The Coleman Co., Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1974

212 N.L.R.B. 927 (N.L.R.B. 1974)

THE COLEMAN CO., INC. 927
The Coleman Company, Inc. and Viola Clark, Peti-
tioner and International Union of District 50, Allied
and Technical Workers of the United States and
Canada
The Coleman Company, Inc. and Sheet Metal Work-
ers' International Association, AFL-CIO, Peti-
tioner. Cases 17-RD-449 and 17-RC-6767
August 16, 1974
DECISION, ORDER, AND DIRECTION OF
THIRD RUNOFF ELECTION
Pursuant to a Decision, Order, and Direction of
New Runoff Election issued by the National Labor
Relations Board on June 1, 1973 (203 NLRB 1056),
a new runoff election was conducted on August 30
and 31, 1973, under the direction and supervision of
the Regional Director for Region 17. At the conclu-
sion of the election, the parties were furnished a tally
of ballots in accordance with National Labor Rela-
tions Board Rules and Regulations, which showed
that, of approximately 1,352 eligible voters, 636 cast
their ballots for, and 561 against, Sheet Metal Work-
ers' International Association, AFL-CIO (the Peti-
tioner in Case 17-RC-6767),' 4 were challenged, and
6 were void. The challenged ballots were not sufficient
to affect the election results. Thereafter, both the Em-
ployer and the decertification Petitioner filed separate
timely objections to conduct of the election and to
conduct affecting the results of the election.
The Regional Director conducted an investigation
and, on September 21, 1973, issued an order directing
a hearing and notice 'of hearing. A hearing was held
before Administrative Law Judge Robert Cohn on
October 29 and 30, 1973. All parties appeared and
were given full opportunity to examine and cross-
examine witnesses, introduce evidence, argue orally,
and file written briefs. On January 23, 1974, the Ad-
ministrative Law Judge issued and duly served on the
parties his Report on Objections in which he recom-
mended that objections of the Employer and of the
decertification Petitioner be sustained on the basis' of
a preelection offer by the Petitioner to waive initiation
fees for those employees who make application for
charter membership; all remaining objections to the
election or to conduct affecting the results of the elec-
tion be overruled; and a new runoff election be con-
ducted. Thereafter, the Employer filed exceptions to
the Administrative Law Judge's report and a support-
ing brief. The Petitioner filed exceptions to the report,
with a supporting brief, and it also filed a brief in
answer to exceptions filed by the Employer.
The Board has reviewed the rulings of the Adminis-
trative Law Judge made at the hearing and finds they
are free from prejudicial error. They are hereby af-
firmed. The Board has considered the Administrative
Law Judge's report, the exceptions and briefs, and the
entire record in this proceeding, and hereby adopts
the findings, conclusions, and recommendations of
the Administrative Law Judge as modified herein.
In adopting the Administrative Law Judge's con-
clusions, we are not adopting his rationale insofar as
it relates to Petitioner's offer to waive initiation fees.
That offer was contained in a letter to the employees
from the Petitioner about 2 weeks before the election.
Fully set forth in the Administrative Law Judge's re-
port, the letter tells the employees that they will have
their own local union if they vote "YES" in the elec-
tion. It advises that they will not have to pay any dues
until a contract has been signed with the Company.
However, with respect to the,matter of initiation fees,
it reads: "You will not-pay any initiation fee. The
initiation fee will be waived for all present employees
who make application for charter membership in your
new local union." This offer to waive initiation fees
must be held an interference with the election under
the Supreme Court's holding in N.L.R.B. v. Savair
Manufacturing Co.,' that a union interferes with em-
ployees' Section 7 rights to refrain from union activi-
ties when it offers to waive initiation fees for those
who sign union cards before the election.
