West Texas Utilities Co.

National Labor Relations Board - Board Decisions

Aug 25, 1953

106 N.L.R.B. 859 (N.L.R.B. 1953)

WEST TEXAS UTILITIES COMPANY 859
respect to Hubbard at this time. In the event that Hubbard's
ballot is sufficient to affect the results of the election after the
opening and counting of the ballots of Brown and Nelson, we
shall then pass upon the challenge to Hubbard ' s ballot.
[The Board directed that the Regional Director for the
Tenth Region shall , pursuant to the Rules and Regulations of
the Board , within ten ( 10) days from the date of this Direction,
open and count these ballots and serve upon the parties to this
proceeding a supplemental tally of ballots.]
Chairman Farmer and Member Peterson took no part in the
consideration of the above Supplemental Decision and Direction.
WEST TEXAS UTILITIES COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCALS
NOS. 898, 920, and 1044, AFL. Case No. 16-CA-584.
August 25, 1953
DECISION AND ORDER
On June 2, 1953, Trial Examiner Eugene F. Frey issued
his Intermediate Report in the above -entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter , the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
The Board ' has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed . The rulings are hereby affirmed.' The Board
has considered the Intermediate Report, the Respondent's
exceptions and brief , and the entire record in the case,' and
hereby adopts the findings , conclusions , and recommendations
of the Trial Examiner , with the following additions and
modifications:
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three-member panel .Members Houston, Styles, and Peter-
son].
2 The Respondent excepts to the Trial Examiner's denial of its motion at the outset of the
hearing seeking a continuance because of the temporary unavailability of certain witnesses.
The Respondent does not assert that it was prejudiced by denial of this motion. Upon the
entire record, we find no abuse of discretion by the Trial Examiner in denying this motion,
and his ruling is hereby affirmed.
3At the instant hearing the record of the prior representation proceeding , which is dis-
cussed in the text, below, was received in evidence, including the Respondent's objections
to the conduct of the election, the Regional Director's report and recommendations on the
objections, the Respondent's exceptions to said report, together with all supporting state-
ments and affidavits, the Board's Third Supplemental Decision and Certification of Repre-
sentatives, the Respondent's motion for reconsideration of that Decision, and the Board's
Order denying said motion.
106 NLRB No. 140.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 29, 1951, after a hearingupona representation
petition filed under Section 9 (c) of the Act, the Board issued
its Decision and Direction of Election,4 in which it ordered
an election by secret ballot held in an appropriate unit of the
Respondent's employees to determine whether said employees
desired to be represented for collective-bargaining purposes
by the Union. The election was held on December 19 and 20,
1951, and the tally of ballots showed that, of the 153 votes cast,
59 valid ballots were cast for the Petitioner, 47 valid ballots
were cast against the Petitioner, 45 ballots were challenged,
and 1 void ballot was cast.
On December 28, 1951, the Respondent filed objections to
conduct affecting the result of the election and to the conduct
of the election. On January 8, 1952, after an investigation,
the Regional Director issued his report on objections to the
election and challenged ballots wherein he found that the
Respondent's objections did not raise substantial or material
issues and recommended that all objections be overruled.' The
Board, on January 15, 1952, granted the Respondent's request
for an additional 7 days to obtain signed statements and
affidavits to be filed with the Respondent's exceptions to the
Regional Director's report. On January 25, 1952, the Respondent
filed its exceptions, submitting in support thereof 62 signed
statements and affidavits.
The Board, in its Supplemental Decision, Direction, and
Order6 of February 19, 1952, clarified its prior, unit finding.
It also found that material issues of fact were raised with
respect to 30 challenged ballots and directed a hearing thereon. °
The hearing having been held on the 30 challenges, the Board,
on July 18, 1952, issued its Second Supplemental Decision and
Direction' disposing of the challenges and directing the
Regional Director to serve upon the parties a revised tally
of ballots. The revised tally shows 65 ballots were cast for,
and 57 against, the Petitioner.
