Wellington Industries, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 2, 2011

07-CA-053182 (N.L.R.B. May. 2, 2011)

JD(ATL)–11–11
Belleville, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
WELLINGTON INDUSTRIES, INC.
Respondent
and Case 7-CA-53182
LOCAL 174, INTERNATIONAL UNION,
UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW), AFL-CIO
Charging Party
and
INDEPENDENT UNION LOCAL ONE
Party to the Contract
Mary Beth Foy, Esq., for the General Counsel.
Stanley C. Moore, III, Esq. (Plunkett Cooney),
for the Respondent.
Robert D. Fetter, Esq. (Miller Cohen, P.L.C.),
for the Charging Party.
BENCH DECISION AND CERTIFICATION
Statement of the Case
KELTNER W. LOCKE, Administrative Law Judge. I heard this case on February 7,
2011, in Detroit, Michigan. After the parties rested, I heard oral argument, and on February 10,
2011, issued a bench decision pursuant to Section 102.35(a)(10) of the Board’s Rules and
Regulations, setting forth findings of fact and conclusions of law. In accordance with Section
102.45 of the Rules and Regulations, I certify the accuracy of, and attach hereto as “Appendix
A,” the portion of the transcript containing this decision.1 The conclusions of law, remedy,
Order and notice provisions are set forth below.

1 The Bench Decision appears in uncorrected form at pp. 167 through 180 of the transcript. The final
version, after correction of oral and transcriptional errors, is attached as App. A to this Certification.
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Further Analysis
For at least 20 years, Independent Local Union One (Local One) had been the exclusive
collective-bargaining representative of a production and maintenance unit of the Respondent’s
employees. At a Local One membership meeting on August 8, 2010, a majority of bargaining
unit members then present voted that this Union should affiliate with Local 174, International
Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW),
AFL-CIO (United Automobile Workers Local 174). As a result, Local One became a
“semiautonomous affiliate” of Local 174. The merged Union sought to have Local 174’s
president, John Zimmick, be its spokesman in negotiations with the Respondent.
Only a fraction of the total number of bargaining unit employees, between one-fourth and
one-third, attended the August 8, 2010 meeting at which the affiliation vote occurred.
Thereafter, 75 employees signed a petition protesting that the vote had been conducted with
insufficient notice to the membership, and asking for a revote. After Respondent received a copy
of this petition, it refused to meet and negotiate with Zimmick. (The Respondent eventually did
negotiate with the Local One bargaining committee in the absence of Zimmick, and reached
agreement on a new collective-bargaining agreement.)
The Respondent contends that the affiliation of Local One with Local 174 caused a
change which raised a question concerning representation. Therefore, it argues that it was
justified in refusing to bargain with the Local 174 president.
Before its decision in Raymond F. Kravis Center for the Performing Arts 351 NLRB 143
(2007), the Board applied a two-prong test to determine what effect a union’s decision to affiliate
with another labor organization would have on the union’s status as exclusive collective-
bargaining representative. In deciding whether a union remained the exclusive collective-
bargaining representative after the affiliation, the Board examined the circumstances of the
affiliation to assess whether they were consistent with due process, and also looked to the
continuity of representation.
In Raymond F. Kravis Center for the Performing Arts, above, the Board discontinued its
practice of weighing whether the affiliation satisfied due process standards. The Board
concluded that this due process analysis was not consistent with the United States Supreme
Court’s decision in NLRB v. Financial Institution Employees of America Local 1182 (Seattle-
First), 475 U.S. 192 (1986), which discussed the limits of the Board’s statutory authority.
The Supreme Court’s decision focused on one key factor: The presence or absence of a
question concerning representation. If the Board finds that affiliation raises a question
concerning representation, it can refuse to consider the union’s charge that the employer had
refused to bargain. Also, if the affiliation raises a question concerning representation, the Board
possesses authority to conduct a representation election.
However, the Supreme Court held, if the affiliation does not raise a question concerning
representation, it may not condone an employer’s refusal to negotiate with the employees’
exclusive bargaining representative. Stated another way, the Act gives a certified bargaining
representative the right to invoke the Board’s assistance by filing a refusal-to-bargain charge and
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the Board is dutybound to consider that charge so long as no circumstances exist which result in
a reasonable uncertainty about the union’s status as exclusive representative. Such
circumstances must be legally sufficient to raise a “question concerning representation.”
Applying that principle to the present case, Local One is the exclusive bargaining
representative and the Board has a duty to take action against a refusal to bargain unless the
record establishes circumstances sufficient to raise a question concerning representation.
