Victor Comptometer Corp.

National Labor Relations Board - Board Decisions

Apr 29, 1976

223 N.L.R.B. 1169 (N.L.R.B. 1976)

BEAR ARCHERY 1169
Bear Archery, Division of Victor Comptometer Corpo-
ration and Bear Archery Employees Association-
Local No. 1903 of International Union , United Au-
tomobile, Aerospace and Agricultural Implement
Workers of America (UAW). Case 7-CA-11569
April 29, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND WALTHER
On August 14, 1975, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and Charging Party filed an
answer to the Respondent's exceptions and 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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
In late August 1974,' several employees of the Re-
spondent, including the president and vice president
of the Bear Archery Employees Association (herein
called the Association),' met with a representative of
the International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
ica (herein called the UAW), to discuss the possibili-
ty of the Association affiliating with the UAW. The
employees, at that time, decided that a meeting of the
Association's board of directors should be held on
September 4, to discuss the issue of affiliation with
the UAW. Each member of the board of directors
was, thereupon, personally asked by an officer of the
Association to attend the special meeting and was
informed that this would be a very important meet-
ing. Of the 30 members of the board of directors, 29
attended the September 4 meeting and, after discuss-
ing the pros and cons of affiliation, voted unani-
mously by secret ballot to recommend to the mem-
bers that the Association affiliate with the UAW and
1 All dates hereafter are in 1974 unless otherwise noted.
2 Since 1973, the Respondent has recognized the Association, a noncerti-
fied independent labor organization , as the collective- bargaining representa-
tive of its production and maintenance employees. The Association's last
collective-bargaining agreement with the Respondent expired December
1975.
that a "special membership meeting" be held to vote
on affiliation.
On September 5, notices were posted throughout
the plant announcing a special association member-
ship meeting, to be held at the American Legion Hall
on September 10, for the purpose of taking a secret
ballot vote on the issue of affiliation with the UAW.
Because the employees were then working on three
shifts, the notice also stated the time employees on
each shift were scheduled to attend the meeting.
On September 10, the meeting and voting, by
shifts, took place at the American Legion Hall, the
usual association meeting place. Each employee,
upon entering the hall, was handed a piece of paper
by the Association's vice president which contained
the board of directors' resolution and recommenda-
tion in favor of affiliation. The employee was then
told by the Association's president, Gary Swanson,
that if he or she had any questions or comments be-
fore voting, he or she should go to another part of the
hall, removed from the voting area, where about 200
chairs had been set up for the members' comfort. The
Association's president repeated this statement a
number of times so that all employees who entered
the hall were aware of the opportunity for discussion.
Subsequently, Swanson and the UAW representa-
tive, Walter Schultze, conducted a meeting in this
area. During the first two voting shifts, all of the em-
ployees went to the discussion area, where they lis-
tened to Schultze and Swanson speak on the advan-
tages of affiliation and asked questions. During the
last shift, however, only about 20 of the approximate-
ly 200 employees participated in the meeting. The
others went directly to the voting area to cast their
ballots.
It is not clear how long the meetings lasted. How-
ever, at the conclusion of said meetings, each voter
was directed to a table where the Association's secre-
tary and treasurer checked to see if the employee's
name was on the Employer's official seniority list
which was used as the voter eligibility list. If the
employee's name was on the list, he or she was given
a ballot, the voter's name was checked off the list,
and he or she was directed to a long table facing the
wall about 20 feet away from the officers' table
where, back turned toward the officers, he or she
would mark the ballot, fold it twice, and deposit it in
a locked ballot box which was situated at the end of
the officers' table. The ballot box was never removed
from the table and was guarded at all times by either
the Association's secretary or treasurer.
At 6 p.m., the polls were closed and the ballots
were counted by a special committee of six employee
volunteers which included officers and nonofficers of
the Association. Of 519 eligible voters on the senior
223 NLRB No. 191
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity list, 329 voted for, and 67 voted against, affilia-
tion.'
The following day, September 11, Respondent was
notified by letter from the association officers of the
affiliation vote and the fact that the Association
would henceforth be known as Local 1903 of the
UAW. The letter expressly advised Respondent that
all officers and functions of the Union would remain
the same; that there would be change in the day-to-
day relationship between the employees' designated
representative and the Company; and that Local
1903 of the UAW would honor all existing contractu-
al obligations between the Association and the Com-
pany. By letter to the Association dated September
13, Respondent stated that it would continue to rec-
ognize only the Association.
Based on the foregoing, we agree with the Admin-
istrative Law Judge's finding that the affiliation elec-
tion was valid and accurately reflected the wishes of
the employees. Therefore, we also agree with the Ad-
ministrative Law Judge's further finding that Re-
spondent, by refusing to recognize and bargain with
Local 1903 of the UAW, violated Section 8(a)(5) and
(1) of the Act.
Unlike our dissenting colleague, we find that the
affiliation election was conducted with sufficient
procedural and substantive safeguards to insure a
democratic vote, the results of which accurately re-
flected the wishes of the employee-members of the
Association. Not a single employee in a unit of over
500 has been heard to complain that the election was
other than fair and regular. It strikes us as odd, in-
deed, that only the Respondent Company and our
colleague have come forward to attack the election
procedures as denying employees their due process
of law.
