Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Oct 24, 1957

119 N.L.R.B. 117 (N.L.R.B. 1957)

WESTINGHOUSE ELECTRIC CORPORATION 117
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in vio-
lation of Section 8 (a) (1) of the Act it will be recommended that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
It has been found the Respondent discriminatorily discharged Morrice Mulligan
Dulin on March 23, 1956. In view of the foregoing findings the Trial Examiner
will recommend that the Respondent make an offer of reinstatement to Morrice Mulli-
gan Dulin; it is recommended that the Respondent make whole Morrice Mulligan
Dulin for any loss of wages he may have suffered as the result of the discrimination
against him by payment to him of a sum equal to the amount which he nor-
mally would have earned as wages from the date on which the Respondent dis-
charged and failed to reinstate him to date, less his net earnings during such period
(Crossett Lumber Company, 8 NLRB 440, 497-498), said back pay to be com-
puted on a quarterly basis in the manner established by the Board in F. W. Wool-
worth Company (90 NLRB 289). The Respondent upon request shall make avail-
able to the Board or its agents for examination and copying all payroll, social
security and personnel records and reports, and all other records and reports
necessary to determine the amounts of back pay.
The nature of the unfair labor practices committed by the Respondent indicate
a general purpose to limit the lawful rights of employees and persuade the Trial
Examiner that such practices are potentially related to similar unfair labor prac-
tices, the future commission of which may be reasonably anticipated from the
Respondent's past course of conduct. The preventive purposes of the Act will be
thwarted unless the recommended order is coextensive with the threat. It is there-
fore recommended that a broad cease-and-desist order issue against the Respondent.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent Roadway Express, Inc., is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. By discriminatorily discharging Morrice Mulligan Dulin the Respondent has
engaged in an unfair labor practice within the meaning of Section 8 (a) (1) of
the Act.
3. By such discrimination, including the failure to reinstate this employee without
prejudice to his seniority and other rights and privileges, the Respondent has in-
terfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act and has thereby engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Westinghouse Electric Corporation (Meter Plant ) and Interna-
tional Union of Electrical Radio and Machine Workers, AFL-
CIO, Petitioner. Case No. 11-RC-901. October L4, 1957
ORDER DENYING MOTION
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on December 14, 1956, among
certain employees at the Employer's Raleigh, North Carolint,, plant.
At the conclusion of the election, the parties were furnished a tally
of ballots which showed that the Petitioner failed to obtain a majority
of the ballots cast. On December 21, 1956, the Petitioner filed ob-
110 NLRB No. 26.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jections to conduct affecting the results of the election and on March
7, 1957, the Regional Director issued his report on objections in which
he found that the Petitioner's objections did not raise substantial or
material issues with respect to the conduct of the election, or conduct
affecting the results of the election, and recommended that the objec-
tions be overruled. On March 18, 1957, the Petitioner filed exceptions
thereto. On June 26, 1957, the Board issued a Decision and Certifica-
tion of Results of Election.' On July 17, 1957, the Petitioner filed a
motion for reconsideration of the aforesaid decision in which it urged
the Board to reconsider, and set aside, its Decision of June 26,1957, and
direct that a hearing be held on the Petitioner's objections to the
election.
The Board 2 has duly considered the matter and concluded that the
motion for reconsideration in effect constitutes an additional objection
to the election which was not filed timely under the Board's Rules.
[The Board denied the motion for reconsideration.]
CHAIRMAN LEEDOM, concurring :
Like Members Rodgers and Jenkins I would sustain the Regional
Director and dismiss the petition. However, aside from the question
of whether the exceptions raise matters properly before us for de-
cision, I feel impelled because of my concern over the impact of state-
ments of this character on the election process, to register my views.
