Ida Lace, Inc.

IDA LACE, INC Ida Lace, line. and Production, Merchandise & Dis- tribution Employees Union, Local 2110, I.B.T., Petitioner. Case 2-RC-19820 25 April 1985 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The National Labor Relations Board has consid- ered objections to' an election held 2 November 1984 and the Regional Director's report, attached as Appendix A, recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 14 for and 6 against the Petitioner, with 1 nonde- terminative challenged ballot. The Board has reviewed the record in light of the exceptions and briefs, has adopted the Regional Director's findings and recommendations, and finds that a certification of representative should be issued. Contrary to our dissenting colleague, we agree with the Regional Director that the Petitioner did not impermissibly offer to waive initiation fees and that the Employer's objection should be overruled. Prior to a 2 November 19841 representation elec- tion, the Petitioner distributed a two-page leaflet2 to employees stating in pertinent part: When you VOTE YES on the secret ballot di- rected by the National Labor Relations Board, on November 2nd, your Union could fulfill this document. GUARANTEED-The Executive Board ap- proved with the recommendation of the Union president that all workers who have worked during the voting month (November) will not have to pay any initiation fee. The leaflet then discussed other election issues and provided a list of benefits the Petitioner claimed a majority of employees represented by it enjoyed.3 The dissent finds the Petitioner's promise to waive initiation fees susceptible of an interpretation that the promise depended on an individual em- ployee's vote. Because the Petitioner did not clari- fy this perceived ambiguity, our dissenting col- league finds the statement objectionable. ' All dates are 1984 2 The leaflet was distributed in both English and Spanish 3 Both the English and Spanish leaflets are attached in their entirety as Appendix B In the Spanish version, the singular pronoun "usted" is used for "you " Unlike our dissenting colleague, we do not regard this as significant 211 The promise was plainly guaranteed, however, to "all employees who . . . worked during the voting month (November)." Because it extended to all employees whether they joined before or after the 2 November election, the promised waiver could not have been conditioned upon employee support for the Petitioner in any form before or during the election.4 We thus regard the statement, "When you VOTE YES . . . your Union could fulfill this document," as nothing more than "a ref- erence to the practical reality that initiation fees have no real significance for employees unless the union becomes the bargaining representative; i.e., wins the election."5 The waiver here simply ad- vances the Petitioner's legitimate interest in remov- ing an artificial obstacle to potential employee sup- port.6 Accordingly, we do not find the Petitioner's promise objectionable. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Production, Merchandising & Distribution Employees Union, Local 210, I.B.T. 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 and shipping and receiving employees employed by the Employ- er at its 856 East 136th Street, Bronx, New York facility; but excluding all office clerical employees, and all professional employees, guards and supervisors as defined in the Act. MEMBER HUNTER, dissenting. Contrary to my colleagues, I find that the Peti- tioner 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, Production, Merchandising & Distribution Employees Union, Local 210, I.B.T., distributed to employees a two- page leaflet printed in both Spanish and English to all its eligible employees prior to the election. The English version stated in relevant part: When you VOTE YES on the secret ballot di- rected by the National Labor Relations Board, on November 2nd, your Union could fulfill this document. 4 Endless Mold, Inc, 210 NLRB 159 (1974), Holiday Inn of Dunkirk- Fredonia, 211 NLRB 461 fn 4 (1974) 3 Lau Industries, 210 NLRB 182 fn 3 (1974) 6 See NLRB v Savair Mfg Co, 414 U S 270, 274 In 4 (1973) 275 NLRB No. 40 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD GUARANTEED-The Executive Board ap- proved with the recommendation of the Union president that all workers who have worked during the voting month (November) will not have to pay an initiation fee. The Spanish version stated in relevant part: Cuando usted VOTE QUE SI en la elecciones secretas dirigidas por la Junta Nacional de Re- laciones del Trabajo, el 2 de Noviembre, su Union podra cumplir con este documento. GARANTIZADO-Con la recomendacion del presidente de la Union, la Junta Ejecutiva aprobo que ningun trabajador que haya traba- jado el mes de Noviembre de 1984 tiene que pagar ni un centavo por el libro de la Union (]a iniciacion). The Regional Director, determining that the English version was substantially equivalent to the Spanish version , considered them together. He found that the waiver was offered to all employees unconditionally and that, therefore, the Petitioner's statement did not violate NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973). In doing so , he concluded that the Petitioner's offer did not require the employees to sign authorization cards or support the Petition- er in order to receive the waiver