Universal Tool & Stamping Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1970

182 N.L.R.B. 254 (N.L.R.B. 1970)

254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Universal Tool & Stamping Company , Inc. and Interna-
tional Union , United Automobile , Aerospace & Agricul-
tural Implement Workers of America (UAW) and
The Ward Group , Party of Interest . Case 25-CA-3014
April 30, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On June 30, 1969, Trial Examiner 'Paul Bisgyer issued
his Decision in the above-entitled proceeding, finding
that Respondent had not engaged in the unfair labor
practices alleged in the complaint and recommending
that, the complaint be dismissed in its entirety, as set
forth in the attached Trail Examiner's Decision. There-
after, the General Counsel and'the Charging Party filed
exceptions to the Decision and supporting briefs,
Respondent filed cross-exceptions to the Decision and
a supporting brief, Respondent, filed briefs in answer
to the General Counsel's and Charging Party's excep-
tions, and the Charging Party filed a brief in answer
to Respondent's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its power's in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed
The Board has considered the Trial Examiner's Decision,
the exceptions, the cross-exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial
Examiner '
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended , the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner and hereby orders that the com-
plaint herein be, and it hereby is, dismissed
CHAIRMAN MCCULLOCH , dissenting:
I cannot agree with my colleagues ' and the Trial
Examiner ' s conclusion that the Ward group , by simply
taking the UEU name, became in fact the UEU named
in the contract with the Employer.
There is ample evidence that Local 1510, UAW (in
effect UEU-UAW), is merely the alter ego of the former
unaffiliated union , UEU. Thus, the affiliation meeting
was called on the recommendation of all six union
officers with more than adequate notice sent to the
union members; an overwhelming number of employees,
202 of 250 in the Union , attended the meeting, and
a substantial majority of those attending approved the
affiliation in a properly conducted election . Subsequent
to the election , the UEU-UAW retained possession
of all the assets, records, and files of its predecessor
and four of the former UEU officers assumed similar
positions in the newly titled local. In light of these
circumstances, it is clear that Local 1510 was the continu-
ation of and legitimate successor to the unaffiliated UEU.
Moreover, Respondent had knowledge of the affiliation
before its officers signed the contract. Yet, during the
weeks it delayed recognizing the affiliated union, it hastily
turned over-the previously checked-off dues to Ward
on December 5 and promptly recognized his group as
the contract representative of the employees on Decem-
ber 18 after only 40 employees had met the night before
and voted to reorganize the "UEU." Given this conduct,
I find it somewhat ingenuous to conclude that Respondent
was merely an innocent caught between two colorable
conflicting bargaining demands. But for Respondent's
tacit cooperation with the Ward group, the UEU-UAW
was ready and able to administer the current contract
and function in every respect'as the duly elected bargain-
ing representative. The effect of my colleagues' decision
is to make the selection of the employees' representative
a matter of employer free choice. For the foregoing
reasons, I would'find that Respondent was in violation
of Section 8(a) (5) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner: This proceeding, with
all the parties represented, was heard on March 26,
27, and 28, 1969, at Fort Wayne, Indiana, on the com-
plaint of the General Counsel issued on October 24,
1968, which was subsequently amended,' and the
answers of Universal Tool & Stamping Company, Inc ,
herein called the Respondent or Company. The Interve-
nor also filed an answer in the name of Universal Employ-
ees Union, herein called UEU, asserting the nonexis-
tence of any organization known as "The Ward Group"
designated in the original and amended complaints.
The pleadings present the question whether the Respond-
ent' violated Section 8(a) (5) and (1) of the National
Labor Relations Act, as amended,' by continuing to
recognize the UEU as the exclusive bargaining represent-
ative of the Company's employees pursuant to a conced-
edly valid collective-bargaining agreement and refusing
' The complaint , as amended , is based on an original charge filed
on January 8, 1968, and an amended charge filed on February 14,
1968, copies of which were duly served on the Respondent by registered
mail on the respective dates of the filing of the charges
Y Sec 8(a)(5) of the Act makes it an unfair labor practice for an
employer to refuse to bargain collectively with the representatives
of his employees , subject to the provisions of section 9(a) " The latter
provision states that "[r]epresentatives designated or selected for the
purposes of collective bargaining by the majority of the employees
in a unit appropriate for such purposes , shall be the exclusive representa-
tives of all the employees in such unit for the purposes of collective
bargaining in respect to rates of pay, wages , hours of employment,
or other conditions of employment
Sec 8 ( a)(1) prohibits an employer to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in section
7" which, in turn , provides , among other things, that "[e]mployees
shall have the right to bargain collectively through representatives
of their own choosing
182 NLRB No. 38
UNIVERSAL TOOL & STAMPING CO.
