Aladdin Hotel

National Labor Relations Board - Board Decisions

May 9, 1977

229 N.L.R.B. 499 (N.L.R.B. 1977)

ALADDIN HOTEL
Aladdin Hotel Corp. d/b/a Aladdin Hotel and
Professional, Clerical, Ground Maintenance, Park-
ing Lot Attendants, Car Rental Employees, Ware-
housemen & Helpers Local 995, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Petitioner. Case
3 1-RC-3292
May 9, 1977
DECISION AND CERTIFICATION OF
REPRESENTATIVE
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted under the direction and supervision of the
Regional Director for Region 31 on October 23,
1975, among the employees in the unit described
below. Upon the conclusion of the election, a tally of
ballots was furnished the parties in accordance with
the Board's Rules and Regulations.
The tally of ballots shows that of approximately 37
eligible voters 18 ballots were cast for, and 13
against, the Petitioner. There were six challenged
ballots. The challenged ballots were sufficient in
number to affect the results of the election and timely
objections to the election were filed by the Employer.
On November 28, 1975, the Regional Director
issued his Report on Objections and Challenged
Ballots, recommending that 'three of the challenges
be sustained, three be overruled, the overruled
ballots not be opened and counted, a revised tally of
ballots be issued, and a hearing set to resolve issues
of fact and law raised in the Employer's objections.
No exceptions were filed to the Regional Director's
report, and the Board adopted his recommendations.
On December 17, 1975, the Board issued an Order
Directing Hearing for the purpose of receiving
evidence to resolve the issues raised by the objec-
tions.
On January 20, 1976, a hearing was held before
Hearing Officer Sheri E. Ross. The Hearing Officer's
Report and Recommendation, pertinent parts of
which are attached hereto as an appendix, was issued
on February 25, 1976, to which the Employer filed
exceptions and a supporting brief.
The Board has reviewed the record in light of the
exceptions and briefs1 and hereby adopts the
Hearing Officer's findings and recommendations.
We agree with the Hearing Officer that the
Petitioner's organizing policy c d rec)lliiir,g the pre-
payment of a reduced initiation fee and a month's
dues from a majority of prospective unit employees
was not objectionable. For its organizing campaign,
The Employer has requested oral argument. This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties.
379 NT I? R N n 7 7
the Petitioner's policy was, upon receiving the
advanced payments from a majority of prospective
unit employees, to file a representation petition. If a
majority did not pay the advance, all moneys were
refunded and no petition filed. Should a petition be
filed and the Petitioner lose the election, all funds
advanced by employees are forfeited in order to
defray campaign expenses. If the Petitioner wins the
election, the dues payments are applied for the first
month after the collective-bargaining agreement is
signed. The reduced initiation fee remains open to all
employees until the contract is signed.
The Petitioner's forfeiture policy, as set out above,
imposes no unlawful obligation or hindrance upon
employees' freedom of choice in the election. A
union has no legal obligation to seek to represent
employees desiring organization. Thus, if a majority
of unit employees choose not to prepay and the
union withdraws, the employees are denied no rights.
Should a majority choose to prepay, those who
elected not to do so are in no way prejudiced because
they may still pay the reduced initiation fee after the
election.
However, our dissenting colleagues would find that
those employees who choose voluntarily to prepay
become obligated to the union so as to lose their
freedom of choice in the election. We cannot agree.
The Supreme Court in Savair2 would not allow a
union to waive initiation fees for those who signed
recognition slips before the election. The Court,
stating that the Board's election standards must
"honor the right of those who oppose a union as well
as those who favor it," found that the union's policy
in Savair permitted it "to buy endorsements and
paint a false portrait of employee support during its
election campaign."
Contrary to our dissenting colleagues, the princi-
ples of Savair are clearly not applicable here but, in
fact, the Petitioner's policy in this case is quite the
opposite of that of the union in Savair. In asking
employees for "up front" money, the Petitioner
offered no special inducements nor employed any
device to coerce employees. There was no offer of an
unlawful inducement because the possibility of
forfeiture conferred no benefit but was, if anything, a
disadvantage for employees. However, since the
Petitioner had no legal obligation to represent these
employees, it denied them no rights nor coerced
them by seeking, prior to filing a petition, payments
to guarantee that-win or lose the election-its
u ~ g d k i n g expenses would be met. Unhke the union
in Savair, the Petitioner did not discriminate against
prospective unit employees on the basis of whether
they supported the Union before rather than after the
N L R B . v. Savair Manufacruring Co., 414 U.S. 270(1973).
