DIT-MCO, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1967

163 N.L.R.B. 1019 (N.L.R.B. 1967)

DIT-MCO, INCORPORATED 1019
(c) Keeping the union activity of its employees under
surveillance.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
the above-named labor organization, or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer John C. George, Charles E. Hilton, and
Eunice I. George immediate and full reinstatement to their
former or substantially equivalent positions without
prejudice to their seniority or other rights or privileges,
and make them whole in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Notify John C. George and Charles E. Hilton if
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its stores in Greenville and Honea Path,
South Carolina, copies of the attached notice marked
"Appendix. 1137 Copies of said notice, to be furnished by
the Regional Director for Region 11, after being duly
signed by the Respondent or its authorized
representatives, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.38
WE WILL NOT discourage membership in
Amalgamated Meat Cutters & Butcher Workmen of
North America, Local 442 , AFL-CIO, or any other
labor organization of our employees, by
discriminating in regard to their hire or tenure of
employment , or any term or condition of employment.
WE WILL NOT interrogate our employees
concerning their membership in or activities on behalf
of the above Union or make threats of reprisal or
promises of benefit because of such activity.
WE WILL NOT keep the union activity of our
employees under surveillance.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form labor
organizations , to join or assist the above Union, or any
other labor organization , to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion , or to refrain from any or all such activities.
WE WILL offer John C. George, Charles E. Hilton,
and Eunice I. George immediate and full
reinstatement to their former or substantially
equivalent positions , without prejudice to their
seniority or other rights and privileges , and make
them whole for any loss of pay suffered as a result of
the discrimination against them.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of any labor
organization.
BI-Lo, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1624 Wachovia
Building, 301 North Main Street, Winston-Salem, North
Carolina 27101, Telephone 723-2911.
3' In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
38 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
DIT-MCO , Incorporated and International
Union, United Automobile, Aerospace &
Agricultural Implement Workers of
America, UAW-AFL-CIO, Petitioner. Case
17-RC-4660.
April 12,1967
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
Pursuant to Decision, Order, and Direction of
Second Election issued by the National Labor
Relations Board on April28, 1965,1 a second
election by secret ballot was held under the direction
and supervision of the Regional Director for Region
' Not published in NLRB volumes.
163 NLRB No. 147
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
17 on May 27, 1965, among the employees in the
appropriate unit . Following the election, the parties
were furnished a tally of ballots, which showed that
36 ballots were cast for, and 32 against, the
Petitioner; none were challenged.
Thereafter, the Employer filed timely objections
to conduct affecting the results of the election,
contending, in substance, that the Petitioner
promised to waive initiation fees for new members,
and that this promise was specifically conditioned
upon the Petitioner's winning the election. In
accordance with the Board Rules and Regulations,
the Regional Director conducted an investigation of
the objections, and, on June 22, 1965, issued his
report on objections to second election and
recommendations, recommending that the
objections be overruled. Thereafter, the Employer
filed its exceptions to the Regional Director's report,
in which it requested a hearing. On July 23, 1965, the
Board ordered a hearing on the factual issues raised
by the objections of the Employer.
Pursuant to the Board's Order, a hearing was held
on August 23, 1965, before Hearing Officer Eugene
L. Rosenfeld. All parties appeared and
participated at the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues, was
afforded all parties.
On September 13, 1965, the hearing officer issued
and served upon the parties his report on objections,
in which he found that the objections lacked merit,
and recommended that they be overruled and that
the Petitioner be certified as the exclusive
bargaining representative of the employees involved.
The Employer filed timely exceptions to the hearing
officer's report, and a supporting brief.
The Board has reviewed the hearing officer's
rulings made at the hearing and finds that no
prejudicial error was committed. The Board has
considered the objections, the hearing officer's
report, the Employer's exceptions and brief, and the
entire record in this case, and hereby adopts the
conclusions and recommendations of the hearing
officer.
