Davlan Engineering, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1987

283 N.L.R.B. 803 (N.L.R.B. 1987)

DAVLAN ENGINEERING
Davllan Engineering, Inc. and District No. 9, Inter-
national Association of Machinists and Aero-
space Workers , AFL-CIO. Cases 14-CA-16116
and 14-RC-9383 -
30 April 1987
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, AND STEPHENS
On 13 August 1982 the Regional Director for
Region 14 issued a complaint, alleging that the Re-
spondent had violated and was violating Section
8(a)(5) and (1) of the National Labor Relations
Act. The complaint alleges that on 13' July 1982,
following a Board-conducted election in Case 14-
RC-9383, the Union" was certified as the exclusive
collective-bargaining representative of the Re-
spondent's employees in the unit found appropriate;
and that, commencing about 26 July 1982, and at
all times thereafter, the Respondent has refused,
and continues to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested it to do
so. On 23 August 1982 the Respondent answered,
admitting in part, and denying in part, the com-
plaint's allegations.
On 24 September 1982 the General Counsel filed
a Motion for Summary Judgment. On 29 Septem-
ber 1982 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the General Counsel's motion should
not be granted. The Respondent filed a response to
the Notice to Show Cause.
On 6 December ' 1982 the Board issued a Deci-
sion and Order2 in this proceeding, granting the
General, Counsel's Motion for Summary Judgment
and finding that the Respondent had violated Sec-
tion 8(a)(5) and (1) of the Act. The Respondent pe-
titioned for review of the Board's Decision and
Order in the United States Court of Appeals for
the Fourth Circuit. The petition was transferred for
venue to the Eighth Circuit, where the Board filed
a cross-application for enforcement of its Order.
On 3 November 1983 the court granted the parties'
joint motion for leave to withdraw, without preju-
dice, the petition for review and cross-application
for enforcement, in order to permit the Board's re-
consideration of this case. All parties were offered
the Opportunity to file statements of positions in
' District No. 9, International Association of Machinists and Aerospace
Workers, AFL-CIO.
2 265 NLRB No. 66 (1982). Not included in bound volumes.
283 NLRB No. 124
803
connection with the Board's reconsideration of its
decision. -
Ruling on Motion for Summary Judgment
In its answer to the complaint; its response to the
Notice to Show Cause, and its statement of posi-
tion, the Respondent repeats the argument, first
raised in the representation proceeding, that four
employees who solicited union authori zation cards
were union agents for the purpose of card solicita-
tion so that their improper statements concerning
the Union's initiation-fee-waiver policy were imput-
able to the Union and violated .NLRB v. Savair
Mfg. Co., 414 U.S. 270 (1973).. Neither the General
Counsel nor the Union has filed a statement of po-
sition in this supplemental proceeding.
Our review of the record, including the record
in Case 14-RC-9383, reveals that on 29 August
1980, pursuant to a Stipulation for Certification
Upon Consent Election, an election was held
among the employees in the stipulated unit. The
tally of ballots shows that of approximately 53 eli-
gible voters, 34 cast ballots for, and 16 against, the
Union; there were 2 nondeterminative challenged
ballots. The Respondent timely filed objections to
conduct affecting the results of the election, alleg-
ing, inter alia, that four employees were union
agents for purposes of soliciting other employees to
sign union-authorization cards and, in that capacity,
stated that the Union would waive initiation fees
for employees who signed cards before the elec-
tion, thereby interfering with employees' free
choice in the election under NLRB v. Savair Mfg.
Co., 414 U.S. 270 (1973). After a hearing, the Re-
gional Director recommended overruling the ob-
jections.
Regarding the fee-waiver statements that were
the subject of the Respondent's first objection, the
Regional Director concluded that the four employ-
ee-solicitors were not agents of the Union and that
their statements, when evaluated under the more
lenient standards applicable to third-party conduct,
were not grounds for overturning the election. The
four employees were not union agents when they
solicited the cards, the Regional Director conclud-
ed, because they neither belonged to an in-plant or-
ganizing' committee, nor were they "vested .. .
with any substantial authority in connection with
the distribution of authorization cards." In addition,
the Regional Director relied 'on the absence of'evi-
dence that the Union's business agent had actual
knowledge of the Savair statements, as well as the
absence of evidence that the Union adopted or rati-
fied the employees' statements or otherwise held
out the solicitors "in such a fashion that other em-
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees reasonably were led to conclude that they
were acting as its agents or on its behalf."
On 13 July 1982 the Board adopted the Regional
Director's recommendations and certified the
Union as the exclusive bargaining representative of
the employees in the stipulated unit.3 In adopting
the Regional Director's recommendations, the
Board affirmed its continued 'adherence to estab-
lished precedent "which holds that the solicitation
of authorization cards by employees, standing
alone, does not make those employees agents of the
union." 262 NLRB 850 fn. 3 (1982).
