Scrivner- Boogaart, Inc.

National Labor Relations Board - Board DecisionsOct 23, 1974

214 N.L.R.B. 221 (N.L.R.B. 1974)

GIBSON'S DISCOUNT CENTER Gibson 's Discount Center, A Division of Scrivner- Boogaart , Inc. and Retail Clerks Union , Local No. 73, Retail Clerks International Association, AFL- CIO, Petitioner . Case 16-RC-6287 October 23, 1974 DECISION AND ORDER Pursuant to a Stipulation for Certification Upon Consent Election, a secret ballot election was con- ducted on June 7, 1973, among the employees in the stipulated unit.' The tally of ballots furnished the parties showed that, of approximately 43 eligible vot- ers, 37 cast ballots, of which 22 were for, and 15 were against, the Petitioner. On June 13, 1973, the Em- ployer filed timely objections to the election. On July 9, 1973, the Acting Regional Director is- sued and served on the parties his Report on Objec- tions recommending that Petitioner's objections be overruled in their entirety and that a certification of representative issue. Thereafter, the Employer filed timely exceptions to the Acting Regional Director's report and the Petitioner filed a brief in opposition to the Employer's exceptions. On October 25, 1973, the Board issued a Decision and Certification of Repre- sentative adopting the Acting Regional Director's recommendations and certifying the Petitioner as the exclusive representative of the employees in the unit found appropriate. On November 19, 1973, the Employer filed a mo- tion to reconsider and on December 26, 1973, the Employer also filed a supplement to its motion to reconsider on the basis of the Supreme Court's deci- sion in N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973). On February 26, 1974, the Board granted the Employer's motion to reconsider and or- dered that the case be remanded to the Regional Di- rector for a hearing with regard to the Savair issue. Thereafter, a hearing was held before Hearing Offi- cer Joe E. Pearce. All parties appeared and partici- pated in the hearing. On May 29, 1974, the Hearing Officer issued his Report on Objections. On June 11, 1974, the Employer filed timely exceptions to the Hearing Officer's Report on Objections and a sup- porting brief. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. The Board has considered the Hearing Officer's re- port and the Employer's exceptions and brief and hereby adopts the Hearing Officer's findings, conclu- All regular full-time and regular part-time employees of Gibson's Dis- count Center, 901 East Sixth. Stillwater, Oklahoma. excluding office clerical employees, pharmacy employees, and supervisors. 221 sions, and recommendations, except as noted below. Employee Florence Sharpton testified that Union Business Representative Mark Dellay stated at a union meeting in mid-April 1973 that initiation fees would be waived if employees signed authorization cards before the election. The Hearing Officer found that this meeting occurred on April 13, 1973. Employee Jewel Ross testified that she attended the same meeting as Sharpton and that Mark Dellay said that those employees who had not signed an au- thorization card before the Union was voted in, if it was, would have to pay an initiation fee. Employee Troy L. Brazell, Jr., testified that Dellay discussed initiation fees at a union meeting in mid- April 1973 and said that if employees signed a card before the election they would not have to pay the $25 initiation fee, but otherwise they would have to pay it. Brazell also testified that Dellay made the same statement at subsequent meetings, the dates of which he could not remember. The petition was filed on April 18, 1973. Dellay testified that he had never predicated the waiver of initiation fees upon the signing of an au- thorization card prior to the election and that it is the policy of the Petitioner to waive initiation fees for everyone who is employed by an employer at the time the initial contract is signed regardless of wheth- er they had signed an authorization card or not. Petitioner's Exhibit I, an initiation fee waiver certifi- cate, corroborates this testimony. Eighteen other witnesses called by the Petitioner testified without exception that Dellay had never said at any meeting that employees must sign an authori- zation card prior to the election in order to have their initiation fee waived. Rather, all 18 testified that Del- lay said that there would be no initiation fee for those who were employed by the Employer when a contract was signed. The Hearing Officer concluded that Brazell at- tended the same meeting that Sharpton and Ross had attended, and that it occurred on April 13, 1973, be- fore the petition was filed, and therefore that the con- duct complained of would not justify setting aside the election, citing Ideal Electric and Manufacturing Company, 134 NLRB 1275 (1961). The Hearing Offi- cer also credited Petitioner's witnesses over those of the Employer based on demeanor and documentary evidence. Contrary to the conclusion of the Hearing Officer, we find that a prepetition offer to waive initiation fees in contravention of Savair, supra, is ground for setting aside an election. Since a union must have authorization cards from at least 30 percent of the employees in the bargaining 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit prior to the filing of the petition ,2 most solicita- tions to sign authorization cards occur prior to the filing of the petition. Therefore, it would severely cir- cumscribe the doctrine of Savair to limit application to postpetition waiver of initiation fees. In Savair the Supreme Court considered the fact that 28 employees signed cards prior to the filing of the petition (414 U.S. at 273, fn. 4): The Court of Appeals read the Hearing Examiner's Report to state that the waiver was limited to those signing up before the election, as do we. Such a reading is amply supported by the evidence in the record. . . . The record demonstrates the pressure which employees felt to sign up with the Union quickly, before the election and perhaps even before the representa- tion petition itself was filed, a pressure utterly inconsistent with,a belief that a waiver would be available to them up to the time a collective- bargaining agreement was signed after the elec- tion. It is also supported by the fact that 28 indi- viduals signed up with the Union before the election petition was filed with the Board on Au- gust 12, 1970, and apparently an additional sev- en or eight signed up before the September 22, 1970, election. Further , the Court observed (414 U.S. at 277): Union before the election petition was filed with the Board and either seven or eight more who signed up before the election. . . . Accordingly, we find that a prepetition offer to waive initiation fees as condemned in Savair is ground for a valid objection to an election.' However, in this case the Hearing Officer credited the testimony of the Petitioner's witnesses over those of the Employer based in part on demeanor evi- dence. Moreover, the documentary evidence sup- ports the Hearing Officer's resolutions. We therefore adopt them. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). As Petitioner's offer to waive initiation fees was for all employees of the Employer employed at the time the contract was signed it did not interfere with the employees' free choice in the election. N. L. R. B. v. Savair Manufacturing Company, supra; Irwindale Di- vision, Lau Industries, a Division of Phillips Industries, Inc., 210 NLRB 182 (1974); First Health Care Corpo- ration d/b/a Hanford House Health Care, 210 NLRB 188 (1974). Accordingly, we shall overrule this objec- tion. The Hearing Officer correctly noted that the.Peti- tioner had received a majority of votes cast in the election but then erroneously recommended that a certification of results of election issue. Since the Board has already certified the petitioner as bargain- ing representative, we find it unnecessary to repeat the certification. By permitting the union to offer to waive an ini- tiation fee for those employees signing a recog- nition slip prior to the election, the Board allows the union to buy endorsements and paint a false portrait of employee support during its election campaign. That influence may have been felt here for, as noted, there were .28 who signed up with the 2 National Labor Relations Board Rules and Regulations . Series 8, as amended, Sec . 101.18; see also Sec. 9(c)(I)(A) of the Act. ORDER It is hereby ordered that the Employer's objections to the election be, and they hereby are, overruled. 3 While we conclude that a prepetition offer to waive initiation fees as condemned in Savair is ground for an objection to an election , we note that this is not only because of the unique circumstances connected with prepeti- tion waivers , but also because of the Supreme Court's holding in Savair. We want to emphasize that we do not otherwise intend any broad departure from the Ideal Electric rule.