to accord such recognition to Local 1510, International
Union, United Automobile, Aerospace & Agricultural
Implement Workers of America (UAW), herein called
UAW or Local 1510, with whom the UEU had allegedly
affiliated. At the close of the hearing, the parties waived
oral argument but thereafter submitted briefs in support
of their respective positions. ,
Upon the entire record, and from my observation
of the demeanor of the witnesses, and with due consider-
ation being given to the arguments advanced by the
parties, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Indiana corporation, is engaged
in the manufacture, sale, and distribution of automobile
bumper jacks and related products at its plant in Bulter,
Indiana, where it maintains its principal office and place
of business. It annually ships from this plant manufac-
tured products valued in excess of $50,000 directly to
points outside Indiana and receives goods and materials
also valued in excess of $50,000 from sources outside
the State.
It is admitted, and I find, that the Respondent is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
UEU, International Union, United Automobile,
Aerospace & Agricultural Implement Workers of
America (UAW) and Local 1510 are labor organizations
within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The critical issue in this case turns on the identity
of the labor organization entitled to represent the
Respondent's employees3 and to administer the current
collective-bargaining agreement covering their terms and
conditions of employment. The events giving rise to
this problem are essentially not in dispute and are related
below.
1. Collective bargaining history; the strike; execution of
the current contract
Since about 1958 UEU, an independent labor organiza-
tion, has been the 'recognized bargaining representative
of the Respondent's employees pursuant to successive
' There is no question of the appropriateness of the bargaining unit
described in the complaint as consisting of
All employees of Respondent employed at its plant exclusive of
office and clerical employees, engineers and draftsmen, and exclusive
of all officers, direct company representatives, superintendents,
foremen, assistant foremen, and all other supervisors as defined
in the Act
255
contracts. In September. 1967,4 the Respondent and UEU
initiated negotiations for a contract to supplant the then
current one which was due to expire midnight of October
31.5 Because of the parties' inability to reach agreement
by the expiration date, UEU called the employees out
on strike and the plant shut down. On November 7,
while the strike was still in progress, negotiations were
resumed and produced agreement through the efforts
of a Federal mediator. The next day (November 8),
at a previously scheduled UEU meeting summoned to
consider affiliation with UAW, which will later be dis-
cussed, the membership voted to accept the contract.
Later in the evening, the UEU bargaining committee
went to the plant and reported the ratification vote
to the Respondent's Secretary Mayer, its chief executive
officer, who inquired about' the truth of the rumor that
UEU had affiliated with UAW. UEU President Rogers
confirmed the affiliation and UEU Vice President Curcio
added that UAW would therefore police and administer
the contract for its 3-year term.' Expressing reluctance
to sign the contract without first consulting the Compa-
ny's attorney, Mayer deferred the formal execution of
the contract to the following morning.,
At the appointed time on November 9, the UEU
bargaining committee? met with management and affixed
their signatures to the contract with the clear understand-
ing that it was UEU which was the contracting party
as identified in the agreement. On November 13, the
employees returned , to work and plant operations
resumed.
2 UAW's appearance; UEU's alleged affiliation with
that organization
On November 1, the first day of the strike, UAW
International representative, James Perkins, accompa-
nied by two employees of a neighboring plant, visited
UEU Vice President Curcio at his home and discussed
the benefits to be derived from UEU's affiliation with
UAW and the steps to be followed to achieve affiliation.
Pointing out that affiliation required the unanimous con-
sent of UEU's officers, Perkins stated that, if the officers
were not amenable to the idea of affiliation, the UAW
could file with the Board a petition for a representation
election. In the latter event, Perkins told Curcio, employ-
Unless otherwise indicated, all dates refer to 1%7.
