Rounsaville Of Tampa, Inc.

ROUNSAVILLE OF TAMPA, INC 455 Rounsaville of Tampa, Inc. and Teamsters, Chauf- feurs, and Helpers Local Union #79, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Pe- titioner. Case 12-RC-4951 June 8, 1976 ORDER DIRECTING HEARING BY MEMBERS JENKINS, PENELLO, AND WALTHER Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 12 of the National Labor Relations Board on November 13, 1975, an election by secret ballot was conducted in the above-entitled proceeding on November 24, 1975, under the direction and supervi- sion of the Regional Director, among the employees in the stipulated appropriate unit Upon the conclu- sion of the election, a tally of ballots was furnished the parties in accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended The tally of ballots showed that of approximately 20 eligible voters 13 cast votes for the Petitioner, and 7 cast ballots against the Petitioner There were no void or challenged ballots Thereafter, on December 2, 1975, the Employer filed a timely objection to the election contending that Petitioner improperly promised employees that there would be no initiation fee for employees who joined the Petitioner prior to the election Pursuant to the provisions of Section 102 69 of the Board's Rules and Regulations, Series 8, as amended, an investigation of the issues raised by the objections was conducted under the direction and supervision of the Regional Director On January 29, 1976, the Regional Director issued and served on the parties his Report on Objections, in which he recommended that the Board overrule the objection and issue ap- propriate certification in favor of the Petitioner Thereafter, the Employer filed timely exceptions to the Regional Director's report and a supporting brief urging that the election be set aside or, in the alterna- tive, that a hearing be directed on its objection 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 duly considered the matter and is of the opinion that issues have been raised with re- spect to the Employer's objection which can best be resolved by a hearing Contrary to our dissenting colleague, we believe that the direction of a hearing here is totally consis- tent with the Board's holdings in the "charter mem- bership" cases' In the "charter membership" cases the Board concluded that the ultimate issue of whether a Union's offer of a waiver of initiation fees was objectionable turned on whether the offer was ambiguous and reasonably susceptible to an inter- pretation violative of the standard established by the Supreme Court in N L R B v Savair Manufacturing Co 2 Here in a letter dated November 21, 1975, the Petitioner informed the employees that "[thhere is an initiation fee, for future members, why deny the truth " The letter did not define or otherwise explain who "future members" would be Therefore, the Petitioner's use of the phrase "future members" was ambiguous within the meaning of the "charter mem- bership" cases Furthermore, this ambiguous use of the phrase "future members," like the ambiguous use of the phrase "charter member" made it unclear whether employees' initiation fees would be waived for those joining the Petitioner after the election, or only prior thereto Accordingly, the employees could well have been induced to become early members of the Petitioner on the reasonable belief that only thereby could they avoid being "future members" who would have to pay initiation fees Had the Petitioner's waiver offer been limited to the "future members" statement in its November 21, 1975, letter, we would unhesitatingly find Petitioner's waiver offer to be objectionable un- der the "charter membership" cases However, at a meeting held on November 19, 1975, the Petitioner's secretary-treasurer, Meeks, made certain statements to the employees concerning eligibility for the waiver of initiation fees As revealed by the Regional Director's Report on Objections, the statements and affidavits of the employees are in conflict as to what Meeks actually told the employees concerning the waiver of initiation fees This conflict must be re- solved by a hearing since, if it is established that Meeks unequivocally told the employees that the waiver would not be restricted only to employees that joined the Petitioner prior to the election, we would find, consistent with the "charter member- ship" cases, that the "future members" statement was sufficiently clarified and it could not reasonably have misled the employees into believing that they must join the Petitioner prior to the election to avoid pay- ing initiation fees It is hereby ordered that a hearing be held before a duly designated Hearing Officer for the purpose of 1 Inland Shoe Manufacturing Co, Inc, 211 NLRB 724 (1974), The Cole man Company, Inc 212 NLRB 927 (1974), D A B Industries, Inc, 215 NLRB 527 (1974) 2414 U S 270 (1973) 224 NLRB No 45 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receiving evidence to resolve the issues raised with respect to the Employer's objection IT IS FURTHER ORDERED that the Hearing Officer designated for the purpose of conducting the hearing shall prepare and cause to be served on the parties a report containing resolutions of the credibility of wit- nesses, findings of fact, and recommendations to the Board as to the disposition of said objection Within 10 days from the date of issuance of such report, either party may file with the Board in Washington, D C, eight copies of exceptions