L. D. McFarland Co.

National Labor Relations Board - Board Decisions

Jul 28, 1975

219 N.L.R.B. 575 (N.L.R.B. 1975)

L. D. McFARLAND COMPANY 575
L. D. McFarland Company and Willamette Valley
District Council, Lumber and Sawmill Workers
Union. Case 36-CA-2575
July 28, 1975
DECISION AND ORDER
Upon a charge filed on May 29, 1974, by Willam-
ette Valley District Council, Lumber and Sawmill
Workers Union, herein called the Union, and duly
served on L. D. McFarland Company, herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 19, issued a complaint on July 15, 1974,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing be-
fore an Administrative Law Judge were duly served
on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on December 14,
1973, following a Board election in Case 36-
RC-3067, the Union was duly certified as the ex-
clusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate;' and that, commencing on or about December
26, 1973, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On August 23, 1974,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On September 3, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September 13,
1974, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a Motion for Summary Judgment and a
response to Notice To Show Cause entitled
"Employer's Opposition to General Counsel's Mo-
' Official notice is taken of the record in the representation proceeding,
Case 36-RC-3067, as the term "record" is defined in Secs . 102.68 and
102.69(g) of the Board 's Rules and Regulations , Series 8, as amended. See
LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd. 388 F .2d 683 (C A 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F 2d 26
(C A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967);
Follett Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec
9(d) of the NLRA.
tion for Summary Judgment and Argument in Sup-
port of Employer 's Motion for Summary Judgment."
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, its briefs in opposi-
tion to the General Counsel's Motion for Summary
Judgment, and its Motion for Summary Judgment,
the Respondent basically attacks the Union's repre-
sentative status and certification: (1) because the
Union precluded the free choice of employees in the
representation election in Case 36-RC-3067 by of-
fering to waive full initiation fees for all employees
who signed authorization cards before the election, a
violation of the Act under the Supreme Court's deci-
sion in N.L.R.B. v. Savair Manufacturing Co., 414
U.S. 270 (1973), and (2) because the election was in-
adequately supervised and conducted by the respon-
sible Board agent in that (a) persons who had already
voted were allowed to remain at the polling place
and engage in conversation with one another as to
whether a particular individual was going to vote and
(b) one person who was not on the list of eligible
voters was not allowed to vote when he appeared
after the polls had closed early.
Review of the record herein, including the record
in Case 36-RC-3067, indicates that an election was
conducted pursuant to a Stipulation for Certification
Upon Consent Election on April 25, 1973, which re-
sulted in a 16-to-13 vote in favor of the Union, with
2 challenged ballots. Respondent filed timely objec-
tions to conduct affecting the results of the election,
alleging in substance that the Union had directly
promised monetary gain or reward to employees in
exchange for their votes in the election by offering to
waive initiation fees and that the Board agent con-
ducting the election denied a ballot to a potential
voter who appeared after the polls had closed, but
during the posted time for the election to be held.
After an administrative investigation, the Regional
Director issued his Report and Recommendations on
Objections on July 12, 1973, in which he upheld the
propriety of the Union's waiver of initiation fees and
found that the potential voter was not eligible to vote
because at the time in question he had been perma-
nently laid off from work without any prospect of
being recalled. Respondent filed timely exceptions to
this report, reasserting its objections, adding an as-
sertion concerning conversations which occurred
near the polls while voting took place, and asserting
that factual questions had been raised which required
a hearing. Thereafter, the Board, on December 14,
1973, issued a Decision and Certification of Repre-
219 NLRB No. 103
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative rejecting the exception as to polling place
conversations as being conclusionary and untimely
filed, rejecting the other exceptions as raising no sub-
stantial or material issues of fact or law warranting
the reversal of the Regional Director's findings, con-
clusions , and recommendations, and certifying the
Union.
The Respondent notes that prior to the representa-
tion election herein which was held on April 25,
1973, the Union transmitted a letter dated April 21,
1973, to the employees of the Employer, the pertinent
portions of which stated that "THERE WILL BE
NO MONTHLY DUES UNTIL A CONTRACT IS
NEGOTIATED." and "THERE WILL BE NO INI-
TIATION FEE FOR ANY MEMBER PRESENT-
LY WORKING IN THE PLANT." The Respon-
dent contends that the Supreme Court decision in
N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270
(1973), issued after the Board's Decision and Certifi-
cation of Representative, requires denial of the Gen-
eral Counsel's Motion for Summary Judgment. We
find no merit in this contention.
