Petition for Writ of Certiorari — Wabash Transformer Corp. v. National Labor Relations Board

LIBRARY oo

SUPREME COURT, U, &

MICHATL Kuw

No. 74-1381 fiat

3n the

Supreme Court of the United States

Ocroser TERM, 1974

WABASH TRANSFORMER CORPORATION,

Petitioner,

Us.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Grorce W. MorHueNHoOF

Frank FE. Perers, Jr.

Attorneys for Petitioner

McDermott, Wit & Emery

111 West Monroe Street

Chicago, Illinois 60606

The Scheffer Press, Inc.—(312) 263-6850

INDEX

PAGE

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CI ive viniinnsitsnnsiciastntsernsinticintpiteaainciie, atiahiimimmntainoe 2

CMEROTNR FROORIIOE oc csssscssereerciencceenssrsersinnscenneventensnitiensinens 3

Statutory Provisions Involved .............cssecsccsssssesssesenses 2

eatennelt eS Ti CNG ci cacistitesiccseinvicnsnienntataions 4

Reasons for Granting the Wit ...............ccccssccessesteeeseeees 7

1. The Decision Below Conflicts with the Decision

of Other Courts of Appeal as to the Neutrality

and Impartiality Required of Agents of the

Board While Conducting Representation Elec-

OD icin nce cisensedeniasinnisnnctentnamnaetebinbebunnamuadelaanaabin 7

2. The Decision Below Conflicts with Prior De-

cisions of the Supreme Court of the United

States as to the Statutory Obligations of the

National Labor Relations Board in Conduct-

ing Representation Elections 2.0.0.0... 10

3. The Decision Below Raises Substantial and

Recurring Problems in the Administration of

the National Labor Relations Act ......... 12

4. The Decision Below Conflicts with Prior De-

cisions of the Supreme Court of the United

States as to the Consequences of a Union’s

Offer to Waive the Payment of Initiation

Fees and Dues Prior to an Election ................ 13

i 15

Appendix (Opinion and Judgment of Court of Ap-

peals, Decision and Certification of Representative

of the National Labor Relations Board, Decision

and Order of the National Labor Relations Board) .. la

il

PAGE

CITATIONS

CASES:

Athbro Precision Engineering Corp., 166 NLRB

BR ARTE RE Des lt ee ae Rear 8

National Labor Relations Board vy. Athbro Pre-

cision Engineering Corp... 423 F.2d 473° (1st

SE ME widens tduckartbbeneidida tadclelcducuctdicacacueieskin 7,8

National Labor Relations Board vy. Delta Drilling

Co., 406 F.2d 109 (5th Cir, 1969) wo. 7,8

National Labor Relations Board v. Dobbs Houses,

Inc., 435 F.2d 704 (5th Cir., 1970) oo... 7,8,9

National Labor Relations Board vy. Savair Mfg.

COs GEO TB BI CRIS) ivisessccsicccsenvesse 6,10, 11, 18, 14

National Labor Relations Board vy. A. J. Tower

Cig Se re I GRUPIIBD:. Sn essvess ccseccansccivsiicrsicanvcres 10, 11

Wald Sound, Inc., 208 NLRB No. 61 (1973)... 12

STATUTE:

National Labor Relations Act, as amended (61

Stat. 136, 73 Stat. 519, 29 U.S.C. 151, et seq.):

DN oo eslcknancdaen 2

EE Aa arate 2

pele aha iS a na nha aces Se oe 2

MISCELLANEOUS:

Williams, Janus and Huhn, NLRB Regulation of

Election Conduct, The Wharton School, In-

dustrial Research Unit, Report No. 8, Pages

UU IO i a a at cima atiian 12

* —

In Tue

SUPREME COURT OF THE UNITED STATES

Ocroner Term, 1974

No.

WABASH TRANSFORMER CORPORATION,

Petitioner,

Ds,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Wabash Transformer Corporation, by its attorneys,

George W. Moehlenhof and Frank EK. Peters, Jr., respect-

fully petitions for a writ of certiorari to review the judg-

ment and opinion of the United States Court of Appeals

for the Eighth Circuit entered in this proceeding on

March 4, 1975.

OPINIONS BELOW

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix. The Decision and Certification

of Representative of the National Labor Relations Board

is reported at 205 NLRB No. 38. The Decision and Order

of the Board is reported at 210 NLRB No. 68.

SPORE RE LT IE EME FT NS LIAL PTT A UST I LEIS Ge OR EET MR PIPES SE TREY Oy? BONAIRE GT TNO

Si rs

JURISDICTION

The judgment of the Court of Appeals for the EBighth

Cireuit was entered on March 4, 1975 and this petition

for certiorari was filed within 90 days of that date. This

Court's jurisdiction is invoked under 28 U.S.C. $1254(1)

and Section 10(e) of the National Labor Relations Act,

as amended, 29 U.S.C. 160(e).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the National Labor Rela-

tions Act, as amended (61 Stat. 136, 73 Stat. 519, 29

U.S.C. 151, ef seqg.), are as follows:

Section 8(a) Tt shall be an unfair labor practice for

an emplover—

(1) to interfere with, restrain, or coerce em-

ployees in the exercise of the rights guaranteed in

section 7;

. . . . .

(9) to refuse to bargain collectively with the rep-

resentatives of his employees, subject to the provi-

sions of section 9(a),

Section 9%(a) Representatives designated or se-

lected for the purposes of collective bargaining by

the majority of the employees in a unit appropriate

for such purposes, shall be the exclusive representa-

tives of all employees in such unit for the purposes

of collective bargaining in respect to rates of pay,

wages, hours of employment, or other conditions of

employment: * * *

. e + . .

(c)(1) Whenever a petition shall have been filed,

in aceordance with such regulations as may be pre-

scribed by the Board—

Ee TAME SE ER: A VEY SRS PPE RTE PT RTE ER EME ERA SOOT >On ae

—

(A) by an employee or group of employees or any

individual or labor organization acting in their behalf

alleging that a substantial number of employees (i)

wish to be represented for collective bargaining and

that their employer declines to recognize their repre-

sentative as the representative defined in- section

9a), e* ee

° . ° . «

the Board shall investigate such petition and if it

has reasonable cause to believe that a question of

representation affecting commerce exists shall provide

for an appropriate hearing upon due notice. * * * If

the Board finds upon the record of such hearing that

such a question of representation exists, it shall

direct an election by secret ballot and shall certify

the results thereof,

QUESTIONS PRESENTED

1. Whether the National Labor Relations Board has

discretion to determine that an election is valid where

its agent conducting the election engages in acts admittedly

violative of the Board's required neutrality and impar-

tiality?