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election. Thus, when employees, despite the forfei-
ture possibility, chose voluntarily to prepay the
reduced initiation fee and a month's dues, they were
not acting pursuant to any unlawful inducement or
coercion but were freely exercising their right to
support a labor organization.
Further, the fact that the Petitioner's policy led to a
majority of employees making an early-though not
binding-commitment to favor the Petitioner did not
render the policy objectionable. Once an employee
had prepaid and a petition was filed, there was no
way-no matter what his vote on election day-that
he could receive a refund. By prepaying voluntarily,
employees accepted the predictable consequence that
the money-regardless of the outcome of the
election-would go into the Petitioner's coffers.
Employees were fully aware of the possibility of
forfeiture (there is no contention that they were in
any way misled), but nonetheless a majority chose of
their own free will to make the advance payments.
One might well question the wisdom of a union
organizing policy that offers nothing to prospective
members but instead seeks their financial support for
the unionization effort. However, in deciding wheth-
er or not to set aside an election, the Board's concern
is whether or not a party's policy prevented employ-
ees from exercising a free and untrammelled choice
in the election. One could speculate-as do our
colleagues in this case-that many voluntary actions
taken by employees might influence their vote on
election day. For example, employees frequently,
likely at the union's urging, become inplant organiz-
ers, open and vocal advocates, or simply union
observers on election day. By thus positioning
themselves, they might be reluctant to vote against
the union, perhaps for fear of later facing a hostile
employer without a union's support. Similarly, an
employee who voluntarily opposes the union early on
might be reluctant later to vote for the union for fear
U
of encountering a hostile union regime. Nonetheless,
an employee's open, voluntary, and early support for
or opposition to a union-where the employee's
actions are not a result of any party's unlawful
inducements or coercion-does not create a situation
warranting setting aside the election. In such circum-
stances, no party has bought endorsements or
coerced employees into being for or against any
other party.3
The Petitioner's forfeiture policy fits this pattern of
a policy that entails neither bribes nor coercion but
allows employees to vo!untarily make t k i r cwc
decisions. Creating no "false portrait of emph )ycc
support"4 nor any other misconceptions, the polr(-\
fully honors the rights of both prounion : i c ~ t l
antiunion employees. Therefore, as the Petition(.:
created no hindrance or obligation to the empluycc.'
freedom of choice in the election, it did 1101
contravene the principles of Savair or otherw~\t.
engage in objectionable conduct.
Of course, essential to our above finding is o u l
affirmance of the Hearing Officer's conclusion t h ; ~ ~
the Petitioner's reduced initiation fee ($25 rathcr
than the usual $50) was available to employees boll)
before and after the election and up until a contract
was signed. Viewing the totality of the situation
herein, we agree with the Hearing Officer that thc
term "organizing campaign" meant, and was ex-
plained to employees to mean, that the reduction i n
initiation fees was available both before and after thc
election. Unlike Inland Shoe Manufacturing Co., Inc..
211 NLRB 724 (1974), where the Board found that
the use of the term "charter member" created an
ambiguity regarding when and for how long thc
reduction applied, the term "organizing campaign"
does not create any similar ambiguity. In B. I;:
Goodrich Tire Company, a Division of the B. F.
Goodrich Company, 209 NLRB 1175 (1974), thc
Board found legitimate a union offer to waive
initiation fees to employees joining "at anytime
during the organization stage of representation, prior
or subsequent to the election." Here, the term
"organizational campaign" would reasonably be
understood by employees to refer to the periods both
before and after the election. We would not-as do
our colleagues-rely on the subjective detennina-
tions of a few employees to reach our conclusion.
Rather, viewed objectively, the term "organizational
campaignt created no ambiguity warranting the
setting aside of the election.
As we have overruled all the objections and as the
tally shows that the Petitioner has received a
majority of the ballots cast, we shall certify it as the
exclusive bargaining representative of the employees
in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valitl
ballots have been cast for Professional, Clerical,
Ground Maintenance, Parking Lot Attendants, Car
Rental Employees, Warehousemen & Helpers Local
995, International Cldl~zrl~ood Tcamstcrh.
