The William Co.

National Labor Relations Board - Board Decisions

Sep 11, 1979

244 N.L.R.B. 953 (N.L.R.B. 1979)

THE WILLIAMSON COMPANY
The Williamson Company and Local Union No. 304,
Sheet Metal Workers International Association,
AFL-CIO, Petitioner. Case 25- AC 24
September 11, 1979
DECISION ON REVIEW AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS,
PENEI O., AND TRUESDAEE
Upon a petition for amendment of Certification of
Representative filed on September 11, 1978, a hearing
was held before Hearing Officer Robert C. Biessel.
The petition requests the Board to amend the Certifi-
cation of Representative issued to the Furnace and
Container Makers Association,' the Intervenor in this
proceeding, by substituting the name of the Peti-
tioner, Local Union No. 304, Sheet Metal Workers
International Association. The Intervenor supports
the affiliation. The Employer, however, is opposed to
the granting of the amendment on the grounds, inter
alia, that the petition raises a question concerning
representation which can only be resolved through a
Board-conducted election, that the petition is barred
by an existing contract, and that the affiliation elec-
tion conducted by the Intervenor was not in accord
with relevant Board standards of secrecy and neutral-
ity. On October 20, 1978, the Regional Director for
Region 25 issued a Decision and Order dismissing the
instant petition. The Regional Director concluded
that the petition was barred by the fact that various
locals of the Sheet Metal Workers had been rejected
by unit employees in three elections conducted by the
Board. Citing Mosler Safe Company, 210 NLRB 934
(1974), and noting that the safeguards provided at the
affiliation election were less than those of a Board
election, 2 the Regional Director ordered dismissal of
the petition.
Thereafter, in accordance with Section 102.69 of
the National Labor Relations Board's Rules and
Regulations, Series 8, as amended, the Petitioner filed
a timely request for review of the Regional Director's
decision asserting, inter alia, that the Regional Direc-
tor departed from officially reported Board precedent
and that compelling reasons exist for reconsideration
of the policy applied by the Regional Director in this
case. In response to the request for review, the Em-
ployer directs our attention to the arguments against
amending the Intervenor's certification raised in its
The certification, which encompasses a unit of the Employer's produc-
tion and maintenance employees, was issued by the Board on March 4. 1977,
in Case 25-RC-6512.
2 In support of this finding, the Regional Director cited Garv Enterprises,
Inc.., 86 NLRB 431 (1949).
brief to the Regional Director relative to the instant
proceeding. By telegraphic order dated December 7,
1978, the Board granted Petitioner's request for re-
view.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
The events giving rise to this proceeding are essen-
tially not disputed by the parties. The Intervenor was
originally certified as the exclusive bargaining repre-
sentative for a unit of the Employer's production and
maintenance employees in 1963. Since 1970, the
Board has conducted three successive secret-ballot
elections at the Employer's facility in Madison, Indi-
ana, involving the Intervenor and various local
unions of the Sheet Metal Workers. In each election.
the Intervenor defeated the different locals of the
Sheet Metal Workers. In the most recent election, the
Intervenor defeated Sheet Metal Workers Local 229
by a vote of 81 to 64, with I challenged ballot and I
vote against representation. The Intervenor was sub-
sequently certified on March 4, 1977, in Case 25-RC
6512. Thereafter, the Intervenor and the Employer
negotiated a collective-bargaining agreement effective
April 1, 1977, until March 31, 1980.
In June 1978, the Intervenor struck the Employer
for a period of 6 weeks. The strike ended when the
parties signed a new, superseding contract, effective
from April 1. 1978, until March 31, 1980. As an ap-
parent result of the strike, including its drain on the
Intervenor's treasury,3 members of the Intervenor
broached the subject of affiliating with the Sheet Met-
al Workers. The Sheet Metal Workers subsequently
agreed to charter the Intervenor as a new local with
retention of its organizational structure, leadership.
bylaws, and bargaining committee. At a meeting of
the Intervenor's executive and bargaining committee
on June 29, 1978, a motion was made and carried by
the vote of all 15 members of the committee to hold a
special meeting for the purpose of discussing the pos-
sibility of amending the Intervenor's certification. A
notice was posted at the Employer's plant on July 31,
announcing that the meeting would be held on Au-
gust 20.
The special meeting of the Intervenor's member-
ship was held, as scheduled, on August 20. The min-
utes of this meeting reveal that a motion was raised
and passed by a vote of 19 to 0 to hold an affiliation
election. 4 On August 23 a notice to all bargaining unit
employees was posted at the plant announcing that
an election would be held on September 8 to deter-
According to the minutes of the Intervenor's June 29 meeting, the 6-week
strike cost the Union's treasury SI 1,697, leaving a balance of S2,461.
