The Walmac Co.

National Labor Relations Board - Board Decisions

Oct 29, 1953

106 N.L.R.B. 1355 (N.L.R.B. 1953)

THE WALMAC COMPANY 1355
HOWARD W. DAVIS, d/b/a THE WALMAC COMPANY (RADIO
STATION KMAC & FM STATION KISS) and LOCAL UNION
1348 OF THE INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS, AFL. Case No. 39-CA-318. October 29,
1953
DECISION AND ORDER
On August 6, 1953, Trial Examiner C . W. Whittemore
issued his Intermediate Report in the above-entitled pro-
ceeding, finding that the Respondent had engaged in and was en-
gaging in unfair labor practices in violation of Section 8
(a) (1) and (5) of the Act, and recommending that it cease
and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached here-
to. Thereafter the Respondent filed exceptions to the Interme-
diate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner
made 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 excep-
tions and brief, and the entire record in this case and finds
merit in the Respondent's exceptions. We hereby adopt the
factual findings and conclusions contained in the Intermediate
Report only to the extent consistent with the following decision.'
The essential allegation of the complaint in this case is that
the Respondent's refusal to bargain with the charging Union on
demand constituted a violation of Section 8 (a) (5) of the Act.
The Trial Examiner found that the record supports the com-
plaint. We do not agree.
There is little dispute as to the pertinent facts. The Union
solicited membership among the Respondent's radio station
engineers and technicians in the early part of 1953 and by
February 8 had obtained authorization cards from all but one
of them. On that day it wrote to the Respondent asserting its
majority and asking for recognition . Two days later it filed
a petition with the Board's Regional Office requesting that
an election be held among the employees for the purpose of
establishing its majority status.
The union representatives first met with the Respondent's
owner, Davis, on February 20. The Union attempted to per-
suade Davis to agree to hold a consent election by offering to
show the authorization cards. When Davis insistedupon a hear-
ing and Board-ordered election, the Union, inafurther attempt
to persuade him to agree to an election without a Board order,
displayed a copy of formal charges of unfair labor practices
which it intended to file against the Respondent. The charges
accused the Employer of having unlawfully discharged an
employee and of having unlawfully refused to bargain with the
1 The Respondent's request for oral argument is hereby denied as the record, including the
brief, adequately presents the issues and the positions of the parties.
106 NLRB No 244.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union as early as February 9. Davis declined the Union's
offer not to press the charges in exchange for recognition and
reinstatement of the discharged employee. He insisted upon a
Board - ordered election . At the close of the meeting the Union
again demanded immediate recognition as majority represent-
ative.
On February 26, the Union withdrew the petition for an
election and in its place filed the charge accusing the Re-
spondent , among other things , of having refused to bargain in
good faith. With the election petition withdrawn, the Respondent
granted a wage increase to three employees in the unit on
March 1.
The complaint issued on April 10, 1953, but did not contain
the 8 ( a) (3) allegation. Three months later , a few weeks before
the hearing and after the Regional Director suggested that the
Respondent might resolve its disagreement with the Union,
the Respondent had a supervisor check with each employee as
to his union sympathy. They expressed themselves as not de-
siring union representation.
The Trial Examiner, without giving any theory of the case,
merely recited the foregoing facts and then stated that the
Respondent ' s refusal to accord exclusive recognition to the
Union was an unlawful refusal to bargain. We can only assume
that he found a violation of Section S ( a) (5) for the sole reason
that the Respondent had acted unlawfully in granting the few
raises on March 1 and in asking the employees what they
thought of the Union . Apparently , it is the theory of the Trial
Examiner that in any situation where a union claims, but is
denied, recognition as majority representative and the em-
ployer commits any form of unfair labor practice , ipso facto, the
employer also thereby violates Section 8 ( a) (5). We cannot
agree with this principle , and past Board decisions do not
support it.2
Apart from the obvious fact that the scheme of the Act
never contemplated that a violation of Section 8 (a) (1) should
automatically constitute a violation of Section 8 (a) (5), there
are facts in this case which point strongly to the rejection of
any principle such as the Trial Examiner ' s.' There is no
direct proof that the Respondent ' s refusal to bargain with the
Union in the absence of a regular election was motivated by
anything other than a doubt as to majority status. Davis testi-
fied that 4 years ago another union had claimed majority, but
when a consent election was held it won only 2 out of 9 employ-
ees. Moreover , there is no evidence , nor is it claimed, that
by the time the 8 (a) (5) charge was filed on February 26 the
Respondent had in any degree, however slight, misconducted
himself. Up to that moment all that had occurred was that the
Respondent had asked for the regular hearing which is provided
by the Board ' s established procedure.
