California State Automobile Association

National Labor Relations Board - Board DecisionsOct 23, 1974

214 N.L.R.B. 223 (N.L.R.B. 1974)

CALIFORNIA STATE AUTOMOBILE ASSN. California State Automobile Association and Team- sters Local No. 960 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America , Petitioner . Case 20-RC-11393 October 23, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO Pursuant to a Decision and Direction of Election issued by the Regional Director on July 13, 1973, an election by secret ballot was conducted on August 10, 1973. The official tally of ballots furnished the parties at the conclusion of the election showed that, of ap- proximately 45 eligible voters, 45 cast ballots, of which 31 were for, and 14 against, the Petitioner. Thereafter, on August 17, 1973, the Employer filed timely objections to the election, a copy of which was served on the Petitioner. On September 20, 1973, the Regional Director issued a Supplemental Decision and Certification of Representative overruling the Employer's objections in their entirety and certifying Petitioner as the collective-bargaining representative of the employees in the appropriate unit. On October 1, 1973, the Employer filed a request for review of the Regional Director's Supplemental Decision and Certification of Representative. On Oc- tober 19, 1973, the request for review was denied by the National Labor Relations Board. On January 7, 1974, the Employer filed a motion for reconsideration with the Board with respect to its denial of the request for review in view of the deci- sion of the United States Supreme Court in N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973). On February 15, 1974, the Board granted the Employer's motion for reconsideration of the Re- gional Director's Supplemental Decision and Certifi- cation of Representative with respect to Employer's Objection 3 involving the matter of Petitioner's waiv- er of initiation fees and denied the motion in all other respects. The Board remanded the case to the Regional Director for the purpose of conducting a hearing. The Hearing Officer was directed to issue a report, "returnable to the Board, containing findings of fact and resolutions of credibility to which the parties may file exceptions and briefs." The Board stayed the Certification of Representative pending further action. On April 19, 1974, the Hearing Officer issued his Report on Objections containing findings of fact. On 223 May 6, 1974, the Employer filed exceptions to the Hearing Officer's Report on Objections. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board finds: . 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. We find that the following employees constitute an appropriate unit for the_purposes of collective bargaining within the meaning of Section 9(b) of the Act: All sales representatives working out of the Employer's San Francisco, California, district office; excluding all other employees, office cler- ical employees, guards and supervisors as de- fined in the Act. 5. Objection 3 alleges that the Union coerced em- ployees into voting for it by offering to waive initia- tion fees and dues. On April 24, 1973, a "preliminary organizing" meeting attended by four sales representatives and three union officials was held. Petitioner's business manager, Barney Apfel, recommended, inter alia, that there be no initiation fees for the "charter group" and that whether or not they had an initiation fee and the amount of the fee could be determined by the full membership after they had a contract. The committee agreed to present this proposal along with the other proposals to their colleagues at a sub- sequent meeting. Three of the aforementioned four sales representa- tives subsequently held a meeting attended by all but one or two of the sales representatives of the Employer's San Francisco office. No union officials were present. In response to a question regarding ini- tiation fees, one of the committee members re- sponded that there would be no initiation fee al- though the membership could set initiation fees as it saw fit. Another meeting attended by almost all of the sales representatives and the executive board of the Union occurred on May 9, One employee made an inquiry concerning initiation fees. Business Manager 214 NLRB No. 27 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Apfel responded to the effect that there would be no initiation fees for the "charter member group" and that the decision to have initiation fees in the future would be made by the membership. Union authori- zation cards were distributed at or near the end of the meeting. The Hearing Officer found that Busi- ness Manager Apfel's statements concerning initia- tion fees occurred before any of the employees had signed cards or had become members of the Union. The petition was filed on May 16, 1973. By letter dated May 16, 1973, Apfel stated, inter alia, "There will be no initiation fees for the charter member group." A union's offer to waive initiation fees for the charter members of a new local, where the term "charter member" is ambiguous, is the kind of pre- election offer of waiver of initiation fees condemned by the Supreme Court in Savair, supra; Inland Shoe Manufacturing Co., Inc., 211 NLRB 724 (1974); The Coleman Company, Inc., 212 NLRB No. 129 (1974). Further, a prepetition offer to waive initiation fees is grounds for an objection to the election. See Gibson's Discount Center, a Division of Scrivner-Boo- gaart, Inc., 214 NLRB No. 22 (1974). While the Hearing Officer concluded that the "charter member group" consisted of all sales repre- sentatives of the Employer at the time of the organi- zation campaign and the period leading up to the election on August 10, this finding is based on the subjective intent of the union official who communi- cated the message whereas the proper consideration is the objective interpretation of the message by the employees. Inland Shoe, supra; The Coleman Compa- ny, supra. Where, as in the instant case, the prepeti- tion and postpetition message is ambiguous and sub- ject to a reasonable interpretation by the employees that they can avoid initiation fees by joining the Union prior to the election, then the message is ob- jectionable conduct. Accordingly, we shall sustain the Employer's Objection 3, set aside the election, and direct a second election. ORDER It is hereby ordered that Employer's Objection 3 be sustained, the election set aside, and a new elec- tion be held. IT IS FURTHER ORDERED that Case 20-RC-11393 be, and it hereby is, remanded to the Regional Director for Region 20 for the purpose of conducting a new election. [Direction of Second Election and Excelsior foot- note omitted from publication.]