Smith Co. of California, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1974

215 N.L.R.B. 530 (N.L.R.B. 1974)

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith Company of California , Inc. and Printing Spe-
cialties and Paper Products Union Local Ne. 362,
International Printing Pressmen and Assistants'
Union of North America, AFL-CIO. Cases
20-CA-6744, 20-CA-6792, and 20-CA-7046
December 12, 1974
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On August 27, 1971, Printing Specialties and Paper
Products Union Local No. 362, International Printing
Pressmen and Assistants' Union of North America,
AFL-CIO, herein called the Union, was certified by
the National Labor Relations Board in Case
20-RC-9771 as the representative of the production
and maintenance employees of Smith Company of Cali-
fornia, Inc., herein called the Respondent, following an
election pursuant to a stipulation for certification upon
consent election and the subsequent overruling of ob-
jections to the election by the Board.' The Respond-
ents, however, refused to bargain with the Union be-
cause it took the position that the said certification was
erroneous , and on December 6, 1972, the Board issued
its Decision and. Order' herein finding, inter alia, that
the Respondent thereby violated Section 8(a)(5) and (1)
of the National Labor Relations Act, as amended.
Thereafter on May 29, 1973, the Board filed a petition
with the United States Court of Appeals for the Ninth
Circuit for enforcement of its Order. On February 14,
1974, the court enforced the Board's Order insofar as
it found other violations of the Act and, on motion by
the Board, remanded the proceeding to the Board for
reconsideration of its finding that the refusal to bargain
violated Section 8(a)(5) of the Act, in light of the hold-
ing of N.L.R.B. v. Savair Manufacturing Co., 414 U.S.
270 (1973).
Accordingly, the Board, by order dated March 28,
1974, reopened the record and directed that a further
hearing be held before an Administrative Law Judge
for the purpose of taking evidence on the alleged waiver
of initiation fees in view of the above-cited decision of
the U.S. Supreme Court. On June 28, 1974, Adminis-
trative Law Judge Allen Sinsheimer, Jr., issued the
attached Supplemental Decision in this proceeding.
Thereafter, the Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a statement
of his position in the form of a letter.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
' 192 NLRB 1098 (Chairman Miller dissenting).
2 200 NLRB 772 (Chairman Miller dissenting in relevant part).
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 Supplemental Decision in light of the exceptions
and brief and the General Counsel's statement of posi-
tion and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as modi-
fied below.
While we agree with the Administrative Law Judge
that the record herein does not warrant setting aside
the election because the Union improperly conditioned
the waiver of initiation fees, we do not agree with his
rationale. Rather, we so find because we conclude that
any ambiguity which may have existed in some of the
statements made by Union Representative Dunmire
was clarified by other clearly proper information sup-
plied by him to the employees.
The facts as found by the Administrative Law Judge
are that Dunmire told employees that initiation fees
were "waived during a new organization" and that
"anyone who would come in after the plant became
union" would have to pay the $30 initiation fee.'
These comments are, as the Administrative Law Judge
concluded, ambiguous; "new organization" and when
the "plant became union" could be interpreted as being
before the election or after it, and employees might well
not know which interpretation was intended. But Dun-
mire also told the employees that "any employee that
is coming in after signing the contract, is subject to an
initiation fee." Thus, when the whole situation is taken
into consideration and the statements concerning new
organization and the plant becoming union are not
viewed in isolation, the union representative made clear
the position that initiation fees were waived not only for
those who joined before the election but also for those
who joined after that but before a contract with the
employer was signed. Consequently, we conclude that
taken in context the Union's waiver was not improper
under Savair,4 and that the Union's conduct did not
interfere with the election. We therefore find that the
certification issued August 27, 1971, was valid, and we
shall affirm our findings and order in the prior decision
herein.'
