Smith Co. of California, Inc.

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith Company of California, Inc. and Printing Spe- cialties and Paper Products Union Local Ne. 362, International Printing Pressmen and Assistants' Union of North America, AFL-CIO. Cases 20-CA-6744, 20-CA-6792, and 20-CA-7046 December 12, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On August 27, 1971, Printing Specialties and Paper Products Union Local No. 362, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, herein called the Union, was certified by the National Labor Relations Board in Case 20-RC-9771 as the representative of the production and maintenance employees of Smith Company of Cali- fornia, Inc., herein called the Respondent, following an election pursuant to a stipulation for certification upon consent election and the subsequent overruling of ob- jections to the election by the Board.' The Respond- ents, however, refused to bargain with the Union be- cause it took the position that the said certification was erroneous, and on December 6, 1972, the Board issued its Decision and. Order' herein finding, inter alia, that the Respondent thereby violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. Thereafter on May 29, 1973, the Board filed a petition with the United States Court of Appeals for the Ninth Circuit for enforcement of its Order. On February 14, 1974, the court enforced the Board's Order insofar as it found other violations of the Act and, on motion by the Board, remanded the proceeding to the Board for reconsideration of its finding that the refusal to bargain violated Section 8(a)(5) of the Act, in light of the hold- ing of N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973). Accordingly, the Board, by order dated March 28, 1974, reopened the record and directed that a further hearing be held before an Administrative Law Judge for the purpose of taking evidence on the alleged waiver of initiation fees in view of the above-cited decision of the U.S. Supreme Court. On June 28, 1974, Adminis- trative Law Judge Allen Sinsheimer, Jr., issued the attached Supplemental Decision in this proceeding. Thereafter, the Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a statement of his position in the form of a letter. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- ' 192 NLRB 1098 (Chairman Miller dissenting). 2 200 NLRB 772 (Chairman Miller dissenting in relevant part). 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 Supplemental Decision in light of the exceptions and brief and the General Counsel's statement of posi- tion and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modi- fied below. While we agree with the Administrative Law Judge that the record herein does not warrant setting aside the election because the Union improperly conditioned the waiver of initiation fees, we do not agree with his rationale. Rather, we so find because we conclude that any ambiguity which may have existed in some of the statements made by Union Representative Dunmire was clarified by other clearly proper information sup- plied by him to the employees. The facts as found by the Administrative Law Judge are that Dunmire told employees that initiation fees were "waived during a new organization" and that "anyone who would come in after the plant became union" would have to pay the $30 initiation fee.' These comments are, as the Administrative Law Judge concluded, ambiguous; "new organization" and when the "plant became union" could be interpreted as being before the election or after it, and employees might well not know which interpretation was intended. But Dun- mire also told the employees that "any employee that is coming in after signing the contract, is subject to an initiation fee." Thus, when the whole situation is taken into consideration and the statements concerning new organization and the plant becoming union are not viewed in isolation, the union representative made clear the position that initiation fees were waived not only for those who joined before the election but also for those who joined after that but before a contract with the employer was signed. Consequently, we conclude that taken in context the Union's waiver was not improper under Savair,4 and that the Union's conduct did not interfere with the election. We therefore find that the certification issued August 27, 1971, was valid, and we shall affirm our findings and order in the prior decision herein.' 3 Based on the credited testimony of Union Representative Dunmire. The only other testimony in the record concerning Dunmire's preelection state- ments was that of employee Brown, who said that Dunmire told him that if he joined the Union and signed the card there would be no initiation fee, but that Dunmire never told him when he would have to join in order to avoid paying that fee. While Brown's testimony was not credited, we note that even if it were it does not suggest that Dunmire clearly conditioned the waiver on joining prior to the election. 4 Western Refrigerator Co., Subsidiary of the Hobart Manufacturing Co., 213 NLRB No. 40 (1974). 5 Chairman Miller dissented from the finding of an 8(a)(5) violation in the original decision herein because he was of the view that a hearing was required on the objections to the election which are here under considera- tion. However, that procedural requirement having been satisfied, he agrees with and joins in the present holding. 