Polyflex M Company

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 806 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Polyflex M Company and United Paperworkers In-
ternational Union, AFL-CIO. Case 15-CA-
7103
September 30, 1981
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 2, 1979, the National Labor Relations
Board issued its initial Decision and Order' in this
proceeding wherein it found that the Union was
properly certified on September 15, 1978, following
a valid Board-conducted election, and that Re-
spondent's refusal to bargain violated Section
8(a)(5) and (1) of the National Labor Relations
Act, as amended. Accordingly, the Board ordered
Respondent to bargain with the Union.
On July 21, 1980, the United States Court of Ap-
peals for the Fifth Circuit denied enforcement 2 of
the Board's Order and remanded the proceeding to
the Board for the purpose of conducting a hearing
on Respondent's allegation that union representa-
tives had made campaign statements which ran
afoul of the Supreme Court's decision in N.L.R.B.
v. Savair Manufacturing Co.3 The Board accepted
the remand and, in accordance therewith, a hearing
was held before Administrative Law Judge J.
Pargen Robertson.
On April 28, 1981, Administrative Law Judge
Robertson issued the attached Supplemental Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a brief.4
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 as a whole
and the attached Supplemental Decision in light of
the exceptions, briefs, and the decision of the Court
of Appeals for the Fifth Circuit, and has decided to
affirm the rulings, findings,5 conclusions, and rec-
'240 NLRB 1153.
2 622 F. 2d 128.
'414 U.S. 270 (1973).
4 Respondent has excepted, inter alia, to the consideration of its objec-
tion in an unfair labor practice proceeding rather than in a representation
hearing. Respondent argues that, by such action, the Board has denied it
due process. We find that the hearing granted Respondent satisfied the
requirements of due process. We also note that the United States Court
of Appeals for the Fifth Circuit rejected a similar argument in .. L.R.B.
v. Bancroft Manufacturing Company, Inc., 516 F.2d 436 (1975). See also
Beaird-Poulan Division. Emerson Electric Company v. N.L.R.B.. 649 F.2d
589 (8th Cir. 1981). We note, in addition, that Respondent has failed to
allege any specific prejudice which has resulted from consideration of its
objection in an unfair labor practice hearing and we have found none
from our analysis of the record.
s Respondent's exceptions rely, in part, on the testimony of Willie
Tobias and allege that the Administrative Law Judge failed to make a
258 NLRB No. 108
ommendations of the Administrative Law Judge.
Accordingly, we shall affirm our initial Decision
and Order herein in its entirety.
ORDER
Based on the foregoing and the entire record in
this proceeding, the National Labor Relations
Board hereby affirms its Decision and Order issued
in this proceeding on March 2, 1979, and reported
at 240 NLRB 1153.
credibility resolution on his testimony. We note, however, that, where
Tobias' testimony conflicted with the testimony of Ella Brown, the Ad-
ministrative Law Judge clearly indicated that he relied on Brown's state-
ments as he found Brown was a more credible witness than Tobias. We
do note, however, that the Administrative Law Judge incorrectly charac-
terized a portion of Tobias' testimony. We find that Tobias did give testi-
mony which reflected that the Union's representative had tied initiation
fees to the Union's victory in the election. Nonetheless, as noted previ-
ously, the Administrative Law Judge found Brown the more credible of
the two witnesses and he did not base this credibility finding on any in-
correct recitation of Tobias' testimony. We find therefore that incorrect
characterization of a portion of Tobias' testimony was harmless error.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This matter was heard in McComb, Mississippi, on
March 17, 1981. The charge was filed by the Union on
November 3, 1978. On November 22, 1978, a complaint
issued alleging that Respondent violated the National
Labor Relations Act, as amended, by refusing to bargain
with the Union following the Union's certification as
bargaining agent of Respondent's employees. Pursuant to
the General Counsel's Motion for Summary Judgment,
the Board by Decision and Order, dated March 2, 1979,1
granted the General Counsel's Motion and found that
Respondent unlawfully refused to recognize and bargain
with the Union in violation of Section 8(a)(1) and (5) of
the Act. Subsequently, the United States Court of Ap-
peals for the Fifth Circuit, in a July 21, 1980, decision,
denied enforcement of the Board's Order and remanded
the case to the Board.2 By order dated January 14, 1981,
the Board directed that a hearing be held before an ad-
ministrative law judge for the purpose of taking evidence
in accordance with the circuit court's remand. In accord
with the Board's Order, the Regional Director for
Region 15 issued a notice of the instant hearing.
