Crane Co.

DEMING DIVISION, CRANE CO. Deming Division, Crane Co. and United Steelworkers of America, AFL-CIO-CLC, Petitioner. Case 8- RC-9457 July 12, 1976 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and ap- proved by the Regional Director for Region 8 on April 26, 1974, in Case 8-RC-9457, an election by secret ballot was conducted on May 16, 1974, under the direction and supervision of said Regional Direc- tor. Upon the conclusion of the election, a tally of ballots, showing that of 92 eligible voters 91 cast bal- lots, of which 46 were for, and 45 against, the Peti- tioner, was furnished the parties in accordance with the Board's Rules and Regulations. Thereafter, on June 20, 1974, the Regional Direc- tor issued a Report on Objections in which he recom- mended that the Employer's objections to the May 16, 1974, election be overruled in their entirety as not properly filed and served pursuant to Section 102.69 of the Board's Rules and Regulations. On September 13, 1974, the Board issued its Decision and Certifica- tion of Representative adopting the findings, con- clusions, and recommendations contained in the Re- gional Director's report. On June 2, 1975, the Board issued its Decision and Order I in Case 8-CA-8692 wherein the Board found that the Employer had violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Petitioner as the certified bargaining representative of employ- ees in the unit, and ordered the Employer, upon re- quest, to bargain with the Petitioner. Thereafter, the United States Court of Appeals for the Sixth Circuit denied enforcement of the Board's Order.' On March 17, 1976, the Board issued an Or- der Remanding Proceeding to the Regional Director to consider, on their merits, the Employer's objec- tions filed in Case 8-RC-9457. The Regional Direc- tor investigated the objections and, on April 12, 1976, issued and served on the parties his Supplemental Report on Objections. In his Supplemental Report, the Regional Director recommended that Objection 1 be sustained, that Objection 2 be overruled, that the election conducted on May 16, 1974, be set aside, and that a second election be directed. The pertinent portion of the Regional Director's Supplemental Re- port is attached hereto. 657 On April 26, 1976, the Employer filed exceptions to the Regional Director's Supplemental Report and a motion to dismiss.' The Petitioner filed an answer- ing brief to the Employer's exceptions on May 8, 1976. 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 reviewed the record in light of the exceptions and briefs, and has decided to adopt the Regional Director's findings and recommendations as contained in his Supplemental Report on Objec- tions. Accordingly, the Employer's Objection 1 is hereby sustained. ORDER It is hereby ordered that the election conducted herein on May 16, 1974, among certain employees of Deming Division, Crane Co., be, and it hereby is, set aside, and that the certification issued in Case 8-RC- 9457 on September 13, 1974, be, and it hereby is, rescinded. [Direction of Second Election and Excelsior foot- note omitted from publication.] i Reported at 218 NLRB 130 2 Deming Division, Crane Co v N L R B, 526 F 2d 430 (C A 6, 1975) 3 The Employer' s motion to dismiss is denied as lacking merit In support of its motion, the Employer noted that the Board's Order Remanding Pro- ceeding to Regional Director and the Regional Director's Supplemental Report on Objections carry the case number designation 8-CA-8692 al- though the United States Court of Appeals for the Sixth,Circuit had previ- ously denied enforcement of the Board's Order in the unfair labor practice proceeding designated as Case 8-CA-8692 See Deming Division, Crane Co v N L R B, 526 F 2d 430 (C A 6, 1975) However, although both the Order Remanding Proceeding and the Supplemental Report inadvertently carried the unfair labor practice case number designation , it is apparent that the only purpose for which the record was reopened and remanded to the Re- gional Director was to resolve the objections in the underlying representa- tion case designated 8-RC-9457 The Employer also suggests that by denying enforcement of the Order issued by the Board in Case 8-CA-8692 the Sixth Circuit ousted the Board of jurisdiction to act further in the representation proceeding The Employer's argument comes down to saying that because it succeeded in persuading the court that the Employer 's objection to the election should have been considered , the Board , having considered and sustained the ob- jection, is now barred from running a second election to determine the wishes of the employees We place no such interpretation on the court's decision Rather, we think it clear that the court contemplated that the Board would fulfill its duty of determining the choice of the employees in a free and fair election APPENDIX SUPPLEMENTAL REPORT ON OBJECTIONS Pursuant to a Stipulation for Certification Upon Consent Election approved by me on April 26, 