Insulfab Plastics, Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1985

274 N.L.R.B. 817 (N.L.R.B. 1985)

INSULFAB PLASTICS 817
Insulfab Plastics , Inc., New England Division and
International Union of Electronic , Electrical,
Technical , Salaried, and Machine Workers,
AFL-CIO-CLC and Independent Workers of
Insulfab Plastics , Inc., New England Division,
a/w IUE. Cases 1-CA-21327 and 1-CA-21531
11 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 5 April 1984 Administrative Law Judge
Walter H. Maloney Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Insulfab
Plastics Inc., New England Division, Watertown,
Massachusetts, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
DECISION
STATEMENT OF THE CASE
WALTER H MALONEY, JR., Administrative Law
Judge This case came on for hearing before me at
Boston, Massachusetts, upon a consolidated unfair labor
practice complaint, i issued by the Regional Director of
the Board's Region 1, which alleges that Respondent In-
sulfab Plastics, Inc, New England Division,2 violated
I The principal docket entries in this consolidated case are as follows
Charge in Case 1-CA-21327 filed against Respondent by International
Union of Electronic, Electrical, Technical, Salaried, and Machine Work-
ers, AFL-CIO-CLC (IUE) on August 30, 1983, amended charge filed in
Case 1-CA-21327, against Respondent by IUE on September 30, 1983,
complaint issued by Acting Director for Region 1, on October 21, 1983,
Respondent's answer filed on November 1, 1983, charge filed in Case I-
CA-21531, against Respondent by IUE on November 2, 1983, consolidat-
ed complaint and order consolidating Cases 1-CA-21327 and 1-CA-
21531 on December 16, 1983, the Respondent's answer to consolidated
complaint filed on December 30, 1983, hearing held in Boston, Massachu-
setts, on February 8 and 9, 1984
2 The Respondent admits, and I find, that it is a New Jersey corpora-
tion which maintains its principal office and place of business in Water-
town, Massachusetts, where it is engaged in the manufacture, sale, and
distribution of plastic goods and related products In the course and con-
duct of its business, the Respondent annually purchases and receives di-
rectly from points and places located outside the Commonwealth of Mas-
sachusetts plastic raw materials and/or equipment valued in excess of
$50,000, and sells and ships from its Watertown. Massachusetts plant di-
rectly to points and places located outside the Commonwealth of Massa-
chusetts goods and products valued in excess of $50,000 Accordingly,
the Respondent is an employer engaged in commerce within the meaning
of Sec 2(2), (6), and (7) of the Act The IUE and the Independent Work-
Section 8(a)(I) and (5) of the Act. More particularly, the
consolidated complaint alleges' that the Respondent
wrongfully refused to recognize and bargain with the In-
dependent after it affiliated with the IUE as the repre-
sentative of its production and maintenance employees,
and that the Respondent wrongfully refused a request of
the Independent, as affiliated with the IUE, to supply it
with information concerning rates of pay, wages, hours,
and conditions of employment of bargaining unit em-
ployees The Respondent admits its refusal to bargain
with the newly affiliated Independent and its refusal to
supply requested information but asserts that it had no
obligation to do so because the Independent, which it
had recognized and with which it had bargained for
many years, had, on August 17, 1983, improperly voted
to affiliate with the IUE. Upon these contentions the
issues herein were joined.3
FINDINGS OF FACT
A. The Unfair Labor Practices Alleged
For many years the Respondent has operated a small
plastics manufacturing plant in Watertown , Massachu-
setts, a suburb of Boston . For over 25 years it has main-
tained a collective -bargaining relationship with the Inde-
pendent Workers of Insulfab Plastics , Inc., New England
Division , an in-house union which had no members and
represented no employees other than at the Respondent's
Watertown factory. The most recent agreement between
these parties was concluded effective November 10,
1980, for a term extending until November 13, 1983, and
thereafter from year to year unless one party should give
60 days' notice of a desire to terminate upon expiration
This agreement also provided for an annual renegotiation
of wages during its term, but it contained no exception in
its no-strike clause covering such interim negotiations.
The bargaining unit described in the contract stated that
the contract "applies only to all production and mainte-
nance employees of the Company at its 69 Grove Street,
Watertown , Massachusetts , plant, excluding office cleri-
cal employees , professional employees , guards and super-
visors as defined in the Act." There is no suggestion in
the record that the Independent was ever certified pursu-
ant to a Board election. In the last half of 1983, when the
events in this case occurred, there were 32 persons em-
ployed in this unit, all of whom were members of the In-
dependent'
Late in 1982 and early in 1983, both the members and
the officers of the Independent became dissatisfied with
their ability to achieve desired wage increases from the
Respondent during the 1982 negotiations . They were
also unhappy because of the asserted refusal by the Re-
ers of Insulfab Plastics, inc , New England Division (the Independent),
whether or not affiliated with the IUE, are, respectively, labor organiza-
tions within the meaning of certain errors in Sec 2(5) of the Act
2 Certain errors in the transcript are noted and corrected
a The contract contains a 60-day union-security clause and a provision
for dues payments by checkoff All 32 unit employees were on checkoff
during the events at issue herein Independent President Joseph F Flana-
gan stated in his testimony that the contract had no union-security clause
He was simply in error and possibly did not even understand what was
meant by a union-security clause
274 NLRB No. 126
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to pay three employees their contractual wage
rates Late in 1982 and again in early 1983, Independent
President Flanagan , an employee in the Respondent's
saw department, contacted Vincent J Campbell, the
IUE's director of organization for the New England
area , with a view toward affiliating the Independent with
the IUE. Campbell suggested to Flanagan that if the In-
dependent membership wanted to affiliate , it should call
a meeting in June for the purpose of conducting a vote
on this question . Later in the spring, Flanagan and
Campbell agreed to postpone any vote until August.
