Peco, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1973

204 N.L.R.B. 1036 (N.L.R.B. 1973)

1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peco, Inc. and Northwest Industrial Plastic and Metal
Workers Union , affiliated with the Marine Engi-
neers Beneficial Association (AFL-CIO), Peti-
tioner. Case 36-AC-12
July 11, 1973
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY
AND PENELLO
On May 17, 1972, the Regional Director for Region
19 issued a Decision and Order in the above -entitled
proceeding wherein he granted the Petitioner's re-
quest that its name be substituted for that of Peco
Employees Association (referred to herein as the As-
sociation), the originally certified representative of
the employees involved . Thereafter, in accordance
with Section 102.67 of the National Labor Relations
Board Rules and Regulations , Series 8, as amended,
the Intervenors ' filed a timely request for review con-
tending that the Regional Director , in granting the
requested amendment , made findings of fact which
are clearly erroneous and departed from reported
,precedent.
By telegraphic order dated August 8, 1972, the Na-
tional Labor Relations Board granted the request for
review.
The Board has considered the entire record in this
case with respect to the issues under review and makes
the following findings:
The Employer is located in Portland , Oregon,
where it is engaged in the fabrication of plastic and
metal products . The Association, which represents
only employees of the Employer , was certified on Oc-
tober 11, 1957, as the representative of the Employer's
production and maintenance employees in Case 36-
RC-1287. Until early 1970 the Association func-
tioned as an unaffiliated labor organization . Thereaf-
ter, through a chronological series of actions
described more fully below, the Association first un-
dertook to affiliate with an organization subordinate
to the Marine Engineers Beneficial Association (here-
inafter called MEBA), later to affiliate with a different
subordinate of MEBA , and finally to change its name
to that of the Petitioner . The Petitioner seeks primar-
ily to amend the certification to reflect the
Association's affiliation with MEBA and the change
' The Intervenors are a group of unit employees represented by Jim D.
Korshoj , attorney, who are opposed to amending the certification . They do
not purport to be a labor organization but prior to the close of the hearing
five of the Intervenors were elected to positions on the nine-member board
of directors of the Association including the positions of president and vice
president
in its name ; in the alternative, it seeks amendment to
reflect the affiliation only. The Intervenors, who de-
sire that the Association continue functioning as an
unaffiliated labor organization, contend that the am-
endment herein should not be granted because the
procedures followed in connection with both the affil-
iation actions and the name change demonstrate a
lack of due process and other minimum safeguards to
assure that these actions represented the desires of the
employees and, therefore, a question concerning rep-
resentation exists which may not be resolved in this
proceeding. We agree.
As background for our conclusion, the record disc-
loses that in early 1970 Olin Yoder, then president of
the Association, entered into affiliation negotiations
with officials of the Professional, Office and Industri-
al Union, affiliated with District No. 1-Pacific Coast
District, MEBA (hereinafter refered to as POIU and
District No. 1, respectively), located in San Francisco.
These netotiations ultimately resulted in a referen-
dum wherein a majority of the Association's mem-
bers 2 voted to affiliate with POIU. Notwithstanding
this action, the Employer declined to recognize any
organization other than the Association as the repre-
sentative of its employees unless or until such other
organization was certified by the Board.3 The Em-
ployer did agree to permit William Fast, a Portland
MEBA official, to participate with the Association's
officials in meetings related to the administration of
the contract with the understanding that he was acting
for the Association and not some other organization.
In December 1970, POIU was merged into District
No. 1, pursuant to a referendum among its members,
and it ceased to exist as a separate entity. Under the
merger provisions, POIU's affiliates could become di-
rectly affiliated with District No. 1 under the same
terms and conditions as they had been affiliated with
POIU.
Accordingly, Fast proposed in late January 1971
that the Association consider a resolution calling for
the direct affiliation of the Association with District
No. 1 on the same terms and conditions as the
Association's affiliation with POIU. Although it is
disputed that any notice with respect to Fast's propos-
al was given, one of the Petitioner's witnesses testified
that on February 8 he posted copies of the proposed
affiliation resolution at the plant together with notices
of the Association's scheduled February 10 meeting,
which announced that there would be, among other
2 There is no contention that, at any time material hereto , any unit employ-
ee was not a member of the Association The collective-bargaining agreement
between the Employer and the Association contains a union -security clause.
J Although the Employer participated in the instant proceedings and took
no position with respect to the proposed amendment, it has consistently
maintained that it would recognize no organization other than the Associa-
tion as the representative of its employees unless certified by the Board.
204 NLRB No. 135
PECO, INC. 1037
things, a "vote on MEBA affiliation." ° This meeting,
as with most meetings of the Association, was held in
the evening at a time which did not permit employees
who worked on the afternoon shift to attend.' Some
witnesses estimated that the February 10 meeting was
attended by between 20 to 30 employees while others
testified that less than 20 members attended. The pro-
posed resolution was read and discussed by those
present and the Association' s minutes disclose that
the resolution was passed unanimously. It is conceded
that there was no secret ballot taken with respect to
the resolution.
From June through August 1971 the Association
conducted negotiations with the Employer for a new
collective-bargaining agreement to replace the ex-
isting one scheduled to expire August 1, 1971. Al-
though the record is not entirely clear in this respect,
it appears that following the conclusion of negotia-
tions execution of the new agreement was delayed
until early October, pending proceedings before the
Internal Revenue Service in compliance with proce-
dures established under the Economic Stabilization
Act.
In the meantime Jerry Winfrey, who succeeded Yo-
der as the Association's president, discussed with
some members a proposal to change the Association's
name to that of the Petitioner herein and at the
Association's regular meeting in September 1971,
Winfrey offered this proposal to the membership in
attendance. It was passed unanimously by the 11
members in attendance with the understanding it
would be submitted to membership for ratification.