' Although not clear from the record, it appears that the Intervenor had a
total membership of between 150 160 employees at times matenal herein.
244 NLRB No. 147
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mine whether the Intervenor's certification should be
amended to reflect the name of the Petitioner. This
notice was followed by a notice sent by the Interve-
nor's president on August 28 to all bargaining unit
employees, including nonmembers. In this notice the
president expressed his support for affiliating with the
Sheet Metal Workers, emphasizing the important
contributions the Sheet Metal Workers could make to
securing a better contract, financial aid, legal aid, and
proper training for officers and representatives. The
notice concluded by urging all unit employees to vote
for affiliation with the Sheet Metal Workers on Sep-
tember 8.5
The affiliation election was conducted as scheduled
at the Knights of Columbus Hall across from the Em-
ployer's plant. Three rank-and-file members of the In-
tervenor served as tellers and judge. As the voter en-
tered the building the first teller crossed off the name
of the voter on a voting list. The voter then proceeded
to the second teller where the voter signed the min-
utes and was given a ballot. Employees were then
instructed to vote either yes or no to the proposition:
TO AMMEND THE CERTIFICATION
DATED MARCH 4, 1977, FROM THE FUR-
NACE AND CONTAINER MAKERS ASSO-
CIATION TO LOCAL #304, SHEET METAL
WORKERS INTERNATIONAL ASSOCI-
ATION, AFL-CIO.
After receiving the ballot, the voter walked a distance
of approximately 50 feet across the room to a table
where the voter marked his ballot and placed it into a
nearby locked metal ballot box. According to uncon-
troverted record testimony, the employees voted with
their backs to the tellers and judge. Other than the
judge and two tellers, there is no evidence that any-
one else was present in the polling area.
At the close of the polls the ballot box was opened
by the judge in the presence of approximately 20 peo-
ple. The judge took out each ballot individually and
called it off as a yes or no vote. Of the approximately
160 employees in the bargaining unit, 123 voted in
the affiliation election. At least one nonmember unit
employee voted pursuant to the Intervenor's open
voting policy. The final tally was 816 in favor of affili-
ation and 42 against. 7
During this same period the Employer circulated to employees a letter,
dated July 26, urging employees to vote against the proposed affiliation with
the Sheet Metal Workers International Association. This letter was followed
by another letter on September 6 from the Employer's president reiterating
the Employer's opposition to the proposed affiliation and reemphasizing the
reasons why the employees should vote against affiliation.
' One ballot was marked to the left of the yes box with a checkmark. The
judge held this ballot up for all to see and the group of individual's present
unanimously determined that the ballot was a yes vote.
'On advice of counsel, the Intervenor has continued to function as the
representative of the unit employees pending amendment of its certification
to reflect the Petitioner's designation.
In refusing to amend the Intervenor's certification
to reflect the Petitioner's designation, the Regional
Director, as noted, emphasized the particular fact
that the current Petitioner is the local of an interna-
tional union that had been rejected by the unit em-
ployees in three Board elections in the recent past.
Relying on Mosler Safe Company, supra, the Regional
Director concluded that to grant the requested
amendment would, in effect, reverse the outcome of a
Board-conducted election. In reaching this conclu-
sion, the Regional Director also emphasized that the
procedural safeguards provided in the affiliation elec-
tion were not in accord with the standards of a
Board-conducted election.
Having carefully considered the issues. the conten-
tions of the parties, and the Regional Director's deci-
sion, we are of the opinion, as is more fully set forth
below, that the requested amendment should be
granted. Our conclusion in this respect is the product
of careful examination of the circumstances preced-
ing the filing of the petition herein and of a concern
that the employees' Section 7 rights to select "repre-
sentatives of their own choosing" be adequately pro-
tected. Our review of the facts in this case, in the
context of relevant Board principles, satisfies us that
granting the amendment will result neither in dis-
placement of the current bargaining representative
nor in institution of a successor organization that
would represent a reversal of the results of the Board
election in Case 25-RC-6512.
In dismissing the petitions, the Regional Director,
as noted, primarily relied on the decision in Mosler
Safe. We have reviewed the circumstances of that
case and find that the Regional Director's reliance on
Mosler Safe is misplaced. Thus, in Mosler Safe, supra,
the Board was confronted not only with a proposed
affiliation involving a union that had been rejected by
unit employees in two earlier Board-conducted elec-
tions, but with a major official (treasurer) of the in-
cumbent union who opposed the affiliation. 8 Further,
the Board particularly noted that there was a sub-
stantive irregularity in the conduct of the affiliation
election; i.e., a failure to cross-check the employees'
clock numbers against the list of employees eligible to
vote. But the Board also noted that little more than a
year had elapsed since the last Board election involv-
ing the same union that the unit employees had re-
jected. Thus, the Board, in dismissing the petition,
was expressing its concern that insufficient time had
elapsed in the interim between the Board's election
and the affiliation to remove any doubt that the affili-
ation was an attempt to circumvent the statute's nor-
mal processes for achieving representative status. In
reaching that conclusion, the Board was following a
"Cf. The Hamilton Tool Company, 190 NLRB 571, 575 (1971).