On June 13, 1978, the Union filed its petition in Case
15-RC-6319. On July 17, 1978, following a representa-
tion hearing, the Acting Regional Director for Region 15
issued a Decision and Direction of Election in which he
found that the appropriate unit consisted of all produc-
tion and maintenance employees, including quality con-
trol employees and the extruder department employees
employed by the Employer at its Summit, Mississippi, fa-
cility, excluding all other employees, office clerical em-
ployees, professional employees, technical employees,
'The slip opinion (now cited 240 NLRB 1153) incorrectly shows its
date as March 2, 1975.
N.L.R.B. v. Polyflex M Company, 622 F.2d 188 (5th Cir. 1980).
806
POLYFLEX M COMPANY
salesmen, summer employees, the president's son, guards,
foremen, and supervisors as defined in the Act. On
August 17, 1978, an election was conducted among the
employees in the unit found appropriate. The tally of
ballots indicated that, of approximately 43 eligible voters,
26 cast ballots for and 15 against the Union; there were 5
challenged ballots, an insufficient number to affect the
results of the election.
Thereafter, on August 24, 1978, Respondent filed ob-
jections to the election contending, inter alia, that the
Union had engaged in conduct violative of the rules set
forth in N.L.R.B. v. Savair Manufacturing Co., 414 U.S.
270 (1973). On September 15, 1978, the Acting Regional
Director overruled those objections and certified the
Union as the exclusive bargaining representative of the
employees in the unit found appropriate. On September
26, 1978, Respondent requested that the Board review
the Acting Regional Director's Supplemental Decision
and Certification of Representative. That request was
denied by the Board on November 9, 1978.
Subsequently, Respondent refused to bargain in order
to test the validity of the certification.
As indicated above, the Board in response to Motion
for Summary Judgment found that Respondent did
refuse to bargain in violation of Section 8(a)(l) and (5) of
the Act. The court of appeals, in its finding that the
Board's Order was not entitled to enforcement, found
that Respondent herein had presented evidence which
established a prima facie case that union representatives
made election campaign statements which were subject
to reasonable interpretation by employees that they
could avoid initiation fees by joining the Union prior to
the election. The court determined that the Board had
erred by refusing to direct a hearing to determine if
union representatives made statements to employees con-
cerning waiver of initiation fees if the employee joined
the Union prior to the election and, if so, whether those
statements constituted objectionable conduct within the
scope of the rule announced in N.L.R.B. v. Savair Manu-
facturing Co., supra.
During the hearing herein the parties presented evi-
dence relevant to the queries posed by the court of ap-
peals. Upon the entire record and from my observation
of the witnesses, and after due consideration of the briefs
filed by Respondent and the General Counsel, I hereby
make the following findings:
The Evidence
Respondent called employee Ella Brown, who testified
that during a May 27, 1978, union meeting held at the
Holiday Inn in McComb, Mississippi, approximately
eight of Respondent's employees were present. Brown
testified that Herman Merritt, the Union's International
representative, spoke to the employees at that meeting:
"Mr. Hewett, I believe, or Mr. Tobias, asked about the
initiation fee and Mr. Merritt told us if we support him
and the Union now, we would not have to pay an initi-
ation fee. If there was any stragglers that could come in
later on and find the benefits of the Union were good.
they would have to pay it later on after the Union is es-
tablished." Brown went on to testify that her understand-
ing of what Merritt had told the employees during that
May 27 meeting was "that before a contract was signed
and we get benefits and then somebody wants to join the
Union, after we get benefits, then they would have to
pay an initiation fee."
Union authorization cards were given to the employ-
ees at the May 27 meeting for them to sign and also in
order to permit those employees to solicit other employ-
ees to sign authorization cards. Ella Brown accepted
some of the cards and passed those cards out to other
employees of Respondent. Brown testified she passed au-
thorization cards out to roughly 8 or 10 employees at
Respondent's plant. In response to direct questioning,
Brown testified she told those people that she distributed
cards to who asked about the initiation fee and union
dues that, "if they support the Union, they would have
to pay $8.50 a month and no initiation fee." Later, under
cross-examination, Brown testified she told the employ-
ees "that if they are not with us now, later on if they
think we get all the goodies and they come in later on,
they would have to pay an initiation fee." She was then
asked, "But that would be after the contract was
signed?" and she replied, "Like a year later or so, you
know." She was asked, "So, that if they came in a year
after the contract was signed and decided at that point in
time, they wanted to join the Union, they would have to
pay an initiation fee?" Brown replied, "That's what Mr.
Merritt told us."