Thereafter, without further notice, Winfrey appeared
at work on September 15, 1971, and began distribut-
ing envelopes to members containing a ballot for the
name change referendum as well as a letter endorsing
the name change.' Shortly after the distribution of
these materials Ben Guard, one of the Intervenors
herein, protested the inclusion of Winfrey's partisan
message with the balloting materials and Winfrey im-
mediately discontinued the balloting. Approximately
a week later-and without further notice-Winfrey
again distributed ballots for the name change referen-
dum. On this occasion, Guard circulated a petition
among the employees of the day shift requesting that
The Association's February meeting is designated as its annual meeting
for the purpose of electing officers. It appears that the election of officers is
conducted by secret ballot.
5 The record does not disclose the actual number of afternoon shift em-
ployees at any time material hereto but there is no contention that the
number is insubstantial.
6 Winfrey's endorsement letter which he later distributed apart from the
ballots states , in pertinent part , as follows-
I believe that this is a good thing for our union . We will be able to bring
other independent unions like ours under one union also from unions
in companys that do not now have a union. The more people that we
can get to join will mean better benefits for all of us.
the balloting be discontinued until a special member-
ship meeting was held to discuss the proposal. When
Guard presented the petition, signed by 37 members,
to Winfrey, Guard was told that it was sufficient to
warrant a special meeting. Guard also testified that he
understood the balloting would be discontinued, and
there is no evidence that Winfrey in any way indi-
cated he intended to continue the balloting as he did,
contrary to the request made in the petition. At the
conclusion of the day, Winfrey took the ballot boxes
to his home for safekeeping. Later, the requested spe-
cial meeting was scheduled for October 5, 1971.
On the eve of the special meeting, Winfrey invited
three Association members to come to his home for
the purpose of counting the aforementioned name
change ballots. The tally prepared on this occasion
shows there were 48 ballots returned; 31 favored the
name change, 9 opposed it, and 8 ballots were de-
clared void. At the special meeting the following day,
Guard was first permitted to present his views but a
heated exchange soon broke out between Guard on
the one hand and Winfrey and Fast on the other. At
the conclusion of the debate, Winfrey announced the
results of the tally made the previous evening and a
motion was made to accept results of the tally. This
motion was passed 15 to 7. Notwithstanding the ac-
tion taken at this time, the previously negotiated col-
lective-bargaining agreement was executed on
October 7 in the name of the Association.
Upon the foregoing and the entire record in this
case, we find no basis for granting either the primary
or the alternative requests of the Petitioner for amend-
ment of the Association. In prior cases involving re-
quests for amendment of a certification issued to an
independent labor organization to reflect its affilia-
tion or merger with another labor organization, we
have required evidence that the membership action
taken to effect the change meets minimal standards
for democratic procedures and that the change in-
sures to employees a continuity in their representation
and organization.' Such evidence is lacking in this
case.
With regard to the Petitioner's primary request
based on the action taken by the membership in Sep-
tember 1971, it is clear that the members were not
given an adequate opportunity prior to the vote to
discuss the proposed name change the reason for
which was, apparently, to facilitate subsequent orga-
nizational efforts among employees of other employ-
ers. Thus, as indicated above, although the
Association's president acceded to the request for a
special meeting for the purpose of discussing the mer-
7 See , e g, East Dayton Tool & Die Company, 190 NLRB 577; The Hamilton
Tool Company, 190 NLRB 571, Equipment Manufacturing, Inc, 174 NLRB
419; North Electric Company, 165 NLRB 942, Emery Industries, Inc, 148
NLRB 51.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its of the proposal, he continued the referendum and
announced its results at the special meeting later held
for the purpose of advance discussion of the proposal
which was the subject of the vote. Apart from this
fact, it is entirely possible that a substantial number
of members did not participate in the referendum
because they believed it would not be continued until
after the special meeting. For these reasons, we are
unable to conclude the September 1971 referendum
was conducted in accord with democratic procedures.
The action upon which the Petitioner's alternate
request is based is likewise deficient. Although the
Association initially undertook to become a subordi-
nate unit of POIU, that organization went out of exis-
tence in December 1970 and its subordinate units
were left to take action to affiliate with District No.
1, MEBA. In our opinion, the action taken by mem-
bers of the Association at the meeting held in Febru-
ary 1971 did not meet minimal democratic standards.
This meeting , attended by at best 30 percent of the
membership, was held at a time which precluded par-
ticipation by a substantial number of members em-
ployed on the afternoon shift and no provision was
made for secret balloting. Moreover, it appears that
the Association, despite the actions described above,
has continued to exist as such inasmuch as the Em-
ployer, in dealing with officials claiming to represent
unit employees, has done so only with the under-
standing that they act as representatives of the Associ-
ation, and that the current contract executed October
7, 1971, was signed by them solely in the name of the
Association. Finally, as we noted above, the Interve-
nors who oppose the requested amendment were
elected to a majority of the positions on the
Association's board of directors during the pendency
of these proceedings. For these reasons, we have con-
cluded that the petition herein raises a question con-
cerning representation which may be resolved only in
an election under Section 9(c) of the Act. Accordingly
we shall dismiss the instant petition.8
ORDER
It is hereby ordered that the petition herein be, and
it hereby is, dismissed.
8 In view of the above disposition of this case, Chairman Miller and Mem-
ber Penello find it unnecessary to discuss or decide the application to the
facts of this case of the court decision in American Bridge Division, United
States Steel Corporation v N L R B, 457 F 2d 660 (C A 3, 1972)