D.A.B. Industries, Inc.

D.A B INDUSTRIES, INC. D.A.B. Industries, Inc. and International Union, Allied Industrial Workers of America, AFL-CIO, Peti- tioner. Case 8-RC-9465 December 12, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election, executed on April 26, 1974, an elec- tion by secret ballot was conducted on May 24, 1974, under the direction and supervision of the Regional Director for Region 8, among the employees in the appropriate unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 455 eligible voters, 432 cast ballots, of which 240 were cast for, and 187 against, the Petitioner. There were five challenged bal- lots, a number insufficient to affect the results of the election. There were two void ballots. The Employer filed timely objections to conduct af- fecting the results of the election. In accordance with the Board's Rules and Regulations, the Acting Re- gional Director conducted an investigation, and, on July 8, 1974, issued and duly served on the parties his Report on Objections in which he recommended that the objections of the Employer be overruled. Thereafter, the Employer filed exceptions to the Re- port on Objections based on a preelection offer by the Petitioner to waive initiation fees for "charter mem- bers." The Employer filed a supporting 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- thonty 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 the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the fol- lowing employees of the Employer 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 at the Employer's plant located at Spruce and Green- wood Streets, Bellefontaine, Ohio, including tool 527 room employees, but excluding all office clerical employees, laboratory technicians, plant clerical employees, timekeepers and time study men, fore- men, group leaders, and professional employees, guards, and supervisors as defined in the Act. 5. The Board has considered the Employer's objec- tions, the Acting Regional Director's report, the Em- ployer's exceptions and brief, and the entire record in this proceeding, and hereby adopts the Acting Regional Director's findings and recommendations except as modified herein. In Objection 1, the Employer alleged that the Peti- tioner made promises to members of the bargaining unit that the union initiation fee would be waived if the Petitioner prevailed in the election. The investigation conducted by the Acting Regional Director disclosed that the Petitioner, on May 6, 1974, sent a form letter to all employees whose names appeared on the Excel- sior list. In that letter, the Petitioner advised the em- ployees that, if they were not interested in receiving further communication from Petitioner, they should so indicate on an enclosed postcard and return such card to the Petitioner. Four employees so responded. Thereafter, and prior to the election, Petitioner mailed to the employees a "Temporary Membership Card." The card contained the following language printed on the front side: This is to certify that [employee's name] has been granted this TEMPORARY MEMBERSHIP CARD in the International Union Allied Indus- trial Workers of America, AFL-CIO. Said person being eligible to participate in an NLRB represen- tation election shall therefore be also eligible for CHARTER MEMBERSHIP without payment of initiation fee in an AIW Local Union chartered for employees participating in said election. On the reverse side of the card was printed the follow- ing language: THIS TEMPORARY MEMBERSHIP CARD IS YOUR GUARANTEE: No Initiation Fee No dues until a contract is negotiated and rati- fied No contract signed until ratified by majority vote No strike can be called by International Union, ONLY by two-thirds majority vote of your Local Union International Union, Allied Industrial Workers of America, AFL-CIO The investigation also disclosed that it has been the Petitioner's past practice of long standing to waive initiation fees for employees who are employed by an 215 NLRB No. 96 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer at the time the Petitioner obtains a contract with such employer. On the basis of the above facts, the Acting Regional Director found that the waiver of initiation fees was not conditioned upon how an employee chose to vote in the election, was not limited to those employees who joined the Petitioner prior to the election, and was available to all employees after the election and up to the date that a contract was signed. The Acting Regional Direc- tor found that Petitioner's offer was unobjectionable under standards set forth by the Supreme Court in N.L.R.B. v. Savair Manufacturing Company.' In its exceptions to the Acting Regional Director's report, the Employer contends that the election in the present case is tainted because of the ambiguity created by the distribution of "Temporary Membership Cards." The Employer asserts that the term "charter membership" is not defined, nor were the employees instructed as to how or when they obtained "charter membership" thus rendering Petitioner's conduct ob- jectionable under Savair. We agree with the contention of the Employer. The front side of the card mailed to the employees by the