Wabash Magnetics, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1974

210 N.L.R.B. 462 (N.L.R.B. 1974)

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wabash Transformer Corporation, Subsidiary of Wa-
bash Magnetics, Inc. and Communications Work-
ers of America, AFL-CIO. Cases 14-CA-7420-1,
14-CA-7420-2, and 14-CA-7548
April 30, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On February 11, 1974, Administrative Law Judge
Fannie M . Boyles issued the attached Decision in
this proceeding.' Thereafter, Respondent filed excep-
tions and a supporting brief and request for oral
argument.2
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 record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the Administrative Law
Judge's rulings, findings, and conclusions as modi-
fied herein and to adopt her recommended Order.
In the underlying representation proceeding,3 the
Board considered the Regional Director's report and
adopted the Director's findings, conclusions, and
recommendations. In said report, he found, inter alia,
that the Employer's Objection 2 did not warrant
setting the election aside. In that objection the
Employer asserted that: "During the period preced-
ing the election, the Petitioner has offered economic
rewards to employees for engaging in union activity."
The Employer specifically alleged that the Petitioner
waived the payment of its monthly membership dues
for the purpose of inducing employees to vote for it
in the election.
As described in the Regional Director's report on
objections in that case, the Union distributed a
leaflet on March 12, 1973, which stated in material
part:
Dues $5.50! Yes, your dues will be
$5.50-AFTER WE HAVE SUCCESSFULLY
BARGAINED A CONTRACT WITH THE
WABASH TRANSFORMER CORPORATION
-NOT A CENT BEFORE WE REACH AN
AGREEMENT! This is a reasonable premium to
insure better wages , fringe benefits and working
i As set forth in the attached Decision , the Administrative Law Judge
issued the said Decision disposing solely of the alleged violation of Sec.
8(aX5) insofar as it is based on the Respondent 's refusal to honor the
certification and bargain with the Union She retained the remaining
aspects of the case for disposition in a supplemental decision to be issued at
a later date.
conditions, plus a strong voice to review your
grievances with the Company.
In addition the Director's report states that the
Union acknowledged that during organization cam-
paigns its established procedure has been to inform
employees they will not be required to pay member-
ship dues until it has successfully bargained a
contract with the employer, and that, pursuant to
that practice, the Union's administrative assistant,
Crawley, in response to an employee's question, said
that employees would not be required to pay dues or
fees until after the Union had been certified and
obtained a collective-bargaining agreement with the
Employer. The Director concluded that the investi-
gation failed to establish other than that during the
relevant period the Union deferred the payment of
initiation fees and dues until after certification and a
collective-bargaining agreement had been reached.
In support of his conclusion that the conduct did not
interfere with the election, he cited DIT-MCO,
Incorporated, 163 NLRB 1019, 1022, and EFCO
Corporation, 185 NLRB 220. The Administrative
Law Judge, in her decision in the instant proceeding,
found that since the Board had in the representation
proceeding overruled all objections to the election,
she was without authority to make an independent
determination. Accordingly, she concluded that the
election was valid, the Union was properly certified,
and the Respondent's refusal to bargain was in
violation of the Act.
Respondent admits that it refused to bargain in
order to test the Board's certification of the Union.
In its exceptions to the Administrative Law Judge's
Decision, Respondent does not dispute the facts as
found by the Regional Director and summarized
above, but contends that the Board should now find
that the Union's waiver of the initiation fees and
dues interfered with the election, relying on the U.S.
Supreme Court opinion in N. L R. B. v. Savair
Manufacturing Company, 414 U.S. 270, (1973).
Respondent argues that the Supreme Court refused
to enforce a Board bargaining order therein under
similar factual circumstances because the underlying
certification was invalid, and that the Board should
dismiss the instant 8(a)(5) charges. We do not agree
with Respondent that the factual situation of this
case and Savair are the same.
In Savair, the Supreme Court observed that a union
could preserve its legitimate interest by the "waiver
of initiation fees available not only to those who have
2 Respondent's request for oral argument is hereby denied as, in our
opinion, the record in this case, including the exceptions and brief,
adequately presents the issues and positions of the parties.
3 Wabash Transformer Corporation, 205 NLRB No. 38, Chairman Miller
dissenting.
210 NLRB No. 68
WABASH TRANSFORMER CORP. 463
signed up with the union before an election but also
to those who join after the election ." 4 Here, unlike
Savair, there was not a waiver limited to those who
signed a card for the Union before the election.
Rather, in the case before us, the "waiver" extended
to all employees, as no employee, whether or not he
gave preelection support to the Union, was required
to pay initiation fees or dues until after the Union
was certified and had a contract with the Employer.
