The Idea Electric and Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 14, 1961

134 N.L.R.B. 1275 (N.L.R.B. 1961)

THE IDEAL ELECTRIC AND MANUFACTURING COMPANY 1275
and it was more than a "technical" violation of those provisions . Consequently,
and despite the unfair labor practice which caused the strike , we hold that the
reinstatement ' provisions of the order exceeded the Board 's authority to make
such "requirements as will effectuate the policies of the Act."
In The American News Company, Inc., 55 NLRB 1302 , the Board refused to re-
instate strikers who struck to compel a wage increase in violation of wage stabiliza-
tion laws and regulations , finding that the strike was neither provoked nor preceded
by unfair labor practices on the part of the employer . In Scullin Steel Company, 65
NLRB 1294, affd. 161 F . 2d 143 (C.A. 8), the Board refused to reinstate strikers
who struck in violation of a no-strike agreement in the collective -bargaining contract,
a holding reaffirmed in National Electric Products Corporation , 80 NLRB 995, and
Mid-West Metallic Products , Inc., 121 NLRB 1317 . In W. L . Mead, Inc., 113
NLRB 1040 , the Board held that , absent an express no-strike clause in the contract,
the Union 's summary resort to strike action in disregard of its obligation to proceed
through a final binding arbitration award constituted legal ground for the discharge
of the strikers.
The trend of both Board and court decisions has been to require employers, labor
organizations , and employees to observe the law, the congressional policy as ex-
pressed in the statute, and the obligations of their own collective -bargaining con-
tracts. I cannot say that the trend is not a salutary one . Accepting that principle
as guidance to the instant situation I find that the strike to compel the Employer to
recognize a minority union as exclusive representative of his employees in violation
of Section 8(a)(2) and ( 1) of the Act is unprotected activity . If the application
seems harsh in the instant case the consequences could have been avoided by resort
to the Board's procedures for determining the issue which occasioned the strike
instead of risking the hazards of self-help.
Q find that neither the discharge of the strikers nor the failure to reinstate them,
either upon the conditional mass offer made on July 11, or upon subsequent indi-
vidual unconditional application , violated Section 8(a)(1) or ( 3) of the Act.
Upon the basis of the above findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2 (2) of the Act and
is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. International Union of Operating Engineers , AFL-CIO, Local No . 351, is
a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices in violation of Section
8(a)(1), (3 ), and (5) of the Act.
[Recommendations omitted from publication.]
The Ideal Electric and Manufacturing Company and Inter-
national Union of Electrical , Radio and Machine Workers,
AFL-CIO, Petitioner. Case No. 8-RC-4139. December 14, 1961
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the Board
on April 10, 1961,' an election by secret ballot was conducted on
April 26, 1961, under the direction and supervision of the Regional
Director for the Eighth Region among the employees in the unit found
appropriate by the Board. Following the election, the parties were
furnished a tally of ballots which showed that of approximately 302
eligible voters, 257 valid ballots were cast, of which 60 were for the
1 Not published in NLRB volumes.
134 NLRB No. 133.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petitioner, 193 were for the Intervenor, Independent Electrical Work-
ers Union, 4 votes were against the participating labor organizations,
and 9 ballots were challenged. The challenges were insufficient in
number to affect the results. Thereafter, the Petitioner filed timely
objections to conduct affecting the results of the election.
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation and on May 23, 1961, issued and
duly served upon the parties his report on objections, in which he
recommended that the objections be overruled and that the Intervenor
be certified as the bargaining representative of the employees in the
appropriate unit. Thereafter, the Petitioner filed timely exceptions
to the Regional Director's report. In connection with its exceptions,
it urged the Board to reconsider and modify its Woolworth rule.' It
also requested oral argument thereon. The Intervenor and the Em-
ployer filed briefs in support of the Regional Director's report. The
Industrial Union Department, AFL-CIO, herein called the IUD, was
permitted to file an amicus curiae statement in support of the Peti-
tioner's exceptions. The Board, on August 31, 1961, granted the
request for oral argument, issued a notice of hearing for such purpose,
and invited interested parties to participate. Thereafter, the IUD
filed an amicus curiae brief and the Textile Workers of America,
AFL-CIO, filed an amicus curiae statement. On September 22, 1961,
a hearing was held before the Board in which the Petitioner, Inter-
venor, Employer, and IUD participated.'
The Board has considered the entire record, the briefs of the parties,
the other briefs and statements, and the oral argument, and concludes
as follows :
In its objections, the Petitioner alleged that during the election
campaign the Employer negotiated and signed a new contract with
the Intervenor and granted wage increases and other benefits under
the contract to its employees and that by such conduct the Employer
interfered with employee free choice in the election. The instant
petition was filed on January 18, 1961, at a time when the Intervenor
was the contractual bargaining representative of the employees in-
volved. The Regional Director found that on January 24, the existing
contract between the Intervenor and the Employer was reopened and
thereafter negotiations for a new contract were initiated. During
the negotiations the Intervenor held monthly meetings at which the
membership was informed that the contract had been reopened and
that negotiations were in progress. On April 1, the contracting parties
reached agreement and signed a new contract effective that date pro-
2 F. W. Woolworth Company, 109 NLRB 1446.
3 At the oral argument, the Employer was granted permission to file a supplemental
brief and such brief was subsequently filed.