Representing the Respondent in these negotiations were Donald
C Mayer, secretary and chief executive officer, and three other'company
officials, Norman R Ritenour, Russell K Ulm, and Wayne B Billings
The UEU bargaining team consisted of President Stanley Rogers, Vice
President Frank J Cdrcio, Secretary-Treasurer Rosie Brock, and execu-
tive committee members John McMillen Ora Shambaugh, and Dale
Ward
^ There is conflicting testimony by the Respondent's witnesses that
Rogers also stated that the affiliation would not become effective for
3 years In view of the affiliation action and UAW' s efforts to secure
recognition to administer the contract , which is later discussed, it is
hardly likely that Rogers would make the statements imputed to him
and that, in all probability, the Respondent's representatives misunder-
stood him I therefore credit the testimony of Rogers and Curcio
on which the above findings are based '
Dale Ward, a member of the UEU's bargaining committee, was
absent but signed the contract on.November 14 . '
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees would have to be signed, up quickly before UEU
and the Respondent executed a contract which would
bar a Board election. Accordingly, Perkins left about
180 membership application- cards with Curcio for such
contingent use. After Perkins also spoke to some 12
employees the next day concerning the merits of affilia-
tion, Curcio arranged for him to meet at,Curcio's home
on November 3 with all 'UEU's officers, President Rog-
ers, Secretary-Treasurer Brock, and himself, and com-
mitteemen Shambaugh, McMillen, and Ward. At this
meeting, the subject of affiliation was thoroughly dis-
cussed and UEU's constitution and bylaws were
reviewed to determine whether there was an impediment
to affiliation. Since the constitution and bylaws were
silent on the subject, Shambaugh individually polled
UEU's officials who unanimously voiced approval of
affiliating with UAW" and agreed to make such a recom-
mendation to the membership with the understanding,
however, that the ultimate decision still rested with
the members. After the poll was taken, UEU's attorney,
John Grimm, arrived at this meeting . Upon being
informed of the proposed action, he, too, indicated
that it was a good idea . Plans were then made for
holding a membership meeting to consider and vote
upon the affiliation proposition Because the constitution
and bylaws made no provision for affiliation, it was
decided to call a special meeting as therein provided."
On Saturday, November 4, UEU officers and the
executive committee met in Brock's home where they
addressed envelopes to UEU members in which they
enclosed a notice of special meeting "called by The
Executive Committee for the purpose of discussing and
voting on a Resolution to affiliate" UEU with UAW.
The meeting date was set for 2 p.m., Wednesday,
November 8, at the 'employees' clubhouse. Two lists,
previously furnished by the Respondent, were used to
secure the names of the members and most of their
addresses." Only one notice was sent to an address
" According to Ward, he did not indicate his attitude toward affiliation
but simply stated that he was willing to put the matter to a membership
vote However , the testimony of other participants in the meeting'
was to the contrary and there is no evidence that Ward opposed
affiliation at any time while the subject was under consideration I
therefore do not credit Ward's testimony in this respect
Art II of the constitution and bylaws provides
Section 4 A special meeting of the Union may be called at any
time by the President or the Executive Committee Notice of
such meeting shall be given by posting notice of such meeting,
on the bulletin board of the employer , not less than three days
prior to such meeting and which notice shall fix the time and
place of said meeting and state the business to be transacted
at such meeting No other business shall be transacted at a special
meeting other than those matters stated in the notice of the call
of such meeting
As will later' be shown, the Respondent and UEU insist that the
more elaborate procedures of ' art XI dealing with the amendment
of the constitution and bylaws were applicable to effect an affiliation
Admittedly, these procedures were not followed nor did the affiliation
vote satisfy the two-thirds vote of the members required for the adoption
of an amendment
'" One list , which contained both names and addresses , was obtained
from the Company's office in the latter part of June or beginning
of July for use in connection with a UEU election The other list
was a dues checkoff list which was obtained from the office in the
early part of October and was utilized when a vote was taken during
where more than one employee lived as members of
the same family. Approximately 220 out of 251 mem-
bers" appearing on the lists were sent notices that
Saturday afternoon , with Brock mailing those directed
to Indiana addresses12 and Rogers mailing those with
Ohio addresses. Although 25 members testified that they
did not receive such a notice, they nevertheless attended
the November 8 meeting and most of them voted on
the affiliation question. A notice was also posted in
a garage which served as strike headquarters. It is
not denied that the foregoing method of notifying the
membership did not literally conform with the constitu-
tion and bylaws which simply required the posting of
notice on the plant bulletin board 3 days before the
special meeting. However, such posting would obviously
have been a futile gesture as the plant was shut down
because of the strike
In the meantime , as indicated above , the UEU negotia-
tors reached agreement with the Respondent on a new
contract on November 7. As the affiliation meeting had
already been scheduled for the next day, the UEU
officials decided to avail themselves of this occasion
to submit the agreement to the membership for ratifica-
tion.
On November 8, the special meeting was held. Except
for International Representatives Perkins and Nichols
and two or three other visitors, only members eligible
to vote on acceptance of the contract and affiliation
were permitted to attend. UEU Vice President Curcio
and Secretary-Treasurer Brock stationed themselves at
the entrance to the assembly hall and undertook the
task of checking the eligibility of individuals seeking
admission against an updated list of employee-members.
Four employees who joined the UEU at the door by
paying $1 monthly dues" were also permitted to attend.