2 Beaver Machine and Tool Co., 97 NLRB 33; I. Spiewak & Sons , 71 NLRB 770.
3Harcourt and Company , Inc., 98 NLRB 892 at 900- 901.
THE WALMAC COMPANY 1357
As stated above, the complaint issued on April 10, and the
discriminatory discharge element of the charge was dropped,
presumably because the investigation failed to reveal any
substance to it . The complaint therefore was predicated upon
the theory that an employer who puts a claiming union to the
test of a Board-ordered election runs the risk of automatically
being ordered to bargain with that union--without an election
to test its status--if the employer changes the working condi-
tions of a few employees . In this case , significantly , the theory
would be applied notwithstanding the fact that the Union's
election petition had already been withdrawn when the few
raises were put into effect.
We are unable to reach the conclusion urged by the General
Counsel that the Respondent chose to insist upon a Board-or-
dered election --which normally is its right--because it was in
bad faith motivated by an intention unlawfully to refuse to
bargain with their chosen representative . Accordingly, on the
basis of the entire record , we are not persuaded that the
General Counsel has sustained the burden of proving that the
Respondent ' s refusal to recognize the Union asmajority repre-
sentative and its refusal to bargain with the Union constituted
a violation of Section 8 (a) (5). In this circumstance , we deem
it unnecessary to decide whether the Union in fact represented
a majority of the employees at any time during the events
here reviewed . Similarly , as it has not been shown that the
Respondent was under obligation to bargain with the Union,
and as the Union had withdrawn the representation petition, we
also reject the Trial Examiner's conclusion that the several
raises granted the employees on March 1 were 8 (a) (5)
violations.
As the Respondent ' s position towards the Union was there-
fore at all times proper, all that remains that could be con-
sidered unlawful is the several interrogations of employees
by Chief Engineer Knight in July. Because of the isolated
nature of those interrogations , we do not believe that any use-
ful purpose would be served by issuing a cease-and - desist or-
der based on them. Accordingly , we shall not find a violation
of Section 8 (a) (1), but instead shall dismiss the complaint in
its entirety.4
[The Board dismissed the complaint.]
Member Murdock took no part in the consideration of the
above Decision and Order.
4Member Peterson would adhere to the Board precedent and find that the incidents of in-
terrogation are violative of Section 8 (a) (1) of the Act, but agrees that under the circumstances
of this case the Board should not issue its normal remedial order
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
A charge having been duly filed and served, a complaint and notice of hearing thereon having
been issued and served by the General Counsel of the National Labor Relations Board, and an
answer having been filed by the above-named Company, herein called the Respondent, a hear-
ing involving allegations of unfair labor practices in violation of Section 8 (a) (1) and (5) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was held in
San Antonio, Texas, on July 20, 1953, before the undersigned Trial Examiner.
In substance, the complaint alleges that the Respondent (1) since on or about February 20,
1953, has refused to bargain collectively with the charging Union as the exclusive repre-
sentative of employees in an appropriate unit; and (2) by such refusal, by interrogating its
employees concerning their union affiliations, and by granting a wage increase after the
Union had filed a representation petition, has interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed by the Act.
At the hearing all parties were represented, were afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue
orally upon the record, and to file briefs and proposed findings and conclusions. Both oral
argument and the filing of briefs were waived by the parties.