but instead was directed to all workers in the Employer 's employ in the month of November, merely informing them that they would receive the waiver as a benefit if the Petitioner won the election . He therefore re- jected the Employer's contention that the language of the offer was ambiguous . My colleagues have adopted the Regional Director 's findings, agreeing that the waiver offer was unambiguous and not im- permissibly conditioned upon employee support for the Petitioner. I do not agree . Instead, I find that the Petition- er's statements concerning the terms under which a waiver of the initiation fee would be available are ambiguous both in the English and Spanish ver- sions. My colleagues' and the Regional Director's interpretation of the statements as an unconditional offer to waive the initiation fee for all unit employ- ees in the Employer's employ during the month of November 1984 if the Union won the election is not the only plausible interpretation . Rather, the statements are equally susceptible of the interpreta- tion that the offer to waive the initiation fee was conditioned on the individual employee's vote in the election, and the employees reasonably could have so construed them . ' Thus, in the English ver- sion, no reference is made to the Union 's winning the election as a condition of the waiver becoming effective . Instead, the Petitioner has told the em- ' See my dissent in Molded Acoustical Products , 273 NLRB 156 (1984) ployees that the waiver could be fulfilled "[w]hen you VOTE YES." This links the availability of the waiver to the individual employee's vote. The Spanish version does the same; indeed , that ver- sion, because it addresses the employees in the sin- gular pronoun for "you," "usted," even more clear- ly demonstrates that the Petitioner may be linking the waiver to the individual employee's vote. I, therefore , disagree with my colleagues that the Pe- titioner did not ambiguously condition the waiver of initiation fee upon support for it. It is well established that in circumstances, 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 ' possible interpreta- tion of the ambiguity."2 It is apparent here that the Petitioner did not clarify its offer to waive the initi- ation fee. Accordingly, I find that the Petitioner's offer to waive its initiation fee was violative of Savair and I would sustain the Employer 's objection, set aside the election, and direct a second election . I there- fore dissent from my colleagues ' adoption of the Regional Director's report. 2 Crane Co, 225 NLRB 657, 659 ( 1976), Inland Shoe Mfg Co, 211 NLRB 724, 725 (1974) APPENDIX A POSITIONS OF THE PARTIES It is the Employer's position that Petitioner distributed a two page typewritten leaflet printed in both Spanish and English, to all eligible employees, prior to the elec- tion, in which Petitioner promised to waive initiation fees for unit employees. The Employer maintains that the waiver was objectionable inasmuch as it was sufficiently ambiguous to cause unit employees to believe that in order to be eligible for the waiver , employees would be required to commit their support to the Union before the election. A copy of the English version of the leaflet de- scribed above is attached hereto in its entirety.2 Petitioner does not deny that these leaflets (in English and Spanish) were distributed . Petitioner maintains that these pamphlets did not contain any objectionable lan- guage, and that the Employer's objection is without merit. RESULTS OF THE INVESTIGATION The petition in this matter was filed on August 29, supported by a showing of interest from a clear and sub- stantial majority of unit employees . A review of these authorization cards reveals the Petitioner solicited its showing on August 27 and 28. Thereafter, Petitioner began its election campaigning, which consisted in part 2 The message contained in the Spanish leaflet that was distributed is substantially equivalent to that contained in the English version IDA LACE, INC. - 213 of its distributing the aforementioned leaflets to prospec- tive voters. - This leaflet states in relevant part. When you VOTE YES on the secret ballot directed by the National Labor Relations Board , on Novem- ber 2nd, your Union could fulfill this document. GUARANTEED-The Executive Board approved with the recommendation of the Union president that all workers who have worked during the voting month (November) will not have to pay any initiation fee. ANALYSIS AND DISCUSSION In Savair Mfg. Co., 414 U.S. 270 (1973), the Supreme Court stated that a union 's attempt to waive initiation fees for those unit employees , signing recognition slips prior to the election was objectionable inasmuch as such conduct was tantamout to buying endorsements and painting a false protract of employee support during the election campaign . The Court, however, stated that it was permissible for a union to preserve its legitimate in- terest by the waiver of initiation fees provided that the waiver was extended to not only those who signed up with the Union before an election, but for those who joined after the election. The Board has frequently applied the Court's test re- garding the validity of a waiver of initiation fees and has concluded that such a waiver is permissible only where it is: . . . unconnected with support for the union before the election, unrelated to a vote in the