Shortly before the meeting was opened, and at the
suggestion of Perkins , the UEU officers and executive
commiteemen conferred14 and reaffirmed their intention
to proceed with the' affiliation' proposal, even though
they had already reached agreement on a contract with
the Respondent.
Following this conference, "the membership meeting
was called to order by President Rogers. After the
that month on a company contract proposal and subsequently on whether
to strike. This list was updated by inclusion of names of employees
who joined UEU after its receipt Since it did not contain any addresses,
the officers and committeemen checked telephone books or relied on
their own knowledge for addresses of members not recorded on the
June or July list
11 It appears that on November 8 there were about 360 employees
in the bargaining unit Those not belonging to UEU were not sent
any notice of the special meeting
12 I have no doubt that Brock mailed the Indiana notices the afternoon
of November 4 However , there is a conflict in testimony as to whether
she did so by handing the letters directly to the Butler postmaster
I find this conflict unnecessary to resolve
13 To be eligible for membership in UEU , an employee must have
90 days' service in the Company and pay $l monthly dues It appears
that one of these employees , Charles Price, might have had a few
days less than the 90 days' service However , in accepting him into
membership Brock acted on seniority information which she had previ-
ously secured from the Respondent's office
14 While attending this conference, Curcio and Brock were relieved
of their duties at the door by two members
UNIVERSAL TOOL & STAMPING CO.
contract was ratified by voice vote, Perkins and Nichols
were introduced to the audience. Perkins then discussed
at length the benefits of affiliation and explained UAW's
policies and objectives. He also stated that, if affiliation
were voted, UEU's officers and executive committeemen
would retain their positions in the affiliated organization.
As for the contract the membership had ratified, Perkins
made it clear that all UAW could do would be to
police and administer it for its duration and process
grievances thereunder.'' A few comments 'were. made
by Nichols after which questions were invited from
the floor. Thereupon, Curcio read aloud the Resolution
of Affiliation and copies were distributed among the
membership. Among other things, the resolution provid-
ed:
A. That this organization presently known as Uni-
versal Employees' Union be and is hereafter
known as Local'1510 of the International Union,
United Automobile, Aerospace and Agricultural
Implement Workers ofAmerica, (UAW).
B. That all assets and property-of this organization,
including but not limited to its bank account,
its bargaining relationship with the Universal Tool
and Stamping Company, Inc. be hereafter held
by this organization under the name and style
of Local 1510 of the International Union, United'
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, (UAW).
C. That this organization apply promptly to the
International Union, United Automobile,
Aerospace and Agricultural Implement Workers
of America, (UAW) for affiliation therewith and
for a charter evidencing such affiliation as Local
1510 of said International Union.
D. That this organization continue its relationship
with the Universal Tool and Stamping Company,
Inc. as the duly recognized bargaining representa-
tive of the production and "maintenance employ-
ees of said Company.
E. That the officers and committeemen of this
organization take all steps necessary to accom-
plish the objectives set forth hereinabove.
After the resolution was read, UEU's attorney, John
Grimm, presented the recommendation of the officers
and the executive committee supporting affiliation but
assuring the members that the final decision was for
them to make.
Ballots and pencils were then, handed out to the
members with instructions to place a mark in the "Yes"
or "No" square denoting their choice. In addition, a
cardboard box, in which to deposit completed ballots,
was produced and exhibited to show that it was empty.
Thereupon, the voters proceeded to mark their ballots
on tables, the backs or seats' of their chairs, ledges,
'' I find it highly improbable and contrary to the affiliation action
and UAW's persistent efforts to secure recognition that Perkins said
at this meeting that, since the members had voted to accept the contract,
there was nothing UAW could do until the contract expired when
he would talk to members again I therefore reject employee Goldie
Jones' testimony to this effect
257
or any - other available place and to deposit them in
the ballot box through a specially cut out. slit. At the
conclusion of the voting, Executive- Committeeman
Shambaugh assumed charge of the, tallying. 'He was
assisted by Brock, Committeeman McMillen, and possi-
bly, another' member, who noted and tallied the vote
as Shambaugh called out the indicated choice. All this
was conducted in the open with members standing around
at the table observing the count. • The final tabulation
showed that the resolution' in favor of affiliation was
carried by a vote of 125 to 77.
In accordance with the affiliation resolution, a letter
signed-by Rogers, Curcio, and Brock, as officers of
the "former" UEU, was sent on, December '4 to the
UAW International, notifying it that the UEU officers
and members had voted to affiliate with UAW as Local
1510 and requesting that a local' charter be issued. The-
charter and materials were received later in the month.
