Andal Shoe, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1972

197 N.L.R.B. 1183 (N.L.R.B. 1972)

ANDAL SHOE, INC.
Andal Shoe , Inc. and United Shoe Workers of
America , AFL-CIO, CLC, Petitioner. Case
1-RC-11,546
June 30, 1972
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties, and
approved by the Regional Director for Region 1 of
the National Labor Relations Board on May 5, 1971,
an election by secret ballot was conducted in the
above-entitled proceeding on May 25, 1971, under
the direction and supervision of said Regional
Director. Upon the conclusion of the election, a tally
of ballots was furnished the parties in accordance
with the Board's Rules and Regulations, which
showed that, of approximately 135 eligible voters,
122 ballots were cast, of which 66 were for, and 54
against, the Petitioner, and 2 were void. There were
no challenged ballots. Thereafter, on May 27, 1971,
the Employer filed timely Objections to Conduct
Affecting the Results of the Election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
investigated the objections, and, thereafter, on July 7,
1971, issued and served on the parties his Report on
Objections, recommending that the Board overrule
the objections in their entirety and issue a Certifica-
tion of Representative.
Thereafter, on August 9, 1971, the Employer filed
timely exceptions to the Regional Director's report.
On September 24, 1971, the Board ordered a hearing
for the purpose of resolving certain issues raised by
Employer's Objection 4.1
Pursuant to the Board's Order, a hearing was held
on October 28 and 29, 1971, in Haverhill, Massachu-
setts, before Hearing Officer Paul V. Lyons. All
parties appeared and participated at the hearing and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues.
On December 30, 1971, the Hearing Officer issued
and served upon the parties a Report on Objections,
pertinent portions of which are attached hereto as an
Appendix, in which he recommended that Employ-
er's Objection 4 be overruled, and that a certification
of representative be issued. Thereafter, the Employer
filed timely exceptions to the Hearing Officer's
1183
report and a supporting brief, and the Petitioner filed
an answering brief.
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 reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(l) and Section
2(6) and (7) of the Act.
4. In accordance with the stipulation of the
parties, we find that the following employees of the
Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All production and maintenance employees at the
Employer's Haverhill, Massachusetts, location,
but excluding all managerial employees, office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
5. The Board has considered the Employer's
objections, the Regional Director's Report on Objec-
tions, the Hearing Officer's Report on Objections,
the Employer's exceptions and briefs, and all other
evidence of record, and hereby adopts the findings,
conclusions, and recommendations of the Regional
Director and Hearing Officer.
Contrary to our dissenting colleague, we perceive
no improper promise of a benefit in the Union's
promise to waive dues arrears and reinstatement fees
if the Union won the election and the employees
suspended because of arrears rejoined the Union.
The Union's constitution and bylaws do not require
the collection of such arrears on rejoining, and it has
not been the Union's practice to collect them.
Accordingly, we have overruled the Employer's
objections, and as the Petitioner has secured a
majority of the valid ballots cast, we shall certify the
Petitioner as the exclusive bargaining representative
of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots has been cast for the United Shoe Workers of
I The Board also deferred ruling on Employer's Objections 1, 2, 3, and 5.
197 NLRB No. 131
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, AFL-CIO, CLC, and that, pursuant to
Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the unit found
appropriate herein for the purposes of collective
bargaining with respect to rates of pay, wages, hours
of employment, or other conditions of employment.
CHAIRMAN MILLER, dissenting:
Contrary to my colleagues, it is my view that the
Petitioner unlawfully interfered with the election by
waiving dues delinquencies of suspended members
contingent on a union victory at the polls.
The record reflects that in March 1970, the
Employer purchased a plant operated by the Gold-
berg Shoe Company, which had previously shut
down. Upon commencing operations, the Employer
hired 125 employees of the former company;
however, 84 of these employees were in a suspended
status with the Petitioner because of nonpayment of
dues.
