Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Sep 16, 1977

232 N.L.R.B. 56 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westinghouse Electric Corporation, Distribution
Equipment Division and Local 2352, International
Brotherhood of Electrical Workers, AFL-CIO.
Case 14-CA-9392
September 16, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On May 11, 1977, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
On May 26, 1976,1 Respondent and the Union
began negotiations for modifications in their collec-
tive-bargaining agreement which was to terminate on
July 11. On June 1, the Union posted a notice to its
members employed by Respondent that a confidence
vote would be taken on June 9 for the purpose of
authorizing the Union to call a strike. On June 4,
Respondent sent a letter to each union member in its
employ. In essence, the letter stated that it was
premature for the Union to take a confidence vote
since local negotiations had just begun. It asserted
that such a vote could cause customers to take their
business to a competitor who is not hampered by the
threat of a strike. The letter further urged the
employee-members to "request the type of ballot that
will allow you to express your true feelings." Finally,
it suggested that they should be given the opportuni-
ty to vote on the Company's proposal when it was
presented.2
On June 7, the Union complained to Respondent's
officials that the letter was an act of interference in
its internal affairs. On the same date the charge in the
instant case was filed. No other unlawful conduct is
alleged.
The Administrative Law Judge found that Respon-
dent's June 4 letter addresses the issues of when and
how the Union should take a confidence vote and
IAll dates are in 1976 unless otherwise indicated.
2 The full text of the letter is set forth in the Administrative Law Judge's
Decision.
3 As authority for this finding, the Administrative Law Judge cites
N. L. R. B. v. Wooster Division of Borg- Warner Corp., 356 U.S. 342 ( 1958), and
General Electric Company. Battery Produets, Capacitator Department, 163
232 NLRB No. 10
whether or not its members should vote on the
Company's bargaining proposal. She concluded that
all of these are purely internal union matters and that
Respondent's remarks constitute an interference in
the internal union affairs of its employees in violation
of Section 8(a)(l) of the Act.3 Respondent contends
otherwise and argues that the remarks were protected
speech within the meaning of Section 8(c) of the Act.
We find merit in Respondent's position.
Respondent's June 4 letter did not address purely
internal union matters. The letter expressed concern
that the confidence vote would cause customers to
take their business elsewhere to avoid the possibility
of a strike. This clearly was a matter affecting
Respondent as well as the Union. The remark
regarding the premature timing of the vote was
simply an argument to employees about the wisdom
and necessity of taking a step that might do damage
to the business. By the same token, the suggestions as
to the type of ballot and the opportunity to vote on
the Company's proposal were attempts to encourage
employees to take an active interest in an issue of
common concern.
In this connection, Respondent's action differed
substantially from that at issue in the Borg-Warner
and General Electric cases on which the Administra-
tive Law Judge relies. In Borg-Warner, the employer
insisted to impasse that its collective-bargaining
agreement with the union include a clause calling for
a prestrike secret vote by all employees regarding
nonarbitrable issues. 4 The Supreme Court held that
the employer could not lawfully insist on the clause
because it was not a mandatory subject of bargaining
relating to wages, hours, or terms and conditions of
employment. Instead, the clause related "only to the
procedure to be followed by the employees among
themselves before their representative may call a
strike or refuse a final offer."5 The Court further
noted that the effect of the clause was to allow the
employer to deal directly with the employees rather
than with their representative.
In contrast, Respondent here did not insist on a
contract clause which would affect the method of
bargaining during the life of an agreement. Nor did it
suggest that all employees be required to vote on any
disputed issue, in an attempt to deal directly with the
employees rather than the Union. We, therefore, find
that the Borg-Warner decision is not controlling in
the instant case.
Nor do we find that the Board's decision in General
Electric requires the finding that Respondent's June
NLRB 198 (1967), enforcement denied in pertinent part 400 F.2d 713 (C.A.
5, 1968).
' Included among these issues were modification, amendment, or
termination of the contract.
Borg- Warner, supra at 350
56
WESTINGHOUSE ELECTRIC CORP.
4 letter is unlawful. In General Electric, the employer
made appeals to its employees and to the union to
take a strike vote on company property on company
time by secret ballot and under neutral supervision.
It was also proposed that the voting be conducted in
such a manner that all hourly employees would have
the opportunity to vote. The employer simultaneous-
ly engaged in other unfair labor practices. The Board
found the employer's conduct with regard to the
strike vote constituted an intervention in the union's
internal affairs and an attempt to undercut the
union's status as bargaining representative in viola-
tion of Section 8(a)(l) of the Act.
