United Steelworkers of America

National Labor Relations Board - Board Decisions

Dec 24, 1980

253 N.L.R.B. 961 (N.L.R.B. 1980)

UNITED STEELWORKERS OF AMERICA
United Steelworkers of America, AFL-CIO-CLC (L
& S Products, Inc.) and Hannah Koch. Case 7-
CB-4592
December 24, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 16, 1980, Administrative Law
Judge Herzel H. E. Plaine issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
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 record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
United Steelworkers of America, AFL-CIO-CLC,
Coldwater, Michigan, its officers, agents, and rep-
resentatives, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Demanding or accepting recognition and
collective bargaining as the representative of em-
ployees of L & S Products, Inc., unless and until a
majority of employees within the appropriate unit
freely and without coercion has designated us as
their representative for collective-bargaining pur-
poses."
i The Administrative Law Judge's proposed remedy provides. inter
alia, that Respondent cease from acting as bargaining representative of
the Employer's employees "until such time as it demonstrates its majority
status in a Board-conducted election" The Administrative l.aw Judge
observes. however, that the parties' existing collective-bargaining agree
ment appears to bar a representation election and that the record does
not otherwise indicate the possible raising of a question concerning repre-
sentation In these circumstances. we find the traditional remedy of re-
quiring Respondent to demonstrate its majority status only by means of a
Board certification to be inappropriate, and shall order Respondent to re-
frain from demanding or accepting recognition and collective bargaining
as the representative of employees of L & S Products, Inc . unless and
until a majority of those employees in the appropriate unit freely and
without coercion has designated t as their representatlie for collrclive-
bargaining purposes. We shall modify the Administratisc Law Judge,\
recommended Order and notice accordingly
253 NLRB No. 129
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
To: All Employees of L & S Products
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WIL. NOT demand or accept recognition
and collective bargaining as the representative
of employees of L & S Products, Inc., unless
and until a majority of employees within the
appropriate unit freely and without coercion
has designated us as their representative for
collective-bargaining purposes.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL disavow any claim to recognition
as bargaining representative accorded by L &
S Products, Inc., to United Steelworkers of
America on and since August 23, 1979, and
WE WILL renounce the collective-bargaining
contract modification we obtained from L & S
Products, Inc., August 23, 1979.
WE WILL disavow the election of employees
of L & S Products, Inc., officers of Steelwork-
ers Local 8860.
WE WILL revise the identity of Local 8860
to exclude the representation and membership
of L & S Products, Inc., employees; or, alter-
natively, we will dissolve Local 8860 if it was
created only to comprise and represent such
employees.
WE WILL transfer back and restore to the L
& S Products, Inc., Employee Committee any
property or moneys, including bank accounts,
transferred by the Employee Committee to the
Steelworkers or its Local 8860.
UNITED STEELWORKERS OF AMER-
ICA, AFL-CIO-CLC
DECISION
HI-IRZIL. H. E. PLAINE, Administrative Law Judge:
The case involves an affiliation election that went awry
in May 1979.
Prior to that time, the employees of the party in inter-
est (herein called the Employer) had organized them-
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selves into an association or independent union called the
L & S Products Employee Committee (herein called
Employee Committee or Committee) to represent them
through an elected committee in dealings with the Em-
ployer. The Employer had recognized the Employee
Committee as collective-bargaining representative of the
production, maintenance, and trucking employees, and,
as of July 1, 1978, the two parties had concluded a col-
lective-bargaining agreement effective for the ensuing 3
years to July 1, 1981.
In 1979, certain employees became interested in an af-
filiation of the Employee Committee with Respondent
(the Steelworkers) and, with the Steelworkers aid, ar-
ranged for an affiliation vote. However, the evidence
showed that the vote was taken in May 1979 without ad-
vance discussion with or opportunity for discussion by
the employees, without notice of the election prior to
handing out the ballots, with contradictory information
on what the employees would be voting for, and with
printed ballots for some employees and only blank pieces
of paper for others. There was balloting without a
record of those to whom ballots were given; ballots were
taken away and marked away from the purported ballot-
ing place and accepted from persons supposedly handing
them in for others; no final tally or record of the vote
was kept; the ballots were accepted and counted the day
after the supposed voting time; and thereafter two addi-
tional ballots favoring affiliation to break an apparent tie
vote were accepted and counted.
Notwithstanding a protest to the Steelworkers repre-
sentatives from within the Employee Committee, the
Steelworkers went ahead and requested of the Employer
recognition as bargaining representative of the employ-
ees, indicating that it would respect the existing collec-
tive-bargaining contract.
