North Electric Co.

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 942 (N.L.R.B. 1967)

942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North Electric Company and International
Union, Allied Industrial Workers of
America, AFL-CIO and United Steelworkers
of America, AFL-CIO. Case 8-AC-4.
June 23, 1967
DECISION AND ORDER
On June 22, 1965, a representation election' was
conducted among the employees of the Employer in
an appropriate unit.2 Thereafter, on October 6,
1965, the North Electric Independent Union of
Kenton, Ohio, hereinafter referred to as the
Independent, was certified as the representative of
the employees of the Employer. On November 8,
1966, the Petitioner filed the instant request to
amend the certification so as to designate its
affiliated Local Union No. 481, in place of the
Independent, as the certified bargaining
representative of the Employer's employees.
The Intervenor3 alone opposed the granting of the
amendment, contending, inter alia, that a majority
of the unit employees had not authorized the change
in their bargaining representative. The Employer
took no position concerning the petition.
A hearing was held on November 30, 1966, at
Kenton, Ohio, before W.R. Griesbach, Hearing
Officer. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are
hereby affirmed. The Regional Director for Region 8
transferred this case to the Board for original
consideration.
Upon the entire record in this case, the Board
finds:
After a Board-conducted representation election
in which both the Petitioner and the Independent
were on the ballot, the Independent was certified in
October 1965 as the representative of the employees
of the Employer. Subsequently, the Independent
and the Employer entered into a collective-
bargaining agreement, which has a terminal date in
October 1967. On August 26, 1966, the Independent
posted notices on four plant bulletin boards, which
announced a special meeting for September 11,
1966. The notices stated that the purpose of the
meeting was to consider the question of affiliation of
i Case 8-RC-5907
R The appropriate unit, as set forth in the Board's Decision, is
All production and maintenance employees, including installers
and plant clerical employees, at the Employer's Kenton, Ohio,
plant
3 On November 29, 1966, the Intervenor submitted 26
representation authorization cards, executed by employees in the
bargaining unit, as evidence of opposition to change of affiliation
The Intervenor's unopposed request to intervene was granted
4 The current contract contains a union-security clause which
requires employees to become members of the Union after they
have completed 90 days of employment It was agreed that there
were 238 union members at the time of the meeting on
September 11, 1966, and that there were a total of about 288
employees in the unit, of which about 50 employees were not as
yet union members.
the Independent with the Petitioner. The meeting
was attended by 55 members' and the vote on the
motion for affiliation, taken by secret ballot, was 52
votes for and 2 votes against the motion, the
chairman of the meeting not voting. On October 17,
Petitioner issued the Independent a charter as Local
Union No. 481 of the Petitioner. Since then, the
former Independent has been functioning as a local
of the Petitioner and, with the same officers
continuing in office, has been administering the
contract between the Independent and the
Employer.
In determining whether to grant a motion to
amend a certification, we are guided by the general
rule that such motions may not be granted when they
raise a question concerning representation that can
only be resolved by an election. Thus, we do not
permit the amendment of a certification where a
schism is involved; that is, where the certified
representative remains in existence and opposes the
amendment.5 Nor do we grant amendments where
the possibility of a question concerning
representation remains open because the change of
affiliation took place under circumstances that do
not indicate that the change reflected a majority
view.' The record here satisfies us that none of the
above situations are present here. To the contrary,
the amendment of the certification "would insure to
employees the continuity of their present or-
ganization and representation,"' as the Independent
no longer exists as such, but functions as a local of
the Petitioner. The decision by the Independent to
affiliate with the Petitioner was as democratic as
possible, and the fact that many employees chose
not to attend the meeting in question cannot be
considered significant.