The Board thereupon considered the objections to the conduct
of the election. As already stated, the Respondent had excepted
to the Regional Director's rec?mmendation that all of the
Respondent's objections be overruled. The Board examined
the Respondent's objections and exceptions, together with
the supporting statements and affidavits, and on the basis of
the Respondent's factual allegations and those findings of the
Regional Director which were not contradicted by the Respondent
in its exceptions, the Board concluded that no further formal
4 West Texas Utilities Company , 97 NLRB 184.
5 The Regional Director 's recommendations sustaining 12 specific challenges and over-
ruling 3 others were not excepted to by either party However , the Respondent did except to
the Regional Director ' s recommendations with respect to 30 other challenged ballots.
698 NLRB 157.
7 The Board reserved ruling upon the Respondent 's objections to the election , the Regional
Director 's report thereon , and the Respondent 's exceptions thereto, pending a final ruling on
the challenged ballots.
8 100 NLRB 267.
WEST TEXAS UTILITIES COMPANY 861
hearing was necessary and that there was no warrant for
setting aside the election . The Board, therefore , on September
24, 1952, issued its Third Supplemental Decision and Certifica-
tion of Representatives , overruling all of the Respondent's
objections and certifying the Union.'
The Respondent, on October 4, 1952, filed a motion with the
Board for reconsideration of the foregoing Decision . The Re-
spondent did not present any new evidence with its motion.
However , the Board again considered the entire record insofar
as it related to the Respondent ' s objections and on October
13, 1952, denied Respondent ' s motion for reconsideration
because it presented no issues not previously considered by
the Board . Thereafter, on October 11 and November 25, 1952,
the Respondent refused to bargain with the Union.
The Respondent contended at the hearing herein that the unit
found appropriate by the Board in the prior Board proceedings
was inappropriate . The Respondent did not offer any new
evidence on this issue but merely reiterated contentions already
considered and rejected by the Board in the representation
case. We agree with the Trial Examiner that this issue may
not be relitigated in the present unfair labor practice pro-
ceeding." Moreover , the Respondent has shown no adequate
basis for modifying our prior unit finding , and it is therefore
reaffirmed.
Also , at the hearing in the instant case , the Respondent
renewed its contentions , made in the representation proceeding,
that the election ( on which the Union's certification is based)
was invalid because of certain conduct by the Board and its
agents which allegedly affected the results of the election. In
support of its contentions the Respondent made an offer of proof
at the hearing . The Trial Examiner rejected the offer of proof
and overruled the Respondent ' s contentions , for reasons set
forth in the Intermediate Report.
The Respondent now urges in its exceptions to the Inter-
mediate Report that the Board improperly overruled its second
objection to the election , which included, inter alia, an allega-
tion that one voter was permitted to cross-examine a prospec-
tive voter in the polling place with "evident emphasis and bias
in favor of the Union." In its Third Supplemental Decision,
the Board , in overruling this objection , relied, inter alia, on
the fact that the Respondent had failed to specify the language
used in the cross-examination incident . At the instant hearing,
the Respondent made an offer that Louis Gee, one of Respond-
ent's observers at the election , would testify that employee
Bell , after voting , said to another employee, Hallmark, as he
prepared to vote, "You know you are not a power plant man.
You don't spend any time in the power plant ." This offer was
rejected by the Trial Examiner on the ground that Respondent
had failed to present such evidence in the form of an affidavit
9100 NLRB 1012.
'ON. L. R. B. v. West Kentucky Coal Company , 152 F . 2d 198 (C. A. 6).