215 NLRB No. 97 SMITH COMPANY OF CALIFORNIA, INC 531 ORDER It is hereby ordered that the Order issued herein on December 6, 1972, be, and it hereby is, affirmed in all respects. MEMBER FANNING, concurring: Contrary to my colleagues , I would adopt the Ad- ministrative Law Judge's Decision including his ra- tionale. At the hearing held on May 22, 1974, the Respond- ent produced one witness, Brown, who testified as to the alleged waiver of initiation fees. The testimony of Brown and Union Agent Dunmire, who solicited Brown's signature, is fully set forth in the Administra- tive Law Judge's Decision . After considering this tes- timony the Administrative Law Judge , crediting Dun- mire, found that "it appears likely that Dunmire's statements to Brown as testified to by Dunmire, rather than as understood and remembered by Brown . . . that Dunmire told Brown `there would not be any initiation fee' and explained that `we do not charge any initiation fee for a new company ."' In support of this finding the Administrative Law Judge pointed out that Organizer Hayes at a meeting on February 24, 1971, after the election when membership applications were being signed, told unit employees that initiation fees would not be required for persons working for the Company at the time a contract was signed . The Ad- ministrative Law Judge concluded that there were no established facts to set aside the election on the basis of improper conditioning of waiver of initiation fees and that "not a single employee credibly so testified." In short he discredited Brown, the only employee who testified as the alleged improper waiver of initiation fees. Since no employee credibly testified that the al- leged waiver of initiation fees was improper under Sa- vair, that, in my opinion, resolves the issue . The Ad- ministrative Law Judge's further comment that "At best there is ambiguous testimony of the Union repre- sentative which does not establish an improper promise of waiver initiation fees" is, in my opinion irrelevant dicta since no employee credibly testified that the waiver of the initiation fee was conditioned on his sign- ing a card before the election. SUPPLEMENTAL DECISION L,Ed. 2d 495 (1973)"; (2) an order of the Board dated March 28, 1974, which stated "It is hereby ordered that the record in this proceeding be, and it hereby is reopened and that a further hearing be held before an Administrative Law Judge . . for the purpose of taking evidence on the alleged waiver of initiation fees of the Supreme Court's decision in N. L. R. B. v. Savair Manufacturing Co, 414 U.S 270 (1973) " The Board's order further provides for remand to the Regional Director for the purpose of arranging further hearing and that, upon the conclusion of such further hearing, the Ad- ministrative Law Judge "shall prepare and serve upon the parties a Supplemental Decision containing findings of fact upon the evidence received, conclusions of law and recom- mendations . "' Upon both the record taken pursuant to said remand (and upon consideration of and in the light of the entire record), including my observation of the witnesses, and after due con- sideration of the briefs of the General Counsel,' the Union- Charging Party and Employer-Respondent, I make the fol- lowing: FINDINGS OF FACT AND CONCLUSIONS I THE FACTS ADDUCED AT THE HEARING ON REMAND Employer-Respondent produced one witness, employee Hubert Brown,' who testified that he had a conversation at his home with Gary Dunmire, an organizer for the Union, about 3 weeks before the election in the above matter which was held on February 17, 1971. Brown was asked on direct examination what Dunmire had to say about the "topic of the union authorization cards and the initiation fees." He re- sponded A. Well, it was a benefit if I would loin, and if I signed the card. And if I didn't sign the card, couldn't-I wouldn't get in the union, and that I would get fiied if I didn't. Q. Was anything said concerning initiation fees? A. These initiation fees, he-well, he said, if Ijoin the union and signed the card, there would be no initiation fee. Just pay the regular dues. [Emphasis supplied.] Q. He said that there would be no initiation fee- A. Yes. Q. -and you dust pay the regular dues' A Yes. On examination by the Charging Party, Brown testified. Q. And Mr. Dunmire, I take it, told you that if you would loin the union, you would not have to pay any initiation fee? A Right. STATEMENT OF THE CASE ALLEN SINSHEIMER, JR., Administrative Law Judge: On May 22, 1974, a reopened and further hearing was held before me pursuant to (1) an order on February 14, 1974, of the United States Court of Appeals for the Ninth Circuit remand- ing the case to the Board "To reconsider the 8(a)(5) charges in view of the intervening decision of N.L.R.B. v. Savair, 38 i In view of the findings made hereafter, I deem it unnecessary to recon- sider any matteis raised by the General Counsel on the record and in his brief (and opposed by Respondent) with respect to an alleged alternative theory of violation of Sec 8(a)(5) which was previously considered and disposed of in 200 NLRB 772 2 Whose brief did not take a position as to the Union 's statements as to waiver of initiation fees but was limited to discussion of an alternative theory referred to in in 1, supra 3 Charging Party produced two witnesses employee June O'Brien and Union Respresentative