Stone & Thomas

National Labor Relations Board - Board Decisions

Nov 21, 1975

221 N.L.R.B. 567 (N.L.R.B. 1975)

STONE & THOMAS 567
Stone & Thomas and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local Union No. 697. Case 6-CA-
6613
November 21, 1975
SUPPLEMENTAL DECISION AND
ORDER ON REMAND
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On July 3, 1972; the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Union No. 697, hereinafter called
the Union, filed a petition under Section 9(c) of the
National Labor Relations Act, as amended, for
certification as bargaining representative for a unit 'of
warehouse employees. Following a Board election in
Case 6-RC-6218 on January 31, 1973, the Union was
duly certified as the exclusive collective-bargaining
representative of Respondent's employees in the unit
found appropriate.
Upon a charge filed on March 15, 1973, by the
Union, and duly served on Stone & Thomas,
hereinafter called Respondent, the General Counsel
of the National Labor Relations Board, by the
Acting Regional Director for Region 6, issued a
complaint and notice of hearing on March 23, 1973,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act. On August 7, 1973, the Board issued a Decision
and Order' in which it found that by refusing to
bargain with the Union, Respondent had engaged in
and was engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act and
ordered that Respondent cease and desist therefrom
and take affirmative action to remedy such unfair
labor practices.
Thereafter, on October 3, 1973, the Board applied
to the United States Court of Appeals for the Fourth
Circuit for enforcement of its Order. On September
10, 1974, the court (502 ' F.2d 957) denied enforce-
ment and remanded the case to the Board to
redetermine whether the Union's preelection offer
1 205 NLRB 298.
2 N.L.R.B v. Savair Manufacturing Co, 414 U S. 270 (1973)
3 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversinghis findings.
4 Since we remanded the instant proceeding to the Regional Director
and ordered that a hearing be held before an Administrative Law Judge for
221 NLRB No. 101
violated the Savair rule,2 and the court found all
other objections to the election to be without merit.
On February 5, 1975, the Board ordered that a
hearing be held before an Administrative Law Judge
for the limited purposes as stated in the court's
opinion. On June 10, 1975, the Administrative Law
Judge issued a Supplemental Decision and Order in
which he found that the Union had not violated the
Savair rule and ordered Respondent to bargain, upon
request, with the Union. Thereafter, Respondent
filed exceptions to the Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the statements of
position and -the entire record in this proceeding,
and, for the reasons set forth below, hereby adopts
the findings,3 conclusions, and recommendations4 of
the Administrative Law Judge.
In remanding the proceedings to the Board, , the
court noted that prior to the election the Union had
promised the employees in the unit that if the Union
won the election the initiation fee would be reduced
from $50 to $1. Since the Supreme Court in Savair
held that an election must be set aside upon a
showing that the union in the course of its organizing
campaign had promised to waive initiation fees for
employees who signed authorization cards prior to
the election, the court here was concerned with the
possibility that the Union had interfered with the
employees' rights by buying "endorsements and
painting a false portrait of employee support during
the Union campaign." 5 We agree with the finding of
the Administrative Law Judge that the testimony
adduced at the hearing before him indicated that the
offer to reduce initiation fees from $50 to $1 was
extended to all employees, not only employees who
had signed authorization cards. Although there is
some ambiguity in the testimony as to the exact time
when the waiver would end and the employees would
be required to pay the regular initiation fee of $50,6 it
is clear that there would be a period after the election
in which the employees would have the opportunity
to join the Union at the reduced fee. The record is
devoid. of any evidence that the reduced fee was
contingent upon signing an authorization card or in
the limited purpose of determining whether the Union's preelection offer
violated the Savair ruling, we accept only the findings and conclusions of
the Administrative Law Judge with regard to this limited issue, but find it
unnecessary to consider additional findings, conclusions, or order
5 Savair, supra
6 There was testimony that the employees would only have to pay $1
"after the election was won and we joined in as a group," that there was a
grace period of 30 days after which the regular initiation fee would be
required, that the initiation fee "would have gone to $50.00 after we had a
contract," etc.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any way applying for union membership before the hereby orders that the Respondent, Stone & Thomas,
election. Wheeling, West Virginia, its officers, agents, succes-
An unconditional offer to waive initiation fees, sors, and assigns, shall cease and desist from certain
where the waiver offer is left open for some period of conduct and take affirmative action as ordered
time after the election, is not coercive and does not therein.
