Call-A-Mart

National Labor Relations Board - Board Decisions

Oct 23, 1974

214 N.L.R.B. 225 (N.L.R.B. 1974)

CALL-A-MART 225
Jefferson Food Mart, Inc. , d/b/a Call -A-Mart and
General Drivers , Warehousemen and Helpers Local
Union No. 89 , affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , Petitioner . Case 9-
RC-10416
October 23, 1974
DECISION AND CERTIFICATION OF
REPRESENTATIVE
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) of the Act.
4. The parties stipulated and we find that the fol-
lowing employees constitute an appropriate unit for
the purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act:
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Acting Regional
Director for Region 9 on February 1, 1974, a secret
ballot election was conducted among the employees
in the stipulated unit on February 21, 1974, to de-
termine whether such employees desired to be repre-
sented by the Petitioner for the purposes of collective
bargaining. The tally of ballots furnished the parties
showed that of approximately 41 eligible voters 39
ballots were cast, of which 22 were for, and 16
against, Petitioner, and 1 was challenged. The chal-
lenged ballot is insufficient in number to affect the
results. Thereafter, the Employer filed objections to
conduct affecting the results of the election.
Pursuant to Section 102.69(d) of the Board's Rules
and Regulations, Series 8, as amended, the Acting
Regional Director issued and served on the parties
an order directing hearing, notice of hearing, and or-
der transferring case to the Board, in which he or-
dered that a hearing be held before a duly designated
Hearing Officer to resolve the issues raised by the
Employer's objections.
Pursuant to that order, a hearing was held on May
14, 1974, before Hearing Officer Daniel J. Roketen-
etz, at Louisville, Kentucky. Thereafter, on June 18,
1974, the Hearing Officer issued and served on the
parties his Hearing Officer's Report and Recommen-
dations, pertinent parts of which are attached hereto
and marked "Appendix," wherein he recommended
that the Employer's objections be overruled and that
the Board issue an appropriate Certification of Rep-
resentative. Thereafter, the Employer timely filed ex-
ceptions to the Hearing Officer's 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.
Upon the entire record in this proceeding the
Board finds:
1. The Employer is engaged in commerce within
All regular full-time and regular part-time truck-
drivers employed by the Employer at its location
at 2345 Carton Drive, Louisville, Kentucky; but
excluding all warehouse employees, all office
clerical employees, professional employees,
guards, and supervisors as defined in the Act,
and all other employees.
5. The Board has considered the Hearing Officer's
Report and Recommendations and the Employer's
exceptions and hereby adopts the Hearing Officer's
findings, conclusions , and recommendations.'
As the Petitioner received a majority of the valid
ballots cast , we shall certify the said labor organiza-
tion as the exclusive bargaining representative of the
employees in the unit herein found appropriate.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that General Drivers, Ware-
housemen and Helpers Local Union No. 89, affiliat-
ed with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
has been designated and selected by a majority of the
employees employed by Jefferson Food Mart, Inc.,
d/b/a Call-A-Mart, Louisville, Kentucky, as their
representative for the purposes of collective bargain-
ing and that, pursuant to Section 9(a) of the National
Labor Relations Act, as amended, the said labor or-
ganization is the exclusive representative of all em-
ployees in such unit for purposes of collective bar-
gaining with respect to rates of pay, wages, hours of
' The Employer's exceptions, in our opinion, raise no issue which would
warrant reversal of the Hearing Officer's findings, conclusions, and recom-
mendations.
Chairman Miller dissents , believing the record to show that employees
were solicited to sign cards on the strength of representations that the initia-
tion fee would increase from $5 to $50 after the election. While the evidence
is in some conflict on this issue, the Chairman is of the view that there is
substantial evidence in the record supporting the objection which asserts
that employees were induced to sign cards in just the kind of "bandwagon"
circumstances condemned by the Supreme Court in N.L.R.B. v. Savair Mfg.
Co., 414 U .S. 270 ( 1973). He would, therefore, contrary to his colleagues. set
aside this election and conduct a new one.
214 NLRB No. 30
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment, and other conditions of employment.