The Independent normally holds its meetings at the
Armenian Hall in Watertown , a building located not far
from the plant . It has also met occasionally at the plant.
Meetings are infrequent but, when they are held, they
normally take place at 3:45 p m. on a working day so
that employees can attend on their way home from the
plant .5 Flanagan posted a notice on the Independent bul-
letin board at the plant notifying the membership of a
meeting at the hall scheduled for August 9 at 3:45 p.m.e
This meeting was held as advertised and was attended by
about 20 members. Campbell and Tony Angelo, an IUE
International representative , were present as invited
guests. After they were introduced by Flanagan, Camp-
bell spoke briefly concerning the mechanics of affiliation.
He explained that , in the event of affiliation , the current
membership would remain the bargaining unit and sug-
gested that one of the benefits of affiliation was that the
IUE could add some strength to their negotiating pos-
ture and could also supply some expertise in conducting
negotiations . He said that union dues would eventually
increase over a period of years by $2 or $3 a month
above what Independent members were currently
paying . The extra money would be spent resolving union
problems and paying for arbitrations arising under the
contract . One member in attendance , Mario Donato,
asked Campbell if the Company could retaliate against its
employees if they voted to affiliate, either by closing the
plant or by firing employees. Campbell assured him that
there were laws against such activity. When Campbell
finished speaking , those in attendance voted to call a
meeting at the same place and time on August 17 for the
purpose of taking a vote on affiliation.
A day or so later , Flanagan posted a notice on the In-
dependent bulletin board which was partially printed in
bold black letters and partially typed . It read.
UNION MEETING NOTICE
At the union meeting held on August 9, 1983, and
at the recommendation of the Executive Committee,
the membership in attendance voted unanimously to
recommend an affiliation vote with an international
union.
The vote to affiliate will take place at a special
membership meeting
5 There is normally only one shift at this plant It works from 7 am
until 3 30 p in
c The Independent is allowed to maintain a bulletin board at the plant
for the posting of notices pertaining to union business It is located a few
feet from the Company ' s bulletin board , adjacent to the timeclock, and
not far from the coffee machine
SPECIAL MEMBERSHIP MEETING
DATE: August 17, 1983
TIME- 3:45 p.m.
PLACE: Armenian Hall, Bigelow Street, Wa-
tertown, Ma.
/s/ Joseph Flangan
President
Copies of this notice were mailed to all members . Copies
were also handed to all employees by Flanagan at the
plant as they passed by him at the timeclock.7
The meeting was held as announced and 28 of the In-
dependent's 32 members attended . Another came in
toward the end of the meeting and announced his vote at
that time .8 Flanagan presided at the meeting and began
by introducing Campbell and Angelo. Campbell spoke
briefly and repeated , in general , the remarks which he
had made at the August 9 meeting . He explained the me-
chanics of an affiliation vote and outlined some of the
benefits of affiliating with the IUE. He mentioned the
fact that the IUE had a pension department , a legal de-
partment , and departments devoted to research , publici-
ty, and education , and indicated that these facilities
would be available to the Independent in the event of af-
filiation . He noted that the Independent would continue
to have the same meetings and the same officers and that
the IUE would come in, if requested , to assist in bargain-
ing and in the processing of grievances . He stated that
the IUE did not come into negotiations automatically.
He fielded questions as to whether the dues would go up
and whether there would be any retaliation by the Com-
pany if the employees voted to affiliate , giving the same
answers to these questions that he gave at the August 9
meeting . He also stated that the membership retained the
final decision on striking , since the IUE could not order
them to strike if they did not want to do so. At this
point , both Campbell and Angelo were asked to leave
the room while the membership continued a private dis-
cussion of the affiliation question . They did so, Campbell
telling the assembled employees to take whatever time
they needed to come to a conclusion.
A discussion of the membership ensued , followed by a
vote. Flanagan first asked for a showing of hands of
those who favored affiliation . Nineteen voted in the af-
firmative . Before a negative vote was called , Donato
made a motion that a secret ballot vote be conducted
and his motion carried . Flanagan then distributed paper
and pencils to each member for the purpose of conduct-
ing such an election . The paper was blank and each
member wrote on the paper a "yes" favoring affiliation
or a "no" opposing it. The votes were then placed in a
hat and counted in view of the members by Wally
Olwood and Pat Goluzian , who were appointed by
7 The copy posted on the bulletin board was temporarily removed
over the weekend by Flanagan at the request of Patrick J Nicolazzo, the
Respondent 's general manager, who explained to him that he would
prefer that the notice not appear while certain visitors from New Jersey
were visiting the plant After the visitors left, the notice was reposted
8 In his testimony Flanagan accounted for the absence of the other
three members One was sick, one was on vacation , and a third simply
refused to attend
INSULFAB PLASTICS
Flanagan for this purpose. The tally was 19 yes votes, 8
no votes, and 1 blank.9 Flanagan and another member,
Clark, recounted the votes and came to the same result.