3 Based on the credited testimony of Union Representative Dunmire. The
only other testimony in the record concerning Dunmire's preelection state-
ments was that of employee Brown, who said that Dunmire told him that
if he joined the Union and signed the card there would be no initiation fee,
but that Dunmire never told him when he would have to join in order to
avoid paying that fee . While Brown's testimony was not credited , we note
that even if it were it does not suggest that Dunmire clearly conditioned the
waiver on joining prior to the election.
4 Western Refrigerator Co., Subsidiary of the Hobart Manufacturing
Co., 213 NLRB No. 40 (1974).
5 Chairman Miller dissented from the finding of an 8(a)(5) violation in the
original decision herein because he was of the view that a hearing was
required on the objections to the election which are here under considera-
tion . However, that procedural requirement having been satisfied , he agrees
with and joins in the present holding.
215 NLRB No. 97
SMITH COMPANY OF CALIFORNIA, INC 531
ORDER
It is hereby ordered that the Order issued herein on
December 6, 1972, be, and it hereby is, affirmed in all
respects.
MEMBER FANNING, concurring:
Contrary to my colleagues , I would adopt the Ad-
ministrative Law Judge 's Decision including his ra-
tionale.
At the hearing held on May 22, 1974, the Respond-
ent produced one witness , Brown , who testified as to
the alleged waiver of initiation fees. The testimony of
Brown and Union Agent Dunmire , who solicited
Brown 's signature , is fully set forth in the Administra-
tive Law Judge 's Decision . After considering this tes-
timony the Administrative Law Judge , crediting Dun-
mire , found that "it appears likely that Dunmire's
statements to Brown as testified to by Dunmire, rather
than as understood and remembered by Brown . . .
that Dunmire told Brown `there would not be any
initiation fee' and explained that `we do not charge any
initiation fee for a new company ."' In support of this
finding the Administrative Law Judge pointed out that
Organizer Hayes at a meeting on February 24, 1971,
after the election when membership applications were
being signed , told unit employees that initiation fees
would not be required for persons working for the
Company at the time a contract was signed . The Ad-
ministrative Law Judge concluded that there were no
established facts to set aside the election on the basis of
improper conditioning of waiver of initiation fees and
that "not a single employee credibly so testified." In
short he discredited Brown , the only employee who
testified as the alleged improper waiver of initiation
fees. Since no employee credibly testified that the al-
leged waiver of initiation fees was improper under Sa-
vair, that , in my opinion , resolves the issue . The Ad-
ministrative Law Judge 's further comment that "At
best there is ambiguous testimony of the Union repre-
sentative which does not establish an improper promise
of waiver initiation fees" is, in my opinion irrelevant
dicta since no employee credibly testified that the
waiver of the initiation fee was conditioned on his sign-
ing a card before the election.
SUPPLEMENTAL DECISION
L,Ed. 2d 495 (1973)"; (2) an order of the Board dated March
28, 1974, which stated "It is hereby ordered that the record
in this proceeding be, and it hereby is reopened and that a
further hearing be held before an Administrative Law Judge
. . for the purpose of taking evidence on the alleged waiver
of initiation fees of the Supreme Court's decision in N. L. R. B.
v. Savair Manufacturing Co, 414 U.S 270 (1973) " The
Board's order further provides for remand to the Regional
Director for the purpose of arranging further hearing and
that, upon the conclusion of such further hearing, the Ad-
ministrative Law Judge "shall prepare and serve upon the
parties a Supplemental Decision containing findings of fact
upon the evidence received, conclusions of law and recom-
mendations . "'
Upon both the record taken pursuant to said remand (and
upon consideration of and in the light of the entire record),
including my observation of the witnesses, and after due con-
sideration of the briefs of the General Counsel,' the Union-
Charging Party and Employer-Respondent, I make the fol-
lowing:
FINDINGS OF FACT AND CONCLUSIONS
I THE FACTS ADDUCED AT THE HEARING ON REMAND
Employer-Respondent produced one witness, employee
Hubert Brown, ' who testified that he had a conversation at
his home with Gary Dunmire, an organizer for the Union,
about 3 weeks before the election in the above matter which
was held on February 17, 1971. Brown was asked on direct
examination what Dunmire had to say about the "topic of the
union authorization cards and the initiation fees." He re-
sponded
A. Well, it was a benefit if I would loin, and if I signed
the card. And if I didn't sign the card, couldn't-I
wouldn't get in the union, and that I would get fiied if
I didn't.