The Respondent refused to bargain with the
Union. On 6 December 1982 the Board issued a
Decision and Order4 finding that the Respondent
violated Section 8(a)(5) and, (1) of the Act by refus-
ing to bargain,'with the Union as the exclusive bar-
gaining representative of the employees in the stip-
ulated unit, and by refusing to provide the Union
with information relevant and necessary to its role
as exclusive bargaining , representative.
We have decided to vacate our earlier Decision
and Order and Certification of Respresentative.5
Objections to representation elections based on im-
proper initiation-fee-waiver statements made by
employee card solicitors alleged' to be union agents
have all too frequently been presented to the
Board. The question of union agency as it relates
to the impact of such statements has been troubling
and recurring. As we explain below, the harm re-
sulting from improper fee-waiver statements can be
largely avoided by unions undertaking a clear ex-
planation of their policy. The principles set forth
today are intended to encourage unions to under-
take- such, explanations so that most Savair objec-
tions will be obviated.6 ' '
The record evidence shows that Doug Hanicke,
then employed by the Respondent, initiated the or-
ganizing campaign by contacting Richard Vaughn,
a union representative, about organizing the Re-
spondent's employees. Vaughn said-that the Union
3 Davlan Engineering, 262 NLRB 850 (1982).
4 265 NLRB No 66 (1982) (not included in bound volumes).
s A respondent in a proceeding alleging a violation of Sec. 8(a)(5) usu-
ally is not entitled to relitigate issues that were or could have been litigat-
ed in a prior representation proceeding . See Pittsburgh Plate Glass Co. v.
NLRB, 313 U.S, 146, 162 (1941); Secs. 102.67(f) and 102 69(c) of the
Board's Rules and Regulations . However, this prohibition applies to the
parties to the representation proceeding and does not preclude the Board
from reconsidering its own earlier action and reopening its representation
proceeding-
' To the extent that Allied Metal Hose Co., 219 NLRB 1135, 1143-1146
(1975) (in which volunteer employee card solicitors made improper
Savair statements and the union did not comment on the subject until
after the election), Call-A-Mart, 214 NLRB 225, 228-229 (1974) (in which
union representatives' did not fully explain the union's initiation-fee-
waiver policy and thereafter employees who voluntarily solicited cards
on the union 's behalf made statements violative of Savair), and other like
cases are inconsistent with ' the analysis set forth herein, they are over-
ruled.
would become active in the organizational cam-
paign if, a sufficient, number of employees were in-
terested in union representation. Vaughn then
mailed Hanicke about 50 union-authorization cards
for employees to sign . The only instruction Han-
icke received was that he should not solicit cards
"on company time." Three other employees at the
time, Robert German, Ron Nickels, and Charles
Rachel, joined Hanicke in soliciting cards from
their fellow employees. Donald Owens, the Union's
organizer, testified that these card solicitors were
four of the five, persons who "really worked like
hell to keep the guys together and everything
else. In the course of soliciting their fellow em-
ployees to sign, these four employees made a 'varie-
ty of statements, as found by the hearing officer, to
the effect that if an employee signed a card at some
point during the campaign before the election, his
union initiation fee would be waived. Such state-
ments, if attributable to the Union, are grounds for
overturning the election under NLRB v. Savair
Mfg. Co., 414-U.S. 270, 272, 281 (1973).
Section 2(13) of the Act provides that:
In determining, whether any person is acting as
an "agent" of another person so as to- make
such other person, responsible for his acts, the
question of whether the. specific acts, per-
formed were actually, authorized or subse-
quently ratified shall not be controlling.
Application of this statutory provision leads us
to conclude that, in the absence of extraordinary
circumstances , employees who solicit authorization
cards should be,deemed special agents of the union
for the limited purpose of assessing the impact of
statements about- union fee waivers or -other pur-
ported union policies that, they make .in the course
of soliciting.? When a union makes authorization
cards available to,employees with the understand-
ing that they will solicit other employees to sign
them, it thereby vests the solicitors with actual, an-
thority to obtain signed .cards -on its behalf. See -Re-
statement 2d, Agency- (1958). Additionally, when a
union permits or acquiesces in employees' soliciting
on its behalf without indicating to third parties that
such solicitation is unauthorized, it thereby vests
the solicitors with apparent authority to obtain
signed cards. on its behalf.8 In both cases, whether
7 As set out in Restatement, 2d, Agency § 3(2) (1958), "[a] special agent
is an agent authorized to conduct a single transaction or a series of trans-
actions not involving continuity of service."