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in connection with its motion for reconsideration of the Board's
Third Supplemental Decision, and that the evidence was not
unavailable or newly discovered. The Respondent now complains
of the Trial Examiner's rejection of this evidence. We agree
with the Trial Examiner. The Respondent had ample opportunity
to present this evidence to the Board either in connection with
its exceptions to the Regional Director's report on objections
or with its motion for reconsideration, which was filed more
than 7 months later. An affidavit bythe same witness pertaining
to this incident was in fact filed with the Respondent's exceptions
to the report on objections. Respondent does not now claim
that such evidence was unavailable during the prior representa-
tion proceeding or newly discovered. Moreover, even if we
accept as true the facts alleged in the offer of proof, they fail
to show how the language quoted above could reasonably have
been construed as indicating bias for the Union or, in any
event, how the questioning, or alleged acquiescence therein
by the Board agent, could have affected the freedom of choice
of Hallmark u or any other employees.
The Respondent also urges that the Board erroneously
overruled its fifth objection to the conduct of the election,
which alleges that Board agents cross-examined prospective
voters in a manner which would cause them to believe that the
Board was prejudiced in favor of the Union. In its Third
Supplemental Decision, the Board, in overruling this objection,
said, inter alia, "The statements in the affidavits of the
Employer's observer that the Board agent questioned the voters
in such a way as to manifest bias are merely statements of
conclusions, unsupported by any reference to specific language
used by the Board agent." At the hearing herein, the Respondent
made an offer of proof concerning specific questions which
were asked by Board agents, as follows: (1) Kirby Dawkins, one
of Respondent's observers, would testify that employees
Drummond and Rule were asked certain leading questions12 by
a Board agent concerning their supervisory status; (2)
Drummond would testify to the same effect as to the questions
asked him; and (3) Stearns would testify further that a Board
agent permitted a union observer to ask Holt, a prospective
voter, whether he relieved another employee in the laboratory
and whether he ran certain types of tests.
The Trial Examiner rejected this offer of proof on the
ground that there was no showing or contention that the proffered
evidence was newly discovered or unavailable during the prior
representation proceeding. We agree with the Trial Examiner's
ruling rejecting this evidence. The Respondent had ample
opportunity to present this evidence to the Board either in
uHalltnark's ballot was challenged and the Board, in the absence of any exceptions, adopted
the Regional Director's recommendation that the challenge be sustained.
12 The content of the questions was set forth m the offer of proof.
WEST TEXAS UTILITIES COMPANY
863
connection with its exceptions13 or with its motion for recon-
sideration , which was filed 7 months later.
In affidavits by Rule and Drummond, filed with the Respond-
ent's exceptions to the Regional Director ' s report on objections,
it was stated that Board agents had questioned these employees.
The Respondent had made no showing that the additional
evidence proffered at the hearing was unavailable during the
prior representation proceeding or newly discovered. More-
over , even if we accept as true the facts alleged in the offer
of proof, they fail to show how the fact that Board agents asked
prospective voters about their duties could reasonably have
been construed as indicating bias for the Unionu or how such
questioning could have interfered with the freedom of choice
of the employees.'
The Respondent contends that its other objections to the
election were improperly overruled and made an offer of
proof concerning these objections which was rejected by the
Trial Examiner. The Respondent complains that it has thereby
been deprived of an opportunity to be heard on these objections.
The offer of proof adds nothing to the affidavits previously
submitted by the Respondent in the representation case. The
Board has held with judicial approval that a respondent in an
unfair labor practice case may not relitigate as of right objec -
tions to an election disposed of in a representation case.' In
any event , accepting as true the facts alleged in the offer of
proof with respect to these objections , we find , for reasons
already stated in our Third Supplemental Decision in the
representation case, that they do not warrant invalidating the
election and the certification of the Union.
We find , therefore , that the Trial Examiner ' s exclusion of
the evidence tendered by the Respondent relating to the objec-
tions to the election was not prejudicial error.
13 The Respondent does, however, assert in its brief filed with the Board herein that it did
not have sufficient time before the issuance of the Regional Director's report to obtain
affidavits in support of this objection. However, it is undisputed that after the issuance of
the report, Respondent's request for 7 days' additional time to obtain such affidavits was
granted by the Board, and such affidavits were thereafter filed with Respondent's exceptions
to the Regional Director's report and were considered by the Board.