Q. Was anything said concerning initiation fees?
A. These initiation fees, he-well, he said, if Ijoin the
union and signed the card, there would be no initiation
fee. Just pay the regular dues. [Emphasis supplied.]
Q. He said that there would be no initiation fee-
A. Yes.
Q. -and you dust pay the regular dues'
A Yes.
On examination by the Charging Party, Brown testified.
Q. And Mr. Dunmire, I take it, told you that if you
would loin the union, you would not have to pay any
initiation fee?
A Right.
STATEMENT OF THE CASE
ALLEN SINSHEIMER, JR., Administrative Law Judge: On
May 22, 1974, a reopened and further hearing was held before
me pursuant to (1) an order on February 14, 1974, of the
United States Court of Appeals for the Ninth Circuit remand-
ing the case to the Board "To reconsider the 8(a)(5) charges
in view of the intervening decision of N.L.R.B. v. Savair, 38
i In view of the findings made hereafter, I deem it unnecessary to recon-
sider any matteis raised by the General Counsel on the record and in his
brief (and opposed by Respondent) with respect to an alleged alternative
theory of violation of Sec 8(a)(5) which was previously considered and
disposed of in 200 NLRB 772
2 Whose brief did not take a position as to the Union 's statements as to
waiver of initiation fees but was limited to discussion of an alternative theory
referred to in in 1, supra
3 Charging Party produced two witnesses employee June O'Brien and
Union Respresentative Gary Dunmire
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Now, did Mr. Dunmire tell you, when you would
have to join the union?
A. No.
Q. Did Mr. Dunmire tell you when you would have to
pay dues?
A. After they won the contract with the Smith
Company. [Emphasis supplied.]
Q. Did he tell you what would happen if they didn't
win the contract with the Smith Company?
A. That, if I didn 't vote for the union , I probably
would be fired.
A. Yes, if I didn't vote for the union.
Q. Well, what did he tell you would happen if the
union did not get the contract with the Smith Company?
THE WITNESS: I can 't remember what he said about it.
Brown further testified that he could not remember whether
Dunmire told him the election would be by separate secret
ballot . He did remember voting in the election and that the
election was by secret ballot. Brown further testified that he
was told he would have to pay dues if the Union won a
contract from the Company but would not have to pay any
initiation fee.
There is considerable testimony about Brown 's signing a
card. Brown first testified that he signed a card at a meeting
at the Hyatt House which was after Union Organizer Gary
Dunmire came to his home and which the record established
was about February 24, after the election of February 17. He
was shown an application for membership and pledge to sup-
port the union constitution form on a sheet of white paper
which he admittedly signed at that meeting . Initially, he
could not recall signing any other paper , document, or au-
thorization card prior thereto . Subsequently , upon being re-
called as a witness and shown a blank authorization card, he
recalled also signing an authorization card at his home when
Dunmire was there prior to the election.
Dunmire testified at first that Brown did not sign an au-
thorization card when he was at Brown 's home or any time
and that the only authorization Brown signed was the mem-
bership application at the Hyatt House meeting . Dunmire
was then shown an affidavit consisting of 31 pages that he had
executed before a Board agent which stated:
I observed him sign the card at his home , I'm not sure
he fully read the card, because I was talking to his wife
off to the side , but he did study it for some time before
he signed it.
Thereupon , Dunmire testified in response to a question as to
Brown 's in fact , signing a card at his home:
A. If I said it was the case then , and I swore to it, then
it must have been the case.
