Ocean Systems, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1976

223 N.L.R.B. 857 (N.L.R.B. 1976)

OCEAN SYSTEMS, INC. 857
Ocean Systems , Inc. and Professional Divers Local
Union No. 1012 , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, Petitioner
J. Ray McDermott & Co., Inc . and Professional Div-
ers Local Union No. 1012 , United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, Pe-
titioner . Cases 15-AC-27 and 15-AC-28
April 12, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On July 11, 1974, International Association of Pro-
fessional Divers (hereinafter IAPD), affiliated with
District 2, MEBA, AFL-CIO (Marine Engineers
Beneficial Association, hereinafter MEBA), was cer-
tified as the bargaining representative of an appropri-
ate unit of divers employed by Ocean Systems, Inc.'
On April 18, 1975, IAPD, affiliated with District 2,
MEBA (hereinafter IAPD-MEBA) was certified as
the bargaining representative of an appropriate unit
of divers employed by J. Ray McDermott & Co.,
Inc.'
On September 10, 1975, Petitioner, Professional
Divers Local Union No. 1012 (hereinafter Local
1012), United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO (hereinafter Carpenters),
filed the instant request to amend the certification so
as to designate it in place of IAPD-MEBA as the
representative of the Employers' employees.
The Employers alone oppose the granting of the
amendment,3 contending that at every step of the
way the procedures used by Petitioner to change
both its name and affiliation do not comport with
Board standards in that there was lack of proper no-
tice, lack of participation of nonmembers, lack of a
representative number of participants, and a signifi-
cant change in the identity and continuity of the bar-
gaining representative.
A consolidated hearing was held on October 2, 3,
and 7, 1975, in New Orleans, Louisiana, before A.
Richard Gear, Hearing Officer. Following the hear-
The detailed unit description was:
All regular divers and tenders at the Employer 's Morgan City , Louisi-
ana facility ; excluding all other employees , office clerical employees,
the salesmen , professional employees , guards, watchmen , and supervi-
sors as defined in the Act.
2 The detailed unit description was:
Divers, tenders and rack operators employed by the Employer in its
Diving Division ; excluding all other employees , free lance divers and
tenders, shop employees , dispatchers , office clerical employees, shop
clerical employees, guards, and supervisors as defined in the Act.
' A representative of MEBA attended the hearing but stated that MEBA
took no position in this matter.
ing and pursuant to Section 102.67 of the National
Labor Relations Board's Rules and Regulations, Ser-
ies 8 , as amended, the Regional Director transferred
this case to the National Labor Relations Board for
decision. Thereafter, Employer Ocean Systems, Inc.,
Employer J. Ray McDermott & Co., Inc., and the
Petitioner filed briefs 4
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case,' the Board
finds:
IAPD came into existence in 1970 to establish
community safety regulations for professional divers
and tenders, and to improve their wages, hours, and
working conditions. On February 11, 1974, IAPD en-
tered into an agreement of intent to affiliate with
MEBA. On March 2, 1974, IAPD became affiliated
with MEBA. Subsequently MEBA granted a charter
to IAPD and a constitution of IAPD-MEBA was
executed.
IAPD-MEBA was certified as the bargaining rep-
resentative at several employers in the gulf coast
area, including Ocean Systems and McDermott. In
the spring of 1975 the officers of IAPD-MEBA be-
came dissatisfied with the help and support they were
receiving from MEBA. At a meeting in the Washing-
ton, D.C., area, Paul Woodhall, president of IAPD-
MEBA, initiated discussions with the Carpenters
about the advantages of affiliation with that organi-
zation. Disaffiliation from MEBA and acceptance of
a charter from the Carpenters was discussed in New
Orleans among the officers and certain members of
the IAPD. It was decided to place the question be-
fore the membership. Notices were sent on July 7,
1975, to the membership stating that the regular
quarterly meeting would be held on July 11, 1975,
and that the executive committee and the board of
directors "will present for consideration and vote a
resolution to disaffiliate from" MEBA, and that "an
opportunity for consideration of affiliation with an-
other international union will be given ." Besides the
mail notices, phone calls were made and members
were contacted personally.
