# Petition for Writ of Certiorari — Wabash Transformer Corp. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1075%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 423 U.S. 827 ## Text 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 COIN IE isicinsscnsinsenisscedeinsiclehieihdohansineinaisalacianraadiimeaiiin l 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 = 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 — oe 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» a an 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 Ney Sees ae 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: — oe ae 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 — vn 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 — — on 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 s = 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. ) BEY Romig ot me eR seD, ee ne ae . FRET ERE LETC I ENE LE Ri ANTE SE NEON IEN tome Sane yg CAPPS STF 4 "? et a ie UN OPS nt ae. ae Sek oe Se % a OR a 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.