At a union meeting on March 11, 1971, which was
prior to the critical preelection period, the Petitioner
advised the employees that, if the Union won the
election, past dues arrearages would be forgotten,
and that suspended members would be reinstated
into the ranks of the Union without charge, with no
dues payable until the Employer signed a contract.
On May 20, 1971, just 5 days before the election, the
Petitioner, by letter, renewed that promise, specifical-
ly advising the employees as follows:
Remember all workers will come into the Union
free of charge regardless of whether they are
suspended or not; also there will be no payment
of dues until a contract has been ratified by you
and signed.
Under the foregoing circumstances, the Hearing
Officer found no improper promise of benefit on the
part of the Petitioner, and saw no basis for setting
aside the election. In recommending that the objec-
tions be overruled, he relied, primarily, on DIT-
MCO, Inc. 163 NLRB 1019, which involved a waiver
of union dues and initiation fees, and he observed
that although the waiver here was not in the precise
form as in DIT-MCO, the Board's reasoning in that
case can apply here. I do not agree.
In this case, the waiver of both past dues and
reinstatement fees was plainly conditioned upon the
results of the election. During a union meeting held
before the petition was filed, this condition was
clearly expressed to all employees in attendance. In
addition, James De Rosa, Petitioner's vice president,
testified that if the Union did not win the election
there would be no waiver of the back dues obligation
of suspended members. It is immaterial that the
Union's renewal of that promise in its May 20 letter,
within the critical period, was not accompanied by a
specific reiteration of all the conditions and terms of
the waiver. Since predicated upon statements made
by the Union at the earlier meeting, evidence as to
what transpired at the union meeting, albeit prior to
filing of the petition, is relevant to assess the meaning
of Petitioner's statement in the May 20 letter that
. . all workers will come into the Union free of
charge regardless of whether they are suspended or
not ... ." In failing to consider this evidence, I
believe the Hearing Officer clearly misapplied
Goodyear Tire and Rubber Company, 138 NLRB 453,
since that decision does not foreclose consideration
of prepetition conduct to determine whether that
which occurs during the critical preelection period is
coercive.2
Such being the case, it is my opinion that Board
precedent permitting the waiver of initiation fees and
deferred collection of dues does not privilege the
elimination of a previously accrued debt, contingent
on a union victory at the polls. There is no evidence
that any practice of not collecting past dues was ever
communicated by the Union to employees, nor does
it appear that the Union's constitution or bylaws
preclude court enforcement of this or any other type
of debt. Absent the waiver here in issue, each of the
85 unit employees in suspended status was vulnera-
ble to a lawsuit to recover back dues. Such a union
waiver of a legally enforceable debt, conditioned
upon the Union's winning the election, was, in my
opinion, an improper inducement to the suspended
members to vote "Yes."
Furthermore, unlike the waiver of initiation fees,
the employees could not avoid their financial
obligations by a vote against the Union. The
previously accrued financial obligation was subject
to erasure only through a "Yes" vote.
Under these circumstances, I would, therefore, set
aside the election and direct that a second election be
held.
2 See Consolidated Rendering Co., 161 NLRB 1, 16-17; Stevenson
Equipment Company, 174 N LRB 865, 866. In . I ; Landis Morgan Transporta-
tion, 177 NLRB 579, 583, fn. 9.
APPENDIX
SECTION I: THE ISSUES
As delineated by the Notice of Hearing, the issues
before the Hearing Officer are:
1. Did the Petitioner indicate that suspended
members would be allowed into the Union free of
charge?
2. If so, was the statement made before or during
the critical pre-election period?
3. If during the critical pre-election period, was
the statement a promise of benefit which interfered
with the conduct of the election?
AN DAL SHOE, INC.
SECTION II: FINDINGS OF FACT AND CON-
CLUSIONS
In March, 1970 the Employer purchased a closed
shoe plant located in Haverhill, Massachusetts. The
facility formerly operated under the name of Gold-
berg Shoe Company and was party with the
Petitioner to a collective bargaining agreement which
included a union security provision (for a union
shop).
