Molded Acoustical Products, Inc.

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Molded Acoustical Products, Inc. and Teamsters Local 773, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 4-RC-15481 10 December 1984 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in and objections to an election held 30 De- cember 1983 and the Regional Director's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 60 for and 55 against the Petitioner, with 8 challenged ballots. The Board has reviewed the record in light of the exceptions and brief, has adopted the Regional Director's findings and recommendations,' and finds that a certification of representative should be issued. • CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Teamsters Local 773, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehous6men and Helpers of Amer- ica and that it is the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees of the Employer at its 110 Main Street, West Easton, Pennsyl- vania facility; BUT EXCLUDING all other employees of the Employer, including office and plant clerical employees, professional em- ployees, leadmen, confidential employees, guards and supervisors as defined in the Act. MEMBER HUNTER, dissenting. Contrary to the Regional Director, I find that the Petitioner engaged in objectionable conduct by making an impermissible offer to waive its initiation fee. Accordingly, I would set aside the election. It is undisputed that the Petitioner, Teamsters Local 773, distributed to the employees a campaign ' Chairman Dotson emphasizes that the interpretation urged by the Employer of the Union's statement that "All employees in the bargaining Unit will not have to pay the $50 00 Initiation Fee if they vote for the Teamsters"-1 e, that only those employees who voted for the Union would qualify for the waiver—Is unreasonable in light of the Board's fully publicized secret-ballot procedure letter, dated 19 December 1983, which stated in pertinent part: [A]ll employees in the bargaining unit will not have to pay the $50.00 Initiation Fee if they vote for the Teamsters to represent them. Also dues will not be payable until there is a sighed contract. The Regional Director found that although the Petitioner's statement "may have been inartfully drafted," it was sufficiently clear that the statement meant that the Petitioner would waive the initi- ation fee for all unit employees, without distinction, if the Petitioner won the election and became their collective-bargaining representative. He further found that the statement did not require the em- ployees to join the Union or to take any other action before the election as a condition of the offer to waive the initiation fee. The Regional Di- rector concluded that the waiver was offered to all employees unconditionally and that therefore the Petitioner's statement was not violative of NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973). - Contrary to the Regional Director, I find that the Petitioner's statement in its 19 December 1983 letter with respect to the waiver of the initiation fee is ambiguous on its face. In the Regional Direc- tor's view the above statement is to be read as an unconditional offer to waive the initiation fee for all unit employees. However, the Regional Direc- tor's interpretation is not the only plausible inter- pretation. Rather, the statement is equally suscepti- ble of the interpretation that the offer to waive the initiation fee was conditioned on the individual em- ployee's vote in the election and in my view the employees reasonably could have so construed the statement.' Such a waiver offer is impermissible under Savair. It is also well established that in cir- cumstances, as here, in which a union's offer to waive initiation fees is ambiguous, it is the union's duty "to clarify that ambiguity or suffer whatever consequences might attach to the employees' possi- ble interpretations of the ambiguity." Crane Co., 225 NLRB 657, 659 (1976). See Inland Shoe Mfg. Co., 211 NLRB 724, 725 (1974). It is apparent that I cannot agree with Chairman Dotson that this interpretation of the Petitioner's statement is unreasonable in light of the Board's fully publi- cized secret-ballot procedure In my view, the Chairman's reliance on the Board's secret-ballot procedure necessarily leads to the conclusion that waivers of initiation fees which are conditioned solely on how an em- ployee votes in an election are permissible Such a conclusion is clearly contrary to Savazr Thus, I note that in Sawn,- the Court set forth the Board's analysis in DIT-MCO, 163 NLRB at 1021-22. that "It is com- pletely illogical to characterize as improper Inducement or coercion" a waiver of initiation fees for those who vote "yes" when the whole prob- lem can be avoided by voting "no," and that the Court specifically re- jected that analysis as ignoring the realities of the situation See 414 U S at 277-278 273 NLRB No. 21 MOLDED ACOUSTICAL PRODUCTS 157 the Petitioner here did not clarify its offer to waive the initiation fee.2 2 In this regard, I note that in its brief in opposition to the Employer's exceptions the Petitioner, in arguing that no hearing is warranted in this case, states "In this case the' letter containing the waiver language speaks for Itself There is no dispute as to any issue of material fact because the only material fact is the letter itself" Accordingly, I find, contrary to the Regional Director, that the Petitioner's offer to waive its ini- tiation fee was violative of Savair and I would sus- tain the Employer's objection, set aside' the elec- tion, and direct a second election. I therefore dissent from my colleagues' adoption of the Regional Director's report.