constitute an unfair labor practice. As we stated in
Endless Mold, Inc., 210 NLRB 159 (1974), "the
absence of [the condition that the waiver is contin-
gent upon support of the Union in any form during
the electoral campaign] avoids the creation of any
impression that employees who refrain from support-
ing the union would be penalized therefor in
comparison with those employees who support the
union during the electoral campaign." We find,
herein, that the waiver in the instant case, as in
Endless Mold, was available to all eligible voters in
the election, was optional before or after the election,
and was clearly not conditioned upon the expression
of support for the Union in any form during the
electoral process.
Although the record is somewhat vague as to
whether the waiver applied only to those employees
employed at the time of the election or extended to
employees hired shortly thereafter, we find that this
is not crucial consideration. In Endless Mold at 160,
fn. 4, we ' found that "the additional fact that the
Union, and its oral waiver of initiation fees, limited
the availability of that waiver to only those individu-
als who were employed when it was voted in could
not, in our view, be deemed to have affected the
election. Whatever the impact of such a limitation, it
is clear that it would only affect those employees
hired after the election who, in any event, could not
have participated in the election and could not have
had any effect on its outcome." Accordingly, we find
that the Petitioner's waiver did not interfere with
employee free choice in the election, that the election
should not be set aside, and that the certification of
representatives issued in Case 6-RC-6218 was
properly issued.
Based upon the foregoing, we reaffirm our findings
and conclusions set forth in our previous decision in
this case,7 that Respondent's admitted refusal to
recognize and bargain with the Union on and after
March 6, 1973, violated Section 8(a)(5) and (1) of the
Act, and we shall order Respondent to take the
action set forth in our Order issued in this proceeding
on August 7, 1973, which we find will effectuate the
policies of the Act.
ORDER ON REMAND
Upon the entire record in this case and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, the Board reaffirms its original Order
issued in this proceeding on August 7, 1973, and and the errors have been noted and corrected.
7 205 NLRB 298
SUPPLEMENTAL DECISION AND ORDER
BERNARD J. SEFF, Administrative Law Judge: On August
7, 1973, the National Labor Relations Board issued a
Decision and Order in which the Board found that by
refusing to bargain with the Union, certified by the Board
in Case 6-RC-6218 on January 31, 1973, Respondent had
engaged and was engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended, and ordered that
Respondent cease and desist therefrom and take certain
affirmative action to remedy such unfair labor practices.
Thereafter, on October 3, 1973, the Board applied to the
United States Court of Appeals for the Fourth Circuit for
enforcement of its Order. On September 10, 1974, the court
(502- F.2d 957) denied enforcement and remanded the case
to the Board to redetermine whether the Union's preelec-
tion offer violated the Savair rule. The Respondent and the
General Counsel thereafter submitted statements of posi-
tion with regard to the court's remand.
On February 5, 1975, the Board ordered that a hearing
be held before an Administrative Law Judge, for the
limited purposes as stated in the court's opinion.
Such hearing was held in Wheeling, West Virginia, on
April 15, 1975.
All parties appeared and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and
to introduce evidence. A brief was filed by Respondent
and oral argument was made by the General Counsel and
the attorney for the Union. Upon the entire record,' and
my observation of the testimonial demeanor of the
witnesses, I make the following:
I. FINDINGS AND CONCLUSIONS
A. The Court's Opinion
The court, in its decision, denied enforcement and
remanded the case to the Board to redetermine whether the
offer of the Union to reduce the initiation fee was a
violation of the Savair rule and was illegal within the
meaning of Sections 7 and 8 of the Act. The court stated at
958-959:
Sometime prior to the election the Union promised
the employees in the unit that if the Union won the
election the initiation fee would be reduced from $50 to
$1.