When the Employer commenced operations, a
majority of its production and maintenance employ-
ees were former employees of Goldberg Shoe
Company. However, recognition of the Petitioner
was not continued and the collective bargaining
agreement was not followed. After demanding
recognition, on April 20, 1971, the Petitioner filed the
instant petition.
Of the 133 names contained on the "Excelsior List"
submitted by the Employer for the May 25, 1971
election, all but eight (8) employees were former
employees of Goldberg Shoe Company. Of the
remaining 125 employees on the "Excelsior List," 84
employees were carried on the Petitioner's records as
suspended due to the failure to pay dues.'
The Employer produced three (3) employee wit-
nesses who testified that at a meeting held by the
Petitioner at its union hall, at which employees of the
Employer were present, representatives of the Peti-
tioner said that the employees of the Employer could
get reinstated into the ranks of the Petitioner without
charge and no dues would be payable until the
Employer signed a contract. Although the exact date
of this meeting was not clear in the minds of the
witnesses, they all agreed that they were referring to
the first meeting held by the Petitioner. James A.
DeRosa, Vice-President, Territory One, of Petitioner,
testified that the first meeting held by Petitioner for
the employees of the Employer was on March 11,
1971. He further testified that the employees were
told at that meeting that there would be no charge
whatsoever to come into the ranks of the Petitioner.
There is no dispute as to the statements made by
representatives of the Petitioner to the employees of
the Employer at this March 11, 1971 meeting. Two
other pre-election meetings were held on April 15
and May 24, 1971 but the subject of entrance into the
ranks of the Petitioner without charge was not
discussed. The March 11, 1971 meeting was held
prior to the date on which the instant petition was
filed. Therefore, such statements, if they be objec-
tionable, were made prior to the filing of the instant
petition and thus cannot be submitted as a valid
' Article XV, Section 4, Constitution and Bylaws of the Petitioner
provides for automatic suspension of any member who owes two (2) months
dues.
2 Ideal Electric and Manufacturing Company, 134 NLRB 1275, 1278;
1185
objection to the instant election as it occurred
outside the critical pre-election period.2
The Petitioner mailed to all employees of the
Employer a letter, dated May 20, 1971, as part of its
pre-election campaign. The letter reads, inter alia.
Remember all workers will come into the
Union free of charge regardless of whether they
are suspended or not; also there will be no
payment of dues until a contract has been ratified
by you and signed.
It is apparent from the evidence that Petitioner, in
its pre-election campaign, offered to take into
membership, free of charge, all employees regardless
of whether they are members of Petitioner or not.
Waivers, or provisional waivers, of union initiation
fees, whether contingent upon the results of an
election or not, have no improper effect on the
freedom of choice of the electorate, and do not
constitute a basis for setting aside an election.3
Where there is a waiver of initiation fees, there is no
enhancement of the employees' economic position,
but merely an avoidance of a possible future
liability.4 This same rationale can be applied to a
reinstatement fee. The Constitution and Bylaws and
the practice of the Petitioner do not call for the
payment of back dues upon reinstatement.
The Employer, citing Gilmore Industries, Inc., 140
NLRB 100, maintains that Petitioner's offer could
not apply to all employees in the group by virtue of
the fact that a number of employees were at that time
members of Petitioner-they had worked for Gold-
berg Shoe Company and continued in their payment
of dues while employed by the Employer. It puts
forth the proposition that the only way such an offer
could have applied equally to all employees in the
voting group was if Petitioner reimbursed these
employee-members for the dues they had paid since
Goldberg Shoe Company went out of business.
In Gilmore Industries, Inc., ibid. at 101 and
reaffirmed in 142 NLRB 781, 784, it was held that
there was no interference where the waiver was to
apply to all employees employed at the time of the
election and was not contingent on how individual
employees voted. However, in the Gilmore Industries,
Inc., cases, the reference to "all employees" was
made in the context of an offer contingent on how
individual employees voted in the union election. In
the instant case, there is no evidence that the waiver
offer was contingent on how an individual voted in
the election and, in fact, DeRosa testified it was not
dependent upon how an individual voted in the
election. I find the "all employees' argument of the
Goodyear Tire and Rubber Company, 138 NLRB 453, 455.