In the instant case, the promise of benefit is extend-
ed in terms which lack a critical detail. For nowhere
in the letter does it appear when the employees to
whom it was sent must make their "application for
charter membership" in order to be eligible for the
waiver. It is explicit as to when the employees will be
obligated to pay their union dues, which is after a
contract has been signed with the Company, and
when they will be covered by life and dismemberment
insurance, which is when they pay their first month's
dues. But it does not specify when the "application for
charter membership" must be made. Indeed, the term
"charter membership" itself is not even defined and
that compounds the confusion. For sure, the employ-
ees may not wait until the contract is signed; obvious-
ly, an earlier point in time is contemplated. Our
dissenting colleagues are of the opinion that the dead-
line is when the local union which is to serve the
employees is formed and that all who join by then will
not need to pay an initiation fee. But even assuming
that the requirement of an application for charter
membership is susceptible of the interpretation, that
is not the only construction that is permissible; and
International Union of Ihstnct 50, Allied and Technical Workers of the therein lies the difficulty with the dissent. In Inland
United States and Canada, the incumbent Union, did not appear on the
ballot in the new runoff election , and is no longer a party to this proceeding. 2 414 U.S. 270 (1973)
212 NLRB No. 129
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shoe Manufacturing Co., Inc.,' where a union leaflet
promised that "There are no initiation fees for charter
members of a new local (and that is what you would
be)[.] Monthly dues will start when a new contract has
been made with the Company," the Board held: "We
find that the employees who read Petitioner's leaflet
could reasonably have concluded that it was to their
benefit to join Petitioner before the election-to come
in at the ground floor-to avoid the possibility of
having to pay initiation fees later." We think that the
requirement in the case before us of an application for
charter membership is at the least equally ambiguous
and just as susceptible of an interpretation by the
employees that it is to their benefit to make a union
commitment before the election, and thereby "come
in at the ground floor," to avoid paying the initiation
fee. If the letter was not intended to be thus read, it
was Petitioner's duty, as explained in Inland Shoe
Manufacturing Co., Inc., "to clarify that ambiguity or
suffer whatever consequences might attach to em-
ployees' possible interpretations of the ambiguity."
In the circumstances, and for the reasons more fully
explicated in the Inland Shoe Manufacturing Co. case,
we conclude that Petitioner's offer of a waiver of initi-
ation fees to those who apply for charter membership
is the kind of preelection offer condemned by the
Supreme Court in Savair.
ORDER
It is hereby ordered that the election conducted
herein on August 30 and 31, 1973, be and it hereby is,
set aside.
[Direction of Third Runoff Election and Excelsior
footnote omitted from publication.]
MEMBERS FANNING AND JENKINS, dissenting:
In agreement with our colleagues we would not
adopt the Administrative Law Judge's rationale inso-
far as it relates to Petitioner's offer to waive initiation
fees. Our colleagues however conclude that that offer
was nevertheless objectionable as it was ambiguous as
to whether it was available to employees after the
election. We cannot agree.
The offer to waive initiation fees was contained in
a letter sent to the Coleman employees on August 18,
just 12 days prior to the start of the August 30 to 31
second runoff election. The letter is set forth in full in
the Administrative Law Judge's report. In terms
which seem quite clear to us it informs employees that
if the Union wins the election the Coleman employees
will have their own local, that its number will be 304,
and that present employees will not be required to pay
'211 NLRB No . 73 (1974).
an initiation fee if they join when the local is formed.
Thus, in relevant part , the letter initially states that
information has been received from the Washington
office as to the local union number "you will have
when you are certified as a bargaining unit under the
Sheet Metal Workers . The title of your union will be
Sheet Metal Workers International Association Local
Union 304, AFL-CIO." The letter then goes on to
describe in several paragraphs what will happen un-
der Local 304. The offer to waive initiation fees is
described in the initial of these paragraphs , as follows:
You will not-pay any initiation fee . The initia-
tion fee will be waived for all present employees
who make application for charter membership in
your new local union.
The next paragraph reads:
You will not-have to pay any union dues until
a contract has been signed by both the company
and the union.
Near the end of the letter is included the statement:
Remember by voting yes in your election you will
have your own local Union.
At all times the letter is describing what will happen
if the Union wins the election. All present employees
who join Local 304 when it is formed will not be
required to pay initiation fees. Since the local will not
be formed until after the election, it is clear that the
Union is making the offer to all employees and not
just to employees who join prior to the election. Such
an offer is not objectionable. N. L. R. B. v. Savair Man-
ufacturing Co., 414 U.S. 270 (1973); Irwindale Division,
Lau Industries, A Division of Phillip Industries, Inc.,
210 NLRB 182 (1974).
Our colleagues focus on the words "charter mem-
bership" in reaching their conclusion, citing. Inland
Shoe Manufacturing, 211 NLRB No. 73 (1974). As
indicated in that case the use of the term must be
considered in its total context. In Inland the term was
used in circumstances which include an appeal to em-
ployees to sign cards. Our colleagues determined that
employees who read the leaflet could reasonably con-
clude that it was to their benefit to join petitioner
before the election to avoid the possibility of having
to pay initiation fees later. In the instant case the term
is simply used to indicate that the waiver will not be
granted indefinitely but may be limited to those em-
ployees who join when the local is initially formed
after the election. Since the waiver is to be available
THE COLEMAN CO., INC. 929
to all who join at that time, employees could not terms of initiation fees by joining prior to the election.
reasonably conclude they had anything to gain in We would certify the Union as the collective-bar-
gaining representative.