A.G.S. Graphics, A Division of George Lithographic Co.

National Labor Relations Board - Board Decisions

Jul 20, 1982

262 N.L.R.B. 1071 (N.L.R.B. 1982)

A.G.S. GRAPHICS
A.G.S. Graphics, A Division of George Lithographic
Co. and Graphic Arts International Union,
Local #280, Graphic Arts International Union,
AFL-CIO, Petitioner. Case 20-RC- 15021
July 20, 1982
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Pursuant to a Stipulation for Certification Upon
Consent Election, an election was conducted on
May 2, 1980, under the direction and supervision of
the Regional Director, among the employees in the
unit as agreed on by the parties. ' The tally of bal-
lots furnished the parties at the conclusion of the
election showed that, of approximately 68 eligible
voters, 31 cast ballots for and 25 cast ballots
against the Petitioner; there were 3 challenged bal-
lots, which were not sufficient in number to affect
the results of the election. Thereafter, the Employ-
er filed timely objections to conduct affecting the
results of the election.
Pursuant to the Board's Rules and Regulations,
Series 8, as amended, the Regional Director con-
ducted an investigation, and on June 19, 1980,
issued her Report on Objections in which she rec-
ommended that Employer's Objections I through
16 and 19 through 37 be overruled. She found,
however, that Objections 17 and 18 raised substan-
tial and material issues of fact which could best be
resolved by a hearing. On August 27, 1980, the
Board issued its Decision and Order Directing
Hearing in which the Board adopted the Regional
Director's recommendation that a hearing be con-
ducted on the issues raised by Objections 17 and
18.2
Thereafter, pursuant to the Regional Director's
order, a hearing was held before Hearing Officer
Walter L. Kintz. On December 12, 1980, the Hear-
ing Officer issued his report in which he concluded
that while "the Union may have made impermissa-
bly [sic] ambiguous offers to waive initiation fees
during 'an organizing drive' that ambiguity was
cured by the Petitioner's written pre-election com-
munication to the employees .... " He therefore
recommended that these objections be dismissed. In
so doing, the Hearing Officer found it unnecessary
to make credibility resolutions concerning the testi-
mony of three of the Petitioner's witnesses. There-
after, the Employer filed timely exceptions to the
I The unit is: All production and maintenance employees employed by
the Employer at its 217 Second Street, San Francisco, California, facility;
excluding all office employees, all office clerical employees, guards and
supervisors as defined in the Act.
2 That decision was not reported in the bound volumes.
262 NLRB No. 137
Hearing Officer's report and, on July 22, 1981, the
Board issued its Order Remanding the Proceeding
to resolve these issues of credibility and thereby to
determine, "whether at the Union's organizing
meetings before the election Union representatives
stated that the waiver of initiation fees would
extend beyond the election to an initial contract."
On August 19, 1981, the Hearing Officer issued his
Supplemental Report on Objections in which he
found that the testimony of witnesses Hammann,
Peterson, and Pappert did not support the finding
that union representatives stated that the waiver of
initiation fees extended to the time when an initial
contract was signed. Nevertheless, the Hearing Of-
ficer concluded that the analysis in his previous
report remained valid and reaffirmed his recom-
mendation that Objections 17 and 18 be "dis-
missed." The Employer filed exceptions to the
Hearing Officer's Supplemental Report on Objec-
tions and a supporting brief, and the Petitioner filed
limited exceptions to the supplemental report.
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.
We have considered the Hearing Officer's re-
ports, the exceptions and briefs, and the entire
record in this case, and hereby adopt the Hearing
Officer's findings3 and recommendations. Accord-
ingly, we shall issue a Certification of Representa-
tive.
The essential facts are as follows. At the union
meetings held in mid-February and on February
23, 1980, 4 various union officials told the employ-
ees that the initiation fees would be waived for em-
ployees who signed cards or joined the Union
during the "organizing drive."5 Thereafter, on
March 21 and April 3, after most of the unit em-
ployees had signed authorization cards or union
membership applications, the Union distributed let-
ters to the unit employees which stated the follow-
ing:6
Anyone who is as yet not a member and has
not gotten their membership card is invited to
s The Petitioner and Employer except to various findings of the Hear-
ing Officer on the ground that he erred in discrediting certain testimony.
It is the established policy of the Board not to overrule a hearing officer's
credibility resolutions, unless the clear preponderance of all the relevant
evidence convinces us that the resolutions are incorrect The Coca-Cola
Bottling Company of Memphis. 132 NLRB 481. 438 (1961); Stretch-Tex
Co., 118 NLRB 1359, 1361 (1957). We find insufficient basis for disturb-
ing the credibility resolutions in this case.
4 All dates herein refer to 1980 unless otherwise specified.
6 The Hearing Officer found inconclusise the evidence introduced
with respect to the union meetings which took place on March 23 and
shortly before the election.
6 Except for a different meeting date. the letters distributed on March
21 and April 3 are identical
1071
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attend a meeting on [respective day, time and
place]. The purpose of the meeting is to get
you your membership cards and to take the
oath. Many of you already are sworn in but
others did not have the opportunity to do so
as yet.
There are no fees and nothing to pay until we
have a contract after the election is won.
The Employer contends that the offer made by
the Petitioner at the February union meetings to