Our dissenting colleague argues that the affiliation
election failed to meet minimum standards of due
process because: (1) the employees were not given an
adequate opportunity to discuss and consider the
question of affiliation before voting; (2) the notice of
the special meeting of the board of directors did not
conform to the formal requirements of the
Association's bylaws; (3) no impartial party was
present during the election; (4) the polling area failed
to assure secrecy of the ballot; and (5) about 30 pro-
bationary employees were not permitted to vote. We
3 While all of the Respondent 's employees are named on the seniority list.
together with their dates of hire , sec. 8 of the current collective-bargaining
agreement between Respondent and the Association provides that "the first
90 days of employment shall be considered probationary and without se-
niority ." The contract also contains a union -security clause requiring em-
ployees to join the Union after 90 days of employment . Because of these
contract provisions , about 30 probationary employees were not permitted to
vote . See discussion of this, infra.
find that the above do not provide grounds for set-
ting the election aside.
Our colleague states that there was no real oppor-
tunity for the members to discuss and consider the
question of affiliation . This ignores the uncontrovert-
ed facts that all voters were given full opportunity to
ask questions and make statements for or against af-
filiation before the voting began and that a majority
of the employees on the first and second voting shifts
took advantage of this opportunity . The fact that
only about 20 of about 200 voters on the third voting
shift took advantage of the opportunity for discus-
sion cannot be construed as a denial of their right to
such discussion . There is no testimony that any em-
ployee was denied the right to speak against affilia-
tion. Moreover , the employees had ample notice of
the special meeting and its purpose and , therefore,
had an opportunity to discuss among themselves the
issue of affiliation before the September 10 meeting.
This is all that the Board or courts have required in
the past . In light of the foregoing facts, we find our
colleague 's reliance on American Bridge Division,
United States Steel Corporation v. N. L. R. B.,a and
Peco, Inc.,5 misplaced.
Thus, unlike the facts in the present case , in Ameri-
can Bridge 100 employees had signed a petition re-
questing a special meeting in advance of the affilia-
tion election in order to discuss the issue fully, which
request was denied by the officers of the incumbent
association; neither a seniority nor membership list
was used to determine eligibility or to check off the
name of each employee who was handed a ballot
and, thus , there was no way to insure that each em-
ployee received only one ballot ; there was no desig-
nated voting area and members of the association
marked their ballots wherever they desired; and
members of the association , as well as officers , testi-
fied that they could and did , in fact , see how employ-
ee-members voted.
The facts in Peco are also strikingly different from
those in the instant case . There, the incumbent asso-
ciation which was the certified representative of the
production and maintenance employees conducted
two separate membership meetings to vote on the
question of affiliating with Marine Engineers Benefi-
cial Association (MEBA). The first meeting , in Feb-
ruary 1974, was held at. a time which precluded atten-
dance by all employees who worked the afternoon
shift and, hence ,, only 20-30 employees or at best 30
percent of the membership attended and the election
was admittedly not by secret ballot . The second
meeting, held in September of that year, was attend-
ed by only 11 of the employer 's approximately 100
4457 F.2d 660 (C.A. 3, 1972).
'204 NLRB 1036 (1973).
BEAR ARCHERY 1171
unit employees. The 11 employees adopted an affilia-
tion resolution and agreed to submit the resolution to
the full membership for ratification. The president of
the association, Jerry Winfrey, thereupon sent out
ballots to all employees and a letter endorsing the
"name change." Although 37 employees signed a pe-
tition requesting that a meeting be held to discuss
this issue and although Winfrey agreed to hold this
meeting and to stop the balloting, he continued with
the referendum. Subsequently, at a meeting allegedly
held for the purpose of discussing affiliation, the as-
sociation president, without allowing the requested
discussion, announced the results of the referendum
stating that the proposal to change the association's
name had won.
The Board found that this affiliation procedure
did not meet a minimum standard of due process on
the grounds that (1) the association's president re-
fused the employees' request for discussion; (2) many
members apparently did not participate in the refer-
endum because they believed the voting was discon-
tinued pending a meeting to discuss the issue; (3) the
September meeting at which the affiliation resolution
was adopted by voice vote was attended by no more
than 30 percent of the association's membership; (4)
the association continued to exist after the affiliation
referendum and, subsequently, signed a contract
with the employer; (5) there was clear evidence that
at least 37 members were dissatisfied with the elec-
tion procedures and intervened in the Board action
claiming that they had been denied due process; and
(6) members who opposed affiliation were- subse-
quently elected to a majority on the association's
board of directors.
It is clear from the record that the employees here,
unlike those in either Peco or American Bridge, had
adequate opportunity to discuss and consider the
question of affiliation before the voting began. The
employees had ample notice of the meeting and its
purpose and the polls were open throughout the day
so that all employees had ample opportunity to at-
tend the meeting and to vote. Both the UAW repre-
sentative and the president of the Association were
present at the meeting and all members were accord-
ed an opportunity to raise questions or make com-
ments for or against the proposed affiliation. There-
after, the election was conducted by secret ballot
and, most significantly, no employee has objected to
the procedures followed, challenged the validity of
the election, or claimed that he or she was denied due
process.
