Evans Rotork, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1979

242 N.L.R.B. 1317 (N.L.R.B. 1979)

EVANS ROTORK, INC.
Evans Rotork, Inc. and International Association of
Machinists and Aerospace Workers, District Lodge
49, Local Lodge 519, AFL-CIO Petitioner. Case
28-RC-3534
June 20, 1979
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
Pursuant to authority granted by the National La-
bor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered objections to an elec-
tion' held on October 27, 1978, and the Acting Re-
gional Director's report, the pertinent portions of
which are attached hereto as an appendix, recom-
mending disposition of same. The Board has reviewed
the record in light of the exceptions and briefs,2 and
hereby adopts the Acting Regional Director's findings
and recommendations.3
Objection 2 filed by the Employer with respect to
conduct affecting the election herein stated as fol-
lows:
The Union leaders disrupted the election by of-
fering to employees who signed cards and agreed
to vote for the Union a waiver of initiation fees
and dues, but employees who failed to sign cards
and vote for the Union would be required to pay
initiation fees and dues.
In support of this objection the Employer sub-
mitted an executed statement by one of its employees.
In his statement the employee stated that Houston B.
Quick, a representative of the Petitioner, informed
approximately 10 employees 4 in attendance at a meet-
ing on October 25, 1978, that "the Union was moving
The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was: 32 for, and 25 against, the Petitioner;
there were no challenged ballots.
2 In its supplement and second supplement to exceptions, the Employer
contends that a hearing is warranted herein under General Knit of California,
Inc., 239 NLRB 619 (1978), specifically asserting in its supplement to excep-
tions that the Petitioner made "egregious" misrepresentations prior to the
election concerning the Employer's financial condition. We find this conten-
tion without merit. Thus, the Employer did not allege that Petitioner had
made such misrepresentations in its objections, the Acting Regional Director
did not refer to any such misrepresentations as having been discovered dur-
ing the course of his investigation. and the Employer did not raise these
misrepresentations in its initial exceptions to the Acting Regional Director's
report. Furthermore, the Employer merely asserts that the Petitioner made
such "egregious" misrepresentations regarding the Employer's financial con-
dition at some unspecified time prior to the election and has offered no
evidence in support of its assertions.
3 In the absence of exceptions thereto, we adopt, pro forma, the Acting
Regional Director's recommendation that the Employer's Objection 3 be
overruled.
I Respondent employed approximately 70 employees who were eligible to
vote in the representation election.
into a new company and that all initiation fees would
be waived for those employees who joined 'up
front.' " As a result of further investigation, a second
employee who had attended the same meeting stated
that Quick had told the employees at this meeting
that anyone who joined within a reasonable period
after the election would not have to pay initiation
fees. In addition, the Acting Regional Director's re-
port relies on statements from another witness who
indicated that Quick told employees that those who
wanted to join need pay only dues (and no initiation
fees) until the time that a collective-bargaining agree-
ment was reached, and those of two other witnesses
who stated that Quick told them that those employees
who are now working would not have to pay initi-
ation fees.
Even assuming, arguendo, that our dissenting col-
league is correct in stating that an offer to waive initi-
ation fees for employees who join "up front" is am-
biguous and objectionable under Savair,5 we find that
the administrative investigation has resolved all sub-
stantial and material issues of fact, and the evidence
relied on by the Acting Regional Director clearly
shows that the scope of the Petitioner's waiver was
sufficiently clarified at this meeting to render the "up
front" statement unobjectionable. 6 The administra-
tive investigation in this case obtained statements
from four other witnesses who heard Quick unam-
biguously state that the waiver would be applicable to
employees who joined the Union after the election.
Such clarification regarding the applicability of the
waiver renders it entirely unreasonable for an em-
ployee to have interpreted the "up front" colloquial-
ism in a manner that would be objectionable in Sa-
vair. While our dissenting colleague correctly points
out that the Acting Regional Director did not specif-
ically conclude that what the other employees heard
was intended to clarify the "up front" reference, we
would not require the Petitioner to have specifically
defined the phrase "up front" before we would find
that the ambiguous waiver was adequately clarified.