14It is the responsibility of Board agents and union observers at an election to challenge
voters of doubtful eligibility, and it is consistent with a proper discharge of this respon-
sibility for the Board agent or the union observer to attempt to elicit from the prospective
voter information bearing on his eligibility.
15 Challenges to the votes of Drummond and Rule were overruled and their votes were
counted. The Regional Director recommended that the challenge to Holt's ballot be sustained
and, in the absence of exceptions, the Board adopted this recommendation.
The Respondent offered to prove, also, that a Board agent refused to permit the Respondent's
observer to challenge the vote of employee Roberson at Girvin, Texas. Apart from the fact
that this vote did not affect the results of the election, the record shows that the vote of
N. F. Roberson at Girvin, Texas, was in fact challenged and when the hearing officer, after
conducting a hearing on the challenges, recommended that the challenge be overruled, the
Respondent failed to except to such recommendation.
16 Wilkening Manufacturing Company, 100 NLRB 1201; N. L. R. B. v. Worcester Woolen
Mills Corporation, 170 F. 2d 13 (C. A. 1), cert. den. 336 U. S. 903; National Plastic Products
Co., 175 F. 2d 755 (C. A. 4).
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find, like the Trial Examiner, that by
refusing to bargain with the Union the Respondent violated
Section 8 (a) (5) and (1) of the Act.
ORDER
Upon the entire record in this case and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent, West Texas Utilities Company, Abilene, Texas, its
officers, agents, successors , and assigns, shall:
(1) Cease and desist from:
(a) Refusing to bargain collectively with International
Brotherhood of Electrical Workers, Locals Nos. 898, 920, and
1044, AFL, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All powerplant employees in Respondent's production depart-
ment, including all employees who operate or maintain diesel
engines, but excluding office clerical employees, shift
engineers , guards, watchmen, professional employees, and
supervisors as defined in the Act.
(b) Interfering in any manner with the efforts of the above
Union to bargain collectively with Respondent on behalf of the
employees in the aforesaid appropriate unit.
(2) Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively with International
Brotherhood of Electrical Workers, Locals Nos. 898, 920, and
1044, AFL, as the exclusive representative of its employees
in the aforesaid appropriate unit, and if an understanding is
reached, embody such understanding in a signed agreement.
(b) Post at its place of business in Abilene, Texas, and at all
its plants in Texas at which its powerplant employees in the
unit aforesaid are or have been employed, copies of the notice
attached to the Intermediate Report and marked "Appendix
A."17 Copies of said notice, to be furnished by the Regional
Director for the Sixteenth Region, shall, after being duly signed
by Respondent's authorized representative, be posted by
Respondent immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
17 This notice is hereby amended to substitute the words "A Decision and Order" for
the words "The Recommendations of a Trial Examiner." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for the
words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United
States Court of Appeals, Enforcing an Order."
WEST TEXAS UTILITIES COMPANY 865
Intermediate Report
STATEMENT OF THE CASE
The sole issue in this case is whether West Texas Utilities Company, herein called the
Respondent, has refused to bargain collectively with International Brotherhood of Electrical
Workers, Locals Nos. 898, 920, and 1044, AFL, herein called the Union, as the exclusive
bargaining representative of all employees of Respondent in an appropriate unit hereafter
described, in violation of Section 8 (a) (5) and (1) of the Labor Management Relations Ac; of
1947, 61 Stat. 136, herein called the Act. The complaint raising the issue was issued January
8, 1953, by the General Counsel of the National Labor Relations Board, herein called General
Counsel and the Board, through the Regional Director for the Sixteenth Region (Fort Worth,
Texas), on the basis of a charge duly filed by the Union. Copies of the complaint, charge, and
notice of hearing thereon, were duly served upon Respondent and the Union.
