National Labor Relations Board v. Savair Manufacturing Company 8212 1231

Decision Date17 December 1973
Docket NumberNo. 72,72
CourtU.S. Supreme Court

A labor union's offer to waive initiation fees for all employees who sign union authorization cards before a certification election under the National Labor Relations Act interferes with the employees' right to refrain from union activities guaranteed by § 7 of the Act; does not comport with the principle of 'fair and free choice of bargaining representatives by employees' that is inherent in § 9(c)(1)(A), NLRB v. A.J. Tower Co., 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 and is ground for denying enforcement of an order against the employer to bargain with the union after it wins the election. Pp. 270—281.

6 Cir., 470 F.2d 305, affirmed.

Norton J. Come, Washington, D.C., for petitioner.

Robert J. Solner, Birmingham, Mich., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

The National Labor Relations Board, acting pursuant to § 9(c) of the National Labor Relations Act, as amended, 61 Stat. 144,1 29 U.S.C. § 159(c), conducted an election by secret ballot among the production and maintenance employees of respondent at the request of the Mechanics Educational Society of America (hereafter Union). Under the Act2 the Union, if it wins the election, becomes 'the exclusive representative of all the employees' in that particular unit for purposes of collective bargaining. The Union won the election by a vote of 22—20.

Respondent filed objections to the election, but after an evidentiary hearing a hearing officer found against respondent and the Board certified the Union as the representative of the employees in that unit. Respondent, however, refused to bargain. The Union thereupon filed an unfair labor practice charge with the General Counsel, who issued a complaint alleging that respondent had violated §§ 8(a)(1) and (5) of the Act.3 The Board sustained the allegations and ordered respondent to bargain with the Union. 194 N.L.R.B. 298. The Court of Appeals denied enforcement of the order. 470 F.2d 305. We granted the petition for certiorari, 411 U.S. 964, 93 S.Ct. 2147, 36 L.Ed.2d 683, there apparently being a conflict between this decision in the Sixth Circuit and a decision in the Eighth Circuit. NLRB v. DIT-MCO, Inc., 428 F.2d 775, and also with one in the Ninth Circuit, NLRB v. G.K. Turner Associates, 457 F.2d 484. We affirm.

It appeared that prior to the election, 'recognition slips' were circulated among employees. An employee who signed the slip before the election4 became a mem- ber of the Union and would not have to pay what at times was called an 'initiation fee' and at times a 'fine.' If the Union was voted in, those who had not signed a recognition slip would have to pay.

The actual solicitation of signatures on the 'recognition slips' was not done by Union officials. Union officials, however, explained to employees at meetings that those who signed the slips would not be required to pay an initiation fee, while those who did not would have to pay. Those officials also picked out some five employees to do the soliciting and authorized them to explain the Union's initiation-fee policy. Those solicited were told that there would be no initiation fee charged those who signed the slip before the election. Under the bylaws of the Union, an initiation fee apparently was not to be higher than $10; but the employees who testified at the hearing (1) did not know how large the fee would be and (2) said that their understanding was that the fee was a 'fine' or an 'assessment.'

One employee, Donald Bridgeman, testified that he signed the slip to avoid paying the 'fine' if the Union won. He got the message directly from an employee picked by the Union to solicit signatures on the 'slips.' So did Thomas Rice, another employee.

The Board originally took the position that pre-election solicitation of memberships by a union with a promise to waive the initiation fee of the union was not consistent with a fair and free choice of bargaining representatives. Lobue Bros., 109 N.L.R.B. 1182. Later in DIT-MCO, Inc., 163 N.L.R.B. 1019, the Board explained its changed position as follows:

'We shall assume, arguendo, that employees who sign cards when offered a waiver of initiation fees do so solely because no cost is thus involved; that they in fact do not at that point really want the union to be their bargaining representative. The error of the Lobue premise can be readily seen upon a review of the consequences of such employees casting votes for or against union representation. Initially, it is obvious that employees who have received or been promised free memberships will not be required to pay an initiation fee, whatever the outcome of the vote. If the union wins the election, there is by postulate no obligation; and if the union loses, there is still no obligation, because compulsion to pay an initiation fee arises under the Act only when a union becomes the employees' representative and negotiates a valid union-security agreement. Thus, whatever kindly feeling toward the union may be generated by the cost-reduction offer, when consideration is given only to the question of initiation fees, it is completely illogical to characterize as improper inducement or coercion to vote 'Yes' a waiver of something that can be avoided simply by voting 'No.'

