Western Microwave Laboratories, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1969

175 N.L.R.B. 107 (N.L.R.B. 1969)

WESTERN MICROWAVE LABORATORIES , INC. 107
Western Microwave Laboratories , Incorporated and
International Brotherhood of Electrical Workers,
AFL-CIO, Local' Union No. 786. Case
20-CA-5172
March 26, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon a charge filed by International Brotherhood
of Electrical Workers, AFL-CIO, Local Union No.
786, herein called the Union, the General Counsel
for the National Labor Relations Board, by the
Regional , Director for Region 20, issued a
Complaint and Notice of Hearing dated October 21,
1968, alleging that Western Microwave
Laboratories, Incorporated, Respondent herein, had
engaged in and was engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge
and complaint were duly served upon the
Respondent and the Union.
With respect to the unfair labor practices, the
complaint alleges that on or about July 30, 1968,'
the Board certified the Union as the exclusive
bargaining representative of the Respondent's
employees in the unit found appropriate,' and that
since August 12, the Respondent refused, and
continues to refuse, to recognize and bargain with
the Union as the exclusive representative, although
the Union.has requested it to do so. On October 30,
1968, Respondent filed its answer to the complaint
admitting certain allegations of the complaint in
whole or in part but denying the commission of the
unfair labor practices alleged. It also alleged by way
of certain "defenses" that (1) the Union
electioneered at and near the polls before and during
the election, by sending ineligible voters to vote,
whose presence and language impaired the freedom
of choice of and misled the voters, and by the
presence of union officials in or near the area; (2)
the Union electioneered and distributed literature,
designed to influence the outcome of the election in
favor of the Union to employees within 24 hours of
the election; and (3) said distribution contained false
and misleading information pertaining to the
election issues designed to influence employees to
vote for the Union. The Respondent also requested
that the complaint be dismissed.
On December 18, 1968, the General Counsel filed
with the Board a Motion for Summary Judgment,
and a memorandum in support thereof submitting
that the Respondent' s answer raises no issues of fact
or law, requiring a hearing , and moved the Board to
' Except where otherwise noted all events occurred in 1968.
'Case 20-RC-8084 (not printed in NLRB volumes).
enter judgment against Respondent on the pleadings.
Thereafter, on December 24, 1968, the Board,
having duly considered the matter, issued an Order
Transferring Proceedings to the Board and Notice
to Show Cause why the General Counsel's Motion
for Summary Judgment should not be granted. On
January 3, 1969, the Respondent filed its Answer to
Show Cause Notice requesting the Board to deny
the Motion for Summary Judgment, and in effect to
set the matter down for a hearing to permit the
Respondent to present evidence in support of its
answer and defenses.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
Upon the entire record in this case, the Board
makes the following:
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
The record establishes that pursuant to a
Stipulation for Certification upon Consent Election
executed by the Union and Respondent on April 22,
and approved by the Regional Director for Region
20 on April 23, an election by secret ballot was
conducted on May 21, under the direction and
supervision of the Regional Director among the
employees in a unit stipulated by the parties to be
and hereinafter found appropriate.
Upon the conclusion of the balloting, the parties
were furnished with a tally of ballots which showed
that of approximately 92 eligible voters, 92 cast
ballots, of which 46 were for and 42 against the
Union, with 4 challenged ballots,' which were
sufficient in number to affect the results of the
election. On May 24, the Respondent filed
objections to conduct of election and to conduct
affecting the results of the election. It contended
that: (1) Over the objection of the Respondent the
Board Agent permitted two "Union
Representatives," Ruby Autrey and Elba Chavez, to
enter the polling place, stand in the voting line,
engage in extended conversations with eligible
employees, and vote in the election; that neither
Autrey nor Chavez were employees at the time nor
were they on the eligibility list;' and by their
presence and actions each was able to and did, both
directly and indirectly intimidate employees to vote
in favor of the Union; and (2) that two ballots, one
marked with an "0" and another marked with the
word "Yes" should have been invalidated and not
counted as valid votes for the Union.
'Ruby Autrey and Elba Chavez were challenged by the Board Agent as
their names did not appear on the voting eligibility list; and Herscher and
La Favre were challenged by the Union on the ground that they were
office clerical employees and as such excluded from the unit.
'On April 22, 1968, at an informal hearing in the Board's San Francisco
Regional Office , the Union and Respondent agreed that Autrey and
175 NLRB No. 20
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter on June 11, pursuant to an
investigation of the challenged ballots, and
objections filed by the Respondent, the Regional
Director issued a Report on Objections and
Challenged Ballots. He found, in accord with the
preelection agreement of the parties, that Autrey
and Chavez had been terminated before the
eligibility date and that they had no reasonable
expectation of reemployment within the foreseeable
future. He therefore recommended that the
challenges to their ballots be sustained. Under the
circumstances he made no determination regarding
the eligibility of Herscher and La Favre as their
ballots would not affect the result. He further
recommended that the objections of the Respondent
be overruled by the Board and that the Board issue
a certification of representative.