Therefore, this analysis must focus on the presence or absence of such a question.
The fact that some correspondence from the Union referred to Respondent’s duty to
bargain with “Local 174,” rather than “Local One,” does not by itself establish that there has
been a change which raises a question concerning representation. No one would assert that by
changing his name, a person would thereby change the legal relationships he had with others.
For example, such a name change would not extinguish his legal obligations or forfeit his legal
claims. Similarly, a mere change in the name of a labor organization alone does not affect any
duty an employer might have to recognize and bargain with the union. Indeed, the Supreme
Court noted in Seattle-First, that
The fact that an affiliation is often accompanied by a formal name change does
not serve to distinguish it from other organizational developments. As the Board
has recognized, “an affiliation does not create a new organization, nor does it
result in the dissolution of an already existing organization.” Amoco Production
Co., 239 N. L. R. B. 1195 (1979). Rather, the union will determine “whether any
administrative or organizational changes are necessary in the affiliating
organization.” Ibid. If these changes are sufficiently dramatic to alter the union’s
identity, affiliation may raise a question of representation, and the Board may then
conduct a representation election. Otherwise, the statute gives the Board no
authority to interfere in the union’s affairs.
475 U.S. at 206.
Before reaching the Respondent’s arguments that the affiliation did cause changes
sufficiently dramatic to alter the Union’s identity, I will consider the Respondent’s argument that
the present facts warrant an exception to the Board’s holding, in Raymond F. Kravis Center for
the Performing Arts, above, that it no longer would examine whether an affiliation vote satisfies
a due process standard. The Respondent argues that although the Union had no obligation to
allow its members to vote on whether to affiliate, once it undertook to have such a vote, it
assumed an obligation to do so fairly, in accordance with some due process standard.
To accept that argument would be to ignore the Supreme Court’s reasoning in Seattle-
First, quoted above. Quite clearly, the Court held, “the statute gives the Board no authority to
interfere in the union’s affairs” in the absence of a question concerning representation. To accept
the Respondent’s argument—that the Union’s decision to have an affiliation vote allows an
inquiry into the way that vote was conducted—I must assume that the Union’s decision to have
such a vote somehow confers on the Board authority beyond that conferred by the Act. Such an
assumption is not warranted, so I reject the Respondent’s argument.
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Turning now to whether the record establishes the existence of a question concerning
representation, I will first consider whether the putative affiliation was really an affiliation or
rather something else. As the Supreme Court noted in the passage quoted above, an affiliation
does not create a new organization, nor does it result in the dissolution of an already existing
organization. However, it is necessary to look beneath the label to determine whether an action
called an “affiliation” really meets that definition.
In Goad Co., 333 NLRB 677 (2001), one union local purported to designate an official of
another union local to be its agent. However, the facts, considered in their entirety, showed an
attempt to substitute one local union, which was not the exclusive bargaining representative, for
the local union which was the exclusive representative. Similarly, in Sherwood Ford, Inc., 188
NLRB 131 (1971), the Board looked to the realities of the situation rather than to the labels
applied.
The present record does not fall within these fact patterns. I find no attempt to substitute
Local 174 for Local One. The nature of the certified bargaining representative remains
essentially the same, there has been a continuity of local union officers, and the presence of a
Local 174 official on the Union’s negotiating team does not rise to the level of being a de facto
change in the Union’s identity. Even though Local One now is a “semiautonomous unit” of
Local 174, that change did not extinguish Local One’s identity.
As discussed more fully in the bench decision, I do not conclude that the increases in
union dues and fees is “sufficiently dramatic” to alter the Union’s identity. It is true that the
increases were greater than those in cited cases holding that certain dues increases did not alter a
union’s identity and did not raise a question concerning representation. However, the
Respondent has not cited a decision in which dues and fee increases, comparable to those in the
present case, did raise a question concerning representation. Considering all the facts together, I
conclude that the increased dues and fees do not raise a question concerning representation in
this case.
The Respondent urges that I take administrative notice of the constitution of the United
Auto Workers Union, posted on the UAW’s website, and specifically, the provisions concerning
initiation fees and dues. During oral argument, the Respondent’s counsel stated, in part, as
follows:
[I]n Section 47 of the UAW constitution, under local union dues, in Section 2, it
states the following, and I quote: “A local union or unit of an amalgamated local
union is empowered to provide for the forfeiture of membership of a delinquent
member for the non-payment of dues without the necessity for proceeding by the
filing of charges or conducting of a trial.” We submit-end of quote. We submit
that that is a dramatic difference and shows that there was not substantial
continuity between Independent Union Local One pre-affiliation and Independent
Union Local One affiliated with UAW Local 174 after affiliation.