waive initiation fees for unit employees who signed
authorization cards or joined the Union during
"the organizing drive" is impermissible under the
Supreme Court's decision in N.L.R.B. v. Savair
Manufacturing Company, 414 U.S. 270 (1973), and
that it was not cured by the letters distributed to
the unit employees by the Union on March 21 and
April 3.
The Hearing Officer found, and we agree, that
the offer to waive initiation fees during an "orga-
nizing drive" is ambiguous with respect to the prin-
ciples established in Savair.7 However, he further
found, and we agree, that Board cases interpreting
and applying the Savair decision permit clarifica-
tion and repudiation of impermissible waivers of
initiation fees,8 and that the letters distributed to
the unit employees by the Union on March 21 and
April 3 clarified the Union's ambiguous offer to
waive such fees.9
Our dissenting colleague has placed great empha-
sis on the wording of the first paragraph of the let-
ters which appears to direct the letters to those
who had already joined the Union. However, this
conclusion ignores that the letters were sent to all
the unit employees, and that any doubts or ambigu-
ities raised by the first paragraph of the letter were
effectively clarified and raised by the letter's last
paragraph which clearly states, "There are no fees
and nothing to pay until we have a contract after the
election is won." (Emphasis supplied.) The balance
of the letter was simply a reference to a union rally
meeting where administrative details would be ad-
dressed and additional memberships would be solic-
7 Western Refrigerator Co.., Subsidiarv of the Hobart Manufacturing Co.,
213 NLRB 227 (1974).
8 See, e.g., Polyflex M Company, 260 NLRB 1146 (1982), and 258
NLRB 806 (1981): Firestone Steel Products Company, a Division of Fire-
stone Tire and Rubber Company, 235 NLRB 548 (1978); Rounsaville of
Tampa, Inc.. 227 NLRB 1079 (1977); Peabody Solid Waste Management
De'Wald, 214 NLRB 817 (1974). Western Refrigerator Co., supra; see also
Smith Company of Cahfornia Inc., 215 NLRB 530 (1974).
9 Unlike our dissenting colleague, we would put no onus on the Union
to also show that the employees who had earlier signed cards had reaf-
firmed these actions after this clarification. See, e.g., Polyflex M, supra, in
which our dissenting colleague joined us in finding a sufficient clarifica-
tion without recourse to this consideration or, which he now places reli-
ance.
ited, and was not the fatal "ambiguity" on which
the dissent places so much stress.
Accordingly, the Employer's Objections 17 and
18 are hereby overruled.
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Graphic Arts Interna-
tional Union, Local #280, Graphic Arts Interna-
tional Union, AFL-CIO, and that pursuant to Sec-
tion 9(a) of the Act the foregoing labor organiza-
tion is the exclusive representative of all the em-
ployees in the following appropriate unit for the
purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment:
All production and maintenance employees
employed by the Employer at its 217 Second
Street, San Francisco, California, facility; ex-
cluding all office employees, all office clerical
employees, guards and supervisors as defined
in the Act.
MEMBER ZIMMERMAN, dissenting:
I find that the Petitioner's offer to waive initi-
ation fees during the "organizing drive" is imper-
missible under the Supreme Court's decision in
N.L.R.B. v. Savair Manufacturing Company, 414
U.S. 270 (1973), and, contrary to the majority, that
the letters distributed to the unit employees by the
Union on March 21 and April 3, 1980, did not cure
the deficiency.
Both letters sent by the Union began with an in-
vitation to employees who had not received mem-
bership cards to attend a meeting where they
would receive the cards and take the oath of mem-
bership. Thus, the letters were not directed to all
employees. They were not addressed to those em-
ployees who became union members in response to
the previous objectionable offers of waiver.' 0 This
fatally impairs the effectiveness of the letters as a
clarification of the ambiguity. In those cases relied
on by the majority, the unions' clarifying state-
ments were directed to all unit employees and no
distinctions were made between employees who
had become members and those who had not.
Since the letters were addressing only those who
had not yet become members, the statements that
there would be "no fees and nothing to pay"
should be construed as nothing more than an offer
limited to those employees. The failure to direct
io Such ambiguous offers are to be construed against the Union so as
to require that the election be set aside. Western Refrigerator Co., Subsidi-
ary of the Hobart Manufacturing Co., 213 NLRB 227 (1974).
1072
A.G.S. GRAPHICS
the letters to all unit employees warrants the find-
ing that they do not sufficiently clarify the previ-
ous ambiguous statements made by union repre-
sentatives concerning the waiver of initiation fees.
Moreover, the Hearing Officer found that most
of the unit employees had either signed authoriza-
tion cards or joined the Union prior to the distribu-
tion by the Union of the March 21 and April 3 let-
ters. There is no indication that these employees
were afforded an opportunity to reaffirm their ini-
tial action after the Union's allegedly clarifying let-
ters were distributed." It therefore appears that,
even assuming the Union's letters clarified the pre-
vious ambiguous statements, they came too late to
effect a cure as to those who had already joined
the Union before March 21.
Accordingly, I would sustain the Employer's
Objections 17 and 18, set aside the May 2 election,
and direct a second election.
11 Polyflx M Company, 260 NLRB 1146 (1982), cited by my col-
leagues, is distinguishable for there was no evidence in that case that a
majority of the unit employees had signed authorization cards prior to
the distribution of the union's notice.
1073