The hearing officer found that on May 19, 1965,
employee Elenora Everett, an active union organizer
and a union observer at both elections, told
employee Steven Raney that, by signing an
authorization card, he would not be obligated to vote
for the Union, but if he signed the card and the
Union won the election, he would not have to pay an
initiation fee. Everett's remarks were overheard by
one other employee, Robert Luetjen. The hearing
2 We note that the critical period in the instant case runs from
the date of the first election on January 11, 1965 The Singer
Company, 161 NLRB 956
S The Employer's request, in its exceptions, that the hearing
officer's credibility findings be overruled, is denied as the
officer also found that Roy Moore, president of
Petitioner's Local 710, at employee meetings in
January and May 1965,2 answered in the affirmative
when employee Lottie Bloodworth asked if initiation
fees would be waived if a union card was signed
prior to the election, but that Moore did not
condition the waiver on the Union's winning the
election.3 The Petitioner's initiation fee was $15.
In its objections, the Employer contended that
Everett's promise to waive initiation fees
conditioned upon the Petitioner's winning the
election had the effect of impairing the employees'
choice in the election. The hearing officer found that
Everett's statement could not reasonably be
construed by the employees as a promise of benefit
or a threat of penalty unless they voted for the
Petitioner, in view of the fact that only 2 out of some
68 eligible voters heard Everett's remark, Everett
pointed out that signing the card did not obligate the
signer to vote for the Union in the election, and
Everett was neither an official of the Union nor
authorized by it to make the statement. The hearing
officer therefore concluded that the statement at
issue did not impair the employees' freedom of
choice in the election and recommended that the
objection be overruled.
As the hearing officer found, the statement in
issue was an isolated remark made by a rank-and-file
employee, which, as far as the record shows, was not
authorized, approved, or ratified by the Petitioner.
Indeed, the president of Petitioner's Local 710, in
his statements at the employee meetings, did not
condition the waiver of the modest initiation fee on
the outcome of the election. In these circumstances,
we find, in agreement with the hearing officer, that
Everett's remarks are not attributable to the
Petitioner, and, therefore, may not provide a basis
for setting aside the election.4 Lobue Bros., 109
NLRB 1182, relied on by the Employer, is in these
circumstances plainly distinguishable.
We have, however, reexamined the principles
underlying the Board's decision in Lobue, and, for
the following reasons, have determined to overrule
that case.
Prior to Lobue, the Board had recognized that a
union's offer to waive initiation fees before an
election was a legitimate membership-recruiting and
campaign technique. In The Root Dry Goods
Company d/b/a The Root Store, 88 NLRB 289,
290-291, the union offered to waive the $10 initiation
fee for all nonmembers prior to the election. The
Board held this unobjectionable, noting that the
"Union was merely offering special organizing rates
for membership during a pre-election campaign.
credibility findings are not shown by a clear preponderance of all
the relevant evidence to be incorrect Standard Dry Wall
Products , 91 NLRB 544, enfd 188 F 2d 362 (C.A 3).
' See Marmon Bag Company, Inc, 103 NLRB 456, E I DuPont
de Nemours and Co , 105 NLRB 710, 712
DIT-MCO, INCORPORATED 1021
"' Shortly before the Lobue decision, the Board
found to be "lawful union propaganda" a statement
that employees would not have to pay initiation fees
if they "joined the union before, but not after, the
election. 116 Then, in Lobue, the Board held that it
would set aside an election if a preelection offer of
reduced initiation fees to employees who joined the
union was made contingent upon the results of the
election.
In subsequent cases, the Board gave the Lobue
rule a strictly limited construction. In General
Electric Company, 120 NLRB 1035, 1036-37, a union
representative told employees that "not one single
person who votes for the IUE in this election will be
required to pay an initiation fee for membership in
the IUE." The Board held that this statement was
"legitimate campaign propaganda." It relied, inter
alia, on prior statements to the employees that it
was the union 's general policy to waive initiation
fees for all potential members during an election
campaign and that under applicable State law no one
was required to join a labor organization or pay
initiation fees. And, in A. R. F. Products, Inc., 118
NLRB 1456, 1458-59, where the union had offered
reduced initiation fees to employees before the
election, but not thereafter, or after a contract was
signed, the Board commented that "the gist of the
Union's position was merely a prediction upon what
would happen if the Union were voted in, and if it
succeeded in obtaining a union-security provision in
its contract."7 The Board found that this
"prediction" did not impair the employees' freedom
of choice.8
More recently, in Weyerhaeuser Company, 146
NLRB 1, 5, the Board considered an announcement
by union representatives prior to the election that if
all the "employees came in as a group the initiation
fee would be $25 (as opposed to $75)." The Board
found this unobjectionable. It noted that the waiver
did not apply just to certain individuals, as in Lobue,
but to all employees.