Herman Merritt testified that he is an International
representative of the Union and that he did address sev-
eral of Respondent's employees during the May 27, 1978,
meeting. Merritt was asked what was said about initi-
ation fees at that meeting. He responded,
Our International Union has a policy and it's usual-
ly a subject of every campaign as to what the dues
and initiation fees are. The question did come up in
this particular meeting, and I stated that it as our
Union's policy under our constitution that all newly
organized local unions, that the initiation fee was
waived for them, that there wouldn't be any initi-
ation fee. Only that once we negotiated a contract
or became chartered and then negotiated a contract,
that at some later time, the local union could decide
what the initiation fee would be and that it would
be set between $10 and $35 but it would be up to
that group to set their initiation fees under their
bylaws after the contract was negotiated.
Willie Tobias testified on May 27, 1978, he was em-
ployed by Respondent as a shipping clerk. On that date
Tobias attended the union meeting addressed by Herman
Merritt. Tobias recalled,
The union representative, Mr. Merritt, informed us
that the Union had the right to-or it was the privi-
lege or the normal procedure for the Union to
waive the initiation fee to newly organized locals
and once the newly organized locals were set up,
and the charter and everything was drawn up, it
was up to the local to set the initiation fee any-
where from $10 to $25, either the lower fee or the
higher fee.
807
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both the employees who testified at the hearing,
Brown and Tobias, testified that they received a leaflet
from the Union prior to the August 17 election which
stated, among other things, "There will not be any initi-
ation fee or any other fee to join the Union." Herman
Merritt testified he mailed a copy of that leaflet to all
bargaining unit employees during the week prior to the
election.
Conclusions
I find that the evidence shows that Herman Merritt ex-
plained to the employees present at the May 27 union
meeting that the Union's policy was to waive initiation
fees for members of newly organized locals. Merritt also
explained that employees would be charged initiation
fees if they waited until after the Union secured im-
proved benefits, provided initiation fees were set by the
local union following the local being established and
chartered.
The testimony of Ella Brown shows that she informed
other employees of Merritt's comments regarding initi-
ation fees.
I note, as pertinent to my consideration, the fact that
Merritt's comments on May 27 were made almost 3
months before the election. A union leaflet, signed by
Herman Merritt, was mailed to all the bargaining unit
employees during the week before the election. That
leaflet stated without qualification that there would be
no initiation fee. (See N.L.R.B. v. Con-Pac. Inc., 509 F.2d
270 (5th Cir. 1975).)
The court of appeals, in its remand decision herein,
recognized that the Supreme Court determined "'a
waiver of initiation fees available not only to those who
have signed up with a the union before an election but
also to those who joined after the election does not vio-
late Savair." (N.L.R.B. v. Polyflex M Company, 622 F.2d
at 130, fn. 20.) In determining whether the Union's state-
ments violate Savair, "the proper consideration is the ob-
jective interpretation by the employees of the message
actually communicated to them by the Union." Id. at
130.
The court of appeals, in its decision, quoted the fol-
lowing from an employee affidavit:
As I recall, at the union meeting, Hermann Merritt
told us that the Union dues would be $8.50 per
month and that if we joined the Union now, the
ones that did would not have to pay an initiation
fee. Merritt said "if you get the Union voted in, the
[employees] that support it now will not have to
pay initiation fees." I am absolutely certain that he
said this. He also explained it as I recall.
As a matter of fact, Merritt said at the meeting that
there would not be an initiation fee to join the
Union. He said [the employees] would have to pay
Union dues but not the initiation fee. He said once
the Union's established and bargained for [the em-
ployees] and got everything going good [the em-
ployees] would have to pay initiation fees.
That quote appears in the affidavit of Ella Brown
which was received in evidence. However, as shown
above, Brown at the hearing herein, where she was sub-
jected to direct and cross-examination, recalled that Mer-
ritt said, "If there was any stragglers that would come in
later on and find the benefits of the Union were good,
they would have to pay it later on after the Union is es-
tablished."
The above statement by Merritt implies, by the term
"find the benefits of the Union were good," that only
those employees who join after a contract is signed
would face an initiation fee. Obviously, in the absence of
a collective-bargaining agreement, there could be no
union benefits.
Brown's admitted understanding of what Merritt said
demonstrates that employees understood Merritt to mean
there would be no initiation fees until after a contract.
As shown above, she testified, "My understanding was
that before a contract was signed, nobody would have to
pay an initiation fee. After a contract was signed and we
get benefits, then they would have to pay an initiation
fee."
I am convinced that the above testimony reflects an
"objective interpretation by the employees of the mes-
sage actually communicated to them by the Union."
