Ohio Poly Corp.

National Labor Relations Board - Board Decisions

Oct 16, 1979

246 N.L.R.B. 104 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio Poly Corporation and District Lodge 79 of the
International Association of Machinists and Aero-
space Workers, AFL-CIO. Case 8-AC- 102
October 16, 1979
DECISION ON REVIEW AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
ANI) PENEI..O
On March 7, 1979, the Regional Director for Re-
gion 8 issued his Decision and Order Amending Cer-
tification in the above-entitled proceeding, in which
he granted Petitioner's request and amended the Cer-
tification of Representative issued in Case 8-RC
11217 by substituting "District Lodge 79 of the Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO" for "Ohio Poly Corp. Employ-
ees Independent Union." Thereafter, in accordance
with the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Employer filed
a timely request for review, in which it contended,
inter alia, that officially reported Board precedent re-
quires that the petition be dismissed and the question
of representation raised herein he resolved only by a
Board-conducted election.
By telegraphic order dated April 24, 1979, the Na-
tional Labor Relations Board (Member Murphy dis-
senting) granted the Employer's request for review.
Thereafter, the Board received a timely brief on re-
view from the Employer and a submission from the
Petitioner which was untimely and accordingly re-
turned.
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 considered the entire record in this
case with respect to the issues under review' and
makes the following findings:
The issue in this case is whether an affiliation vote
should be honored where certain employees in the
unit were not eligible for membership in the incum-
bent union and thus were not eligible to vote on the
question of affiliation with another union, but their
number was insufficient to affect the results of the
affiliation vote.
The operative facts can be briefly stated:
Ohio Poly Corp. Employees Independent Union
(herein the Independent) has represented the Em-
Specifically, the issue of the validity of "members-only" union affiliation
elections under the circumstances herein. The request for review is hereby
denied as to all other issues raised, except as noted for Member Penello in fn.
6.
ployer's employees since 1974 and was certified as the
representative of the production and maintenance
employees in early 1978.2 During a strike in Decem-
ber 1978. the membership voted 27-3 to affiliate with
District Lodge 79 of the International Association of
Machinists and Aerospace Workers, AFL-CIO. At
the time of the affiliation vote, the bargaining unit
contained 65 employees, of whom 44 were members
of the Independent. The remaining 21 were either
willingly nonmembers, probationary employees who
could be nonvoting members until the end of their 90-
day probationary period, or maintenance employees
who, under the Independent's constitution and by-
laws, were excluded from membership. There was no
evidence of record to indicate that any employees,
either member or nonmember, voiced any objection
to the entire affiliation vote process. Although one or
two probationary employees attended the December
22, 1978, meeting, at which the affiliation vote was
conducted, no probationary employee requested per-
mission to vote.
The Regional Director granted the requested
amendment, noting that the nonmembers were insuf-
ficient in number to change the outcome of the vote
and that there was no evidence that any employees
objected to the procedures or that any nonmember
employee was specifically refused the right to vote.
Under these circumstances, the Regional Director
held that the exclusion of nonmembers from the affili-
ation vote was not disqualifying under the recent
Amoco decision.3
While recognizing that the majority in Amoco held
that affiliation votes limited to union members may
be valid under some circumstances, the Employer ar-
gues in its request for review that this case differs
substantially from the facts in that case and comes
within its express reservations. In that case, a plural-
ity of Chairman Fanning and Member Murphy
stated that:
Where the nonmembers have not unwillingly
been relegated to the status of onlookers because
the membership ranks have been closed to them,
we do not find their exclusion from an affiliation
vote disqualifying.4
In this case all employees did not have the right to
membership or the right to participate in the affili-
ation vote procedure; maintenance employees were
ineligible in all respects.
2 The certification lollowed a Stipulation for Certification Upon Consent
Election in Case 8 R(' 11217. The election was held during the term of a
contract entered into on December 2, 1975. effective until December 2, 1978,
and yearly thereafter unless either party gave written notice of desire to
amend, modify, or terminate.
Amoco Production Company, 239 NLRB 1195 ( 1979) Members Jenkins
and Penello, dissenting separately )
41d at 1196.
246 NLRB No. 19
104
OHIO POLY CORPORATION
As noted above, the Board agrees that the issue in
this case is the effect to be given a members-only vote
for affiliation when some employees were excluded
from membership, but disagrees on the consequences
to be given that fact. However, this fact results in a
majority of the Board members who would, for differ-
ent reasons, refuse to amend the Independent's certi-
fication to reflect the affiliation vote and who would,
instead, dismiss the petition. Chairman Fanning
would do so because he finds invalid a members-only
affiliation vote where a substantial number of em-
ployees in the bargaining unit have been excluded
from membership not by choice or lack of tenure, but
by the union's constitution and bylaws. Chairman
Fanning notes that here, because of union-imposed
restrictions, the maintenance employees have been
permanently denied the opportunity to become mem-
bers and participate in the affairs of the Independent.5
In his opinion, the minimum prerequisite for the
Board's honoring a members-only affiliation vote is
that the employees affected thereby have an opportu-
nity at some point in time to become members and
obtain voting rights. Thus, although Chairman Fan-
ning is reluctant to intrude upon a basically internal
I Thus, Chairman Fanning deems the situation surrounding the mainte-
nance employees' exclusion to be significantly different from that of the
probationary employees. Because of their status, probationary employees
may be ineligible for membership until their probation ends but, unlike the
maintenance employees herein, the) eventually have an opportunity to ob-
tain membership and voting nghts. Normally. Chairman Fanning would not
find that the exclusion of probationary employees, whose disenfranchisement
is temporary and frequcntly pursuant to a lack of seniority as set forth in a
collective-bargaining agreement. invalidates a members-only union afili-
ation vote. See Bear Archer., Division f iror Compiometer Corporation,
223 NLRB 1169 11976).
union matter, he would not find valid the affiliation
vote herein. Member Jenkins would not find any
members-only vote valid for the reasons he first enun-
ciated in his dissent in North Electric Companv, 165
NLRB 942. 944 (1967), most recently explicated at
length in his dissent in part in Providence Medical
Center, 243 NLRB 714, 715-717 (1979). Member
Penello would apply the principles set forth in Anieri-
can Bridge Division, United States Steel Corporation v.
N.L.R.B. inasmuch as the affiliation sought here of
an independent local union with an international
would result in a change in the identity of the em-
ployees' bargaining representative. Thus, in addition
to finding the members-only vote invalid for the rea-
sons set forth by Member Jenkins, Member Penello
would find that this case involves a question concern-
ing representation which can only be resolved by a
Board-conducted election. See particularly his dissent
in part in Providence Medical Center. supra at 717
719, in which he fully articulated his position on affili-
ation votes.
Accordingly, as a majority of the Board agree to
the result, we shall dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
6 457 F.2d 660 (3d Cir. 1972). See also Member Penello's concurring opin-
ion in Jasper Seaulng Compam. 231 NLRB 1025. 1026 28 (1977) (Chairman
Fanning and Member Murphy dissenting) Member Penello dissents from
the denial of the Employer's request for reconsideration by the Board of its
position on the American Bridge doctrine.
105