The Union's waiver of dues applied until a con-
tract was negotiated. Such waivers are permissible
under the Savair decision, supra, in which the Su-
preme Court held prejudicial a waiver of an initiation
fee conditioned on an employee's act of signing with
the Union prior to the election .2
The Union's waiver of initiation fees was available
to any member presently working in the plant. The
requirement that an employee must be presently
working in the plant is not objectionable because we
have held in a similar case that "[W]hatever the im-
pact of such a limitation it is clear that it would only
affect those individuals hired after the election who,
in any event, could not have participated in the elec-
tion and could not have had any effect on its out-
come." I The requirement that an employee be a
"member" is not objectionable since such language
places no requirement upon employees to join the
Union before the election. In Savair, supra, the Su-
preme Court merely held that a union may not limit
its waiver of initiation fees to those employees who
sign cards prior to the election. The Court stated that
"permitting the union to offer to waive an initiation
fee for those employees signing a recognition slip
prior to the election . . . allows the union to buy
endorsements and paint a false portrait of employee
support during the election campaign." 4 However,
2 See Con-Pac, Inc, 210 NLRB 466 (1974), affd . 509 F.2d 270 (C.A. 5,
1975). See also Irwindale Division, Lau Industries, a Division of Phillips Indus-
tries, Inc., 210 NLRB 182 (1974).
the Court noted, with approval, the Board's argu-
ment that unions have a valid interest in waiving ini-
tiation fees when the union has not yet been chosen
as a bargaining representative, because "[e]mployees
otherwise sympathetic to the union might [be] reluc-
tant to pay out money before the union [has] done
anything for them. . . ." 5 The Court expressly rec-
ognized the legitimacy of waivers of the type in-
volved here, which apply to employees who sign up
for the union after the election as well as before by
declaring that the union's ". . . interest can be pre-
served as well by waiver of initiation fees available
not only to those who have signed up with the union
before an election but also to those who join after the
election." 6
In the instant case, we find the Union's conduct to
be wholly consistent with the Supreme Court's teach-
ing in Savair, for here, unlike Savair, there was not a
waiver limited to those who signed a card for, or
otherwise supported, the Union before the election.
In this case, the Union's statements in no way im-
plied that eligible voters would have to pay dues or
initiation fees unless they joined the Union prior to
the election. Rather, the employees would have re-
ceived a waiver of dues and initiation fees even
though they had become members of the Union after
the election. Thus, the waiver of dues and initiation
fees here was unconnected with support for the
Union before the election, unrelated to a vote in the
election, and without distinction between joining the
Union before or after the election. Our colleagues,
apparently see some vice in the Union's use of
"members" as those for whom the waiver would be
effective. But those becoming members are the only
ones on whom an initiation fee is imposed, and we
see nothing in the shorthand description of these as
"members" to tie the waiver to preelection support,
any more than we find in the remaining language of
the waiver. Although our dissenting colleagues would
have the Union take steps to clarify these "ambigui-
ties," we see nothing ambiguous or objectionable in
the Union's statement set forth in its letter to em-
ployees dated April 21, 1973. Nor do we see anything
in Savair to require such "clarification." According-
ly, we find that the Employer's objections to the elec-
tion which are based on its interpretation of Savair,
supra, are without merit.
To the extent that the Respondent is seeking reliti-
gation of issues raised or which could have been
raised in the representation case proceeding, it may
not do so. For it is well settled that in the absence of
newly discovered or previously unavailable evidence
3 Endless Mold Inc., 210 NLRB 159 (1974) (waiver to "any employee
employed by the employer when the union was voted in"); Dunkirk Motor 4414 U.S. at 277.
Inn, Inc., d/bla Holiday Inn of Dunkirk Fredonia, 211 NLRB 461 (1974) '414 U.S. 272-274, to. 4
(waiver to "those employees presently employed"). 6 Id.
L. D. McFARLAND COMPANY
or special circumstances a respondent in a proceed-
ing alleging a violation of Section 8(a)(5) is not enti-
tled to relitigate issues which were or could have
been litigated in a prior representation proceeding?