Savair held that an election must be set aside upon a
showing that the union in the course of its organizing
campaign had promised to waive initiation fees for
employees who signed "authorization" cards prior to
x Respondent's unopposed motion to correct the transcript is granted
STONE & THOMAS
the election . The, Savair Court reasoned that by
extending the offer only to those who signed before the
election, the union could "paint a false portrait of
employee support during its election campaign," .. .
thereby interfering with the employees' right under
section 7 of the Act to "refrain from any or all [union]
activities."
*
The problem here is an ambiguity in the Union's
preelection offer. Affidavits from employees submitted
by the Company to the Board contained the inconclu-
sive statement that a union official "stated that the
initiation fee for warehouse employees would be
reduced to $ 1.00 if the union won the election."
Yet, the` Union in a statement filed with the Board
asserted that:
Petitioner made and authorized no such offer to
the assembled workers. An offer to take in all
assembled workers at a reduced initiation fee is
the only offer that was made and the offer was
not tied in any way to the results of the election.
Respondent's Brief at 18-19 (emphasis added).
We cannot tell on this record whether the offer was
unlawfully selective. Certainly there is left open the
possibility that an offer was made in violation of the
.Savair rule . On remand the Board will redetermine
whether the election may have been coerced by an
unfair labor practice in light of Savair.
B. The Evidence
Respondent adduced testimony from three of the
Company's employees: Kenneth Clark, Mary Hudacek,
and George Coleman. The General Counsel produced one
witness, Bernard Britt, who was the Union's secretary-
treasurer.
The Union 's organizing campaign and the first meeting
with the employees took place on November 16, 1972. The
election took place on November 30, 1972. The record
reflects that on January 31, 1973, following a Board
election in Case 6-RC-6218 the Union was duly certified.
A second meeting took place approximately in February or
March 1973. There were approximately 25 of the Compa-
ny's employees who attended the meetings.
With respect to what was said by Britt regarding
initiation fees Clark testified:
and it was said that the $50, the Union's
initiation fees would be waived and it would be $1 if
the election was won and whoever, the ones that joined
up at that time would pay $50 rather than pay $1.
In cross-examination , by the Union, Clark went on to
say:
They said that anyone joining the Union, if the Union
won the election, that anyone who joined after that
anybody was hired and joined after that, after the grace
period, they would pay the full initiation.
569
Clark further testified that the grace period is 30 days.
Q. But at that meeting that was the offer even after
the election if someone joined, they paid $1,
A. No, sir, it was just the ones who were employed
at that time , not new employees.
Testimony of Mary Hudacek:
... one of our employees . . . asked if initiation fee
would be $50 and Mr. Britt, I'm almost positive, spoke
up and he said that when we joined in as a group if we
had won the election , we would join in as one group
and the initiation fee - and he pointed his finger -
would be $1. Anyone after that, the initiation fee would
be $50.
Q. Anyone after what?
A. After the election was won and we joined in as a
group and paid our $1, everyone after that coming in
would pay full amount of $50 and he pointed his finger
stating $1.
On cross-examination the General Counsel asked Huda-
cek:
Q. Now, if I understand you correctly and you
correct me if I don't have it right, if I understood you,
you say that he (Butt) in essence told you that those
people who joined the Union after the Union won the
election those employees who joined after the Union
won the election would be allowed to pay $1 initiation
fee?
A. That's correct.
Witness Coleman testified:
I understood that anybody who was employed after the
election and afterwards joined would have to pay $50.
JUDGE SEFF: Is that new employees?
A. Yes, new employees.
Britt, union secretary-treasurer, testified:
I told the employees that the initiation fee for all people
that was in the bargaining unitwhether we won or lost
the election would be $1.