On July 11, 1975, several meetings took place. The
first was a meeting of the executive committee at-
tended by all committee members except one, at
As the record adequately presents the positions of the parties , the Em-
ploers' and the Petitioner 's requests for oral argument are hereby denied.
5yWe hereby deny the Employer' s motion to reopen the record because
the evidence sought to be adduced is not , in our view , relevant to our deci-
sion herein.
223 NLRB No. 105
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which two resolutions designated as "A" and "B"
were approved and recommended to the board of
directors and the membership .6 Resolution A pre-
sented the question of disaffiliation from MEBA.
Resolution B presented the question of acceptance of
a charter from the Carpenters. The second meeting
was a meeting of the board of directors, which in-
cluded all of the IAPD-MEBA officers. At this meet-
ing resolutions A and B were adopted; the only nega-
tive votes were cast by the MEBA representative.
The third meeting was a meeting of the corporate
officers of IAPD, Inc., which was a nonprofit Louisi-
ana corporation. A resolution to dissolve the non-
profit corporation was approved and Woodhall was
authorized to take whatever action was necessary.
The fourth meeting was that of the general member-
ship of IAPD-MEBA. No one was allowed to attend
who was not a member in good standing. This was
done, according to President Woodhall, in order that
the members directly affected would be allowed to
consider the questions absent any restraints or inhi-
bitions that might exist if two representatives of In-
ternational unions (MEBA and Carpenters) were al-
lowed to attend. During this meeting, full discussion
was had, questions were answered, and a secret bal-
lot vote taken. With 78 of the 201 members in atten-
dance, resolution A passed 77 to I and resolution B
passed 76 to 2.
The last meeting was a meeting of the shareholders
of IAPD, Inc.' Those present unanimously adopted
the resolution to liquidate the nonprofit corporation.
After adjournment of the shareholders meeting, a
Carpenters representative was allowed to speak, and
presented the members with the charter for Local
1012.
At the hearing Woodhall testified that he was as-
sured by the Carpenters that the IAPD-MEBA
members would become members of the new Local
1012. To this end and as a ministerial function only,
all members of IAPD-MEBA were sent applications
to become Carpenters members. Woodhall also testi-
fied that he received assurances that Local 1012
would determine its own collective-bargaining units
and goals as it had when affiliated with MEBA.
There have been no structural changes in the organi-
zation . Thus, all persons who had been elected as
officers continue to be officers in comparable posi-
tions. The local continues to process its own griev-
ances . The dues structure remains the same. The
amounts are set by the membership; both Interna-
tionals require a per capita tax.' The same group life
6The MEBA representative was the only negative vote.
' The testimony revealed that "member" and "shareholder " are synony-
mous.
t The Employers contend that no per capita tax was ever paid to MEBA.
insurance program has been available to members
during the time IAPD was an independent, through
its affiliation with MEBA, and now as Local 1012.
With the transfer of affiliation accomplished, Lo-
cal 1012 turned its attentions to its several certifica-
tions as IAPD-MEBA. It decided that a mail ballot
system should be used as was done in the NLRB
elections. The mail ballots contained a statement as
to what occurred on July 11 and reasons therefor.
Employees were asked to approve a transfer of the
certification and bargaining rights from IAPD-
MEBA to Local 1012? Letters were sent to each em-
ployer involved asking for an up-to-date list of div-
ers, tenders, and rack operators. Both Employers in-
volved herein refused to furnish such lists. The local
then used the last Excelsior list obtained from each
Employer and made appropriate additions and dele-
tions on the basis of whatever information it could
obtain.
The mailing procedure was as follows. An enve-
lope was addressed to the eligible employee. It con-
tained information as to what had taken place, in-
structions for voting, a ballot, a ballot envelope, and
a return envelope. The return envelope was ad-
dressed to Local 1012 at a certain post office box. In
the upper left-hand corner was a place where the em-
ployee was to affix his signature and return address.