In August 1979, the Employer, apparently not aware
of any impropriety concerning the affiliation election, ex-
ecuted a consent to substitute the name of the Steelwork-
ers in place of the Employee Committee as bargaining
representative under the existing collective-bargaining
contract, which would continue in effect until July 1,
1981, and agreed to an amendment of the grievance-arbi-
tration provision of the contract.
On a charge filed by the Charging Party, employee
Hannah Koch, on October 11, 1979, the Board issued a
complaint on November 14, 1979, alleging that the Steel-
workers had violated Section 8(b)(l)(A) of the National
Labor Relations Act, as amended (herein called the Act),
by demanding and obtaining recognition as bargaining
representative of the employees and maintaining and en-
forcing on their behalf a collective-bargaining contract,
notwithstanding that Steelworkers did not represent a
majority of the employees.
Although Respondent Steelworkers filed denials in its
answer, the evidence has shown these to be without sub-
stance, and the affiliation vote was ineffective for lack of
the minimum democratic procedures and due process re-
quired for an affiliation election. As a result, the ultimate
issue among the three parties was the remedy to be pro-
vided in connection with voiding the affiliation vote.
All three appear to agree that, as a minimum, the
Steelworkers must relinquish the recognition given to it
by the Employer, and must cease administering and
giving effect to the collective-bargaining contract as its
contract, unless and until certified or otherwise qualified
as bargaining representative.
The Employer is of the view that it is entitled o the
collective-bargaining contract with the Employee Com-
mittee for the remaining life of the contract and that the
Board order should restore the status quo ante. The
Steelworkers do not disagree with this view, suggesting
however a preferred alternative, but the General Counsel
expresses doubt.
The Steelworkers preference is that the Board order
and supervise a rerun affiliation election, which would
thereby assure due process in the election.
The General Counsel opposes this position of the
Steelworkers, stating instead preference for a certifica-
tion election (if there is to be an election), on the ground
that it would afford the employees an opportunity to say
whether they want representation by their Employee
Committee or by the Steelworkers or by some other
union that qualifies, or no representation by a union. The
General Counsel appears to recognize that such an elec-
tion at this time might prematurely terminate the Em-
ployer's collective-bargaining contract.
The case was heard before me in Battle Creek, Michi-
gan, on April 22, 1980. All three parties have filed briefs.
Upon the entire record, including my observation of
the witnesses and consideration of the briefs, I make the
following:
FINDINGS OF FACT
I. JURISI)ICTION
The Employer is a Michigan corporation with its prin-
cipal office and two plants, one on Race Street and the
other on Behnke Road, in Coldwater, Michigan. The
Employer is in the business of manufacture and nonretail
sale of display racks and related products.
In the calendar year 1978, a representative period, the
Employer sold and distributed manufactured products,
valued in excess of $50,000, from its Michigan plants di-
rectly to points outside Michigan.
As the parties admit, the Employer was an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
As the parties also admit, Respondent Steelworkers
was a labor organization within the meaning of Section
2(5) of the Act.
Though not a party to this proceeding, the L & S
Products Employee Committee was also a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE UNFAIR I.ABOR PRACTICES
A. The Business Operations and Union Organization
The Employer manufactures and sells display racks
and related products. The work is done at two plants in
Coldwater, the Race Street plant and the Behnke Road
plant.
In 1979, there were about 120 employees at both
plants. with approximately 55 of them at the Race Street
962
UNITED STEELWORKERS OF AMERICA
plant. At that time there were three shifts, round the
clock, operating at the Behnke Road plant, but only two
shifts at the Race Street plant. At the time of the hearing
it appeared that both plants operated on two shifts.
Sometime in 1978 or earlier, the employees had
formed their own independent union, comprising a non-
dues-paying association of all employees, who elected by
shifts a representative from each shift of the two plants
to constitute the L & S Products Employee Committee.
The Employee Committee was the continuing repre-
sentative of the employees and negotiated a collective-
bargaining agreement with the Employer, effective July
1, 1978, for 3 years to July 1, 1981. (G.C. Exh. 2.)
The expenses of the Employee Committee were met
by a "pop" fund, according to the Committee's president
or chairman of 1979, employee Ross Tule, which fund
was derived from profits on the sale of refreshments
from vending machines, which the Employee Committee
was permitted to operate at the plants. The fund was
kept in a bank account in the name of the L & S Prod-
ucts Employee Committee and, according to Tule, had
about $1,500 in it when sometime in the summer of 1979
(after the May 1979 affiliation vote) the bank account
was put into the name of Steelworkers Local 8860, by
which name the Employee Committee became identified.