Thus, it appears that in cases before and after
Lobue, the Board allowed union agents wide latitude
in what they could say with respect to waiver or
reduction of initiation fees. Indeed, there is no
published decision subsequent to Lobue in which the
Board found that the facts of the case warranted
application of the Lobue rule.
We are now of the opinion that no real distinction
exists between a situation where the union offers to
waive or reduce the initiation fees, but nothing is
said about the election results, and one where, as in
Lobue, the waiver is expressly conditioned on the
outcome of the election. For, whether expressly told
so or not, an employee must recognize that as a
practical matter the waived or reduced initiation fee
can become of value to him only if the union wins the
election.
Even assuming that it is possible to distinguish the
facts in Lobue from those in cases before and after it,
we believe, nevertheless, that the Lobue theory rests
on a faulty premise: that a reduction or waiver of
initiation fees, contingent upon the union winning
the election, constitutes a promise of benefit which
improperly induces or coerces employees to vote for
the union. A full analysis of the circumstances
convinces us that when these employees thereafter
vote by secret ballot, their choice will be completely
free of objectionable interference.
We shall assume, arguendo, that employees who
sign cards when offered a waiver of initiation fees do
so solely because no cost is thus involved; that they
in fact do not at that point really want the union to be
their bargaining representative. The error of the
Lobue premise can be readily seen upon a review of
the consequences of such employees casting votes
for or against union representation. Initially, it is
obvious that employees who have received or been
promised free memberships will not be required to
pay an initiation fee, whatever the outcome of the
vote. If the union wins the election, there is by
postulate no obligation; and if the union loses, there
is still no obligation, because compulsion to pay an
initiation fee arises under the Act only when a union
becomes the employees' representative and
negotiates a valid union-security agreement. Thus,
whatever kindly feeling toward the union may be
generated by the cost-reduction offer, when
consideration is given only to the question of
initiation fees, it is completely illogical to
characterize as improper inducement or coercion to
5 See also The Gruen Watch Company, 108 NLRB 610, 612,
where the Board said, "The practice of offering special reduced
initiation fees during a union 's organizational campaign has been
traditionally used by unions to attract new members." Cf.
Amalgamated Clothing Workers of America, AFL-CIO v.
N L.R.B., 345 F 2d 264 (C.A. 2), a case involving the validity of
authorization cards obtained upon a promised waiver of initiation
fees. The court said. "We are satisfied that Amalgamated had a
constructive reason to waive its initiation fees prior to the time
when it signed a contract with Edro Employees otherwise
sympathetic to the union might well have been reluctant to pay
out money before the union had done anything for them. Waiver
of the payments would remove this artificial obstacle to their
endorsement of the union " A frequently recurring theme in
employers ' arguments to their employees urging the rejection of
union representation is the cost of membership . A wide variety of
reminders of these costs on the day of the election is common in
Board cases "We can give it to you cheaper ," is the essence of
the appeal If a union chooses-as many do-to waive a part of
these costs , the initiation fee, for "charter" members of a new
employee group voting on representation, it is obviously seeking
to reduce what may, in part as a consequence of employer
appeals, be an obstacle to some employees' determination in the
selection of a bargaining representative Such cdst reduction for
recruitment purposes is neither unlawful nor improper.
s The DeVilbiss Company, 102 NLRB 942, 943
See also Otis Elevator Company, 114 NLRB 1490, 1493.