The employee was instructed to mark the ballot,
place the ballot into the ballot envelope, and then
place the ballot envelope into the return envelope.
There was a 30-day return period.
After the mail ballots were sent out to both mem-
ber and nonmember employees of each Employer,
Local 1012 engaged the services of a neutral third
party, Neil Sweeney II. After each return date, Swee-
ney went to the post office box and retrieved the
ballots for one employer at a time using that
employer's eligibility list. He took the ballots for each
employer to his office separately, opened and count-
ed them, and certified the results. He did not count
improperly returned ballots. Thereafter, the instant
AC petitions were filed.
It was stipulated that, at the time of the mail bal-
loting, McDermott had 101 employees and Ocean
Systems had 44 employees. The record reveals that of
95 ballots sent to McDermott employees, 60 were re-
turned properly. Of these 60, 54 were voted "ap-
prove" and 6 were voted "disapprove." McDermott
However, the testimony is to the effect that one is required.
9 The language of the ballot is as follows: "Do you agree to a transfer of
the certification rights and bargaining rights which International Associa-
tion of Professional Divers, a/w District 2, MEBA, AFL-CIO had for div-
ers, tenders, and rack operators of [the named employer] to Professional
Divers Local Union No. 1012, United Brotherhood of Carpenters and Join-
ers of America and hereby authorize Professional Divers Local Union
1012 to be your bargaining representative in dealing with [the named em-
ployer.]"
OCEAN SYSTEMS, INC. 859
asserts that 13 of its employees did not receive ballots
and that four ballots were sent to persons who were
no longer employees and of those four, three were
returned and counted. Even accepting McDermott's
assertions, 51 of its 101 employees, a majority, voted
to accept the transfer of affiliation. Of 35 ballots sent
to Ocean Systems employees, 24 were returned, all of
which were voted "approve." Ocean Systems asserts
that nine of its employees did not receive mail bal-
lots. In any case a majority, 24 of 44, of Ocean Sys-
tems' employees voted to accept the change in affilia-
tion.
In opposing the amendment the Employers con-
tend that there has been a change in the identity and
continuity of the certified union. They point to the
fact that Local 1012 is no longer a corporation, but a
chartered local and thus an integral part of the Car-
penters. They argue that the autonomy and indepen-
dence the organization had when affiliated with
MEBA has been destroyed. The Employers further
note that the two organizations have different bank
accounts and offices; members must apply for mem-
bership in the Carpenters; the officers' positions are
different; and the constitution and bylaws have been
replaced by a charter. They also contend that the
continuity is necessarily broken by changing affilia-
tion from one International to another.
We find no merit in the contention that the contin-
uity of the bargaining representative has been bro-
ken. Local 1012 retains the right to negotiate its own
collective-bargaining agreements and process its own
grievances through the same elected individuals who
led the organization under its old name. The dues
structure has remained exactly the same. The certi-
fied labor organization does not oppose the amend-
ment and is not a presently functioning viable entity.
The certified Union has now become the Petitioner.1°
The record clearly shows that the application for
membership in the Carpenters by the IAPD member-
ship is ministerial only. We are not persuaded that
IAPD and Local 1012 are not the same by such fac-
tors as different offices, bank accounts, and titles for
the officers. Hence, we find that Local 1012 is func-
tionally the same organization as the certified repre-
sentative and that the nature of the relationship be-
tween the local and each of the two International
affiliates is substantially the same."
The Employers contend that the transfer of affilia-
tion is a raid engineered and forced upon a smaller
labor organization. This contention is unsupported.
The record shows that it was the IAPD that initiated
10 See New England Foundry Corporation , 192 NLRB 785 (1971).
11 Carpinteria Lemon Association v. N.L.R.B., 240 F .2d 554 (C.A. 9, 1956),
cert. denied 354 U.S. 909 ( 1957). Compare American Bridge Division, United
States Steel Corporation v. N.L.R. B., 457 F.2d 660 (C.A. 3, 1972).
the contact with the Carpenters. The IAPD officers
thereupon sought assurances that IAPD would retain
all its elected officers and autonomy if it chose to
transfer affiliation. There was no contact between the
IAPD membership and the Carpenters until after the
membership voted by.secret ballot to accept a char-
ter from the Carpenters.