B. The Affiliation Vote
According to employee Carla Cardinal, of the first
shift at Race Street plant, who was the Employee Com-
mittee member for that shift since April 1978, and em-
ployee Hannah Koch of the second shift at Race Street
plant, who had been Employee Committee member for
that shift until February 1979, there were rumors of a
Steelworkers effort to achieve affiliation of the Employ-
ee Committee with the Steelworkers Union in late April
1979.1 The most interested and active employee for the
affiliation, though not a member of the Employee Com-
mittee, was employee Don Miller of the second-shift
Behnke Road plant.
Employee Cardinal testified that the Employee Com-
mittee of five members met approximately May 7, 1979,
at a restaurant in Coldwater, with two Steelworkers rep-
resentatives, including Steelworkers Staff Representative
William (Bill) Anderson, and with the Steelworkers prin-
cipal supporter among the employees, employee Don
Miller, on the subject of affiliation of the Employee
Committee with the Steelworkers.
Steelworkers Representative Anderson discussed affili-
ation and, among other things, said he would send bal-
lots and a paper explaining affiliation. Employee Cardi-
nal testified, without contradiction, that Anderson said
the vote would be on whether the employees wanted to
have a Steelworkers representative appear before them
and explain affiliation. Again, without contradiction, Car-
dinal testified that Anderson enjoined the employees
present not to discuss with the other employees the sub-
The testimony of employee Carla Cardinal as in writing because
she had just given birth to a child at the time of the hearing and as
unavailable to testify With the consent of the parties, and pursuant to the
Fed R. Evid. 804(bX5), 28 US C A, her affidavit to the Board dated
October 23. 1979, was admitted into evidence (G C Exh 3).
ject of the meeting or affiliation until the Employee
Committee received the ballots and explanatory paper.
Apparently, Steelworkers Representative Anderson's
injunction to maintain silence or secrecy on what was
pending concerning affiliation was adhered to by the
members of the Employee Committee. Nevertheless,
without notice, or the posting of any notice in the plants,
and without opportunity for advance discussion with or
among the employees, printed ballots were delivered to
some but not all of the employees of both plants on
Friday, May 18, 1979, for a meeting and vote on Sunday,
May 20, 1979,2 at the employees' union hall in Cold-
water. The ballots (there apparently was no explanatory
paper) were distributed under the following circum-
stances.
Employee Cardinal testified that she received printed
ballots for her first shift at Race Street plant on Friday,
May 18. At quitting time for the shift, at the timeclock,
she distributed ballots to the approximately 30 employees
of her shift (which included probationary employees).
The ballots appeared to read,3 according to Cardinal:
"[D]o you want the Employee Committee to affiliate
with the Steelworkers, vote yes or no in the yes or no
box," and apparently also specified the meeting and vote
on Sunday, May 20, at the employees' union hall in
Coldwater.
When asked by her fellow employees did the vote
mean a vote for or against affiliating with the Steelwork-
ers, employee Cardinal answered, no, the vote was only
to determine whether or not to have a Steelworkers rep-
resentative come and talk to the employees, and that this
was what she had been told at the meeting with the
Steelworkers representative.
This same information-that the vote was to determine
whether the employees wanted a Steelworkers repre-
sentative to come and talk to them-was also given the
same day to approximately 20 second-shift employees of
the Race Street plant by their Employee Committee
member Deb Smoker, when she handed them their bal-
lots at 11 p.m., before clocking out, according to em-
ployee Hannah Koch of that shift.
Likewise, the approximately 10 employees of the third-
shift Behnke Road plant were told the same by employee
Don Miller (of the second-shift Behnke Road plant) in
the morning of Friday, May 18, just before the shift
ended, namely, that the vote would be on whether or
not to hear a Steelworkers representative on the subject
of what the Steelworkers had to offer, according to em-
ployee Clara Belle Hankins. Hankins testified that the
third-shift Behnke Road employees were not given print-
ed ballots, but instead were handed large white pieces of
paper and told by employee Miller to write down yes or
no and sign their names on the pieces of paper and, if
any of them were not going to attend the Sunday meet-
ing to hand the signed papers to employee Ross Tule,
Employee Committee member for the first shift, before
leaving the plant that Friday morning. Tule testified that
he received a batch of these in a sealed envelope from a
Saturdays ind Sundays were nonworking days at the plants
:' No copy of a hallot ,as produced at the hearing by the Steelworkers
LUnion. which had them printed. or by anyone else.