2. Whether a union's offer made during an organiza-

tional campaign to waive the payment of initiation fees

and dues until the union has successfully negotiated a

contract with the employer destroys the laboratory con-

ditions necessary to the conduct of representation elec-

tions under the National Labor Relations Act?

PORES EOE TIN IIE ALL I BET AN MTOM VRE ITNT ARO AUN Sar Be TOOT CEN UR

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STATEMENT OF THE CASE

———

1. THE BOARD PROCEEDINGS

On February 28, 1973, the Communications Workers of

America (the “Union”) filed a petition for a representa-

tion election seeking to represent Petitioner’s employees

in its Farmington, Missouri plant.

On March 16, 1973, an election was conducted in a unit

of all production and maintenance employees employed

by Petitioner at its Farmington. Missouri plant. The tally

of ballots showed that 50 ballots .,.2e cast for the Union,

43 were cast against the Union and 9 ballots were chal-

lenged.

Petitioner filed timely Objections to conduct affecting

the results of the election and to the conduct of the elec-

tion itself. In its Objections, Petitioner argued that (1)

the statement made by an agent of the National Labor

Relations Board (the “Board”) to the employees, on an-

nouncing the opening of the polls, that they were to “go

vote and elect a union representative” (emphasis supplied)

was a breach of the Board’s required neutrality in election

proceedings and required that a new election be con-

ducted, and (2) the Union’s offer, made prior to the

election, to waive the payment of initiation fees and dues

for employees who joined the Union, interferred with

the employees’ right to refrain from union activity.

On Apri! 25, 1973 the Regional Director issued his

Report on Challenged Ballots and Objections and Recom-

mendations wherein he recommended that Petitioner’s

Objections be dismissed in their entirety. The Board,

Chairman Miller dissenting, adopted the Regional Direc-

tor’s recommendations and on July 31 certified the re-

REMAN SNe Re TITMAE MAN «

many pa

sults of the March 16 election. 205 NLRB No. 38 Chair-

man Miller dissented from the majority opinion stating

that the Board agent’s conduct in announcing the open-

ing of the polls was a breach of the Board’s standards

of neutrality. With respect to the Board’s statutory re-

sponsibility in representation cases, Chairman Miller con-

cluded that:

“. . where a representative of this Board, even

unwittingly, fails to preserve not only the fact of

our neutrality, but also the appearance of neutrality,

we must rerun the election.” 205 NLRB No. 38

Thereafter Petitioner refused to bargain with the Union

based upon its assertion that the election was invalid

and that the subsequent certification was improper. lol-

lowing a hearing before an Administrative Law Judge,

the Board affirmed the Judge’s conclusion that Petitioner’s

refusal to bargain violated the National Labor Relations

Act (the “Act”) and ordered Petitioner to bargain with

the Union. 210 NLRB No. 68

Il. THE DECISION OF THE COURT OF APPEALS

The Court below granted enforcement of the Board’s

Order. Although the Board had concluded that the ques-

tioned statement was violative of the Board’s standard

of neutrality, the Court below held that the Board may

disregard its own lack of neutrality where, in its discre-

tion, it determines that an election was valid despite the

conceded misconduct of its agent. The decision below

permits the Board discretion to determine that an elec-

tion is valid notwithstanding the overt partiality of the

Board agent’s conduct during the election.

i ec cede coe Ra ee A MC ea

a va

With respect to the Union’s offer to waive the payment

of initiation fees and dues until after the election, the

Court below construed this Court’s decision in N.L.R.B.

v. Savair Mfg. Co., 414 U.S. 270 (1973) as permitting a

union to secure endorsements by waiving the payment of

initiation fees and dues provided that the waiver is

temporary and is made available to all employees. See

pp. 4a and 5a in Appendix.

on pew

REASONS FO. NTING THE WRIT

1. THE DECISION BELOW CONFLICTS WITH THE

DECISION OF OTHER COURTS OF APPEAL AS

TO THE NEUTRALITY AND IMPARTIALITY

REQUIRED OF AGENTS OF THE BOARD WHILE

CONDUCTING REPRESENTATION ELECTIONS.

The decision below, that the Board may disregard neu-

trality standards where, in its discretion, it determines

that an election is valid despite the conceded partiality

of its agent, conflicts with the decision of the Court of

Appeals for the Ist Circuit in V.L.R.B. v. Athbro Precision

Engineering Corp., 423 F.2d 573 (1st Cir., 1970) and the

decisions of the Court of Appeals for the 5th Circuit in

Delta Drilling Co. v. N.L.R.B., 406 F.2d 109 (5th Cir., 1969)

and N.L.R.B. v. Dobbs Houses, Inc., 435 F.2d 704 (5th

Cir., 1970).

In the present case, the Board acknowledged that the

statement by its agent on announcing the opening of the

polls that “the polls are open and you may now go vote

and elect a union representative” was a violation of the

Board’s standard of neutrality. See page 12a in Appendix.

Notwithstanding this fact, the Board upheld the election.

Statea simply, the decision of the Board concedes the par-

tiality of its agent’s conduct during the election process

but excuses this breach of procedure as inconsequential.

The 8th Circuit enforced the Board’s Order holding, in

effect, that the Board has discretion to decide whether

or not it will be bound by its statutory obligation of neu-

trality. See p. 3a in Appendix.

