S.T.A.R., Inc., Lighting The Way . . ., (2006)

S.T.A.R., Inc., Lighting The Way . . . and New England Health Care Employees Union, District 1199, SEIU. Case 34–RC–2111

May 25, 2006

DECISION AND DIRECTION OF SECOND ELECTION

By Chairman Battista and Members Liebman and Schaumber

The National Labor Relations Board, by a three-member panel, has considered an objection to an election held March 23, 2005, and the hearing officer’s report recommending disposition of it. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 74 ballots for and 47 ballots against the Petitioner, with 4 nondeterminative challenged ballots.

The Board has reviewed the record in light of the exceptions and brief, adopts the hearing officer’s findings[1] and recommendations only to the extent consistent with this Decision and Direction, and finds that the election must be set aside and a new election held.

We find that the hearing officer erred in overruling the Employer’s Objection 3, which alleged that the Petitioner tainted the election by communicating to employees that it would waive initiation fees for only those employees who actively supported the Union. We sustain Objection 3 and set aside the election.

i. facts

During the critical period, Union Agent Ariel Lambe gave a brochure to employee Michael Gallo. In relevant part, the last page of the brochure provides:

There is a one-time $50 initiation fee. Workers who organize to join 1199 are exempt, and begin paying dues once a contract is won. [Emphasis added.]

The last page of the Petitioner’s brochure also sets forth formulas for calculating union dues and includes a breakdown of how the Petitioner spends its dues revenue.

After receiving the brochure, Gallo commented to employee Daniela Kurtz: “[C]an you believe these guys get to organize the Union and then they don’t have to pay the initiation fee and other people will.” On his own initiative, Gallo gave the brochure to Supervisor Linda Snell, who, in turn, gave it to the Employer’s executive director, Katie Banzhaf. Banzhaf photocopied the last page of the brochure and placed a photocopy in each employee’s mailbox approximately 2 to 3 weeks before the election.

At some point before Lambe had given the brochure to Gallo, the Petitioner described its fee-waiver policy at an organizing meeting in Bridgeport, Connecticut.[2] Approximately 18 of the 136 unit employees attended this meeting. Union Agent David Pickus explained to the few employees in attendance that “there is no initiation fee for anyone working at the facility before [the Petitioner] obtains a contract.” He also told them that only employees hired by the Employer after the Petitioner won a contract would pay the initiation fee. Pickus distributed a copy of the Petitioner’s bylaws to the employees who attended the Bridgeport meeting. In relevant part, the bylaws provide that “[i]n the case of new organization, those employees hired before the signing of an initial collective bargaining agreement shall not be required to pay an initiation fee.”

Apart from the Bridgeport meeting, the Petitioner distributed its bylaws to each employee who met with union organizers. However, the record does not disclose how many employees met with union organizers.

On an unspecified date during the critical period, Union Agent Pickus informed employee Gallo by telephone that “you don’t pay any dues until we get a contract, there is no initiation fee, that’s the policy of the Union, as stated in the Union’s bylaws.”

ii. analysis

A union interferes with free choice when it offers to waive initiation fees for only those employees who manifest support for the union before an election. See NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973). When a union makes an ambiguous offer to waive fees, it is the union’s “duty to clarify that ambiguity or suffer whatever consequences might attach to employees’ possible interpretations of the ambiguity.” Inland Shoe Mfg. Co., 211 NLRB 724, 725 (1974); cf. Davlan Engineering, 283 NLRB 803, 805 (1987) (a union may avoid responsibility for the improper fee-waiver statements of its solicitors by clearly publicizing a lawful fee-waiver policy in a manner reasonably calculated to reach unit employees before they sign cards). Absent an adequate clarification, the Board will set aside an election based on an ambiguous offer to waive fees if the offer is reasonably susceptible to an interpretation that violates the principles of Savair. Rounsaville of Tampa, Inc., 224 NLRB 455, 455 (1976), supplemented by 227 NLRB 1079 (1977); Inland Shoe Mfg. Co., 211 NLRB at 725; Deming Division, Crane Co., 225 NLRB 657, 659 (1976).