APPENDIX
Findings of Fact and Conclusions:
At the request of two employees, representatives of
the Petitioner, Charles Spond and Douglas Borders,
attended a meeting of the Employer's employees at a
local restaurant in Louisville, Kentucky on January
7, 1974. Both Spond and Borders are assistants to the
local Union president. The meeting was attended by
some 17 of approximately 40 employees of the Em-
ployer.
Spond, who was the primary spokesman for the
Petitioner, expounded on the benefits of unionism
for some 35 minutes when an employee inquired of
Spond what it would cost to become a member of the
Union. Spond informed employees that there would
be an "organizational fee" of not less than $5 nor
more than $10, and that anybody hired prior to the
signing of an agreement between the Union and the
Employer would pay that amount for membership in
the Union. Spond testified that he then told employ-
ees that after a contract had been negotiated and
signed by the Union and the Employer, any "new"
employees would be charged the Union's normal ini-
tiation fee of between $50 and $100. Spond told em-
ployees that in either case no fees at all would have
to be tendered to the Union until after a contract had
been signed with the Employer.
Employer witness, Thomas P. Stossberg, testified
that Spond told employees at the January 27 meeting
that,
.. . for those who joined the Union he had
some cards that he would pass out and the cards
were petitioning the NLRB for an election and
he said that if we signed the cards before the
election we would only have to pay $5.00 initia-
tion fee and someone asked what the standard
initiation fee would be-you know-if we didn't
sign a card or say somebody that was hired after
the election and he said it would be $50.00.
Upon questioning by the undersigned Hearing Of-
ficer, Stossberg testified that Spond said, "if we
signed those cards that night that our initiation fee
would only be $5.00 and someone asked him what
the new drivers who were hired later on would have
to pay-the new people who came in and he said it
would be $50.00."
Upon further questioning, Stossberg testified as
follows:
Q. What was meant by new people; did he
tell you?
A. Who would come to be hired after the
election.
Q. Those employees who were hired after the
election, did he say anything about employees
who came to join the Union after the election
who had not signed cards prior to the election?
A. After the election that had not signed
cards prior to the election?
Q. Did he make any reference to what the
initiation fee would be for employees who ne-
glected to sign cards before the election who
wanted to join the Union after the election?
A. No, sir.
Q. You don't know if any reference was made
to any employees who would be in that situa-
tion?
A. I don't recall him saying anything about
that.
Q. The discussion was about employees that
signed that date and new employees who were
hired after the election is what you recall?
A. Yes.
Q. Was any mention made of the election it-
self?
A. Someone asked when it would be and-
Q. With reference to the initiation fee, do you
recall any conversation along those lines?
A. About the election with reference to the
initiation fees?
Q. Right?
A. No, sir.
Employer witness, Donald Nunn, testified:
I believe it was Don Cunningham asking what
the initiation fee would be and Mr. Spond said
that for the initial men, in other words that we
were organizing the Union, meaning now, you
know, that the initiation fee would be $5.00 and
I don't really remember whether he was inter-
rupted at that point or if it was one continu-
ous-1 believe one of the other drivers asked
him whether-you know-how much it would
be later, whether you know, there was an exact
pause in there or not, but he said that for the
men who would join the Union later, meaning
after the election, it would be the regular fee of
$50.00 and at that point I interrupted him and
asked him if it was $50.00 because I had a with=
drawal card from another union and the reason
I asked was because when I joined the union it
was $35.00.
Employer witness , Michael S . Mayfield, testified
CALL-A-MART 227
that he recalled Spond's reply to the question about
initiation fees as follows:
He said the drivers that were there that eve-
ning, any drivers that would sign cards before
the election, before the Union got in would only
have to pay a $5.00 fee, initiation fee, instead of
$50.00.
When questioned by Employer counsel- as to when
the $50 initiation fee would take effect, Mayfield re-
plied, "If the Union got in-after the Union was in
anybody that was hired after the contract was negoti-
ated."