Here, however, Respondent did not offer to set up
an alternative strike vote procedure supervised by
nonunion members. It did not suggest that the vote
be so conducted as to allow all employees the
opportunity to vote. Rather, Respondent's letter
merely encouraged union members to take certain
actions with regard to a vote already arranged by the
Union. In these circumstances, and in the absence of
other unlawful conduct, we find that Respondent's
letter was not an attempt to dictate union matters or
to deal directly with employees rather than with the
Union. Instead, it constituted nothing more than an
expression of opinion. Consequently, the General
Electric decision is inapposite.
Moreover, we find that Respondent's letter of June
4 was an exercise of free speech protected by Section
8(c) of the Act. Section 8(c) provides, inter alia, that
the expressing or disseminating of any views in
written form shall not constitute or be evidence of an
unfair labor practice if such expression contains no
threat of reprisal or force or promise of benefit.6 As
the Senate report on the section states, its purpose is
to insure full freedom of expression to employers and
labor organizations in accordance with the Supreme
Court's rulings that the first amendment guarantees
freedom of speech to both sides in labor controver-
sies.7
Here, Respondent's letter expressed views on
matters germane to the interests of the employees
and the parties and urged that certain actions be
taken. The letter contained no threat of reprisal or
force if employees failed to accept Respondent's
views. It contained no promise of benefit if employ-
ees followed Respondent's suggestions, and it did not
occur in conjunction with any unlawful conduct
which might otherwise affect its impact on employ-
ees. Nor, as we have found, was it an attempt to
interfere in internal union matters. In these circum-
stances, we find that Respondent's letter of June 4
falls within the scope of Section 8(c).8
Accordingly, we find that Respondent did not
interfere with the Union's internal affairs in violation
of Section 8(a)(l) of the Act and shall order that the
complaint be dismissed in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
6 Sec. 8(c): "The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, pnnted, graphic, or visual form,
shall not constitute or be evidence of an unfair labor practice under any of
the provisions of this Act, if such expression contains no threat of reprisal or
force or promise of benefit."
7 S. Rept. 105 on S.1126, I Leg. Hist. 429 (1947).
8 Cf. The Texas Company, 93 NLRB 1358 (1951), and Vogue Lingerie,
Inc., 123 NLRB 1009 (1959), where the Board found it lawful for employers
to urge employees by letter or in a speech to abandon a stnke. See also
Mosher Sleel Company, 220 NLRB 336 (1975), where it was held lawful for
an employer to make an individual appeal to an employee to cross a picket
line.
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: Upon
due notice, this proceeding under Section 10(b) of the
National Labor Relations Act, as amended (29 U.S.C.
§ 151, el seq.), hereinafter referred to as the Act, was heard
before me at St. Louis, Missouri, on October 21, 1976,1
pursuant to a complaint issued on September 7, based on
charges filed on June 7 by Local 2352, International
Brotherhood of Electrical Workers, AFL-CIO, hereinafter
referred to as the Charging Party or the Union, presenting
allegations that Westinghouse Electric Corporation, Distri-
bution Equipment Division, hereinafter referred to as the
Respondent, committed unfair labor practices within the
meaning of Section 8(aX1) and Section 2(6) and (7) of the
Act. In its answer dated September 9, Respondent denied
that it committed the unfair labor practices alleged.
Representatives of all parties were present and participated
in the hearing herein.
Based on the entire record,2 including my observation of
witnesses and after due consideration of the arguments
presented in briefs filed by the parties, I make the
following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is alleged in the complaint and admitted by Respon-
dent that Westinghouse Electric Corporation, Distribution
Equipment Division, at all times material herein, main-
tained an office and plant at 1945 Craig Road, in the
county of St. Louis, State of Missouri, the only facility
involved herein, where it is engaged in the manufacture,
sale, and distribution of electrical switch gear and the
distribution of components and related products.
I All dates are in 1976 unless otherwise specified.
2 Errors in the transcript have been noted and corrected.
57
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the year ending August 31, which period is
representative of its operations during all times material
herein, Respondent, in the course and conduct of its
business operations, manufactured, sold, and distributed at
its St. Louis plant products valued in excess of $50,000, of
which products valued in excess of $50,000 were shipped
from said plant directly to points located outside the State
of Missouri.
Respondent admits and I find that it is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE UNION
Respondent admits, and I find, that Local 2352,
International Brotherhood of Electrical Workers, AFL-
CIO, is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
Itl. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The issue is whether by communicating directly with
employees concerning the taking of a confidence vote
announced by the Union for consideration and balloting at
a scheduled union meeting Respondent interfered with the
internal affairs of the Union and thereby restrained and
coerced its employees in violation of Section 8(a)( I).
