National Labor Rel. Bd. v. West Texas Utilities Co., 14865.
| Decision Date | 09 July 1954 |
| Docket Number | No. 14865.,14865. |
| Citation | 214 F.2d 732 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. WEST TEXAS UTILITIES CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bernard Dunau, Atty., A. Norman Somers, Asst. Gen. Counsel, David P. Findling, Associate Gen. Counsel, George J. Bott, Gen. Counsel, Rose Mary Filipowicz, Atty., National Labor Relations Board, Washington, D. C., for petitioner.
Frank Cain and Lee Smith, Dallas, Tex., Irion, Cain, Bergman & Cocke, Dallas, Tex., of counsel, for respondent.
Before HUTCHESON, Chief Judge, RIVES, Circuit Judge, and DAWKINS, District Judge.
This is a petition by the National Labor Relations Board for enforcement of its order directing respondent, West Texas Utilities Company, to bargain with Electrical Workers Locals 898, 920 and 1044, AFL, called Union, dated August 25, 1953, under the National Labor Relations Act.1
Respondent based its refusal to bargain upon some ten points, which really resolve themselves in two: (1) the arbitrary and inappropriate composition of the bargaining unit, and (2) the unfair and biased conduct of the Board's agents in holding the election.
1. On July 18, 1951, the Union initiated the creation of the unit by filing its application to represent "all power plant employees" in employer's production department, and excluding "office and clerical employees, guards and watchmen, professional employees, and all supervisors as defined in the Act". Hearing was had on September 5th following, at which respondent opposed the suggested unit, insisting (1) that it should include not only employees in the power plants, but also those in the transmission, distribution and service departments, (2) that it should be enlarged by adding metermen, relay men, substation operators, patrolmen, radiomen, tank men and shop workers.
The Board approved the unit requested by the Union.
Respondent insists that the Board acted arbitrarily and capriciously, for the reason the order was not supported by substantial evidence, and was contrary to the Board's practice and policy; that the only evidence at the hearing for determining the character of the unit was that by respondent which disclosed that the employees in its distribution, production, transmission and service departments were interchangeable and worked accordingly; that any other arrangement by which some of these employees were left out or placed in another unit would cause confusion and conflict in the matter of working conditions, wages, hours, etc. It also called attention to the fact that the Board had, in 1946, approved a unit embracing all employees contended for by respondent, but it appears in that instance it was done by consent of the parties. The Board further pointed out that on another occasion it had refused to approve a unit embracing a single plant of respondent.
An examination of the record discloses that some of the employees, in the categories contended for by respondent, were already represented in other units, and while a different set-up might have been more convenient for respondent and advantageous to some employees, the one selected cannot be said to be without reasonable basis. Of course, the employer's methods of doing business and practices with respect to interchanging of employees, making up payrolls and dealing with its employees as to wages, hours and conditions of work, are entitled to consideration. One of the main purposes of the law is to insure "freedom in exercising their rights" by employees, and the Board's action should not be disturbed except in a clear case of abuse of discretion. The power to select the unit has been committed to the Board by the Act and we do not find any arbitrary or gross abuse of that discretion. As was said by this Court in N. L. R. B. v. Smythe, 5 Cir., 212 F.2d 664:
See also Packard Motor Car Co. v. N. L. R. B., 330 U.S. 485, 491, 67 S.Ct. 789, 91 L.Ed. 1040.
Respondent complains that in the notice of the election the Board used the expression "power house" employees instead of power plant, which it illegally attempted to change, thereby creating confusion among its employees as to who was entitled to vote. The attempted correction was by telegram from the Board instructing the erasure of "house" and the insertion of "plant" when the very notice itself warned that no one had any power to make any change. It is true that there were some 213 eligible voters in the proposed unit and that only 152 actually voted. However, in the present state of the record we do not find substantial proof that others were kept away from participating in the election because of this mistake in the notice in so far as the creation of the unit was concerned. We therefore conclude that the objection to the unit should be overruled.
2. The election ordered by the Board was held at 18 different places in a wide area, some separated by hundreds of miles, in the State of Texas, on December 19 and 20, 1951, and on the latter date the results were immediately tabulated and certified by one of the Board's three agents who conducted the election, John F. White, as follows:
"Approximate number of eligible
voters 213
"Void ballots 1
"Votes cast for Union 59
"Votes cast against Union 47
"Valid votes 106
"Challenged ballots 45
"Valid votes counted plus challenged
ballots 151."
(R. 37)
On December 28th following, respondent filed its objections:
(1) That there was a mistake in notice of election above mentioned which read:
Respondent contended that this was calculated to confuse the employees as to who was eligible, the expression "power house" being a term unknown to the company, and never used by either the company, its employees or the Union; that it filed objections with the Board and it was ordered by the Washington office that "house" be scratched out and "plant" substituted in spite of the fact that the notice itself stated plainly "This is the only official notice of this election and must not be defaced by anyone"; and that this change and posting of the telegram from the Board, along with the notice, caused "utmost confusion as to who was eligible to vote".
(2) That on several occasions more than one person was allowed in the polling places at a time, and that voting procedure, challenges, unions, etc., were fully discussed in the presence of persons voting and waiting to vote, which also added heavily to the "confusion and misdirection".
(3) That the agents of the Board stated on numerous occasions they had, before starting the election, determined to categorically challenge all company employees who were employed in diesel power plants; that they did so challenge employees, "some before they had received their ballots, some after they had received their ballots and before they had marked the same and some in the presence of other employees", from all of which at least some of the employees were bound to have an impression that the election was biased, no matter how their ballots were cast.
(4) That the ballot boxes were tampered with.
(5) That over the protests of respondent's observers the agents of the Board "cross-examined employees who were about to vote * * * in such manner as to leave no doubt in the minds * * of the voters that the Board was prejudiced on the side of the Union * *", thus influencing the result.
(6) The agents of the Board allowed employees who had already voted and who had no official position but "who had, in no uncertain terms, stated their preference for the Union" to also cross-examine other employees who had not voted "as to the nature of their duties and amount of time spent in certain types of work", all over the objection of respondent's observers.
(7) That there was manifest bias of the Board or some of its agents toward the Union.
(8) That there was ambiguity in the definition and designation of the bargaining unit.
The Regional Director, at the suggestion of respondent, fixed a hearing on these objections for January 3, 1952. It was later extended to January 8th, but respondent had not yet presented its proof and the Director handed down his decision without it, consisting of some 25 to 30 mimeographed pages, giving much of the details furnished by White, but stating, "challenges are sufficient in number to affect the result of the election". He further recited that certificates of approval had been signed by the Board's representatives, by the observers for the Union and for the employer as to the elections at Alpine, Marfa, Presidio, Marathon and Girvin, conducted by agent Lewis A. Ward, but that the observers or representatives of respondent had refused to sign those conducted by John F. White and Sulton J. Boyd "on the ground it (they) was (were) in error". The Regional Director further stated that
The report then discussed the...
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