election, and with support for the union before the election, unre- lated to a vote in the election, and without distinc- tion between joining the union before or after the election.3 The Board has also held that in situations where waiv- ers of initiation fees are so ambiguous as to be susceptible to various interpretations , both objectionable and non-ob- jectionable, any ambiguity must be resolved against the party who used the ambiguous term .4 In, addition, the Board has found waivers to be permissible even where they are made available only to those employed by the employer at the tine of the election, ' since those hired after the election obviously were not eligible to vote in any event.5 ' - In the instant case, it does not appear that Petitioner's offer to waive the initiation fees of all those eligible em- ployees who worked during November was disigned to entice unit employees to sign -authorization cards, or to join the Union prior to the election. Rather, the offer is directed to all workers who were employed by the Em- ployer in that month . The leaflet does not mention that the-employees would be required. to sign authorization cards or otherwise support Petitioner in order to avail 3 Deming Division, Crane Co, 225 NLRB 657,'659 (1976) " See Equitable Construction Co, Inc, 266 NLRB 668 (1983), Inland Shoe Manufacturing Co, Inc, 211 NLRB 724, 725 (1974) 5 See Endless Mold Inc, 210 NLRB 159 (1974), LD McFarland Co, 219 NLRB 575 (1975), affd 572 F2d 256 (CA 9, 1978) themselves of this benefit . As noted above, any employee hired subsequent to the payroll eligibility date of Septem- ber '12 received the benefit of the waiver , even though such an individual would not have been an eligible voter. The Employer contends that the language of the leaf- let was sufficiently ambiguous so that eligible voters would conclude that they must vote "yes" in the election iii order to have their fees waived . In my opinion, a reading of the entire letter reveals no such ambiguity. On its face, the purpose of the leaflets appears to have been to acquaint employees with various benefits 'they would receive if and when Petitioner won the election and to clarify any misconceptions the employees might have had about joining a union . Thus, the leaflet, inter'alia, highlighted certain aspects of Petitioner's health plan and explained the strike ratification procedure . Taken in con- text, the words "when you: vote YES on the secret ballot your union could fulfill this document", could rea- ' sonably be construed to mean that if the Petitioner won the election, (something which it could not do without "YES" votes from employees), employees would receive the various benefits described in the leaflet , including a waiver of fees for all employees who worked ' in Novem- ber.6 Certainly, employees would understand that if the Union lost the election, such benefits would not be avail- able to them. ' ' Thus, inasmuch as Petitioner's offer to waive initiation fees - was unambiguous, not contingent upon employee support either before or 'after the election, or unrelated to how individual employees voted in the election, and presented without any apparent distinction as to employ- ees joining Petitioner either before or after the election, I find that the Employer 's objection is'without merit and it is recommended that it be overruled.? CONCLUSION AND RECOMMENDATIONS It having been found that the Employer's objection is without merit , it hereby is recommended that it be over- ruled and that a Certification of Representative be issued to the Petitioner.8 -Issued at New York, New York this 11th day of Decem- ber, 1984. a The Employer relies upon two Board cases to support its contention that Petitioner's wording was ambiguous I find each of these cases to be distinguishable on their facts and not applicable herein In DAB Ind, 215 NLRB 527 (1975) and Demming Div Crane Co. supra at 657, the Board found that. in each case, the union involved promised to waive initiation fees in such a manner so that the employees could have believed that they had to join the union before the election in order to be eligible for the waiver For the reasons noted above, I find no such ambiguity of lan- guage in the instant case - 7 No hearing is warranted with respect to the Employer's objection as the evidence proffered by the Employer has been-deemed to be true and no substantial and material factual issues exist See Whitney Museum of Art, Inc, 247 NLRB 73 (1980), enfd 105 LRRM 3239 (2nd Cir, 1980) 8 Under the provisions of Section 102 69 of the Board's Rules and Reg- ulations, exceptions to this report may be filed with Board in Washing- ton, D C Pursuant to Section 102 69(g), affidavits and other documents which a party has submitted timely to the Regional Director in support of objections are`not a part of the record unless included in the Regional Director's Report or appended to the exceptions or opposition thereto which a party submits to the Board Exceptions must be received by the Board in Washington by December 24, 1984 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B EMPLOYEE OF IDA LACE, INC. For the first time on your working life, you and your co-workers have received letters, promises and special invitations to talk to Eric and Dan. (Very nice). I know you have had a surprising reaction since this is something new and very strange . But there