On December 9, Local 1510 held its first membership
meeting attended by about 69 employees, including Rog-
ers, Curcio, and Brock:,UEU Executive- Committeemen
Ward and Shambaugh, who did not desire to serve
in that capacity in Local 1510, were not,present. Since
Rogers, Curcio, Brock, and Executive Committeeman
McMillen agreed to continue serving- in their former
positions,!` nominations and elections were held only
to fill the secretary and other. new positions prescribed
by the' UAW constitution, and those relinquished by
Ward and Shambaugh'.'Aftei• the elections', the subject
of dues deductions was raised. Because the Respondent
did not remit to Local 1510 the dues deducted pursuant
to previously filed UEU checkoff authorization." several
employees expressed a desire to cancel their checkoff.
To accomplish this, the UAW members were advised
to give Brock their UEU membership cards which she
would surrender to the Company, with' notification that
these individuals withdrew from UEU and wanted their
checkoff authorization terminated. Thereupon, UEU
membership cards were handed to Brock.
The following week Brock turned over to' the Compa-
ny's payroll clerk about 86 UEU cards''which she had
received at the December 9 meeting and thereafter.
On this occasion. Brock informed, the. clerk that the
individuals named on- the cards had withdrawn from
UEU and wanted their dues checkoff canceled. This
request was complied with. In January 1968, Brock
presented about 20,additional cards to the payroll clerk.
This time the clerk declined to accept them but suggested
that they be given to Ward. This was done and Ward,
in turn, delivered them to the Company, which thereupon
discontinued the dues deductions from the wages of
the indicated individuals. Ward also turned in about
15 other UEU cards'personally received from employees.
"' Brock, who previously occupied a dual-office of secretary -treasurer,
agreed to serve as treasurer
" The last payment made by the Respondent to Brock on behalf
of,• UEU was on October - 19 and covered dues collected in August
and September The next payment covering dues deductions for October
and November was made on December 5 to UEU which Ward tried
to keep alive -
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the affiliation meeting , Local 1510 has been
in possession of the UEU books, records, files, and
bank accounts. On December 8, Brock closed the UEU
checking account and transferred the funds to a new
checking account opened in the name of "UAW Local
1510." On December 15, a similar change and transfer
of funds were made in UEU's savings account. Local
1510 has continued to hold monthly meetings since its
initial one on December 9.
3. UAW' s requests for recognition
On November 8, after the affiliation meeting , Rogers,
identifying himself as president of Local 1510, directed
a letter to the Respondent ' s chief executive officer,
Donald C. Mayer, in which he informed him that UEU's
membership voted to affiliate with UAW and that the
name of the "Union" was changed to "Local 1510,
International Union , United Automobile , Aerospace and
Agricultural Implement Workers of America, UAW."
The letter further noted that:
All officers and functional leaders remain the same,
and we anticipate no change in our day to day
relationship with the Company. The continuity of
organization in the Local Union has been completely
preserved and we intend to honor and carry out
fully all responsibility as the recognized bargaining
representative of the Company ' s employees
Attached to the letter was a copy of the affiliation
resolution.
In an effort to establish a friendly bargaining relation-
ship, UAW representatives thereafter made several oral
and written requests for a meeting with the Respondent
However , the Respondent refused their requests for
the asserted reason that its attorney had the matter
of recogniton under consideration. Finally, on December
18, the Respondent ' s attorney advised International Rep-
resentative Perkins that , as UEU was party to the collec-
tive-bargaining agreement , it was the only organization
the Respondent could recognize . When Perkins alluded
to the affiliation action taken by the membership, the
Respondent ' s attorney questioned its validity. The con-
versation ended with Perkins stating that he would file
an unfair labor practice charge with the Board, which
he did on January 8, 1968.
4. Survival of the UEU after November 8
Despite the affiliation vote , it is quite clear that there
were UEU members still interested in retaining UEU
as an independent labor organization to represent them.
Active in this respect was Dale Ward , a member of
the executive committee , who, together with Ora Sham-
baugh , another committeeman , declined to transfer their
allegiance to UAW. On two occasions in November
after the affiliation meeting , Ward told Plant Superintend-
ent Ritenour that he was concerned that there were
employees who had not been given notice of that meeting
and that the affiliation action was not taken in conformity
with the required procedures for amending the UEU
not more than 120 UEU members out of about 250
whose dues were being deducted by the Respondent
pursuant to checkoff authorizations canceled their
authorizations after this matter was discussed at UAW's
December 9 meeting, although the Respondent has remit-
ted such moneys to the UEU since December 5. At
the time of the hearing , the Respondent had on file
approximately 200 checkoff authorizations for the benefit
of UEU.