-- - --
We do not agree with our dissenting colleagues' assertion that 4 Indeed, when an employee is solicited to "put his money where hn
monetary Payments by employees, as opposed to other forms of employee mouth is," it cannot be said that his agreeing to pay creates any false 0 6
support, somehow create an almost unalterable obligation to the union, inflated showing of support for the ~ ~ t h ~ ~ , a requir,nF
thereby preventrng a free and fair election. Further, in determining whether prepayment likely serves to give an accurate, or even understated, display (11. the union's policy was objectionable, the real issue, as stated above. is not
what form did the support take but rather was the sumort a result of union . . . .
unlawful inducements or coercion.
ALADDIN HOTEL 501
( 'hauffeurs, Warehousemen & Helpers of America,
: ~ n d that, pursuant to Section 9(a) of the National
I,abor Relations Act, as amended, the said labor
organization is the exclusive representative of all the
cmployees in the following appropriate unit for the
pirr-poses of collective bargaining in respect to rates
of pay, wages, hours of employment, or other
conditions of employment:
All office clerical employees employed by the
Employer at its facility located at 3667 Las Vegas
Boulevard South, Las Vegas, Nevada; excluding
all other employees, professional employees,
supervisors and guards as defined in the Act.
M E M B E R S PENELLO and WALTHER, dissenting:
We cannot agree with our colleagues' adoption of
the Hearing Officer's recommendations. This case
presents a novel question concerning union cam-
paign funding procedures, and in our opinion the
majority's decision, approving a policy of forfeiture
of prepaid union initiation fees and dues in the event
a union loses the election, undermines the Board's
and the courts' standards for election campaigns.
Further, we disagree with the Hearing Officer and
our colleagues that the Union did not violate the
Supreme Court's holding in N.L.R.B. v. Savair
Manufacluring Co., 414 U.S. 270 (1973), by the
manner in which it offered reduced initiation fees
during the organization campaign.
The Union's policy durinh initial organization
provides that it offer to the employees a reduction of
rhe initiation fee, and that it solicit advance payment
of' the reduced fee plus 1 month's dues from unit
employees prior to the election. Should less than a
majority advance these sums. the Union does not file
h r an election, and the money is refunded. If a
majority does pay the advance sums, an election
petition is filed. During the initial organization stage,
]he Union informs the employees that, should the
Union win the election, the collected money will be
~ipplied to the initiation fee and the first month's
dues after the signing of a collective-bargaining
agreement. The employees are also told, however,
[hat if the Union loses the election, the money is
hrfei ted.
The Union advances two reasons for its forfeiture
policy. First, by requiring forfeiture, the employees
\vho prepay are certain to continue to support the
Ilnion and are not simply "window shopping."
Secondly, the forfeiture helps defray any campaign
cxpendirures for lost elections. Out of its own mouth
!he Union admits, in our view, that its forfeiture
Suvair, supra at 277.
' 7i~ldype Corporation, 122 NLRB 1594 (1959); Wagner Eleclric Corpora-
J ~ ~ * K (%orham Division. 167 NLRB 532 (1967): Collins & Aikman Corpororion
2' /..R.B., 383 F.2d 722 (C.A. 4. 1967); N.L.R.B. v. Commercial Letter,
~~~, . 4 5 F.2d 109 (C.A. e, 1972).
policy interferes with the employees' freedom of
choice, in direct violation of the Supreme Court's
holding in Savair.
The forfeiture policy puts a price on freedom of
choice by violating the Board's prohibition against
the "buying" of votes by parties to an election. In
Savair the Supreme Court would not allow a union to
waive initiation fees for those who had signed
authorization cards before the election. The Court
said it would not allow any party to buy or sell
"endorsements" in such a fashion.5 The typical case
of buying votes usually involves money or gifts being
given to employees for their up port.^ In the present
case, however, money has been given to the Union,
but the same principle is involved as when money is
given to voters. An obligation is created which
effectively hinders an employee's freedom of deci-
sion. The Union characterizes this freedom of choice
as "window shopping." In our judgment, however,
such freedom of choice is the very purpose for which
the Board conducts representation elections. Since
under the Union's policy the only way an employee
can avoid losing his prepaid money is to vote for the
Union regardless of how his sentiments may have
changed during the course of the election campaign,
this policy clearly undermines the freedom of choice
which the Board seeks to foster. Indeed, our
colleagues, by suggesting that Union's policy creates
no more of an obligation than various forms of
nonmonetary support, are being far less candid, and
show considerably less insight into the Board's
election process, than the Union. For, the Union
itself admits that its forfeiture policy, in large part, is
designed to insure the continued support of employ-
ees who have paid their moneys to the Union. The
Union, unlike our colleagues, thereby recognizes the
meaningful impact of an obligation based on a
monetary investment.