Our dissenting colleagues appear to be concerned
principally with about 50 unit employees who, at the
time of the September 11 Independent meeting
which voted to affiliate with the Petitioner, were not
yet members of the Independent, pursuant to the
union-security contract. But it must be borne in
mind that almost five times as many employees were
members; notices of the special meeting and its
purpose were posted on plant bulletin boards where
all employees, including nonmembers, could see
5 E g., Bedford Gear & Machine Products, Inc, 150 NLRB 1;
R M. Hollingshead Corporation, 111 NLRB 840.
6 As we stated in a similar situation,
... it is a well-established principle that in the conduct of a
democratic election, where, as here, adequate opportunity to
vote is provided to all those eligible to vote, the decision
of the majority actually voting is binding on all. The East Ohio
Gas Company, 140 NLRB 1269,1270
The Intervenor also advances an argument that since the
Independent's bylaws required 20 percent of its membership
to constitute a quorum, the affiliation vote by less than this
figure was a nullity Whether or not the factual premise of
this argument is sound we need not determine, for the
absence of a quorum is no bar to the regularity of
organizational proceedings unless timely raised
' Emery Industries, Inc , 148 NLRB 51, 53.
165 NLRB No. 88
NORTH ELECTRIC COMPANY
them 16 days in advance; all members, and
nonmembers who chose to become members in the
interim , were thus given an opportunity to attend,
and 55 of them were sufficiently interested in the
question of affiliation to attend the meeting, the
largest attendance at any reported 1966 meeting of
the Independent; and 52 of these 55 cast their ballots
in favor of affiliation.
The rival Intervenor alone opposed the requested
amendment of the certification, but alleged only that
26 employees signed its authorization cards (all but 2
being dated after the special meeting) and were
therefore opposed to the affiliation. In these
circumstances we are satisfied that no showing has
been made that more than 28 employees in the unit
were opposed to the affiliation. We see no sufficient
basis for thwarting the affirmative expression of the
52 unit employees who voted in favor of the
affiliation, or for overturning the recognized
democratic principle of majority rule after due
notice to all. We find the Bedford Gear case cited in
the dissent distinguishable, for there, unlike in the
present case, the employer and the certified labor
organization both opposed the requested amendment
of certification, in part on the ground that the
petitioner was but a splinter group and the certified
labor organization had won a Board election less
than a year earlier, was still in existence, was
supported by a substantial number of employees,
and was currently engaged in collective-bargaining
negotiations with the employer.
Where, as here, it appears from the evidence
before us that the bulk of the adherents and all the
officers of the certified Independent have now
transfered to the Petitioner although they had
sucessfully opposed it in an election 14-1/2 months
ago, and it also appears that voluntary and regular
procedures under appropriate safeguards have been
followed to determine the employees' wishes on the
question of affiliation, we see no reason to require
the Petitioner now to renew its combat via the
formality of a Board-conducted election to
redetermine the choice already made.
In these circumstances, we shall grant the
Petitioner's motion and substitute Local Union No.
481 of the Petitioner as certified representative of
the employees in the unit . This amendment of the
certification is not, however, to be considered as a
new certification or recertification.
ORDER
IT IS HEREBY ORDERED that the petition to amend
certification filed by International Union, Allied
'Industrial Workers of America , AFL-CO, on behalf
" In Bedford Gear & Machine Products, Inc, 150 NLRB 1 at 2,
our colleagues (Chairman McCulloch and Member Brown ) stated
However, such a question [change of a bargaining
representative to a union previously rejected in a Board
conducted election] can be resolved only by the timely filing
of a petition and a secret ballot election among the employees
concerned , and not by a motion to amend the certification.
943
of its Local Union No. 481 be, and it hereby is,
granted, and that the Certification of
Representatives issued in Case 8-RC-5907 be
amended by substituting "International Union,
Allied Industrial Workers of America, Local No.
481, AFL-CIO," for "North Electric Independent
Union of Kenton, Ohio."