8 By allowing employees, to engage in unfettered solicitation activities
and by using the signed cards they obtain to support the filing of a peti-
tion, the union becomes "responsible for the information which comes to
the mind of the third person" regardless of whether or not it knows of
the specific conduct involved. The union in that situation either has
"intend[ed] to cause the [unit employees] to believe that the [solicitor] is
Continued
DAVLAN ENGINEERING
by action or inaction, the union has created a spe-
cial agency relationship for the limited purpose of
card solicitation. See Restatement 2d, Agency § 3
(1958). Accordingly, the union will be deemed re-
sponsible for representations concerning its fee-
waiver policies made by its special agent solicitors,
whether or not they have been specifically author-
ized or instructed to speak on this subject. See gen-
erally Restatement 2d, Agency § 161A, 162 (1985).
A union may avoid responsibility for the improp-
er fee-waiver statements of its solicitors, however,
by clearly publicizing a lawful fee-waiver policy in
a manner reasonably calculated to reach unit em-
ployees before they sign cards. Such publicity may
take any number - of forms including, for example,
an explanation of the fee-waiver policy printed on
the authorization card itself -A union that fails to
take adequate steps to provide the employees with
an explanation- of its policy acts at its peril.9
Applying these principles to the facts presented,
we find that when Union Business Agent ,Vaughn
mailed 50 authorization cards to Douglas Hanicke
with instructions to get them signed, he thereby
vested Hanicke with actual authority to engage in
solicitation, making Hanicke the Union's special
agent for the limited purpose of soliciting cards. By
acquiescing in solicitation activities by Nickles,
Rachel, and German, the Union vested these three
employees with apparent authority to solicit, and
likewise rendered them its special agents. All four
made improper ,fee-waiver statements . By virtue of
their status as special agents of the Union, their
statements were imputable to the Union.10
authorized to act for [it] or should realize that [the] conduct is likely to
create such belief." Restatement 2d, Agency § 27 (1958).
9 Obligating a union to provide employees with, a clear explanation of
its fee waiver is neither onerous nor unfair . Compared with the entirely
avoidable expenditure of time, money, and Board ' resources attendant to
litigating Savair objections and holding rerun elections , the burden on a
union of publicizing its policy is relatively slight. The union is the party
to the election that derives the benefit from card solicitation and is alone
in a position to explain authoritatively its fee-waiver policy. By undertak-
ing an effective explanation of its fee-waiver policy, a union may protect
the election victory it seeks from attack on Savair grounds.
io See Dollar Rent-A-Car, 236 NLRB 206,216 fn. 11 (1978) (m which
it was found that statements made by an employee the union designated
to solicit cards were, attributable to the union); J.C` Penney Co., 214
NLRB 445, 452 (1974) (in which the Board set aside an election based on
improper Savair statements made by two employees to whom the union
had given cards and instructed to solicit signatures); and Woodworkers
805
The Union here did not adequately inform the
unit employees of a lawful fee-waiver policy.
Union Business Agent Vaughn, who gave the cards
to employee solicitors, as noted above, gave no in-
structions regarding to the Union's waiver policy.
At most, Vaughn's testimony reveals that at a
meeting with employees he may have told them
that he would discuss fees after the election. Union
Business Agent Owens testified that he "might
have" mentioned the Union's - fee-waiver policy
while meeting with some employees, that he did
not see why he "shouldn't of." He testified that ' in
a discussion with employees he may have said he
would talk to the Union's district body about re-
ducing fees for the newly organized shop, but
could not recall any specific meeting where the
matter was discussed. We do not view this as ade-
quate to establish that the effects of the statements
of _the four solicitors were or could have been neu-
tralized and find that the statements reasonably
tended to interfere with the outcome of the elec-
tion.
Accordingly, we find merit to the Respondent's
Objection 1 and deny the General Counsel's
Motion for Summary Judgment.
ORDER
It is ordered that the proceeding in Case 14-RC-
93,83 is reopened and consolidated with the pro-
ceeding in Case 14-CA-16116.
IT IS FURTHER ORDERED that the General Coun-
sel's Motion for Summary Judgment is denied, and
the complaint in Case 14-CA-16116 is dismissed.
IT IS FURTHER ORDERED that the Certification of
Representative in Case 14-RC-9383 is vacated.
IT IS FURTHER ORDERED that the proceeding in
Case 14-RC-9383 is remanded to the Regional Di-
rector for Region 14 for the purpose of holding a
second election.11
[Direction of Second Election omitted from pub-
lication.]
(Central Veneer), 131 NLRB 189, 190 (1961) (in which the ]Board found
that a union had made a nonemployee its agent when it provided him
with authorization cards to solicit employees and accepted the results of
his efforts by filing a petition based on the signed cards he procured).
11 Should the Union not wish to proceed to an election, it may with-
draw its petition without prejudice to filing a new petition.