Concerning objection (1) he found that neither
Chavez nor Autrey was authorized to act as
representative or agent of the Union, that there was
no evidence that either had been more active than
other employees in the union campaign, except that
Autrey had accompanied the International
representative to the conference at which the
election agreement was executed. In accounting for
the fact that Autrey was permitted to vote a
challenged ballot, the Regional Director found that
when Autrey appeared at the polling place, she
spoke only to the Board Agent and indicated that
she was an employee at the time that the election
campaign began. He reported further that there was
conflicting testimony as to whether she had also said
that she had been sent to vote by one of the Union
agents. As to Chavez, the Regional Director found
that she appeared to vote 5 minutes before the polls
closed and that except for the two observers, there
were no employees present in the voting area when
she voted. As to exception (2) the Regional Director
found that the Board agent counted as valid votes
for the Union, a ballot on which the word "Yes"
was written in the square where an "X" mark is
ordinarily placed, and a second ballot which was
marked with an "0" instead of an "X". He
concluded that the markings on the ballots indicated
clearly the intent of the voters and as the markings
were not inherently such as to disclose the identity
of the voters, he recommended that Respondent's
objections be overruled.
On June 20, the Respondent filed with the Board
exceptions, and brief, to the Regional Director's
Report. The Respondent excepted to the Regional
Director's finding that the appearance of ineligible
voters in the polling area and voting was not a basis
for voiding the election; to his finding concerning
alleged improperly marked ballots and, in the
circumstances, to his failure to pass on the
challenged ballots of employees Herscher and La
Favre. Although the Respondent asked that the
Chavez were not eligible to vote . Their names were excluded from the list
of eligible employees.
Regional Director's Report be set aside, that its
objections be sustained and that another election be
directed, it made no explicit claim that its
exceptions raised substantial and material issues of
fact requiring a hearing. On the contrary, it offered
no evidence to controvert the Regional Director's
factual finding, and its exceptions appear to have
done no more than challenge the Regional
Director's conclusions on the basis of the facts
reported.
On July 30, 1968, the Board issued its Decision
and Certification of Representative, in which it
adopted the Regional Director's findings and
recommendations and certified the Union as the
exclusive bargaining representative of the
Respondent's employees in the unit found
appropriate. The Board held that the Respondent's
exceptions raised no material or substantial issues of
fact or law which would warrant reversal of the
Regional Director's findings or recommendations or
require a hearing. Respondent filed no motion for
reconsideration of the Board's Decision and
Certification of Representative.
In its Answer to the Show Cause Notice, the
Respondent now, for the first time, claims that it is
entitled to a hearing in order to present evidence to
sustain its defenses to the complaint. It is firmly
established that in a post-election representation
proceeding, the objecting party in order to obtain a
hearing must supply prima facie evidence, presenting
"substantial and material factual issues" which
would warrant setting aside the election.' A hearing
is required only where it is necessary to preserve a
party's rights, consequently, if there is nothing to
hear then a hearing is a "senseless and useless
formality."' Neither in the course of the Regional
Director's investigation nor in its exceptions to the
Board did the Respondent supply prima facie
evidence presenting substantial and material issues
which would warrant setting aside the election, nor
did it make any tender of evidence sufficient to raise
an issue of fact. Indeed, it merely challenged the
validity of the conclusions drawn by the Regional
Director from the facts disclosed by his
investigation. We had no doubt of the validity of the
Regional Director's conclusions when the matter
was previously before us and, noting that
Respondent presented no evidence to challenge the
Regional Director's factual findings, we concluded
in our decision of July 30, 1968, that Respondent's
exceptions raised no material or substantial issues of
fact or of law which would warrant the Board to set
aside the election or direct a hearing.
In the present proceeding, the Respondent in its
Answer to the Notice to Show Cause now claims
that it is entitled to a hearing in order to present
evidence to sustain the so-called defenses alleged in
its answer to the complaint. Its contentions appear
'N.L.R.B. v. 0. K. Van Storage Inc., 297 F.2d 74, 75 (C.A. 5).
N.L.R.B. v. Air Control Products 01St . Petersburg Inc.. 335 F.2d 245,
249 (C.A. 5).
WESTERN MICROWAVE LABORATORIES, INC. 109
to be: once a hearing is ordered, employees, under
oath and free of the fear of Union reprisals, would
supply the evidence Respondent now lacks.
