The Jarp Corp.

National Labor Relations Board - Board Decisions

Jul 6, 1977

230 N.L.R.B. 660 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Jarp Corporation and Teamsters, Chauffeurs,
Warehousemen and Helpers Local 446, Affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Petitioner. Case 30-RC-2862
July 6, 1977
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered objections to an
election held on August 6, 1976,1 and the Hearing
Officer's report recommending disposition of same.
Relevant portions of that report are attached as an
appendix. The Board has reviewed the record in light
of the exceptions and brief, and hereby adopts the
Hearing Officer's findings and recommendations. 2
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Teamsters, Chauffeurs,
Warehousemen and Helpers Local 446, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
and that, pursuant to Section 9(a) of the Act, the said
labor organization is the exclusive representative of
all the employees in the following appropriate unit
for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, and other
conditions of employment:
All production and maintenance employees
employed by the Employer at its facility located
at 1000 Pine St., Wausau, Wisconsin; excluding
office clerical employees, guards and supervisors
as defined by the Act.
MEMBER WALTHER, dissenting:
For many of the same reasons indicated in my
dissent in Aladdin Hotel Corp. d/b/a Aladdin Hotel,
229 NLRB 499 (1977), I cannot agree with my
colleagues' conclusion that Petitioner's initiation fee
refund policy was unobjectionable. I would find that
Petitioner's policy contravenes the holding of
N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was: 19 for, and 17 against, the
Petitioner: there were no challenged ballots.
2 In so finding we rely on our holding and rationale in Aladdin Hotel
Corp. d/b/a Aladdin Hotel, 229 NLRB 499 (1977).
3 Unlike the union in Aladdin Hotel, Petitioner here did not require that a
230 NLRB No. 97
(1973), and is thus grounds for setting aside the
election.
As found by the Hearing Officer, Petitioner's
initiation fee refund policy provided for the return of
initiation fees if the Petitioner withdrew its petition
prior to the election or if, following an election
victory, the Petitioner was unable to negotiate a
satisfactory contract. However, the refund policy
further provided that in the event Petitioner lost the
election the fees would not be returned. While the
circumstances of this case vary slightly from those
present in Aladdin Hotel, supra. 3 the refund policy
here is for all intents and purposes the same.
Employees who had advanced money to the Union
prior to the election would lose it, without benefit, if
the Union were defeated. If the Union won, they
would either obtain the advantages of a contract or,
failing that, be refunded their prepaid fees.
In Savair, the Supreme Court proscribed the waiver
of initiation fees for those who signed authorization
cards prior to the election. The Court stated that it
would not allow a party to buy and sell endorsements
in such a fashion. The Court further reasoned that an
employee having demonstrated a show of support for
the Union would feel committed to carry through
with that support in the voting booth.
The employee recipients of the unlawful initiation
fee waiver in Savair had no immediate financial stake
in the outcome of the election since, the initiation fee
having been waived, they had advanced no money.
Nevertheless, the Supreme Court found that those
employees would be induced into continuing their
once expressed support of the union in order not to
forego the benefit of the fee waiver. In contrast to the
facts of Savair, here the employees who paid the $35
initiation fee prior to the election had money riding
on the result. The knowledge that a union defeat
would result in the complete loss of their prepaid $35
fee would serve to induce the employees who had
already paid it into voting for the Petitioner,
regardless of what their actual views toward the
Petitioner were on the election day. Thus, the refund
policy here serves to lock in the employees' previous-
ly expressed support of the Petitioner and to
economically arm twist those who had prepaid the
fee into voting for the Petitioner.
Contrary to the reasoning of the Hearing Officer,
as adopted by my colleagues, I am unable to find
that the unlawful consequences of the initiation fee
refund policy are vitiated merely because the
employees had the opportunity to pay the reduced
majority of the unit employees pay a lump sum prior to the filing of the
petition which would be credited to initiation fees in the event the Union
won. Instead, the Petitioner encouraged employees to pay the initiation fee
before the election as a sign of support so that Petitioner would not
withdraw its election petition due to insufficient employee interest.