963
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
third-shift employee and took the batch to the Sunday
meeting.
While the Race Street plant employees were not told
to sign their ballots, they were given similar instructions
by employees Cardinal and Smoker, i.e., to bring the bal-
lots to the Sunday meeting but, if they did not plan to
attend or did not attend, to bring them to their respec-
tive shifts on Monday, May 21. Employee Koch, of Race
Street second shift, testified that she did not go to the
Sunday meeting and came in Monday without her ballot,
and observed her coworkers handing ballots to second-
shift Employee Committee member Smoker. There was
no box for their deposit. Koch asked for but did not get
another ballot for the one she forgot to carry in.
First-shift Employee Committee member Cardinal said
that neither she nor apparently any of her first-shift co-
workers attended the Sunday meeting and all of them
voted their ballots on Monday. However she did provide
additional ballots for those who said they had forgotten
to bring their ballots back. Cardinal testified that the em-
ployees of her shift marked their ballots at their work-
places and then walked to the breakroom and put them
in an untended cardboard box. In the case of two older
employees who asked for her help, she marked the bal-
lots for them and carried the ballots to the box in the
breakroom.
The meeting on Sunday was sparsely attended by be-
tween 6 and 10 employees according to employees Ross
Tule and Clara Belle Hankins. Tule, as chairman of the
Employee Committee, presided. Hankins testified that a
Steelworkers representative was present, introduced him-
self as such, but made no presentation. (Tule, who testi-
fied for Respondent, thought that there was no Steel-
workers representative present but, because he had great
difficulty in remembering things, I do not credit his pur-
ported contradiction.)
After waiting in vain for more employees to show up,
some of the few present turned in ballots, and votes were
counted. Employee Hankins, who had declined to mark
and sign the blank paper she had been given (Tule ac-
knowledged that the third shift at Behnke Road had
been supplied only blank pieces of paper) was given a
printed ballot which she voted at the meeting. Hankins
testified that Tule turned in for counting votes that were
in his pocket, and Shirley Woodman, another Employee
Committee member, turned in votes from her purse.
According to employee Hankins, there was no an-
nouncement of the vote.4 Employee Tule testified that
he made no announcement of the voting result, but "pre-
' Apart from agreeing that he made no announcement of the result of
the vote, employee Ross Tule was thoroughly confused about, and
unable to remember, what happened with the counting tie said only bal-
lots received on the previous Friday were counted at the Sunday meeting
but was unable to account for when, where, and how the approximatel
50 ballots of the Race Street plant employees, brought in the next day,
Monday, were counted; asserting, nevertheless, that the total count of
over 100 votes was made at the Sunday meeting to show a final vote of
52 to 50 in favor of affiliation, which claim would indicate that almost
the total plant population had voted by Sunday He claimed to hase no
recollection of any ballots counted on Monday, or of a tie vote at 50 to
50, and the later production of two rmore yes ballots to break the tie b a
52 to 50 vote. See infra In light of the credible contrary testimony and
his own further testimony, Tule's claims on the ote count were incredi-
ble.
sumed" that if someone at the meeting asked him the
result he told them that the vote was 52 to 50 in favor of
affiliation with the Steelworkers. He admitted that there
was no posting of the balloting result and no announce-
ment to the employees of the result. He further admitted
that there was no list made of employees who were sup-
plied ballots, no list of employees who cast ballots, and
no written tally of the ballots cast and counted. Addi-
tionally, Tule conceded (as Koch and Hankins had testi-
fied) that there was no discussion, or opportunity given
for employee discussion or questions and answers, at the
Sunday meeting or prior thereto, on the subject of affili-
ation with the Steelworkers. Both Koch and Hankins tes-
tified that they did not understand "affiliation" in May
1979. 5
Employee Cardinal testified that on Monday, May 21,
after the ballots from the first and second shifts of the
Race Street plant (there was no third shift at Race
Street) were in hand, employee Tule came over from the
Behnke Road plant and the two of them counted the
votes. Tule had written down on a piece of paper, said
Cardinal, the results of the prior count, which was
almost entirely, if not entirely, from Behnke Road plant
employees, and, coupled with the Race Street plant vote,
the result was a 50 to 50 tie. Tule said to Cardinal, she
testified, that there would probably be a revote. Howev-
er, the next day (Tuesday), Cardinal learned indirectly
that employee Don Miller (the leading advocate among
the employees for affiliation with the Steelworkers) had
handed two more yes votes for the Steelworkers to Tule,
and that he was taking the position that the tie was
broken.