B. The Events Involved
There is either no contradiction or substantial agreement
with respect to the following statement of facts. 3 There is
an established bargaining relationship between Respon-
dent and the Union. On May 26, the parties held their first
negotiating session for changes in their expiring 3-year
collective-bargaining agreement which was to terminate on
July II. On June 1, the Union's chief steward, Kenneth
Swyers, utilizing a bulletin board posting, notified its
members employed by Respondent that a "confidence
vote" would be taken at the union meeting on June 9. 4
After the posting on June 1, Swyers was called to the office
of Edward H. Ruehl (also appearing in the record as Rule),
where Fritz Wilson, operations manager, and Edward
Bork, manufacturing manager, were also present. Swyers
was asked to explain the purpose of the confidence vote
and was told that management might issue a statement on
the matter. Swyers told the management representatives
that the members understood the procedures and that the
Union could answer any question from its members.
Wilson assured Swyers he would show the Union any
I I ruled at the hearing that the procedures the Union had established,
with respect to confidence votes, strike votes, and votes to accept or reject
the employer's last offer, as well as the procedures it in fact followed, and
the accuracy or inaccuracy of Respondent's representation with respect
thereto, were not in issue within the framework of the complaint.
Accordingly, I excluded evidence and testimony directed thereto and
rejected offers of proof.
4 The notice read:
ATTENTION UNION MEMBERS
There will be a confidence vote taken at the next regular scheduled
statement prior to its issuance. However, without prior
consultation with the Union, Wilson, on June 4, mailed to
each individual union member the following letter:
Your local union has scheduled a regular member-
ship meeting for Wednesday, June 9th. The purpose of
the meeting is to take a confidence vote.
Such a vote can give your union leaders the right to
call a strike in the St. Louis plant without giving you a
chance to vote on our proposal after it is put on the
table. That's why it's very premature to take such a vote
at this time. Another thing, local negotiations have just
begun and the issues have not yet been identified.
A vote of this nature also can have serious effects
upon our ability to obtain new business. Our customers
want to be assured of uninterrupted deliveries and even
the threat of a strike could very well cause our
customers to take their business to a competitor who
does not have a contract to negotiate.
So be sure you attend the meeting and give careful
thought and consideration to this serious question
before you cast your ballot. You should request the
type of ballot that will allow you to express your true
feelings. Also you should be given the opportunity to
vote on the company's proposal when it is presented.
Having become aware of the letter, on June 7 Swyers and
Local Union Vice President Otto Salm contacted Respon-
dent's officials and protested that by the distribution of the
letter Respondent was meddling with the internal affairs of
the Union and had failed to clear any statement with the
Union, as previously promised. With respect to the latter
accusation the union representatives were told that this was
an oversight. The protest was reiterated at the bargaining
session held on June 8 and, this being unproductive,
Swyers distributed an explanatory letter to the member-
ship.
Contentions of the Parties
Respondent contends that its letter was protected free
speech within the meaning of Section 8(c) and that under
Board law an employer has the right to communicate
directly with its employees concerning their concerted
activities so long as its communications do not contain
threats of reprisal or force or promises of benefits and are
not made in conjunction with any sufficiently proximate
unfair labor practices which would evidence an opposition
to the purposes of the Act. The General Counsel contends
that Respondent's June 4 letter concerned itself with the
mechanics of testing the statutory representative's power to
call a strike, a purely internal union matter, and therefore
was a communication by Respondent which constitutes
union meeting June 9. Everyone wishing to cast their vote meet at
District 9 Michinist Hall located 12365 St. Charles Rock Rd. Third shift
meets at 8:30 a.m. Second 1:30 p.m. and First 5:15, Anyone with
questions feel free to come and ask.
All parties understood that the purpose of the "confidence vote" was to
enable the Local to obtain from the International advance approval for any
strike sanction.
58
WESTINGHOUSE ELECTRIC CORP.
interference in the internal union affairs, violative of
Section 8(a)( ) of the Act.
Analysis and Conclusions
The General Counsel relies on the principle in Borg-
Warner,5 as applied by the Board in General Electric
Company,6 urging that this case is identical with the 8(a)(1)
aspect of Borg-Warner, lacking only the refusal-to-bargain
violation because, unlike the situation in that case,
Respondent here did not make the fostered change in the
Union's internal procedures a bargaining demand. Never-
theless, the General Counsel urges, the direct communica-
tion by Respondent to the individual union members, in
advocacy of its position on internal union matters, alone, is
an independent violation of Section 8(a)(l) of the Act.7
The General Counsel points out that here Respondent's
letter identifies as the subject the "confidence vote"
scheduled by the Union and then proceeds to argue that
such vote is premature (a procedural question of timing
rather than substance of whether or not to strike), and
urges union members to attend and request a particular
type of ballot and an opportunity to vote on the
Company's proposal. (Again procedural rather than sub-
stantive.) Thus, it is urged that these are all matters
concerning the procedure, the timing, and the "mechanics
of testing the statutory representative's power to call a
strike, a purely internal matter.""