We also cannot agree with our colleague that the
election was marred by irregularities merely because
the special meeting. of the Association's board of di-
rectors was not called in accordance with the formal
requirements of the Association's bylaws, which re-
quire that notices of special meetings must be in writ-
ing and state the purpose of the meeting. We agree
with the Administrative Law Judge's finding that the
failure to give written notice of the special director's
meeting was merely a technical deficiency which
cannot be relied upon to overturn the election. In
any event, this deficiency was cured by the facts that
all 30 members of the board of directors were noti-
fied of the meeting and informed of its great impor-
tance; that all but 1 of the directors attended the
meeting; and that the vote of the board of directors
was unanimous in favor of affiliation and of calling a
special membership meeting for the purpose of vot-
ing on affiliation. We note, too, that no member of
the board of directors has protested the procedures
used in calling the special meeting of the directors.
As the Board stated in The Hamilton Tool Company,
190 NLRB 571, fn. 8 (1971), "the Board . . . does
not normally concern itself with determining whether
a membership meeting was held in strict conformity
with a union's constitution and bylaws absent a clear
showing . . . of substantial irregularity." See also
East Dayton Tool and Die Company, 190 NLRB 577,
579 (1971). In any event, the important thing is that
the employees had advance notice of the purpose of
their meeting.
Our dissenting colleague also questions the validity
of the election procedure on the ground that no im-
partial party was present during the voting. In de-
termining whether an affiliation vote meets the mini-
mum standards of due process, the Board has never
required that an impartial third party be present dur-
ing the election or that such vote meet the standards
of a Board election .6 Rather, the test is whether the
election is conducted in an orderly fashion and in an
atmosphere free from restraint- or coercion. This re-
quirement, in our view, was fully met here. The bal-
loting was carried on in an orderly fashion without
any evidence of pressure from either the Company,
the Association, or the UAW representative. Our col-
league has not cited a single Board or court case
which requires that an impartial observer must be
present in order to find an affiliation election valid.
Also, contrary to our colleague's assertion, there is
no evidence here that the balloting was not secret.
Employees voted at a table some 20 feet away from
where the ballots were handed out and with their
backs to the officials. There is no testimony that any
employee was able to see, or saw, how another em-
ployee voted. To the contrary, the Association's sec-
6 The strictures of Peerless Plywood, cited and relied on by our dissenting
colleague, are clearly inapplicable to the situation before us and are totally
out of their proper context. They apply only to Board-conducted elections
and have no relevance to affiliation elections.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retary testified that she could not see how the em-
ployees were voting.'
Finally, we disagree with our colleague that the
election was invalid because some 30 probationary
employees were denied the right to vote. The disen-
franchisement of these employees was grounded in a
contract provision which states that "the first 90 days
of employment shall be probationary or without se-
niority." Additionally, the contract provided that
employees are not required to join the Association
until they have completed their 90-day probationary
period. Although probationary employees are clearly
included in the bargaining unit, we do not view their
disenfranchisement as critical here. For we note that
even if all 30 probationary employees had unani-
mously voted against affiliation, their votes would
not have affected the results of the election which
was overwhelmingly in favor of affiliation. As the
Board observed in Hamilton Tool Company, supra at
575, under similar circumstances "when adequate
opportunity to vote is provided to all those . . . eligi-
ble to vote, the decision of the majority actually vot-
ing is binding on all."
In conclusion, we find that while the procedures
followed in the instant affiliation election may not
have measured up to the standards the Board de-
mands for conducting its own elections, we are un-
willing to find that the procedures were so lax or so
"substantially irregular" as to negate the validity of
the election, especially in the absence of any com-
plaint from an employee or member of the Associa-
tion. In our opinion the vote accurately reflected the
desires of the vast majority of the member-employees
and we find no reason to require a Board-conducted
election to redetermine the choice already made by
the employees. Rather, we are satisfied that regular
procedures under appropriate safeguards have been
followed to determine the employees' wishes on the
question of affiliation. We find that none of the argu-
r Our dissenting colleague asserts that the balloting procedure failed to
meet the requirement of a "secret ballot" as defined in sec . 3(k) of the Labor
Management Reporting and Disclosure Act, 29 USC §402(k). The question
of whether or not the balloting here met the foregoing requirements is, of
course , not for this Board to determine inasmuch as the Department of
Labor, not the National Labor Relations Board , administers the Labor
Management Reporting and Disclosure Act. Since we know of no ruling by
the Department of Labor that the balloting procedure here did not meet the
"secret ballot" requirements of 29 USC § 402(k)-nor do we know that the
question has been presented to that forum-we are unwilling to say whether
or not under that statute the balloting procedure was defective. We are
satisfied, however, that it met the criteria of our statute , thus preserving the
Union's statutory right to represent these employees. Our dissenting
colleague 's insistence that the most stringent rules be applied by the Board
in judging whether or not a small union has affiliated lawfully with a larger
body is not, in our opinion , justified on the ground of a failure of due
process. Where , as here, reasonable steps were taken to assure a fair vote,
we do not believe that microscopic examination of the voting procedure is
warranted if, in the end, the employees are thereby deprived of their bar-
gaining representative and denied their right to join with other union em-
ployees for their mutual aid and protection.
ments advanced by our dissenting colleague warrants
setting aside the employees' wishes.
Accordingly, we agree with the Administrative
Law Judge that Respondent by refusing to recognize
that the Charging Party is the collective-bargaining
representative for the production and maintenance
employees has violated Section 8(a)(1) and (5) of the
Act.