1974, in Case 8-RC-9457, an election was conducted on 225 NLRB No. 87 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 16, 1974, among the employees in the following described unit: All office clerical employees and technical em- ployees, including draftsmen, tool designers, process engineers, power industries product spe- cialist, curve technician, senior draftsmen, ex- cluding all production and maintenance em- ployees, salesmen, industrial engineers, all exempt employees, professional employees, con- fidential employees, guards and supervisors as defined in the Act. The tally of ballots issued after the election shows that of approximately 92 eligible voters 91 cast bal- lots, of which 46 were cast for, and 45 against, the Petitioner. There were no challenged or void ballots. On May 23, 1974, the Employer filed one objec- tion to conduct affecting the results of the election. On June 6, 1974, the Employer raised one further objection in a letter to the [Regional Director] re- ceived at the Board offices on that date. The Peti- tioner was not served with a copy of the Employer's first objection until June 6, 1974, and was never served with a copy of the Employer's letter to me in which the second objection was raised. Pursuant to the provisions of Section 102.69 of the Board's Rules and Regulations, I caused an investi- gation of the Employer's objections to be conducted, and thereafter issued a Report on Objections on June 20, 1974, in which I recommended that the objections be overruled in their entirety. In reaching that con- clusion, I found that the Employer's objections were not properly filed and served pursuant to Section 102.69 of the Board's Rules and Regulations. Pursuant to Section 102.69(c) of the Board's Rules and Regulations, the Employer filed timely excep- tions to my Report on Objections. The Petitioner filed a Brief in Opposition to the Employer's excep- tions. Upon consideration of my Report on Objections and the Employer's exceptions, the Board issued a Decision and Certification of Representative on Sep- tember 13, 1974 in which it adopted my findings, conclusions, and recommendations. On October 23, 1974, the Petitioner filed an unfair labor practice charge in Case 8-CA-8692 alleging that the Employer had violated Section 8(a)(1) and (5) of the Act by refusing to bargain with the newly certified Petitioner. Subsequently, I issued complaint on November 26, 1974, and a hearing was held be- fore an Administrative Law Judge. On June 2, 1975, the Board issued its Decision and Order in which it found that the Employer had refused to bargain col- lectively with the Petitioner as the exclusive represen- tative of the employees in the above-described bar- gaining unit, and ordered the Employer, upon re- quest, to bargain with the Petitioner. Deming Divi- sion, Crane Co., 218 NLRB 130. Thereafter, the Employer filed a petition for re- view of the Board's Order with the United States Court of Appeals for the Sixth Circuit, and the Board filed a cross-application for enforcement of its Order. On December 17, 1975, the court denied enforce- ment of the Board's Order. Deming Division, Crane Co. v. N.L.R.B., 526 F.2d 430 (C.A. 6). On March 17, 1976, the Board issued an Order Remanding Proceeding to the . . . Regional Director in which it ordered that the record in this proceeding be reopened. In compliance with the Board's most recent Order, the Employer's objections filed in Case 8-RC-9457 will be considered on their merits. An investigation having been made, pursuant to Section 102.69 of the Board's Rules and Regulations, I here- by make the following findings, conclusions, and rec- ommendations. The Objections The Employer's original objection, which shall be referred to as Objection 1 for purposes of this report, reads as follows: The Union prior to the election unlawfully in- duced employees to sign authorization cards by waiving initiation fees for "anyone joining now during this campaign," thus buying endorse- ments and painting a false portrait of employee support... . By letter received in the Board's offices on June 6, 1974, the Employer raised another objection, which shall be referred to as Objection 2 for purposes of this report, and which reads as follows: . . . on May 30, 1974, the Company became aware of pre-election campaigning in violation of the 24-hour rule. Just prior to his scheduled voting time . . . [an employee] was approached by Luther Hughes, ex-vice president of Local Union No. 2463, United Steelworkers of Ameri- ca, who was extolling the benefits of Union membership and that . . . [the employee] should vote for the union. Objection I In this objection, the Employer asserts that during its election campaign, the Petitioner offered to waive its initiation fees for employees who joined the Peti- tioner during the campaign, thereby buying endorse- ments and creating a false impression of employee support. The investigation revealed that on or about March 12, 1974, the Petitioner