Upon the entire record in the case, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Howard W. Davis , doing business as The Walmac Company, operates 2 radio broadcasting
stations in San Antonio , Texas: Station KMAC, a standard AM station operating on a power of
250 watts , and Station KISS , an FM station operating on a power of 3,000 watts . There are
separate transmitters for each station and separate telephone lines from the Respondent's
studios, located in San Antonio , Texas , to each transmitter . Both stations are affiliated with
the Mutual Broadcasting System and approximately 40 percent of their broadcast time, which
is unlimited, is devoted to network or national hookup programs . The Respondent utilizes
the Associated Press wire service and the facilities of the Southwestern Bell Telephone Com-
pany in its local and network broadcasting circuits . During the 12-month period ending March
31, 1952, the Respondent received revenues of more than $ 200,000 of which about 17 percent
accrued from sales of advertising and/or services to advertising agencies and other cus-
tomers located outside the State of Texas .' Duringthe same period the Respondent purchased
recordings and transcriptions valued at more than $5,000 from outside the State of Texas.
The Respondent operates its stations under licenses issued by the Federal Communications
Commission.
Upon similar facts the Board found in 1949 ,2 and the Trial Examiner now finds , that the
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 1348, International Brotherhood of Electrical Workers, AFL, is a labor organi-
zation admitting to membership employees of the Respondent.
Ill. THE UNFAIR LABOR PRACTICES
A. Events
The complaint alleges , the answer does not deny , the Board found in Case No. 39-RC-37,
dated June 7, 1949, and the Trial Examiner now finds, that an appropriate unit of the Respond-
i The Respondent's answer claims that allegations as to certain percentages, appearing in
the complaint, are incorrect, but offered no evidence to show to what extent such percentages
were incorrect. The findings are based upon the complaint, which the answer admits is
"substantially correct."
2Case No. 39-RC-37, Dec.sion and Direction of Election issued by the Board June 7, 1949.
THE WALMAC COMPANY 1359
ent's employees for the purposes of collective bargaining includes all broadcast engineers
and technicians employed at Stations KMAC and KISS -FM, exclusive of all office and clerical
employees , announcers , watchmen , guards and all other employees and supervisory employees
within the meaning of the Act.
Pursuant to the Board's direction in the case abovecited , an election was conducted in 1949.
The petitioning union--another local of the parent International Brotherhood of Electrical
Workers--lost the election
Early in 1953 employees in the above -named unit sought organization in Local 1348. The
evidence is unrefuted , and the Trial Examiner finds , that by February 8, 1953 , all but 1 of
the 7 employees in said unit had appropriately designated , by signing authorization cards,
the Union as their collective - bargaining agent
On February 8 a union representative wrote to Howard W. Davis , claiming majority repre-
sentation , seeking recognition , and asking for a meeting . At the same time the Union filed
with the Board a petition for certification . Davis did not reply to the Union 's letter.
On February 20, two union officials visited Davis . Their credible testimony establishes,
and the Trial Examiner finds , that on this occasion : (1) They suggested that although a date
for a hearing on the petition had been set by a Board agent they agree to a consent election;
(2) when Davis countered that his counsel had advised a hearing they asked if he had any
question as to the appropriate unit; (3) when he replied in the negative they asked Davis if,
upon being shown proof of majority representation , he would recognize the Union; and
(4) when he again said "no" one of them took from his pocket six signed cards and proffered
them as proof. Davis declined to inspect them . The union representative then said that they
were filing charges of unfair labor practices against the company, including a charge that one
of the six employees had been unlawfully discharged . They offered to withdraw the charges if
Davis would reinstate the employee and recognize the Union . Davis refused , saying that he was
not yet "ready " to recognize the Union . Before leaving Davis , the union representatives gave
him a letter , previously drawn up , again seeking recognition , claiming majority , and offering
to submit positive evidence of its claim for his inspection . As in the case of the letter of
February 8, Davis did not reply.
A few days later , on March 1 , the Respondent increased the wages of several employees in
the appropriate unit. (The record does not reveal the precise number.)
In July 1953 , shortly before the hearing in this case , Davis instructed his chief engineer,
Alfred Knight , to poll the employees in the appropriate unit as to their wishes for union repre-
sentation . Knight interviewed each of the employees , and asked each to cross out one or the
other alternative on a slip of paper bearing the text:
I desire to represent myself in
have the Union represent me
bargaining with The Walmac Company of San Antonio , Texas.