Q. And that is your testimony now, isn't it?
A. Yes, sir, it is.
Dunmire also testified that other than the affidavit he had no
independent recollection of Brown 's signing a card . It accord-
ingly appears from the record and I find that Brown did sign
an authorization card at his home in Dunmire's presence.
Concerning the matter of initiation fees , June O'Brien, an
employee of Respondent and union observer at the election , of those employees who signed cards.
testified she had attended a meeting at the Hyatt House about
February 24. O'Brien also testified that at this meeting
Mickey Hayes, an organizer for the Union , spoke about
initiation fees as follows : "He said everybody who was work-
ing for the Smith Company when or if they signed the
contract, would not have to pay initiation fees . [Emphasis
supplied .]" O'Brien was asked if anyone from the Union
asked her to sign an authorization card and said that Gene
Villalobos, the president of Local 362, asked her to sign. She
further testified:
Q. And at the time you signed an authorization card,
was there any discussion between you and Mr. Vil-
lalobos or anyone else from the union concerning the
payment of any initiation fees?
A. Just that we wouldn't have to pay initiation fees if
we were working for the Smith Company when the
union contract was signed:
Dunmire , who at the time of the election was an organizer
for the Western Conference of Specialties Union and at the
time of the hearing employed by District Council No. 1,
Printing Specialties and Paper Products Union Local No.
362, further testified that he called on Brown at this home on
a Saturday ' before the election , asked him to support the
Union and to sign an authorization card . Dunmire testified
that he told Brown that "there would not be any initiation
fee," and additionally:
Q. (By Mr . Roger) Did you tell him anything else?
A. Then I went on to explain what the policy of our
union is , it is the policy of our union that we do not
charge any initiation fee for a new company.
Dunmire further testified:
Q. At any time did you tell Mr. Brown , if he did not
sign a card he would lose his job?
A. No.
Q. At any time did you tell Mr. Brown , unless he
signed a card he would have to pay an initiation fee?
A. No.
Q. At any time did you tell Mr. Brown, only those
people who signed the card would not have to pay any
initiation fee?
A. No.
On further examination, Dunmire testified:'
Q. (By Mr. Roger) Did you say that the people you
were asking to sign authorization cards, did you tell
them that the initiation fee was waived during a new
organization, and anyone who would come in after the
plant became union, would have to pay $30 initiation
fee? [Emphasis supplied.]
A. I thought the initiation fee was $50, but-yes.
Q. You told them that, except for the amount?
A. Yes.
Q. And did you also say that in your affidavit on June
10, 1971, along page-on page 12?
A. Yes.
Dunmire in an affidavit in evidence stated he solicited all but about three
SMITH COMPANY OF CALIFORNIA, INC 533
Q (By Judge Sinsheimer) In your affidavit you stated,
I told them that the initiation fee was $30, but was waived
during a new organization.
A. Yes, sir.
Q. And you stated further, I told them after the plant
became union, they anyone coming in later would have to
pay $30 00 initiation fee [Emphasis supplied]
A. Yes.
Q. Now, is that the statement that you made to the
employees that you talked to before the election?
A. Well, it does go a little deeper than that
Q. Just, exactly how did you make the statement?
What did you say to the employees, including Mr
Brown?
A. Number one, a union does not charge any initiation
fee during new organizations. After a plant is organized,
and the union wins the election-
THE WITNESS: I told them that any employee that is
coming in after signing the contract, is subject to an initia-
tion fee [Emphasis supplied.]
Q. (By Jedge Sinsheimer) You said, those coming after
signing the contract?
A. Yes.
Q. And in your statement you said, I told them after
the plant became union
A. Well, making that statement. When the plant
becomes union, we have a contract that is perhaps what
I meant.
Q. When the plant becomes union and you have a
contract, is that what you mean?
A. That is precisely what I meant, yes
Q. And that is what you meant by saying, I told them
after the plant becomes union--or did you tell them,
after the plant becomes union How did you put it?