Heretofore an employee has not been considered
obligated to a union in any way until after a
collective-bargaining agreement is signed. An em-
ployee has certainly not been considered obligated to
the union in the event it lost an election.7 But in the
instant case, the Union's express purpose for its
forfeiture policy js to obtain from the voters In
advance a paid obligation which will defray cam-
paign costs. If such is the Union's intent, it would be
more legitimate to simply charge all unit supporters a
flat fee for the Urnon's conducting an election
campaign.
We also do not agree with the Hearing Officer's
finding, adopted by our colleagues, that the Union
Savoir, supra at 287; see also DIT-MCO, Incorporared, 163 NLRB 1019,
1021 (1967).
502 DECISIONS OF NAT1ONA.L LABOR RELATIONS BOARD
did not violate Savair by the manner in which it
offered the reduced initiation fee prior to the
election. Savair prohibits waiving a n initiation fee
only for employees who sign recognition slips before
a n election. The Board has subsequently recognized
that that rationale embraces reduction of initiation
fees prior to a n election. B. l? Goodrich Tire
Company, a Division of the B. l? Goodrich Company,
209 NLRB 1175 (1974). But a union's reduction or
waiver of initiation fees must clearly be offered to all
employees before, during, and after an election, and
any ambiguity as to whom and when the special offer
applies could make the offer an invalid one. Inland
Shoe Manufacturing Co., Inc., 21 1 NLRB 724 (1974).
In the present case, the Union offered the fee
reduction in a letter which said that the reduction
lasted during the "organizing campaign." But no
explanation of how long the organizing campaign
lasted was contained in that letter. Indeed, one
employee who was a union supporter took the
opportunity to tell other employees that the fee
would go up after the election. Other voters were
confused by the letter, and some thought that the
reduction lasted only until the election. The Union's
argument that it clarified any confusion by com-
ments at the union hall that the reduction lasted until
the signing of the collective-bargaining agreement is
undermined by the fact that it is unclear exactly how
many employees were present a t the hall and how
many heard the Union's explanation. Furthermore,
after the election, the Union sent a second letter
explicitly stating that the fee reduction lasted until a
collective-bargaining agreement was signed. If the
Union's intent had been clear with the first letter,
there would have been no need for a second letter.
Quite obviously, the Union fully realized the ambigu-
ity of its first letter. But by waiting until after the
election had been conducted to issue the clarifying
letter, the Union already had the advantage of the
impact from the ambiguous fee reduction offer. By
sanctioning such a postelection correction of a vague
fee-reduction offer, the majority is allowing the
Union to skirt the requirements of Savair and is
establishing a legal principle which we find invalid.
Unlike our colleagues, therefore, we would sustain
the Employer's objections based on the Union's
forfeiture policy and fee-reduction offer. According-
ly, we would set aside the election.
APPENDIX
This matter was heard at Las Vegas, Nevada on January
20, 1976, pursuant to the above-referenced Order Directing
Hearing and a Notice of Hearing issued by the Regional
Director for Region 3 1 on January 5, 1976.
The Employer's objections in their entirety are set forth
below:
1. In solicitation of authorization cards before and
after the date of filing the petition herein, Petitioner
required those employees of the Employer who execut-
ed same to pay certain sums to them with the
representation that Petitioner would not go forward
until the money was paid and further, that if the Union
was unsuccessful in the representation election, the
money would be forfeited.
2. On or about September 9, 1975, the Union in a
letter addressed to the employees, a copy of which is
enclosed herewith, advised the employees that the
initiation fees were being reduced from $50 to $25 for
the purposes of this organizing campaign. In addition,
the Union required that upon execution of the
authorization cards, the employees were requested to
remit $25 plus $12 dues.
3. Again in reiterating its previous representations
to the employees, it provided that if the Union was
unsuccessful in the election, the moneys submitted
would be forfeited.
By the foregoing and other acts, Petitioner
destroyed the laboratory conditions necessary for
the conduct of a fair election.
All parties were represented by counsel and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, to present evidence pertinent to
the issue, and to argue orally at the conclusion of the taking
of evidence.