Employee tHankins of the Behnke Road third shift had
direct confirmation of this from employee Miller himself,
who had told Hankins, employee Ruth O'Brien, and sev-
eral others in the lunchroom at the Behnke Road plant
on Monday night (actually Tuesday morning for the
third shift) of the 50-50 tie vote; and on the next day
(Tuesday night-Wednesday morning) told Hankins that
he, Miller, had found two more votes "that had slid
down on his car seat," that he turned them in to Tule,
and that the two votes were for the Steelworkers.
Shortly thereafter, at a meeting of the Employee Com-
mittee, four members present with Steelworkers Repre-
sentative Anderson attending, employee Cardinal and the
members of the Committee were informed by employee
Tule that the two extra votes found by employee Don
Miller won the election for the Steelworkers and that a
majority of the employees had voted for the affiliation
by a vote of 52 to 50. Cardinal protested that the vote
was only to have the Steelworkers representative talk to
the employees about affiliation. Steelworkers Representa-
tive Anderson replied that the ballot stated clearly that
the vote was to affiliate with the Steelworkers Union.
The Committee members then argued over the manner
in which the vote was taken, but Anderson again took
the position that the vote was clear.
: Emploces Koch and Ian kins also provided testimony hat there
was noi preelection posting o notices of the meeting and election 1on the
bulletin board of either the Race Street or Belhke Road plants, contrary
to 1 ile'S issunptionl tlhi there had been a posling
964
UINITHl) STETI W()RKERS ()O AMERICA
Employee Cardinal testified that in June 1979 another
vote of the employees was held on the question of
whether they wanted to keep the current collective- bar-
gaining contract with the Employer or discard it. This
vote was held following the posting of notices, with e m-
ployecs informed additionally by Employee Committee
members of the exact purpose of the voting, at a fixed
voting time. in a public park in Coldwater with place for
the employees to mark their ballots in secret and deposit
their ballots in a sealed ballot box, with two observers
present (each on the opposing side of the issue), and the
voters (comprising all employees) required to sign a
voters' list before obtaining a ballot and voting. Cardinal
testified that 99 percent of the employees voted and de-
cided to keep the current collective-hargaining contract
with the Employer. The Steelworkers letter to the Em-
ployer, dated June 18, 1979. claiming affiliation of the
Employee Committee with the Steelworkers Union and
asking for a meeting on recognition, noted that the em-
ployee vote to maintain the contract in force was 57 to
50 in favor of the existing contract.
After the vote on affirming the contract, the Emplo-
ee Committee met again with Steelworkers Representa-
tive Bill Anderson. According to employee Cardinal,
Anderson told the Committee that the Steelworkers
would represent the employees, would not charge ay
dues, and in any arbitration would bear the costs.
On August 24, 1979, the Employer on the one hand.
and Steelworkers officials and members of the Employee
Committee on the other, signed an agreement dated
August 23, 1979, stating the Company's recognition of
the Steelworkers as bargaining agent in place of the Em-
ployee Committee, continuation by Steelworkers and the
Employer of the labor agreement until July , 1981, and
their agreement to a modification of the language of the
grievance-arbitration procedure (G.C. Exh. 5).
At some point thereafter, the Steelworkers identified
the Employee Committe and employees of the Company
as Local 8860 of the Steelworkers, according to employ-
ee Tule, and, according to employee Cardinal, there was
a vote for union local officers on September 16, 1979.
Cardinal went on medical leave of absence (connected
with pregnancy) and did not run for office, but it appears
that other Employee Committee members were chosen
to serve, including employee Tule. Tule was former
president or chairman of the Employee Committee and
became president of Local 8860. According to Tule, the
Employee Committee transferred its bank account, accu-
mulated from profits on vending machine sales, amount-
ing to about $1,500 to the name of Local 8860, and the
Steelworkers provided Local 8860 with an advance of
$1,000 for arbitration purposes. Some money had been
spent by Local 8860, he said, but it was not clear wheth-
er it was out of the transferred Employee Committee
funds or the Steelworkers advance, or out of both.