As the Supreme Court observed in the portion of the Seattle-First decision quoted above,
although the Board may determine whether a change is sufficiently dramatic to alter the identity
of the exclusive bargaining representative, the Act gives the Board no authority to interfere in the
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union’s affairs. Even were it in evidence, the provision Respondent’s counsel quoted would not,
in my view, establish a change sufficiently dramatic to alter the identity of the exclusive
bargaining representative.
Do any other factors raise a question concerning representation? As discussed in
Raymond F. Kravis Center for the Performing Arts, above, a question concerning representation
in relation to an incumbent union is presented when an employer has a good-faith reasonable
uncertainty whether a majority of unit employees continues to support the union. Evidence to
show such uncertainty can include antiunion petitions signed by unit employees, statements by
employees concerning personal opposition to the union, employees’ statements regarding other
unit employees’ antiunion sentiments, and employees’ statements expressing dissatisfaction with
the union’s performance as the bargaining representative.
The Respondent points to a petition, signed by many employees—approximately 75 in a
bargaining unit of about 125—expressing dissatisfaction with how the Union conducted the
affiliation vote and seeking a second vote. Based on the employees’ petition, the Respondent
filed an RM petition, which the Regional Director dismissed.
The employees’ petition sought a new affiliation vote, which is quite different from
expressing disaffection with the existing exclusive bargaining representative. An employee’s
attitude about the present bargaining representative cannot be inferred from a statement that he or
she wanted a fresh opportunity to vote on that union’s affiliation with another. Perhaps some of
the employees who signed the petition opposed Local One’s affiliation with Local 174 and
intended to say, in effect, “we like Local One the way it is,” but such a statement would hardly
be an indication of a desire to oust the exclusive bargaining representative.
However, trying to infer a message, other than the one actually stated on the petition
itself, involves mere speculation. It would require even greater speculation to guess how many
signers intended such an inexplicit message and how many signers simply wanted a new
affiliation vote. Moreover, even indulging in such unwarranted speculation would not reach a
conclusion that there was employee disaffection raising a question concerning representation.
Rather, I conclude that the signers of the employees’ petition intended to say exactly
what the petition stated on its face. The petition, therefore, related to an internal union matter. It
certainly did not create a reasonable uncertainty as to whether a majority of unit employees
continued to support the exclusive bargaining representative.
In other respects, the record does not support a conclusion that a question concerning
representation existed. To the contrary, I conclude that it does not.
The parties stipulated that the Respondent and Local One conducted a bargaining session
on November 8, 2010. They further stipulated that during this meeting, Local One’s counsel,
Robert Fetter, asked whether it was the Respondent’s position that if John Zimmick attended
bargaining, the Respondent would not bargain. Additionally, they stipulated that the
Respondent’s counsel, Stanley Moore, answered this question “yes.” I so find.
In these circumstances, and for the reasons stated in the bench decision, I conclude that,
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by conditioning continued bargaining with Local One on the absence of UAW Local 174
President Zimmick from negotiations, the Respondent deprived the exclusive bargaining
representative of the right to choose its own bargaining agents, and violated Section 8(a)(5) and
(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act, including posting the notice to employees attached hereto as
Appendix B, including by electronic means if the Respondent customarily communicates with its
employees by such means. J. Picini Flooring, 356 NLRB No. 9 ((2010).
CONCLUSIONS OF LAW
1. The Respondent, Wellington Industries, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, Local 174 International Union, United Automobile,
Aerospace and Agricultural Implement Workers of American (UAW), AFL-CIO, and
Independent Union Local One, are labor organizations within the meaning of Section 2(5) of the
Act.
3. The Respondent violated Section 8(a)(5) and (1) of the Act by conditioning
collective bargaining with Independent Union Local Union, the exclusive bargaining
representative of an appropriate unit of the Respondent’s employees, upon the absence of an
individual from negotiations, thereby depriving the exclusive bargaining representative of the
right to choose its own bargaining agents.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent did not engage in the unfair labor practices alleged in the
consolidated complaint not specifically found herein.
On the findings of fact and conclusions of law herein, and on the entire record in this
case, I issue the following recommended:2
ORDER
The Respondent, Wellington Industries, Inc., Belleville, Michigan, and at all other places

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, these findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board, and all objections to them shall be deemed waived for all purposes.
