Wabash Magnetics, Inc.

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.