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 and hereby
orders that Respondent, Bear Archery, Division of
Victor Comptometer Corporation, Grayling, Michi-
gan, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
MEMBER WALTHER, dissenting:
I do not agree with my colleagues' adoption of the
Administrative Law Judge's finding that the Respon-
dent violated Section 8(a)(5) of the Act by refusing to
recognize the Charging Party following an affiliation
election. In my view, the minimal standards of due
process were not met by the circumstances surround-
ing the affiliation vote, and, hence, the Respondent
did not violate the Act by refusing to honor the re-
sults of such a vote.
The record reveals that the bargaining unit em-
ployees were not given the opportunity to collectively
discuss and consider the question of affiliation. Rath-
er, each employee was presented with only the execu-
tive board's resolution favoring affiliation 8 and indi-
vidually given the opportunity to question a
representative of the UAW, the Union with whom
affiliation was sought. No impartial party was pres-
ent at any time during the voting procedure nor was
there a "special membership meeting" as had been
announced. Indeed, there was no membership meet-
ing providing any opportunity for discussion in
which questions or opposition could be expressed
from the floor.'
8 The resolution favoring affiliation was passed at a "special meeting" of
the board of directors of the Bear Archery Employees' Association. Howev-
er, contrary to the requirements of the Association's constitution and by-
laws, there was no written notification of the special meeting nor were the
board members informed in advance of the purpose of such meeting.
9 The balloting procedure cannot be characterized as a "meeting." Only
20 members out of 200 to 250 voting in the first shift heard the "speech" or
discussion by the UAW representative: others voted after receiving only the
resolution favoring affiliation . Similarly. some of the members voting in the
remaining shifts did not hear the "discussion" by the UAW representative.
Evidently a majority of voters did not take part in any discussion. In any
event, such biased presentations to scattered groups of employees do not
constitute a meeting , nor do such hit-or-miss conversations provide any
opportunity for members to express opposition, even less to raise relevant
questions before fellow members.
BEAR ARCHERY 1173
The question of affiliation undeniably raises vital
issues which affect the employees and require
thoughtful consideration. Here, however, the voters
were presented with only one side of the affiliation
issue and voted immediately. Such an unbalanced
presentation cannot qualify as an open discussion
providing an opportunity for questions or dissent
and consideration. And such an unbalanced presen-
tation followed immediately by the voting surely had
"an unwholesome and unsettling effect and tend[ed]
to interfere with that sober and thoughtful choice
which a free election is designed to reflect." 10 The
Board sought in Peerless Plywood Co., supra, to elimi-
nate such an unsettling effect by prohibiting last-
minute speeches.
In American Bridge Division, United States Steel
Corporation v. N.L.R.B.," the court refused to en-
force a Board bargaining order 12 which was based
on an affiliation vote even though, unlike the instant
case , the employees had been permitted to discuss
the affiliation issue at a membership meeting just be-
fore the vote. The court said that a "period of reflec-
tion was certainly an element of the `opportunity to
consider' " an issue of such vital importance to the
members. No such "period of reflection" was permit-
ted here either."
While internal union elections are, of course, not
required to follow Board electoral procedures, due
process requires that the basic safeguards of a free
and fair election cannot be ignored it those elections
are to serve as the basis for Board sanctions. As
Member Jenkins observed in his joint dissent with
Member Zagoria in North Electric Company:14
If the Board is to accept privately conducted
elections as a basis for amending Board certifi-
cations, it should be certain that minimal stan-
dards of due process be observed lest the very
validity of Board certifications and elections be
undermined.
As in Peco, Inc.,15 wherein the Board refused to grant
an amendment of certification because the members
were not given an adequate opportunity prior to the
vote to discuss the proposed name change, the mem-
bers here were also denied the opportunity to discuss
and consider the proposed affiliation. The proce-
dures thus fail to meet the minimal standards of due
process.
Further, the "election" was marred by other irreg-
10 Peerless Plywood Co., 107 NLRB 427 (1953).
11 457 F.2d 660, 666 (C.A. 3, 1972).
1z 189 NLRB 119 (1971).
13 In making this finding , I need not and do not rely on any other portion
of the Third Circuit's opinion in American Bridge, supra.
14 165 NLRB 942 , 944 (1967).
1s 204 NLRB 1036, 1037 (1973).
ularities.16 The vote, for example, was not in reality
secret. The ballots were marked at an open table
within feet of the officers of the Association who ac-
knowledged their open support for affiliation. Often
several employees marked ballots at the open voting
table at the same time.
The facts put in the record by the General Counsel
are clear and uncontradicted regarding the voting.
All the activities took place in one room, 69-1/2 by
34 feet. In one corner was the only entrance used.
Most of the voters came after leaving work, but the
polls were open to stragglers all day. As voters en-
tered, they were handed a copy of the executive
board's resolution favoring affiliation and told they
could ask questions or go directly to vote. Approxi-
mately 200 chairs were set up in the room and in the
center at the far end the UAW representative and
president of the Union sat at a table to answer ques-
tions. The two officials of the Union checking the
eligibility list stood next to them behind another ta-
ble which the potential voters faced, then turned with
their ballots and walked a few feet to a table against
the wall and voted openly for all to see. While one of
the observers estimated she was 20 feet from the bal-
loting, the room was only 34 feet wide. Within a
space of at most 17 feet to the side of the two officials
answering questions were the vote observers and ta-
bles. If the voting table was 3 feet wide and the ob-
servers only 3 feet from the speakers, this means bal-
lots were marked openly at most 11 feet from the
observers with other voters in between the tables or
voting at the same time.
