Inland Shoe Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1974

211 N.L.R.B. 724 (N.L.R.B. 1974)

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inland Shoe Manufacturing Co., Inc. and United Shoe
Workers of America , AFL-CIO, CLC, Petitioner.
Case 14-RC-7487
June 19, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
By CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties on October
26, 1973,1 a secret ballot election was conducted -on
November 30, and a runoff election was conducted
on December 14. At the conclusion of the runoff
election , a tally of ballots was served on the parties
which showed that of approximately 343 eligible
voters, 314 cast valid ballots, of which 177 were for,
and 130 against, the Petitioner. There were seven
challenged ballots which were insufficient to affect
the results of the election. Thereafter, the Employer
filed timely objections to conduct affecting the
results of the election.
Pursuant to the provisions of Section 102.69 of the
Board's Rules and Regulations, Series 8 , as amended,
the Regional Director caused an investigation to be
made of the objections. Thereafter, on January 18,
1974, the Acting Regional Director for Region 14
issued and served on the parties his Report on
Objections and Recommendations, finding the ob-
jections without merit and recommending that they
be overruled in their entirety, and that Petitioner be
certified as the exclusive collective-bargaining repre-
sentative of the employees in the stipulated unit.
Thereafter, the Employer filed timely exceptions to
the Acting Regional Director's report, with affidavits
in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the Acting Regional
Director's report,2 the Employer's exceptions,3 and
the entire record in this case and makes the following
findings and conclusions:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
policies of the Act to assert jurisdiction herein.
1 All dates are 1973 unless otherwise indicated.
2 In the absence of exceptions thereto, the Board adopts, pro forma, the
Acting Regional Director 's recommendation that the Employer 's Objections
1, 2, 3, 4, 7, 8, 10, and I I be overruled.
3 We find without merit the Employer's contention that it was denied
due process and administrative fairness by the Acting Regional Director's
denial of its request to read the affidavits of all persons interviewed by the
Regional Office in connection with its objections , and its request to read the
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees in-
cluding truckdrivers employed at the Employer's
Advance, Missouri, facility, excluding all office
clerical employees, professional employees, sales-
men, managerial employees, guards, and supervi-
sors as defined in the Act.
5. In Objection 6, the Employer alleged that
Petitioner made unlawful promises of benefit by
offering a waiver of initiation fees to induce
employees to support Petitioner by signing authoriza-
tion cards and voting for Petitioner. In support of its
objection, the Employer submitted a one-page leaflet
distributed by the Petitioner to the employees which
stated in pertinent part: "There are no initiation fees
for charter members of a new local (and that is what
you would be)[.] Monthly dues will start when a
contract has been made with the Company." At the
bottom of the leaflet appeared the names of three of
Petitioner's organizers. According to a witness
presented by the Employer, the leaflet was received
during the week before the runoff election. Another
employer witness stated that, at an organizational
meeting held by Petitioner 10 days before the first
election, one of Petitioner's organizers told employ-
ees present that "charter members" would not have
to pay an initiation fee to join Petitioner, and
explained that all employees working at the time of
the election would be "charter members" if Petition-
er was voted in and those hired after the election
would have to pay an initiation fee to join.
Petitioner, in defending the legality of its waiver
offer, presented a copy of its constitution and
bylaws, as amended, which provide in pertinent part:
"Initiation or reinstatement fees may be waived in
organizing a new factory, but any such waiver shall
apply to all persons who are employees in the new
factory during the organizing period up to and
including the date of election."
tentative draft of the "Regional Director's" Report on Objections. It is the
Board's established policy to direct the production of only those affidavits
given by employees who have testified at Board hearings for purposes of
cross-examination as required by Jencks v. United States, 353 U.S. 657. Ra-
Rich Manufacturing Corporation, 121 NLRB 700. See also Wellman
Industries v. N.L.R.B., 490 F.2d 427 (C.A. 4, 1974). Nor do we perceive any
reason, and indeed the Employer asserts none , for allowing it to read the
tentative draft of the Acting Regional Director 's report.
