Regency Electronics, Inc.

National Labor Relations Board - Board Decisions

Dec 23, 1974

215 N.L.R.B. 847 (N.L.R.B. 1974)

REGENCY ELECTRONICS, INC
Regency Electronics , Inc. and International Union of
Electrical Radio and Machine Workers , AFL-CIO.
Case 25-CA-5134
December 23, 1974
SUPPLEMENTAL DECISION AND ORDER'
BY MEMBERS FANNING, JENKINS, AND PENELLO
On September 20, 1974, Administrative Law Judge
Joel A. Harmatz issued the attached Supplemental De-
cision in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief, General Counsel
filed briefs in support of the Administrative Law Jud-
ge's Supplemental Decision and in response to Respon-
dent's exceptions, and the Union filed a brief in re-
sponse to Respondent's exceptions.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondent, Regency Electronics, Inc., Indianapo-
lis, Indiana, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommended
Order.
I The original Decision and Order of the Board was issued on November
30, 1972, and is reported at 200 NLRB 625
2 We do not adopt that part of the Administrative Law Judge's Decision
which rests on the proposition that the critical period for considering evi-
dence offered to support the Employer's objection describing a union waiver
of initiation fees, as condemned by the Supreme Court in NL R B. v Savair
Manufacturing Co, 414 U S 270 (1973), began with the date the first
election was held See Gibson's Discount Center, a Division of Scr,vner-
Boogaart, Inc., 214 NLRB No 22 (1974) We agree, however, with the
Administrative Law Judge that, even considering that evidence, the totality
of the Union's conduct in this instance did not result in the type of waiver
found objectionable by the Court in Savair, supra.
3 The Respondent's request for oral argument is hereby denied as the
record and exceptions in our view adequately present the issues and posi-
tions of the parties.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This supple-
mental proceeding arises from an 8(a)(5) complaint based on
847
Respondent's alleged refusal to bargain with a newly certified
labor organization and is limited to a renewed consideration
of Respondent's Objection 4 to conduct affecting results of a
seond election conducted by the Board on March 24, 1972,
in Case 25-RC-4811.' The supplemental hearing was held
before me in Indianapolis, Indiana, on July 23, 1974, pursu-
ant to the Board's Order Reopening Record and Remanding
Proceeding to Regional Director for Hearing, dated May 21,
1974, which, in turn, was pursuant to an order of the United
States Court of Appeals for the Seventh Circuit, dated March
14, 1974, remanding for a hearing on said objection. After
close of the supplemental hearing, briefs were filed by the
General Counsel and Respondent.
I BACKGROUND
The Union filed a petition in Case 25-RC-4811 on October
20, 1971, and pursuant thereto an election was conducted on
December 17, 1974, in the appropriate unit , with the Union
failing to be designated as exclusive bargaining representative
by a majority of employees casting valid ballots.' Pursuant
to the Union's timely filed objections, the Board on February
25, 1972, set aside said election and directed a second elec-
tion. On March 24, 1972, the second election was conducted,
with the results showing that of 257 eligible voters, there were
10 void ballots, and 133 votes were cast for , and 112 against,
the Union with no challenged ballots. Thereafter, the Em-
ployer filed timely objections to the conduct of the second
election, including, inter alia, its Objection 4, which reads as
follows:
The Union coerced and intimidated the employees by
threatening economic harm if union authorization cards
were not signed, and the Union also promised dis-
criminatory benefits if employees did sign cards by offer-
ing to waive all initiation fees and dues for only those
who executed authorization cards.
Thereafter, the Acting Regional Director for Region 25 is-
sued a Report on Objections and Recommendations to the
Board, overruling all of Respondent's objections, and recom-
mending that the Union be certified as exclusive bargaining
representative, stating specifically with respect to objection 4:
OBJECTION 4
In support of Objection 4, the Employer proffered a
single witness who it alleges was told by the Union that
she would not have to pay union fees of any nature
whatsoever if she signed a union authorization card, but
would be required to pay union dues and initiation fees
if she did not sign a card. That witness states "One of
them then asked me if I had signed my union authonza-
tion card and I said I had and had already mailed it in.