Several days before December 17, a notice addressed
to "Members of Universal Employees Union" was post-
ed on the plant bulletin board, notifying them that:
a special meeting is being called by the remaining
members of the executive committee for the pur-
pose of discussing and voting on the election of
officers to fill official positions where vancancies
were created by withdrawals from the membership
and for such other business as may be necessary
to conduct concerning the continued establishment
of the U.E U as the "collective -bargaining agent"
for the production employees of Universal Tool
& Stamping Co., Inc
On December 17, the scheduled date, some 40 UEU
members attended this meeting at which Ward was
elected president ,"' Shambaugh, a member of the execu-
tive committee , and others to the remaining office and
committee vacancies . In addition , UEU's constitution
and bylaws and its previously executed collective-bar-
gaining agreement with the Respondent were ratified.
The next day, Ward informed Ritenour of his election
as UEU president and that their contract was again
ratified at this meeting. In response , Ritenour declared
that he was available to discuss any grievance with
him. By letter dated December 19, UEU's attorney
also formally advised the Respondent of the election
of new officers of UEU which was necessitated by
"the defection of several former officers of this union."
Asserting UEU's status as the bargaining agent of the
Company's employees, the letter stated that UEU
"expect-[ed] the company to honor its contract with"
that organization . In addition , the letter referred to
the fact that UEU had previously delivered to the Com-
pany "a series of petitions signed by members of the
U.E.U showing that over 180 Universal employees
support this union ." Concluding , the letter stated that
UEU was advised that "several loyal U.E.U. members
were duped into signing applications for membership
in some other union or rump group, which claims the
right of representation ," and that many of these individ-
uals have given that union or group written notice of
withdrawal . With respect to the petitions mentioned
in the letter, they affirm the opposition of the signers,
"members of Universal Employees ' Union ," to affilia-
tion with any national labor organization and their desire
"to maintain-[their] local labor organization . . . to be
recognized as the Bargaining Agent " of the Company's
employees . Moreover , the evidence shows that eight
petitions containing the purported signatures of 168
employees, some of whom were not UEU members
constitution and bylaws . Significantly, it appears that Ward was reelected president in July 1968
UNIVERSAL TOOL & STAMPING CO 259
of had also signed UAW membership cards, were submit-
ted to the Respondent at various times between the
latter part of December and January 1968 11
It is quite clear that since December 19, if not before,
the Respondent, in the face of UAW s conflicting claim
has recognized UEU as the exclusive bargaining repre
sentative of the Company's employees and that UEU
has been administering the collective-bargaining agree
ment, handling grievances and conferring regularly with
the Respondent concerning terms and conditions of em-
ployment
B Concluding Findings
It is the position of the General Counsel and UAW
that, by reason of UEU's affiliation with UAW pursuant
to a membership vote which was conducted under
appropriate safeguards and after reasonable notice,
UAW was essentially the alter ego or continuation of
UEU under another name and as such was entitled
to UEU's representational and contractual rights There-
fore, they argue, the Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to recognize UAW as
the employees' exclusive bargaining representative and
dealing, instead, with UEU, an independent labor organi-
zation revived by a minority faction headed by UEU
President Ward Totally in disagreement with these con-
tentions, the Respondent and UEU maintain that UAW
did not succeed to UEU's bargaining rights because
the affiliation action was invalid as it was not taken
in conformity with the amendment requirements of the
UEU constitution and bylaws and the balloting was
not conducted under conditions insuring a free and
honest choice or after an adequate opportunity to partici-
pate in the voting was afforded all employees of the
bargaining unit irrespective of their UEU membership
On the contrary, they argue that the Respondent, under
settled law, was obligated to recognize and bargain
with UEU as the contracting union which had never
ceased to exist but continued to function as an independ-
ent labor union despite the purported affiliation In
any event, the Respondent contends that it acted in
good faith and to find it guilty of an unlawful refusal
to bargain with UAW under the circumstances confront-
ing it would amount to a deprivation of its constitutional
rights
It is well established that an employer is required
to continue to recognize a union with which it has
a collective-bargaining contract so long as that contract
bars a Board representation election 21' This obligation,
'" Since the only critical issue before the Trial Examiner is the
UAW s right to recognition by reason of affiliation he did not permit
the parties to litigate the authenticity of the signatures on these petitions
or whether coercion was practiced in securing them For the same
reason the Trial Examiner refused to receive in evidence 199 UAW
membership application cards offered by the General Counsel or permit
their validity to be litigated These cards were allegedly signed by