Ocean Systems contends that the petition with re-
spect to its employees is not timely because of the
existence of a recognition agreement signed at the
end of the certification year. This contention is with-
out merit. Even if the recognition agreement consti-
tuted a collective-bargaining contract, an amend-
ment to certification is not affected by the Board's
contract-bar rules.12
McDermott contends that the petition with respect
to its employees is premature. It contests the validity
of the certification and has formally refused to bar-
gain with IAPD. It argues that the certification may
not be amended since its validity has not been de-
termined. We find no merit in McDermott's conten-
tions. As the amendment merely reflects a change in
the name and affiliation of the same certified bar-
gaining representative, it has no effect on the validity
of the original certification, or McDermott's ability
to challenge it by appropriate means.
The Employers contend that the procedures used
by IAPD to change its affiliation did not give the
membership adequate opportunity to consider and
vote on the question and that the subsequent mail
balloting does not correct the deficiencies. They con-
tend that notices mailed on July 7, 1975, for a meet-
ing held on July 11, 1975, did not provide adequate
time and that they did not specify the name of the
proposed new affiliate. They assert that a majority of
the membership did not approve the change (77 of
201 members voted in favor), the proposals were pre-
sented as a foregone conclusion with inadequate op-
portunity for discussion, and resolutions A and B
were the only alternatives presented since the possi-
bility of becoming an independent was never dis-
cussed. They further argue that the dissolution of
IAPD was not in accord with its own rules. They
point to its constitution which prohibits dissolution
"while there are seven members who wish the Union
to be maintained" and argue that the wishes of a
great majority of the membership of IAPD were nev-
er sought. The Employers also question whether
proper procedures were used in the dissolution of the
nonprofit corporation.
We do not agree with the Employers' contentions.
The Board has held that it "does not normally con-
cern itself with determining whether a membership
12 The Hamilton Tool Company, 190 NLRB 571, 573 ( 1971), Member Jen-
kins dissenting on other grounds.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting was held in strict conformity with a Union's
constitution and bylaws absent a clear showing .. .
of substantial irregularity." 13 We believe that there
has been no substantial irregularity herein and that
adequate notice and opportunity to discuss the mat-
ter was accorded to all the membership. With respect
to the corporate dissolution, the Board has held that
this is "merely ministerial and of no substantive im-
portance." 14 We believe that resolutions A and B
presented adequate alternatives; if any member
chose to have the IAPD remain an independent, he
needed only to vote against resolution B.
In objecting to the mail balloting of the bargaining
units , the Employers contend that not all the employ-
ees received ballots; some persons who were no lon-
ger employees actually voted; and the ballots pre-
sented this matter as a fait accompli. They further
assert that safeguards to insure the secrecy of the
ballots were inadequate in that the ballots were not
segregated by employer, several union officers had
access to the post office box used for ballot return,
and there was no way to prevent substitution of bal-
lots.
We find no merit in the Employers' contentions.
As shown above, even when the ineligible voters are
discounted and those not receiving ballots are in-
cluded, a majority of each bargaining unit voted to
approve the transfer.15 We believe that a mail ballot-
ing procedure was an appropriate method to obtain
the views of the employees herein since the nature of
their work is such that they are offshore for signifi-
cant periods of time and the Board itself used mail
ballots in these bargaining units. We see no deficien-
cy in the wording of the ballots. 16 The transfer of
affiliation had in fact been accomplished; it was nec-
essary merely to secure ratification of the transfer of
bargaining rights by a majority of each bargaining
unit. In addition, we believe that efforts to insure the
secrecy of the ballot were adequate. The ballots for
each employer were removed by use of the eligibility
list for each employer and then each batch was
counted by a neutral third party. The Union strove at
every step to follow the procedure used in the preced-
ing Board elections in which mail ballots were used.
