Polynesian Hospitality

National Labor Relations Board - Board DecisionsApr 8, 1976

223 N.L.R.B. 768 (N.L.R.B. 1976)

768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kobayashi Travel Service d/b/a Polynesian Hospitali- ty and Hawaii Teamsters & Allied Workers, Local 996, Petitioner. Case 37-RC-2156 April 8, 1976 DECISION AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS , PENELLO, AND WALTHER Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended, a three- member panel has considered the objection to an election held on October 31, 1976,l and the Hearing Officer's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and briefs, and hereby adopts the Hearing Officer's findings and recommendations, as modified herein. In its objection the Employer alleged that the Peti- tioner improperly offered to waive initiation fees for employees who joined the Union prior to the elec- tion. Pursuant to the Regional Director's Report on Objections a hearing was held on January 8, 1976, by Hearing Officer Raymond D. Willms. The parties stipulated that on or about October 29, 1975, a meeting was conducted by Richard Collier and Harold DeCosta, representatives of the Peti- tioner, at the employees' lounge on the Employer's premises . DeCosta and Collier each spoke to the 10- 15 employees. At the end of the meeting, James Nho- mi, an employee, raised a question about the amounts of the Petitioner's initiation fees and dues. Nhomi testified that Collier responded as follows: Well, he told us that initiation fees would be $100; then he added that if we went vote for on the election day, vote for the union, then that initiation fee was waived, the first month's monthly due, that is. He said it would be nine fifty a month, but the first month's due becomes the initiation fee, and whoever joins the union after the election, they have to pay that $100. Asked to repeat what Collier had said, Nhomi testi- fied, "he said the initiation fee is $100, but everybody go vote for the union, you don't have to pay the initi- ation fee," and that anyone who joins after the elec- tion must pay the initiation fee. The Hearing Officer credited Nhomi's testimony. The Petitioner, in its brief to the Board, contends that Collier's statement means, "If everybody voted for the Union, if the Union was successful in the election, then the employees would not have to pay initiation fees, but the first month's dues would be the initiation fees . Thereafter, new employees would be assessed initiation fees." The Employer, in its an- swering brief, contends that the statement is tainted under N. L. R. B. v. Savair Manufacturing Company, 414 U.S. 270 (1973), because it is "clearly an attempt to buy the votes of the employees in attendance at the meeting...." In Savair, supra, the Supreme Court held that a union interferes with an election when it offers to waive initiation fees only for those who join the union before the election. The Court was concerned with the Section 7 right of employees to refrain from union activity and with the buying of endorsements through the waiver of initiation fees to those joining before the election and thereby painting a false por- trait of employee support. The Court, while recogniz- ing a legitimate interest in waiving fees, stressed that there is no legitimate union interest which justifies limiting waiver offers to those signing cards prior to the election. In the instant case, Collier's answer to Nhomi's question about fees failed to indicate that the waiver was not conditioned upon support for the Union during the election campaign and that it was avail- able both before and after the election. To the con- trary, the credited testimony unambiguously indi- cates that Petitioner's representative stated that initiation fees would be waived if employees voted for the Union and after the election employees would have to pay $100. Thus, we find that the statement, viewed as a whole,2 conditions waiver of initiation fees on preelection support of the Union and is the kind of preelection waiver found objectionable in Sa- vair. Accordingly, we shall sustain the Employer's objection, set the election aside, and direct a second election. [Direction of Second Election and Excelsior foot- note omitted from publication.] 1 The election was conducted pursuant to a Stipulation for Certification 2 Since Petitioner's position on the waiver of initiation fees is evidenced Upon Consent Election . The tally was I I for , and 9 against , the Petitioner : by Collier's statement in its entirety, we find it unnecessary to consider the there were no challenged ballots. statement in separate parts as did the Hearing Officer. 223 NLRB No. 89