8 Although we would now find somewhat artificial the
characterization of the Union 's promised action as but a "mere
prediction," the decision in the cited case nevertheless reflects
the rather consistent tendency of the Board to find grounds for
holding the unrealistic rule of Lobue inapplicable.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vote "Yes" a waiver of something that can be
avoided simply by voting "No."
The illogic of Lobue does not become any more
logical when other consequences of a vote for
representation are considered. Thus, employees
know that if a majority vote for the union, it will be
their exclusive representative, and, provided a valid
union-security provision is negotiated, they will be
obliged to pay dues as a condition of employment.
Thus, viewed solely as a financial matter, a "no"
vote will help to avoid any subsequent obligations, a
"yes" may well help to incur such obligations. In
these circumstances, an employee who did not want
the union to represent him would hardly be likely to
vote for the union just because there would be no
initial cost involved in obtaining membership. Since
an election resulting in the union's defeat would
entail not only no initial cost, but also insure that no
dues would have to be paid as a condition of
employment, the financial inducement, if a factor at
all, would be in the direction of a vote against the
union , rather than for it. As noted above, many
employers are careful to point this out in
communications to their employees.
In short, there is no valid basis for concluding that
an employee who votes for the union in a secret-
ballot election must be doing so in any substantial
measure because of the previously extended or
promised waiver of initiation fees.9
We conclude, accordingly, that 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. We therefore adopt the
hearing officer's recommendation that the
objections be overruled. To the extent that they are
inconsistent with this decision, Lobue Bros., 109
NLRB 1182, and cases relying thereon, are hereby
overruled.
As we have overruled the Employer's objections,
and as it appears that the Petitioner has secured a
majority of the valid votes cast in the election, we
shall certify the Petitioner as the collective-
bargaining representative of the employees in the
appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America, UAW-AFL-CIO,
has been designated and selected by a majority of
the employees in the unit found appropriate as their
representative for the purposes of collective
bargaining, and that pursuant to Section 9(a) of the
Act, the said labor organization is the exclusive
bargaining agent for all such employees for the
purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
conditions of employment.
" That the amount of initiation fees is not crucial to an
employee's decision to join a union is demonstrated by studies
which show that the most important factors influencing an
employee's choice are a desire for ( 1) higher wages , shorter
hours, and an end to wage inequities , (2) protection from
management favoritism, (3) retaining or gaining the fellowship
and respect of those who are already union members See,
Barbash, The Practice of Unionism, 9-14 (1956), Bakke, Why
Workers Join Unions, in Shister, Readings in Labor Economics
and Industrial Relations , 30 (1951), Seidman, London and Karsh,
Why Workers Join Unions, in Annals, March 1951, p 75
C & C Plywood Corporation and Veneers, Inc.
and Plywood , Lumber and Sawmill Workers
Local Union No . 2405 , AFL-CIO. Case
19-CA-2986.
April 13, 1967
DECISION AND ORDER
On September 7, 1965, Trial Examiner James R.
Hemingway issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in certain unfair labor practices and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondents filed exceptions to the Trial
Examiner's Decision and a supporting brief.
The National Labor Relations Board has reviewed
the rulings of the Trial Examiner made at the
hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and the brief, and the entire record in
this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner only to the extent they are consistent with
our decision herein.
We agree with the Trial Examiner that
Respondents' refusal to bargain was in violation of
Section 8(a)(5) of the National Labor Relations Act,
as amended, but for different reasons. On
August 28, 1962, the Union was certified as the
bargaining representative of Respondents'
production and maintenance employees. A
collective-bargaining agreement was executed on
May 1, 1963, effective to October 31, 1963, and from
year to year thereafter unless either party notified
the other of a desire to change, modify, or terminate
the agreement 60 days before the October 31
anniversary date. On May 20, 1963, Respondent C &
C Plywood Corporation, relying on a clause in the
agreement' and without prior notice to, or
I The pertinent clause reads The employer reserves the right
to pay a premium rate over and above contractual classified
contract rate to reward any particular employee for some special
fitness, skill, aptitude , or the like.
163 NLRB No. 136