Gaylord Bag Co.

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 306 (N.L.R.B. 1993)

306
313 NLRB No. 49
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The allegations contained in the Employer’s objections were also
included in an unfair labor practice charge filed by the Employer
against the Petitioner in Case 13–CB–13889. The Regional Director
approved a unilateral settlement of that case on December 30, 1992,
and dismissed the charge. The Union complied with the settlement
agreement, which required that it post an appropriate notice to em-
ployees. We take administrative notice that on March 10, 1993, the
General Counsel denied the Employer’s administrative appeal of the
Regional Director’s action.
2 By letter of August 10, 1992, the Petitioner informed the Em-
ployer that three employees—Michael Leveille, Michael Zmuda, and
Dwayne Lee—constituted the union organizing committee at the
Employer’s facility. The Petitioner’s field representative, Burton,
gave the committee members cards and explained how to solicit sig-
natures. Burton, in an August 17 letter to card signers, identified the
committee members as having taken on a leadership role in the cam-
paign. We agree with the Regional Director that these employees
were special agents of the Petitioner for the purpose of obtaining au-
thorization cards and that their unlawful fee-waiver statements are
imputed to the Petitioner. There is also evidence that John Green,
acting in concert with members of the organizing committee, passed
out authorization cards and made unlawful fee-waiver statements.
We find, in that regard, that Green was acting as the Petitioner’s
agent and that his conduct is imputed to the Petitioner. The Em-
ployer also contends that John Williams was the unidentified em-
ployee, referred to in the Regional Director’s report, who solicited
cards and made unlawful fee-waiver statements to Witness E. We
find the evidence insufficient to support this contention. In his state-
ment Witness E described Williams as ‘‘a Union supporter who so-
licited card signatures . . . during the campaign’’; but he did not
claim that Williams solicited his signature or that he actually wit-
nessed Williams soliciting cards from any employee. There is no
other evidence showing that Williams engaged in card solicitation or
otherwise acted as the Petitioner’s agent and no basis for imputing
his conduct to the Petitioner.
3 On September 13 and 27, 1992, over a month after the petition
and showing of interest were filed, the Petitioner held meetings and
explained its lawful fee-waiver policy—that no fee or dues obliga-
tion would arise until a contract had been ratified, and only employ-
ees hired after the ratification date would be required to pay an initi-
ation fee.
Gaylord Bag Company and Production and Mainte-
nance Union Local 101, an affiliate of Chicago
Truck Drivers Union, Petitioner. Case 13–RC–
18529
November 23, 1993
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has considered
objections to an election held October 15, 1992, and
the Regional Director’s report recommending disposi-
tion of them. The election was held pursuant to a Stip-
ulated Election Agreement. The tally of ballots shows
33 for and 18 against the Petitioner with 8 challenged
ballots, an insufficient number to affect the results.
The Board has reviewed the entire record in light of
the exceptions and brief, has adopted the Regional Di-
rector’s findings and recommendations, and finds that
the election must be set aside and a new election held.
In its objections, the Employer alleged that the Peti-
tioner ‘‘unlawfully solicited union cards and support
for the Union by making promises and threats . . .
that fees would be waived or reduced for those em-
ployees who supported the Union and signed Union
cards before an election.’’ The Employer contended
that the ‘‘objectionable conduct . . . materially af-
fected the results of the . . . election and warrants and
requires that those results be set aside.’’ The Regional
Director recommended sustaining this objection and di-
recting a second election. The Employer has excepted
to the Regional Director’s failure to find that the
Union’s conduct ‘‘fundamentally tainted the showing
of interest’’ such as to require dismissal of the petition.
We deny the Employer’s exceptions, for the reasons
set forth below.1
The Regional Director’s investigation disclosed the
following. Within approximately 2 weeks following the
October 15 election the Employer raised questions, for
the first time, about whether the Petitioner’s initial
showing of interest was tainted. It provided to the Re-
gional Director unsworn statements from five employ-
ees in which they reported being approached during
the preelection campaign and informed by members of
the Union’s organizing committee2 that they would or
might be required to pay an initiation fee if they did
not sign union authorization cards before the election.