Flanagan asked if everyone was satisfied with the voting
procedure. No one voiced any objection.
Campbell and Angelo were called back into the room
and were informed of the result. Campbell thanked the
members for their vote of confidence in the IUE and
suggested that it would be a good idea to send the Com-
pany a message by making the vote unanimous . An oral
motion to that effect was made but there was one dis-
sent.
Following the election, Flanagan sent a letter, dated
August 18, to Nicolazzo informing him of the results of
the election. The letter read:
Please be advised that the membership of the In-
dependent Workers Union representing the employ-
ees at Insulfab, Watertown, MA, voted overwhelm-
ingly at a special called membership meeting on
August 17, 1983, to affiliate with the IUE-AFL-
CIO.
They will be our bargaining agent and work with
us on all matters concerning wages, hours, and con-
ditions of employment.
Your full cooperation will be appreciated by all
concerned.
On August 23, 1983, Nicolazzo replied as follows:
This is in reply to your letter of August 18, 1983.
We do not believe that the IUE-AFL-CIO rep-
resents a majority of our employees in any proper
group. Accordingly, we decline to recognize the
IUE-AFL-CIO unless and until it is certified as
such by the National Labor Relations Board.
On this date , Campbell wrote to Nicolazzo as follows:
This is a follow -up to the letter you received,
dated August 18, 1983 , from Joseph Flanagan,
President of the Independent Workers Union repre-
senting Insulfab employees, Watertown , Massachu-
setts.
As you are aware, the membership voted over-
whelmingly to affiliate with the IUE-AFL-CIO on
August 17, 1983.
In order that the IUE-AFL-CIO may properly
service the existing contract and prepare for the up-
coming negotiations for a new contract , I hereby
request that you furnish us with the following rele-
vant and necessary information:
(1) With respect to all represented employees:
a. Names and address of employees.
b. The job classification and rate of pay of
each employee.
c. The seniority date of each employee.
9 At some point in time after the paper balloting took place , a member
named Eric came in the door and announced publicly that he was voting
in favor of affiliation He did not cast a paper ballot
819
d. The sex , race, and date of birth of each em-
ployee.
(2) A copy of all benefit plans covering such em-
ployees, including , but not limited to, any and all
group health insurance , medical insurance , hospitali-
zation , life insurance , pension plans , profit sharing,
and stock bonus plans.
(3) A complete list of all fringe benefits which
the represented employees now receive and the cost
to the company of each of these benefits, specifying
those benefits , if any, to which the employee con-
tributes.
For your convenience , I can be reached at the
above listed telephone number.
The letter was signed by Vincent J. Campbell , director
of organization , IUE New England District Council
Two, AFL-CIO.
On August 26, Nicolazzo replied to Campbell as fol-
lows:
This is in reply to your letter of August 23, 1983.
We do not believe that your union represents a
majority of our employees in any proper group. Ac-
cordingly, we decline to recognize your union
unless and until it is certified as such by the Nation-
al Labor Relations Board.
In view of the above it seems your other requests
are premature.
Campbell's response to this letter was to file the first of
two charges in this consolidated case.
Despite the pendency of the charge, correspondence
between the parties to this case continued unabated. On
September 8, Campbell wrote another letter to Nicolazzo
which stated:
This letter will serve as notice that IUE, the duly
elected bargaining agent representing your employ-
ees at Insulfab, Watertown, MA, intends to modify-
terminate the existing collective bargaining agree-
ment which expires on November 13, 1983.
Please inform us at your earliest convenience as
to when and where you propose to meet for the
purpose of negotiations on modifications of a new
contract.
As is provided in the present agreement, this
letter of notice has been served timely
Campbell went on to repeat the request contained in his
August 23 letter for information concerning names and
wages of bargaining unit personnel and benefits currently
accorded to them by the Respondent.
On September 16, Nicolazzo replied with a letter
which was almost identical to the one he sent to Camp-
bell on August 26:
This is in reply to your letter of September 8,
1983.
As we have told you in our letter of August 26,
1983, we do not believe your union is the duly
elected bargaining agent and representative of a ma-
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prity of our employees in any proper group Ac-
cordingly, we decline to recognize and meet with
your union unless and until it is certified as such by
the National Labor Relations Board
In ' view of the above, it seems your other re-
quests are premature.
On -September 23, Flanagan tried his hand at commu-
nicating with the Respondent by sending a "Dear Pat"
letter to Nicolazzo• which began:
I get the impression from the NLRB agent inves-
tigating the'charges in Case No. 1-CA-21,327 that
you and the Company are concerned about the con-
tinuity of representation of the employees of Insul-
fab, Watertown, Massachusetts.
Please be advised that I as President and the
other duly elected officers of the Independent
Union will continue to serve our-members by serv-
icing our present contract and preparing for the up-
coming, negotiations for a new contract. ,
As I attempted to explain in a recent letter to
you, the membership had voted to affiliate with the
IUE_AFL-CIO - and they will assist us to service
the membership.
The letter went on to request the same information
which Campbell had requested in his August 23 and Sep-
tember 8' letters: '
Nicolazzo's reply to Flanagan was mailed on October
4. It read:
We are in receipt of your letter dated September
21, 1983, and find it somewhat ambiguous.
You state in your letter that "I as President and
the other duly elected officers of the Independent
Union will continue to serve our, employees by
.servicing our present contract and preparing for the
upcoming negotiations for a new contract,".and you
request certain personal information about our em-
ployees. .