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where notices customarily are posted, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Conditioning collective bargaining with Independent Union Local One,
the certified exclusive collective-bargaining representative of an appropriate unit of its
employees, upon the absence of any person designed by Independent Union Local One to be one
of its negotiating representatives.
(b) In any like or related manner refusing to recognize or bargain with
Independent Local Union One as the exclusive representative of its employees in the certified
unit.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing, or to engage
in concerted activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Bargain collectively and in good faith with Independent Union Local One
as the exclusive representative of the employees in the following appropriate bargaining unit:
All full-time and regular part-time production and maintenance employees
including truck drivers employed by Respondent at its facility located at
39555 I-94 South Service Drive, Belleville, Michigan; but excluding all
office employees, clerical employees, and guards and supervisors as
defined in the Act.
(b) Post at its facility in Belleville, Michigan, and at all other places where
notices customarily are posted, copies of the attached notice marked “Appendix B.”3 Copies of
the notice, on forms provided by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including all places where
notices to employees customarily are posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility

3 If this 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.”
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involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and fromer employees employed by the Respondent
at any time since November 8, 2010.
(c) Notify the Regional Director in writing within 20 days from the date of
this Order what steps the Respondent has taken to comply.
Dated Washington, D.C., May 2, 2011.
__________________________________
Keltner W. Locke
Administrative Law Judge
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APPENDIX A
Bench Decision
This decision is issued pursuant to Section 102.35(a)(10) and Section 102.45 of the
Board’s Rules and Regulations. Because I conclude that the independent local union’s affiliation
with another union, UAW Local 174, was valid, I further conclude that the Respondent violated
Section 8(a)(5) and (1) by refusing to bargain with the Union if the Local 174 president
participated as part of the Union’s negotiating team.
Procedural History
This case began on September 23, 2010, when the Charging Party filed its initial charge
in this proceeding. On November 9, 2010, it amended that charge.
On December 22, 2010, after investigation of the charge, the Regional Director for
Region 7 of the National Labor Relations Board issued a Complaint and Notice of Hearing,
which I will call the “Complaint.” In issuing this complaint, the Regional Director acted on
behalf of the General Counsel of the Board, whom I will refer to as the “General Counsel” or as
the “government.”
A hearing opened before me on February 7, 2011, in Detroit, Michigan. The parties
finished their presentation of evidence on this date. On February 8, 2011, counsel presented oral
argument.
Today, February 10, 2011, I am issuing this bench decision.
Admitted Allegations
In its Answer, Respondent admitted the allegations in Complaint paragraphs 1(a), 1(b), 2,
3, 4, 6, 7, 8, 9, 10 and 12. Based on these admissions, I find that the General Counsel has proven
these allegations.
More specifically, I find that the charge and amended charge were filed and served as
alleged. Further, I find that Respondent is a corporation with an office and place of business in
Belleville, Michigan, and that at all material times it has been engaged in the manufacture,
nonretail sale, and distribution of stampings for the automotive industry.
Based on Respondent’s admissions, I further find that it falls within the Board’s statutory
jurisdiction and meets the Board’s standards for assertion of jurisdiction. I conclude that
Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7)
of the Act.
Respondent has admitted, and I find, that the following persons are supervisors within the
meaning of Section 2(11) of the Act and its agents within the meaning of Section 2(13) of the
Act: Marvin Thygem, Owner; John Brodowsky, President and Chief Executive Officer; Blaise
Flack, Chief Financial Officer; and Gary Sievert, Human Resource Director.
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Answering Complaint paragraph 5, Respondent has admitted that United Automobile
Workers Local 174 and Independent Local Union One are labor organizations. I so find. For
brevity, I will refer to UAW Local 174 as “Local 174” and to Independent Local Union One as
“Local One.”
Respondent has admitted, and I find, that the following employees of Respondent, herein
called the Unit, constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time production and maintenance employees
including truck drivers employed by Respondent at its facility located at 39555
I-94 South Service Drive, Belleville, Michigan; but excluding all office
employees, clerical employees, and guards and supervisors as defined in the Act.
Respondent has admitted, and I find, that for at least 20 years, and at all material times,
Local One has been the designated exclusive collective-bargaining representative of the Unit,
and since then has been recognized as such representative by Respondent. This recognition has
been embodied in successive collective-bargaining agreements, the most recent of which is
effective November 15, 2010 through November 14, 2013.