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the de-
cision made in the representation proceeding. We
therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the General Counsel's Motion for Summary
Judgment and deny the Respondent's Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, L. D. McFarland Company, is an
Oregon company with an office and sales facility lo-
cated in Eugene, Oregon, engaged in manufacturing
and selling lumber pressure treated wood products.
During the past year, Respondent, in the course and
conduct of its business operations, had gross sales
across state lines in excess of $100,000. During the
past year, Respondent, in the course and conduct of
its business operations, purchased and received
goods and products valued in excess of $50,000 di-
rectly from firms located outside the State of Oregon.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, an employer engaged in commerce within the
7 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 ( 1941);
Rules and Regulations of the Board, Sees . 102.67(f) and 102 .69(c). Unlike
our dissenting colleagues , we reject the affidavit of employee Charles Fin-
ney which was presented for the first time on appeal to the Board as a part
of the Employer's Motion for Summary Judgment. There is no showing by
the Respondent that such "evidence" was newly discovered or previously
unavailable . Nor is there any showing of special circumstances herein which
would entitle the Respondent to relitigate, by a late affidavit without oppor-
tunity for the other side to cross-examine the affiant or introduce opposing
evidence , issues which were or could have been litigated in the prior repre-
sentation proceeding . Our colleagues regard the Finney affidavit and, ap-
parently, the Savair issue as matters which could not have been litigated in
the representation proceeding, because the Savair decision issued subse-
quently. But, from all that the facts show , the Employer could have present-
ed Finney's affidavit in a timely fashion , just as it presented, in a timely
fashion and as a part of its objections to the election , the Union's April 21,
1973, waiver by letter. The fact that Savair issued after the representation
hearing herein did not preclude the Employer from raising the issue and
presenting evidence (including as an affidavit from Finney ) on it at the
hearing, just as it did not preclude such timely presentation in Savair itself.
577
meaning of Section 2 (6) and (7) of the Act , and that
it will effectuate the policies of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Willamette Valley District Council, Lumber and
Sawmill Workers Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All production, maintenance and transportation
employees of the Employer employed at its pole
and piling treating and manufacturing facility
located on Highway 99 North, Eugene, Oregon,
excepting and excluding office and office cleri-
cal employees, independent contractors and
their employees, temporary employees and su-
pervisors, plant guards and watchmen, and pro-
fessional employees as defined in the Act, as
amended.
2. The certification
On April 25, 1973, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 19, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on December 14, 1973, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about December 26, 1973, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about December 26, 1973, and continuing at all
times thereafter to date, the Respondent has refused,
and continues to refuse, to recognize and bargain
with the Union as the exclusive representative for
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining of all employees in said unit.
We further find that, on or about January 4, 1974,
without notice to or consultation with the Union, Re-
spondent announced a wage increase effective De-
cember 15, 1973, and that on or about March 22,
1974, without notice to or consultation with the
Union, Respondent announced a 6-percent wage in-
crease effective June 1, 1974, establishment of night-
shift differentials, improvements in paid vacations,
improvements in employee health and welfare pen-
sions , and other changes in working conditions, ef-
fective April 1, 1974.
Accordingly, we find that by engaging in such con-
duct the Respondent has, on and since the foregoing
dates, and at all times thereafter, refused to bargain
collectively with the Union as the exclusive represen-
tative of the employees in the appropriate unit, and
that, by such refusal, Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit . See Mar Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record makes the following:
CONCLUSIONS OF LAW
1. L. D. McFarland Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Willamette Valley District Council, Lumber
and Sawmill Workers Union, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production, maintenance, and transporta-
tion employees of the Employer employed at its pole
and piling treating and manufacturing facility locat-
ed on Highway 99 North, Eugene, Oregon, excepting
and excluding office and office clerical employees,
independent contractors and their employees, tempo-
rary employees and supervisors, plant guards and
watchmen, and professional employees as defined in
the Act, as amended, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since December 14, 1973, the above-named la-
bor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about December 26, 1973,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the Act.
6. By announcing a wage increase on January 4,
1974, effective December 15, 1973, and by announc-
ing on March 22, 1974, a 6-percent wage increase
effective June 1, 1974, establishment of night-shift
differentials, improvements in paid vacations and
employee health and welfare pensions, and other
changes in working conditions, effective April 1,
1974, all of which occurred without notice to or con-
sultation with the Union, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
7. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
L. D. McFARLAND COMPANY
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, L. D.