Then he told me that I wasn't obligated to pay any
initiation fees because I had already signed the card.
Then he said that those that hadn't signed up would have
i Official notice is taken of the record in the underlying representation
proceeding, Case 25-RC-4811, as the term record is defined in Secs. 102 68
and 102 09(g) of the Board's Rules and Regulations, Series 8, as amended
2 The results of the first election showed that of 242 eligibles, 104 cast
ballots for, and 117 cast ballots against the Union There were 12 challenged
ballots which could not affect the results
215 NLRB No. 157
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to pay a $25 .00 initiation fee and that I wasn 't obligated
to pay this $25.00 fee . That was all said about the money
part. They didn 't say anything about union dues. This
was the only conversation I had with anyone for the
Union about paying money to the Union ." The waiver
of initiation fees during an organizational campaign does
not constitute objectionable conduct . DIT-MCO, Incor-
porated, 163 NLRB 1019. Accordingly , it is recom-
mended that Objection 4 be overruled.
Respondent filed timely exceptions to the report of the Acting
Regional Director, and on August 1, 1972, the Board issued'
a Supplemental Decision and Certification of Representative
which adopted en toto the Acting Regional Director's recom-
mendations and certified the Union as exclusive representa-
tive of employees in the appropriate unit.
Thereafter, Respondent refused to recognize and bargain
with the Union, electing instead to pursue its challenge to the
validity of the certification issued in Case 25-RC-4811, based
on various grounds, including the overruling, without a hear-
ing, of its Objection 4.
On November 30, 1972, the Board issued a Decision and
Order in the above-entitled proceeding, finding that Re-
spondent violated Section 8(a)(5) and (1) of the Act by refus-
ing to recognize and bargain with the Union as certified
bargaining representative of employees in the appropriate
unit.3
Enforcement proceedings, opened in the United States
Court of Appeals for the Seventh Circuit, resulted, on
December 10, 1973, in the entry of a judgment, enforcing the
aforesaid order of the Board. Thereafter, however, in light of
the decision of the Supreme Court of the United States in
N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (Dec-
meber 17, 1973), the Seventh Circuit ordered that further
proceedings on its judgment be stayed, pending a hearing on
Respondent's Objection 4.
11 THE ISSUE
In N.L.R.B. v. Savair Manufacturing Co., supra, the Su-
preme Court, on reasoning which appeared predicated upon
the specific facts in that case, declined to approve longstand-
ing Board policy that a union waiver of initiation fees to those
employees who sign authorization cards before a representa-
tion election does not, under any circumstance , raise a
material issue affecting the validity of an election.
By virtue of that decision, it is now necessary to reconsider
Respondent's Objection 4, and determine, first, whether in
fact the Union in this case made such offers, and if so whether
the offered waivers of membership fees were made under
circumstances invalidating the second election. Should objec-
tion 4 ultimately be found meritorious the previous Order of
the Board in this case will be vacated, and Case No.
25-RC-481 1, reopened to enable resolution of the question
concerning representation through the conduct of a third
election.
3 200 NLRB 625 (1972).
III CONCLUSION
At all times material, the Union's established policy ex-
empted all employed on the date of the election from payment
of initiation fees irrespective of when they signed a card or
otherwise attained membership status This policy was
plainly lawful," and Respondent concedes both as to the ex-
istence and legitimacy thereof. Nonetheless, Respondent con-
tends that agents of the Union, during the preelection period,
departed therefrom, engaging in conduct leading employees
to believe that initiation fees would be waived only as to those
who executed authorization cards before the election. In sup-
port of its position, Respondent cites Inland Shoe Manufac-
turing Co., Inc., 211 NLRB 724, where the Board, despite a
similar across-the-board initiation fee exemption, nonetheless
set aside an election, where conduct by union agents created
an ambiguity whereby employees might well have believed
that preelection membership was necessary to avoid such
payments.