Respondent's answer admitted the jurisdiction of the Board and its refusal to bargain with
the Union, but denied that the unit alleged in the complaint was an appropriate unit, that the
Union represented a majority of employees in that unit, and that it had committed any unfair
labor practices. As affirmative defenses, Respondent claimed the Board had unlawfully and
arbitrarily attempted to force upon Respondent an arbitrary and improper unit composed of
"powerhouse" employees, had improperly excluded certain employees from that unit, had
improperly denied certain employees the right to vote in an election held in prior repre-
sentation proceedings (Case No. 16-RC-812), and that said election was null and void because
conducted by Board agents who were biased in favor of the Union.
Pursuant to notice a hearing was held before the undersigned Trial Examiner at Fort Worth,
Texas, on February 9, 1953, in which all parties participated through counsel and were af-
forded full opportunity to be heard, to examine and cross-examine witnesses, to introduce
evidence bearing on the issues, to present oral argument and file briefs, proposed findings of
fact and conclusions of law, or both. At the outset of the proceeding, the Respondent moved
for a continuance of the hearing on various grounds, which motion was denied. At the close
of General Counsel's case, Respondent produced no witnesses but made an offer of proof
which was denied. The reasons for the denial will appear below. Respondent's motion to dis-
miss the complaint was taken under advisement and is hereby denied for reasons set forth
below. General Counsel's motion to conform the pleadings to the proofs was granted without
objection. His motion that the Trial Examiner render a summary opinion from the bench, in
the nature of a direction of a verdict or summary judgment, was denied. All parties waived
oral argument and the filing of briefs, findings of fact, and conclusions of law. i
Upon the entire record in the case, including the documentary and stipulated facts (no
witnesses having been sworn, and there being no disputed facts), I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, West Texas Utilities Company, is a corporation of the State of Texas, with its
principal office and place of business located in the city of Abiline, Texas. It is, and has been
at all times material herein, a public utility engaged in the production, sale, and distribution
of electrical energy, water , and ice over a large area in the western part of the State of Texas.
I find that Respondent is engaged in commerce within the meaning of the AcL2
IL THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Locals Nos. 898, 920, and 1044, AFL,
constitute a labor organization within the meaning of Section 2 (5) of the Act, which admits to
membership employees of Respondent.
'On February 20, 1953, Respondent filed a motion, on due notice to all parties, to correct
the record in certain respects. No objections having been filed, the Trial Examiner hereby
grants the motion and orders that the official transcript be corrected as follows: In line
18, page 75, the word "Abilene" is substituted for "Bailene", in line 5, page 77, the word
"puny" is substituted for "punitive."
2 The Board has previously exercised jurisdiction over Respondent, 85 NLRB 1396, 88
NLRB 192, 94 NLRB 1638, and Case No. 16-RC-812 (97 NLRB 184) discussed hereafter.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The request and refusal to bargain
By letter dated October 11 , 1952, addressed to Respondent and received by it in due course
of the mails , the Union by its counsel requested Respondent to bargain with it as the exclusive
bargaining representative of Respondent 's employees in an appropriate unit described below.
By letter of November 21, 1952 , received by the Union 's counsel on November 25, 1952, Re-
spondent through its counsel refused to bargain with the Union as such representative, on the
ground that it considerea the unit found by the Board in the representation proceeding to be
inappropriate , and the Board 's decision thereon tobeerroneous . The Respondent also claimed
that the election was not fairly held, that the Board agents conducting it were biased in favor
of the Union , and disclosed such bias to employees , which affected the results of the election.
It also claimed votes of employees were improperly challenged . The Respondent also stated
that, under the procedural system set forth in the Act, it must seek an adverse decision of
the Board (based on its refusal to bargain ) in order to secure a judicial review of the Board's
decision regarding the conduct of the election and the appropriate unit.
I find that the Union requested the Respondent on October 11, 1952, to bargain with it as the
exclusive representative of employees in the appropriate unit described below, and that
Respondent on November 25, 1952 , refused to bargain with the Union as such representative.