One member of the organizing committee admitted
making such a statement to employees, and the others
denied having done so. The Petitioner did not establish
that it had disseminated a lawful fee waiver policy be-
fore employees signed authorization cards.3
As a preliminary matter, we note that in its objec-
tions the Employer sought only to have the election re-
sult set aside. Now, in its exceptions, it seeks for the
first time to have the petition dismissed. Assuming,
without deciding, that the Employer’s attempt to have
the petition dismissed at the exceptions stage of the
proceedings was timely and otherwise in compliance
with the requirements of Section 102.69 of the Board’s
Rules and Regulations, we address the merits of the
Employer’s exceptions. First we address the Employ-
er’s contentions regarding the showing of interest. In
that regard, we shall treat the exceptions, in part, as an
administrative appeal of the adequacy of the Petition-
er’s showing of interest, and in part as a postelection
challenge to the Regional Director’s administrative de-
termination regarding the adequacy of the showing of
interest. We will then address the Employer’s argu-
ment that the appropriate remedy for the Petitioner’s
misconduct is to dismiss the petition.
(1) The Board consistently has held that the showing
of interest is a matter for administrative determination,
307GAYLORD BAG CO.
4 NLRB v. Savair Mfg., Co., 414 U.S. 270 (1973).
5 Nu-Aimco and the related cases cited by the Employer involved
the processing of individuals’ decertification petitions following
compliance with agreements in settlement of union unfair labor prac-
tice charges against employers that blocked the processing of the pe-
titions. The issue in Nu-Aimco was whether the Regional Director
erred in processing a decertification petition after a blocking charge
had been resolved by the execution of a settlement agreement. After
considering the nature of a settlement agreement and related policy
considerations, the Board concluded that the execution of a settle-
ment agreement alone was insufficient to require the dismissal of the
petition. The Board went on to observe that, after there had been full
compliance with the settlement agreement, nothing in its decision
precluded the Regional Director, prior to reinstating the petition,
from examining the showing of interest pursuant to the usual prin-
ciples applicable to that administrative inquiry, e.g., whether the
‘‘decertification petition has been circulated and signed by employ-
ees, met all of the Board’s technical showing of interest require-
ments, and was otherwise timely filed.’’ Id. at 978. However, in con-
trast to the facts presented here, the settled charges in Nu-Aimco
were filed prior to the election. As noted above, once the election
has been held, there is no occasion for the Board to revisit the issue
of whether a question concerning representation exists.
In Jefferson Hotel, the Board clarified its holding in Nu-Aimco by
stating its intent that a decertification petitioner should be included
in settlement discussions to allow for the possibility that the peti-
tioner could agree to a settlement conditioned on dismissal of the pe-
tition. The Board explained, however, that without the petitioner’s
agreement, the Board would not find that the petitioner had waived
its right to have the petition processed. As noted above, once the
election has been held, there is ordinarily no occasion for the Board
to revisit the issue of whether a question concerning representation
exists. (The Board, may, however, treat the election as a nullity
when an employer has engineered the filing of a decertification peti-
tion and thereby abused the Board’s electoral processes. Ron
Tirapelli Ford v. NLRB, 987 F.2d 433, 443 (7th Cir. 1991).)
and is not litigable by the parties. See, e.g., Barnes
Hospital, 306 NLRB 201 fn. 2 (1992); Globe Iron
Foundry, 112 NLRB 1200 (1955); Potomac Electric
Power Co., 111 NLRB 553, 554 (1955). It is exclu-
sively within the Board’s discretion to determine
whether a party’s showing of interest is sufficient to
warrant processing a petition. S. H. Kress & Co., 137
NLRB 1244, 1248 (1962). The purpose of a showing
of interest is to determine whether the conduct of an
election serves a useful purpose under the statute—that
is, whether there is sufficient employee interest to war-
rant the expenditure of time, effort, and funds to con-
duct an election. NLRB v. J. I. Case Co., 201 F.2d 597
(9th Cir. 1953); Stockton Roofing Co., 304 NLRB 699
(1991), and cases cited there. Whether the employees
desire representation is determined by the election, not
by the showing of interest. NLRB v. J. I. Case Co.,
supra.