C. Conclusions Respecting the Election
The Board requires that, for a labor organization to
achieve affiliation with another labor organization, there
must be evidence that the membership action met mini-
mal standards for democratic procedures, Peco. Inc., 204
NLRB 1036, 1037 (1973); or, stated another way, that
the election procedure for the affiliationl vote met mini-
mal standards of due process. Bear 4rchery, Division of
Victor Comrtpometcr Corporation. 223 NLR 1169, 1171
(1976), principle affirmed, but decision reversed in appli-
cation to the facts, N.L.R.B. . Bear .4rchert, 587 F.2d
812 6th Cir. 1977)1
In the case at bar, the arrangements and methods em-
ployed in setting and conducting the affiliation election
made a shambles of democratic procedures or due proc-
ess, all the Steelworkers Union bears a responsibility for
contributing to the breakdown from the start of the ar-
rangemcint
Fhe members of the Employee Committee heeded the
injunction by Steelworkers Representative Anderson not
to mention or discuss affiliation with the employees until
Steelworkers had time to prepare and forward an ex-
planatory statement and ballots, coupled with his indica-
tion that there would be an initial ote on hether the
employees wanted to hear the Steelworkers representa-
tives and discuss affiliation with them.
Less than 2 weeks later, Steelworkers telescoped the
schedule by forwarding ballots (and not enough ballots
for all employees and no explanatory statements) on May
18, a Friday, for a meeting 2 days later, May 20 (a
Sunday and nonwork day when few employees were
likely to come to Coldwater), and for a vote that seem-
ingly was on affiliation itself.
There was no notice, posted on the bulletin boards or
otherwise, advising the employees of the meeting or the
vote and, obviously, if it were to be a vote on whether
or not to affiliate, no opportunity was allowed for discus-
sion with the employees, or among themselves, on what
affiliation meant to them and whether or not it was desir-
able fo)r them.
On this deficiency alone, as held in Peco and Bear
Archery (by the Sixth Circuit), vupra, the procedure fell
short of the minimal standards for democratic or due
process.
But there was more. Four of the five shifts of employ-
ees in the two plants were given their ballots (which in-
cluded notice of the Sunday meeting) on Friday, in ad-
vance of the meeting and vote scheduled for Sunday,
and because Steelworkers had failed to provide sufficient
ballots that Friday the third- shift employees of Behnke
Road plant were given blank pieces of paper. No record
was kept of which employees received ballots or of any
who did not receive a ballot.
The oral instructions at Behnke Road plant were if the
employee did not plan to attend the Sunday meeting to
mark the ballot then, on Friday, and turn it into the Em-
ployee Committee member of the shift. In the case of the
third shift, the employees were told to write yes or no
on their blank pieces of paper, sign the paper, and turn it
in to the first-shift Committee member Tule, if they were
not going to attend the Sunday meeting.
The oral instructions at the Race Street plant were, if
the employee did not plan to attend the Sunday meeting
or did not attend the meeting and vote there, to bring
back the ballots to the plant on Monday and vote them
there.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At both shifts of the Race Street plant, and at least at
the third shift of the Behnke Road plant, the employees
were orally informed when given the ballots on Friday
that, notwithstanding the seemingly different words of
the ballot, the vote was on whether or not the employees
wanted to hear Steelworkers representatives on the sub-
ject of affiliation and its possible advantages, and was not
a vote on whether or not to affiliate with the Steelwork-
ers. Thus, this information was given to more than half
of the total number of employees.
As a result of these oral instructions the voting oc-
curred on Friday, May 18, for most of the Behnke Road
plant employees, and on Monday, May 21, for most if
not all of the Race Street employees, whereas we are
aware of only a few votes cast at the sparsely attended
meeting on Sunday, May 20, when and where the voting
was scheduled to take place. Even more significant is the
fact that a majority of the employees had been informed
that they were not voting on affiliation with the Steel-
workers, but on whether they wanted to hear about it,
and obviously all of the voters were not voting on the
same question.
The voting itself violated all principles of fair elec-
tions. There was no voting list or record kept of who re-
ceived ballots, and who voted, and no assurance that bal-
lots turned in and ultimately counted represented the le-
gitimate votes of legitimate voters. Large segments of
the votes counted were turned in by a few people pur-
porting to act on behalf of others. The most glaring de-
parture in this aspect was the acceptance of two addi-
tional votes, a day after the voting had been completed
and the ballots counted, handed in by the employee who
was most active in promoting affiliation, purporting to be
the votes of two other employees, who apparently voted
in favor of affiliation and broke the tie vote.
There was no secrecy in voting and no protected
voting place or depository. Most employees voted at
their workplaces in full sight of others and either handed
their voted ballots over to others to be turned in, or in
some cases put their voted ballots in an untended box in
the plant breakroom.