Upon the entire record of the hearing and from my
observations of the witnesses, I make the following findings
of fact, conclusions, and recommendations:
Petitioner's policy regarding dues and initiation fee in its
organizing campaigns is to reduce the initiation fee from 50
to 25 dollars and to solicit payment from prospective unit
employees of the reduced initiation fee plus 1 month's dues
of 12 dollars in advance. If a majority do not pay in
advance, no petition is filed and the advance payments
received from the minority are returned to them. Once the
petition is filed, however, if the Petitioner loses the election,
aU funds advanced by unit employees are forfeited. If the
Petitioner wins the election, the dues become applicable for
the month after the collective-bargaining agreement is
signed. Also, the reduced initiation fee remains available to
all employees until the contract is signed.
Petitioner conducted previous organizing campaigns
among the Employer's office clerical employees in 1972,
1973, and 1974. In 1974 a petition was filed and an election
held. However, in 1974, no payment of dues and/or
initiation fee was required in advance. The advance
payment was waived at that time because the Petitioner
wanted an election as soon as possible in light of the fact
that a majonty of the empioyees had signed cards and
there would not have been time to collect the money.
Nevertheless, Petitioner lost the 1974 election.
Early in September 1975, Clifford Norton, president of
Local 995, received a call from an Aladdin employee
requesting another organizing campaign. Norton was told
ALADDIN HOTEL 503
the employees didn't want any meetings on either side -
just an election. For the 1975 organizing campaign the
Petitioner decided to follow its normal dues and initiation
fee policy. Norton testified as follows regarding the reasons
for the return to the normal policy at the Aladdin:
We had an experience in '74 where over a majority had
signed up and they voted against the Union at the
election.
So, this year we wanted to, or I wanted to make sure
that the people that had come to me were representing
a majority of the people and that I wanted it clearly
understood going in that if the people were hesitant or
weren't for the union, I didn't want them to sign a card
and I figured that if they put their moneys up front that
it would be an indication to themselves that they were
going to stay with the program and that is what they
wanted.
That they weren't just window-shopping, per se.
Richard Thomas, the Local's secretary-treasurer, de-
scribed the purpose in requiring the advance payment in
1975 being:
As a matter, again, of normal policy, we would have
gotten the money in '74 and we would have had the
same position of the moneys up front and the money
being forfeited in the event that the employees had a
change of mind and succumbed to, you know, voting
against the union for whatever reason they might make
that determination.
We made a decision at that poylt not to do that and to
go without any moneys up front which proved not 10 be
a successful and very wise decision.
As I recall, we only got a handful of votes and I wasn't
very happy with the situation a t all.
So, very obviously, it wasn't a question of having the
money forfeited or not having the money forfeited.
Again, it was done for, in my mind, two reasons, to
determine the seriousness of the employees in their
bargaining unit at the Aladdin Hotel and the second
reasoning that if they did the same thing they had done
a year ago and turned around and voted against the
Union, that those moneys put up by being forfeited
would help to offset the costs that the Union incurred
in the organizing drive and the election.
On September 9, 1975, between eight and fifteen unit
employees went to the Union hall to sign authorization
cards and pay the thirty-seven dollars. During their visit
Norton spoke to them for about five minutes in his ofice.
N ~ r t o n was asked if the Union would make the same fw
offer as it had the previous year. He replied that it would be
the same, except that the employees would have to put
their money up front. He explained that the money would
be returned if an insufficient number of employees to file a
petition paid up and that if the Union lost the election, the
money would be forfeited. Norton and employees Ruth
Kurlytis and Janet Smith state that Norton further
explained that the reduced initiation fee would be in effect
until after the contract was signed. The above-related
testimony is uncontradicted.
On or about September 9, the Petitioner also mailed a
letter to employees, a copy of which is attached hereto,
stating in part that "Our Executive Board has authorized a
reduction of the $50.00 initiation fee to $25.00 for this
organizing campaign. When you send in your forms be
sure to send $25.00 plus $12.00 dues. These monies will be
held in escrow and the dues will apply to the first month
after you approve your first labor agreement. If less than a
majority send in monies, they will be refunded. If we go to
an election and it proves unsuccessful, the monies are
forfeit."
On September 24 the only meeting of the campaign was
scheduled at the union hall for 4 p.m. Both Norton and
Thomas attended. Ten to twelve unit employees were
present including Mary Beth Gilbreath and Kathy Kidner.
AU were seated in the first three rows in front of Thomas.