954
THE WII.I.IAMSON COMPANY
line of cases espousing the principle, grounded in pol-
icy, that more than a year would be required before
the incumbent representative could affiliate with the
union that had been previously rejected by unit em-
ployees in a Board election.9 Thus, a combination of
factors underscored the Board's finding that the peti-
tion should be dismissed.
In the instant case, by contrast, no major official of
the Intervenor opposed the affiliation and thus, unlike
the possibility in Mosler Safe, stability will be main-
tained in the successor organization. The affiliation
election itself appears to have been conducted in ac-
cord with the minimal standards the Board requires
of such elections.'0 Thus, all employees in the bar-
gaining unit, whether union members or not," were
provided with adequate notice, time for reflection,
discussion, and opportunity to vote on the question of
affiliation. In addition, reasonable efforts were made
to preserve the secrecy of the ballot. Significantly, no
unit employees have objected to the conduct of the
election. More importantly, nearly 19 months had
passed since the last election involving a local of the
Sheet Metal Workers and the affiliation election
herein. Finally, the organization of the certified union
remains intact, with only its name being changed to
reflect its affiliation with an international union.
As the foregoing illustrates, the circumstances
which led the Board to dismiss the petition in Mosler
Safe are clearly not evident here. Of particular signif-
icance is the extended period of time that has elapsed
in the instant case between the last Board election
and the affiliation election herein. We believe this
fact, considered together with the absence of any pro-
cedural or substantive irregularity in the conduct of
the affiliation election, compels the conclusion that
the amendment should be granted. While we have
barred petitions for amendment of certification in
similar situations where the affiliation occurred less
See United Hydraulics Corporation, 205 NLRB 62 (1973); The Bunker
Hill Company, 197 NLRB 334 (1972); Bedford Gear & Machine Products.
Inc., 150 NLRB I (1964); Gulf Oil Corporation. 109 NLRB 861 (1954).
10 In his decision, the Regional Director particularly noted that the "safe-
guards provided (in the affiliation election) were less than those of a Board
conducted election." The Board, however, has consistently held that such
elections in order to be valid need not measure up to the standards the Board
demands for its own elections. As we stated in Quemetco. Inc.. a Subsidiary of
RSR Corporation, 226 NLRB 1398, 1399 (1976), "the strictures which the
Board] imposes on its own election proceedings are not generally applicable
in proceedings to amend certification, or in proceedings likel this involving
[union] affiliation elections." As the affiliation election appears to have been
conducted in accordance with minimal standards of due process and with
reasonable efforts expended to preserve the secrecy of the ballot, we find no
procedural basis for disregarding the results of that election. See Amoco
Production Company. 239 NLRB 1195 (1979).
" ecause the matter voted on concerned affiliation, the validity of the
affiliation election is not affected by whether nonmember unit employees
were accorded the opportunity to vote. See Amoco Production Company,
rupra. Member Jenkins does not subscribe to this footnote.
than a year after the last Board election. 2 we have
never stated, as an inflexible proposition, that we
would never permit amendment ot a union's certifica-
tion it that union is affiliating with another labor or-
ganization that had been previously rejected 1h unit
employees. The statute does not mandate such a rule
and we perceive no polic\ basis for imposing such an
unyielding rule when, in our judgment. the evidence
clearly demonstrates the hona irides of the affiliation
election.
Further, we must temper our policy concerns in
this area with the practical realization that the Sec-
tion 9(a) bargaining representative must be ree to
readjust its internal organization in order to meet
changing financial and contractual demands. The em-
ployees' bargaining representative has a responsibility
to carry out its statutory responsibilities in the most
effective way. Because of this responsibility. the bar-
gaining representative must remain largely unfettered
in its organizational quest for financial stability and
aid in the negotiating process. Moreover, permitting
amendment in this case is particularly consonant with
the concept that affiliations are purely internal union
reorganizations that do not result in dissolution of the
existing bargaining representative.'s Because affili-
ations do not engender a change in the essential iden-
tity of the incumbent representative, a question con-
cerning representation is not raised requiring a
Board-conducted election. Accordingly. the Board
only requires that the proposed change be approved
by a simple majority of the incumbent union's mem-
bership voting on the subject of affiliation.'4 As it is
clear that a majority of the Intervenor's members vot-
ing on the question of affiliation assented to the affili-
ation with the Petitioner and, as we perceive no pro-
cedural impropriety in the conduct of the affiliation
election," we, contrary to the Regional Director,
I: See the cases cited at fn 9 upra Thu, the Decision n Miler Sat
represents an exception to the usual I -year rule enunciated in Gulf Oil. upra,
and its progeny While little more than a year had elapsed between the
election and the affiliation in Mosler Safe, the Board noted that the particu-
lar circumstances of that case precluded approval of the requested amend-
ment.
i Amoco Production Cormani. supra
4 The Hamilton Tool Companv. supra at 574 Member Jenkins does not
adopt this view.
is As discussed above, the Employer also argued that the petition in this
case was barred by the current contract between the Employer and the
Intervenor. In view of our finding that the petition does not raise a question
concerning representation, we find no merit to the Emploser' contract-bar
argument.