Petitioner granted them temporary membership in the Petitioner and offered them a waiver of initiation fees for "charter membership" in a local. The term "charter membership" is not defined, nor is it other- wise made clear when the employees must join the local to be eligible for the waiver. Petitioner's offer is there- fore ambiguous as to whether initiation fees would be waived for those joining the local after the election or only prior thereto. The reverse side of the card contributes to the am- biguous nature of Petitioner's offer. The Acting Re- gional Director read this side of the card as stating in pertinent part that "This temporary membership card is your guarantee : No initiation fee; No dues until a contract is negotiated and ratified." He accordingly concluded that the waiver of initiation fees was availa- ble to all employees up to the date of a signing of a contract. But these statements which the Acting Re- gional Director read in conjunction with each other are separate and distinct and the phrase "until a contract is negotiated and ratified" pertains only to the dues requirement and does not qualify the guarantee of "No Initiation Fee." To the extent that that guarantee per- tains to a waiver of initiation fees in a local,' it must be read together with the waiver offered on the front side of the card only to those acquiring "charter mem- bership" in a local. When it is thus read, the ambiguity 1 414 U.S. 270 (1973). 2 If the guarantee is merely that there is no initiation fee for the temporary membership in the petitioning International which was granted the em- ployees, then, of course, it has no bearing on the ambiguous nature of the offer contained on the front side of the card. in the card insofar as it deals with waiver of initiation fees is all the more evident. That it has been Petitioner's past practice to waive initiation fees for those employed when Petitioner ob- tains a contract with the employer in no way serves to remove or clarify this ambiguity. For, apart from the absence of evidence of employee awareness of such a past practice, it would be difficult for employees to reconcile the past practice with the front side of the card's conditioning waiver upon "charter member- ship" and the reverse side's assurance of "No Initiation Fee." Evidence of past practice thus not only fails to resolve the ambiguity but adds to the confusion. Thus we find that Petitioner's offer of a waiver of initiation fees for "charter membership," without fur- ther definition, is the kind of preelection offer con- demned by the Supreme Court in Savair.3 ORDER It is hereby ordered that the election conducted on May 24, 1974, be, and it hereby is, set aside. [Direction of Second Election and Excelsior footnote omitted from publication.] MEMBER JENKINS, dissenting: Contrary to my colleagues, I cannot conclude that the Union's offer to waive initiation fees as set forth in the "Temporary Membership Card" mailed to the em- ployees by the Union is ambiguous and therefore pro- scribed by Savair.4 The front of the card states in perti- nent part: . . . Said person [employee] being eligible to par- ticipate in an NLRB representation election shall therefore be also eligible for CHARTER MEM- BERSHIP without payment of initiation fee in an AIW Local Union chartered for employees par- ticipating in said election. It is clear that the "Temporary Membership Card" simply defines the eligibility status of the employees who will qualify for "charter membership" in a local to be chartered for the employees after the election has been conducted. The employees eligible are those who participate in the election. Since the local union to be chartered will not come into existence until after the election, it is clear that the Union here, as Member Fanning and I concluded in Coleman,' is making the offer to all employees and not just to employees who join prior to the election. Therefore, for the reason set forth in the dissenting opinion in Coleman, I would not 3 Inland Shoe Manufacturing Co., Inc., 211 NLRB No. 73 (1974); The Coleman Company, Inc., 212 NLRB No. 129 (1974). 4 N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973). 5 The Coleman Company, Inc., 212 NLRB No. 129 (1974). D.A.B. INDUSTRIES, INC. 529 find the Union's offer ambiguous and therefore objec- the time the local is chartered the employees could not tionable. reasonably conclude they had anything to gain in terms Once again, as in Coleman, my colleagues have of initiation fees by joining prior to the election.' focused on the words "charter membership." But, as in I would therefore certify the Union as the collective- Coleman, I view the term as simply indicating that the bargaining representative. waiver will not be granted indefinitely but may be lim- ited to those who join the "AIW Local Union chartered 6 In view of my interpretation of the term "charter membership" on the con- for [the] employees participating in said election." front of the card, I do not view the guarantee of "No Initiation Fee" con- tained on the back of the card as importing any ambiguity into either the Since the waiver is to be available to all who qualify at scope or nature of the Union's offer