211 NLRB No. 73
INLAND SHOE MFG. CO.
On the basis of the above facts, the Acting
Regional Director found that Petitioner's offer of a
waiver of initiation fees to those who became charter
members contained an unconditional waiver for all
employees employed at the time of the election,
available to employees both before and after the
election, and was therefore the type of waiver of
initiation fees permitted under the Supreme Court's
decision in N.L.R.B. v. Savair Manufacturing Compa-
ny, 414 U.S. 270 (1973).
The Employer contends that the offer contained in
Petitioner's leaflet is sufficiently ambiguous so as to
constitute unlawful inducement under Savair be-
cause employees could have reasonably believed that
only by signing a card prior to the election would
they be "charter members" and eligible for waiver of
initiation fees . The Employer asserts that the ambi-
guity was not removed by either the organizer's
statements at Petitioner's meeting nor by the provi-
sions of its constitution and bylaws. With respect to
the latter, the Employer notes that there was no
evidence Petitioner ever communicated the provi-
sions of its constitution to employees. We agree with
the Employer's contention.
The Supreme Court in N.L.R.B. v. Savair, supra,
held that the Board had erred in its determination
that a union does not interfere with the conduct of
the election when it offers to waive initiation fees for
those who join the union before the election. The
Court relied on various factors to reach its conclu-
sion. The Court was concerned with the Section 7
right of employees to refrain from union activity, and
with the buying of endorsements through the waiver
of initiation fees to those joining before the election
to paint a false portrait of employee support. The
Court also stressed that there is no legitimate union
interest which justifies limiting waiver offers to those
signing cards prior to the representation election.
In the instant case, Petitioner, through its organiza-
tional leaflet, has offered a waiver of initiation fees
for "charter members." It is not clear from the
leaflet, however, when employees must join Petition-
er to be eligible for the waiver. The wording of the
leaflet indicates that there are "no initiation fees for
charter members of a new local." The term "charter
member" was nowhere defined in the leaflet. Thus, it
was not made clear whether employees' initiation
fees would be waived for those signing after the
election, or only prior thereto. Webster's Third
International Dictionary defines "charter member"
as "an original member of a society or corporation;
esp: one named in a charter." Employees could well
have been induced to become early card signers on
the reasonable belief that only thereby could they be
725
"charter members" eligible for a waiver of initiation
fees. Indeed, part of the thrust of Petitioner's leaflet
was that employees should sign at once. It ended
with the exhortation: "Didn't sign a card? Have a
reason now?"
In our view, the ambiguity was not sufficiently
resolved by the statement of Petitioner's organizer at
a meeting that all employees working at the time of
the election would be "charter members" if the
Petitioner was voted in, and that those hired after the
election would be required to pay an initiation fee to
join. The organizer's statement may be interpreted as
requiring that an employee not only be employed but
actually have joined the Union at the time of the
election in order to secure the waiver; the very term
"charter member" carries with it an implication that
an employee need be a member before he can
become a "charter member." In any event, it is by no
means clear that all employees who received the
pamphlet attended this meeting. Nor is the ambiguity
clarified by the provisions of Petitioner's constitution
and bylaws, for not only do those provisions merely
permit, rather than require, a waiver, but they may
also be interpreted as granting a waiver only to those
who have actually joined and are employed by the
election date and do not clearly extend any waiver to
such employees signing after the election. As with the
meeting, furthermore, it is not evident how many of
the employees being organized were aware of
Petitioner's constitution. We find that employees
who read Petitioner's leaflet could reasonably have
concluded that it was to their benefit to join
Petitioner before the election-to come in at the
ground floor-to avoid the possibility of having to
pay initiation fees later.