Gary Dunmire 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Now, did Mr. Dunmire tell you, when you would have to join the union? A. No. Q. Did Mr. Dunmire tell you when you would have to pay dues? A. After they won the contract with the Smith Company. [Emphasis supplied.] Q. Did he tell you what would happen if they didn't win the contract with the Smith Company? A. That, if I didn't vote for the union, I probably would be fired. A. Yes, if I didn't vote for the union. Q. Well, what did he tell you would happen if the union did not get the contract with the Smith Company? THE WITNESS: I can't remember what he said about it. Brown further testified that he could not remember whether Dunmire told him the election would be by separate secret ballot. He did remember voting in the election and that the election was by secret ballot. Brown further testified that he was told he would have to pay dues if the Union won a contract from the Company but would not have to pay any initiation fee. There is considerable testimony about Brown's signing a card. Brown first testified that he signed a card at a meeting at the Hyatt House which was after Union Organizer Gary Dunmire came to his home and which the record established was about February 24, after the election of February 17. He was shown an application for membership and pledge to sup- port the union constitution form on a sheet of white paper which he admittedly signed at that meeting . Initially, he could not recall signing any other paper , document, or au- thorization card prior thereto. Subsequently , upon being re- called as a witness and shown a blank authorization card, he recalled also signing an authorization card at his home when Dunmire was there prior to the election. Dunmire testified at first that Brown did not sign an au- thorization card when he was at Brown's home or any time and that the only authorization Brown signed was the mem- bership application at the Hyatt House meeting . Dunmire was then shown an affidavit consisting of 31 pages that he had executed before a Board agent which stated: I observed him sign the card at his home, I'm not sure he fully read the card, because I was talking to his wife off to the side, but he did study it for some time before he signed it. Thereupon, Dunmire testified in response to a question as to Brown's in fact, signing a card at his home: A. If I said it was the case then , and I swore to it, then it must have been the case. Q. And that is your testimony now, isn't it? A. Yes, sir, it is. Dunmire also testified that other than the affidavit he had no independent recollection of Brown 's signing a card. It accord- ingly appears from the record and I find that Brown did sign an authorization card at his home in Dunmire's presence. Concerning the matter of initiation fees, June O'Brien, an employee of Respondent and union observer at the election , of those employees who signed cards. testified she had attended a meeting at the Hyatt House about February 24. O'Brien also testified that at this meeting Mickey Hayes, an organizer for the Union , spoke about initiation fees as follows : "He said everybody who was work- ing for the Smith Company when or if they signed the contract, would not have to pay initiation fees . [Emphasis supplied.]" O'Brien was asked if anyone from the Union asked her to sign an authorization card and said that Gene Villalobos, the president of Local 362, asked her to sign. She further testified: Q. And at the time you signed an authorization card, was there any discussion between you and Mr. Vil- lalobos or anyone else from the union concerning the payment of any initiation fees? A. Just that we wouldn't have to pay initiation fees if we were working for the Smith Company when the union contract was signed: Dunmire, who at the time of the election was an organizer for the Western Conference of Specialties Union and at the time of the hearing employed by District Council No. 1, Printing Specialties and Paper Products Union Local No. 362, further testified that he called on Brown at this home on a Saturday' before the election , asked him to support the Union and to sign an authorization card . Dunmire testified that he told Brown that "there would not be any initiation fee," and additionally: Q. (By Mr. Roger) Did you tell him anything else? A. Then I went on to explain what the policy of our union is, it is the policy of our union that we do not charge any initiation fee for a new company. Dunmire further testified: Q. At any time did you tell Mr. Brown, if he did not sign a card he would lose his job? A. No. Q. At any time did you tell Mr. Brown, unless he signed a card he would have to pay an initiation fee? A. No. Q. At any time did you tell Mr. Brown, only those people who signed the card would not have to pay any initiation fee? A. No. On further examination, Dunmire testified:' Q. (By Mr. Roger) Did you say that the people you were asking to sign authorization cards, did you tell them that the initiation fee was waived during a new organization, and anyone who would come in after the plant became union, would have to pay $30 initiation fee? [Emphasis supplied.] A. I thought the initiation fee was $50, but-yes. Q. You told them that, except for the amount? A. Yes. Q. And did you also say that in your affidavit on June 10, 1971, along page-on page 12? A. Yes. Dunmire in an affidavit in evidence