Although we share our dissenting colleague's con-
cern regarding the Acting Regional Director's reli-
ance on the unsworn and unsigned supplemental
statement from the employee who had originally ex-
ecuted the statement regarding the "up front" com-
ment by Quick,7 we disagree with the inference that
this Board generally may not consider unsigned, un-
sworn statements during administrative investigations
N.L R.B. v. Savair Manufacturing Co.. 414 U.S. 270 (1973).
6 See Inland Shoe Manufacturing Co., Inc., 211 NLRB 724 (1974).
' In its exceptions to the Acting Regional Director's report, the Employer
asserts that the employee referred to has failed to sign the second statement
prepared by the Board agent, that the second statement contains statements
that are contrary to the first statement, and that the Board agent did not
accurately depict in the second statement the employee's version of the
events involved.
242 NLRB No. 176
1317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regarding objections to an election. Furthermore, the
Acting Regional Director's reliance on the statements
of several other witnesses clearly shows that the dis-
sent errs in stating that the finding regarding the ex-
tent of the waiver could only have been reached by
relying on the unsigned. unsworn affidavit. Conse-
quently, we need not rely on the second unsworn,
unsigned statement to reach the conclusion that the
waiver here was not objectionable. The fact that some
employees who heard the "up front" statement in iso-
lation might have subjectively interpreted it to mean
that they would have to become a member of the
Union prior to the election in order to have their ini-
tiation fees waived would clearly be an unreasonable
interpretation of the union representative's statements
in view of the totality of the circumstances, including
the evidence submitted from the other employees. Ac-
cordingly, we conclude that the Acting Regional Di-
rector correctly overruled this objection.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for International Association
of Machinists and Aerospace Workers, District
Lodge 49, Local Lodge 519, AFL-CIO, and that, pur-
suant 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
following appropriate unit for the purposes of collec-
tive bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment:
All production, maintenance, shipping and re-
ceiving employees, clerical employees, salesmen,
truckdrivers, and draftsmen employed by the
Employer at its 5530 North 51st Avenue, Glen-
dale, Arizona, location: excluding confidential
secretary, watchmen, guards and supervisors as
defined in the Act.
MEMBER TRUESDALE, dissenting in part:
Contrary to my colleagues, I would not certify the
Petitioner at this time. Rather, I would remand this
proceeding for a hearing with respect to the Employ-
er's Objection 2.
In Objection 2, the Employer alleged that Peti-
tioner had offered to waive initiation fees and dues
for employees who signed cards and agreed to vote
for the Union in violation of N.L.R.B. v. Saav'ir
Manufacturing Co.8 In support of this objection, the
Employer submitted the sworn affidavit of employee
Laney which stated that a union official had told a
group of employees that "the union was moving into
a414 U.S. 270 (1973).
a new company and that all initiation fees would be
waived for those members who joined 'up front.'"
During the investigation of this objection, the
Board agent took an unsigned, unsworn supplemental
statement from Laney. This statement purportedly
clarified what Laney had understood by the union
official's reference to a waiver of fees for members
who joined "up front." The supplemental statement
indicated that the union official informed the employ-
ees that they would not have to pay the initiation fee
if they joined the Union after the election, but that
new employees or present employees who decided to
join "later down the road" would have to pay the fee.
In addition to Laney's second statement, the Board
agent also took statements from other employees who
attended the same meeting. These employees stated
variously that the Union would waive initiation fees
for "anyone who joined within a reasonable period
after the election"; "until the time that a collective
bargaining agreement was reached": and for those
"employees now working" for the Employer.
Based on Laney's "clarification" and on the other
employees' statements, the Acting Regional Director
found that there was no evidence indicating that the
waiver was applicable only to employees who joined
the Union prior to the election and that all witnesses
agreed that the offer to waive initiation fees was open
for some time after the election. He therefore recom-
mended that Objection 2 be overruled.