mailed a two-page piece of DEMING DIVISION, CRANE CO 659 campaign literature to all employees in the unit. The literature was signed by Howard O'Dea, staff repre- sentative of the Petitioner, and was addressed to the "Office and Technical Employees of Crane-Deming, Salem, Ohio." On page one, the document reads in pertinent part "So having told me you want me, you now have to give me evidence that I do indeed represent a majori- ty of office employees. That means sign the member- ship card enclosed and mail it back to me." Page two reads in part as follows: There will be no initiation fees for anyone joining now during this campaign. In addition you will pay no dues until a con- tract is negotiated and approved by you, the members... . Sign the card! Do it now! Let's get rolling. It is clear that the Petitioner was attempting to en- list employee endorsement of its organizational ef- forts urging the signing of union authorization cards for the Petitioner. One of the inducements offered to employees for obtaining their signatures prior to the election was the waiver of initiation fees. To benefit from such a waiver, employees were required to join "now during this campaign." In Savair Mfg. Co., 414 U.S. 270 (1973), the Su- preme Court stated that a union could preserve its legitimate interest by the waiver of initiation fees not only for those who have signed up with the union before an election but also for those who join after the election. However, the Supreme Court denied unions the right to buy endorsements and paint a false portrait of employee support during its election campaign by the reduction or elimination of initia- tion fees on the condition that the employees sign an authorization card prior to the election. The Supreme Court's tests for the validity of initia- tion fee waivers have been reiterated and applied in recent Board cases. In Endless Mold, Inc., 210 NLRB 159 at 159 (1974), the Board found that the union's waiver was permissible where the union had stated in a letter: "INITIATION FEES:-COSt of joining UAW has been waived for all Endless Mold Employees," be- cause the waiver was not conditioned on supporting the Union in any manner. In Irwindale Division, Lau Industries, A Division of Phillips Industries, Inc., 210 NLRB 182 (1974), the Board found that it was per- missible for the union to state that initiation fees would be waived for all employees, if they were em- ployed at the time the contract was signed. In The Coleman Company, Inc., 212 NLRB 927 (1974), the Board found that the union's waiver of initiation fees was objectionable where the union had stated: "The initiation fee will be waived for all pres- ent employees who make application for charter membership in your new local union." The Board noted that the promise of benefit was ambiguous and was extended in terms which lacked the critical detail of when the application for charter membership must be made in order to be eligible for the waiver. The Board found that the Union's waiver was susceptible of an interpretation by the employees that it would be to their benefit to make a union commitment be- fore the election, and thereby "come in at the ground floor", to avoid paying the initiation fee. The Board concluded that it was the Petitioner's duty to clarify the ambiguity or suffer whatever consequences might attach to employees' possible interpretations of the ambiguity. See also Inland Shoe Manufacturing Co., Inc., 211 NLRB 843 (1974). As set forth above, a waiver is permissible only where it is unconnected with support for the union before the election, unrelated to a vote in the elec- tion, and with support for the union before the elec- tion, unrelated to a vote in the election, and without distinction between joining the union before or after the election. In the instant case, Petitioner contends that by its waiver "there will be no initiation fees for anyone joining now during this campaign," it meant that its campaign, and thus the waiver, would continue until the contract was signed. There is no evidence, how- ever, that this interpretation was expressed to the em- ployees. Assuming, for the purposes of discussion, that the interpretation offered by the Petitioner is a reasonable one, I nevertheless conclude that the waiver is also susceptible of an interpretation by the employees that they must make a union commitment before the election. In addition, I conclude that the more generally accepted connotation of a "cam- paign" indicates that it ends with the election. "Cam- paigns" do not normally continue after the election. The Petitioner's waiver does not meet the tests for valid waivers as set forth in Savair, supra; Endless Mold, supra; Irwindale Division; supra; and other cases cited herein. I conclude, therefore, that the waiver in the instant case interfered with the employ- ees' free choice in the election. Accordingly, I find that Employer's Objection I is meritorious, and shall recommend that it be sus- tained.