The meeting was conducted as a question-and-answer
sesslon with Thomas responding to the questions. Joan
Brown and Ruth Kurlytis were discussing among them-
selves how unfair it was for them to be sticking their necks
out in risking forfeiture of the 37 dollars while those who
hadn't paid could still get in at the discount rate after the
election. Thomas heard them and stated that the reduced
initiation fee had to be open until the contract was signed
and that it was not allowable to raise it after the election.
Kidner states Thomas encouraged them to get their money
in, but never mentioned the duration of the discount offer.
Additionally, the Employer contends that Ruth Kurlytis,
an employee, told employees that the reduced initiation fee
would last only until the election and presented three
witnesses in support of this contention. Linda Rogers states
that another clerical mentioned to Kurlytis that in another
hotel an unnamed union had reduced the fee and then after
the election the employees had to pay a higher fee. Then
Kurlytls told Rogers that she should pay her fee because it
would go up after the election. The conversation occurred
at Rogers' and Kurlytis' desks, which are adjacent to each
other. Kidner and Gilbreath both state that Kurlytis stated
that the discounted initiation fee would last only until the
election. Neither recalls when the statement was made,
who was present, the exact words used, or the context of
the statement. Kidner states she heard the statement two to
three times; Gilbreath states she heard it three to four
times. There is no evidence that Rogers, Kidner, or
Gilbreath made any attempt to ascertain the truthfulness of
these statements.
Kurlytis then testified that she did tell Rogers that she
had to get her money in before the election, "Because some
of the other girls kept prompting me about trying to get her
to put her money in, because she was holding back. They
felt th2t ~ \ l e r \ t ~ ! v +auld get their m o x y in lvr be
penalized late;." ~ L r l ~ t i s al o testified that when Kidner
signed her card, she didn't have the 37 dollars to give
Kurlytis, but said she would give it to her on a specified
date. When that date arrived Kurlytis went and asked
Kidner for the money. Kidner didn't have it so Kurlytis
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told her, "Well, you'd better, you know, get your money in
before it is too late." Kurlytis denies stating to anyone
other than Rogers that the money had to be paid before the
election. Kurlytis was not paid by the Petitioner, held no
position in the Union or on an organizing committee, and
was never authorized by the Petitioner to make statements
regarding the duration of the reduced initiation fee. Other
employees would usually go to Kurlytis if they had
questions about the Union. She would then either answer
the questions or call Norton, get the information requested,
and repeat it to the employees. Other employees, however,
were questioned about the Union prior to the election.
The Forfeiture of Dues and Initiation Fees
No labor organization can be forced to represent or
attempt to represent any group of employees. Here
Petitioner had several organizing experiences with the
Employer's employees in which it had expended its
energies on their behalf with unsuccessful results. Instead
of refusing to make another attempt to organize them,
however, Petitioner made clear that it needed certain
money up front to cover the costs of organizing. If the
organizing campaign were successful, those sums would
cover the initiation fee and 1 month's dues, but if
unsuccessful, the money would cover the organizing costs.
Each employee who made the advance payment was
clearly aware of the possibility of forfeiture. Nonetheless,
at least a majority voluntarily made these payments. If they
had objected, they could have sought representation
elsewhere, formed their own labor organization, or re-
frained from seeking representation. I find no case law
which prohibits unions from seeking to meet organizing
costs in this way.
In N.L.R.B. v. Savair Manufacturing Co., 414 US. 270,
the Supreme Court found that in allowing a union to waive
its initiation fees for employees signing authorization cards
before the election, the Board was permitting the union "to
buy endorsements and paint a false portrait of employee
support during its election campaign." The Court reasoned
that while employees had no legal duty to vote for the
union, they would feel obligated to do so by accepting the
waiver of initiation fees and signing the authorization card.
In waiving initiation fees prior to the election only, those
employees who had not signed cards would have to pay an
initiation fee and be penalized for their nonsupport prior to
the time of election. Thus, Savair overruled DIT-MCO,
Incorporated, 163 NLRB 1019, insofar as it relates to the
discrimination between employees regarding the waiver of
initiation fees on the basis of whether they signed the
authorization cards before or after the election. In DIT-
MCO the Board reasoned that conduct is not inducement
or coercion where employees can avoid the alleged
inducement without penalty. The rationale behind the
decision in DIT-MCO is applicable to the instant situation
and has not been overruled by Savair in cases where no
disparate treatment conditioned on the outcome of the
election results.