Clearly, this balloting procedure does not meet the
requirement of a "secret ballot" as defined in section
3(k) of the Labor Management Reporting and Dis-
closure Act, 29 USC § 402(k).17 The Department of
Labor, charged with enforcing the secret ballot pro-
visions with regard to internal union elections, inter-
prets section 3(k) as requiring "that there be no possi-
bility that any one would be able to determine how a
member's vote was cast." 18 The balloting here falls
far short of meeting this test.
As in American Bridge, supra, the voting proce-
dures utilized in this case were deficient in providing
16 Approximately 30 unit employees were disenfranchised based on their
status as "probationary employees."
17 Sec. 3(k).defines secret ballot as "the expression of a choice with respect
to any election or vote taken upon any matter, which is cast in such a
manner that the person expressing such choice cannot be identified with the
choice expressed."
is American Bridge, supra at 666, citing Shultz v. Local 420 Aluminum
Workers Union, 74 LRRM 2281 (N.D.N.Y., 1970). My colleagues ' argument
that the question is whether the Department of Labor would approve the
balloting here misses the mark . The provisions of sec. 3(k) provide a fair
standard against which to measure the validity of the balloting in this case.
The court in American Bridge was of this view, and applied the Department
of Labor's "secret ballot" definition to a similar affiliation vote on which
this Board had predicated its bargaining order, and concluded , inter alia,
that the vote did not meet this test and refused to enforce the Board's
bargaining order.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a fair opportunity for the members to consider the
vital issues confronting them. In my view, the proce-
dure followed here could only have had a stifling
effect on any employee inclined to oppose affilia-
tion." In the absence, therefore, of an opportunity
for the unit employees to openly and collectively dis-
cuss and consider the impact of the proposed affilia-
tion-and to cast truly secret ballots-I do not be-
lieve that the affiliation election can be accepted as
representing the true desires of the unit employees.
In these circumstances, I am unwilling to confer rep-
resentaive status on the basis of such an election and
would not find that the Respondent violated the Act
by refusing to recognize the Charging Party. Accord-
ingly, I would dismiss the complaint in its entirety.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Michigan corporation, has at all times
material maintained its principal office and place of busi-
ness in Grayling, Michigan, where it has been engaged in
the manufacture, sale, and distribution of archery equip-
ment and related products. During the calendar year 1973,
a representative period, Respondent, in the course and
conduct of its business operations, manufactured, sold, and
distributed products valued in excess of $500,000, of which
products valued in excess of $50,000 were shipped from its
Grayling facility directly to points located outside the State
of Michigan.
I find, as the Respondent admits, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
19 The majority seems surprised that the Respondent and I should con-
cern ourselves with defects in the affiliation election procedure when no
employees have publicly objected. Frankly. it surprises me that after all
these years it should appear odd to anyone that the Board , in the absence of
employee objections , concerns itself with matters involving the propriety of
election procedures . After all , due process is always a matter of Board con-
cern.
This case arises out of a privately conducted election to determine what
labor organization is to be the statutory bargaining representative of the
employees . The Board is being asked , in effect, to enforce the election victo-
ry of the UAW . Through the years, the Board has consistently sought to
guarantee that elections conducted under its auspices are run in accordance
with the requirements of due process . At no point have employee objections
been deemed to be a condition precedent to such an examination.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
at all times material Bear Archery Employees Associa-
tion-Local No. 1903 of International Union, United Au-
tomobile, Aerospace and Agricultural Implement Workers
of America (UAW), is a labor organization within the
meaning of Section 2(5) of the Act.
Ill, THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
DECISION
STATEMENT OF THE CASE
ROBERT COHN , Administrative Law Judge : This case,
heard at Grayling, Michigan, on April 28, 1975, pursuant
to a charge filed November 6, 1974,1 and a complaint is-
sued December 27, presents the question whether Bear
Archery, Division of Victor Comptometer Corporation
(herein the Respondent or Company), violated Section
8(a)(5) and ( 1) of the National Labor Relations Act, as
amended (herein the Act) when, on or about September 13,
it refused to recognize Bear Archery Employees Associa-
tion-Local No. 1903 of International Union, United Au-
tomobile, Aerospace and Agricultural Implement Workers
of America (UAW), Charging Party, following an affilia-
tion election.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after full consideration of
the posthearing briefs filed by counsel for the General
Counsel and by counsel for the Respondent , I make the
following:
1 All dates hereinafter refer to the calendar year 1974. unless otherwise
indicated.
2 The Association was apparently recognized by the Company as a result
of an election conducted by a disinterested third party ; however, such third
party was not the National Labor Relations Board , and the NLRB has
never issued a certification to that labor organization.
Since December 1969, the Company has recognized as
its production and maintenance employees' collective-bar-
gaining representative an independent labor organization
known as the Bear Archery Employees' Association (herein
the Association).2 Since recognition was granted to the As-
sociation, there have been three collective-bargaining
agreements negotiated, the current one running from Janu-
ary 1, 1974, through December 31, 1975.