In enforcing the Board’s Order, the Court below ignored

the decisions of the Court of Appeals for the 1st Circuit

in N.L.R.B. vy. Athbro Precision Engineering Corp., supra,

iT ak

ORES Merrett anette Mc REPT ONE ON PEE Bo a ee PE

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and the decision of the Court of Appeals for the 5th Cir-

cuit in N.L.R.B. v. Delta Drilling Co., supra, and N.L.R.B,

v. Dobbs Houses, Inc., supra. In Athbro, the 1st Circuit,

although enforcing the Board’s Order on procedural

grounds, held that the commission of an act by an agent

of the Board while conducting an election which “could

reasonably be interpreted as impuguing” the Board’s

neutrality, requires that election is to be set aside.’ 423

F.2dat 575

The Court of Appeals for the 5th Circuit has also con-

sidered the question of the Board’s neutrality in repre-

sentation elections. In Delta Drilling Co., supra, the 5th

Circuit considered the conduct of a Board agent who

was seen visiting a union representative in a hotel room

between polling periods. The Court concluded that this

breach of the Board’s neutrality by the agent conducting

the election was a violation of Board policy, “which the

employer was entitled to have obeyed, inviolate, free of

so much as the appearance of evil”. 406 F.2d at 114

‘In Athbro Precision Engineering Corp., 166 NLRB

966 (1967), the Board formulated the rules that it would

follow in reviewing the conduct of its agents in represen-

tation elections. The Board formulated its rule as follows:

“The Board in conducting representation elections

must maintain and protect the integrity and neu-

trality of its procedures. The commission of an act

by a Board Agent conducting an election which tends

to destroy confidence in the Board’s election process,

or which could reasonably be interpreted as impugning

the election standards which we seek to maintain, is

a suflicient basis for setting aside that election.”

In commenting on the appropriateness of this rule, the

Ist Cirenit noted that the Board’s decision was the cor-

rect one and that “the rerunning of an occasional election

is a small price to pay for the preservation of public

respect”. 423 F.2d at 575

PLY ERE EP ODER AIRED SAGER Tho PNT EE? ee Ae»

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In N.L.R.B. v. Dobbs Houses, Inc., supra, the 5th Cir-

cuit again considered the conduct of Board agents in rep-

resentation elections.’ In this case, the 5th Circuit cited

with approval the Athbro principle, stating that conduct-

ing during an election “inconsistent with the Board’s

agent’s required impartiality” requires that the election

be set aside. 423 F.2d at 705

The law is well settled in the 1st and 5th Circuits that

where agents of the National Labor Relations Board

have, by their own conduct, failed to preserve the Board’s

neutrality in the election process, the Board may not

thereafter certify the results of that same election. The

decision below cannot be reconciled by distinguishing

these decisions factually because the Board admits that

its agent’s statement abridged its neutrality. The only

question before the Sth Cireuit was whether or not the

Board abused its discretion by thereafter issuing a cer-

tification of the election in spite of the admitted partiality

of its agent.

Petitioner respectfully submits that the Sth Circuit

Court of Appeals is erroneous and that the proper stan-

dard of review is to be found in the decisions of the Ist

and 5th Circuits. It is true that Congress has granted

the Board a wide range of discretion in conducting rep-

resentation elections under the Act. However, Congress

has not granted the Board discretion to determine whether

or not it shall remain neutral and impartial in conducting

> In N.L.R.B. v. Dobbs Houses, Inc., supra, the Board

agent conducting the election was found to have replied

to a question advanced by the employer’s observer to the

effect that the Board agent felt that the Union would

benefit the employees. In enforcing the Board’s Order,

the Court held that an employer will not be permitted to

challenge the Board’s neutrality through the act of the

employer’s own agent.

DSL EEA I WT PRI LE BI RIO AE EE MEE IRE MTT LAPD LEVINE Y PTR IAP NTT

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representation elections. Where the Board has deviated

from the standard of absolute and complete neutrality,

it has breached its statutory obligation, violated its Con-

gressional mandate and its actions no longer are entitled

to judicial sanction.

2. THE DECISION BELOW CONFLICTS WITH

PRIOR DECISIONS OF THE SUPREME COURT

OF THE UNITED STATES AS TO THE STATU-

TORY OBLIGATIONS OF THE NATIONAL LA-

BOR RELATIONS BOARD IN CONDUCTING

REPRESENTATION ELECTIONS.

The decision below accords the National Labor Rela-

tions Board discretion to determine whether or not it is

required to remain neutral in representation elections and

conflicts with the decisions of this Court in N.L.R.B. v.

A. J. Tower Co., 329 U.S. 324 (1946) and N.L.R.B.

v. Savair Mfg. Co., 414 U.S. 270 (1973).

In V.L.R.B. v. A. J. Tower, supra, this Court considered

the scope of the Board’s discretion in conducting repre-

sentation elections under the National Labor Relations

Act. In Tower, this Court held that Congress has granted

the Board a wide degree of discretion but that the exer-

cise of that discretion in establishing representation elec-

tion procedures must guarantee “. . . the fair and free

choice of bargaining representative by employees”. 329

U.S. 330

More recently, in N.L.R.B. v. Savair Mfg. Co., supra,

this Court again considered the scope of the Board’s dis-

cretion in conducting elections under Section 9(c)(1) (A)

of the Act. Citing its prior decision in Tower, this Court

in Savair reaffirmed its position that the responsibility

of the Board in conducting representation elections is to

establish procedures and safeguards which “insure the

fair and free choice of bargaining representatives by em-

PPA aa Soe ey FEET MAG SLY ALOR A MEER SINT REM NT OEM DIAN oe RETA PR TON eM ANN AY PE Ta ON FYI a CT ese:

—

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ployees.” 414 U.S. 270, 276; citing N.L.R.B. v. A. J.

Tower Co., 329 U.S. 324, 330.

In Savair, the Court was called upon to review the

Board’s policy of permitting unions to waive the pay-

ment of initiation fees during union organization cam-

paigns. The Board argued before this Court that Con-

gress entrusted the regulation of such matters to the

Board and that the Board’s policy of permitting the

waiver of initiation fees was a matter for the Board’s

discretion. The Court properly rejected this argument

because the policy of the Board failed to guarantee to

all employees, those opposed to unionization as well as

those in favor of unionization, the opportunity to cast a

free and uncoerced ballot. Addressing itself to the

Board’s discretion in establishing policies pursuant to

9(c)(1)(A) of the Act, this Court concluded that inherent

in the principles of 9(c)(1)(A) is the proposition that the

right of free choice must always be present in representa-

tion elections. As to the Board’s discretion in such matters,

this Court held that

“The Board in its supervision of union elections may

not sanction procedures that cast their weight for

the choice of a wnion and against a non-union shop

or for a non-union shop and against a union.” 414

U.S. 270, 280 (Emphasis supplied)

The Board agent’s direction to employees to “elect a

union representative” which was sanctioned by the Board

is grammatically equivalent to the italicized description

of procedures prohibited by this Court in Savaw. The

decision below would permit the Board discretion to deter-

mine whether or not it will remain neutral in representa-

tion elections. As this Court has pointed out in Tower

and Savair, the Board’s discretion does not include dis-

Po Rates peeNtQey ieee PORTE OES

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eretion to sanction procedures which favor one of the

choices in a representation election. Clearly then, as here,

the Board may not certify elections wherein the conduct

of its agents is admittedly less than completely neutral

and totally impartial for such conduct is incompatible

with.a free and fair choice of bargaining representative

by employees. ; :

3. THE DECISION BELOW RAISES SUBSTANTIAL

AND RECURRING PROBLEMS IN THE ADMIN-

ISTRATION OF THE NATIONAL LABOR RELA-

TIONS ACT.