Respondent also has admitted, and I find, that on August 4, 2005, Local One was
certified by the Board in Case 7-RC-22845 as the exclusive collective-bargaining representative
of the Unit.
Respondent further has admitted, and I find, that at all times since at least 20 years ago,
based on Section 9(a) of the Act, Local One has been the exclusive collective-bargaining
representative of the Unit.
Respondent’s Answer admits that during the period June through late November 2010,
Respondent and Local One engaged in collective-bargaining negotiations for a successor labor
agreement.
As already noted, the Union filed its unfair labor practice charge against Respondent on
September 23, 2010. Respondent and the Union entered into a November 3, 2010 agreement,
received into evidence by stipulation, which stated, in part, as follows:
The Company and the Bargaining Committee have agreed to return to the
bargaining table and to put the issue of union recognition to the side and to allow
the National Labor Relations Board (“NLRB”) to resolve the issue and to process
and make determinations regarding the unfair labor practice charge. . .It is the
Company’s and the Union’s understanding and agreement that in so doing no
party is waiving any claim, cause of action, right, and/or defense that it may have
in any of these matters.
Respondent also stipulated, during the hearing, that the final bargaining session, at which
agreement was reached between Independent Union Local One and Wellington Industries was
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Friday, November 12, 2010. Representatives of Local One and the Company met on November
18, 2010 to go over the final contract language. From that date through Tuesday, November 23,
2010, Local Union One conducted a ratification process and at the conclusion of that process the
2010 to 2013 collective-bargaining agreement was ratified. I so find.
At the hearing, the parties entered into a written stipulation which resulted in the
introduction of certain documents into the record. Some of these documents will be discussed
later in this decision as the need arises.
The Facts
As already stated, Respondent has recognized Local One as the exclusive representative
of Respondent’s bargaining unit employees for at least 20 years, and this recognition has been
embodied in successive collective-bargaining agreements.
Respondent and Local One began negotiations for a new collective-bargaining agreement
in late May or early June 2010. About this same time, representatives of UAW Local 174 passed
out organizing leaflets in Respondent’s parking lot.
At some point, representatives of Local One and UAW Local 174 met. The record does
not reflect the precise date of this meeting. Local One did not have a meeting facility at
Respondent’s facility, and Local 174 offered to rent its meeting hall to Local One for two dollars
per meeting.
Thereafter, representatives of Local One and Local 174 discussed an arrangement
whereby Local One would become a “semiautonomous affiliate” of Local 174. Local One
scheduled a membership meeting for Sunday, August 8 2010, at which time members would vote
on the proposed affiliation.
Local One posted at the workplace at least four notices informing employees about the
August 8, 2010 meeting, but not all these notices mentioned that there would be an affiliation
vote. One of these notices, posted on August 2, 2010, stated that the purpose of the meeting was
“discussing collective bargaining for the upcoming new contract.” It did not mention anything
about the proposed affiliation with Local 174.
Indeed, this notice includes an explanation regarding why the meeting would be at the
Local 174 hall. It stated that Local 174 had “rented us their hall for $2.00.” It is not clear to me
why the notice writer would take pains to explain that Local One had rented the meeting hall but
did not mention the affiliation vote.
Another notice, also dated August 2, 2010, stated, in part, as follows:
On Sunday, August 8th, 2010, at 9:00 am we will have a meeting with our
attorney for the purpose of discussing collective bargaining for the upcoming new
contract. Our current contract is set to expire on November 14th, 2010. The
meeting will be held at UAW Local 174 who have requested to attend our
meeting and discuss the benefits and an affiliation with their organization. The
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Independent Union One membership will decide if this is in their best interest.
Although this notice states that the Local One membership “will decide if this is in their
best interest,” it does not state how this decision would be made or that there would be a vote
during the August 8, 2010 meeting.
A handwritten notice, posted later, advises employees to see the Union bulletin board for
an update on the meeting, but gives no specifics. The fourth notice, which is typed, bears no
date, but from the record I infer that it was posted on Saturday, August 7, 2010. It includes this
reference to an affiliation vote: “We urge all union members to participate in the ballot proposal
to affiliate with the Local 174.”
On August 8, 2010, a majority of the members attending the meeting did vote in favor of
Local One affiliating with Local 174. However, only a small fraction of Local One’s
membership attended the August 8, 2010 meeting and participated in the vote.