As the party seeking to set aside the election, the onus is
upon Respondent to prove an unlawful interference there-
with. To meet that burden, several witnesses were offered
who gave testimony to the effect that employee organizers
made statements generally to the effect that only preelection
card signers would be exempted from initiation fees.
Before treating with the specifics of this testimony, I note
that the Savair issue in this case arises in a somewhat unusual
context; for, as will be seen , infra, the obligation to pay initia-
tion fees was raised by antiunion factions as part of their
propaganda to persuade employees to reject the Union. It is
in this light that the evidence offered in support of the objec-
tion must be evaluated.
Thus, Marsha Schoonover, a witness called by the Re-
spondent, conceded that she was an antiunion employee who
during the preelection period organized a club to see what
could be done "to stop the Union." As part of this effort,
Schoonover, in her own words, ". . . had been writing letters
to get girls to quit signing the cards, to get their names off the
cards, so they wouldn't have to pay initiation fees." Schoon-
over's testimony reveals that she was of the view that only card
signers would be liable for initiation fees, and it is also clear
that she siezed upon her conviction in that regard as a means
of persuading card signers to repudiate their designations.
Nonetheless, she gave testimony which is cited by Respond-
ent as evidencing an improper waiver offer by an alleged
union agent . Thus, according to Mrs. Schoonover, who at the
time was known to be antiunion, in a conversation with
Marge Bodily, a member of the Union's inplant organizing
committee , Schoonover was asked by Bodily why she had
been writing letters to get girls to quit signing cards and to
get their names off cards. Bodily also asked Schoonover if she
knew anything about the cards. Schoonover said she didn't
and stated that she wouldn' t sign a card because she ". . .
was against the union and I didn't want to pay an initiation
fee." Bodily then said "Well, you won't have to pay an initia-
tion fee."5
4 See Savair, supra, 414 U S at 272-273, In 4
5 This is the only statement Schoonover attributes to Bodily which I
credit As to matters prejudicial to the Union in other respects, I regard Mrs
Schoonover as totally incredible It is my distinct impression that Schoo-
nover held a deep resentment towards the Union, which allowed her to be
carried away on the witness stand in her zeal to damage the Union's cause.
REGENCY ELECTRONICS, INC 849
In context, the statement attributed to Bodily was not
inconsistent with the Union's comprehensive policy regard-
ing waiver of initiation fees. Far from any design to induce
execution of a card, Bodily's remark, in the circumstances,
was uttered to counter antiunion propaganda that card sign-
ers would be liable for such fees, and could only be under-
stood as such.
That Bodily was not the only member of the in-plant or-
ganizing committee who undertook to refute such propa-
ganda is evident from the cross-examination of Ronald
Hanna, another witness offered by the Respondent in support
of its objection. Thus, according to Hanna, he was aware of
confusion in the plant regarding initiation fees, and that em-
ployees were showing disbelief that they would not have to
pay initiation fees if they signed a card. He testified that he
overheard conversations between employees and Alice
McVay, chairman of the employee organizing committee, in
which she attempted to assure employees that no such liabil-
ity would ensue by stating "if you sign the card there'll be no
initiation fee." Here again, I see nothing in McVay's state-
ment other than what, in context, would be construed as a
responsive argument, countering antiunion propaganda
which had already taken hold upon employees. The tes-
timony of Mildred Parham attests to the belief held by em-
ployees that execution of a card would render them liable for
initiation fees. According to Parham, Reba Campbell in the
late summer of 1971, in soliciting Parham's execution of a
card told the latter that, as to initiation fees, ". . . there
would be none if [Parham] signed the card." However, ac-
cording to Parham, she didn't sign the card because she did
not believe Campbell.
