N.L.R.B. v. Wabash Transformer Corp., 74--1446

• Decision Date: 03 February 1975
• Docket Number: No. 74--1446,74--1446
• Parties: 88 L.R.R.M. (BNA) 2545, 76 Lab.Cas. P 10,634 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WABASH TRANSFORMER CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 647

509 F.2d 647

88 L.R.R.M. (BNA) 2545, 76 Lab.Cas. P 10,634

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WABASH TRANSFORMER CORPORATION, Respondent.

No. 74--1446.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 11, 1974.

Decided Feb. 3, 1975.

Stephen Quinn, Atty., N.L.R.B., Washington, D.C., for petitioner.

George W. Moehlenhof, McDermott, Will & Emery, Chicago, Ill., for respondent.

Before LAY and BRIGHT, Circuit Judges; and TALBOT SMITH, Senior District Judge. ^*

BRIGHT, Circuit Judge.

The National Labor Relations Board (Board) petitions for enforcement of its order issued against Wabash Transformer Corporation (Employer) of Farmington, Missouri, directing the Employer to bargain with the Communications Workers of America (Union) pursuant to 29 U.S.C. § 158(a)(5). The Employer, refusing to bargain, claims that the representation election was conducted in an unfair manner and that the subsequent certification of the Union by the Board was therefore invalid. We grant the order of enforcement.

Pursuant to a petition filed by the Union, a representation election was held for all production and maintenance workers at the Employer's Farmington, Missouri, plant on March 16, 1973. The Union won the election on a 50--43 vote and, after timely objections were filed by the Employer, a three-member panel of the Board validated the election and certified the Union as the exclusive bargaining agent for the workers at the Farmington plant. ¹ The Employer's refusal to bargain generated this unfair labor practice proceeding. The Board, on April 30, 1974, ruled that the Employer had violated §§ 8(a)(5) and (1) of the Act (29 U.S.C. §§ 158(a)(5) and (1)), and ordered it to bargain with the Union. ² The instant appeal followed.

The Employer objects to the conduct of the representation election on two grounds. First, it claims that the Board's agent conducting the election breached the Board's obligation of neutrality by announcing the opening of the polls over the Employer's loudspeaker system in the following manner:

The Polls are open and you may now go vote and elect a union representative. ³

Second, the Employer contends that the promise of the Union to waive the payment of initiation fees and dues until after the election and until the Union had negotiated a collective bargaining agreement with the Employer violated the recent Supreme Court decision of NLRB v. Savair Mfg. Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973).

I.

In upholding the election, the Board acknowledged that its agent, in announcing the election over the loud-speaker, should have explicitly stated that an employee could vote against as well as for a Union representative. However, the Board majority declined to adopt the view that the agent's statement was per se violative of the Board's standards of neutrality. The Board concluded that the circumstances surrounding the statement established that the integrity of the election process was not so impaired as to warrant the ordering of a new election. We agree.

The announcement was made at approximately 6:30 A.M., immediately prior to the early morning opening of the polls, to accommodate three workers who were completing their night shift. ⁴ About 20 other employees were in the plant waiting for the morning shift to begin and may have heard the announcement. The same announcement, however, was not repeated when the polls reopened at 2:30 P.M. to receive votes from the workers on the morning and afternoon shifts. More importantly, the Director of Manufacturing for the Employer, who was present in the plant when the statement was made at 6:30 A.M., voiced no objection to the announcement. No evidence indicates that any employee was misled by the announcement and no claim is made that the Board's agents conducting the election favored the Union over the Employer.

The Supreme Court has observed, 'Congress granted the Board a wide discretion to ensure the fair and free choice of bargaining representatives.' NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767, 89 S.Ct. 1426, 1430, 22 L.Ed.2d 709 (1969). See NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946); NLRB v. Waterman S.S. Co., 309 U.S. 206, 226, 60 S.Ct. 493, 84 L.Ed. 704 (1940). Under the circumstances here, the ruling that the questioned statement did not breach the neutrality of the election procedures fell within the Board's discretionary powers.

II.

The Employer also contends that the Union's waiver of dues and initiation fees until after negotiation of a bargaining agreement ⁵ enabled the Union, in effect, to 'buy' members before the election and portray a false picture of its employee support in violation of the rule laid down in NLRB v. Savair Mfg. Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973). In Savair, the Court found that a union's offer to waive initiation fees for those workers signing union authorization cards before the certification election constituted an unfair labor practice. The Court reasoned:

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...