A threat or promise with racial overtones, i. e., one which threatens a
loss of jobs because of racial distinctions, made for the purpose of in-
fluencing employees in their right to choose a bargaining representa-
tive, is clearly prohibited by the Act and would constitute grounds for
setting an election aside. Whether or not the racial overtone is present,
there exists a threat or promise keyed to union activity which is not
protected by Section 8 (c). The more subtle problem, however, arises
when the reference to job retention or job loss is tied to the fact that
the Union has a policy, at odds with that of the Employer, which calls
for disregarding racial lines in the allocation of jobs, the implication
being that, if the Union wins the election, union policy will probably
prevail thereafter in the plant. It is true that the Board has hereto-
fore found that statements endeavoring to forecast what will eventu-
ate because of union demands and union practices are predictions
which fall within the protection of the Act, and I have subscribed to
that approach. However, I have serious doubts whether that principle
should be applied in a case where the prediction involves an advan-
tage or a disadvantage to an employee growing out of racial prejudice.
The consequence of injecting the racial issue where racial prejudices
:1118 NLRB 864.
Board Members Murdock and Bean dissent ; their opinions are attached hereto. Chair-
man Leedom concurs with an opinion also attached hereto.
WESTINGHOUSE ELECTRIC CORPORATION 119
are likely to exist is to pit race against race and thereby distort a
clear expression of choice on the issue of unionism. Clearly, to draw
the issue along these lines does not effectuate the policies of the Act.
The implications are far greater, in my opinion, than the reaches of
the Act, for they bespeak an assault upon the spirit of our Constitution.
MEMBER BEAN, dissenting :
I joined in the panel decision overruling the Union's objections to
the election held in this case. The Union has moved for reconsidera-
tion of that decision. On reappraisal of the questions raised at the
time of that decision, I now believe that the Board should order a
hearing to ascertain whether the Employer's officials in fact engaged
in conduct which prevented a free and untrammeled expression of
choice by the employees.
Among the objections which the Union first urged as reasons for
setting aside the election was the allegation that the Employer had
shown moving pictures to its employees "in order to inflame racial
prejudice against the IUE." The Regional Director conducted an
investigation of all the objections. He reported there was evidence
that Babcock (the plant manager) told employees if the Union won
the election promotions would be made by seniority regardless of color
and displayed news articles to the effect that the Union and the C. 1. 0.
supported civil rights education and legislation.
The Union filed 10 enumerated exceptions to the Regional Direc-
tor's report. Two of them are expressly directed to the Regional
Director's failure to recommend that Babcock's injection of the "in-
flammatory racial issue" into the preelection campaign improperly
influenced the outcome of the voting. Again in aid of its insistence
that the election did not take place in a free environment, the Union
:averred-in its supporting papers-that (1) company officials told
the assembled employees that "white employees would be discriminated
against" if the Union won; (2) the Employer showed pictures of
white and colored employees working together and "coupled this
demonstration with the prediction that Petitioner would cause similar
practices in the North Carolina plant"; and (3) the plant manager
himself raised the racial issue when he called the employees together
and made "the implied promise that if the Petitioner will rejected by
the employees the then current racial segregation practice would be
retained."
It is thus clear that both the fact of the Employer's statements and
conduct relating to racial prejudice as well as its effect upon the
Board's election processes were put in issue by the timely objections
and exceptions.3 The conduct which the Union alleges that the Em-
8 The members of the majority deny the Union's motion for reconsideration on ground
that it "constitutes an additional objection to the election," thereby implying that these
matters are raised for the first time in the motion. However, the motion merely restates
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer engaged in and the tenor of the Regional Director's report as
to what occurred are in substantial accord. Indeed, some of the state-
lnents attributed to the plant manager appear to be implicit in the
conclusory language appearing in the field investigation report.
Certainly there is here presented a factual issue as yet unresolved,
and that is whether or not Babcock's statements intended to influence
employees in the selection of their collective-bargaining agent, may
be said to have constituted (1) promises, if the Union should lose, of
continued discriminatory benefits to employees because of their color,
and, conversely, (2) threats to white employees of loss of favorable
and disparate treatment if the Union should win.