Here, the showing of interest was administratively
determined to be adequate at the time it was submitted.
There is no indication that, at that time, the Regional
Director was presented with evidence that cards were
invalid. See Goldblatt Bros., Inc., 118 NLRB 643 fn.
1 (1957). Thereafter, an election was conducted and
the Petitioner won. Pursuant to the Board’s established
policy, after the election the adequacy of the showing
of interest is irrelevant.
Nonetheless, even considering the adequacy of the
Petitioner’s showing of interest in light of the Employ-
er’s evidence, we are satisfied that it was adequate to
support the petition. The Petitioner submitted 40 au-
thorization cards to support its petition for an election
in a unit containing approximately 62 employees, well
in excess of the 19 cards needed for a 30-percent
showing. See Section 101.18(a) of the Board’s Rules.
Even without reliance on the cards of the five Em-
ployer witnesses who may have succumbed to the al-
leged fee-waiver promises, the showing was still great-
er than that we require. The Employer presented
unsworn statements and affidavits from five employ-
ees, referred to as Witnesses A through E. Only Wit-
nesses B and C stated that they had signed authoriza-
tion cards. Witness C later asked for information about
how to retract his card, but the record does not show
whether he actually did so. In apparent contradiction of
the Employer’s claim that the union promises of fee-
waiver fatally tainted the showing of interest, Wit-
nesses A and D stated that they did not sign authoriza-
tion cards. Witness E did not say whether or not he
signed a card. Although the Employer appended to its
supporting brief only these five affidavits, it adverts to
‘‘seven instances [of promises or threats of fee waiv-
ers] relied on by the Regional Director in determining
that Gaylord’s [parallel] unfair labor practice charge
was meritorious’’ (emphasis added). Even if seven au-
thorization cards were rejected as tainted, there would
still have been an adequate showing of interest.
(2) In its exceptions, the Employer also contends
that the Regional Director’s failure to dismiss the peti-
tion, in view of the Petitioner’s Savair4 violations, is
contrary to Board precedent, which, it contends, re-
quires a petition’s dismissal and the submission of a
new petition supported by a new showing of interest,
gathered only after the Petitioner’s unfair labor prac-
tices have been fully remedied. The Employer relies on
the Board’s decision in Nu-Aimco, Inc., 306 NLRB
978 (1992), as further explicated in Canter’s Fairfax
Restaurant, 309 NLRB 883 (1992), and Jefferson
Hotel, 309 NLRB 705 (1992). To the extent that the
Employer reads Nu-Aimco and related cases as requir-
ing dismissal of the petition, it has misconstrued the
Board’s holdings. In Nu-Aimco, Canter’s Restaurant,
and Jefferson Hotel, the petitions were in fact proc-
essed after the unfair labor practice charges had been
remedied.5 In its brief the Employer has failed to cite,
nor have we found, any cases to support its argument
for outright dismissal of the petition. These cases are
otherwise distinguishable.
(3) We also find misplaced the Employer’s concern
that the General Counsel’s settlement of the Employ-
er’s parallel unfair labor practice charges against the
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 See fn. 1, supra.
Petitioner,6 in conjunction with the operation of the
Board’s policy regarding showing of interest, effec-
tively denies the Employer the opportunity to establish
that the Petitioner’s conduct warrants the dismissal of
the petition. This contention misconstrues both the
policies which underlie the Board’s showing-of-interest
requirement in representation cases, as discussed
above, and the policies regarding settlement of unfair
labor practice charges. These policies address inde-
pendent matters and cannot be piggybacked to make a
case where there otherwise is none.
Accordingly, we adopt the Regional Director’s rec-
ommendation and order that the election be set aside
and that a new election be held.
[Direction of Second Election omitted from publica-
tion.]