The Court of Appeal’s decision will permit the 9,000

Labor Board elections conducted annually to be handled

in a manner which the Board concedes is improper,

which will compromise the Board’s image of neutrality,

and which will destroy public confidence in the integrity

of the Board’s procedures and in certifications of repre-

sentatives issued pursuant thereto.

The Board’s conduct of representation elections is one

of the most controversial procedures performed by the

United States Government. Through these elections, the

control of an employee’s livelihood is delegated to a

third party—against his will if he votes with the minority.

*See Wald Sound, Inc., 2083 NLRB No. 61 (1973), where-

in Member Kennedy argued, in dissent, that “when

unions and employers invest substantial time, effort, and

money in an organizational campaign, it is incumbent

upon the Board to conduct an election in a manner which

inspires confidence in the impartiality and competence of

the Board and its agents. There is no function or mission

of this agency of greater importance than running fair

elections”. See also, Williams, Janus and Huhn, NLRB

Regulation of Election Conduct, The Wharton School,

aoe Research Unit, Report No. 8, Pages 355-362,

(1974).

ERIE ater ANIA G YING: PERL DEH REDS TO EA rE Ae SEPT ROY 5 9 Re FRI IL I PGE EN IS

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The rule followed by the 8th Circuit in this case is more

than detrimental to parties in this and other representa-

tion proceedings. The rule followed by the 8th Circuit

seriously questions the continued ability of the National

Labor Relations Board to administer the national labor

policy. The importance of the Board's neutrality cannot

be understimated for it is public confidence in the im-

partiality of the Board and its agents that justifies the

Board’s existence.

The public cannot be assumed to have confidence in and

respect for the decisions of this agency conducting rep-

resentation proceedings without the guarantee of neu-

trality. The effect of the Board’s decision is to remove

an obligation of neutrality in the conduct of representa-

tion proceedings and to replace it with a quantum of

discretion to be arbitrary. Should the Court’s decision

be allowed to survive as precedent, employers and em-

ployees alike will be asked to accept as the primary

government agency responsible for policing their rela-

tionships, an institution in which neither will have con-

fidence. |

4. THE DECISION BELOW CONFLICTS WITH

PRIOR DECISIONS OF THE SUPREME COURT

OF THE UNITED STATES AS TO THE CONSE-

QUENCES OF A UNION’S OFFER TO WAIVE

THE PAYMENT OF INITIATION FEES AND

DUES PRIOR TO AN ELECTION.

The decision below interprets this Court’s decision in

N.L.R.B. v. Savair Mfg. Co., supra, as permitting a union

to waive the payment of initiation fees and dues where that

waiver is temporary and made availabe to all employees.

See pp. 4a, 5a in Appendix. Petitioner submits that the

decision of the 8th Circuit Court of Appeals is an un-

warranted narrowing of this Court’s decision in Savair

HPF LE EES ENS ALICE a IEE IL

et Wa

wherein this Court held that the pre-election waiver of

initiation fees interferes with the employees’ right to

refrain from union activity and is contrary to the right

of a fair and free choice of bargaining representatives by

employees inherent in Section 9 of the Act. N.L.R.B. v.

Savair Mfg. Co., 414 U.S. 270 at 275-281.

The 8th Cireuit and the Board have interpreted this

Court’s decision in Savair as prohibiting a union’s waiver

of the payment of initiation fees only where the waiver

is limited to employees who sign authorization cards prior

to the election. The Board concluded that since the waiver

in the present case was theoretically available to all

employees until such time as the union successfully

negotiated a contract with the employer, the rights of

employees to refrain from union activity were not thereby

affected. Petitioner respectfully submits that the Board

has improperly narrowed the Court’s decision in Savair

to suit its own purposes. Whether or not the waiver re-

mains open following an election is immaterial in assessing

the effect of that waiver when it is made prior to the

election. Thus, in the present case, the waiver of initiation

fees was coercive because it was made prior to the election

to induce employees to sign authorization cards. Here, as

in Savair, the Union was able to secure endorsements on

its behalf and then to pyramid these endorsements when

later seeking out those less convinced of the advantages

of unionization. Petitioner respectfully submits that this

is precisely the activity which this Court intended to

prohibit by its Savair decision.

= oe

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the 8th Circuit.

Respectfully submitted,

McDermott, Witt & Emery

GrorceE W. MorEHLENHOF

Frank E. Peters, Jr.

Attorneys for

Wabash Transformer Corporation

McDermott, Witt & Emery

111 West Monroe Street

Chicago, Illinois 60603

Telephone: (312) 372-2000

— |

APPENDIX

Unitep States Court or APPEALS

For The Eighth Circuit

No. 74-1446

NationaL Lasor ReE.aTiIons )

Boarp,

Petitioner, | On Application for Enforce-

ment of an Order of The

National Labor Relations

WasasH TRANSFORMER Cor- Board.

PORATION,

Respondent. |

Submitted: December 11, 1974.

Filed: February 3, 1975.

Before Lay and Brient, Cireuit Judges; and TaLsor SmirH,

Senior District Judge.*

Vv.

Brieut, Circuit Judge.

The National Labor Relations Board (Board) petitions

for enforcement of its order issued against Wabash Trans-

former Corporation (Employer) of Farmington, Missouri,

directing the Employer to bargain with the Communica-

tions Workers of America (Union) pursuant to 29 U.S.C.

§158(a)(5). The Employer, refusing to bargain, claims

that the representation election was conducted in an unfair

manner and that the subsequent certification of the Union

by the Board was therefore invalid. We grant the order

of enforcement.

Pursuant to a petition filed by the Union, a representa-

tion election was held for all production and maintenance

* TaLsor Smith, Senior District Judge, Eastern District

of Michigan, sitting by designation.