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THE JARP CORPORATION
fee after the election as well as before. Such
reasoning fails to properly account for the continuing
impact the refund policy would have upon the
freedom of choice of the employees who, in fact, had
paid the initiation fee before the election.4 While it
may have been less than prudent for the employees
to pay the initiation fee before the election, since the
same rate was available to them thereafter without
the risk of forfeiture upon the Union's defeat, it is not
the Board's province to pass judgment on that
matter. Rather, it is our responsibility to assess the
impact that the Petitioner's refund policy would have
on the employees' freedom of choice. As indicated
above, I find that the policy unlawfully induced the
employees who had paid the fee to continue
supporting the Union or else forfeit their money.
Furthermore, in my view, the Hearing Officer's
characterization of the refund policy as a statement
of "predictable consequence-an economic fact of
life" overlooks the unlawful coercive effect such a
policy has on the employees' free choice. While labor
organizations may generally, as a matter of course,
adhere to such a policy, its announcement during the
course of an election campaign cannot help but
buttress the petitioner's campaign and cement
support among those who had already paid the
initiation fee. It is just such a coerced wellspring of
support that the Supreme Court proscribed in Savair.
Therefore, unlike my colleagues, I would sustain
the Employer's objections based on the Petitioner's
initiation fee refund policy. Accordingly, I would set
aside the election.
4 Business Agent Hansen testified that approximately 25 employees paid
initiation fees prior to the election.
APPENDIX
Objection No. 3.
By this objection, the Employer raises the contention
that Petitioner conditioned the refund of initiation fees on
the outcome of the election. The record reflects that the
only time the matter of refunds was broached by an official
of Petitioner, Hansen, was at the May 26 meeting.
Hansen testified that at the May 26 meeting he told
employees that Petitioner would refund initiation fees if
Petitioner withdrew from election proceedings or if
Petitioner was unable to gain a satisfactory contract, but
that the fees would not be refunded if Petitioner did not
withdraw from the relationship of its own volition.
Employee witness Pelot testified:
Q. At the Union meeting that you did attend, sir,
would-was anything said about refunds of the
initiation fees?
A. Yes. If the Union didn't get what we wanted or
if they didn't feel satisified they were going to pull out
and they would pay us the money back that they
collected.
Q. Did they say anything about what would
happen if the Union lost at the election?
A. If they lost it, I understood then they
would keep the money because they were not
pulling out, we were backing out from them.
Pelot's testimony was representative of that given by the
other five employees who testified in this matter. Such
testimony is a logical extension of Hansen's testimony
above.
Here the Employer makes the argument that by condi-
tioning refunds on the election's outcome, Petitioner used a
form of economic inducement to extract "yes" votes from
employees who had paid initiation fees prior to the
election. The Employer relies on Savair, supra, DIT-MCO,
Incorporate4, 163 NLRB 1019; and Primco Casting Corp.,
174 NLRB 244, in support of Ojbection 3. The Employer
would liken refunds to initation fees and from the above-
listed cases draw the inference that conditional refunds
would be objectionable as would conditional fees. I find
such a comparison misplaced in the instant case for the
reason that employees fearful of no refunds if Petitioner
lost the election could wait until after the election, until the
time of contract, to pay a reduced initiation fee. Thus,
employees had a freedom of choice in this case which was
independent of the election itself-a factor not present in
the fee situations presented in those cases cited by the
Employer.
Nor would I view Petitioner's refund policy as an
economic inducement. Rather, I see it as a predictable
consequence-an economic fact of life-in much the same
light as an employer's lawful campaign prediction of strike
or lockout as a result of unionization. That employees
accepted the refund policy in this way is evidenced by
Hansen's unrefuted testimony that 20 initiation fees were
received at the May 26 meeting and that employees did not
at any time object to or question the refund policy as he
announced it to be at that meeting.
Based on the elements of employee choice in and
apparent acceptance of Petitioner's refund policy, I
conclude that the conduct objected to here neither
constrained nor otherwise interfered with employees'
freedom of choice in the election. I will, therefore,
recommend that Objection 3 be overruled.
661