McFarland Company, Eugene , Oregon, its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay. wages, hours, and other terms and con-
ditions of employment with Willamette Valley Dis-
trict Council, Lumber and Sawmill Workers Union,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production, maintenance and transportation
employees of the Employer employed at its pole
and piling treating and manufacturing facility
located on Highway 99 North, Eugene, Oregon,
excepting and excluding office and office cleri-
cal employees, independent contractors and
their employees, temporary employees and su-
pervisors, plant guards and watchmen, and pro-
fessional employees as defined in the Act, as
amended.
(c) Announcing wage increases, night-shift differ-
entials, improvements in paid vacations and employ-
ee health and welfare pensions, and other changes in
working conditions without notice to or consultation
with the Union.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached. embody such understanding in a
signed agreement.
(b) Continue in full force and effect such wage in-
creases , night-shift differentials, and improvements
in paid vacations and health and welfare pensions
granted its employees during the period of its unfair
labor practices and the pending of these proceedings.
(c) Post at its facility located on Highway 99
North , Eugene , Oregon , copies of the attached notice
marked "Appendix." 8 Copies of said notice, on
8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
579
forms provided by the Regional Director for Region
19 after being duly signed by Respondent's represen-
tative, 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
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBERS KENNEDY and PENELLO, dissenting:
Contrary to our colleagues, we find that the
Union's conditional waiver of initiation fees violates
the principles established by the Supreme Court in
N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270
(1973). Accordingly, we would deny General
Counsel's Motion for Summary Judgment, grant
Respondent's Motion for Summary Judgment, and
dismiss the 8(a)(5) complaint in its entirety.
Four days before the election, the Union trans-
mitted a letter to the employees which stated in perti-
nent part: "THERE WILL BE NO INITIATION
FEE FOR ANY MEMBER PRESENTLY WORK-
ING IN THE PLANT." The majority finds this
waiver to be permissible under Savair, supra, because
it "in no way [implies] that eligible voters would have
to pay . . . initiation fees unless they joined the
Union prior to the election." In our view, the majori-
ty simply ignores the plain meaning of the waiver
language.
In waiving initiation fees for "any member pres-
ently working in the plant," the Union has clearly
established two prerequisites for qualifying for the
waiver: (1) the individual must have been "presently
working" at that point in time in the plant, and (2)
the individual must be a "member." Accordingly, the
conditional waiver does not apply to all employees in
the unit-it applies to those who have become union
members before the election .9
The waiver here represents precisely the type of
improper "endorsement buying" which the Supreme
Court sought to eradicate in Savair, supra. In the
words of the Court:
By permitting the union to offer to waive an ini-
tiation fee for those employees signing a recog-
nition slip [i.e., joining the union] prior to the
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
9 Our colleagues thus err in stating that the limitations in the waiver "only
affect those individuals hired after the election .. :. The limitations also
affect those employees working on the date of the election who had chosen
not to become union members up to that time . Compare S & S Product
Engineering Services, Inc., 210 NLRB 912 (1974), enfd. 513 F.2d 1311 (C.A.
6, 1975); GTE Lenkurt, Incorporated, 215 NLRB No. 53 (1974).
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election, the Board allows the union to buy en-
dorsements and paint a false portrait of employ-
ee support during its election campaign.1°
Such is precisely the effect of the conditional waiver
here.
The majority attempts to skirt the Savair issue
through what effectively amounts to an administra-
tive decree: "The requirement that an employee be a
`member' is not objectionable since such language
places no requirement upon employees to join the
Union before the election." From what source does
the majority derive this conclusion? Certainly not
from the Union's letter to the employees. If anything,
the letter undermines their finding. In contrast to the
waiver of initiation fees, monthly dues are waived
"until a contract is negotiated"-a clear indication
that only the waiver of monthly dues is applicable
during the postelection period. If, as our colleagues
now find, the Union had intended to afford similar
treatment to the waiver of initiation fees, one could
logically assume that similar clarifying language
would have been utilized.