Petitioner's offer to "charter members," therefore,
was ambiguous and subject to various interpreta-
tions. In these circumstances, we believe it was
Petitioner's duty to clarify that ambiguity or suffer
whatever consequences might attach to employees'
possible interpretations of the ambiguity.4 We find
that Petitioner's offer of a waiver of initiation fees for
charter members of a new local, where the term
"charter member" was not clearly defined, was the
kind of preelection offer of waiver of initiation fees
condemned by the Supreme Court in Savair.
Accordingly, we sustain the Employer's Objection
6 and we shall set the election aside and direct that a
second election be conducted.
The Employer also contends, in its Objections 5
and 9, that Petitioner made material misrepresenta-
tions at a time when the Employer had insufficient
time to reply. With respect to Objection 5 the
Employer contends that Petitioner materially misrep-
4 Cf. Endless Mold, Inc., 210 NLRB No. 34.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resented to employees the Employer's financial
condition, its move to new offices in St. Louis, and its
plans for financial investments. With respect to
Objection 9 the Employer argues that Petitioner
made material misrepresentations concerning a
Decision and Order in an unfair labor practice case
before the Board by giving the impression that the
recommended Order of an Administrative Law
Judge was, in fact, the final order of the Board.
Based on the investigation of objections the Acting
Regional Director found that 1 or 2 days before the
runoff election a rumor spread through the plant that
the Employer was constructing a multimillion dollar
office building in St. Louis. The Employer in fact was
moving its executive offices from a leased facility in
University City, Missouri, to a smaller, less expensive
facility in Hazelwood, Missouri. The Acting Region-
al Director found that Petitioner's observer was
responsible for the rumor but concluded that the
observer's remarks were not attributable to Petition-
er, and that because the Employer, in prepared
speeches delivered to employees on December 11 or
12, had stressed its economic plight the employees
could have believed the Employer had authoritative
data with respect to its financial condition and
employees could have effectively evaluated repre-
sentations made concerning that condition. He
concluded that the misrepresentations concerning
the multimillion dollar building and movement of
offices were not so substantial and material as to
interfere with the election, and recommended that
5 Chairman Miller would direct a hearing on Objection 5, but notes that
because Objection 6 is sustained no hearing is necessary He would find that
the present state of the record fails to reveal the relative importance of the
issue of the Employer's declarations of its financially precarious situation
with respect to the impact , if any , the rumor may have had on employees.
6 Indeed, the deadline for filing of exceptions had not expired as of
December 4
1 We do not consider Petitioner's labelling of the Administrative Law
Objection 5 be overruled. We agree with the Acting
Regional Director's findings, conclusions, and rec-
ommendations.5
With respect to Objection 9 the Acting Regional
Director found that attached to Petitioner's letter,
dated December 4, was a true copy of the notice to
employees issued pursuant to a decision in the
recommended Order of the Administrative Law
Judge in Case 14-CA-7480. The notice was de-
scribed as "the original order by the National Labor
Relations Board." The Acting Regional Director
found Petitioner did not communicate to employees
the impression that exceptions could not be filed to
the recommended Decision and Order6 and that the
Employer had sufficient time to present its version of
the matter to employees. He therefore concluded that
the letter and copy of the notice were not so
misleading as to have affected the results of the
election, and recommended that Objection 9 be
overruled. We agree with his recommendation.7
ORDER
It is hereby ordered that the runoff election
conducted on December 14, 1973, among employees
of Inland Shoe Manufacturing Co., Inc., working out
of its Advance, Missouri, facility, be, and it hereby is,
set aside, and that Case 14-RC-7487 be, and it
hereby is, remanded to the Regional Director for
Region 14 for the purpose of conducting a new
election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
Judge's recommended notice as the "original order by the National Labor
Relations Board" to be a substantial mischaracterization or misuse of a
Board document Cf Dubre-Clark Co, Incorporated, 209 NLRB No 21
(Member Penello dissenting) Chairman Miller concurs in the result, since
the Employer had sufficient time to reply to the contents of the letter
Member Penello agrees for the reasons set forth in his dissenting opinion in
Dubre-Clark