LE EULER ELST TTT Ts LT TTY BONE LEE EE GORE IE IL IE HE ELLE: TTS

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workers at the Employer’s Farmington, Missouri, plant on

March 16, 1973. The Union won the election on a 50-43

vote and, after timely objections were filed by the Employ-

er, a three-member panel of the Board validated the elec-

tion and certified the Union as the exclusive bargaining

agent for the workers at the Farmington plant. The Em-

ployer’s refusal to bargain generated this unfair labor

practice proceeding. The Board, on April 30, 1974, ruled

that the Employer had violated §§8(a)(5) and (1) of the

Act [29 U.S.C. §§158(a)(5) and (1)], and ordered it to

bargain with the Union.? The instant appeal followed.

The Employer objects to the conduct of the representa-

tion election on two grounds. First, it claims that the

Board’s agent conducting the election breached the Board’s

obligation of neutrality by announcing the opening of the

notls over the Employer’s loudspeaker system in the fol-

lowing manner:

The Polls are open and you may now go vote and

elect a union representative.’

Second, the Employer contends that the promise of the

Union to waive the payment of initiation fees and dues

until after the election and until the Union had negotiated

a collective bargaining agreement with the Employer vio-

lated the recent Supreme Court decision of NLRB v.

Savair Mfg. Co., 414 U.S. 270 (1973).

1.

In upholding the election, the Board acknowledged that

its agent, in announcing the election over the loudspeaker,

!' This decision is reported as Wabash Transformer Cor-

poration, 205 NLRB 38 (1973) (Chairman Miller dissent-

ing).

? This decision is reported at 210 NLRB 68 (1974) (Chair-

man Miller dissenting).

*The parties are in some disagreement over the exact

phrasing of the agent’s statement. We accept the above-

quoted version as offered by the Employer.

)

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should have explicitly stated that an employee could vote

against as well as for a Union representative. However,

the Board majority declined to adopt the view that the

agent’s statement was per se violative of the Board’s

standards of neutrality. The Board concluded that the

circumstances surrounding the statement established that

the integrity of the election process was not so impaired

as to warrant the ordering of a new election. We agree.

The announcement was made at approximately 6:30

A.M., immediately prior to the early morning opening of

the polls, to accommodate three workers who were com-

pleting their night shift.« About 20 other employees were

in the plant waiting for the morning shift to begin and

may have heard the announcement. The same announce-

ment, however, was not repeated when the polls reopened

at 2:30 P.M. to receive votes from the workers on the

morning and afternoon shifts. More importantly, the Di-

rector of Manufacturing for the Employer, who was

present ‘in the plant when the statement was made at

6:30 A.M., voiced no objection to the announcement. No

evidence indicates that any employee was misled by the

announcement and no claim is made that the Board’s

agents conducting the election favored the Union over

the Employer.

The Supreme Court has observed, “Congress granted

the Board a wide discretion to ensure the fair and free

choice of bargaining representatives.” NLRB v. Wyman-

Gordon Co., 394 U.S. 759, 767 (1969). See NLRB v. A.J.

Tower Co., 329 U.S. 324, 330 (1946); NLRB v. Waterman

S.S. Co., 309 U.S. 206, 226 (1940). Under the circum-

stances here, the ruling that the questioned statement

did not breach the neutrality of the election procedures

fell within the Board’s discretionary powers.

*The Employer operates three shifts—11:00 P. M. to

7:00 A. M., 7:00 A. M. to 3:30 P.M., and 3:30 to 11:00 P. M.

The polling sessions were from 6:30 to 7:00 A.M. and from

2:30 to 5:00 P. M.

ERIER EINES CAE AED IWR I Be LCE EMH RN ot WP REP a Sak NR Ree APY PRP ECO oN RE 2 ELEN ELT LALIT IL MAORI

II.

The Employer also contends that the Union’s waiver

_

of dues and initiation fees until after negotiation of a

bargaining agreement’ enabled the Union, in effect, to

“buy” members before the election and portray a false

picture of its employee support in violation of the rule

laid down in NLRB vy. Savair Mfg. Co., 414 U.S. 270

(1973). In Savair, the Court found that a union’s offer

to waive initiation fees for those workers signing union

authorization cards before the certification election con-

stituted an unfair labor practice. The Court reasoned:

Whatever his true intentions, an employee who

signs a recognition slip prior to an election is indi-

eating to other workers that he supports the union.

His outward manifestation of support must often

serve as a useful campaign tool in the union’s hands

to convince other employees to vote for the union,

if only because many employees respect their co-

workers’ views on the unionization issue. By per-

mitting the union to offer to waive an _ initiation

fee for those employees signing a recognition slip

prior to the election, the Board allows the union

to buy endorsements and paint a false portrait of

employee support during its election campaign. [Jd.

at 277.]

The Board reads Suvair as precluding waivers of fees

only when they are offered to employees as an induce-

*The Union distributed a leaflet on March 12, 1973,

PRPS Meo eae

reading in relevant part:

Dues $5.50! Yes, your dues will be $5.50 — AFTER

WE HAVE SUCCESSFULLY BARGAINED A

CONTRACT WITH THE WABASH TRANSFORM-

ER CORPORATION — NOT A CENT BEFORE

WE REACH AN AGREEMENT! This is a reason-

able premium to insure better wages, fringe benefits

and working conditions, plus a strong voice to review

your grievances with the Company.

Be Vath Nia! ees ok ahh es mE a

cae al Ns Ne a Ret a a meee oe

a oes

ment for pre-election support. The Board contends that

the coercive effects of the practice condemned in Savair

are absent in the instant case. We agree. The temporary

waiver of dues for all employees does not have the effect

of encouraging employees to make a false show of sup-

port for the Union in order to gain relief from certain

fees. Indeed, a union’s promise of temporary waiver of

dues for all potential union members may serve to

counteract an oft-used management argument that unions

require workers to pay dues without guaranteeing the

receipt of any tangible benefits.* Here, the Union assured

the workers, whether Union supporters or not, that the

Union demanded no dues until it successfully obtained

a contract from the Employer. Such campaign tactics

are not proscribed by Savair. The majority opinion in

Savair notes the following:

The Board argues that unions have a valid interest

in waiving the initiation fee when the union has not

yet been chosen as a bargaining representative, be-

cause “‘[e]mployees otherwise sympathetie to the

union might well have heen reluctant to pay out

money before the union had done anything for them.