MEMBERS JENKINS AND ZAGORIA , dissenting:
We cannot agree with our colleagues' decision to
amend the certification here because the union-
conducted election on which the majority relies as
the basis for the amendment does not comport with
minimal standards of due process. More
importantly, however, the majority's action affords
undue weight to a privately conducted election in
circumstances which result in an undermining of the
Board's own election and certification procedures.8
It is undisputed that on June 22, 1965, the Board
conducted an election for this same bargaining unit
in which the North Electric Independent Union
defeated the Allied Industrial Workers of America
(the Petitioner for amendment here) by an 84 to 80
vote. On September 11, 1966, approximately 15
months later, the Independent Union conducted an
election at which 52 of the 55 votes cast were for
affiliation with Allied Industrial Workers of America
(AIW). The 52 votes cast for the AIW were 28 votes
less than the AIW received at the Board-conducted
election which it lost. As contrasted to the Board-
conducted election, moreover, the union election
foreclosed 50 employees who were not union
members from the opportunity of voting and thereby
expressing their choice of a bargaining
representative. In the majority's view, therefore, 52
votes (18 percent of the 288 employees then in the
unit ) have effectively changed the designated
bargaining representative, despite the fact some
employees in the bargaining unit were precluded
from voting.
The Petitioner is barred from securing a Board-
conducted election at this time because of the
existing contract with the Independent Union.
Consequently, even though the Petitioner could get
a majority in favor of designating it as bargaining
representative, Board rules and procedure,
specifically contract-bar rules, precludes the use of
the usual Board processes to change the bargaining
representative. By granting an amendment of
certification, therefore, the Board is undermining its
own processes and permits a change in the
bargaining representative in midstream; i.e., during
the term of an existing contract. Moreover, by
granting the amendment here, the possibility exists
Citing [ Gulf Oil Corporation, 109 NLRB 861 .] Indeed, as
the Board pointed out in the Gulf Oil case, granting such a
motion in circumstances such as this would in effect result in
the certification of the very union which less than a year
before had been rejected by a majority of the employees. In
accord with well-established Board policy, therefore, we shall
deny the motion [Emphasis supplied.]
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the amendment process may in the future be
utilized to facilitate raiding between unions, a result
which could only increase industrial strife.
If the Board is to accept privately conducted
elections as a basis for amending Board
certifications, it should be certain that minimal
standards of due process be observed lest the very
validity of Board certifications and elections be
undermined. Granted that employees in a bargaining
unit cannot be compelled to vote, they can, at the
very least, be afforded the opportunity to vote. It
appears basic to the collective-bargaining process
that the selection of a bargaining representative be
made by the employees in the bargaining unit. In our
view, therefore, a cardinal prerequisite to any
change in designation of the bargaining
representative is that all employees in the bargaining
unit be afforded the opportunity to participate in
such selection. This prerequisite was not met here.
It appears rather incongruous for the Board to
spend a substantial portion of its time in other cases
scrupulously scrutinizing whether employer or union
conduct in a preelection period in Board-conducted
elections may have interfered with the freedom of
choice of employees who voted and yet condone and
thereby ratify the complete disenfranchisement of
50 employees in the bargaining unit in a union-
conducted election who were not afforded the
opportunity to vote because they were not union
members.
In deciding to permit the amendment of the
certification here, our colleagues conclude that a
question of representation does not exist and that
there is no indication that the change of affiliation
does not reflect the view of "a majority of affected
employees." The facts in the case point to the
contrary. Some 15 months previously, the Board
concluded that this same question of whether the
Independent Union or the AIW was to represent the
employees should be settled by a Board-conducted
election, and the issue was resolved against AIW.
Nothing here indicates any change in these
circumstances, or raises any presumption that a
change has occurred. In addition, in view of the
disenfranchisement of 50 employees in the
bargaining unit, the outcome of the election really
resulted in a determination by even less than a
majority of a majority; i.e., the 238 union members
constituted a majority of the 288 employees in the
unit and the vote of only 52 of those union members
determined the selection of the bargaining
representative.
For the foregoing reasons, we would deny the
petition.