Respondent 's sole justification for its refusal to bargain rests in its disagreement with the
Board 's finding of the appropriate unit in the representation case, the alleged unfair conduct
of the election therein by Board agents , and the Board 's alleged foreclosure of Respondent's
right to adduce pertinent evidence therein in support of these claims . These defenses require
a consideration of
B. The representation proceedings
Upon a petition duly filed by the Union in Case No. 16-RC-812 , and after a hearing thereon,
the Board on November 29, 1951, directed that an election be held among all powerhouse
employees in Respondent 's production department , excluding office clerical employees, shift
engineers , guards , watchmen , professional employees , and supervisors, which it found to be
the appropriate bargaining unit under Section 9 (b) of the Act. (97 NLRB 184.) The election
was held December 19 and 20 , 1951, at which a sufficient number of ballots were challenged
to affect the results . On December 28, 1951 , Respondent filed objections to conduct affecting
the result of the election, and to the conduct of the election itself. On January 8, 1952, the
Regional Director issued his report on the objections to the election and challenged ballots.
The Respondent filed exceptions thereto, and on February 19, 1952, the Board issued a.
supplemental decision , sustaining the ruling of the Regional Director as to 15 challenged
ballots in the absence of exception thereto, remanding the case to the Regional Director to
take testimony on the issues raised by Respondent 's exceptions as to 30 remaining challenged
ballots , and clarifying its unit finding to designate the unit as "All power plant employees
in the Employer 's production department , including all employees who operate or maintain
Diesel engines , but excluding office clerical employees , shift engineers , guards , watchmen,
professional employees , and supervisors ." The Board reserved ruling on Respondent's
objections to the election, pending final action on the challenged ballots . (98 NLRB 157.)
After a hearing before a hearing officer, Respondent on June 23, 1952, filed exceptions to
his report , and moved the Board to reopen the hearing for the taking of further evidence
regarding the duties of challenged employees . On July 18 , 1952, the Board issued its second
supplemental decision , disposing of the remaining challenges and directing the preparation
of a revised tally of ballots , the issuance thereof to be suspended pending the Board's
decision on Respondent 's objections to the conduct of the election . At the same time, the
Board denied Respondent 's motion to reopen the hearing on the ground that the evidence
Respondent desired to adduce would be cumulative and repetitious . The Board continued to
reserve ruling on the objections to the conduct of the election . (100 NLRB 267.)
After the Regional Director served on all parties a revised tally of ballots showing 65
ballots cast for, and 57 against , the Union, the Board on September 4, 1952 , considered the
reserved objections to the conduct of the election seriatim and overruled all of them and,
on the basis of the revised tally of ballots , certified the Union as the statutory bargaining
representative of all employees in the appropriate unit found in its supplemental decision
of February 19, 1952. (100 NLRB 1012 .) Thereafter , Respondent filed a motion with the
Board for reconsideration of its third supplemental decision , in which it restated its prior
WEST TEXAS UTILITIES COMPANY 867
objections to the election and presented arguments in opposition to the Board 's rulings on
the objections . On October 13, 1952 , the Board denied the motion , on the ground that it
presented no issues not previously considered by the Board. 3
C. The appropriate unit
Respondent 's first defense is that the Board erred in its designation of the appropriate
unit as set forth in its supplemental decision of February 19, 1952, in the representation
proceeding. Specifically, Respondent contends that the evidence adduced therein proved
that the powerhouse employees were not a separate craft unit , that all employees were
interchangeable in duties, had common interests, were under central control and admin-
istration, and had the same wage scale and employees' benefits, factors which required a
finding of a systemwide unit, not a craft unit of powerhouse employees. Respondent admits
that it presented all available evidence on this subject at the hearings in the representation
case, and it has no further or new testimony to present herein. Further, it appears that
Respondent presented its arguments on that evidence fully to the Board in that case, and
presents no new or additional arguments here. It has long been the policy of the Board,
sanctioned by the courts, that in unfair labor practice cases involving an alleged refusal
to bargain, the Board will not reconsider, nor permit an employer to relitigate, issues
considered and disposed of in prior representation proceedings , unless it appears that
the employer has material evidence which is newly discovered and which was unavailable
to it at the time of the prior proceedings. Continental Oil Company, 95 NLRB 358, and cases
therein cited; White Construction and Engineering Company, Inc., 97 NLRB 1082; The
American District Telegraph Company of Pennsylvania, 100 NLRB 155 (determination of
appropriate unit); Wilkening Manufacturing Company, 100 NLRB 1201 (conduct of the election).