Waiver of the [initiation fees] would remove this

artificial obstacle to their endorsement of the union.’ ”

* * * While this union interest is legitimate, the

*A leaflet, dated February 16, 1973, prepared by the

Company for distribution to employees, reads in part:

Now lets discuss union dues: On this subject the

union organizer does give you some facts. He says

you are going to have to pay $6.50 per month for

men; $6.00 per month for women. That’s more than

$10,000 a year he’s going to extract from vour collec-

tive pockets. No wonder he’s interested in organizing

this plant.

In addition, the envelopes with the workers’ paychecks

on March 9, 1973, contained the following message:

IF YOU BELONGED TO THE CWA TODAY THIS

PAY CHECK WOULD BE SHORT $5.50 FOR THIS

MONTH’S UNION DUES — THINK ABOUT IT!!!

. - t. PRIDE PLEAD Gg oe

ee ER RENTED PIII I I TERS ITER IE OER RENE SI! SOG LE EIRENE INT LONE LEER EN PGT EDS -

= yo

Board’s argument ignores the fact that this interest

can be preserved as well by waiver of initiation fees

available not only to those who have signed up with

the union before an election but also to those who

join after the election. The limitation imposed by

the Union in this case—to those joining before the

election—is necessary only because it serves the addi-

tional purpose of affecting the Union organizational

campaign and the election. [414 U.S. at 274 n.4.]

See NLRB vy. Stone & Thomas, 502 F.2d 957 (4th Cir.

1974).

Accordingly, we direct that the Board’s order be en-

forced.

axe FQ a

Unirep States Court Or Appra.s

* * (Caption — No. 74-1446) * *

JUDGMENT

Before: Lay and Bricur, Circuit Judges; and Ta.sort

Situ, Senior District Judge.*

This Cause came on to be heard upon the application

of the National Labor Relations Board for the enforce-

ment of a certain order issued by it against the Respon-

dent, Wabash Transformer Corporation, Subsidiary of

Wabash Magnetics, Inc., its officers, agents, successors

and assigns, on April 30, 1974. The Court heard argument

of respective counsel on December 11, 1974, and has

considered the briefs and transcript of record filed in

this cause. On February 3, 1975, the Court being fully

advised in the premises, handed down its decision granting

enforcement of the Board’s order.

On Consideration Whereof, it is hereby ordered and

adjudged by the United States Court of Appeals for the

Eighth Circuit that the said Order of the National Labor

Relations Board in said proceedings be enforced and

that Wabash Transformer Corporation, Subsidiary of

Wabash Magnetics, Inc., its Officers, agents, successors

and assigns, abide by and perform the directions of the

Board in said order contained.

Dated: March 4, 1975

ORDER

Respondent, Wabash Transformer Corp., a subsidiary

of Wabash Magnetics, Inc., its officers. agents, successors

and assigns shall:

1. Cease and desist from refusing to bargain, upon

request, with Communications Workers of America, AFL-

CIO, as the exclusive bargaining representative of the

employees in the following appropriate unit:

All production and maintenance employees employed

at Respondent’s Farmington, Missouri, facility, in-

* Talbot Smith, Senior District Judge, Eastern District

of Michigan, sitting by designation.

SRA NEU AR < ety te entre R ONE ert one Reese semgdos 917

gall te

cluding the leadgirls, but excluding office clerical and

professional employees, guards and supervisors as

defined in the Act.

29. Take the following affirmative action which is

deemed necessary to effectuate the policies of the Act:

(a) Upon request, bargain collectively with the Union

as the exclusive representative of all employees in the

appropriate unit described above, and if an understanding

is reached, upon request, embody such understanding in a

signed agreement.

(b) Post at its Farmington, Missouri plant, copies

of the attached notice marked “Appendix.”’ Copies of said

notice of forms provided by the Regional Director for

Region 14, after being duly signed by Respondent’s repre-

sentative, shall be posted by it immediately upon receipt

thereof, and he maintained by it for 60 consecutive days

thereafter, in conspicuous places, including all places

where notices to its employees are customarily posted.

Reasonable steps shall be taken by Respondent to ensure

that said notices are not altered, defaced, or covered by

any other material.

(ec) Notify the Regional Director for Region 14, in

writing, within 20 days from the receipt of this Decision,

what steps Respondent has taken to comply herewith.

Dated at Washington, D.C., February 11, 1974.

/s/ Fannie M. Boyls

Fannie M. Boyls

Administrative Law Judge

*In the event that the Board’s Order is enforced by a

Judgment of a United States Court of Appeals, the words

in the notice reading “POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD” shall be

changed to read “POSTED PURSUANT TO A JUDG-

MENT OF THE UNITED STATES COURT OF AP-

PEALS ENFORCING AN ORDER OF THE NATION-

AL LABOR RELATIONS BOARD.”

SRE LS SOT EE pee f Pe

RES E P OTE e PEN ERE SO YD ET i LOR RORTeSe.

— 9a —

APPENDIX

NOTICE TO

EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

AN AGENCY OF THE

UNITED STATES GOVERNMENT

WE WILL, upon request, bargain collectively with COM-

MUNICATIONS WORKERS OF AMERICA, AFL-CIO,

as the exclusive bargaining representative of our em-

ployees in the following appropriate unit:

All production and maintenance employees employed

at our Farmington, Missouri, facility, including the

leadgirls, but excluding office clerical and professional

employees, guards and supervisors as defined in the

National Labor Relations Act.

Also, upon request, WIZ WILL embody any understanding

reached in a signed agreement.

WABASH TRANSFORMER CORP.,

Subsidiary of Wabash Magnetics, Inc.

(imployer)

TOPCO ROOM ee HEE EOE EOE EE OEE EOEEOE SEER EE EEE ESSE EE EEE EEEEEES

(Representative) (‘Title )

THIS IS AN OFFICIAL NOTICE AND

MUST NOT BE DEFACED BY ANYONE

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. Any questions concern-

ing this notice or compliance with its provisions may be

directed to the Board’s Office, 210 North 12th Boulevard,

Rm 448, St. Louis, Missouri 63101

(Tel No. 314 - 622-4167).