Forfeiture of certain payments which could be avoided
by simply electing not to make those payments cannot be
considered improper inducement. Cf. EFCO Corporation,
185 NLRB 220; Hughes & Hatcher, Inc., 176 NLRB 1103;
Primco Casting Corp., 174 NLRB 244. Here, the forfeiture
of dues and initiation fees was entirely avoidable. The 37-
dollar payment was at all times voluntary. No employee
could expect any reward or advantage for her prepayment.
Moreover, the instant forfeiture policy is distinguishable
from Savair in that no employees here were penalized by
awaiting the outcome of the election before paying the dues
and the initiation fee. Therefore, I find that no disparate
treatment between employees resulted and the possibility
of forfeiture did not constitute a constraint on employees
to vote for Petitioner.
Where an employer promises benefits to employees who
vote against the union, the Board has set aside the election
because the grant of benefits was calculated to influence
the choice of employees in the selection of their bargaining
representative. See N.L.R.B. v. Exchange Parts Co., 375
US. 405; The Borden Manufacturing Company, 193 NLRB
1028; The Baltimore Catering Company, 148 NLRB 970,
973. Similarly; a threatened loss of benefits for failure to
support an employer in an election is sufficient to set aside
an election. Shovel Supply Co., 121 NLRB 1485; Hercules
Motor Corp., 73 NLRB 650. In considering the limitations
on a union's conduct, I note that in organizing campaigns
the Board has historically accorded unions a different
status from employers because it has viewed employers as
having absolute control over the work environment dunng
the campaign. In this case, the forfeiture policy did not give
Petitioner any greater control over the work environment
than it would have without the policy. If an employer
threatens loss of benefits, the employees' only recourse to
avoid the loss is securing other jobs. In order to avoid the
forfeiture of dues and initiation fees, however, employees
simply did not have to pay them. The forfeiture had no
impact on their employment. I find, therefore, a difference
between an employer threatening loss of benefits for voting
for the union and Petitioner's imposition of its policy
providing for forfeiture of dues and the initiation fee. In
these circumstances the Petitioner was still a mere
"outsider seeking entrance to the plant." N L R B . v.
Golden Age Beverage Co., 415 F.2d 26, enfg. 167 NLRB
151. Accordingly, I find that the forfeiture policy does not
contravene the spirit of Savair nor othenvise constitute
objectionable conbuct.
The Duration of the Reduced Initiation Fee Offer
in the Petitioner's September 9 Letter
Since Savair the Board has concluded that any waiver of
initiation fees, where the waiver is not limited to the period
before the election, but is available until the signing of a
contract, is permissible. Invindale Division, Law Industries,
210 NLRB 182; B. F. Goodrich Tire Co., 209 NLRB 1 175.
In Jeflerson Food Mart, 214 NLRB 225, the Board
expanded its rules under Savair to include reductions of
fees as well as waiver of fees. In Smith Company of
California, Inc., 215 NLRB 530, an organizer told employ-
ees that initiation fees would be "waived during a new
organization," that "anyone who would come in after the
plant became union" would have to pay the $30 initiation
fee and that "any employee that is coming in after signing
ALADDIN HOTEL 505
the contract, is subject to an initiation fee." The Board, in
finding that the Petitioner's conduct was not objectionable,
stated that when the whole situation was taken into
consideration and the statements were not viewed in
isolation, the organizer made clear the position that
initiation fees were waived for all those who joined before a
contract was signed.
In the instant case, the Petitioner's September 9 letter
states that the duration of the reduced fee offer is for this
organizing campaign. No explanation of the meaning of
organizing campaign was set forth in the letter. No
evidence was adduced at the hearing that either Thomas or
Norton ever stated or indicated that the reduction in fees
was limited to the period prior to the election. On the
contrary, both Thomas and Norton told the employees that
the offer had to remain available until the contract was
signed at both the September 9 and 24 meetings.
While the Employer contends that "organizational
campaign" refers to that period prior to the election, in
B. E Goodrich Tire Co., the Board stated:
. . . where a union offered to waive its initiation fees
for all the employees in the unit who joined at anytime
during the organizational stage of representation prior or
subsequent to the election, such waiver was legitimate
and did not affect the election.