THE IDEAL ELECTRIC AND MANUFACTURING COMPANY 1277
viding a wage increase and additional benefits. On April 3, 1961,
the president of the Intervenor informed the department stewards
and an undisclosed number of other employees that a new contract
had been signed. Prior thereto, the Intervenor called a special mem-
bership meeting, which was attended by a substantial number of the
employees in the unit. At that meeting the proposed terms of the
contract were discussed and ratified. The Decision and Direction of
Election herein issued on April 10. The increase in wages appeared
in the paychecks received by the employees on April 14, the first pay-
day after the effective date of the contract.
The Regional Director concluded that, as the negotiations of the
above contract occurred prior to the Board's Decision and Direction
of Election, and as it could reasonably be inferred that the employees
involved had knowledge of the contract negotiated and benefits con-
ferred prior to that date, the conduct in question under the Board's
application of the Woolworth doctrine could not be urged as a basis
for setting aside the election. The Petitioner in its exceptions takes
issue with the factual conclusions of the Regional Director and, in
addition, requests the Board to reconsider and revise its Woolworth
rule. It was with respect to the latter contention that the Board
granted oral argument.
In the A & P case,4 the Board, recognizing the degree of control
which a party may exercise over the Board's election processes by the
timing of conduct which interferes with the election, adopted a policy
whereby any substantial interference which occurred during the cru-
cial period before an election might constitute a basis for setting aside
the election. In that case, limits of the crucial preelection period were
set for both contested and uncontested cases, expressed as follows :
... whether or not charges have been filed, the Board has decided
to consider on the 'merits any alleged interference which occurs
or has occurred after either (1) the execution by the parties of
a consent-election agreement or a stipulation for certification upon
consent election, or (2) the date of issuance by the Regional Direc-
tor of a notice of hearing, as the case may be; . . . The Board
will not, however, consider election objections based upon inter-
ference which may occur prior to these dates.
About 2 years later, yin 1954, in Woolworth, the Board modified the
A & P rule by moving the cutoff date in contested cases closer to the
election-using as the cutoff date the issuance of the Board's Decision
and Direction of Election. This had the advantage of eliminating
from postelection consideration conduct too remote to have prevented
the free choice guaranteed by Section 7 but resulted in the Board's not
4 The Great Atlantic and Pacific Tea Company, 101 NLRB 1118, 1120.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considering much of the activity occurring during the election cam-
paign and enhanced the possibility of intentional delay at the hearing
stage by a party contestant seeking to campaign improperly before
the cutoff date. Recently the Board delegated its decisional authority
in representation cases to its Regional Directors 5 Administrative ex-
perience under the delegation, though brief, has shown a marked de-
crease in the elapsed time between the filing of petitions and the
elections held pursuant to them. Thus remoteness no longer neces-
sitates the delayed cutoff date adopted in Woolworth. At the same
time the recent delegation does not appear to have removed the possi-
bility of intentional delay by parties at the hearing stage under the
Woolworth cutoff policy.
The Board has now reconsidered the entire problem and concludes,
in all the circumstances, that the date of filing of the petition rather
than the issuance of decision and direction, or of notice of hearing,
should be the cutoff time in considering alleged objectionable conduct
in contested cases. From that time, when the Board's processes have
been invoked and a prompt election may be anticipated pursuant to
present procedures, we believe that conduct thereafter which tends
to prevent a free election should appropriately be considered as a
postelection objection. Accordingly, we overrule our decision in
Woolworth to the extent indicated.
Finally, we have concluded that in order to avoid undesirable con-
fusion as to the impact of this new policy on cases currently pending
before the Board, we shall not apply the new policy enunciated herein
to the instant case or to others now pending but shall apply it only
to cases in which 'the petition is filed on or after the date of issuance
of this decision s
Turning then to the Petitioner's contentions relating to the Regional
Director's findings previously set forth, under the Woolworth rule, we
are of the opinion that they raise no substantial issues of fact or policy
which would warrant reversing his recommendation that the objec-
tions be overruled. Accordingly, the objections are hereby overruled
and as the tally of ballots shows that the Intervenor has received a
majority of the valid ballots cast in the election, we shall certify the
Intervenor as the exclusive bargaining representative of the employees
in the appropriate unit.
[The Board certified Independent Electrical Workers Union as the
designated collective-bargaining representative of the employees of
the Employer in the unit found appropriate.]
8 See 26 Fed. Reg. 3911 ( May 4 , 1961).
e Member Fanning would apply the new policy to the instant case, as the Board has
done in the past in the A & P and Woolworth cases, and accordingly would set aside the
election.