A. I told them after it becomes union, and we have a
contract, anyone who would come in after that, then he
would have to pay an initiation fee [Emphasis
supplied.]
Dunmire also testified that he heard Hayes speak at the Hyatt
House meeting on February 24 and:
A He stated that the policy of the union has been that
there is no initiation fee to any employees working at the
company, regardless of their feeling about the union
Q. Did he say anything else about the initiation fee?
THE WITNESS: No.
Dunmire was asked how many organizational compaigns
he'd been involved in, responded at least 40 or 50, and was
asked whether during any of these campaigns.
Q. Has there ever been an occasion where the union
has not waived any initiation fees for anybody?
A. No, that has always been the case
Q. To your knowledge is that the policy of the union?
A. Yes, it is.
Dunmire was asked whether he ever told people there would
be a time limit as to when initiation fees would no longer be
waived. He answered "yes," and then the following:
Q. What have you told them as to when that cut-off
date is?
A Oh, all employees present prior to the signing of the
contract would not pay any initiation fee and anyone
after that would be subject to initiation fee.
Dunmire was again referred to the following part of the af-
fidavit he executed.
It says here, I told them after the plant became union,
then anyon coming in later would have to pay the $30.00
initiation fee. [Emphasis supplied.]
A. That's what it says.
Q. . . Now, you didn't tell Anderson [a Board
agent] that you added after you got a contract , didn't
you?
A It doesn 't say that in there.
Dunmire was then asked-
Q. Will you tell the hearing officer then why it is that
you didn't tell Anderson what you really told the em-
ployees when you talked to him in June 1971, when you
corrected other places in the affidavit?
A. When I talked to Mr. Anderson, after it became
union, I was talking about after the contract and when
it was signed
Q. But you didn't say that in here, didn't you?
A No, I agree, it doesn't say that in there. It is a long
affidavit, and there were several errors, which were then
corrected. Some were in his wasting and some were my
own explanations.
II FINDINGS AND CONCLUSIONS
It is evident that the recollections of witnesses Brown and
Dunmire as to events 3 years earlier were not clear in certain
instances. Brown at first could not recall whether he signed
an authorization card as such before the election, and it was
not until he was recalled and shown a card that he remem-
bered signing one at his home before the election. Dunmire
was sure at first that Brown had not signed the card, and it
was, only after being shown his affidavit that he admitted,
based thereon, that Brown had signed a card
There also appears to be another variance between Dun-
mire's affidavit and testimony Dunmire testified that the
union fees were waived until after the Union obtained a
contract, although (in the affidavit) and in one instance above
he answered "yes" in response to a question, did he say that
the initiation fee was waived during a new organization and
that anyone who came in after the plant became union would
,have to pay a $30 initiation fee.
The affidavit states- "I told them that the initiation fee was
$30, but was waived during a new organization I told them
after the plant became union, they anyone coming in later
would have to pay $30 initiation fees . " [Emphasis
supplied.] The affidavit is 31 pages and, as set forth, Dunmire
testified there were some errors therein Dunmire also testi-
fied that he was referring to and meant "after a contract." I
also not Dunmire's testimony that the practice of the Union
was that initiation fees were to be waived until after a contract
was obtained, his testimony that another organizer, Hayes, at
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the February 24 meeting said initiation fees were not required
for persons working at the Company and O'Brien's testimony
that Hayes said everyone who was working for Respondent
when or if it signed a contract would not have to pay initia-
tion fees which Villalobos also told her earlier.