Q. Was anything further said about those who
didn't join after the election?
A. Yes, after , we took the group in, the employees
that was in the bargaining unit at the time after we had
taken those people in , whatever time afterwards after
we got a contract and taken them in , whoever was in
the unit at the time would come in for $1 and anyone
who came in after that time would have been $50.
JUDGE SEFF: The group that you took in, were they
people who were present at the meeting and people
who were not present but all of the employees of the
bargaining unit?
A. Yes, sir.
JUDGE SEFF: And when did the fee go to $50?
A. After - well, we'd never taken anyone in but it
would have gone to $50 after we had a contract,
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
something that we could have represented the people
with. Then it would have gone to $50.
While the record is not altogether free from doubt, a
compendium of those'parts of the mutually corroborated
testimony, on facts closely parallel to the instant case, B.
F. Goodrich Tire Company, a Division of the B. F. Goodrich
Company, 209 NLRB 1175, 1176 (1974), the Board held:
... the Employer objected to certain conduct by the
Petitioner which it felt interfered with the employees'
free choice in the election. In his investigation, the
Regional Director found that the Petitioner had told
the employees that after the election they would be
permitted to join the Union for a fee of $10 instead of
the standard $50 initiation fee. The Petitioner's secre-
tary-treasurer admitted that he told the employees they
could join'at this reduced rate, as it was the Union's
standard practice to accept new groups of employees at
the lower rate.
We see nothing in the Petitioner's conduct which is
objectionable under Savair, supra. The practice of
offering special reduced rates during an organizational
campaign has long been one of the Union's traditional
methods of enhancing its appeal to employees. We
have never found such conduct to be objectionable
where, as here, it was an unconditional offer not
dependent -upon how an employee voted: Neither do
we feel that this position is affected by the Supreme
Court in Savair. In forbidding ' the union offer of
reduction or elimination of initiation fees on condition
the employee sign an authorization card-prior to the
election, the Supreme Court denied unions the right to
"buy endorsements and paint a false portrait of
employee support during the election campaign" .. .
Thus, where a union offered to waive its initiation fees
for all 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.
The language of the B. F. Goodrich case involves a
factual situation closely analagous to the case at bar. The
Supreme Court in its Savair decision pointed out- that
union interests could legitimately be served by offering the
waiver to, all employees - whether they sign, up before or
after the election. The Court goes on to say:
It'is, well established that an "unconditional" offer to
waive initiation fees, where`the waiver offer is left open
for ! some period of time after the election, -is not
coercive and does not constitute an 'unfair 'labor
practice.
This distinction has since been followed by the Board in
the B. F. Goodrich Tire Co., cited, supra.
The further point raised by the Fourth Circuit Court
decision in Stone & Thomas refers to an ambiguity in the
Union's offer to waive initiation fees and therefore might
be unduly selective. The testimony of the witnesses clarifies
this matter' by stating that the offer was made to all the
employees in the bargaining unit. Based on the above, I
find and conclude that the Union's offer is not violative of
the,Savair,rule.
II. THE UNFAIR LABOR PRACTICES
- A. The Representation Proceeding
1. The unit
The following employees of the Respondent constitute a
unit appropriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act:
All,full-tune and regular part-time furniture warehouse-
men and central receiving department employees at the
Employer's Lane A warehouse , on 4th Street, Wheeling,
West Virginia , including all receiving dock employees,
checkers , order checkers , claim clerk, receiving, record
clerk, and markers , but excluding all carpet workroom
employees and guards , professional employees, and
supervisors as defined in the Act.
