International Union of Electrical, Radio & Machine Workers, AFL-CIO, Local 806 v. National Labor Relations Board

434 F.2d 473
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 20, 1970
DocketNos. 22671, 22804
StatusPublished
Cited by1 cases

This text of 434 F.2d 473 (International Union of Electrical, Radio & Machine Workers, AFL-CIO, Local 806 v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
International Union of Electrical, Radio & Machine Workers, AFL-CIO, Local 806 v. National Labor Relations Board, 434 F.2d 473 (D.C. Cir. 1970).

Opinions

MacKINNON, Circuit Judge:

This is a consolidated appeal in two cases involving a Decision and Order of the National Labor Relations Board1 (hereinafter “Board”). This court has jurisdiction under 29 U.S.C. § 160(e) and (f).

In case No. 22671, the International Union of Electrical, Radio and Machine Workers, AFL-CIO, Local 806 (hereinafter “Union”) challenges (1) the Board’s finding that certain wage increases given to the employees near election time did not violate section 8(a) (1) of the National Labor Relations Act (hereinafter “Act”); and (2) the Board’s failure to grant certain remedies requested by the Union. SNC Manufacturing Company, Inc., a producer of transformers located in Oshkosh, Wisconsin, (hereinafter “Company” or “SNC”), is the real party in interest, and appears as intervenor.

Case No. 22804 is the cross-application by the Board for enforcement of its order. In this case, SNC is respondent and resists enforcement and challenges the finding of the Board that it was guilty of illegal acts near election time.

On July 1, 1967, a one year collective bargaining agreement between the Union and the Company expired upon the notice of termination given by the Union. At that time the Company challenged the Union’s majority status. On December 4, 1967, the Union petitioned the Board for an election. The parties entered into a Stipulation for Certification upon a Consent Election which stipulation was approved by the Board’s Regional Director on December 19, 1967. A secret ballot election was held on January 10, 1968, which the Union lost 69 to 64, with four ballots challenged and one was void.2 Union objections to the election were timely filed, and the Union later filed charges against the Company alleging that the Company had violated section 8 (a) (1) and (3) of the Act and that the employer interfered with, restrained and coerced employees in the exercise of the rights guaranteed in section 7 of the Act.3 Because the objections to the election and the charges of unfair labor practices were based on the same issues of fact, the unfair labor practices case and the representation ease were consolidated and the complaint was issued.4 After hearing the Trial Examiner issued his Decision and Recommended Order and thereafter the Board fully reviewed the Examiner’s findings.

The Board’s Decision and Order, modifying and adopting the Trial Examiner’s findings, consisted of directives to SNC Manufacturing Company, Inc., its offi[476]*476cers, agents, successors, and assigns, inter alia, to:

1. Cease and desist from:
(b) Maintaining or enforcing any rule which prohibits union solicitation on company property on the employees’ own time.
(c) Promulgating, publishing, or enforcing any Rule proscribing or prohibiting the distribution of Union literature in the plant or on Company property, to the extent such rule is applied to the non-worktime of the employees, or non-work areas of the plant.
(d) Threatening employees with disciplinary action for engaging in the distribution of Union literature during the non-worktime of employees, or in non-work areas of the plant.
2. Take the following affirmative action designed to effectuate the policies of the Act:
(a) Make whole Dawn Towns for any loss of pay she may have suffered by reason of Respondent’s discrimination against her, on January 9, 1968. * * *
(b) Preserve and make available to the Board * * * all payroll records * * *' necessary to analyze, compute and determine the amount of backpay to which Dawn Towns may be entitled under the terms of this Trial Examiner’s Decision.
(c) Post at its plant in Oshkosh, Wisconsin, copies of the notice * * marked “Appendix” * * * [to be] signed by Respondent’s representative, be posted by the Respondent and maintained by it for 60 consecutive days thereafter in conspicuous places, including each of Respondent’s bulletin boards. * * *
(d) Notify the Regional Director * * * in writing, within 20 days from the date of the receipt of this Trial Examiner’s Decision what steps the Respondent has taken to comply for [sic] the foregoing Recommended Order.
* * * FURTHER ORDERED that the election, held on January 10, 1968 * * * be, and it hereby is, set aside, and that case be remanded to the Regional Director * * * for the purpose of conducting a new election at such time as he deems circumstances permit free choice of a bargaining representative.'

The Union petitioned this court to review and enforce the Decision and Order of the Board and the Board has filed a cross-application for enforcement of its Order. The two cases were consolidated by order of this court.

Hereafter the issues are divided into three categories, to wit: I, those raised by the Union with respect to the Board’s findings in the unfair labor practices case; II, those raised by the Company regarding the unfair labor practices case; and III, those raised in regards to the representation case.

I

First, the Union challenges the Board’s finding that certain wage increases granted to the employees of the Company near the time of the election were not intended to influence the result of the January 10th election and hence did not violate section 8(a) (1) of the Act.5

On December 15, 1967, the Company granted approximately fifty of its employees (about one-third of the whole unit) unannounced wage increases for the pay period beginning November 26, ending December 9 and payable December 25th. The Union contends, and the Trial Examiner so found, that the wage [477]*477increases were intended to illegally influence the January 10 election. The Board, in its decision, rejected the Trial Examiner’s findings on the issue. It was uncontradicted that the Company’s decision to increase wages occurred three months prior to the filing of the Union’s petition for representation. There was also testimony to the effect that the wage increases in question were just one step in a general plan design to meet the new minimum wage requirements scheduled to go into effect in February of 1968, and, in accordance with past practice of the Company, to do so prior to the effective date of the revised act, so as to enable the Company to compete with the rest of the industry for qualified personnel ; and, maintain wage differentials among the employees. Although it is true that all but a few of the employees were already above the new minimum wage requirement when the raises were given, it is not unreasonable to assume, as the Board did, that one objective of a valid scheme might be completely achieved before the others. We find it significant that the payment period in question was the fourth step in a five step plan.6 It is of further significance that the Company informed the Union of their intention to pay the wage increase at a labor-management meeting two days prior to December 15 and the Union representatives did not object.

The facts upon which the Board made its decision are open to conflicting inferences.

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434 F.2d 473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-union-of-electrical-radio-machine-workers-afl-cio-local-cadc-1970.