There may well have been a not uncommon problem of
communication between Dunmire and Brown accentuated by
the passage of time. On the other hand, testimony as to what
was said by Organizer Hayes at the meeting of February 24
(after the election when membership applications were being
signed), is uncontradicted and clear that initiation fees would
not be required for persons working for the Company as of
the time of a contract. Further, Dunmire was an experienced
organizer who knew what the Union would require and when
as to initiation fees. In the light of all the foregoing, it appears
likely that Dunmire's statements to Brown as to when initia-
tion fees would be waived were more nearly as testified to by
Dunmire, rather than as understood and remembered by
Brown, supra that Dunmire told Brown "there would not be
any initiation fee" and explained that "we do not charge any
initiation fee for a new company."5
But even if the statement by Dunmire to Brown was the
initiation fees were waived "during a new organization" and
"after the plant became union anyone coming in later would
have to pay initiation fees" (which Brown did not testify was
said), such is subject to interpretation as to both what "they"
refers to and as to what "becomes union" refers to. Further,
no one else testified that such a statement was made to him
or her.6
The posture of the record then is: (1) It is clear that after
the election employees were told that initiation fees would not
be required until after the Union obtained a contract; (2) that
Dunmire testified that he told them anyone coming in after
signing a contract would be subject to an initiation fee; (3)
that Dunmire also testified he told people when asking to sign
cards that the initiation fee was waived during a new organi-
zation and anyone who would come in after the plant became
union would have to pay initiation fee and that he also said
that in his affidavit. Dunmire added that he "told them after
it becomes union and we have a contract, anyone who came
in after that would have to pay an initiation fee"; (4) that
Dunmire said as to the words "became union" in the affidavit
he meant after it got a contract; (5) no employee witness,'
5 I note that Brown , supra, also testified that Dunmire said if he joined
the Union, there would be no initiation fee but that Dunmire did not say
when he had to join the Union.
6 The vote in the election of February 17, 1971, was 18 for the Union and
4 against. As set forth, supra, Dunmire solicited all but about three of those
employees who signed cards.
7 Only two testified.
including Brown, testified as to. any reference to initiation fees
being waived until the plant became union ; (6) Dunmire testi-
fied he told Brown "there would not be any initiation fee" and
explained that "we do not charge any initiation fee for a new
company"; (7) Brown testified, supra, that Dunmire told
Brown if he didn't sign the card he wouldn't get in the Union
and would be fired which Dunmire (whom I credit) denied;
(8) Brown further testified Dunmire said if he joined the
Union and signed the card, there would be no initiation fee;
(9) Brown also testified Dunmire did not tell him when he
would have to join the Union.
The foregoing, whatever questions it raises or may leave
unanswered, does not in my judgment. establish facts suffi-
cient to warrant setting aside the election on the basis of
improper conditioning of waiver of union initiation fees. Not
a single employee credibly so testified. At best, there is am-
biguous testimony of the union representative which does not
establish an improper promise of waiver of initiation fees.
In N.L.R.B. v. Savair, supra the Supreme Court held that
waiving initiation fees for employees who signed recognition
slips before an election and requiring initiation fees of those
who had not improperly conditioned the waiver upon support
of the Union during the election. Such conditioning of the
waiver of initiation fees on support of the Union in the elec-
tion herein has not been established and I accordingly find no
improper conditioning of waiver of union initiation fees.'
I accordingly conclude and find that the election held Feb-
ruary 17, 1971, was not improperly affected by any state-
ments attributable to the Union respecting initiation fees
made prior thereto. I further conclude and find that the
certification issued August 27, 1971, pursuant to said election
remains a valid certification.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclu-
sions of law, and upon the entire record in the case, and
pursuant to the Board 's Order reopening record and remand-
ing proceeding , I hereby recommend that the Board reaffirm
its findings , conclusions , and Decision with respect to Re-
spondent 's violation of Section 8(a)(5) previously found and
its Order pursuant thereto previously adopted in the above
matter on December 6, 1971.
8 See Irwindale Division , Lau Industries, a Division of Phillips Industries,
Inc., 210 NLRB 182 (1974), and see and cf. Endless Mold, Inc., 210 NLRB
159 (1974). In view of my findings, supra I do not consider that the case
of Campus Plastics Inc. (Decision by Region 20), cited by Employer-
Respondent , is applicable.