Respondent offers no proof that any employee had
been intimidated by Union threats of reprisals
against any employee who gave a statement to the
Regional Director which was unfavorable to the
Union's cause. The Respondent's contentions, it
appears to us, are based entirely on unfounded
speculation and cannot be considered the equivalent
of the prima facie evidence that it must supply to
show that material and substantial issues of fact
exist in order to be entitled to a hearing.
The Respondent's answer, however, raises for the
first time the claim that the Union improperly
affected the outcome of the election by the
distribution of false and misleading literature
designed to influence the employees to vote for the
Union and that it had no time to reply thereto. It
attaches a copy of the alleged offending material to
its Answer to the Notice to Show Cause.' The
leaflet apparently was distributed by the Union
shortly before the election! Respondent claims that
the leaflet did not come to its attention until after it
had filed its answer, on October 30, and after it had
received a notice of hearing dated October 21. It
argues therefore that the. material is newly
discovered evidence. Respondent, however, sets forth
none of the circumstances which led to the late
discovery of this leaflet. We have considerable
doubt, of course, whether the leaflet in question is
newly discovered evidence, and are justified in
rejecting it on that ground. Indeed, we are justified
in rejecting the defense based thereon on the ground
that it is essentially an objection to conduct alleged
to have affected the outcome of the election. As an
objection, it should have been filed within the 5 days
provided therefor in the Board's Rules and
Regulations.' Moreover, even if we overlook the
untimely interposition of an objection to the election
or the inherent improbability of Respondent's claim
that the leaflet came to its attention, after it had
filed its answer in the present proceeding, although
there appears to be a clear reference to such matter
in the third of its defenses, and consider the leaflet
on its merits, we find nothing in its language which
can be said to constitute a misrepresentation of fact,
or to suggest that a substantial and material issue of
fact is raised requiring a hearing. The leaflet does
no more than refer to benefits of Union membership
and tells the employees, in effect, that they cannot
have such benefits without being a member of this
Union. Acting in the belief that some employees
may be unwilling or unable to pay the cost of
membership, in the form of monthly dues, it tells
the employees that if they vote for the Union they
will be able to bargain for higher hourly wages,
which will more than cover the monthly dues
payment. The sense of the language does not
indicate that if the Union is chosen, only Union
members will receive the benefits of Union
representation. All in all the leaflet can hardly be
considered as more than conventional union
campaign propaganda.'" On the record as a whole,
we find no ground for setting aside the election or
directing a hearing in this proceeding.
All other material issues having been previously
decided by the Board or admitted by Respondent's
answer to the complaint herein, there are no matters
requiring a hearing before a Trial Examiner.
Accordingly, the General Counsel's Motion for
Summary Judgment is granted. On the basis of the
record before it, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times
material herein, a corporation duly organized and
existing by virtue of the laws of the State of
Virginia engaged in the manufacture of cable
harness at its place of business at San Jose,
California. During the past year, which period is
representative of all material times herein,
Respondent received goods valued in excess of
$50,000 from points outside the State of California.
Respondent admits, and we find, that Respondent
is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will
effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No. 786, is a labor
organization within the meaning of Section 2(5) of
the Act.
'The leaflet in material part stated the following:
Brothers and Sisters:
Today, May 21, there will be an official election with a secret ballot
at Western Microwave from 3:45 - 4:30 p.m. At this time you will
decide if you want the benefits of union representation.
We have given you information to help make this very important
decision . Now you know the benefits you can get ONLY IF YOU ARE
A MEMBER OF THE UNION. You know that it will NOT COST
YOU ANYTHING TO JOIN and that the small monthly dues will only
be a tiny . fraction of the HOURLY WAGE INCREASE that you
yourselves - the workers - will be able to bargain for in your contract.
So now it's up to you . For better protection , dignity and justice for
you and your family, mark an "X" in the box that says "YES".
'Insofar as the Respondent claims that the distribution of literature
within 24 hours of the time an election is held is an interference with the
election and cause for setting it aside , it is in error . See Comfort Slipper
Corporation, 112 NLRB 183.
'Board Rules and Regulations , Series 8, as amended, Section 102.69. Cf.
National Container Corporation of Wisconsin, 99 NLRB 1492, 1495;
Sears Roebuck and Co. 115 NLRB 266, 270.