There was no indication that counting of the votes of
the Behnke Road plant employees was supervised, no
tally of the votes for either plant was kept, and no an-
nouncement of the final vote was made to the employees
or posted on the bulletin boards.
In the postelection meeting of the Employee Commit-
tee with Steelworkers Representative Anderson, the
Steelworkers Union was made aware of the protests that
the voting was to have been, and was for a majority of
the employees, on whether to invite the Steelworkers to
explain affiliation and its benefits, and not on affiliation
itself. He also was made aware of the deficiencies in the
voting procedure which resulted in lack of notice, lack
of opportunity for employee discussion of the merits of
affiliation, and lack of safeguards against a rigged or oth-
erwise unfair election.
Notwithstanding these warning signals, Steelworkers
took the position that the election had been properly set
up for an affiliation vote and properly run, and went
ahead with its claim upon the Employer for recognition
as bargaining representative and for the slight amend-
ments of the existing collective- bargaining contract to
conform it with the recognition and with the style of
grievance-arbitration procedure usual for the Steelwork-
ers Union. There was no indication in the evidence that
the Employer was aware of the deficiencies and impro-
prieties in the affiliation vote when it acceded to the
Steelworkers request and executed the recognition agree-
ment. 6
I find that the May 1979 election, purporting to affili-
ate the Employee Committee and the constituent em-
ployees of the Employer with the Steelworkers Union,
was conducted in violation of minimal standards of
democratic procedure or due process, and was conse-
quently ineffective and void.
Accordingly, Steelworkers did not represent a major-
ity of the unit of the Employer's employees when, in
August 1979, it asked for and obtained recognition as
bargaining representative and obtained and proceeded to
administer the modified collective-bargaining contract.
Hence Steelworkers was in violation of Section
8(b)(1)(A) of the Act, and must cease to act as bargain-
ing representative of any of the employees and refrain
from seeking to enforce the modified contract until such
time as it demonstrates its majority status in a Board-con-
ducted election. International Ladies' Garment Workers'
Union [Bernhard-Altmann Texas Corp.] v. N.L.R.B., 366
U.S. 731, 735, 738-739 (1961). 7
CONCLUSIONS OF LAW
I. The election held in May 1979, which purported to
affiliate the Employee Committee and its constituent em-
ployees of the Employer with the Steelworkers Union,
was conducted in circumstances and under conditions
that violated minimal standards of democratic procedure
or due process and was consequently ineffective and
void. By its direction of the arrangements, Steelworkers
was at least partly responsible for this result.
2. When, thereafter, Steelworkers asked the Employer
for and obtained recognition as bargaining representative
of the unit of employees and obtained and began admin-
istering a modified collective-bargaining contract, Steel-
workers did not represent a majority of the unit of em-
ployees and committed an unfair labor practice within
the meaning of Section 8(b)(l)(A) of the Act.
3. The unfair labor practice affects commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
In view of the ineffective and void affiliation election,
it would appear that actions taken thereunder by the
Steelworkers Union were likewise ineffective and void.
Therefore, Steelworkers should take whatever steps are
a There is evidence from the second election, conducted in June 1979
by the Employee Committee (without the intrusion of the Steelworkers
in the arrangements), on the subject of retaining the collective-bargaining
contract with the Employer that the Employee Committee knew how to
conduct, and conducted, a proper election that provided safeguards
against unfairness.
7 While I do not regard the actions of Steelworkers connected with
and following the affiliation election to have been taken in good faith, the
violation could not be excused even by a showing of good faith. bid.
966
UNITED STEELWORKERS OF AMERICA
necessary, and within its control, to restore, or aid in re-
storing, the status quo ante the void election.
In this connection, the Board has said apropos a valid
affiliation election that the affiliation does not create a
new labor organization, nor does it result in the dissolu-
tion of an already existing labor organization, and the
collective-bargaining agreement between the affiliating
union and the employer remains effective until the stated
expiration date, Amoco Production Company, 239 NLRB
1195 (1979), remanded (for further explication in apply-
ing the principle to the facts) 613 F.2d 107 (5th Cir.
1980); Providence Medical Center, 243 NLRB 714 (1979).
In the case of a void affiliation election, it is even more
obvious that the void election and any derivative actions
did not dissolve the preexisting labor organization or its
collective- bargaining contract with the employer.
Hence the order in this case should require the Steel-
workers Union to:
1. Cease acting as bargaining representative of the Em-
ployer's employees and to refrain from administering or
seeking to enforce the modified collective-bargaining
contract obtained from the Employer (until such time as
it demonstrates its majority status in a Board-conducted
election).