employees over a period of time from the early part of November
1967 through February 1968 or possibly later The General Counsel
represented that some of these cards were signed by employees who
also signed the petition
21 N L R B v Marcus Trucking Co Inc 286 F 2d 583 593 (C A 2)
which is rooted in judicially approved contract bar princi-
ples the Board has adopted in light of the need to
stabilize bargaining relations with due regard being
accorded to the statutory right of employees freely
to select their bargaining representative, is not affected
by the union's loss of majority support during the con
tract term 21 To ignore this obligation would subject
the employer to a violation of Section 8(a)(5) and (1)
of the Act 22 However, there may be circumstances
when a contract no longer serves as a stabilizing force
in bargaining relations as when a contracting union
becomes defunct and ceases to exist or a schism develops
from a basic intraunion dispute In such a case the
employer is generally relieved of his bargaining duty
until the question of representation is resolved at a
Board election 23 On the other hand, where a union
is actually the continuation of another union under a
different name as a result of affiliation, disaffiliation,
merger, or the formation of a new organization and
the predecessor union ceases to exist or unequivocally
abandons its bargaining rights, its successor in the
proper case, may be entitled to the predecessor's bargain-
ing and contractual rights 24 In that event, an employer's
refusal to recognize and deal with the successor organiza
tion violates Section 8(a)(5) and (1) of the Act 2,
Applying these principles to the facts of the present
case, I am led to the conclusion that the Respondent
did not commit any unfair labor practice in refusing
enfg as modified 126 NLRB 1080 Harbor Carriers of the Port of
New York v N I R B 306 F 2d 89 91 (C A 2) setting iside 136
NLRB 815 on factual grounds cert denied 372 U S 917 Hotel Corpora
lion of Puerto Rico Inc d/b/a Miramar Charterhouse 144 NLRB
728 Landrum Mills Hotel Corporation d/b/a Hotel La Concha 144
NLRB 754 Sears Roebuck & Company 110 NI RB 226 228 of
The Youngstown Steel Door Company 116 NLRB 986 Under prevailing
rules the maximum term of a contract which would bir an election
is 3 years General Cable Corporation 139 NLRB 1121 General Dsruun
ics Corporation 175 NLRB No 154
Marcus Trucking supra at 593 Sears Roebuck supra it 229
Marcus Truckutl, v N L R B supra Harbor Carriers v N I R B
supra Miramar Charterhouse supra Hotel La Concha supra ind
Sears Roebuck supra
24 Hershey Chocolate Corporation 121 NLRB 901 cf Polar Ware
Company 139 NLRB 1006 where the Board held that a contr-ict
precluded a representation election even though members of the con
tractmg union had voted to affiliate with the petitioner since the contrict
ing union was not defunct and no schism as defined in Hershey existed
24 N L R B v Harris Woodson Company Inc 179 F 2d 720 (C A
4) enfg 85 NLRB 1215 (bargaining order imended to substitute successor
after change in affiliation) Union Carbide and Carbon Corporation
v N L R B 244 F 2d 672 (C A 6) enfg 116 NLRB 488 (h irg unmg
order and certification amended to substitute successor consolid'ited
union) North Electric Company 165 NLRB 942 and Equipment Mans
facturing Inc 174 NLRB No 74 (certification amended to reflect
the name of union with which the certified independent union affiliated)
of Bedford Gear & Machine Products Inc 150 NLRB I and Missouri
Beef Packers Inc 175 NLRB No 179 where the Bo ird declined
to amend a certification since the certified union w is still a functioning
and viable organization opposed to the amendment see also The Pnidcn
tial Insurance Conipans of America 106 NLRB 237 ind The Lout stills
Railway Company 90 NLRB 678 where the Boird held that a contract
which was assigned to a newly formed union by the contracting union
barred a representation election despite i subsequent attempt to revive
the contracting union after its dissolution
25 Canton Sign Co 174 NLRB No 133 (the employees bargaining
representative merged with another union) The East Ohio Gas Company
140 NLRB 1269 (the independent union representative affili ited with
another labor organization)
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to recognize and bargain with UAW. On the. contrary,
I find that the Respondent performed its statutory duty
in continuing to accord recognition to the independent
UEU as the employees' exclusive representative under
their collective -bargaining agreement . As shown above,
after the affiliation vote , the Respondent and UEU
officers and executive committeemen signed the agree-
ment with the clear understanding that UEU was the
contracting union. I am unable to find on the evidence
before me, as the argument of the General Counsel
and UAW suggests , that upon signing this agreement
UEU ceased to exist as an independent labor organiza-
tion capable of representing the Respondent ' s employees
and administering their contract . It is - not without signi-
ficance that, not only did 77 employees oppose affiliation,
but also not more than 120 UEU members out of a
total membership of approximately 250 notified that
Respondent that they withdrew from UEU and desired
to cancel their previously filed dues checkoff authoriza-
tions in favor of that organization. Clearly, this action
was taken during a period of time subsequent to UAW's
first membership meeting on December 9, where the
matter was discussed . Moreover, at the time of the
hearing, the Respondent had some 250 authorizations
from employees for dues deductions payable to UEU.