Thus, the duration of the reduction of initiation fees is
not ambiguous. Cf. Inland Shoe Manufacfuring Co., he.,
21 1 NLRB 724. Moreover, when viewed in the totality, as
in Smith, the two meetings and the letter make clear
Thomas' and Norton's position of leaving the reduction of
initiation fees open to all employees until the contract was
signed. Additionally, the subjective state of mind of
employees is not relevant to +the issue, the test for
objectionable conduct is an objective one where the
consideration is based on representations made to employ-
ees and not their beliefs or misunderstandings. Jeferson
Food Mart, Matter of G. H. Hess, 82 NLRB 463, fn. 3. Thus
the absence of objective evidence that any designated
agents conditioned the reduction of initiation fees on
employees joining the Union prior to the election either
orally or in writing, I conclude that the September 9 letter
is not violative of the guidelines set forth in Savair.
The Duration of the Reduced Initiation Fee Offer
Per Kurlytis
There is no evidence that Kurlytis acted as an agent of
Petitioner at any time. Her conduct is not attributable to
the Petitioner without proof that it was authorized by,
participated in, condoned by, ratified by, or adopted by
officials of the Petitioner. 1V.L.R.B. v. Dalim General
Drivers Warehousemen and Helpers Local 745,264 F.2d 642,
648. Kurlytis never told employees that she was an agent of
the Petitiom 01 was spealung oil ita behalf. I'.eou~~Liib,
arguendo, that Kurlytis was an unpaid employee organizer,
the mere fact that an employee prominent in the organizing
campaign may have engaged in unlawful conduct, is not
alone sufficient to establish agency. Owens-Corning Fiber-
glas Corporation, 179 NLRB 2 19; Electric Wheel Company,
120 NLRB 1644. 1 conclude that Kurlytis was not an agent
of the Petitioner.
The Board has considered conduct of third parties and
rank-and-file employees in determining whether an elec-
tion will be set aside- however, less weight is accorded such
conduct. Cross Baking Company, Inc., 191 NLRB 27,
reversed on other grounds 453 F.2d 1346; Orleans Manu-
facruring Company, 120 NLRB 630, 633. The test to be
applied in determining whether an election will be set aside
on the basis of third-party conduct is whether the character
of the conduct was so aggravated as to create a general
atmosphere of fear and reprisal rendering a choice of free
expression impossible. Central Photocolor Co. Inc., 195
NLRB 839. In Allied Metal Hose Company, Inc., 2 19 NLRB
1135, several employees, as in the instant case, were told by
another employee that the initiation fees would be waived
only until the election. The Administrative Law Judge
noted that almost all elections set aside on the basis of
third-party conduct involve violence, threats of mass
terminations, or highly inflammatory racial remarks and
found the third-party conduct on the initiation fee issue
insuficient to set aside the election. In affirming the
Administrative Law Judge's conclusions the Board stated:
. we do not read Savair to require either the Board
or the parties to police the preelection conduct of third
parties with the same vigilance and rigor that they are
required to exercise in policing their own conduct.
Under the circumstances of this case. we are satisified
that the statements circulated by vkous employees
about the Union's waiver of initiation fees did not rise
to the level of impropriety that the Board has
previously relied on in setting aside elections because of
third-party conduct. In this respect, we fully agree with
the Administrative Law Judge that such rumors and
misinformation as might have existed did not create an
atmosphere of fear, coercion, and confusion among
Respondent's employees which could reasonably have
interfered with the employees' free choice. Nor do we
find convincing reasons to hold the Union culpable
and/or responsible for such rumors or misinformation
especially where, as here, the circulating statements
incorrectly reflected the Union's initiation fee policy
and the employees made no attempts to ascertain the
truthfulness of such rumors.
Based upon Allied Meral Hose, I conclude that Kurlytis'
conduct was not so aggravated as to create an atmosphere
of fear and reprisal. Assuming, arguendo, she told all three
employer witnesses that the reduction offer ended at the
time of the election, the statements did not correctly reflect
Petitioner's initiation fee pol lc~ and the employees so
informed made no attempt to discuss the matter with the
Petitioner. Therefore, I find no reason to hold Petitioner
responsible for these statements.
Accordingly, I conclude that the Employer's objections
should be overruled in their entirety.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATION report, either party may file with the Board in Washington,
D.C., eight copies of exceptions thereto. Immediately upon
Based on the discussion above and the record as a whole, the filing of such exceptions, the party filing the same shall
I recommend that the Employer's objections be overruled serve a copy thereof on the other party and shall file a copy
and a Certification of Representative be issued. with the Regional Director. If no such exceptions are filed
Pursuant to Section 102.69(e) of the Board's Rules and thereto, the Board will adopt the recommendations of the
Regulations, Series 8, as amended, and the Board's Order Hearing Oficere
Directing Hearing, within 10 days from the issuance of this