In late August, several employees of the Company met
at the home of Joan Rasmussen, vice president of the Asso-
ciation, for the purpose of discussing possible affiliation
with the International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America
(UAW) (herein called UAW). Present at that meeting were
(in addition to Rasmussen), Gary Swanson, president of
the Association, and three other employees along with
Walter Schultze, an international representative of the
UAW. It was determined at that meeting that Schultze
would meet with the Association's board of directors to
explain to them the steps necessary to affiliate with the
UAW. Accordingly, such a meeting was scheduled to be
held, and was held, on September 4 at the home of Gary
Swanson, about 7:30 p.m.
Present at the September 4 meeting were 29 of the 30
board of directors of the Association.3 At that meeting,
3 The board of directors is comprised of at least one representative from
each of the several departments in the Company's plant. Some departments
have more than one representative , depending upon the number of employ-
ees in the department.
BEAR ARCHERY 1175
Schultze explained the advantages of and procedures nec-
essary to affiliate with the UAW. Since it was necessary
that the membership of the Association vote on such affili-
ation, and since a "special membership meeting" was re-
quired for that purpose, the board of directors voted by
secret ballot at the September 4 meeting to decide whether
such a "special membership meeting" should be called for
such purpose. The vote of the board of directors present at
the meeting was unanimous to hold such a "special mem-
bership meeting."
The following day, September 5, a "notice of special
meeting" was posted by the officers of the Association on
all employee bulletin boards at the plant notifying all
members of the Association that a special meeting of the
Association would be held at the American Legion Hall in
Grayling on September 10 for the purpose of taking a se-
cret ballot vote on the issue of affiliation with the UAW.
Since the employees were working on three shifts at that
time, it was also displayed on the notice what time each
shift was scheduled to attend the meeting.
On September 10, the meeting and voting commenced at
7 a.m. and continued until 6 p.m. at the American Legion
Hall. As a prospective voter came into the hall, he was
handed a piece of paper which contained the resolution of
the officers and board of directors of the Association rec-
ommending affiliation with the UAW. Such resolution
pointed out, in essence, that the structure of the Associa-
tion would remain essentially the same but that affiliation
was desired primarily "to provide expert technical assis-
tance and advice to the officers and membership of this
organization." Any prospective voter who desired to ask
questions of Schultze was directed to a part of the hall,
segregated from the voting , where Schultze was stationed.
Following that (or if the voter did not care to avail himself
of this prerogative), the voter proceeded to approach Ras-
mussen or Jackson Harney, secretary of the Association,
who had custody of a seniority list of employees. Said se-
niority list constituted an eligibility list to vote in the elec-
tion. Assuming that the prospective voter's name appeared
on the seniority list, he would be given a ballot, and his
r,.tne would be checked off the list. The voter would then
proceed to a table located approximately 20 feet away
from Rasmussen and Harney where he would, with his
back turned to them, mark his ballot. After marking his
ballot, the voter would deposit it in a locked ballot box and
proceed out of the hall.
According to Harney, there were approximately 519 eli-
gible voters. The tabulation of the balloting, which oc-
curred on the evening of September 10, indicated that there
were 119 "yes" votes and 6T "no" votes 4
The following day, September 11, the Company was no-
tified by letter of the vote on affiliation with the UAW, as
follows:
The only employees in the unit who were not considered eligible to vote
were probationary employees , i.e., employees who had not completed 90
days of employment with the Company. This apparently stems from section
8 of the current collective -bargaining agreement which provides that "the
first 90 days of employment shall be considered probationary and without
seniority ." (G.C. Exh. 2).
Mr. Alan Beatty
Bear Archery Company
Grayling, Michigan
Dear Mr. Beatty:
At a meeting of the members of the Bear Archery
Employees Association Union which, as you know, is
the exclusive collective bargaining representative of
your employees and is under contract with your com-
pany, the membership, after special notice of the pur-
pose of the meeting, voted to affiliate with the Interna-
tional UAW. A copy of the resolution of affiliation is
attached.
From this date on the name of the union has been
changed to Local 1903 of United Automobile-Aero-
space-Agricultural Implement Workers of America
(UA W). 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 or-
ganization in the local union has been completely pre-
seved and we intend to honor fully all contractual
commitments with the company. Please note for your
records the change in name of the contracting union.
(Emphasis in original.)
(signed by officers of the Association)
By letter dated September 13, the Company responded,
as follows:
Mr. Gary Swanson, President
Bear Archery Employees Association
Box 111
Grayling, Michigan 49738
Dear Mr. Swanson:
Please be advised that the undersigned is in receipt
of your letter dated September 11, 1974. It is the posi-
tion of the Company that we are obligated, under a
Collective Bargaining Agreement, between Bear Arch-
ery and the Bear Archery Employees Association. The
Company intends to fully comply and honor such Col-
lective Bargaining Agreement.
Further, you should be advised that with respect to
the employee's collective bargaining representative,
the Company will continue to recognize only the rep-
resentative entitled to such recognition as determined
by the appropriate law pertaining thereto.