Employee witness, John F. Wiegel, Larry DeBurg-
er, and William J. McGuire, all of whom testified on
behalf of the Petitioner, stated in substance that
Spond told them that all employees would be subject
to an organizational fee of between $5 and $10 but
new employees hired after the execution of a con-
tract between the Employer and the Union would
have to pay the regular initiation fee.
Following his statements about organizational fees
and initiation fees, Spond told employees that it was
up to them whether or not they wanted to "get the
ball rolling" with the Union and that if they were
interested, all they had to do was fill in the authoriza-
tion cards. Spond left a book of 25 authorization
cards and he and Representative Borders left the
room. During their absence, employees discussed
what course of action they wanted to take and also
the initiation- fees. Apparently, some drivers believed
it would be cheaper to join the Union at that time
rather than after the election. Shortly, Spond and
Borders returned and were given 14 signed authori-
zation cards. One employee, volunteered to obtain
additional authorization cards from the Union the
following day.
The next few days, employees Don Cunningham
and John Weigel solicited support from fellow em-
ployees for the Union, telling them, among other
things, about the initiation fees and that it would
"$5.00 now and $50.00 later." Whether or not there
was any further explanation as to what was meant by
the $50 initiation fee at the later date remains unclear
on the record before me. It is also unclear as to how
many employees were ultimately solicited in this
fashion and what they were told about the initiation
fee prior to the execution of their authorization
cards. Approximately 33 cards were turned in to the
Union prior to the election.
Based on the totality of evidence, the record before
me portrays a situation where representative Spond,
in vague and general terms, explained to employees
at the January 7th meeting what the organizational
fees and initiation fees would be. According to
Spond's testimony the discussion centered around
those employees being organized and new employees
hired sometime after the election; while that specific
area having to do with current employees who ne-
glected to or refused to sign authorization cards went
unexplained as to their financial responsibilities.
The general tenor of Spond's remarks are substan-
tiated by at least two witnesses called by the Employ-
er, namely, Thomas Stossberg and Michael Mayfield.
As a result of Spond's vagueness in explaining the fee
set-up of the Union, it appears that some employees
misunderstood what was being said. Such misunder-
standing was then apparently perpetuated by Cun-
ningham and Wiegel in soliciting the signatures of
other employees. As noted above, the extent to which
such misunderstanding was perpetuated is not clear
on the record before me.
An analysis of N. L. R. B. v. Savair Manufacturing
Company, 414 U.S. 270, December 17, 1973, readily
reveals that the conduct with which the Supreme
Court concerned itself was not the innocent misun-
derstandings of employees, as in the instant case, but
rather with the intentional and deliberate waiver or
reduction of initiation fees conditioned upon the out-
come of an impending election. The test for the ob-
jectionable conduct espoused by the United States
Supreme Court in the Savair case must, of necessity,
be an objective one, based upon the representations
made to employees prior to the election and not
upon the subjective considerations of employee be-
liefs or misunderstanding. Thus, Savair is directed at
the coercive effects of requiring employees to desig-
nate the union as their representative prior to the
election or otherwise lose the economic benefit of
reduced or waived initiation fees or dues. It is the
potential impact and effect of requiring such affirma-
tive action by employees before the election which
the Supreme Court held interfere with employees free
choice in the election. Unlike Savair there is no evi-
dence in the case before me that the Union, through
Spond or any designated agents, conditioned the
waiver of initiation fees on such affirmative action by
employees prior to the Board election.
Rather, I find, in crediting the testimony of Union
representative Spond, that he informed employees
that they would be admitted to membership after
payment of an organizational fee of from $5 to $10
whereas new employees hired after the signing of a
contract would pay the standard initiation fee rang-
ing from $50 to $100. Nowhere in the record before
me is there evidence that Spond specifically or with a
coercive intent, as envisioned by the Supreme
Court's Savair decision, told employees present at the
January 7, meeting that only those employees who
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
executed authorization cards prior to the election
would be entitled to the reduced rate if the Union
was successful in the election, and that those who
failed or neglected to do so, even though employed
on the date of the election, would not be so entitled.