Additionally, the Employer contends that the election procedures were not
in strict accordance with the requirements of the Intervenor' constitution
Specifically, the Employer argues that the constitution does not pros ide for a
vote on amending a certification and that the sergeant-ai-arms did not dis-
tribute the election ballots as required by the constitution As we have previ-
ously stated. '"[strict adherence to the constitution is not the controlling
factor in such cases: 'What is important is whether the employees members)
had proper opportunity to express their desires'" .'e. ipapers, I , 210
NLRB 8, 9. fn. 3 (1974). As we have found the election ti, have been prop-
erly conducted, we find no ment to the Employer's argutmeni
955
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grant the requested amendment of certification to re-
flect the name of Petitioner.
ORDER
It is hereby ordered that the petition to amend cer-
tification filed by Local Union No. 304, Sheet Metal
Workers International Association, AFL-CIO, be,
and it hereby is, granted, and that the Certification of
Representative issued in Case 25-RC-6512 to Fur-
nace and Container Makers Association be amended
by substituting the name of the Petitioner.
MEMBER PENELI.O, dissenting:
Unlike my colleagues, I would not amend the certi-
fication in this case. For the reasons expressed in my
recent dissent in part in Providence Medical Center, 16 I
would apply the principles of American Bridge"7 to
the facts herein and find that the proposed affiliation
raises a question concerning representation which can
only be resolved by a Board-conducted election.
The Intervenor herein, Furnace and Container
Makers Association, is an independent association
which has represented the production and mainte-
nance employees of the Employer since it was certi-
fied by the Board in 1963. Only employees of the
Employer are eligible to belong to the Association. At
the time of the affiliation election there were approxi-
mately 160 unit employees. In 1975 the Sheet Metal
Workers' International Association, with which affili-
ation is sought, reported a membership of 160,860
employees.
Unlike the affiliation election cases in which I have
recently expressed my views on this subject,' 9 this
'6 243 NLRB 714 (1979).
17 American Bridge Division, United States Steel Corporation v. N.L.R.B.,
457 F.2d 660 (3d Cir. 1972).
1 Directory of National Unions and Employee Associations 1975, pub-
lished by the U.S. Department of Labor Bureau of Labor Statistics.
19 See my concurring opinion in Jasper Seating Company, Inc., 231 NLRB
case does not involve a situation in which only mem-
bers of the incumbent union were permitted to vote in
the affiliation election. The record reveals that, pursu-
ant to its "open voting" policy, all unit employees,
regardless of membership in the Intervenor, received
notice of, and were permitted to vote in, the affiliation
election.
Under certain circumstances, this fact alone might
persuade me to sanction the results of a privately con-
ducted affiliation election.20 However, this fact, stand-
ing alone, is not sufficient in the circumstances of this
case to lead me to approve the affiliation election, for
the election was not conducted under the auspices of
the Board. I have repeatedly indicated that the affili-
ation of a small, independent local union with an in-
ternational union affects a substantial change in the
identity of the bargaining representative, such that a
question concerning representation is raised which
can only be resolved by a Board-conducted election.2 '
Since the affiliation of the Intervenor, representing
160 employees, with the Sheet Metal Workers' Inter-
national Association, representing over 160,000 em-
ployees, would, in my opinion, result in a substantial
change in the identity of the employees' bargaining
representative, I cannot, in the absence of a Board-
conducted election, approve the affiliation vote con-
ducted privately herein. I would not, therefore,
amend the certification to reflect the proposed affili-
ation.
1025 (1977), my dissenting opinion in Amoco Production Companv. 239
NLRB 1195 (1979), and my dissent in part in Providence Medical Center.
supra.
10 As I noted in my dissent in part in Providence Medical Center, such
circumstances would include "a change in designation of a local union, a
change in affiliation from one intemational to another, and a change from
one local to another within the same international." Those are situations in
which the proposed affiliation would not result in a change in the bargaining
representative's identity.
21 In view of this finding, I find it unnecessary to reach and pass on the
applicability of the principles of Mosler Safe Companvy, 210 NLRB 934
(1974), to the facts herein.
956