As the hearing officer found, the Petitioner’s brochure is ambiguous and reasonably susceptible to an interpretation that violates the principles of Savair. The brochure states that “[w]orkers who organize to join 1199” are exempt from the initiation fee, thereby communicating the message that workers who do not “organize to join 1199” are not exempt. The brochure does not make it clear that those employees who sit silent or advocate against unionization during the campaign would also be exempt. Because the ambiguous brochure is reasonably susceptible to an interpretation that violates the principles of Savair, absent adequate clarification, the Petitioner has interfered with employee free choice.[3]

We disagree with the hearing officer’s finding that the Petitioner adequately clarified its fee-waiver policy. In determining whether the Petitioner’s clarifications were adequate, we must first consider how many employees were affected by the Petitioner’s objectionable conduct. All 136 employees who were eligible to vote in the election received a photocopy of the Petitioner’s ambiguous, coercive brochure. The Petitioner gave the brochure to employee Gallo, thereby interfering with his free choice. Gallo then voluntarily gave the brochure to the Employer. Later, approximately 2 to 3 weeks before the election, the Employer placed photocopies of the last page of the brochure in the mailboxes of all 136 employees. Where, as here, employees receive in their mailboxes a special page governing the payment of union fees, and this occurs during the heat of a union organizational campaign, we think it reasonable to infer that employees will not ignore the message.

The Petitioner did not clearly articulate a nonobjectionable fee-waiver policy to these 136 employees. Approximately 18 employees—far less than the number in the proposed unit—attended the Bridgeport meeting where Pickus articulated a nonobjectionable fee-waiver policy and distributed bylaws describing its policy.[4] One additional employee, Gallo, heard Pickus articulate a nonobjectionable fee-waiver policy over the telephone. The record does not establish that any other employees learned that the Petitioner would, contrary to a reasonable reading of the brochure, waive the initiation fees for all employees hired before a first contract is reached. Though organizers distributed a copy of the Petitioner’s bylaws to every employee with whom they met, the record does not establish how many employees, if any, met with union organizers other than the 19 employees discussed above. The Board does not presume dissemination of a union’s clarifications of an ambiguous offer to waive fees.[5] Thus, the coercive brochure was “corrected” for only about 19 employees.[6] Consequently, the brochure was the sole source of information about initiation fees for as many as 117 employees.[7]

Contrary to the hearing officer, we will not preclude the Employer from relying on its own dissemination of the brochure to show that the Petitioner’s objectionable conduct affected all 136 unit employees. See Sears Roebuck de Puerto Rico, 284 NLRB 258 (1987). In Sears Roebuck de Puerto Rico, a supervisor uttered a plant-closure threat to approximately five employees. The union learned of the supervisor’s threat, and it disseminated news of the threat in a leaflet that it distributed to numerous employees. Before the election, the employer learned that the union had disseminated news of the supervisor’s threat. Nevertheless, the employer did not disclaim the supervisor’s threat. The union lost the election and filed objections. The Board set aside the election, relying on the union’s dissemination of the employer’s threat to conclude that the threat could have affected the election result. Id. at 259 fn. 13 and 272. Thus, the Board has permitted an objecting party to rely on its own dissemination of a prevailing party’s objectionable conduct. We do so here.[8]

Our dissenting colleague attempts to distinguish Sears Roebuck de Puerto Rico, supra, on the ground that the prevailing party in that case knew of the objecting party’s dissemination and failed to inform voters that it disavowed the threat. She contends that the Petitioner was not aware that the Employer had disseminated its coercive brochure. She argues that it is “unfair” to “punish” a prevailing party (by setting aside an election) when that party had no reason to know that its coercive statement reached a determinative number of voters through the objecting party’s dissemination. She argues that the election should stand, even though many voters read a coercive statement, because the Petitioner did not have an opportunity to disclaim it.

We are not persuaded by our colleague’s attempt to distinguish Sears Roebuck de Puerto Rico. The Board in that case did not state or imply that the result depended on whether the party who engaged in the objectionable conduct knew of the dissemination of that conduct. Nor should the result depend on such knowledge. The issue in these cases is not whether a party should be “punished.” Rather, the inquiry is whether the employees have been exposed to conduct that interfered with their free choice. Thus, the critical facts in this case are that the Petitioners brochure contained an objectionable statement, that the statement was...