In B. F. Goodrich Tire Company, 209 NLRB 1175,
a situation was presented where the Secretary-Trea-
surer of the petitioning union admitted that he had
told employees that they could join at a reduced rate,
as it was the union's standard practice to accept new
groups of employees at the lower rate. The Board, in
finding that the Petitioner's conduct in this regard
was not objectionable in light of the Savair decision
held,
the guidelines of Savair, supra. In so finding, the
Board noted:
The additional fact that the union, in its oral
waiver of initiation fees, limited the availability
of that waiver to only those individuals 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 limita-
tion, it is clear that it would only affect those
individuals hired after the election, who, in any
event, could not have participated in the election
and could not have any effect on its outcome.
Endless Mold, Inc., supra, footnote 4.
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 on how an employee voted. (Weyer-
hauser Company, 146 NLRB 1; Gilmore Indus-
tries, Inc., 140 NLRB 100; The Gruen Watch
Company, The Gruen National Watch Case Com-
pany, 108 NLRB 610) Neither do we feel that
this position is affected by the Supreme Court in
Savair. In forbidding the Union offer of reduc-
tion or elimination of initiation fees on condi-
tion the employee signs 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 its
election campaign." However, the Court did rec-
ognize that initiation fees could be an artificial
obstacle to an employee's endorsement of a
union with which he was in sympathy. It further
recognized that a union had a legitimate interest
in removing such an obstacle through the waiver
of its initiation fees and this interest could be
similarly preserved . . . by waiver of its initia-
tion fees available not only to those who have
signed up with the union before an election, but
also to those who joined after the election. Thus,
where a union offered to waive its initiation fees
for all the employees in the unit who joined at
any time during the organizational stage of pre-
sentation, prior or subsequent to the election,
such waiver was legitimate and did not affect
the election. B. F. Goodrich, supra.
In Endless Mold, Inc., 210 NLRB 159, the Board
found that a union's waiver of initiation fees for all
employees, employed by the employer, when the pe-
titioner was "voted in" was not objectionable under
Lastly, the Board did not find objectionable the
conduct of a union which offered to waive the initia-
tion fees for all employees employed when the con-
tract was signed as the offer was not limited to those
employees who joined the union before the election
but was equally available to all employees after the
election and up to the date of signing a contract.
Irwindale Division, Lau Industries, a Division of Phil-
lips Industries, Inc., 210 NLRB 182. In so finding, the
Board stated:
The Employer contends that the Petitioner's
waiver was invalid because phrased in terms of
"if we win the election." We do not view such
a statement as a condition, but rather as a refer-
ence to the practical reality that initiation fees
have no real significance for employees unless
the union becomes the bargaining representa-
tive; i.e., wins the election. It is true that the
Sixth Circuit's opinion in Savair found the waiv-
er in that case objectionable relying on a similar
statement, which it found to be a "condition."
The Supreme Court, however, while reaching
the same result as the Sixth Circuit, clearly did
not rely upon the same rationale, but instead
found the waiver objectionable because it was
conditioned upon the employees signing cards
before the election. Irwindale Division, supra, foot-
note 3.
With respect to the solicitation of authorization
cards by employees, there is no evidence that the em-
ployees who were engaged in such activities and
made representations to their fellow employees that
it would be cheaper for them to join the union before
the election than after were acting as duly designated
representatives of the Union. Without such a show-
ing, I find that these employees were acting gratu-
itously for their own ends (as opposed to those of the
petitioning Union) and that their actions cannot,
CALL-A-MART
therefore, be attributed to the Union so as to charge
the Union with having engaged in coercive conduct
which would warrant setting aside the election.
Moreover, the evidence only shows that at most only
three employees who did not attend the meeting of
January 7th were told by either employees Weigel or
Cunningham that it would be cheaper for them to
join the Union prior to the election.
Finally, a fair application of the Supreme Court's
229
Savair guidelines would seem to dictate that the peer
pressures exerted upon fellow employees by those
pro-Union employees in order for the totality of con-
duct to be objectionable must have been fostered by
the prior action of the Union in telling employees
that initiation fees would only be waived for those
individuals who executed authorization cards prior
to the outcome of the election. As I have previously
found, those facts are not present in the instant case.