The testimony of Merritt and Willie Tobias differs
slightly from that of Brown. Obviously, if Merritt made
the statements recalled in his testimony that no initiation
fees would be levied until the Union had "negotiated a
contract," there would be no Savair objection. The testi-
mony of Tobias, however, did not include a reference to
negotiated contract. Tobias recalled that Merritt told the
employees that once a newly organized local was orga-
nized and chartered, the local could set an initiation fee.
Tobias' testimony would create a more difficult prob-
lem as to the Savair question. However, Savair appears to
rest on the court's concern that a union, by holding out
the threat that employees who do not sign an authoriza-
tion card before the election will have to pay an initi-
ation fee upon the union prevailing in the election,
would unfairly disrupt the laboratory conditions needed
for a fair election.
Tobias, and the other witnesses, recalled nothing
which tied initiation fees to the election. 3 What Tobias
expressed appears to be in line with the Union's constitu-
tion which specifies:
Article VIII.
The Revenue.
Section 1. The initiation fee for membership in a
local union of the International Union shall be such
sum as may be fixed by the local union but shall not
be less than ten dollars ($10) or more than thirty-
five dollars ($35). Each local shall pay the Interna-
tional Union one dollar ($1) out of the initiation fee
collected from each member. The International
President shall have the power to waive the pay-
ment of initiation fees for newly-formed local
In fact, on May 27 no petition had been filed and, obviously, no elec-
tion had been scheduled.
808
POLYFLEX M COMPANY
unions, for members of newly-organized establish-
ments, or under special circumstances.
I see nothing in Tobias' testimony which would sup-
port my finding that "the objective interpretation by the
employees of the message actually communicated to
them by the Union" shows a violation of the Savair rule.4
The evidence convinces me that Merritt's May 27
statements to the employees were more in accord with
the testimony of Brown and Tobias than with his own.
Of those two employees, I found Brown to be more
credible. She testified with conviction and without hesi-
tation. However, as noted above, none of the three wit-
nesses recalled facts which would constitute objection-
able conduct under Savair. In that regard, I note that the
evidence does not show that the Union ever misrepre-
sented the Union's policy as expressed in its constitution,
supra. Comments5 to employees did not lend themselves
to an objective interpretation which would violate
Savair. In fact, there was no evidence of "innocent mis-
understandings of employees" regarding initiation fees
' N.L.R.B. v. Polyflex M Company, supra. Cf. Levitz Furniture Company
of Santa Clara, Inc., 234 NLRB 1195, 1197 (1978), and Jefferson Food
Mart, Inc., d/b/a Call-A-Mart, 214 NLRB 225, 227 (1974), holding that
Sawair did not concern itself with the innocent misunderstandings of em-
ployees, but rather with the intentional and deliberate waiver or reduc-
tion of initiation fees conditioned upon the outcome of impending elec-
tion. Although the rule in Call-A-Mart,. supra, does not necessarily differ
from the "objective interpretation" rule mentioned in the court of appeals
decision, it is obvious that the result herein would be the same regardless
of which rule is applied. I have applied the "objective interpretation"
standard, but I note that the record contains no evidence of a "deliberate
waiver or reduction of initiation fees conditioned upon the outcome of an
impending election."
which would constitute Savair violations. Moreover,
when viewed in the context of Merritt's statements on
May 27 and the Union's election week leaflet, it is appar-
ent that the Savair rule was not violated. 6
In view of the above findings and conclusion, I make
the following:
RECOMMENDATIONS'
It is recommended that the Board find that the objec-
tions to the election filed by Respondent have not been
sustained and that it affirm its Order in the instant pro-
ceeding as reported at 240 NLRB 1153 (1979).
7 Respondent, in its brief, contended "there can be no assurance that all
evidence introduced during the investigation was made part of the
record" since the hearing herein was not held pursuant to rules applica-
ble to hearings on objections. In that regard, Respondent argued that it
continued to be prejudiced by the Regional Director's failure to direct a
hearing on its objections before certification issued. The record does not
support Respondent in this regard. Respondent introduced testimony re-
garding remarks in the May 27 union meeting from an employee present
at that meeting. There was no showing that that employee. Ella Brown.
did not know the identity of the other employees present at the May 27
meeting. Therefore, I am unable to determine that Respondent was de-
prived of the opportunity to conduct its own investigation by interview-
ing those other employees pursuant to Board procedures (see Johnnie's
Poultry Co. and John Bishop Poultry Co.. Successor, 146 NLRB 770
(1964)), or otherwise fully to investigate this matter and develop the
record. There were no comments made before close of the hearing herein
which demonstrated to me at that time that Respondent felt further de-
velopment of the record was desired.
809