Under the above circumstances and in view of this policy, I am constrained to take official
notice of and follow the Board's prior findings. I therefore find that all powerplant employees
in Respondent 's production department , including all employees who operate or maintain
diesel engines , but excluding office clerical employees , shift engineers , guards , watchmen,
professional employees , and supervisors as defined in the Act, constitute a unit appropriate
for purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
D. The conduct of the election
Respondent 's main grievance is that it was denied an opportunity in the representation
case to make a full presentation of material evidence then available to it which would show
that a fair election was not held by Board agents; that the Board accepted unsworn statements
of Board agents in preference to sworn affidavits of Respondent 's witnesses in finding that
the election was fairly conducted; that it denied Respondent an opportunity to cross-examine
such agents under oath; and that it arbitrarily rejected all objections filed by Respondent to
the conduct of the election, without permitting Respondent fully to adduce evidence in support
thereof. Respondent argues that it had no opportunity between December 28, 1951, when it
filed its objections to the election, and January 8, 1952, when the Regional Director filed
his report thereon, to gather and submit evidence from witnesses widely scattered throughout
west Texas and parts of Oklahoma. Respondent now offers that additional proof in support of
his objections to the election. I considered the offer improper, and denied it at the hearing,
for the following reasons:
1. The facts to which C. P. Stearns, Louis S. Gee, Frank Drummond, Miguel Franco, and
Richard Walker would testify are substantially the same, and cover the same subjects, as
their affidavits or statements submitted with Respondent's original objections to the election,
filed December 28, 1951. Respondent admitted, and the record in the representation case
shows, that these facts were considered by the Board, and in essence accepted as true, in
its consideration of the objections. Therefore, the testimony now offered is substantially
repetitious and not newly discovered evidence.
2. The testimony of Kirby Dawkins, Lonnie Walker, W. E. Rule, and Lewis Tucker now
offered is for the most part corroborative of the facts to which Stearns and Gee would testify,
and is therefore cumulative. To the extent that it states instances of cross-examination and
challenge of diesel operators not mentioned by Stearns and Gee, it merely adds instances of
the same type of conduct which the Board accepted as true in ruling on the objections.
3The above findings are based on the official file in Case No. 16-RC-812, of which the Trial
Examiner took judicial notice at the hearing
322615 0 - 54 -- 56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. In some respects , the testimony now offered is more detailed in that it states specific
types of leading questions asked by the Board agents in their cross -examination of employees
in challenging their votes . Although the Board noted in its decision on the objections that
Respondent 's characterization of the nature of this cross -examination and other questioning
of voters as biased , is unsupported by specific details as to the language used, and was not
sufficient to raise a substantial or material issue with respect to the conduct of the election.