2. The certification
On November 30, 1972, a majority of the employees of
Respondent , in , said unit , in a secret-ballot election
conducted under the supervision of the Regional Director
for Region 6, designated the Union as their representative
for the purpose of collective bargaining with the Respon-
dent. The Union was certified . as the collective-bargaining
representative of the employees in said unit on January 31,
1973, and the Union continues to be such exclusive
representative within the meaning of, Section 9(a) of the
Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 6, 1973, and at all times
thereafter, the Union has requested the Respondent to
bargain collectively with it as the exclusive collective-
bargaining representative of all the employees in the
above-described unit. Commencing on .or about March 6,
1973, and continuing at all times thereafter to date; the
Respondent has refused, and continues to refuse, to
recognize' and bargain with the Union as the exclusive
representative for collective bargaining of all employees in
said unit.
Accordingly, we find that the Respondent has, since
March 6, -1973, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit,
and that; by such refusal, Respondent has engaged in and
is engaging in unfair labor practices within the medning of
Section 8(a)(5) and (1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
STONE & THOMAS 571
IV. THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair"labor practices within the meaning of
Section 8(a)(5) and`(1) of the Act, we shall order that it
cease and desist therefrom, and, upon request, bargain
collectively with the Union as the exclusive representative
of all employees in the appropriate unit, and, if an
understanding is reached, embody such understanding in a
signed agreement.
In order to insure that the employees in the appropriate
unit will be accorded the services of their selected
bargaining agent for the period provided by law, we shall
construe the initial period of certification as beginning on
the date Respondent commences to bargain in good faith
with the Union as the recognized bargaining representative
in the appropriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A.
5, 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Company, 149 NLRB 1419, 1421 (1964), enfd.
350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts and the
entire record, makes the following:
CONCLUSIONS OF LAW
1. Stone & Thomas is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No.
-697, is a labor organization within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time furniture ware-
housemen and central receiving department employees at
the Employer's Lane A warehouse on 4th Street, Wheeling,
West Virginia, including all receiving dock employees,
checkers, order checkers, claim clerk, receiving record
clerk, and markers, but excluding all carpet workroom
employees and guards, professional employees, and super-
visors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since January 31, 1973, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about March 6, 1973, and at all
times thereafter, to bargain collectively with the above-
named labor organization as the exclusive bargaining
representative of all the employees of Respondent in the
appropriate unit, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
6. By the aforesaid refusal to bargain, Respondent has
interfered with, restrained, and coerced, and is interfering
with, restraining, and coercing, employees in the exercise of
the rights guaranteed them in Section 7 of the Act, and
thereby has engaged in, and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
ORDER2
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Relations
Board hereby orders that Respondent; Stone & Thomas,
Wheeling, West Virginia, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of
employment with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
Union No. 697, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All full-time and regular part-time furniture warehouse-
men and central receiving department employees at the
Employer's Lane A warehouse on 4th Street, Wheeling,
West Virginia, including all receiving dock employees,
checkers, order checkers, claim clerk, receiving record
clerk, and markers, but excluding all carpet workroom
employees and guards, professional employees, and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive representative of all employ-
ees in the aforesaid appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions of
employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its Lane A warehouse on 4th Street, Wheeling,
West Virginia, copies of the attached notice marked
"Appendix." 3 Copies of said notice, on forms provided by
the Regional Director for Region 6, after being duly signed
by Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
3 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order , what steps have
been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES _
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with the Internation-
al Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, Local Union No. 697.
WE WILL. NOT in any like or related manner interfere
with our employees in their right , to organize and
bargain collectively , or to refrain from such activities.
WE WILL, upon request, bargain collectively with the
above Union as the exclusive bargaining representative
of the employees described below and sign an agree-
ment if an understanding is reached . The employees
whom the above Union represents and who compro-
mise an appropriate unit are:
All full-time and regular part-time furniture
warehousemen and central receiving department
employees at the Employer 's Lane A warehouse
on 4th Street, Wheeling, West Virginia , including
all receiving dock employees , checkers, order
'checkers , claim clerk , receiving record clerk, and
markers, but excluding all carpet workroom
employees ' and guards, professional employees,
and supervisors as defined in the Act.
STONE & THOMAS