiation fee and its possible increase was discussed at all of the meetings, and that the figure $25 was bantered around considerably. Thus, even the testimony of Thorne, to the effect that Jahnke told the employees at "some meeting" that if the members so voted the fee could be raised to $25 or more, as well as her testimony that people who waited until March 31 would have to pay a $25 fee "if it was voted in by the members," does not rule out the distinct possibility that, in her absence, such a vote was taken and passed on March 28 Thus, I credit the testimony of the five witnesses herein only to the extent that such testimony is not inconsistent with the credited sworn statements included in the affida- 5 Barnett was not called to testify, and therefore statements attributed to him remain unrefuted 6 Nor should the fact be overlooked that the Savair decision did not issue until long after the taking of the affidavits and well in advance of the hear- ing herein 521 vits alluded to above. I am persuaded, and so find, that, consistent with the limited authority granted Jahnke and the Local Union to accept applicants into membership without payment of an initiation fee only until March 31, coupled with the fact that an extension of such authority, although retroactive, was not received by the Local Union until April 18, by vote at the March 28 union meeting it was decided that employees could continue to join the union by paying $1 initiation fee until March 31, after which employees would have to pay $25, and that new hires up until the time of the election could join for $1.7 The Supreme Court, in its Savair decision, on facts very closely parallelling the findings herein, affirmed the refusal of a court of appeals to enforce an 8(a)(5) bargaining order of the Board, holding that the waiver of initiation fees con- ditioned upon joining the union prior to an election is not permissible. In Savair, during an organizational campaign and prior to an election, the Union circulated "recognition slips." Employees who signed up before the election be- came members of the Union and did not have to pay an initiation fee. Employees who did not sign the slip before the election, and the Union was voted in, had to pay the fee. In holding that such a practice interfered with employ- ees' rights under Section 7 of the Act, the Supreme Court reasoned, inter aka, that "By permitting the Union to offer to waive an initiation fee for those employees signing a recognition slip prior to the election, the Board allows the Union to buy endorsements and to paint a false portrait of employees' support during an election campaign. In the instant case, which I find is controlled by the Savair holding, employees were put on notice that the waiver of all but the $1 initiation fee was made available by the Union only to those employees joining the Union through March 31, and that those who joined thereafter could do so only by paying a $25 fee. The fact that the March 31 cutoff precedes by 19 days the scheduled elec- tion does not alter this rationale for, in its recent Con-Pac decision,' the Board "read the majority opinion in Savair as finding improper any waiver of initiation fees limited to the period before an election which can reasonably be con- strued as either an inducement to sign a union authoriza- tion card or to vote for the Union." Nor, as argued by Counsel for the Charging Party, does the fact that the $25 fee was not thereafter charged or that the International's dispensation was extended, thereby per- nutting a continuation of the $1 fee even after the election, warrant a different conclusion. It is not known how many of the 90 employees who signed membership applications before the election, thereby pledging by "sacred oath" to act in the best interest of the Union, did so before March 31, because they had been made aware by Jahnke that the dispensation cutoff was March 31 and because they were on notice that if they waited they would have to pay $25.9 ' In so finding, I specifically discredit testimony indicating the contrary or that which asserts that any increase in initiation fee would not take place until contract negotiations commenced ' Con-Pac, Inc, 210 NLRB 466 (1974) 'This figure would appear particularly significant in view of the fact that the balloting at the election shows 73 for and 65 against the Union, with 7 challenged ballots 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS Board's directive, I hereby recommend that the election held on April 19, 1973, among the Respondent's employees in Case 30-RC-1944 be set aside, that the Regional Director's Certification of Representative of May 25, 1973, designating the Union as the collective-bargaining repre- sentative for the Respondent's employees, be rescinded, and that the Board's Decision and Order, dated November 26, 1973, finding that the Respondent had unlawfully re- fused to bargain with the Union, be vacated." et at, 210 NLRB 182 (1974), and Bill Knapp's North Flint, Inc, et at, 210 NLRB 907 (1974) "Consistent with my findings and conclusions, I recommend that the Board act favorably upon Respondent's motion to dismiss the complaint made at the close of the hearing herein In concluding, as did the Supreme Court in Savair, that the Union herein engaged in impermissible conduct prior to the representation election,10 in compliance with the 10 The instant fact situation is clearly distinguishable from the several Board decisions rendered since Savair, holding permissible an unconditional waiver of fees available to all employees joining before and after the elec- tion, or held open until contract negotiations or ratification See Con-Pac, Inc, supra, S & S Product Engineering Services, Inc, 210 NLRB 912 (1974), Levitz Furniture Company of Santa Clara, Inc, 211 NLRB 417 (1974), Plastic Composites Corp, 210 NLRB 728 (1974), Irwindale Division, Lau Industries,