13 The Hamilton Tool Company, supra, In. 12, Member Jenkins dissenting
on other grounds, which quotes from Gate City Optical Company, a Division
of Cole National Corporation, 175 NLRB 1059 (1969).
14 The Hamilton Tool Company, supra, In. 12, Member Jenkins dissenting
on other grounds.
15 We note that the Union achieved majority approval even though the
Employers refused to cooperate by furnishing a current list of employees.
Member Jenkins would note that Petitioner made every effort to assure that
all employees in the units had the opportunity to vote, first by seeking a list
of all current employees in the area and their addresses from the Employers
and when this was denied , constructing as best it could a complete list of its
own, to all of whom mail ballots were sent.
16 Safway Steel Scaffolds Company of Georgia, 173 NLRB 311 (1968).
In view of the foregoing , we can perceive no rea-
son for not granting Petitioner's requests and shall
therefore amend the certifications in Cases 15-RC-
5375 and l5-RC-5361 to reflect the current name
and affiliation of the certified union . This amend-
ment of the certification is not to be considered as a
new certification or recertification.
ORDER
It is hereby ordered that the petitions to amend the
certifications filed by Professional Divers Local
Union No. 1012, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, be, and hereby
are granted, and that the Certification of Representa-
tive issued in Case 15-RC-5375 and that issued in
Case 15-RC-5361 be amended by substituting "Pro-
fessional Divers Local Union No. 1012, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO" for "International Association of Profes-
sional Divers, affiliated with District 2, MEBA,
AFL-CIO."
MEMBER WALTHER, dissenting:
I would not amend the certifications issued to
IAPD-MEBA to show Professional Divers Local
Union No. 1012, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, as the certified
representative of the two bargaining units involved in
this proceeding.
On July 7, 1975, Paul Woodhall, the president of
IAPD-MEBA, sent out notices addressed to mem-
bers and shareholders announcing meetings to be
held on the evening of January 11, 1975. The one
addressed to members stated that the purpose of the
meeting would be to vote on a resolution to disaffili-
ate from MEBA. It also notes: "An opportunity for
consideration of affiliation with another internation-
al will be given." The second notice addressed to
shareholders stated the meeting would be for the pur-
pose of dissolving the corporation (IAPD). Neither
notice made any reference to the Carpenters Union.
Woodhall states that, prior to calling these meet-
ings, he had heard expressions of dissatisfaction by
some of the officers and members with the affiliation
with MEBA. However, it is clear that the calling of
these meetings was directly related to negotiations
conducted by Woodhall with officials of the Carpen-
ters Union. At a conference held in Washington by
the National Institute of Occupational Safety and
Health, Woodhall became acquainted with an offi-
cial of the Carpenters Union, Paul Connally. There-
after, Woodhall took several more trips back to
Washington for a series of meetings, first with Con-
nally, and then with the top officials of the Carpen-
ters, including the general president. Agreement was
OCEAN SYSTEMS, INC. 861
reached that the Carpenters Union would charter a
local for professional divers, tenders, and rack opera-
tors in connection with a six-point plan. This six-
point plan included, inter alia: (1) negotiation of a
national and international divers' agreement; (2)
complete international mobility of divers within the
jurisdiction of the United Brotherhood; and (3) com-
plete reciprocity in all funds where divers are work-
ing, i.e., pension, welfare, vacation, etc. The six-point
plan along with acceptance of a charter as a local
from the Carpenters was drafted up by Woodhall
with the assistance of the Carpenters Union as reso-
lution B " and presented by Woodhall on July 11,
1975, first to the executive board 18 and then later to
the membership meeting. MEBA representatives,
who sought to attend the membership meeting, were
not permitted to do so on the grounds that they were
not members of IAPD. This was contrary to past
practice with respect to their attendance at member-
ship meetings. It appears that the only speakers at
the meeting were those that urged the adoption of
resolutions A and B.
It would appear that Woodhall was confident of
the result before any membership vote was taken.
This may have been related to the fact that the mem-
bership meeting was called on only a 4-day notice
mailed out by regular mail. Membership in IAPD
was held by employees of a number of employers
widely scattered along the Mexican Gulf area. Atten-
dance would have been physically impossible for a
substantial number of members working offshore.