From the foregoing, it is plain that the issue of initiation
fees was utilized by antiunion factions to influence others not
to execute cards or to revoke them if already signed. Several
of Respondent's witnesses, including Parham, Hanna, Mar-
sha Schoonover, Alvin Schoonover, and Ben Wall testified
that many employees held the belief that they would have to
pay initiation fees even if they signed cards. Mrs. Schoonover
admits that employees believed that execution of a card
would render them liable for such payments, and that she
relied on such belief as a means of stopping the Union, en-
deavoring to assist such employees by drafting card revoca-
tion letters on their behalf. Against this background I am
unpersuaded by the testimony that the statements imputed to
Bodily, McVay, and Campbell, assuming that their actions
were binding on the Union, constituted offers of initiation fee
waivers of the type condemned by Savair.6 There is a vital
The original version of her conversation with Bodily, on requestioning by
Respondent's counsel, was transformed by Schoonover into a totally differ-
ent episode, which plainly was tailored to support the Employer's position,
but which considered against her known antiunion history was plainly un-
believable Other matters indicative of Schoonover's unreliability are (1) her
inherently unlikely testimony that union supporters probably instilled the
belief among employees that card signers would be liable for initiation fees,
and (2) that the Union did not solicit cards before the first election, but was
actively engaged in such an effort only prior to the second election
6 The credited statements attributed to union organizers are limited to
those set forth in the above text, as made by Campbell, Bodily, and McVay
I have heretofore discredited the alternative versions of a conversation
between Mrs Schoonover and Bodily I also discredit the testimony of Janet
Healy, who related that Lila Martin, Sue Campton, Campbell, and Eva
Elmore, informed her that if she signed a card before the election she
wouldn't have to pay initiation fees I was not impressed with Healy's
distinction between inducements to encourage execution of
cards, and efforts to neutralize antiunion propaganda which
would tend to discourage union membership. Savair in no
sense limits the Union's right to act on its legitimate concern
for the refutation of damaging propaganda. In the context,
the statement attributed to McVay, Campbell, and Bodily fell
within the latter category, and fail to furnish a basis for
disturbing the results of the second election.
Respondent further supports its claim of election interfer-
ence, pointing to the Union's use of "charter membership"
cards, in the course of the organizational campaign. The card
is a two-sided document, with a facsimile of each side appear-
ing as follows:
CHARTER MEMBERSHIP CARD
This is to certify that:
(Name of Charter Member)
has, during an organizational drive at
located at signed an
authorization card signifying his desire to be a member
of the International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO. In bestowing membership on
him, he is hereby exempt from payment of any initiation
fee, now or at any future time, and will be listed as a
charter member at the above plant.
(Secretary- treasurer) (International President)
IUE-AFL-CIO CHARTER MEMBER EXEMPTION
from
Initiation
Fee
SEAL
demeanor, and at least in two respects her veracity is rendered highly
suspect Thus, Healy, in efforts to place these conversations as within the
critical preelection period, initially insisted that they occurred between the
first and second elections However, Healy was forced to recant on this
testimony, when, on cross-examination she was confronted with an authori-
zation card which she had executed on April 13, 1971, long prior to the filing
of the petition, and, indeed, the first election Further concern forth reliabil-
ity of her account, apses from her response to the initial questioning by
Respondent's counsel as to the specifics of what she had been told by
Martin, Campbell, Elmore, and Campton thus, Healy was told to pick one
of these latter individuals and state "what she said to you and what you said
to her regarding initiation fees " Healy was hardly responsive, prefacing her
answer, as follows " it's my understanding that we had to sign the
card-" After objection by the General Counsel, and a cautioning of the
witness that she was to answer in terms of what specifically had been said,
Healy testified that all four told her that "if we signed the card before the
election we wouldn't have to pay initiation fees " If such statements were
made, I cannot imagine why Healy chose initially to relate her understand-
ing of the Union's position, since this understanding hardly could have been
at variance with her latter testimony as to what was actually said I regard
this latter testimony as incredible Because of a strong suspicion that Healy
was intent on giving whatever testimony was necessary to aid Respondent's
case, insofar as it is prejudicial to the Union, her testimony is regarded as
unreliable and of no value in assessing the issues involved here
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THIS CARD IS VALUABLE-KEEP IN YOUR WALLET7
In Inland Shoe Manufacturing Co., Inc., supra, the Board
regarded the offer of charter memberships, together with a
statement, "That there are no initiation fees for charter mem-
bers of a new local . . ." as creating an ambiguity with re-
spect to the Union's uncommunicated, blanket exemption to
all employed on the date of the election The use of the
charter membership card in the instant case, as Respondent
contends, through the message on the card itself, tended to
create the same impression as in Inland Shoe, supra.