'The illogic of Lobue does not become any more logical when other consequences of a vote for representation are considered. Thus, employees know that if a majority vote for the union, it will be their exclusive representative, and, provided a valid union-security provision is negotiated, they will be obliged to pay dues as a condition of employment. Thus, viewed solely as a financial matter, a 'no' vote will help to avoid any subsequent obligations, a 'yes' may well help to incur such obligations. In these circumstances, an employee who did not want the union to represent him would hardly be likely to vote for the union just because there would be no initial cost involved in obtaining membership. Since an election resulting in the union's defeat would entail not only no initial cost, but also insure that no dues would have to be paid as a condition of employment, the financial inducement, if a factor at all, would be in the direction of a vote against the union, rather than for it.' Id., at 1021—1022.

We are asked to respect the expertise of the Board on this issue, giving it leeway to alter or modify its policy in light of its ongoing experience with the problem. The difficulty is not in that principle but with the standards to govern the conduct of elections under § 9(c)(1)(A). We said in NLRB v. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 328, 91 L.Ed. 322, that the duty of the Board was to establish 'the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.'

It is, of course, true as we said in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767, 89 S.Ct. 1426, 1430, 22 L.Ed.2d 709, that 'Congress granted the Board a wide discretion to ensure the fair and free choice of bargaining representatives.' See also NLRB v. Waterman S.S. Co., 309 u.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 704. But in this case two opposed groups are in contention: one composed of those who want a union and the other, of those who prefer not to have one. The Board in its DIT-MCO opinion says 'it is completely illogical to characterize as improper inducement or coercion' a waiver of initiation fees for those who vote 'yes' when the whole problem can be avoided by voting 'no.' 163 N.L.R.B., at 1021—1022. But the Board's analysis ignores the realities of the situation.

Whatever his true intentions, an employee who signs a recognition slip prior to an election is indicating to other workers that he supports the union. His outward manifestation of support must often serve as a useful campaign tool in the union's hands to convince other employees to vote for the union, if only because many employees respect their coworkers' views on the unionization issue. By permitting the union to offer to waive an initiation fee for those employees signing a recognition slip prior to the election, the Board allows the union to buy endorsements and paint a false portrait of employee support during its election campaign.

That influence may well have been felt here for, as noted,5 there were 28 who signed up with the Union before the election petition was filed with the Board and either seven or eight more who signed up before the election. We do not believe that the statutory policy of fair elections prescribed in the Tower case permits endorsements, whether for or against the union, to be bought and sold in this fashion.

In addition, while it is correct that the employee who signs a recognition slip is not legally bound to vote for the union and has not promised to do so in any formal sense, certainly there may be some employees who would feel obliged to carry through on their stated intention to support the union. And on the facts of this case, the change of just one vote would have resulted in a 21—21 election rather than a 22—20 election.

Any procedure requiring a 'fair' election must honor the right of those who oppose a union as well as those who favor it. The Act is wholly neutral when it comes to that basic choice. By § 7 of the Act employees have the right not only to 'form, join, or assist' unions but also the right 'to refrain from any or all of such activities.' 29 U.S.C. § 157. An employer who promises to increase the fringe benefits by $10 for each employee who votes against the union, if the union loses the election, would cross the forbidden line under our decisions. See NLRB v Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435. The right of employees to 'form, join, or assist' labor unions guaranteed by § 7 has...

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