stated he solicited all but about three SMITH COMPANY OF CALIFORNIA, INC 533 Q (By Judge Sinsheimer) In your affidavit you stated, I told them that the initiation fee was $30, but was waived during a new organization. A. Yes, sir. Q. And you stated further, I told them after the plant became union, they anyone coming in later would have to pay $30 00 initiation fee [Emphasis supplied] A. Yes. Q. Now, is that the statement that you made to the employees that you talked to before the election? A. Well, it does go a little deeper than that Q. Just, exactly how did you make the statement? What did you say to the employees, including Mr Brown? A. Number one, a union does not charge any initiation fee during new organizations. After a plant is organized, and the union wins the election- THE WITNESS: I told them that any employee that is coming in after signing the contract, is subject to an initia- tion fee [Emphasis supplied.] Q. (By Jedge Sinsheimer) You said, those coming after signing the contract? A. Yes. Q. And in your statement you said, I told them after the plant became union A. Well, making that statement. When the plant becomes union, we have a contract that is perhaps what I meant. Q. When the plant becomes union and you have a contract, is that what you mean? A. That is precisely what I meant, yes Q. And that is what you meant by saying, I told them after the plant becomes union--or did you tell them, after the plant becomes union How did you put it? A. I told them after it becomes union, and we have a contract, anyone who would come in after that, then he would have to pay an initiation fee [Emphasis supplied.] Dunmire also testified that he heard Hayes speak at the Hyatt House meeting on February 24 and: A He stated that the policy of the union has been that there is no initiation fee to any employees working at the company, regardless of their feeling about the union Q. Did he say anything else about the initiation fee? THE WITNESS: No. Dunmire was asked how many organizational compaigns he'd been involved in, responded at least 40 or 50, and was asked whether during any of these campaigns. Q. Has there ever been an occasion where the union has not waived any initiation fees for anybody? A. No, that has always been the case Q. To your knowledge is that the policy of the union? A. Yes, it is. Dunmire was asked whether he ever told people there would be a time limit as to when initiation fees would no longer be waived. He answered "yes," and then the following: Q. What have you told them as to when that cut-off date is? A Oh, all employees present prior to the signing of the contract would not pay any initiation fee and anyone after that would be subject to initiation fee. Dunmire was again referred to the following part of the af- fidavit he executed. It says here, I told them after the plant became union, then anyon coming in later would have to pay the $30.00 initiation fee. [Emphasis supplied.] A. That's what it says. Q. . . Now, you didn't tell Anderson [a Board agent] that you added after you got a contract , didn't you? A It doesn't say that in there. Dunmire was then asked- Q. Will you tell the hearing officer then why it is that you didn't tell Anderson what you really told the em- ployees when you talked to him in June 1971, when you corrected other places in the affidavit? A. When I talked to Mr. Anderson, after it became union, I was talking about after the contract and when it was signed Q. But you didn't say that in here, didn't you? A No, I agree, it doesn't say that in there. It is a long affidavit, and there were several errors, which were then corrected. Some were in his wasting and some were my own explanations. II FINDINGS AND CONCLUSIONS It is evident that the recollections of witnesses Brown and Dunmire as to events 3 years earlier were not clear in certain instances. Brown at first could not recall whether he signed an authorization card as such before the election, and it was not until he was recalled and shown a card that he remem- bered signing one at his home before the election. Dunmire was sure at first that Brown had not signed the card, and it was, only after being shown his affidavit that he admitted, based thereon, that Brown had signed a card There also appears to be another variance between Dun- mire's affidavit and testimony Dunmire testified that the union fees were waived until after the Union obtained a contract, although (in the affidavit) and in one instance above he answered "yes" in response to a question, did he say that the initiation fee was waived during a new organization and that anyone who came in after the plant became union would ,have to pay a $30 initiation fee. The affidavit states- "I told them that the initiation fee was $30, but was waived during a new organization I told them after the plant became union, they anyone coming in later would have to pay $30 initiation fees . " [Emphasis supplied.] The affidavit is 31 pages and, as set forth, Dunmire testified there were some errors therein Dunmire also testi- fied that he was referring to and meant "after a contract." I also not Dunmire's testimony that the practice of the Union was that initiation fees were to be waived until after a contract was obtained, his testimony that another organizer, Hayes, at 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the February 24 meeting said initiation fees were not required for persons