King Wholesale, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1983

266 N.L.R.B. 1163 (N.L.R.B. 1983)

KING WHOLESALE, INC.
King Wholesale, Inc. and International Longshore-
men's Association, AFL-CIO, Petitioner. Case
5-RC- 11576
2 August 1983
DECISION ON RECONSIDERATION,
ORDER, AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On 14 June 1982 Hearing Officer Daniel J. Pag-
nano issued his Report on Objection in the above-
entitled proceeding, in which he recommended that
the Employer's objection be overruled and that Pe-
titioner be certified.' On 30 September 1982 the
Board issued a Supplemental Decision, Order, and
Direction of Second Election,2 in which, contrary
to the Hearing Officer's recommendation, it sus-
tained the Employer's objection. Thereafter, Peti-
tioner filed a motion for reconsideration, a support-
ing brief, and an amendment and supplement there-
to, and the Employer filed a brief opposing Peti-
tioner's motion.
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.
In its Supplemental Decision, Order, and Direc-
tion of Second Election, the Board concluded that,
during the campaign, Petitioner made an ambigu-
ous offer to waive union initiation fees which the
employees might reasonably have understood to be
conditioned upon their signing authorization cards
before the election. Because such a conditional
offer to waive initiation fees is proscribed by the
Supreme Court's opinion in NLRB v. Savair Mfg.
Co.,3 the Board set aside the election.
In support of its motion for reconsideration, Peti-
tioner argues that the Board erred by failing to
consider the entire context in which its offer to
waive initiation fees was made, and that when so
considered it is clear that there was no ambiguity
in its waiver.
On 7 July 1981 Petitioner's agent Sullivan spoke
with the Employer's employees at Petitioner's ini-
tial organizing meeting.4 He began by describing
the steps required for Petitioner to become the em-
ployees' certified bargaining representative. In this
connection, he stated that if the Board were satis-
fied that at least 30 percent of the employees in the
i The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was: 12 for, and 6 againsi. Peti-
tioner. There were no challenged ballots.
2 264 NLRB No 118,
3 414 U.S 270(1973)
4 Sullivan's tesilmony swas credited by the Hearing Officer
266 NLRB No. 208
unit desired an election, based on their signing au-
thorization cards, an election would be directed.
He noted that, if Petitioner won the election, the
Board would issue a certification, and the Employ-
er would then be required to bargain in good faith
concerning terms and conditions of employment.
He then told the employees that, if Petitioner won
such an election and was certified, he would ask
the International to issue a charter making the Em-
ployer's employees an autonomous, self-governing
local union of the International Longshoremen's
Association. He noted that this was appropriate in
their case because, as delivery drivers, they did not
fit into any of Petitioner's established locals. Subse-
quently, in response to employee questions, Sulli-
van described the mechanics of bargaining for a
collective-bargaining agreement, emphasizing to
the employees that the International would assist
them in bargaining but that they would form their
own bargaining proposals and would govern them-
selves within the parameters and minimum stand-
ards set forth in the International's constitution. He
was also asked about dues and initiation fees, and
he answered that:
. . . there's a minimum initiation fee and I be-
lieve it's around $50 or $60 that must be paid,
of which all but $15 remains in the local union
treasury; that the initiation fee, under the
terms of the constitution and bylaws, is auto-
matically waived for 60 days and then beyond
that application may be made by the local
union for an extension of that period, but it is
solely a matter of self government. .. ..
In our prior decision we noted that this state-
ment is susceptible to varying interpretations, in-
cluding a reading under which the 60-day period
would appear to begin to run from the time the
statement was made, 7 July, and thus would expire
prior to the 10 September election. In its motion
for reconsideration, however, Petitioner argues that
it is clear from the total context of Sullivan's pres-
entation to the employees that the discussion of ini-
tiation fees took place immediately after he had
outlined the progression from petition to election
I The "terms of the constitution" to which Sullivan appears to have
been referring in his remarks to employees are set forth in art XVI. sec
l(c), which provides:
The requirements for the payment of initiation fees shall not apply to
newly organized locals for a period of sixty (60) days after their or-
ganization. On application of a Local Union, the International Exec-
utive Officers shall have the power to permit, in writing. partial or
full waiver of the initiation fee in the case of newly organized shops
or establishment.
There was no showing, and Petitioner does not contend. that Sullivan
either distributed copies of the constitution or read this provision to the
employees Accordingly, we give it no lweight in determining whether
Sullivan's remarks constituted an unlawful inducement to employces to
sign authorization cards.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to certification and, finally, to the postelection or-
ganization of a local. Read in context, Petitioner
contends, its offer was to waive initiation fees for
60 days after an election had been won and a local
had been established.
In deciding whether Petitioner's offer was im-
proper, we are confronted with a problem which,
while inherent in all such cases, is particularly diffi-
cult here. The problem is to reconstruct, from testi-
mony which is inevitably somewhat sketchy since
it was given after the passage of time, the context
and thus the import of Petitioner's statements.
Upon careful reconsideration, we are persuaded
that Sullivan did not violate the principles of Savair
when he told the employees that there was an initi-
ation fee, but that all but $15 of it would remain in
the "local union treasury"; that under the "terms of
the constitution and bylaws" the fee would be
waived automatically for 60 days and then, beyond
that, application could be made by the "local
union" for an extension of that period; and that this
was solely a matter of "self government." Not only
did Sullivan preface these statements with a de-
tailed account of the election and certification
process and the formation of a local union, but he
referred back to these concepts in the course of
making the statement objected to under Savair.
Thus, the employees were informed effectively
that, until such time as an election had been held,
Petitioner certified, and a local union organized,
there would be no "local union" in existence to
engage in "self government" or to retain all but
$15 of the initiation fee. In context, therefore, Sulli-
van's statement made it clear that the 60-day
waiver period would not begin to run until some
point after the election.
Moreover, we note that the authorization cards
which Sullivan distributed to the employees were
single-purpose cards which merely authorized Peti-
tioner to represent the employees, and Sullivan's
only reference to the cards was a means of obtain-
ing a Board-run election. The cards did not pro-
vide for membership in Petitioner or any local, and
there is no evidence that the subject of such mem-
bership was discussed as a present option.
We grant Petitioner's motion for reconsideration
and, accordingly, we shall certify Petitioner as the
collective-bargaining representative of the Employ-
er's employees in an appropriate unit.
ORDER
It is hereby ordered that our prior decision
herein (264 NLRB No. 118) be, and it hereby is,
vacated.
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for International Longshore-
men's Association, AFL-CIO, and that, pursuant
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 col-
lective bargaining with respect to rates of pay,
wages, hours of employment, or other terms and
conditions of employment:
All full-time and regular part-time driver-sales-
men employed by the Employer at its Chantil-
ly, Virginia facility, but excluding all other
employees, warehousemen, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
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