However, in your recent letter of August 18,
1983,, you state that the IUE-AFL-CIO will be the
bargaining agent. Also on August 23, 1983, we re-
ceived a letter from Vincent J. Campbell of the
IUE-AFL-CIO, saying the same things and re-
questing personal information about our employees.
Along with this, on August 30, 1983, Vincent J.
Campbell filed a,ULF [sic] charge in behalf of the
IUE-AFL-CIO with the NLRB against the Com-
pany, in which he stated that the Company refused
to recognize the IUE-AFL-CIO as the bargaining
agent for the Company's employees.
Very obviously, there is confusion and conflict as
to who is actually the-duly elected'bargaining agent
of a majority of the Company's employees in an ap-
propriate unit. The Company's position remains the
same as stated in its letter to you of August 23,
1983, and its letters to Vincent J Campbell dated
August 26 and September 16, 1983.
It is extremely important that you realize that
you have failed to - give notice to the Insulfab Plas-
tics, Inc., Independent Workers Union's desire to a
"change or termination", in writing to the Company
at least sixty (60) days prior to November 13, 1983,
which is the expiration date of the existing agree-
ment, a question now arises as to whether or not
the existing agreement can be opened by the Inde-
pendent Workers Union at this late date.
On November 1, Flanagan wrote another letter to Ni-
colazzo in which he renewed the request for information
previously sought and stated in writing:
I will again try to clear up your misconception of
the representation of the Insulfab employees at the
Watertown, Massachusetts, location.
As I had explained before, the membership had
voted to affiliate with the IUE-AFL-CIO and they
will assist us to service the membership.
In your October 4, 1983, letter to me you errone-
ously stated that I failed to give the proper sixty
(60) day notice for a change or termination in writ-
ing to the'Company regarding our present contract.
I had requested Vincent J. Campbell to do this on
behalf of the newly affiliated Independent Union
members of Insulfab which he did timely, on Sep-
tember 8, 1983.
He further requested on my behalf certain infor-
mation necessary ' to service the existing contract
and prepare for upcoming negotiations.
I again requested the 'same necessary information
on September 23, 1983 without any response from
you.
Again for the third time, I am requesting that
you furnish us immediately the following relevant
information to assist us to service the membership
and prepare for negotiations.
Nicolazzo's reply, the last of several pieces of corre-
spondence introduced into evidence , states the following-
Your letter of November 1, 1983, mis-states the
facts.
As pointed out in my letter of October 4, 1983,
you stated in your letter of August 18, 1983, that
the IUE-AFL-CIO will be the bargaining agent.
You did not say the Independent or the Independent
a/w IUE-AFL-CIO will be the bargaining agent.
Also, as pointed out in my letter of October 4, 1983,
we received a letter from Vincent J. Campbell of
the IUE-AFL-CIO on August 23, 1983, saying the
same things and requesting for the IUE-AFL-CIO
personal information about our employees. He did
not say you had requested him to do this. Along
with this , on August 30, 1983, as we pointed out in
our letters of October 4, 1983, Vincent J . Campbell
filed a ULP charge in behalf of the IUE-AFL-CIO
with the NLRB against the Company in which he
stated that the Company refused to recognize the
IUE-AFL-CIO as the bargaining agent of the
Company's employees.
Very obviously, as we pointed out in our letter
of October 4, 1983, there is confusion and conflict
as to who is actually the duly elected bargaining
INSULFAB PLASTICS
agent of a majority of the Company's employees in
an appropriate unit. As pointed out in our October
4, 1983, letter, the Company's position remains the
same as stated in its letter of August 23, 1983 to you
and its letters to Vincent J. Campbell dated August
26 and September 16, 1983.
Your attempt to circumvent the sixty (60) day
contractual opening clause of the present contract
by stating you had requested Vincent J. Campbell
on September 8, 1983, to give notice is an attempt
to close the barn door after the horse is out. There
is nothing in Campbell's letter of that date stating
that you had requested him to do so.
Your further statement that Mr. Campbell re-
quested on your behalf certain information neces-
sary to service the existing contract and prepare for
upcoming negotiations is likewise an attempt to
close the barn door after the horse is out. There is
nothing in that September 8, 1983, letter of Mr.
Campbell's stating that you had requested him to
make this request; nor is there anything in that Sep-
tember 8, 1983, letter of Mr. Campbell 's stating that
the information was requested "in order to service
the existing contract. It stated that the information
was requested in order that the IUE-AFL-CIO
11may properly prepare for negotiations .. . .
Likewise, as to your statement in your letter of
November 1, 1983, that you again requested the
same necessary information on September 23, 1983,
without any response from me. In your letter of
September 23, 1983, you did not request the infor-
mation to service the existing contract but merely
requested the information in order to prepare for
the upcoming negotiations.
In view of the fact as pointed out to you in my
letter of October 4, 1983, that you have failed to
give notice of the Insulfab Plastics, Inc. Independ-
ent Workers Union's desire for a "change or termi-
nation" in writing to the Company at least sixty (60)
days prior to November 13, 1983, which is the expi-
ration date of the existing Agreement, a question
now arises as to whether or not the existing Agree-
ment can be opened by the Independent Workers
Union at this late date.