Contrary to my colleagues, I conclude that the Em-
ployer's Objection 2 raises substantial and material
issues of fact which can best be resolved by a hearing.
Thus. Laney's sworn affidavit alleges that the Peti-
tioner offered to waive initiation fees for employees
who joined "up front." This offer in itself is ambigu-
ous, and, if made, would be objectionable under Sa-
vair, unless subsequently clarified by the Petitioner.
See, Inland Shoe Manufacturing Co., Inc., 211 NLRB
724 (1974). In this regard, I am at a total loss to un-
derstand my colleagues' conclusion that Laney's un-
signed, unsworn statement constitutes a reliable clari-
fication of his sworn affidavit. Furthermore, I see no
basis for concluding that the versions given by the
other employees demonstrate that the union official
subsequently clarified his alleged "up front" state-
ment. These versions merely appear to be different
accounts of what the union official said. Thus, I point
out that the Acting Regional Director did not con-
clude that these other versions in any way clarified
the statement attributed to the union official by
Laney. Instead, he found that all witnesses agreed
that the waiver was open until after the election-a
finding which he could reach only by relying on
Laney's unsigned, unsworn statement. Finally, that
the versions of the other witnesses are inconsistent
with Laney's sworn affidavit, in my view, clearly pres-
1318
EVANS ROTORK. INC.
ents a credibility conflict which properly must be re-
solved at a hearing.
For the foregoing reasons, I would remand this
proceeding for a hearing with respect to the substan-
tial and material issues of fact raised by the Employ-
er's Objection 2. I therefore dissent.
APPENDIX
Objection 2
The employee statement furnished by the Employer in
support of Objection I also contains evidence to support
Objection 2. In that statement, the witness stated that
Quick told employees at the October 25th meeting that the
Union was moving into a new company and that all initi-
ation fees would be waived for those employees who joined
"up front." In a supplemental statement, the employee wit-
ness clarified what Quick meant by "up front." He stated
that Quick told the employees that the waiver of initiation
fees would not be applicable indefinitely and that new em-
ployees hired after the election and those who joined "later
on down the road" will be levied initiation fees. According
to this witness, Quick did not define "later on down the
road" but Quick did state that employees who joined right
after the election would not have to pay initiation fees. Fi-
nall'. the witness stated that Quick's remarks meant to him
that, if the Union won, the employees would be pressured
to join the Union promptly or soon after the election to
save their initiation fees.
Another witness who attended this same meeting stated
that Quick told them that anyone who joined within a rea-
sonable period after the election would not have to pay
initiation fees.
A third witness testified that Quick told employees that
employees who wanted to join need pay only dues (and no
initiation fees) until the time that a collective-bargaining
agreement was reached.
Two other witnesses stated that Quick told them that
those employees who are now working would not have to
pay initiation fees.
Quick stated that he does not recall mentioning initiation
fees at the October 25th meeting. However, according to
Quick, it is the Petitioner's policy not to assess initiation
fees to employees of new companies that Petitioner is orga-
nizing.
It is well established that a Union may waive initiation
fees for all eligible voters prior to an election as long as it
also waives such fees for a period of time after the election.
Rounsaville of Tampa Inc., 227 NLRB 1079; Allied Metal
Hose Company, Inc., 219 NLRB 1135; GTE Lenkurt, Incor-
porated, 215 NLRB 321. None of the witnesses testified that
the waiver of initiation fees was applicable only to those
who joined the Union before the election. All witnesses
agree that the offer to waive initiation fees was applicable
for some period of time after the election. Accordingly. I do
not find that the Petitioner's offer to waive initiation fees
constitutes grounds for setting the election aside. Smith
Company of California, Inc., 215 NLRB 530: Endless Mold,
Inc., 210 NLRB 159.
Contrary to the Employer's contention, there is no evi-
dence that agents of the Petitioner told employees that the
Petitioner would waive initiation fees only for those em-
ployees who voted for the Petitioner.
Based on the foregoing, I recommend that Objection 2 be
overruled.
1319