We find, therefore, that this was not an improper
waiver under the holding of Savair and it did not
interfere with the election.5 Accordingly, we agree
with the Administrative Law Judge that the Respon-
dent violated Section 8(a)(5) in refusing to recognize
and bargain with the certified Union .6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that Respondent, Wabash Transform-
er Corporation, Subsidiary of Wabash Magnetics,
Inc., Farmington, Missouri, its officers, agents,
successors , and assigns, shall take the action set forth
in the said recommended Order.
4 Fn. 4 of Savair, supra
S Irwindale Division, Lau Industries, A Division of Phillips industries, Inc,
210 NLRB No 42.
6 Chairman Miller concurs in his colleagues' disposition of the Savair
issue , but dissents from the finding of an 8(a)(5) violation. For the reasons
set forth in his dissent in the underlying representation case , he is of the
view that this certification was improvidently issued and that the election
should, instead, have been set aside.
At the hearing in these consolidated cases, Respondent
conceded that it had refused and is refusing to bargain
with the Union but contended that its refusal is justified
and not in violation of Section 8(aX5) of the Act because
the Board in the underlying representation proceeding
(Case 14-RC-7260) improperly overruled Respondent's
objections to the election and improperly certified the
Union. All allegations of the complaint pertaining to an
unlawful refusal to bargain by Respondent (such as a
unilateral change in working conditions and a refusal to
furnish data) stem from Respondent's position that the
certification is invalid and that it cannot , consistently with
that position, recognize or bargain with the Union while
pressing its position before the Board and the Courts
without in effect waiving its legal position . The Adminis-
trative Law Judge is bound by the Board 's decision in the
representation proceeding and has no alternative but to
find a violation of Section 8(aX5) of the Act. A delay
in issuance of a bargaining order until all other issues in
this lengthy and complex case (involving over 2,600
transcript pages and numerous exhibits) have been decided
would, in the view of the Administrative Law Judge, serve
no useful purpose and would not effectuate the policies of
the Act. The Administrative Law Judge, therefore, on
January 22, 1974, issued an order to show cause why a
decision should not promptly be issued finding that
Respondent has refused to bargain with the Union, in
violation of Section 8(aX5) of the Act, and ordering
Respondent , upon request, to bargain with the Union.
None of the parties having shown good cause why the issue
of Respondent's refusal to bargain , based upon its position
as to the validity of the Board's certification, should not be
decided forthwith and prior to a decision on the other
issues in these consolidated cases, a decision and order
involving that issue alone will now be issued.'
FINDINGS OF FACT
SUMMARY DECISION AND RECOMMENDED
BARGAINING ORDER
STATEMENT OF THE CASE
Fannie M. Boy's, Administrative Law Judge: On August
23, 1973, the Communications Workers of America,
AFL-CIO, herein called the Union, filed a charge in Case
14-CA-7548, alleging that Respondent on and after
August 7, 1973, had refused to bargain with it, in violation
of Section 8(a)(5) of the National Labor Relations Act.
This charge was thereafter twice amended to allege other
violations of the Act in addition to the refusal to bargain
allegations in the original charge. Case 14-CA-7548 was
subsequently consolidated with Cases 14-CA-7420-1 and
14-CA-7420-2, each involving alleged 8(a)(1) and (3)
violations , and a consolidated complaint was issued on
October 11, 1973. These consolidated cases were heard
before me at Farmington, Missouri, at various dates
between November 5 and December 12, 1973.
i Respondent filed a telegraphic response to the order to show cause but
I do not consider any of the matters stated therein as good cause for not
proceeding as I have proposed My decision and order herein will not be
addressed to any factual or legal issues involving Respondent's obligation to
furnish data requested by the Union or to Respondent's alleged unilateral
1. JURISDICTIONAL FINDINGS
Respondent , a Missouri corporation , maintains one of its
offices and places of business in Farmington , Missouri,
where it is engaged in the manufacture, nonretail sale, and
distribution of transformers and related products . During
the calendar year 1972, which is a representative period,
Respondent , in the course and conduct of its business
manufactured, sold, and distributed at its Farmington
plant products valued in excess of $50,000, of which,
products valued in excess of $50,000 were shipped from
said plant directly to points located outside the State of
Missouri . Respondent concedes and I find that Respon-
dent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Communications Workers of America, AFL-CIO, here-
changes in conditions of employment and I do not foresee any substantial
duplication of work or burdensome legal expenses involved as Respondent
suggests . On the contrary , an early opportunity for reconsideration by the
Board and review by the appropriate court of the certification issue might
tend to simplify the remaining issues or result in their amicable adjustment.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. RESPONDENT'S REFUSAL TO RECOGNIZE AND
BARGAIN WITH THE UNION
In an election conducted on March 16, 1973 (in Case
14-RC-7260) under the supervision of the Board' s Region-
al Director for Region 14, a majority of Respondent's
employees in a concededly appropriate bargaining unit,
voted for the Union. Respondent thereafter filed timely
objections to the election (Resp. Exh. 6). The Regional
Director on April 25, 1973, filed his report on the
objections, recommending that the objections be overruled
and that a Certification of Representative be issued (Resp.