B. Analysis and Conclusions
1. Burden of proof
The Respondent's defense in this case is that it has no
duty to bargain with the affiliated Independent nor fur-
nish it with information normally deemed relevant to a
union 's bargaining obligation because the vote conducted
by the Independent on August 17, 1983, to affiliate with
the IUE was somehow defective and the Independent,
affiliated with the IUE, is not the same labor organiza-
tion as the one with which it had been bargaining for 25
years. Throughout the hearing in this case, the question
arose as to whose burden it was to establish the regulari-
ty or irregularity of the affiliation election. I conclude
that the burden of establishing the irregularity of this
election falls squarely upon the Respondent since it is the
Respondent who is relying upon such irregularity to
821
avoid a bargaining obligation that it would otherwise be
required to fulfill. Any other approach to this question
would necessarily mean that the Board attaches a pre-
sumption of irregularity to every affiliation election by
placing the burden upon the General Counsel to show
why such an election was properly conducted whenever
a respondent makes a naked assertion to the contrary. A
presumption of irregularity has no basis in fact, law, or
normal judicial or administrative practice, and flies in the
face of the standard rule that the burden of establishing
an affirmative defense falls upon the one asserting it. In
NLRB v. Pearl Bookbinding Co., 517 F.2d 1108 (1st Cir.
1975),10 wherein an affiliation election was challenged
by a respondent who refused to bargain with a newly af-
filiated union, the First Circuit stated, in sustaining the
Board,
More significantly, the company has failed to show
that the successor union is substantially different-
other than in name and affiliation-from the prior
union . [Id. at 1111.)
I take this language to be an explicit affirmation of the
normal practice of placing upon the party claiming irreg-
ularity or dissimilarity of bargaining agents the affirma-
tive obligation of supporting its claim.
2. The Board 's posture in inquiring into affiliation
elections
Had the Independent in this case requested the Re-
gional Director to dispatch a field examiner to the Arme-
nian Hall on August 17, 1983, for the purpose of con-
ducting the affiliation election, the Regional Director
would properly have declined the request. Such matters
are normally regarded as internal union affairs and Con-
gress has conferred no authority upon the Board to con-
duct such elections or to regulate them in any way. i i
Whenever the Board or the courts have undertaken to
inquire into the regularity of such elections, they have
done so by authority acquired only through bootstrap-
ping. One such opportunity for jurisdictional self-en-
largement has been found in the power of the Board to
amend certifications of labor organizations which have
10 In Pearl Bookinding, supra , the First Circuit upheld the Board 's find-
ing that an affiliation election was valid in the face of a challenge, leveled
by the same attorney representing the Respondent in this case , that the
affiliated union was somehow a different organization after it voted to af-
filiate than it was before the vote was taken
i i To my knowledge, Congress has conferred no authority upon any
other governmental agency to conduct or to regulate affiliation elections
Had it wished to assign this task to the Board, it could easily have done
so Title IV of the Landrum-Griffin Act grants certain authority to the
Secretary of Labor (but not the Board ) to investigate complaints by
union members concerning the regularity of elections of union officers
and votes increasing "the rates of dues and initiation fees payable by
members of any labor organization in effect on September 14, 1959, "the
effective date of the Landrum -Griffin amendments 29 U.S.C § 41l(a)(3).
However, this case does not involve voting for union officers or an in-
crease in dues in effect on September 14, 1959 The failure of Congress to
regulate, or to authorize the regulation , of union affiliation elections
should , under normal rules of statutory interpretation , be taken as a clear
indication on its part that such activity is being left to the private sector,
not to government regulation It is not for the Board or the courts to
assign this function to the Board when Congress has declined to do so
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been initially certified pursuant to a representation elec-
tion conducted under the provisions of Section 9 of the
Act.12 No such certification was ever issued to the Inde-
pendent in this case, and no amendment thereto has been
requested or is indeed possible. Another vehicle for in-
quiry has been the invocation of "due process," a phrase
not found in the Act and nowhere defined by statute in
its relation to the conduct of affiliation elections. Bear
Archery, 223 NLRB 1169 (1976); Gasland Inc, 239
NLRB 611 (1978). In invoking "due process" to justify
asserting jurisdiction over the affiliation elections, the
Board has been sensitive to the fact that it is skating on
thin statutory ice. The application of this doctrine to af-
filiation elections has been halting, marked with internal
differences, and subject to sharp reversals in attitude.
See, for example, Amoco Production Co., 220 NLRB 861
(1975), affd. 239 NLRB 1195 (1979), reversed 262 NLRB
1240 (1982). The Board's latest position on this topic is
set forth in F W. Woolworth Co, 268 NLRB 805 (1984),
and May Department Stores Co., 268 NLRB 979 (1984).
These are cases in which the Board has held that, in in-
ternal union merger or affiliation elections, eligibility to
vote must be extended to nonmembers of the merging or
affiliating unions as well as to members of the unions if
they are employed in the same bargaining unit. In light
of this fluid and unclear state of the law, it would be in-
trepid indeed to venture into other areas of inquiry not
clearly marked out and I decline to do so.
3 Exclusion of nonmembers from voting
The one area of affiliation election law clearly defined
to date by rule of decision involves the rights of non-
members to vote in affiliation elections. Unlike the situa-
tion found in Amoco, a case relied upon heavily by this
Respondent, at Insulfab all unit members were also union
members and dues-paying members under the union-se-
curity and checkoff provisions of their contract. i 3 A
notice advertising a membership meeting was, under the
facts of this case, to the entire bargaining unit 14 A vote
conducted here among the union membership was also a
vote conducted among the entirety of the bargaining
unit.