"In our opinion, N.L.R.B. v. Trancoa Chemical Corp., 303 F.2d 456
(C.A.I), is completely distinguishable on its facts . There, the court found
that the union representations were clearly false or half-truths, and they
related to matters that were likely to mislead employees into voting for the
Union . In the present case, we find no misrepresentation of fact in the
Union's leaflet.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceedings
1. The unit
At all material times herein the following
employees at the Respondent's San Jose, California,
plant, constitute a unit appropriate for collective
bargaining within the meaning of the Act:
All production and maintenance employees
including leadmen employed at the San Jose,
California, operation of Western Microwave
Laboratories, Incorporated, excluding office
clerical employees, professional employees, guards
and supervisors as defined in the Act.
2. The certification
On or about May 21, 1968, a majority of the
employees of the Respondent in said unit, in a secret
election conducted under the supervision of the
Regional Director for Region 20, designated the
Union as their representative for the purpose of
collective bargaining with Respondent, and on July
30, 1968, the Board certified the Union as the
collective-bargaining representative of the employees
in said unit and the Union continues to be such
representative.
B. The Request To Bargain and the
Respondent 's Refusal
Commencing on or about August 9, 1968, and
continuing to date, the Union has requested and is
requesting Respondent to bargain collectively with it
as the exclusive collective-bargaining representative
of all the employees in the above-described unit.
Commencing on or about August 12, 1968, and
continuing to date, the Respondent did refuse, and
continues to refuse to bargain collectively with the
Union as exclusive collective-bargaining
representative of all employees in said unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of the Respondent
in the appropriate unit described above in the
Board's certification, and that the Union at all times
since May 21, 1968, has been and now is the
exclusive bargaining representative of all the
employees in the aforesaid unit , within the meaning
of Section 9(a) of the Act. We further find that
Respondent has, since August 12, 1968, refused to
bargain collectively with the Union as the exclusive
bargaining representative of its employees in the
appropriate unit, and that by such refusal, the
Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of the Respondent set forth in section
III, above, occurring in connection with its
operations as described in section I, above, have a
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
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom and, upon request,
bargain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit and, if an understanding is reached, embody
such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of
their selected bargaining agent for the period
provided by law, we shall construe the initial year of
certification as beginning on the date the
Respondent commences to bargain in good faith
with the Union as the recognized bargaining
representative in the appropriate unit. See- Mar-Jac
Poultry Company, Inc., 136 NLRB 785; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd . 328 F.2d 600 (C.A.5), cert. denied 379 U.S.
817; Burnett Construction Company, 149 NLRB
1419, 1421, enfd. 350 F.2d 57 (C.A.10).
CONCLUSIONS OF LAW
1. Western Microwave Laboratories , Incorporated
is an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. International Brotherhood of Electrical
Workers, AFL-CIO, Local Union No. 786, is a
labor organization within the meaning of Section
2(5) of the Act.
3 All production and maintenance employees
including leadmen employed at San Jose, California,
operation of Respondent , but excluding office
clerical employees, professional employees , guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the
Act.
4. On July 30, 1968 , and at all times thereafter,
the above-named labor organization has been the
certified and exclusive representative of all
employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By refusing on or about August 12, 1968, and
at all times thereafter , to bargain collectively with
WESTERN MICROWAVE LABORATORIES, INC
the above-named labor organization as the exclusive
bargaining representative of all employees of the
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
6. By the aforesaid refusal to bargain, the
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing, employees, in the exercise of rights
guaranteed them in Section 7 of the Act, and has
thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of
the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Western Microwave Laboratories, Incorporated,
San Jose, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment with International Brotherhood of
Electrical Workers, AFL-CIO, Local Union No
786, as the exclusive and duly certified bargaining
representative of its employees in the following
appropriate unit.
All production and maintenance employees
including leadmen employed at the San Jose,
California, operation of the Employer, excluding
office clerical employees, professional employees,
guards, and supervisors as defined in the Act
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its San Jose, California, operation,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the
Regional Director for Region 20, shall, after being
duly signed by the Respondent's representative, be
I I I
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(c) Notify said Regional Director for Region 20,
in writing, within 10 days from the date of this
Decision and Order, what steps have been taken to
comply herewith.
in the event this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order," the words "a Decree of the United States Court of Appeals
Enforcing an Order"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that.
WE WILL NOT refuse to bargain collectively with
International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No. 786, as the exclusive
representative of the employees in the bargaining unit
described below
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union as the exclusive representative of
all employees in the bargaining unit described below
with respect to wages, hours, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed
agreement.
The bargaining unit is:
All production and maintenance employees, including
leadmen employed at our San Jose, California,
operation, but excluding office clerical employees,
professional employees, guards and supervisors as
defined in the Act
WESTERN MICROWAVE
LABORATORIES,
INCORPORATED
(Employer)
Dated By
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board' s Regional Office, 13050 Federal
Building, 450 Golden Gate Ave, Box 36047, San
Francisco, California 94102, Telephone 415-556-3197.