On the other hand, Woodhall had personally con-
tacted certain members and urged their attendance
at the meeting. Nonmembers, even though employ-
ees in the bargaining unit, were not permitted to at-
tend. In any event, at the conclusion of the meeting,
Woodhall brought into the meeting Pat Campbell,
vice president of the Carpenters Union, who had
come out from Washington. Campbell presented
Woodhall with an already prepared charter signed by
the general president and general secretary for a.lo-
cal designated as "Local 1012 of Professional Divers,
New Orleans, La."
Woodhall testified in the hearing that he did not
know the number of unit employees at McDermott
and Ocean Systems that were members of IAPD.
The record shows that a substantial number of these
unit employees were working offshore and could not
have attended the meeting even if they had been
members. In the case of Ocean Systems, this was 22
out of the 44 employees in the unit. Woodhall merely
asserts that "some" of the unit employees of McDer-
mott and Ocean Systems were at the meeting.
Where the evidence mitigates against concluding
that employees freely and clearly expressed their
wishes relative to change of affiliation, the Board has
held that the petition will be denied.19 The circum-
stances surrounding this meeting clearly mitigate
against a finding that it represented an expression of
desire on the part of a majority of the unit employees
at McDermott and Ocean Systems. So far as the rec-
ord shows, no mention was made to the general
membership that there would be a vote taken on af-
filiation with the Carpenters Union until resolution
B, previously drafted by Woodhall, was presented by
him on the day of the meeting. The only speakers at
the membership meeting were those urging adoption
of the resolution. Representatives of MEBA with an
opposing view were excluded from the meeting. Un-
der such circumstances, there was clearly lacking an
opportunity to consider and reflect upon opposing
views before being required to vote 20 It is pure spec-
ulation to assert that the change in affiliation occur-
ring at a meeting called with a 4-day notice to a
widely scattered membership, with no opportunity
for members working offshore to vote, and with only
slightly more than one-third of the members partici-
pating, reflects the views of a majority of the mem-
bership.21 More important, in my view, is the fact
that we are dealing with a Board certification and
therefore should be concerned with whether it re-
flects the majority view of the employees in the units
in question. The record clearly does not support a
finding that the employees of these units participated
in the meeting in any meaningful number.
Neither do I find that this lack of expression of the
desires of the unit employees was cured by the subse-
quent mail ballot election conducted by Local 1012.
The majority decision would give the impression that
this election was conducted under the direction and
control of a neutral party, Neil Sweeney. The record
shows that the ballots were sent out by Local 1012.
The return envelope was addressed to the Tally
Committee of Local 1012, P. O. Box 416. The only
keys to this box were held by Woodhall and Paul
Owen, a vice president of Local 1012, who with
Woodhall had been the leading advocate of joining
up with the Carpenters Union. The testimony of
Sweeney shows that his role was to take the ballots
17 Resolution A called for the disaffiliation from MEBA . At the meetings
for the board of directors and shareholders , a motion was also made by
Woodhall to dissolve the IAPD corporation, which was adopted at both
meetings.
is Resolutions A and B were adopted by the executive board by a vote of
three to one , with one member of the executive board absent.
19 E.g.. Factory Services, Inc., 193 NLRB 722 (1971); The J. H. Day Com-
pany, a Division of Leblond, Incorporated, 204 NLRB 863 (1973); Peco, Inc.,
204 NLRB 1036 (1973).
20 See American Bridge Division, United States Steel Corporation v.
N. L. R. B., 457 F.2d 660 (C.A. 3, 1972).
21 See Fall River House, Inc., 198 NLRB 1123 (1972).
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turned over to him by either Woodhall or Owen,
check the name on the return envelope against a list
of names furnished to him by Woodhall, and tally
the results. The ballot was originally sent out as a
detachable part of a letter from Woodhall. The letter
stated that the IAPD had already disaffiliated from
District 2, MEBA, and accepted a charter from the
United Brotherhood of Carpenters and Joiners. The
letter then went on to exhort, "The reasons for this
action were many . . . but paramount among them
was the fact that the UBC has instituted a 6-point
national plan for divers and tenders as a separate
craft unit and are [sic] now dedicated to organizing
the divers and tenders nationally, spearheading this
drive through Local 1012 in the Gulf of Mexico."