The Board as the agency entrusted by Congress to protect the right
of employees to select their own bargaining agent can do no less than
ascertain all of the facts, not by the unsworn and self-serving state-
ments of the parties involved but by an appropriate hearing and the
taking of testimony under oath. Such investigation having for its
purpose the ascertainment of truth, becomes the more necessary under
the circumstances here involved because words otherwise plain and
innocuous in one setting may take on a vastly different meaning when
interpreted in the light of the background of their expression.
It should be borne in mind that this is not an adversary proceeding
under Section 10 of the Act, which must be conducted in accordance
with applicable court rules relating to pleadings, evidence, and civil
procedure. This is, rather, an administrative investigation which the
Board is required to make under Section 9 upon objections to conduct
affecting the results of an election. An inquiry into the validity of
such objections is not circumscribed by technical limitations devised
for narrowing issues in unfair labor practice complaints.
Our primary responsibility is to guarantee to all employees, upon
appropriate petition, a Board-conducted election completely free from
improper interference with their statutory right to make their own
untrammeled decision to choose or reject a collective-bargaining rep-
resentative. With this cardinal obligation in mind, a careful review
of the papers now before us reveals three incompletely developed
aspects of the situation surrounding this election which I believe, in
the proper exercise of the Board's investigatory function, it is incum-
bent upon us further to explore.
(1) Did the Employer promise the continuation of a discriminatory
advantage, or favored treatment to one class of employees over another
the same facts asserted in the original criticism of the Regional Director 's investigation
report. Originally, the Union said that Babcock promised if the Union lost, the existing
racial segregation practice would be retained. Now it tells us that the Regional Director
is in possession of employee affidavits quoting Babcock as saying "if the Union won,
colored people working in maintenance would get the job promotions instead of the white
people." There is no substantial difference between these two quotations, and I therefore
cannot agree that the appeals to racial prejudice were never in issue in this case before
the present motion was filed.
WESTINGHOUSE ELECTRIC CORPORATION 121
in return for votes against the Union? If it did, such conduct
obviously requires that the results of the election be set aside.
(2) Did the Employer, either directly or by innuendo, tell employees
that if the Union lost the election it would persist in its practices of
denying Negro employees the equality of opportunity of advancement
in employment enjoyed by white employees ? It had been my hope
that we, unanimously , would seek the answer to this question in order
that, if in the affirmative , we could then say whether or not this
Company's promise to discriminate in employment on the basis of
color in the event of the favorable outcome of an election , is reason
for setting aside such election.
(3) Did the Employer deliberately attempt to provoke and inflame
the employees to racial prejudice as a technique for clouding the
issue of the imminent election? In matters of this kind , where at
best reasonability has but a precarious foothold , broad, positive
assertions , such as appear in the Union 's supporting papers, come
easy. It may well be that the situation has been distorted . Only the
test of formal hearing and the safeguards incident to sworn testimony
and cross-examination can separate fact from emotional argument.
Yet, should it clearly appear that Babcock "inflamed the employees
to racial prejudice against the IUE," I feel we should not evade the
responsibility of deciding whether the resultant balloting reflected the
considered judgment of the workmen themselves.
Accordingly, I would grant the Union's motion for reconsideration,
set aside the earlier panel decision , and direct a hearing before a
Trial Examiner upon the objections to the election.
MEMBER MURDOCK , dissenting :
I join in Member Bean 's excellent dissenting opinion. In so doing
I should point out that I was not a member of the panel which issued
the Decision and Certification of Results of Election and that I am
now passing for the first time on the issue raised by the objections to
the election as a result of the referral of the Union 's motion for
reconsideration to the full Board. I would further note that page 2
of the Union 's exceptions to the Regional Director 's report on objec-
tions detail a specific threat of discharge by Plant Manager Babcock
and numerous instances of interrogation by named foremen which
fall within the Union's objections and which are not treated in the
Regional Director 's report except to the extent that he dismisses a
threat attributed to Foreman Lothian on one of these occasions, on
which there is a credibility issue, as isolated . I believe that a hearing
should encompass all interrogation and threats.