Seeking to come under the umbrella of Amoco and
now Woolworth and May Department Stores, the Re-
spondent argues that the election held on August 17,
1983, was invalid because two part-time employees, jani-
tor John Sahagian and screening room employee Char-
lotte Aislanian, did not vote and were not allowed to
vote. I conclude that they were not members of the bar-
gaining unit and were hence ineligible to vote The unit
description contained in the contract is silent as to their
12 See, for example, Peco, Inc, 204 NLRB 1036 (1973), Hamilton Tool
Co., 190 NLRB 571 (1971), East Dayton Tool & Die Co, 190 NLRB 577
(1971), News-Press Publishing Co, 145 NLRB 803 (1964)
11 Amoco arose in Texas, a right-to-work state, where unit membership
and union membership are often quite different. In Massachusetts, union-
security clauses are valid and, in this case, a matter of contractual agree-
ment between the parties The whole setting in which Amoco was decid-
ed (and later re-decided) is absent here
14 It is clear from the record that one part-time employee was given
actual notice of the affiliation election meeting and there is every reason
to draw an inference from the record that the other part-timer was equal-
ly apprised
eligibility. It applies only "to all production and mainte-
nance employees of the Company at its 69 Grove Street
plant " This unit description was, as indicated previ-
ously, not the product of a Board certification but of
longstanding agreement between the parties Whether
the Board would or would not have included part-time
employees in the bargaining unit in a litigated representa-
tion case is not at issue here 15 The parties did not do so
and they were under no statutory obligation to do so If
bargaining history means anything, it means that defer-
ence should be given by the Board to the unbroken prac-
tice of these parties in excluding part-time employees
from the unit When, over a period of many years, the
Respondent did not bargain with respect to the wages of
part-timers, failed to accord them contractual vacations,
sick pay, or holiday pay, and failed to grant them con-
tractual seniority, it is in a poor position now to argue
that they are indeed unit employees when the sole effect
of such an argument is to frustrate the free and over-
whelming expression of employee sentiment which took
place at the affiliation election on August 17 Under the
facts of this case, it is probable that Sahagian and Mrs.
Aislanian would have been permitted to vote had they
sought to do so, but their failure even to attempt to vote
is just one more indication that they themselves did not
consider the election in question to be one in which they
had a legitimate interest. 16
4. Violations of due process in the conduct of the
affiliation election
The Respondent also seeks to nullify the results of the
affiliation election on the basis of asserted procedural
flaws. In its view, there was insufficient discussion of the
issues, the atmosphere was tense, the voters were denied
the right to vote by secret ballot, no voting list was used
to check on eligibility, there were not enough pencils
with which to mark the ballots, and the presiding officer
was either coercive or negligent (or both) in conducting
the meeting and in safeguarding the accuracy of the
count. In leveling this charge, the Respondent confuses
the National Labor Relations Act with Robert's Rules of
Order The latter sets out at least eight methods by
which an organization can properly vote on a motion
under accepted rules of parliamentary procedure-a
voice vote, a rising vote, a show of hands, a roll call, a
paper ballot, voting machines, proxy votes, and a mail
ballot.17 The latter says nothing about affiliation elec-
15 Sec 9(b) of the Act does not require the Board to direct an election
in the most appropriate bargaining unit It is sufficient that the unit
chosen be appropriate under the circumstances of the particular case
MPC Restaurant Corp v NLRB, 481 F 2d 75 (2d Cir 1973)
16 Sahagian and Mrs Aislanian did not even attempt to vote subject to
challenge, a procedure often used by the Board in representation elec-
tions to resolve unit placement disputes
'r Robert's Rules of Order (Newly Revised), Scott, Foresman, and
Company, 1981, pp 37, 38, 347, 348-355
In a section entitled "Methods of Voting," this universally recognized
handbook on parliamentary procedure provides
In practice, the method of taking a vote usually can be agreed
upon informally A member who believes that a secret vote
will give a truer expression of the assembly's will on a pending
motion can move that the vote on the motion be taken by ballot
This is exactly what occurred in this case
INSULFAB PLASTICS
tions and the Board's Rules and Regulations are similarly
silent What Respondent appears to be arguing is that an
affiliation election must be deemed null and void unless it
is conducted in the same manner as a Board representa-
tion election, with the sole possible exceptions that a
Board agent need not be present and that objections to
the election need not be made by a party to the election
nor within the normal 5-day limitation period 18 The
contention is without merit
In the present case, a secret ballot election was taken.
No one was present to vote who was not eligible to
vote Because of the smallness of the unit , this fact was
well known to all who participated When the results
were announced, no one objected to the manner in
which the election was conducted, although everyone
present was given an opportunity to voice an objection.