Very truly yours,
Alan E. Beatty,
Executive Vice President
Joseph Schrader, personnel director for the Company,
testified that he was present on the morning of September
11 along with Beatty when Swanson, Rasmussen, and Har-
ney presented the Union's letter to the Company. He testi-
fied that they requested the Company to recognize the
UAW but that since that meeting the Company has not
recognized the UAW nor has it changed "any of its records
to show the UAW represents the bargaining unit employ-
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees." Schrader further testified that since September I I the
Company has had grievance meetings with the Association
and that an International representative of the UAW has
been present at such meetings ; however, Schrader testified
that he told such representative that "the Company would
permit him to engage in our talks , but he would not be
recognized as a UAW representative." 5
B. Analysis and Concluding Findings
The Respondent defends this case on two grounds: (1)
"the special general membership meeting , without ques-
tion , failed to meet minimum standards of due process;"
and (2) "the International UAW has yet to demand of the
Employer, bargaining in any form." 6 In my judgment, af-
ter a careful consideration of all the evidence in the record,
Respondent 's contentions should be rejected.
It is true , as Respondent points out , that the meeting of
the board of directors on September 4 was not strictly in
compliance with the requirements of the constitution and
bylaws of the Association. Section 5 of article 4 of the
bylaws requires that "A special meeting of the Board shall
be called at any time on the written request of the President
or any three (3) of its members." [Emphasis supplied] 7 The
record reflects that notice of the special meeting of the
board of directors was not in written form , but was orally
passed by word of mouth. The record also discloses that
the purpose of the meeting was not disclosed prior to the
meeting . The reason for omitting both of the above factors
was, as testified to by Rasmussen, "because we didn't want
it to get back to the employer." However, this technical
deficiency would seem to have been cured by the fact that
an overwhelming majority of the board of directors attend-
ed the meeting , and the vote was unanimous to call the
special membership meeting for the purpose of voting on
affiliation. There is no contention that sufficient notice of
the special membership meeting did not comply with the
bylaws, nor that ample notice thereof was not disseminated
to all interested personnel.
The circumstances of the voting itself appears clearly to
comply with all criteria regarding secrecy and freedom
from restraint by either representatives of the UAW, or the
Association, or the Company. Thus the balloting was car-
ried on by the officers of the Association, entirely separate
from the single representative of the UAW who was not in
the area of the balloting. None of the company supervisors
were present. Respondent argues in its brief that "there
was no procedure established to prevent a non -employee
from voting in the affiliation vote of Bear Archery employ-
ees." 9 However the record shows that the seniority list fur-
nished by the employer was utilized as the eligibility list for
the election . It is difficult to see how a nonemployee could
have voted therein, and there is clearly no evidence that
5 Prior to the affiliation , the Association sometimes had a local Grayling
attorney present at the grievance meetings.
6 Resp. br.
G.C. Exh. 3.
s As above indicated , 29 out of the 30 members of the board attended the
meeting . Attempts were made to contact the remaining member , without
success.
9 Resp. br.
such occurred. Indeed, there is no evidence that any indi-
vidual or group of individuals, either during the voting or
subsequent thereto represented to either the Association or
to the employer that anyone eligible to vote had been dis-
enfranchised.10
In sum, the record discloses that a majority of the em-
ployees in the bargaining unit indicated in a properly con-
ducted election to affiliate with the UAW. In such circum-
stances , the Board has seen fit to sanction the employees'
wishes on the question of affiliation, and not to require the
formality of a Board-conducted election to redetermine the
choice already made."
Finally, the record reflects that the Union here, as in the
Pearl Book Binding case,12 underwent no change at all
apart from the change of name and affiliation: "It did not
merge with any other local. There was no structual or ad-
ministrative change without the Union. Its officers and
their duties and functions remained the same , its assets
were unaffected, the membership remained the same, the
Union's autonomy and by-laws remained the same, and
the size and territorial jurisdiction of the Union remained
the same." 13 It continued to administer the collective-bar-
gaining agreement with the Company, and in all respects
was a mere continuation of the Association except for a
technical change in name and the change in affiliation.
Under all of the foregoing circumstances, there were no
"unusual circumstances" which would terminate the duty
of the Company to bargain."
But the Company argues that "there can be no violation
of 8(a)(5) of the Act until, (1) a bargaining demand is
made, and (2) the employer refuses and rejects such de-
mand." 15 However, the record clearly shows that following
the vote on affiliation, the officers of the Association re-
quested that the Company recognize the UAW, and that
all times since September 11 the Company has declined to
so recognize the UAW. In view of the existence of the
current collective-bargaining agreement, there have been
no demands for "bargaining" except to the extent of the
grievance meetings. Here again, the record discloses that
the Company has declined to recognize the UAW repre-
sentative as such in its grievance meetings.
Personnel Director Schrader testified as follows as re-
spects the company position regarding bargaining with the
UAW:
Q. Since being informed of the affiliation vote, and
having been demanded to recognize the UAW, have
you, in any way, bargained with the UAW?
A. No.
10 It is true that, had the election been held pursuant to procedures of the
NLRB, probationary employees probably would have been allowed to vote.
However, there was a basis grounded on a contractual provision which
supplied the reasoning for disenfranchisement of the probationary employ-
ees. In any event, even if all of them had voted against affiliation, such
would not have affected the results of the election.