On the other hand, the present case is distinguishable from
Inland Shoe in material respects. In that case, the Board
sustained the Savair type objection, finding that because the
Union had created an ambiguity as to its waiver policy, the
Union had a duty to clarify any resulting confusion. The
Union's failure to do so left the charter membership offer as
. . the kind of preelection offer of initiation fees con-
demned by the Supreme Court in Savair," 211 NLRB 724.
Unlike Inland Shoe, I am satisfied that the Union in this
case , prior to the second election, clearly and unequivocally
communicated to employees that no employees in the unit
would be liable for initiation fees. As far as this record dis-
closes , the charter membership cards, were given only to
those employees who had previously executed authorization
cards. The credible evidence establishes that after the first
election , the Union ceased soliciting authorization cards.'
Hence it does not appear that charter membership cards were
utilized by the Union in the period between the first and
second elections. Nor does the credible evidence reflect that
the matter of initiation fees was discussed by any organizer
during that period. Indeed, on this record the only reference
to initiation fees made between the first and second election
is that contained in a union leaflet mailed on or about March
9, 1972 to all employees who appeared on the "Excelsior list"
for the second election. That leaflet was drafted in question
and answer form and states as follows:
Q. Will I have to pay an initiation fee if the Union is
voted in?
A. Absolutely not! Anyone presently working at Re-
gency is hereby guaranteed that they will not pay any
initiation fee.
In my opinion the above leaflet satisfied any duty imposed
upon the Union to clarify ambiguities that may have arisen
r An image of this side of the card was imposed on the face of a letter
dated November 11, 1971, from the International Union's secretary-
treasurer to the Union 's field representative , Charles Ziegler, granting the
latter's earlier request for an exoneration of Respondent 's employees from
initiation fees Copies of this letter in this form were distributed as handbills
at the gates of Respondent 's plant on or before December 14, 1971
8 Based on the credited testimony of Ernest J Rutherford, the Union's
District 8 coordinator, who conducted the campaign which preceded the
second election, I find that the Union did not solicit any authorization cards
after the first election Since, as Rutherford relates, a question concerning
representation already existed, there was no need for such an effort prior to
the second election. I have heretofore discredited the testimony of Martha
Schoonover, who indicated that cards were solicited prior to the second
election, but not during the period preceding the first This aspect of
Schoonmaker's testimony is not only inherently improbable, but conflicts
with that of Healy and Parham, both of whom acknowledged that cards were
solicited of them well prior to the filing of the petition. No other witnesses
testified to any card solicitation or discussion of the initiation fee issue by
employee organizers after the first election
from the charter membership cards utilized during the cam-
paign preceding the first election. The terms of the statement
in the leaflet are clear and would dispel any reasonable under-
standing among employees that those who' fail to sign cards
before the election will be liable for initiation fees. The Union
could rightfully assume that this expression, having beeii,dis-
tnbuted to all eligible voters designated on the Excelsior list,
would reach all employees who may have been confused as
to initiation fee liability, so as to enable them to go to the polls
with a clear und`e'rstanding that the Union's initiation fee
practice did not discriminate against those who did not dem-
onstrate preelection allegiance to the organizational effort.
The-fact that during the period between the elections, the
Union was not soliciting cards and the absence of evidence
that the Union or its agents informed employees either di-
rectly, or through implication, that nonsigners would be lia-
ble for such fees, contributes further to the effectiveness of the
clarification of union policy appearing in the March 9, 1972,
leaflet. Ergo, I am persuaded that the union effort to reverse
the results of the first election was devoid of any effort "to
buy endorsements and paint a false portrait of employee sup-
port during its campaign," and that the Union did not seek
to capitalize on " . . some employees who would feel obli-
gated to carry through on their stated intention to support the
Union." N. L.. R.B. v. Savair Man ufacturing Co., 414 U.S. 27!*..