— 10a —

Unitep States oF AMERICA

Before The National Labor Relations Board

Wabash Transformer Corporation

Employer

and

Communications Workers of America, AFL—CIO

Petitioner

Case 14—RC—-7260

DECISION AND CERTIFICATION

OF REPRESENTATIVE

Pursuant to a Stipulation for Certification Upon Con-

sent Election, an election by secret ballot was conducted

under the supervision of the Regional Director for Region

14 among the employees in the appropriate unit on March

16, 1973. At the conclusion of the election the parties were

furnished a tally of ballots which showed that of ap-

proximately 109 eligible voters, 102 cast valid ballots,

of which 50 were for, and 43 were against, the Petitioner.

Nine ballots were challenged, which were sufficient in

number to affect the results of the election. On March

23, the Employer filed objections to the election.

In accordance with the National Labor Relations Board’s

Rules and Regulations, Series 8, as amended, the Regional

Director conducted an investigation of the issues raised

by the challenges and objections and on April 25, issued

and served on the parties his Report on Challenged Bal-

lots and Objections attached hereto in pertinent part. In

his report, the Regional Director recommended that the

challenges to the ballots of Linda Lindsey, Dana Smith,

Terry Thomas, and Lucinda Sander be sustained, and that

the remaining challenges not be considered on their merits

as the results of the election were conclusive. The Re-

gional Director further recommended that the Employer’s

objections be overruled in their entirety and a certifica-

tion of representative issued. Thereafter, the Employer

filed exceptions limited to the Regional Director’s dis-

LEE LOR RITE OS eRe.

ee

— lla —

position of the objections and Petitioner filed an answer-

ing letter.

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.

Upon the entire record in this case, the Board finds:

1. The Employer is engaged in commerce within the

meaning of the Act and it will effectuate the purposes of

the Act to assert jurisdiction herein.

2. The Petitioner is a labor organization claiming to

represent certain employees of the Employer.

3. <A question affecting commerce exists concerning the

representation of the employees of the Employer within

the meaning of. Section 9(c)(1) and Section 2(6) and (7)

of the Act.

4. The following employees, as stipulated by the par-

ties, constitute a unit appropriate for the purposes of

collective bargaining within the meaning of Section 9(b)

of the Act:

All production and maintenance employees employed

at the Employer’s Farmington, Missouri facility, in-

cluding the lead girls, but excluding office clerical

and professional employees, guards, and supervisors

as defined in the Act.

». The Board has considered the Regional Director's

report, the Employer’s exceptions thereto, the Petitioner’s

answering letter, and the entire record in this case, and

hereby adopts the Regional Director’s findings’ conclu-

sions,” and recommendations.

‘In the absence of exceptions, we adopt pro-forma the

Regional Director’s disposition of the challenged ballots.

*The Kmployer’s exceptions, in our opinion, raise no

material or substantial issues of fact or law which would

warrant reversal of the Regional Director’s recommenda-

tions.

— 12a —

6. Contrary to our dissenting colleague, we cannot

agree that the mere statement of the Board agent that

the polls were open and the employees could, if they

desired, “now vote for your union representative” is a

sufficient basis to set aside this election. Obviously, a

Board election is an election to select a union representa-

tive. While the Board agent may have and should have

made explicit what was implicit in the announcement, i.e.,

that the right to vote for the union necessarily carried

with it the right to vote against the union, we do not be-

lieve that the agent’s statement was per se so violative

of the Board’s standards of neutrality or so prejudicial

to the employees’ right to cast a negative vote that a

new election must be directed.

Accordingly, as the tally shows that the Petitioner has

obtained a majority of the valid ballots cast, we shall

certify it as the exclusive bargaining representative of

the employees in the appropriate unit.

CERTIFICATION OF REPRESENTAATIVE

It is hereby certified that a majority of the valid ballots

have been cast for Communications Workers of America,

AFL—CIO, and that pursuant to Section 9(a) of the

National Labor Relations Act, as amended, the said

labor organization is the exclusive representative of all

the employees in the unit found appropriate herein for the

purposes of collective bargaining with respect to rates

of pay, wages, hours of employment, and other conditions

of employment.

Dated, Washington, D.C.

John H. Fanning, Member

John A. Penello, Member

National Labor Relations Board

(Seal)

ae

~~

Chairman Miter, dissenting:

Contrary to my colleagues, I would sustain the Em-

ployer’s objection that the wording of the Board agent’s

preelection announcement to the prospective voters

violated the Board’s standards of complete and unques-

tionable neutrality in its election processes.

The essential facts as found by the Regional Director

are not in dispute. At the preelection conference the

parties agreed that one of the Board agents conducting

the election would notify the employees by means of an

announcement over the plant intercom system that the

polls were open and that the employees could proceed to

the voting area. After inspecting the polling areas, the

Board agent announced the opening of the polls over the

intercom in the following manner, according to her version:

“Good morning. I am... of the National Labor Relations

Board. You may now vote for your union representative.

The polls are open, you may vote if you want to. You

do not have to vote if you do not want to.” No other

qualifying statements were made and the emplovees im-

mediately proceeded to the voting areas to cast their bal-

lots.

It is undisputed that the Board agent identified herself

as a representative of this Board and then proceeded to

announce the opening of the polls in a manner which sub-

stantially departed from our official instructions to voters.

My colleagues are willing to excuse this particular devia-

tion since in their opinion the Board’s preelection notices

and the Employer’s campaign literature distributed to

employees adequately neutralized any prejudicial effect

* Although the Employer’s witness’ statement is some-

what different, it is of the same tenor and effect: “The

polls are now open and you may now go vote and elect

a union representative.” To the extent the version offered

by the Employer’s witness is more questionable, we must

of course, in the absence of a hearing to resolve credibility,

accept that version.

—)

the Board agent’s statement may have on the prospective

voters. I am unwilling to so speculate, and am of the view

that where a representative of this Board, even unwit-

tingly, fails to preserve not only the fact of our neutrality,

but also the appearance of neutrality, we must rerun the

election.*

In view of the foregoing, | would set aside the election

and direct a second election.

Dated, Washington, D.C.

Edward B. Miller, Chairman

National Labor Relations Board

‘Athbro Precision Engineering Corp., 166 NLRB 966,

cited with approval in N.L.R.B. v. Athbro Precision En-

gineering Corp., 423 F. 2d 573 (C.A. 1); Delta Drilling

Company v. N.L.R.B., 406 F.2d 112 (C.A. 5). Cf Cummer-

Graham Company, 73 NLRB 603, 609, 610.

ations

Unitep States or AMERICA

Before The National Labor Relations Board

Wabash Transformer Corporation,

Subsidiary of Wabash Magnetics, Inc.

and

Communications Workers of America, AFL—CIO

Cases 14—CA—7420—1

14—CA—7420—2

14—CA—7548

DECISION AND ORDER

On February 11, 1974, Administrative Law Judge

Fannie M. Boyles issued the attached Decision in this pro-

ceeding.’ Thereafter, Respondent filed exceptions and a

supporting brief and request for oral argument.?