Nor can the majority support their findings
through reliance upon preelection pronouncements
of union officials. According to the sworn affidavit
of employee Charles Finney, approximately 10 to 14
days before the election union representatives told
the employees that those "who were or became mem-
bers of the Union prior to the election would not have
to pay any Union initiation fee." " (Emphasis sup-
plied.) This, of course, is exactly 180 degrees re-
moved from what the majority finds.'2
On the basis of the evidence adduced herein, our
colleagues cannot definitively establish that the waiv-
er was available to those employees who chose not to
join the Union until after the election. The most they
can hope to establish is that the terms of the qualified
waiver are unclear with respect to the period of eligi-
bility. The question then becomes who shall bear the
burden of this ambiguity-the Union who authored
the waiver or the employees who may have been mis-
led into joining the Union prior to election in order
to save the costs of paying the Union's initiation fee.
The Board's post-Savair decisions quite clearly-
and in our judgment quite properly-place this bur-
den on the Union." In the three cited cases, the
Board found that waivers limited to employees who
were "charter members" or employees who had ap-
plied for "charter membership" were ambiguous be-
cause, as stated in Inland Shoe, supra, "it was not
made clear whether employees' initiation fees would
be waived for those signing after the election, or only
prior thereto." 14 Thus, the same ambiguity existed in
those cases as exists here-namely, the period during
which an employee must become a "member" (or
"charter member") in order to qualify for the waiver.
In Inland Shoe, supra, the Board concluded that "it
was Petitioner's duty to clarify that ambiguity or suf-
fer whatever consequences might attach to employ-
ees' possible interpretations of the ambiguity." 11 As
reflected in the affidavit of Charles Finney quoted
earlier, the sole "clarification" offered by the Union
here demonstrates that the waiver was available only
to those employees who joined the Union prior to the
election.
For the foregoing reasons, we would deny General
Counsel's Motion for Summary Judgment, grant
Respondent's Motion for Summary Judgment, and
dismiss the 8(a)(5) complaint in its entirety.
10 414 U.S. at 277
"Contrary to our colleagues , we have no hesitation in relying upon the
affidavit of Charles Finney . The affidavit deals exclusively with the lawful-
ness of the waiver under Savair, supra Since the Savair decision had not yet
issued at the time of the representation proceeding , it is quite apparent that
the Employer is not seeking to litigate issues "which were or could have
been litigated in the prior representation proceeding."
17 In addition it 1s clear that the Union did not intend the term "member"
to be synonymous with "employee ." In other parts of the letter it is apparent
that the distinction between "member" and "employee" is recognized and
preserved . For example , the letter is addressed to the "EMPLOYEES OF
McFARLAND COMPANY EUGENE DIVISION" and at one point
states, "Our Union represents employees at McFarland's competitor 's plant
just a short distance away. We encourage you to contact any of our members
at the I .H. Baxter plant...." (Emphasis supplied.)
13 Inland Shoe Manufacturing Co., Inc., 211 NLRB 724 (1974), The Cole-
man Company, Inc., 212 NLRB 927 (1974); DA.B. Industries, Inc., 215
NLRB No. 96 (1974).
14 Inland Shoe, supra.
15 Inland Shoe, supra.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rares of pay, wages, hours, and other
terms and conditions of employment with Wil-
lamette Valley District Council, Lumber and
Sawmill Workers Union, as the exclusive repre-
sentative of the employees in the bargaining unit
described below.
WE WILL NOT announce or grant wage increas-
es, night-shift differentials, improvements in
paid vacations and employee health and welfare
pensions, or any other change in working condi-
tions without notice to or consultation with Wil-
lamette Valley District Council, Lumber and
Sawmill Workers Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
L. D. McFARLAND COMPANY 581
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL , upon request , bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below , with respect to rates of pay, wag-
es, hours , and other terms and conditions of
employment , and, if an understanding is
reached , embody such understanding in a signed
agreement . The bargaining unit is:
All production , maintenance and transporta-
tion employees of the Employer employed at
its pole and piling treating and manufacturing
facility located on Highway 99 North, Eu-
gene, Oregon , excepting and excluding office
and office clerical employees, independent
contractors and their employees , temporary
employees and supervisors, plant guards and
watchmen , and professional employees as de-
fined in the Act, as amended.
L. D. MCFARLAND COMPANY