Respondent made no attempt to supply the deficiency in its motion for reconsideration,
merely rearguing its objections and requesting for the first time a formal hearing to develop
evidence which the Board found missing or deficient . This motion has been considered and
denied by the Board as found above. Respondent presents no sufficient reason why it could
not have accumulated this detailed evidence and presented it to the Board with its motion
for reconsideration . It had already presented many of the facts by affidavit with its original
objections . Since none of this evidence is newly discovered , nor was earlier unavailable,
and as Respondent admits the Board has considered in detail the specific types of conduct
which it would tend to prove, and has ruled such conduct insufficient to affect the election,
I fail to see how Respondent has been deprived of any procedural rights herein . In any event,
his present offer of proof is spread upon the record in this case for consideration by the
Board and the courts. See Wilkening Manufacturing Company, 100 NLRB 1201, where the
Board denied a formal hearing on objections to an election , in circumstances similar to
those at bar, following Section 102 .61 of its Rules and Regulations , Series 6.4
As Respondent has presented nc newly discovered evidence which would require findings
or conclusions different from those reached by the Board on the issues in the representation
case, and as the Board has certified the Union as the statutory representative of employees
in the appropriate unit aforesaid , I conclude and find that on December 19 and 20, 1951, a
majority of Respondent 's employees in said unit designated the Union as their representative
for purposes of collective bargaining with Respondent , and that at all times since the latter
date the Union has been the majority representative of said employees and, by virtue of
Section 9 (a) of the Act, has been and now is the exclusive representative of all employees
in said unit for purposes of collective bargaining with respect to rates of pay , wages, hours
of employment, and other conditions of employment.
I further conclude and find that Respondent has since November 25, 1952, refused to
bargain collectively with the Union as the statutory representative of its employees in the
unit aforesaid , in violation of Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent , set forth in section III, above , occurring in connection with
the operations of Respondent described in section I, above , have a close, intimate , and sub-
stantial relation to trade, traffic, and commerce among the several States , and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
As I have found that Respondent has refused to bargain collectively with the Union as the
statutory bargaining representative of its employees , I shall recommend that Respondent
cease and desist therefrom and from any like or related conduct. I will further recommend
that Respondent be ordered to bargain collectively, upon request , with the Union as such
representative of its employees , and if an understanding is reached , embody such under-
standing in a signed agreement.
Upon the basis of the foregoing findings of fact and the entire record in the case, I make
the following:
4 Section 102.61 provides , in part: "If exceptions are filed , either to the report on challenged
ballots , objections , or both if it be a consolidated report , and it appears to the Board that
such exceptions do not raise substantial and material issues with respect to the conduct or
results of the election , the Board may decide the matter forthwith upon the record, or may
make other disposition of the case . If it appears to the Board that such exceptions raise
substantial and material factual issues , the Board may direct the regional director or other
agent of the Board to issue and cause to be served upon the parties , a notice of hearing on
said exceptions before a hearing officer."
WEST TEXAS UTILITIES COMPANY 869
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Locals Nos. 898, 920, and 1044,
AFL, constitute a labor organization within the meaning of Section 2 (5) of the Act.
2. All powerplant employees in Respondent's production department , including all em-
ployees who operate or maintain diesel engines , but excluding office clerical employees,
shift engineers , guards, watchmen , professional employees, and supervisors as defined in the
Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
3. On December 20, 1951, and at all times since, the above Union has been the exclusive.
representative of all employees in the bargaining unit aforesaid for purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By its refusal to bargain with said Union as such representative on and after November
25, 1952, Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By its refusal to bargain aforesaid , Respondent has also interfered with, restrained,
and coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act,
and thereby has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL bargain collectively , upon request , with International Brotherhood of
Electrical Workers, Locals Nos. 898, 920, and 1044, AFL, as the exclusive repre-
sentative of all our employees in the bargaining unit described below, with respect to
rates of pay, wages , hours of employment , and other conditions of employment, and
if an understanding is reached , embody such understanding in a signed agreement.
The bargaining unit is:
All powerplant employees in our production department , including all employees
who operate or maintain diesel engines , but excluding office clerical employees,
shift engineers , guards , watchmen, professional employees, and supervisors as
defined in the Act.
WE WILL NOT in any manner interfere with the efforts of the above -named union to
bargain collectively with said union , as the exclusive representative of all our employees
in the above bargaining unit.
WEST TEXAS UTILITIES COMPANY,
Employer.
Dated ................ By..............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.