277, 278 (1973).
While it is my conclusion that the effects of any ambiguities
were erased prior to the second election, and that Inland Shoe
is distinguishable for that reason,' a further ground exists
for deeming Objection 4 as lacking in merit . As indicated, the
only misconduct which the credible evidence attributes to the
Union was its use of charter membership cards, and its indi-
cations that charter membership status entailed an exemption
from initiation fees. Said offers of charter memberships and
references thereto were confined to the period preceding the
first election, and were not renewed thereafter. In accordance
with established Board policy, the critical period for consid-
ering interference with a second election begins running from
the date of the first election , and the Board will not set aside
an election on the basis of events occurring prior thereto. The
Singer Company, Wood Products Division, 161 NLRB 956
(1966), fn. 2. As the cutoff date for consideration of objection-
able conduct in this case was December 17, 1971, the date of
the first election, and since there is no evidence that charter
memberships were referred to thereafter, I find reliance
thereon as a basis for challenging the second election to be
time-barred under long-established Board policy.10 Al-
9 On the same basis, I also distinguish the Board 's recent decision in
Coleman Co, 212 NLRB 927 (1974)
10 Respondent, in arguing that the cutoff rule should not be applied herein,
cites Weather Seal, Inc., 161 NLRB 1226 (1966) 1 construe that decision
as inapposite here That case involved a unique situation in which a labor
organization, though found to have been unlawfully assisted on the basis of
precritical period unfair labor practices, appeared on the ballot in the elec-
tion In setting aside that election, the Board did not rely on the unfair labor
practices themselves , but rather on the participation in the election of the
unlawfully assisted union It was the Board's holding that in view of the
assisted union's participation in the election , prior to the remedying of the
unfair labor practices, " it cannot be said that the election was fairly and
properly conducted or that the results of the election represent the freely
expressed desires of the employees " Weather Seal does not authorize the
type of wholesale abrogation of the cutoff date rule which Respondent urges
on me here
REGENCY ELECTRONICS, INC.
though it is appropriate to consider such evidence as relevant
background in which subsequent events might be
viewed," here the Union, during the critical period preced-
ing the second election, engaged in no improper reference to
initiation fee liability and hence any vitality in the charter
membership issues was put at rest with the first election.
Accordingly, I find that Respondent has not established
that the Union, during the critical period preceding the sec-
ond election, improperly induced employees to execute cards
by promising them an exemption from initiation fees. In so
finding I rely on the clarification of union policy respecting
initiation fees appearing in the March 1972 leaflet. In the
alternative, I would reach that same result on the ground
that, under the Board's preelection cutoff date policy, the
Respondent 's reliance on N.L.R.B. v. R . Dakin and Company, 477 F.2d
492 (C.A. 9, 1973), is also regarded as unpersuasive . Even if the Board were
to adhere to the court's relaxed approach to the cutoff date rule , I see no
compelling circumstances in this case which would overcome the remote-
ness of the credited evidence on which Respondent must rely in its effort
to set aside the second election herein.
11 See, e .g., Local Lodge No. 1424, International Association of Machi-
nists, AFL-CIO, etal. [Bryan Manufacturing Co.] v. N.LR.B., 362 U.S. 411.
851
Union's conduct prior to the first election, which was not
revived thereafter, cannot be regarded as an interference with
the second election. For these reasons, I find that Respon-
dent's Objection 4 to the second election is lacking in merit
and I shall recommend that it be overruled.
ORDER12
Pursuant to Section 10(c) of the Act, Employer Objection
4 to the second election conducted on March 24, 1972, in
Case 25-RC-4811 is hereby overruled, and the Order of the
National Labor Relations Board dated November 30, 1972,
is hereby reaffirmed, with Respondent, Regency Electronics,
Inc., Indianapolis , Indiana, its officers, agents, successors,
and assigns , ordered to take the action set forth therein.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.