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 Administrative Law Judge’s rulings,

findings, and conclusions as modified herein and to adopt

her recommended Order.

* As set forth in the attached Decision, the Administra-

tive Law Judge issued the said Decision disposing solely

of the alleged violation of Sec. 8(a)(5) insofar as it is

based on the Respondent’s refusal to honor the certifica-

tion and bargain with the Union. She retained the re-

maining aspects of the case for disposition in a supple-

mental decision to be issued at a later date.

* Respondent's request for oral argument is hereby

denied as, in our opinion, the record in this case, including

the exceptions and brief, adequately presents the issues

and positions of the parties.

EPR ILO GED ELE GOO LIE I AIO SON IE ADDO LS EISEN ISS GG | LL AALS SIS FID FMS LOL LE LAI EIT MLE

— l6a —

In the underlying Representation proceeding,’ the Board

considered the Regional Director’s report and adopted

the Director’s findings, conclusions, and recommendations.

In said report, he found, inter alia, that the Employer’s

Objection 2 did not warrant setting the election aside. In

that objection the Employer asserted that: “During the

period preceding the election, the Petitioner has offered

economic rewards to employees for engaging in union

activity.” The Employer specifically alleged that the Peti-

tioner waived the payment of its monthly membership

dues for the purpose of inducing employees to vote for

it in the election.

As described in the Regional Director’s report on ob-

jections in that case, the Union distributed a leaflet on

March 12, 1973, which stated in material part:

Dues $5.50! Yes, your dues will be $5.50—AFTER

WE HAVE SUCCESSFULLY BARGAINED A

CONTRACT WITH THE WABASH TRANSFORM-

ER CORPORATION—NOT A CENT BEFORE WE

REACH AN AGREEMENT! This is a reasonable

premium to insure better wages, fringe benefits and

working conditions, plus a strong voice to review your

grievances with the Company.

In addition the Director’s report states that the Union

acknowledged that during organization campaigns its es-

tablished procedure has been to inform employees they

will not be required to pay membership dues until it has

successfully bargained a contract with the employer, and

that, pursuant to that practice, the Union’s administrative

assistant, Crawley, in response to an employee’s question,

said that employees would not be required to pay dues

or fees until after the Union had been certified and obtained

a collective-bargaining agreement with the Employer. The

Director concluded that the investigation failed to estab-

lish other than that during the relevant period the Union

deferred the payment of initiation fees and dues until after

* Wabash Transformer Corporation, 205 NLRB No. 38,

Chairman Miller dissenting.

RISES RRO UO CHa Lee ETRE oS Mrioronree etait

a ee

is

— 17a —

certification and a collective-bargaining agreement had

been reached. In support of his conclusion that the con-

duct did not interfere with the election, he cited DIT-

MCO, Incorporated, 163 NLRB 1019, 1022, and EFCO

Corporation, 185 NLRB 220. The Administrative Law

Judge, in her decision in the instant proceeding, found

that since the Board had in the representation proceeding

overruled all objections to the election, she was without

authority to make an independent determination. Ac-

cordingly, she concluded that the election was valid, the

Union was properly certified, and the Respondent’s refusal

to bargain was in violation of the Act.

Respondent admits that it refused to bargain in order

to test the Board’s certification of the Union. In its

exceptions to the Administrative Law Judge’s Decision,

Respondent does not dispute the facts as found by the

Regional Director and summarized above, but contends

that the Board should now find that the Union’s waiver

of the initiation fees and dues interfered with the elect-

tion, relying on the U.S. Supreme Court opinion in

N.L.R.B. vy. Savair Manufacturing Company, ....... US.

siesta , 94 S.Ct. 495 (Dee. 17, 1973). Respondent argues

that the Supreme Court refused to enforce a Board bar-

gaining order therein under similar factual circumstances

because the underlying certification was invalid, and that

the Board should dismiss the instant 8(a)(5) charges.

We do not agree with Respondent that the factual situa-

tion of this case and Savair are the same.

In Savatir, the Supreme Court observed that a union

could preserve its legitimate interest by the “waiver of

initiation fees available not only to those who have signed

up with the union before an election but also to those

who join after the election.”* Here, unlike Savair, there

was not a waiver limited to those who signed a card for

the Union before the election. Rather, in the case before

us, the “waiver” extended to all employees, as no em-

ployee, whether or not he gave preelection support to the

‘Fn. 4 of Savair, supra.

BLL TRE ELLE LI ARNOT OTR OIL OATES TAIT NETL AIT

“ANS

abe

Union, was required to pay initiation fees or dues until

after the Union was certified and had a contract with the

‘mployer. We find, therefore, that this was not an im-

proper waiver under the holding of Savair and it did not

interfere with the election.’ Accordingly, we agree with

the Administrative Law Judge that the Respondent vio-

lated Section 8(a)(5) in refusing to reeognize and bar-

gain with the certified Union.*

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations

Board adopts as its Order the reeommended Order of

the Administrative Law Judge, and hereby orders that

Respondent, Wabash Transformer Corporation, Sub-

sidiary of Wabash Magneties, Inc., Farmington, Mis-

souri, its officers, agents, suceessors, and assigns, shall

take the action set forth in the aid reeommended Order.

Dated, Washington, D.C., April 30, 1974.

Ndward B. Miller, Chairman

John H. Fanning, Member

John A. Penello, Member

National Labor Relations Board

(Seal)

*Irwindate Division, Lau Industries, A Division of

Phillips Industries, Inc., 10 NLRB No. 42.

‘Chairman Miller coneurs in his colleagues’ disposi-

tion of the Savatr issue, but dissents from the finding of

an S(a)(5) violation. For the reasons set forth in his

dissent in the underlying representation case, he is of

the view that this certification was improvidently issued

and that the election should, instead, have been set aside.

TIERED LEIS OT ELE CLIT RI ONT OLE BIO NY 08 ARN SR a Aas

faa aR el a ne ee, ee