11 See North Electric Company, 165 NLRB 942 (1967). See also The Hamil-
ton Tool Company, 190 NLRB 571 (1971). Although the cited cases arose in
a context of a request to amend a certification , the rationale would appear
to be the same.
12 Pearl Book Binding Company, Inc., 206 NLRB 834, enfd . 517 F.2d 1108,
(C.A. I. 1975).
1S Pearl Book Binding Company, Inc., supra.
14 N. L. R. B. v. Pearl Book Binding Company, Inc., supra.
15 Resp. br.
BEAR ARCHERY
Finally, I note that in its answer to the complaint the
Respondent states:
In answer to paragraph 14, Respondent admits its
continued willingness to recognize and bargain with
the Bear Archery Employees Association and further
states it has refused to recognize and bargain with the
Charging Party because such organization lacks enti-
tlement under all provisions of the Act.
I have found, contrary to the Respondent's contention,
that the Charging Party has complied with all the necessary
procedures which entitle it to be recognized as the
employee's collective-bargaining representative under the
provisions of the Act. Moreover, the Board's orders oper-
ate, at least in part, in futuro, and it could be reasonably
expected that the Charging Party may wish to open the
collective-bargaining agreement near its termination date
in December 1975. Should it choose to do so, it would
clearly be in accordance with the principles of the Act that
its status as collective-bargaining representative be clearly
defined.
Based upon all of the foregoing, I find and conclude that
at all times since September 11, the Respondent has failed
and refused to recognize the Charging Party as the collec-
tive-bargaining representative of its production and main-
tenance employees, in violation of Section 8(a)(1) and (5)
of the Act, and I will recommend an appropriate remedy.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent set forth in section I, above, have a close, inti-
mate , and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent had engaged in unfair
labor practices prohibited by Section 8(a)(1) and (5) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. 16
Upon the basis of the foregoing findings of fact and
upon the entire record herein, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local No. 1903 of International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
16 Since I have found that Local No. 1903 of International Union, United
Automobile , Aerospace and Agricultural Implement Workers of America
(UAW) is the same organization as, and a continuation of, Bear Archery
Employees Association , and that the membership of such organization has
indicated its desire to be known as the former, I shall so designate it in the
Conclusions of Law, Order, and Notice to Employees.
1177
America (UAW), is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees employed
by the employer at its Grayling, Michigan, plant including
shipping and receiving employees and truckdrivers; but ex-
cluding office clerical employees, executive, administrative,
professional, salaried, plant protection employees, and su-
pervisors constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.l'
4. By refusing to recognize Local No. 1903 of Interna-
tional Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW), as the col-
lective-bargaining representative of Respondent's
employees in the aforesaid appropriate unit, Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record, and pursuant
to Section 10(c) of the Act, I recommend the following:
ORDER18
Respondent , Bear Archery , Division of Victor Comp-
tometer Corporation, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize , or bargain collectively, upon
request , with Local No. 1903 of International Union, Unit-
ed Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), as the exclusive bargaining
representative of the employees in the following appropri-
ate unit:
All production and maintenance employees employed
by the employer at its Grayling , Michigan , plant in-
cluding shipping and receiving employees and truck-
drivers ; but excluding office clerical employees, exec-
utive , administrative , professional , salaried, plant
protection employees , and supervisors constitute a
unit appropriate for the purpose of collective bargain-
ing within the meaning of Section 9(b) of the Act.
(b) Engaging in any like or related unfair labor practices
proscribed by the National Labor Relations Act, as
amended.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Recognize and bargain collectively , upon request,
with Local 1903 of International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of
17 The foregoing unit description is alleged in the complaint , and is admit-
ted in the answer of Respondent.
18 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America (UAW), and embody any understanding reached
in a signed agreement."
(b) Post at its Grayling, Michigan, plant copies of the
attached notice marked "Appendix ." 26 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 7, after being duly signed by an authorized represen-
tative of Respondent, shall be posted by Respondent
immediately upon receipt thereof , and be maintained for
60 consecutive days thereafter , in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted . Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered , defaced, or
covered by any other material.
(c) Notify the said Regional Director, in writing , within
20 days from the date of this Order , what steps Respondent
has taken to comply herewith.
19 In view of the currency of a collective-bargaining agreement between
the Respondent and the Association , nothing in this Order should be con-
strued to require the Respondent to bargain with the Charging Party con-
cerning the alteration of any terms of such agreement prior to the date
established by such agreement for the reopening or renegotiation of the
same.
20 In the event that the Board 's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize , or bargain collec-
tively, upon request , with Local No. 1903 of Interna-
tional Union , United Automobile , Aerospace and Ag-
ricultural Implement Workers of America (UAW) as
the exclusive bargaining representative of the employ-
ees in the appropriate unit described below:
All production and maintenance employees em-
ployed by the employer at its Grayling , Michigan,
plant including shipping and receiving employees
and truckdrivers ; but excluding office clerical em-
ployees , executive, administrative , professional, sal-
aried, plant protection employees , and supervisors
constitute a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section
9(b) of the Act.
WE WILL NOT engage in any like or related unfair
labor practices.
WE WILL recognize and bargain collectively, upon
request , with the above-named Union as the exclusive
representative of the above described employees.
BEAR ARCHERY, DIVISION OF VICTOR COMPTOMETER
CORPORATION