The fact that the affiliation vote not surprisingly created
a short period of uncertainty as to the identity of the
bargaining representative while the Respondent consid-
ered which union it was duty bound to recognize no
more undermined UEU as a viable organization than
it did UAW. Nor did UEU necessarily become defunct
simply because it was temporarily unable to function
effectively until a month later when , under the leadership
of Ward, a meeting of its members was held to supplant
the old officers and an executive committeeman who
had transferred their allegiance to UAW and assumed
comparable positions in that organization ." As the Board
observed in Hershey, supra 911, "mere temporary inabili-
ty to function does not constitute defunctness; nor is
the loss of members in the unit the equivalent of defunct-
ness if the representative otherwise continues in exist-
ence and is willing and able to represent the employ-
ees "27 .
I find that UEU, far from being defunct, was at
all material times fully able and willing to represent
the Respondent ' s employees and, indeed, has been acting
in such capacity in administering the parties' collective-
bargaining agreement , handling employee grievances,
and regularly conferring with management with respect
to terms and conditions of employment. In addition,
UEU has maintained its organizational structure and
holds periodic membership meetings. For these reasons,
it cannot be said that UAW is the same union as UEU
under a different name entitled to administer the contract,
as the General Counsel and UAW vigorously urge. At
best , it was a new organization claiming to represent
the employees at a time when the contract, which had
virtually its full 3-year term to run yet, precluded a
question of representation from being raised . "' Reaching
the same conclusion in an analogous case,29 the Board
stated in language particularly applicable to the situation
here presented:
In [the cited ] case, the certified bargaining represent-
ative did not disappear after the disaffiliation action.
Some but not all members shifted to the new organi-
zation ; most but not all officers transferred their
allegiance to the Retail Clerks. The certified unaffili-
ated Council continued to exist and to represent
employees at [the employer's stores]. The Retail
Clerks therefore stands forth not as the alter ego
of the certified unaffiliated Council, but like any
other union which, during the life of a valid bargain-
ing contract, has succeeded in diverting to itself
from the recognized bargaining representative the
support of a majority of employees in the bargaining
unit . As, at the time the Retail Clerks made its
request for bargaining , the Respondent's contract
with the unaffiliated Council still had approximately
1 year to run, the demand created no question
concerning representation . If, instead of making
the demand , the Retail Clerks had filed a representa-
tion petition, the Board would have dismissed it.
For the same reasons, the Respondent was free
to ignore the demand and to continue dealing with
the bargaining representative recognized by the out-
standing collective-bargaining agreement . [Footnote
omitted.]
I therefore hold that the Respondent did not violate
Section 8(a)(5) and (1) of the Act because of its refusal
to recognize UAW and its continued recognition of
the unaffiliated UEU.3" Accordingly, dismissal of the
amended complaint in its entirety is recommended.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS
1. The Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. UEU and UAW are labor organizations within
the meaning of Section 2(5) of the Act.
3. The Respondent has -not engaged in the unfair
labor practices alleged in the complaint , as amended.
RECOMMENDED ORDER
'-'' In Harbor Carriers of the Port of New York v N L R B , 306
F 2d 89, 94 (C A 2), the court stated , "Defection of officers and
seizure of assets are by no means indications that the old organization
is continued in the new "
27 To the same effect Crane And Breed Casket Company, 175 NLRB
No 35, and Polar Ware. supra The Louisville Railwayand The Prudential
Insurance cases, sepia relied on by the General Counsel and UAW,
are plainly distinguishable since unlike the contracting unions in those
cases, UEU never ceased to exist
Upon the basis of the foregoing findings and conclu-
sions, and upon the entire record in the case, and
Polar Ware, supra
2N Sears Roebuck and Company, 110 NLRB 226, 229
See citations in fn 20 , supra In view of my determination herein,
it is unnecessary to consider the other contentions advanced by the
Respondent and UEU
UNIVERSAL TOOL & STAMPING CO 261
pursuant to Section 10(c) of the National Labor Relations herein against the Respondent Universal Tool & Stamp-
Act, as amended ing Company, Inc , be, and it hereby is, dismissed
It is ordered that the complaint, as amended, issued