Since the participants in the election did not object to
the manner in which the vote was taken, the Respondent
is in a poor position to do so now simply because it does
not like the way the vote turned out The Union was
under no obligation arising out of statute or regulation to
conduct its affiliation vote in a manner deemed suitable
by the Respondent. The fact that it did not act in strict
conformity with the procedures required for a represen-
tation election and chose instead to conduct its business
more informally in accordance with the traditions of
New England town meeting democracy is no basis for
post hoc faultfinding While flying the flag of "due proc-
ess," the Respondent should bear in mind that one ele-
ment of fundamental fairness is that the majority should
rule and that its stated wishes should be accorded full
weight. In question here is not free employee choice but
whether petty obstructionism should be allowed to nulli-
fy that choice. Accordingly, the Respondent's "due
process" challenge to the affiliation election must fail
5. Substantial continuity of bargaining agent
The Independent and the Independent, affiliated with
the IUE, are one and the same organization. There can
be no dispute on this record that the Independent, as af-
filiated with the IUE, is a separate and distinct legal
entity from the IUE, an International with whom it
chose to join hands Both before and after August 17,
1983, the Independent had the same officers, the same
members, the same constitution," the same bank ac-
count, and the same dues There is some suggestion in
the record that, at an unstated future time, the Independ-
ent will have to increase its dues as a result of affiliation.
This has not happened nor is there any indication of
when it will happen. Certainly there is no reason to be-
lieve that members will be deprived of the right to vote
on the increase when and if the IUE asks it for more
money In the meantime, dues remain the same and the
money which currently reposes in the Independent's
treasury will remain there, to be spent by the Independ-
ent for its own purposes and at its sole discretion.
i5 Doubtless some accommodation might also have to be made to the
Board's contract bar rules if it took on the responsibility of running affili-
ation elections.
19 At the hearing, sustained an objection to the admission into evi-
dence of the Independent's constitution and bylaws That ruling is re-
versed and the document is admitted into evidence as R-6
823
As Campbell explained at the August 17 meeting, the
membership of Independent remains the final arbiter of
whether and when it will strike. Assistance from the
International, either in negotiations or otherwise, comes
on a request basis only The notion that an organization
somehow loses its identity and becomes transformed into
a new legal entity simply because it acquires more clout
and becomes better able to do its job is an absurdity and
one which flies squarely in the face of a clearly stated
congressional objective in passing the National Labor
Relations Act.20 The Independent after affiliation re-
mains the same small platoon it always was but it now
can arrive at the bargaining table with newly acquired
reinforcements. The argument that affiliation means that
there is no substantial continuity in the bargaining agent
is just Pearl Bookbinding revisited It should meet with
the same resolution here.
In finding that the Independent and the Independent as
affiliated with the IUE are one and the same organiza-
tion, it should be noted that both Campbell and Flanagan
could have been more precise when they brought news
of the affiliation to Nicolazzo's attention in August and
September 21 In fact, the IUE is not the exclusive collec-
tive-bargaining representative of the Respondent's pro-
duction and maintenance employees. Campbell's first
letter to Nicolazzo could be construed as a claim to that
effect, but it could also be construed otherwise, namely,
that Campbell, an International official, was merely as-
sisting the existing bargaining agent who had become af-
filiated with the International.22 Any genuine doubt on
this score was dissipated by Flanagan's letter of Septem-
ber 23 and could have been cleared up easily at a much
earlier date by a phone call or a 5-minute conference at
the plant. When these respective roles were spelled out
in precise terms at the hearing on the record in front of
Nicolazzo and his attorney, the Respondent still refused
to bargain with the affiliated Independent without the
intervention of a representation election conducted by
the Board.
20 Sec I of the Act, states, in pertinent part
The inequality of bargaining power between employees who do
not posses full freedom of association or actual liberty of contract,
and employers who are organized in the corporate or other form of
ownership association substantially burdens and affects the flow of
commerce, and tends to aggravate recurrent business depressions by
depressing wage rates and the purchasing power of wage earners in
industry and by preventing the stabilization of competitive wage
rates and working conditions within and between industries
Experience had proved that protection by law of the right of em-
ployees to organize and bargain collectively safeguards commerce
from injury, impairment, or interruption, and promotes the flow of
commerce by removing certain recognized sources of industrial strife
and unrest, by encouraging practices fundamental to the friendly ad-
justment of industrial disputes arising out of differences as to wages,
hours, or other working conditions, and by restoring equality of bar-
gaining power between employers and employees
21 Indeed , the General Counsel could have been more precise in her
opening remarks concerning the relationship of the parties in this dispute
However , the complaint correctly identified the present unit bargaining
representative as the Independent , affiliated with the IUE, not the IUE
standing alone
22 Campbell 's actual role in bargaining with the Respondent on behalf
of the affiliated Independent is closely akin to that of an attorney or labor
consultant who has been retained by the Independent for that purpose
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's contention that it was really uncer-
tain with whom to bargain is at best disingenuous. The
duty to bargain in good faith requires more than sitting
back, picking at nits, and hoping that an inept phrase or
an inartful expression on the part of one's bargaining ad-
versary will provide a loophole through which one can
avoid entirely all the elements of a bargaining obligation.
This is what the Respondent has done since August 17
and continues to do to this date By refusing to recognize
and bargain collectively with the Independent Workers
of Insulfab Plastics, Inc, New England Division, affili-
ated with the International Union of Electronic, Electri-
cal, Technical, Salaried and Machine Workers, AFL-
CIO-CLC, the Respondent herein has violated Section
8(a)(1) and (5) of the Act I so find and conclude.