July 12, 1953.
Each employee was asked to sign the slip presented to him.
B. Conclusions
The Trial Examiner concludes and finds that the Union, since February 8, 1953 , has repre-
sented a majority of the Respondent 's employees in the above -described appropriate unit, and
since that date has been the exclusive representative of all the employees in said unit for the
purposes of collective bargaining in respect to rates of pay, wages , hours of employment, or
other conditions of employment.
It is likewise concluded and found that on February 20, 1953 , the Union requested that the
Respondent recognize it as the collective - bargaining agent for said employees , and that the
Respondent , on that date and at all times since then , has refused to bargain with it
The Trial Examiner further concludes and finds that , by unilaterally increasing wages of
employees in the appropriate unit on March 1, 1953 , the Respondent also refused to bargain
collectively with the Union.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, the Trial Examiner concludes and finds that by refusing to bargain collectively with
the Union on February 20 and thereafter, and by polling its employees in July 1953.1 the Re-
spondent has interfered with , restrained , and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in connection with
its operations described in section I, above, havea close , intimate , and substantial 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
Having found that the Respondent has engaged in certain unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local Union 1348, International Brotherhood of Electrical Workers , AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All broadcast engineers and technicians of theRespondent, employed at its stations KMAC
and KISS-FM, exclusive of all office and clerical employees , announcers , watchmen , guards,
and all other employees , and supervisory employees within the meaning of the Act , constitute
a unit appropriate for the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
3. The above -named Union was on February 8, 1953 , and at all times since then has been,
the exclusive representative of all employees in the aforesaid appropriate unit for the pur-
poses of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on February 20. 1953 , and at all times thereafter to bargain collectively
with the aforesaid Union as the exclusive representative of its employees in the aforesaid
appropriate unit , the Respondent has engaged in and is engaging in unfair labor practices with-
in the meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining , and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent 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.]
3The Board' s position with respect to an employer 's polling of employees has been most
rece,itly reaffirmed in Roberts Brothers (106 NLRB 372 ) and Protein Blenders, Inc.,
(105 NLRB 890).
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, we here-
by notify our employees that:
WE WILL bargain collectively, upon request, with Local Union 1348, International
Brotherhood of Electrical Workers, AFL, as the exclusive representative of the employ-
ees 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:
VICTOR METAL PRODUCTS CORPORATION OF DELAWARE 1361
All broadcast engineers and technicians, exclusive of all office and clerical em-
ployees, announcers, watchmen, guards and all other employees, and supervisory
employees within the meaning of the National Labor Relations Act.
WE WILL NOT poll our employees concerning their desires or wishes relative to the
above-named or any other labor organization.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce our
employees in the exercise bf their rights to self-organization , to form labor organiza-
tions or to join or assist the above -named or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in other con-
certed activities for the purposes of collective bargaining or other mutual aid or pro-
tection , or to refrain from any or all such activities , except to the extent that such right
may be affected by an agreement requiring membership in a labor .organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
All of our employees are free to become or remain, or refrain from becoming or remaining,
members of the above-named or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act.
HOWARD W. DAVIS, d/b/a
THE WALMAC 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.
VICTOR METAL PRODUCTS CORPORATION OF DELAWARE
and INTERNATIONAL ASSOCIATION OF MACHINISTS,
LOCAL LODGE 1853, AFL
GENERAL TEAMSTERS LOCAL NO. 137, AFL and INTER-
NATIONAL ASSOCIATION OF MACHINISTS, LOCAL LODGE
1853 , AFL. Cases Nos. 20-CA-809 and 20-CB-270. October
30, 1953
DECISION AND ORDER
On July 14, 1953, Trial Examiner William E. Spencer issued
his Intermediate Report in the above - entitled proceeding, find-
ing that the Respondent Employer had not engaged in unfair
labor practices and recommending that the complaint be dis-
missed as to this Respondent. The Trial Examiner also found
that the Respondent Union had engaged in and was engaging
in certain unfair labor practices and recommended 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 Union filed exceptions to the
Intermediate Report and a brief in support thereof.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings axe hereby affirmed. The Board
106 NLRB No. 249.