Respondent would distinguish the General Electric
decision on the ground that there the employer emmeshed
itself in the determination of whom the union would allow
to vote (all represented employees or union members only)
whereas here Respondent merely urged employees how to
vote, i.e., "to vote against the strike confidence vote,"
which was devoid of threats of reprisal or promises of
benefit and comparable to urging employees to vote
against representation; to refrain from striking: to abandon
a strike; or to return to work, all protected by Section 8(c)
of the Act.
In agreement with the General Counsel, I do not find
Respondent's letter so limited. Indeed, I find the thrust of
Respondent's message to be consistent with the analysis
presented by the General Counsel, even with the accompa-
' Wooster Diiision of Borg-Warner Corporation, 113 NLRB 1288, 1294
(1955). enforcement denied 236 F.2d 898 (1956), reversed, upholding the
Board 356 U.S. 342, 349 350 (1958). In its decision the Board held that "the
mec hanic of testing the statutory representative's power to call a strike .. .Is I
a purely internal matter unrelated to any condition of employment." and the
Supreme Court viewed the matter as one dealing "only with relations
between the employees and their unions [which ] substantially modifies the
collective-bargaining system provided foir in the statute by weakening the
independence of the 'representative' chosen by the employees."
(General Flectric Company, Battern Produets, ('apae itator Department.
163 NLRB 198. 211 212 (1967), enforcement denied in pertinent part 400
F.2d 713 (C.A. 5. 1968). where instead of stopping at presentation of the
proposal limiting the representative's authority to the union, the respondent
instead "carried the matter directly to the employees . . . and urgently
sought their support omn the issue, thereby intervening directly in the Union's
internal affairs .
I Comparison is made to Builders Suppli Compano' of Houston, 168
NLRB 163 (1967), enfd. 410 F.2d 506 (C.A. 5 1%969) wherein an employer's
suggestion tor a change in the union's election observer was found to be
unlawful interference with the union's nght to select its representative, and
with Diversified Industries, a Division of Indlpendent Stove (Compan r, 208
NLRB 233. 252 (1974). wherein the plant manager suggested to a union
nying references to the effect of a strike threat upon
customers and the suggestion that employees should be
given the opportunity to vote on the Company's proposal.
Further, although the Fifth Circuit declined to enforce the
General Electric holding, viewing the company's communi-
cation as attempted persuasion "to prevent one specific
strike," I am governed by the Board's decision therein. Nor
have I found any case indicating that the Board has
departed from its General Electric/Borg-Warner holding.9
Accordingly, I conclude and find, on the authority of the
Borg-Warner and General Electric cases cited, supra, that
by interfering in the internal union affairs of its employees
Respondent engaged in activities violative of Section
8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section 1, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
I. Westinghouse Electric Corporation, Distribution
Equipment Division, is, and has been at all times material
hereto, an employer within the meaning of Section 2(2)
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 2352, International Brotherhood of Electrical
Workers, AFL-CIO, is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
3. By interjecting itself into purely internal affairs of the
Union, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(I)
and Section 2(6) and (7) of the Act.
member the ouster of certain union officials and supplied the services of a
clencal employee who drafted critical letters advocating such ouster, which
was found to be a deliberate injection into matters not his legitimate
concern and interference with the union's internal affairs, a violation of Sec.
8(a)( 1) of the Act.
8 Borg-Warner, supra at 1295.
' Somewhat analogous findings, although without interference rationale
or citation to the cases considered herein, and without identification as
interference with internal affairs of the union, are findings of 8(a)HI)
violations in Dvna Corporation, 223 NLRB 1200. 1206 (1976), wherein the
employer offered incumbent officers of the independent union assistance to
fight the independent's impending affiliation with an international union:
Warehouse Foods, a Division of M. E Carter and Company.r Inc., 223 NLRB
506 (1976). wherein a respondent official asked an employee not to attend
the stnke vote meeting stating, "If no one attended the strike vote, then
there wouldn't be no stnke"; and Cathay (Wah Sang) d"b a Daphne San
Francisco Funeral Service, 224 NLRB 461, 462-463 (1976). wherein the
employer asked an employee whether he and other employees were keeping
logs of their work from which the union billed the employer for his alleged
violations of their contract, and suggested that employees would risk their
continued employment by doing so.
59
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent has engaged in [Recommended Order omitted from publication.]
unfair labor practices, I will recommend that Respondent
be required to cease and desist therefrom and to take