Royal Packaging Corp.

ROYAL, PACKAGING ,CORP. 317 Royal Packaging Corp. and Local 1556 of District 59 of the International Association of Machin- ists and Aerospace Workers, AFL-CIO, Peti- tioner. Case 8-RC-12989 18 June 1987 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS The National Labor Relations Board, by a three- member panel, has considered objections to an election held 16 March 1984' and the hearing offi- cer's report recommending disposition of them. The Board has reviewed the record in light of the Employer's exceptions and brief and, for the rea- sons set forth below, adopts the hearing officer's recommendations and findings only to the extent consistent with this decision. Contrary to the hear- ing officer's recommendation to overrule the Em- ployer's Objection 5, we find that certain conduct by Carol Doncoes warrants setting aside the elec- tion. 2 A petition for election was filed on 17 January 1984. Carol Doncoes, a crew leader at the Re- spondent's facility and an agent of the Petitioner, was very involved in the Petitioner's organizing ac- tivity. 3 Her husband, Ron Doncoes, was employed as a supervisor at the Employer's facility with full authority to hire and discharge employees.4 Employee Sue Smith credibly testified that on 10 January 1984 she was told by Carol Doncoes that if she and her daughter signed authorization cards, her daughter, who had been on layoff status for 6 months, would be recalled to work. Both Smith and her daughter, Tammy Royse, signed cards. Royse testified that, based on the conversation she had with her mother, she went in to work the next day and at that time she handed over her card to Ron Doncoes, who responded by asking her if she was glad to be back at work. The hearing officer found that Carol Doncoes' statement was made prior to the filing of the elec- tion petition and therefore could not serve as a basis for setting aside the election under the rule in Ideal Electric & Mfg. Co., 134 NLRB 1275 (1961). We disagree. Although prepetition conduct is usu- 1 The election was conducted pursuant to a Stipulated Election Agree- ment The tally was 10 for and 7 against the Petitioner, with 1 challenged ballot. 2 In view of our finding that the election must be set aside because of Carol Doncoes' improper conduct, we find it unnecessary to pass on the remaining exceptions. 3 The agency status of Carol Doncoes was admitted by the Petitioner at the hearing. 4 Ron Doncoes' employment with the Employer terminated on 7 Feb- ruary 1984 ally not grounds for setting aside an election, the Board has departed from the Ideal Electric rule in cases in which it has found clearly proscribed ac- tivity likely to have a significant impact on the election. Thus, in Gibson's Discount Center, 214 NLRB 221 (1974), the Board found that the prepe- tition offer to waive union initiation fees as con- demned in NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973), was grounds for setting aside an election. Similarly, in Lyon's Restaurants, 234 NLRB 178 (1978), the Board found that a prepetition state- ment to employees that they had to join the union or they would not work warranted setting aside the election when employees could reasonably be- lieve the Union had power to affect their employ- ment opportunities. In both cases the Board rea- soned that the unlawful prepetition activity was in- strumental in obtaining employees' signatures on authorization cards and that the existence of such signed cards might have created an impression of employee support that could have had an impact on the election. Because the prepetition activity here was an analogous promise a benefit that in- duced Smith and Royse to sign authorization cards, we find that it is conduct that is likely to have a significant impact on the election and thus may be grounds for setting aside the election. Carol Doncoes was an admitted union agent. Her husband, Ron, was an open and active sup- porter of the petitioner who, as a supervisor, had the ability to hire and discharge employees. Conse- quently, the two, acting as a team, had the ability to offer individuals employment on behalf of the Union. Indeed, the facts before us indicate that is exactly what happened though we need make no such finding. Carol Doncoes told Smith that Royse could return to work if Smith and Royse signed authorization cards. Both women signed cards and Royse returned to work the next day. On her return to work, Royse gave her authorization card to Ron Doncoes, who then welcomed her back to work. These facts clearly support a finding that Carol Doncoes promised an economic benefit to Royse if Royse and Smith signed authorization cards. Fur- thermore, the promised economic benefit was one that the employees reasonably believed the Union5 5 Carol and Ron Doncoes' concerted conduct is attributable to the Union because of Carol Doncoes' admitted agency status. Although we do not need to determine whether Ron Doncoes was a union agent, in the unusual circumstances presented here, we would not hesitate to find Ron Doncoes an agent of the Union for the limited purpose of consider- ing whether the Union offered economic inducements to employees in exchange for their signatures on authorization cards ' The evidence clear- ly shows that Ron Doncoes, by accepting Royse's authorization card and welcoming her back to work, was acting as an agent for the Union in implementing the Union's promise to Royse 284 NLRB No. 42 318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD could bring about through Carol Doncoes' acting in concert with her husband Ron, who supported the Union and who, exercising his supervisory au- thority, could, and in fact did, reinstate Royse: In such circumstances, we find that Carol Doncoes' statement is analogous to a Savair violation.6 In Savair Mfg. Co., supra, the Supreme Court held that a Union's offer to waive union initiation fees for only those employees signing authorization cards before the election impairs employee free choice in the election and warrants setting aside an election. The Court reasoned that obtaining em- ployee signatures on authorization cards in such a manner impairs employee free choice by allowing "the union to buy endorsements and paint a false portrait of employee support during its election campaign." Id. at 277. Furthermore, such offers may create a feeling of obligation to vote for the union because an employee who signs an authoriza- tion card, although not legally bound to vote for the union, may certainly feel obliged to do so in exchange for the waiver of initiation fees. 6 We emphasize that this finding rests on the fact that the employees could reasonably believe that Carol Doncoes was in a position, with her union-supporter husband's cooperation, to implement this promise—a belief that gained credence when Royse was indeed reinstated on her presentation of her authorization card to Ron Doncoes. The circum- stances are therefore distinguishable from those in cases involving union agents' statements about actions concerning job tenure that the employees could not reasonably believe the union had the power to carry out. Rio de Oro Uranium Mines, 120 NLRB 91, 94 (1958) See also NLRB v. A.G. Pollard Co., 393 F.2d 239, 241-242 (1st Cir 1968) (employees could rea- sonably regard Union statements about the possibility that employer would discharge employees as "union propaganda" or "mere uninformed prognostication of what was likely to happen") Given the unique circumstances presented, the statement here, although not involving the waiver of union fees, was similarly a promise of an eco- nomic benefit in exchange for an employee's signa- ture on an authorization card. Furthermore, be- cause of those circumstances, it was a promise which, like Savair statements, employees would reasonably believe that the Union had the power to fulfill. Indeed, when Carol Doncoes offered employ- ment to Smith's daughter if Smith and Royse signed authorization cards, the economic benefit promised was a job itself—a far greater inducement than the waiver of a union initiation fee. Certainly the receipt of such a benefit could make an em- ployee feel obligated to vote for the union. Fur- thermore, the promise of such a benefit, like the statements in Savair, allowed the Union to buy en- dorsements and presents a picture of employee sup- port. Consequently, we fmd Carol Doncoes' state- ment to be in contravention of the Savair principle and thus grounds for setting aside the election. ORDER It is ordered that the election conducted on 16 March 1984 be, and it is, set aside, and that Case 8- RC-l2989 be, and it is, remanded to the Regional Director for Region 8 for the purpose of conduct- ing a new election. [Direction of Second Election omitted from pub- lication.