3 DIT-MCO Incorporated, 163 NLRB 1019,1022; Seymour Transfer, Inc.,
179 NLRB 26, 28.
4 Wagner Electric Corporation, 167 NLRB 532, 533.
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gilmore Industries, Inc. cases inapposite to the instant
case and am unable to conclude in these circum-
stances that the Petitioner 's questioned conduct
impaired a free and rational choice by employees in
the election .5 Furthermore, it is noted these employ-
ee-members had paid dues voluntarily and would
presumably desire representation by the Petitioner
and would favor the waiver offers if it was expected
to achieve this end.
The Employer, citing Teletype Corporation, 122
NLRB 1594, maintains there was an unlawful
granting of a benefit to those in suspended status. It
points out that a $10 reinstatement fee may be
increased with the approval of the General Executive
Board of Petitioner 7 and consequently the waiver
offer constitutes a substantial benefit . DeRosa
testified that the General Executive Board of
Petitioner has not authorized an increase in the
Employer's area and that $10 is the fee historically
charged by Petitioner . There is no evidence that any
fee higher than $10 was ever charged. Furthermore, I
am not aware of any precedent where the legality of
the waiver depended upon the dollar amount
involved and the rationale put forth in DIT-MCO,
Incorporated, supra, does not depend upon the dollar
amount involved." The Teletype Corporation, supra,
case does not involve a waiver offer but payment of
money by two (2) competing unions to employees to
entice them to attend union meetings and is
inapposite to the instant case. Furthermore, it is prior
to the rationale put forth in DIT-MCO, Incorporated
supra.
The Employer argues that the Petitioner's offer of
reinstatement would result in eligibility for death
benefits which amounts to the conferring of benefits.
e See Primco Casting Corporation, 174 NLRB No. 44.
c Article XV, Section 1, Constitution and Bylaws of the Petitioner
provides for a waiver of fees if it will aid in its organizational work. DeRosa
testified that it is the Petitioner 's practice to waive reinstatement and
initiation fees in an organizational campaign. Additionally, reinstated
members whose membership had been suspended for not paying dues for
Presumably, without citing it, the Employer is
referring to the rationale of Wagner Electric Corpora-
tion, supra, at 533 which states:
Where there is a waiver of initiation fees, there is
no enhancement of the employees ' economic
position , but merely an avoidance of a possible
future liability . Moreover, such waiver is a
customary practice in organizing campaigns. In
contrast , the gift of immediate life insurance
coverage is a tangible economic benefit and is
most unusual.
Article XXVIII, Sections 1 and 2 , Constitution and
Bylaws of the Petitioner , set forth the eligibility
requirements for death benefits . Section 1 requires
the member to be "in good standing continuously for
the twelve-month period preceding his death" and
Section 2 requires the member to be "in good
standing continuously for the twenty-four month
period preceding his death."
In Wagner Electric Corporation, supra, at 533, the
Board found that the insurance "coverage was
automatic" whereas in the instant case, the member
must be in good standing for either twelve or twenty-
four months to be eligible for death benefits. Since
the death benefit coverage was not immediate. I find
that Wagner Electric Corporation, supra, is inapposite
as it was the immediate coverage which constituted
the benefit foorid objectionable.
Accordingly. i conclude that the Employer's
Objections are not meritorious and the Petitioner's
promise to take into its ranks the employees free of
charge regardless of whether they were suspended or
not had no improper effect on the freedom of choice
of the electorate, and does not constitute a basis for
setting aside an election.
two (2) months are not charged for their hack dues upon re-entry as a
matter of practice and the Constitution and Bylaws of the Petitioner does
not require it.
7 See Article XV, Sections 3 and 4. Constitution and Bylaws of the
Petitioner.
" See DIT-MCO, Incorporated, supra, footnote 9.