2. Disavow any claim to recognition as bargaining rep-
resentative accorded it by the Employer on and since
August 23, 1979, and renounce the contract modification
obtained from the Employer on August 23, 1979.
3. Disavow the election of employees of the Employer
as officers of Local 8860.
4. Revise the identity of Local 8860 to exclude the
representation and membership of the Employer's em-
ployees, or alternatively dissolve the Local if it was cre-
ated only to comprise and represent such employees.
5. Retransfer and restore to the Employee Committee
any property or moneys, including bank accounts, trans-
ferred by the Employee Committee to Steelworkers or
its Local 8860.
6. Notify in writing the Employer, its employees, and
the Employee Committee that it has taken the foregoing
actions, and prepare appropriate notices for posting by
the Employer or Employee Committee.
I do not regard the ordering of a rerun affiliation elec-
tion supervised by the Board (advocated by Steelwork-
ers) as an appropriate subject for the order in this case.
Not only is the holding of an affiliation election a matter
of internal concern of the affected labor organization, the
Employee Committee, but here, so far, the showing has
been an absence of opportunity for the employees to dis-
play interest in an affiliation election. If the time should
come for another affiliation election, any concern that
these employees need the supervision of the Board to run
a fair internal election was dissipated by the good show-
ing made in their running of the election for retaining the
contract in June 1979, where there was no apparent in-
volvement in the arrangements by the Steelworkers.
Nor is a representation election appropriate at this
time. No question of representation was pending or in-
volved in this hearing and, if anything, the existing col-
lective-bargaining contract appears to be a contract bar
to any representation election.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 8
The Respondent, United Steelworkers of America,
AFL-CIO-CLC, Coldwater, Michigan, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Acting as bargaining representative of the Employ-
er's employees and administering or seeking to enfirce
the modified collective-bargaining contract obtained
from the Employer on August 23, 1979, until such time
as Steelworkers demonstrates its majority status in a
Board-conducted election.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Disavow any claim to recognition as bargaining
representative accorded by the Employer to Steelwork-
ers on and since August 23, 1979. and renounce the col-
lective-bargaining contract modification obtained from
the Employer on August 23, 1979.
(b) Disavow the election of employees of the Employ-
er as officers of Steelworkers Local 8860.
(c) Revise the identity of Local 8860 to exclude the
representation and membership of the Employer's em-
ployees or, alternatively, dissolve Local 8860 if it were
created only to comprise and represent such employees.
(d) Transfer back and restore to the Employee Com-
mittee any property or moneys, including bank accounts,
transferred by the Employee Committee to Steelworkers
or its Local 8860.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all re-
cords and reports, necessary to ascertain the property or
moneys, including bank accounts, to be transferred back
and restored to the Employee Committee under the
terms of this Order.
(f) Communicate in writing to the Employer and to
the Employee Committee a statement of its actions com-
prising compliance with the affirmative action required
by paragraphs 2(a) through (e) above.
(g) Prepare for posting in the two plants at Coldwater,
Michigan, copies of the attached notice marked "Appen-
dix."" Immediately upon receipt of said notice, on forms
provided by the Regional Director for Region 7, the Re-
spondent shall cause the copies to be signed by one of its
authorized representatives and returned to the Regional
a In the event no exceptions are filed as proided h Sec 102 46 of the
Rules and Regulations of the National Labor Relatiots Board, the find-
ings, conclusions, and recommended Order herein shall, as pros ided in
Sec 102 48 of the Rules and Regulations. be adopted h the Board anid
beconmc its finding,. conclusions. and Order. and all objections thereto
shall he deenied uaixed for all purposes
I In the ecnl his Order is enforced by a Judgment of a United States
Court ofr Appeal, the uAords in the notice reading "Posled h Order of
the Natltonal L.habor Relations Board" hall read 'Posled Pursuant to a
Judgmenet of he trnited States Court of Appeals Enforcing an Order of
the National I abor Relations Board "
967
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for forwarding to the Employer and Employee
Committee. With the consent of either the Employer or
Employee Committee, copies shall be posted and main-
tained for 6 consecutive days thereafter, in conspicuous
places in the two plants, including all places where no-
tices to employees are customarily posted, with reason-
able steps taken to insure that said notices are not al-
tered, defaced, or covered by any other material.
(h) Mail to all employees. pursuant to a list provided
by the Employer or Employee Committee, copies of the
notice marked "Appendix," as provided for in paragraph
(g) above.
(i) Notify the Regional Director for Region 7. in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
96#