Exh. 7). Respondent thereupon filed with the Board in
Washington, D.C., its exceptions to the Regional Director's
report (Resp. Exh. 8).
On July 31, 1973, the Board (a three-member panel, with
one member dissenting) issued its Decision and Certifica-
tion of Representatives, adopting the Regional Director's
findings, conclusions, and recommendations and certifying
the Union as the exclusive representative of Respondent's
employees in the following appropriate unit (G.C. Exh. 2):
All production and maintenance employees employed
at the Employer's Farmington, Missouri, facility,
including the leadgirls, but excluding office clerical and
professional employees, guards, and supervisors as
defined in the Act.
On August 7, 1973, the Union wrote Respondent
requesting certain employee data no later than August 15
and stating that it felt this data would enable it to engage
in intelligent collective bargaining (G.C. Exh. 10). Having
received no reply by August 15, the Union's representative
first telephoned Respondent on August 16, then wrote
Respondent on August 17 to protest Respondent's delay in
furnishing the requested information and suggested that
the Union and Respondent "take steps to start negotiating
the contract immediately" (G.C. Exh. 11). Respondent's
counsel orally advised the union representative that
Respondent intended to petition the Board for reconsider-
ation of its decision and certification. By letter dated
August 21, Respondent's counsel advised the Union that
Respondent considered the results of the election were
"void," and stated that Respondent was not complying
with the Union's request for employee data and was unable
to enter into contract negotiations with the Union at that
time because of Respondent's position in regard to the
validity of the election as set forth in the objections to the
election filed in the representation proceeding (G.C. Exh.
12). In further correspondence between Respondent and
the Union, Respondent continued to adhere to its position
that it would not bargain because it believed the Board
certification to be invalid (G.C. Exhs. 14 and 15).
Since the Board in the underlying representation
proceeding overruled all of Respondent's objections to the
election and certified the Union as bargaining representa-
tive, I am without authority to make any independent
2 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
determination as to the validity of the certification and
must assume that the certification is valid . Accordingly, I
find that Respondent 's admitted refusal to recognize and
bargain with the Union is in violation of Section 8(aX5) of
the Act.
CONCLUSIONS OF LAW
1. All production and maintenance employees em-
ployed at Respondent's Farmington , Missouri, facility,
including the leadgirls , but excluding office clerical and
professional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of
collective bargaining.
2. At all times since July 31, 1973, the Union has been,
and now is, the exclusive bargaining representative of the
employees in the above-described appropriate unit for
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
3. By refusing on and after August 21, 1973, to
recognize and bargain with the Union, Respondent has
engaged in and is engaging in an unfair labor practice
within the meaning of Section 8 (aX5) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
The decision herein is limited to the narrow issue already
described and will enable the parties to obtain an
expeditious decision before the Board and the reviewing
court on this important question . A decision on the
remaining alleged statutory violations will issue in due
course.
To remedy the violation of Section 8(a)(5) of the Act
herein found, my recommended Order will require that
Respondent cease and desist therefrom and take the
affirmative action normally required in such cases.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER2
Respondent , Wabash Transformer Corp., a subsidiary of
Wabash Magnetics, Inc., its officers , agents, successors,
and assigns shall:
1. Cease and desist from refusing to bargain, upon
request, with Communications Workers of America,
AFL-CIO , as the exclusive bargaining representative of
the employees in the following appropriate unit:
All production and maintenance employees employed
at Respondent's Farmington , Missouri , facility, includ-
ing the leadgirls, but excluding office clerical and
professional employees , guards and supervisors as
defined in the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and order, and all objections thereto shall be
deemed waived for all purposes
WABASH TRANSFORMER CORP.
(a) Upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit described above, and, if an understanding
is reached, upon request, embody such understanding in a
signed agreement.
(b) Post at its Farmington, Missouri, plant, copies of the
attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director for
Region 14 , after being duly signed by Respondent's
representative , shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, bargain collectively with
465
Communications Workers of America, AFL-CIO, as
the exclusive bargaining representative of our employ-
ees in the following appropriate unit:
All production and maintenance employees
employed at our Farmington, Missouri, facility,
including the leadgirls, but excluding office
clerical and professional employees, guards and
supervisors as defined in the National Labor
Relations Act.
WE WILL, upon request, embody any understanding
reached in a signed agreement.
WABASH TRANSFORMER
CORP., SUBSIDIARY OF
WABASH MAGNETICS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 210
North 12th Boulevard, Rm 448 , St. Louis, Missouri 63101,
Telephone 314-622-4167.