thereto Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other party, and shall file a copy with the Regional Director If no exceptions are filed thereto, the Board will adopt the recommendations of the Hearing Officer IT IS FURTHER ORDERED that the above-entitled mat- ter be, and it hereby is, referred to the Regional Di- rector for Region 12 for the purpose of conducting such hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof MEMBER JENKINS, dissenting Unlike my colleagues, I would affirm the Regional Director's decision in this case to overrule the sole objection to the November 24, 1975, election, which the Petitioner won 13 to 7 In its objection, the Em- ployer alleged that the Petitioner in a letter informed employees that there will be no initiation fee for those em- ployees who join the [Petitioner] prior to the election [and further that] prior to the elec- tion, various employees were told that if they signed cards for the [Petitioner] before the elec- tion there would be no initiation fee As the Regional Director found, the Employer pre- sented no evidence that the Petitioner, or any of its agents, orally or in writing made any of the above- quoted statements Rather, the record shows that at a meeting held 5 days before the election two of several employees heard Petitioner's representative, R H Meeks, respond to a question about the financial obligations of union membership by saying some- thing about the possibility that the Union's Interna- tional might authorize the waiver of initiation fees for "charter members " One of the two employees heard Meeks explain that the waiver would extend to employees who joined the Petitioner within 30 days after the Petitioner won the election, while the sec- ond employee stated that Meeks, who did not define "charter member," "in no way" said or indicated that the waiver was conditioned on the signing of an au- thorization card Finally, on November 21, 3 days before the election, Meeks sent to all 20 unit employ- ees a two-page single-spaced letter which in pertinent part stated that There is an initiation fee, for future members, why deny the truth Every organization charges initiation fees From the foregoing, it is abundantly clear that the Employer had failed to show that "[t]hose solicited were told that there would be no initiation fee charged those who signed [cards] before the elec- tion " N L R B v Savair Manufacturing Co, 414 U S 270, 274 (1973) There is simply no evidence that the Petitioner coupled its card solicitation activities with any statements of any kind concerning the waiver of initiation fees for those signing cards before the elec- tion Moreover, as shown, the only condition that attached to the isolated statements about waiving ini- tiation fees for "charter" or "future" members was entirely proper under the Savair standard, that is, the first employee stated that Meeks said that the waiver extended to employees signing cards within 30 days after the Petitioner won the election Nonetheless, my colleagues find that the failure to explain the meanings of both "charter members" (to the second employee) and "future members" created an ambiguity which brings this case within the ambit of the charter membership cases 3 Thus, although they concede that the evidence reveals that the only condition attached to the possible granting of the waiver was entirely proper, my colleagues direct a hearing to determine, inter aha, whether Meeks "un- equivocally" told employees that the waiver "would not be" improperly restricted to those employees joining before the election I think that this preoccu- pation with nonfacts distorts Savair and even marks a departure from the charter member cases Hereto- fore, I have understood the majority in the charter member cases to be saying that in order for the Sa- vair principle to apply there must, at the very least, be some evidentiary connection between the solicita- tion of cards and the promise of special benefits for "charter members" which can support a reasonable inference that the employees solicited are being in- duced to sign up before the election because of some special concession See Coleman, supra (an applica- tion card for charter members), D A B, supra (a temporary membership card), and Inland, supra (a written appeal to sign a card) Here, by contrast, the majority seizes upon the failure to define "charter" membership to an employee who readily conceded that "in no way" was the possible waiver of the initi- 3 Inland Shoe Manufacturing Co, The, 211 NLRB 724 (1974), The Cole man Company, Inc 212 NLRB 927 (1974), D A B Industries, Inc, 215 NLRB 527 (1974) ROUNSAVILLE OF TAMPA, INC 457 ation fee conditioned upon the signing of an authori- zation card, and a passing reference to the initial fi- nancial obligations of "future members" in "every organization" in a letter which contained not a single exhortation to sign a card or to join the Petitioner before or after the election Simply stated, I find that the Employer's objection and the evidence presented in support thereof at best raise mere suspicions of objectionable conduct, and suspicions are no substi- tute for "substantial and material factual issues" which must be raised before we direct a hearing For the foregoing reasons, and for the reasons stat- ed in my dissenting opinions in the charter member- ship cases,4 I would certify the Petitioner as the col- lective-bargaining representative 4 Coleman, supra at 928, D A B, supra