Nowhere does the letter advise that it will be a secret
ballot.
The situation of the employees receiving the ballot
was thus one in which they are presented with a `fait
accompli," namely, the results of the July 11 meet-
ing.22 The ballot was accompanied with a plea and
propaganda for approval of the proposition on the
ballot. With no assurance given to the voter that the
ballot would be secret he could only assume his vote
would be known to those who strongly favored the
proposition. The ballot was received from, and to be
returned to Local 1012. A mail ballot election con-
ducted under these circumstances neither conforms
to the procedures of Board-conducted mail ballot
elections nor permits the exercise of a free choice.
Further, in my view, the contention of the majority
that the Petitioner "is functionally the same organi-
zation as the certified representative" will not with-
stand scrutiny. As stated by the court in American
Bridge Division, U. S. Steel Corp. v. N.L.R.B., supra:
Previous cases which have considered the
amendment of certification procedure concur
that it is proper where there is merely a change
in the name of the organization. The Second
Circuit in Cocker Saw Co. v. N.L.R.B., 446 F.2d
870, 872 (2nd Cir. 1971), held: "An amendment
to a certification is proper only to permit
changes in the name of the representative, not to
change the representative itself." Cf. N.L.R.B. v.
Mulligan of Dearborn, Inc., 434 F.2d 1052 (6th
22 In Carriage Oldsmobile Cadillac, Inc., 210 NLRB 620 (1974). the Board
held the requirements for amendment of certification had not been met
where the approval of unit employees was sought "after informing that
decision to transfer jurisdiction over them had already been made."
Cir. 1971). To permit the procedure to cover ad-
ditional situations involving significant changes
in the actual identity of representatives and a
diminution in the rights of bargaining units'
members without a Board-sponsored election
exceeds the scope and purpose of the Board's
own rules and is contrary to the sound legisla-
tive policy behind Section 9 of the National La-
bor Relations Act.
IAPD was incorporated as a nonprofit Louisiana
corporation domiciled at New Orleans. It continued
to maintain this corporate structure after its affilia-
tion with District 2, MEBA, with the members also
stockholders of the corporation.23 It has sought to
represent and bargain for employees of employers
located in Louisiana and surrounding areas on the
basis of single-employer bargaining units. The an-
nounced purpose of Local 1012 is to bargain on the
basis of a national multiemployer basis backed by a
"850,000 man union." In fact, the announced bar-
gaining objectives of the Carpenters Union and its
Local 1012 would appear to be in conflict with the
very certification in this case which they seek to have
transferred to them. As testified to by Woodhall,
membership in IAPD was not automatically transfer-
red to Local 1012. Subsequent to the meeting of July
11, 1975, letters were sent by Woodhall to members
of IAPD soliciting their applications for membership
in Local 1012 of the Carpenters Union. A copy of
this application for membership, the signing of which
is referred to in the majority decision as "ministerial
only" is attached as an Appendix [omitted from pub-
lication] to this dissent. The record does show that
Woodhall in his negotiations with the Carpenters
Union was given assurance that he and other officers
would retain their position in the new organization.
However, I do not find this persuasive on the issue of
continuity of representation or a change in the bar-
gaining representative.
Under the circumstances presented here, to certify
Local 1012 as the bargaining representative of the
employees of the bargaining units involved in this
proceeding without affording the employees of these
units an opportunity to express a choice in a Board-
conducted election is contrary to the purposes of
Section 9 of the Act.
23 Although at the July 11, 1975, meeting , the membership as stockholders
voted by a show of hands to dissolve the corporation , this had not been
done. No distribution of its funds to the shareholders had been made as
would be required upon dissolution. It is still listed as a Louisiana corpora-
tion , with a separate bank account from Local 1012.