The Jarp Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Jarp Corporation and Teamsters, Chauffeurs, Warehousemen and Helpers Local 446, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Petitioner. Case 30-RC-2862 July 6, 1977 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS JENKINS, MURPHY, AND WALTHER Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered objections to an election held on August 6, 1976,1 and the Hearing Officer's report recommending disposition of same. Relevant portions of that report are attached as an appendix. The Board has reviewed the record in light of the exceptions and brief, and hereby adopts the Hearing Officer's findings and recommendations. 2 CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Teamsters, Chauffeurs, Warehousemen and Helpers Local 446, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and that, pursuant to Section 9(a) of the Act, the said labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment: All production and maintenance employees employed by the Employer at its facility located at 1000 Pine St., Wausau, Wisconsin; excluding office clerical employees, guards and supervisors as defined by the Act. MEMBER WALTHER, dissenting: For many of the same reasons indicated in my dissent in Aladdin Hotel Corp. d/b/a Aladdin Hotel, 229 NLRB 499 (1977), I cannot agree with my colleagues' conclusion that Petitioner's initiation fee refund policy was unobjectionable. I would find that Petitioner's policy contravenes the holding of N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 I The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was: 19 for, and 17 against, the Petitioner: there were no challenged ballots. 2 In so finding we rely on our holding and rationale in Aladdin Hotel Corp. d/b/a Aladdin Hotel, 229 NLRB 499 (1977). 3 Unlike the union in Aladdin Hotel, Petitioner here did not require that a 230 NLRB No. 97 (1973), and is thus grounds for setting aside the election. As found by the Hearing Officer, Petitioner's initiation fee refund policy provided for the return of initiation fees if the Petitioner withdrew its petition prior to the election or if, following an election victory, the Petitioner was unable to negotiate a satisfactory contract. However, the refund policy further provided that in the event Petitioner lost the election the fees would not be returned. While the circumstances of this case vary slightly from those present in Aladdin Hotel, supra. 3 the refund policy here is for all intents and purposes the same. Employees who had advanced money to the Union prior to the election would lose it, without benefit, if the Union were defeated. If the Union won, they would either obtain the advantages of a contract or, failing that, be refunded their prepaid fees. In Savair, the Supreme Court proscribed the waiver of initiation fees for those who signed authorization cards prior to the election. The Court stated that it would not allow a party to buy and sell endorsements in such a fashion. The Court further reasoned that an employee having demonstrated a show of support for the Union would feel committed to carry through with that support in the voting booth. The employee recipients of the unlawful initiation fee waiver in Savair had no immediate financial stake in the outcome of the election since, the initiation fee having been waived, they had advanced no money. Nevertheless, the Supreme Court found that those employees would be induced into continuing their once expressed support of the union in order not to forego the benefit of the fee waiver. In contrast to the facts of Savair, here the employees who paid the $35 initiation fee prior to the election had money riding on the result. The knowledge that a union defeat would result in the complete loss of their prepaid $35 fee would serve to induce the employees who had already paid it into voting for the Petitioner, regardless of what their actual views toward the Petitioner were on the election day. Thus, the refund policy here serves to lock in the employees' previous- ly expressed support of the Petitioner and to economically arm twist those who had prepaid the fee into voting for the Petitioner. Contrary to the reasoning of the Hearing Officer, as adopted by my colleagues, I am unable to find that the unlawful consequences of the initiation fee refund policy are vitiated merely because the employees had the opportunity to pay the reduced majority of the unit employees pay a lump sum prior to the filing of the petition which would be credited to initiation fees in the event the Union won. Instead, the Petitioner encouraged employees to pay the initiation fee before the election as a sign of support so that Petitioner would not withdraw its election petition due to insufficient employee interest. 660 THE JARP CORPORATION fee after the election as well as before. Such reasoning fails to properly account for the continuing impact the refund policy would have upon the freedom of choice of the employees who, in fact, had paid the initiation fee before the election.4 While it may have been less than prudent for the employees to pay the initiation fee before the election, since the same rate was available to them thereafter without the risk of forfeiture upon the Union's defeat, it is not the Board's province to pass judgment on that matter. Rather, it is our responsibility to assess the impact that the Petitioner's refund policy would have on the employees' freedom of choice. As indicated above, I find that the policy unlawfully induced the employees who had paid the fee to continue supporting the Union or else forfeit their money. Furthermore, in my view, the Hearing Officer's characterization of the refund policy as a statement of "predictable consequence-an economic fact of life" overlooks the unlawful coercive effect such a policy has on the employees' free choice. While labor organizations may generally, as a matter of course, adhere to such a policy, its announcement during the course of an election campaign cannot help but buttress the petitioner's campaign and cement support among those who had already paid the initiation fee. It is just such a coerced wellspring of support that the Supreme Court proscribed in Savair. Therefore, unlike my colleagues, I would sustain the Employer's objections based on the Petitioner's initiation fee refund policy. Accordingly, I would set aside the election. 4 Business Agent Hansen testified that approximately 25 employees paid initiation fees prior to the election. APPENDIX Objection No. 3. By this objection, the Employer raises the contention that Petitioner conditioned the refund of initiation fees on the outcome of the election. The record reflects that the only time the matter of refunds was broached by an official of Petitioner, Hansen, was at the May 26 meeting. Hansen testified that at the May 26 meeting he told employees that Petitioner would refund initiation fees if Petitioner withdrew from election proceedings or if Petitioner was unable to gain a satisfactory contract, but that the fees would not be refunded if Petitioner did not withdraw from the relationship of its own volition. Employee witness Pelot testified: Q. At the Union meeting that you did attend, sir, would-was anything said about refunds of the initiation fees? A. Yes. If the Union didn't get what we wanted or if they didn't feel satisified they were going to pull out and they would pay us the money back that they collected. Q. Did they say anything about what would happen if the Union lost at the election? A. If they lost it, I understood then they would keep the money because they were not pulling out, we were backing out from them. Pelot's testimony was representative of that given by the other five employees who testified in this matter. Such testimony is a logical extension of Hansen's testimony above. Here the Employer makes the argument that by condi- tioning refunds on the election's outcome, Petitioner used a form of economic inducement to extract "yes" votes from employees who had paid initiation fees prior to the election. The Employer relies on Savair, supra, DIT-MCO, Incorporate4, 163 NLRB 1019; and Primco Casting Corp., 174 NLRB 244, in support of Ojbection 3. The Employer would liken refunds to initation fees and from the above- listed cases draw the inference that conditional refunds would be objectionable as would conditional fees. I find such a comparison misplaced in the instant case for the reason that employees fearful of no refunds if Petitioner lost the election could wait until after the election, until the time of contract, to pay a reduced initiation fee. Thus, employees had a freedom of choice in this case which was independent of the election itself-a factor not present in the fee situations presented in those cases cited by the Employer. Nor would I view Petitioner's refund policy as an economic inducement. Rather, I see it as a predictable consequence-an economic fact of life-in much the same light as an employer's lawful campaign prediction of strike or lockout as a result of unionization. That employees accepted the refund policy in this way is evidenced by Hansen's unrefuted testimony that 20 initiation fees were received at the May 26 meeting and that employees did not at any time object to or question the refund policy as he announced it to be at that meeting. Based on the elements of employee choice in and apparent acceptance of Petitioner's refund policy, I conclude that the conduct objected to here neither constrained nor otherwise interfered with employees' freedom of choice in the election. I will, therefore, recommend that Objection 3 be overruled. 661