is no doubt that this is happening because your Union is knocking at the door. When you VOTE YES on the secret ballot directed by the National Labor Relations Board , on November 2nd, your Union could fulfill this document GUARANTEED-The Executive Board approved with the recommendation of the Union president that all workers who have worked during the voting month (November) will not have to pay any initiation fee. MY GUARANTY-The Union president gave his word and now in good faith declares and guarantees that never in the history of Local 210 a member has paid a single penny in fines or assessments of any kind. GUARANTEED-I clearly stated that your monthly dues will start after you have received the benefits and protection of a Union contract that you have accepted. The Union is not to help the employer. They have their own attorneys, their employers organizations, their ac- countants and they spend money to keep you silent and with no representation. GUARANTEED-The Constitution of our Union clearly states-"Only the workers by a secret ballot can declare a strike A 2/3 majority is needed to declare a strike . The Union can not declare a strike. " The president and the Union do not deny the obvious and the ridiculous up to the point that can be considered stupid, naturally, that the Union officers and organizers, the attorneys that represent the members and the office workers received a salary , nobody lives for free. I am posi- tive that Eric and Dan and their attorneys receive a good salary. The majority of Local 210 members and their families enjoy the following benefits: -Free Glasses for the family. -Dental Plan for the family. -Maternity Benefits. -Life Insurance. -Pension Plan. -Scholarship Fund. -Medical office visits. -Free Clinics. -Free Job Placement. -Free English classes. -Paid Sick Days. -Paid Holidays. -Support and Respresentation in all cases. -Members choose their Shop Steward and each one receive a copy of the contract in English or Spanish. I would like to finish with these words: We, hispanics, know the meaning of the word Honor, to value our words, to honor our family, our friends and co-workers. We are tired of being fooled and being treat- ed as children. Neither Eric nor Dan, nor any other person (that could be confused) could brain wash you. That's in the past FOR YOU-FOR YOUR FAMILY FOR YOUR HONOR VOTE-YES Angelo Martin President TRABAJADOR DE IDA LACE, INC. Usted y sus companeros de trabajo han recibido por primera vez en su vida obrera, cartas, promesas e invita- ciones especiales para hablar con Eric y Dan (Very nice). Yo se que su reaccion tiene que ser de sorpresa ya que esto es algo nuevo y raro, pero no queda duda que fue provocado porque su Union esta tocando a la puerta. Cuando usted VOTE QUE SI en la elecciones secretas dirigidas por la Junta Nacional de Relaciones del Tra- bajo, el 2 de Noviembre, su Union podra cumplir con este documento. GARANTIZADO-Con la recomendacion del presi- dente de la Union, la Junta Ejecutiva aprobo que ningun trabajador que haya trabajado el mes de Noviembre de 1984 tiene que pagar ni un centavo por el libro de la Union (la iniciacion). MI GARANTIA-El presidente de la Union dio su palabra y ahora, como un acto de buena fe declara y gar- antiza que nunca en la historia de la Local 210 un miem- bro ha pagado un centavo de multa o impuestos de nin- guna clase. GARANTIZADO-Bien claro lo anuncie, en voz alta, que sus cuotas mensuales comenzaran despues que usted ha recibido la proteccion y los beneficios de un contrato de Union que usted ha aceptado. La Union no es para ayudar a los patrons. Ellos tienen sus abogados, sus organizaciones patronales, y sus tenedores de hbros y gastan dinero para que ustedes sigan como estan "sin voz, ni maendo," sin nadie que liable por ustedes. GARANTIZADO-La Constitucion de nuestra Union dice bien claro-"La Union no puede declarar una huelga. Solo los miembros por voto secreto con mas de 2/3 partes de los trabajadores pueden declarar la huelga. El presidente y la Union no niegan to obvio y lo ridi- culo hasta el punto que se puede considerar estupido, na- turalmente, que los oficiales y los organizadores, los aboga- dos que representan los miembros y los trabajadores de las oficinas reciben un salarto. Nadie vive de gratis. Estoy seguro que Eric y Dan y sus abogados reciben un buen sa- lario. La mayoria de los miembros de la Local 210 y sus fa- milias gozan de los siguientes beneficios: IDA LACE, INC. -Programa de Seguro Medico, que incluye esposa, esposo, e hijos sin costo al miembro. -Espejuelos gratis para la familia. -Plan Dental para la familia. -Beneficios de Maternidad. -Plan de Retiro (Pension). -Fondo de Becas -Visitas Medicas a las oficinas de Jos doctores -Clinicas gratis. -Salon de empleo gratis. -Clases de Ingles gratis. -Dias pagos por Enfermedad. -Dias de Fiestas pagos. -Respaldo y Representacion en todos los casos. -Los miembros eligen su Shop Steward y cada uno recibe una copia del contrato en Ingles y Espanol. 215 Termino con estas palabras: Todos los Hispanos sabemos que decir Honor es honrar nuestra palabra , nuestra familia, nuestros amigos y companeros de trabajo . Ya estamos cansados que nos en- ganen como si fueran ninos. Ni Eric, ni Dan, ni ninguna otra persona (que pueda estar confusa) puede lavarles el cerebro. Eso esta en el pasado. POR USTED-POR SU FAMILIA POR SU HONOR VOTE-SI Angelo Martin Presidente