working at the Company and O'Brien's testimony that Hayes said everyone who was working for Respondent when or if it signed a contract would not have to pay initia- tion fees which Villalobos also told her earlier. There may well have been a not uncommon problem of communication between Dunmire and Brown accentuated by the passage of time. On the other hand, testimony as to what was said by Organizer Hayes at the meeting of February 24 (after the election when membership applications were being signed), is uncontradicted and clear that initiation fees would not be required for persons working for the Company as of the time of a contract. Further, Dunmire was an experienced organizer who knew what the Union would require and when as to initiation fees. In the light of all the foregoing, it appears likely that Dunmire's statements to Brown as to when initia- tion fees would be waived were more nearly as testified to by Dunmire, rather than as understood and remembered by Brown, supra that Dunmire told Brown "there would not be any initiation fee" and explained that "we do not charge any initiation fee for a new company."5 But even if the statement by Dunmire to Brown was the initiation fees were waived "during a new organization" and "after the plant became union anyone coming in later would have to pay initiation fees" (which Brown did not testify was said), such is subject to interpretation as to both what "they" refers to and as to what "becomes union" refers to. Further, no one else testified that such a statement was made to him or her.6 The posture of the record then is: (1) It is clear that after the election employees were told that initiation fees would not be required until after the Union obtained a contract; (2) that Dunmire testified that he told them anyone coming in after signing a contract would be subject to an initiation fee; (3) that Dunmire also testified he told people when asking to sign cards that the initiation fee was waived during a new organi- zation and anyone who would come in after the plant became union would have to pay initiation fee and that he also said that in his affidavit. Dunmire added that he "told them after it becomes union and we have a contract, anyone who came in after that would have to pay an initiation fee"; (4) that Dunmire said as to the words "became union" in the affidavit he meant after it got a contract; (5) no employee witness,' 5 I note that Brown , supra, also testified that Dunmire said if he joined the Union, there would be no initiation fee but that Dunmire did not say when he had to join the Union. 6 The vote in the election of February 17, 1971, was 18 for the Union and 4 against. As set forth, supra, Dunmire solicited all but about three of those employees who signed cards. 7 Only two testified. including Brown, testified as to. any reference to initiation fees being waived until the plant became union; (6) Dunmire testi- fied he told Brown "there would not be any initiation fee" and explained that "we do not charge any initiation fee for a new company"; (7) Brown testified, supra, that Dunmire told Brown if he didn't sign the card he wouldn't get in the Union and would be fired which Dunmire (whom I credit) denied; (8) Brown further testified Dunmire said if he joined the Union and signed the card, there would be no initiation fee; (9) Brown also testified Dunmire did not tell him when he would have to join the Union. The foregoing, whatever questions it raises or may leave unanswered, does not in my judgment. establish facts suffi- cient to warrant setting aside the election on the basis of improper conditioning of waiver of union initiation fees. Not a single employee credibly so testified. At best, there is am- biguous testimony of the union representative which does not establish an improper promise of waiver of initiation fees. In N.L.R.B. v. Savair, supra the Supreme Court held that waiving initiation fees for employees who signed recognition slips before an election and requiring initiation fees of those who had not improperly conditioned the waiver upon support of the Union during the election. Such conditioning of the waiver of initiation fees on support of the Union in the elec- tion herein has not been established and I accordingly find no improper conditioning of waiver of union initiation fees.' I accordingly conclude and find that the election held Feb- ruary 17, 1971, was not improperly affected by any state- ments attributable to the Union respecting initiation fees made prior thereto. I further conclude and find that the certification issued August 27, 1971, pursuant to said election remains a valid certification. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclu- sions of law, and upon the entire record in the case, and pursuant to the Board's Order reopening record and remand- ing proceeding , I hereby recommend that the Board reaffirm its findings, conclusions, and Decision with respect to Re- spondent's violation of Section 8(a)(5) previously found and its Order pursuant thereto previously adopted in the above matter on December 6, 1971. 8 See Irwindale Division, Lau Industries, a Division of Phillips Industries, Inc., 210 NLRB 182 (1974), and see and cf. Endless Mold, Inc., 210 NLRB 159 (1974). In view of my findings, supra I do not consider that the case of Campus Plastics Inc. (Decision by Region 20), cited by Employer- Respondent, is applicable.