6. The refusal of the Respondent to provide
information
It is well established that an employer is obligated to
furnish the union representing its employees with infor-
mation which is relevant , or is of potential relevance, in
assisting the union in carrying out its responsibilities as
bargaining agent . In determining relevance , a liberal dis-
covery-type standard should be applied . NLRB v. Acme
Industrial Co., 385 U S . 432 (1967); Brooklyn Union Gas
Company, 220 NLRB 189 ( 1975), and cases cited therein;
Samuel Kosoff & Sons, 269 NLRB 424 ( 1984). Any infor-
mation concerning the status or compensation of bargain-
ing unit employees is presumptively relevant and is pro-
ducible upon request. American Oil Co., 164 NLRB 29
(1967). The Respondent 's reply to repeated requests for
information concerning the identity and compensation of
unit employees was repeated denial , irrespective of
whether the request was made by Flanagan or by Camp-
bell. Its excuse was either that the request was premature
or that there was no bargaining currently in progress and
hence no obligation existed to furnish requested data
This argument is also Pearl Bookbinding revisited and
should meet with the same results . Accordingly, I find
and conclude that, by refusing to supply both Campbell
and Flanagan with data requested concerning the status
and compensation of bargaining unit employees and the
provisions and costs of fringe benefit programs for unit
employees , the Respondent herein violated Section
8(a)(1) and (5) of the Act
On the foregoing findings of fact , and on the entire
record considered as a whole, I make the following
CONCLUSIONS OF LAW
1 The Respondent, Insulfab Plastics, Inc., New Eng-
land Division, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Independent Workers of Insulfab Plastics, Inc , New
England Division, affiliated with International Union of
Electronic, Electrical, Technical, Salaried, and Machine
Workers, AFL-CIO-CLC and the International itself
are, respectively, labor organizations within the meaning
of Section 2(5) of the Act.
3 At all times material herein, the Independent Work-
ers of Insulfab Plastics, Inc , New England Division, af-
filtated with the International Union of Electronic, Elec-
trical, Technical, Salaried, and Machine Workers, AFL-
CIO-CLC has been the exclusive representative for pur-
poses of collective bargaining in the following described
unit, which is a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
All production and maintenance employees of the
Respondent employed at its Watertown, Massachu-
setts, plant, exclusive of office clerical employees,
professional employees, guards, and supervisors as
defined in the Act.
4. By refusing to recognize and bargain collectively
with the affiliated Independent , and by refusing to fur-
nish it information relating to job classifications , wages,
seniority , vital statistics of bargaining unit employees, a
list of all fringe benefits paid to unit employees, and
copies of fringe benefit plans pertaining to unit employ-
ees together with the costs of said plans, the Respondent
herein violated Section 8(a)(1) and (5) of the Act. These
unfair labor practices have a close, intimate , and substan-
tial effect on the free flow of commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes
and policies of the Act. Specifically, I will recommend
that it be required to recognize and bargain collectively
with the affiliated Independent and that it be required to
furnish the affiliated Independent with the information
this Union had requested
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed23
ORDER
The Respondent, Insulfab Plastics, Inc, New England
Division, Watertown, Massachusetts, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Independent
Workers of Insulfab Plastics, Inc, New England Divi-
sion , affiliated with the International Union of Electron-
ic, Electrical, Technical, Salaried, and Machine Workers,
AFL-CIO-CLC as the exclusive collective-bargaining
representative of the production and maintenance em-
ployees employed by the Respondent at its Watertown,
Massachusetts plant, and refusing to furnish that Union
with requested information relating to job classifications,
wages, seniority, vital statistics of bargaining unit em-
ployees, a list of all fringe benefits paid to unit employ-
23 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
INSULFAB PLASTICS
ees, and copies of all fringe benefit plans pertaining to
unit employees together with the costs thereof.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act.
(a) Recognize and bargain collectively with Independ-
ent Workers of Insulfab Plastics, Inc., New England Di-
vision, affiliated with the International Union of Elec-
tronic, Electrical, Technical, Salaried, and Machine
Workers, AFL-CIO-CLC as the exclusive collective-
bargaining representative of the production and mainte-
nance employees employed by the Respondent at its Wa-
tertown, Massachusetts plant
(b) Furnish to the aforesaid labor organization request-
ed information relating to job classifications, wages, se-
niority, vital statistics concerning bargaining unit em-
ployees, a list of all fringe benefits paid to unit employ-
ees, and copies of all fringe benefit plans pertaining to
unit employees together with the costs thereof.
(c) Post at its Watertown, Massachusetts plant copies
of the attached notice marked "Appendix."24 Copies of
the notice, on forms provided by the Regional Director
for Region 1, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
24 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
825
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with this Union or
refuse to furnish it requested information pertaining to its
bargaining responsibilities, and WE WILL NOT in any like
or related manner interfere with, restrain, or coerce em-
ployees in the exercise of rights guaranteed to them by
Section 7 of the National Labor Relations Act.
WE WILL recognize and bargain collectively with In-
dependent Workers of Insulfab Plastics, Inc., New Eng-
land Division, affiliated with the International Union of
Electronic, Electrical, Technical, Salaried, and Machine
Workers, AFL-CIO-CLC 'as the exclusive collective-
bargaining representative of the production and mainte-
nance employees employed at our Watertown, Massa-
chusetts plant, exclusive of office clerical employees,
professional employees, and supervisors as defined in the
Act.
WE WILL furnish this Union with requested informa-
tion pertaining to job classifications, wage rates, seniori-
ty, and vital statistics of bargaining unit employees, and
WE WILL furnish this Union with requested information
pertaining to fringe benefits paid to unit employees,
copies of fringe benefit plans pertaining to unit employ-
ees, and the costs of said plans.
INSULFAB PLASTICS, INC., NEW ENGLAND
DIVISION