On August 9, 2010, the president of Local 174, John Zimmick, sent a letter to
Respondent’s president and chief executive officer, John Brodowski III. This letter stated, in
pertinent part, as follows:
I am the President of UAW Local 174. At a Local Union meeting on August 8,
2010, the Independent Local Union One voted to affiliate with UAW Local 174.
Independent Local Union One is now a semiautonomous unit of UAW Local 174.
On behalf of the unit and Local 174, the UAW hereby demands recognition.
It is my understanding that the Union and the Company are currently bargaining a
Collective Bargaining Agreement. I do not foresee any changes to the current
status of bargaining or any disruption of the bargaining or bargaining team.
If you have any questions, do not hesitate to contact me.
Also on August 9, 2010, Local 174 President Zimmick sent a letter to Respondent’s
human resources director, Gary Sievert, informing him of the affiliation vote, describing the
union dues structure and explaining how the dues should be forwarded. The increased Union
dues will be discussed further later in this decision.
Sometime between the meeting on August 8 and August 18, 2010, some bargaining unit
employees signed a petition asking for a revote. All together, about 75 employees signed this
petition, which stated: “This is a petition for a revote because, we feel the vote was done
unfairly. The posting we read did not say we were having a vote that day. 36 people out of 125
people is not a fair vote, because when 89 people did not know there was a vote taking place on
that day. We all should have got the chance to vote and be told that’s what we are doing that
day.”
Respondent’s President, John Brodowski III, received this petition and gave it to
Respondent’s director of human resources.
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Thereafter, Respondent took the position that it would not bargain if Mr. Zimmick were
present at the negotiating table. However, as already discussed, it did enter into an agreement to
conclude the negotiations and did enter into a new collective-bargaining agreement with Local
One, which agreement was for the period November 14, 2010 until November 14, 2013.
This collective-bargaining agreement includes a union-security clause requiring
employees to become members of Local One and pay dues or a service fee equivalent to dues,
and a checkoff clause by which Respondent agreed to deduct and forward to Local Union the
dues from employees who had executed authorizations. These clauses do not mention Local
174.
Discussion
The issue to be decided concerns whether Respondent lawfully could refuse to bargain if
Local 174’s president sat as part of the Union’s negotiating committee.
Respondent contends that the affiliation vote was not valid.
Until the Board’s decision in Raymond F. Kravis Center for the Performing Arts, 351
NLRB 143 (2007), the Board applied a two-pronged test to determine whether a the duty to
bargain surveyed a union’s vote to affiliate with another. The Kravis decision eliminated the
first prong of this test, which concerned due process.
Respondent argues here that because the Union decided to have a vote, that decision
imposed upon it a due process obligation it would not otherwise have. However, I must reject
that argument as unsupported by Board precedent.
Respondent also challenges the affiliation under the second prong of the test, which
remains in effect, and that concerns whether a substantial continuity exists between the old union
and the newly affiliated union. However, even applying the cases Respondent cited during oral
argument, I conclude that such a substantial continuity does exist.
Respondent argues that the Local Union’s affiliation with Local 174 vastly increased the
dues obligation of the individual member. However, as the Board stated in Mike Basil
Chevrolet, Inc., 31 NLRB 1044 (2000), “we believe it is reasonable to assume that employees
who vote to affiliate and thereby attain stronger representation and better services expect that it
will be more expensive.” 331 NLRB at 1045.
Additionally, as the Board stated in another case cited by Respondent, CPS Chemical Co., Inc.,
324 NLRB 1018 (1997):
The Respondent also argues that after the affiliation took place, the Association
turned over its entire treasury (as well as dues subsequently collected) to Local
8-397, and that none of the former Association officers are empowered to write
checks on the Local’s account. We give that factor little weight, however, because
the Respondent has failed to show that any of those assets are not available to the
CPS employee group. Thus, there is no showing that the CPS employees have
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fewer resources that can be committed to their representational needs by Local 8-
397 than were available under the Association.
324 NLRB at 1024
The same principles apply in the present situation. Accordingly, I conclude that
Respondent lawfully could not condition further bargaining on exclusion of the Local 174
president from the Union’s bargaining committee.
When the transcript of this proceeding has been prepared, I will issue a Certification
which attaches as an appendix the portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Findings of Fact, Conclusions of Law,
Remedy, Order and Notice. When that Certification is served upon the parties, the time period
for filing an appeal will begin to run.
Throughout this proceeding, counsel displayed the highest standards of civility and
professionalism, which are truly appreciated. The hearing is closed.
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APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT in any like or related manner refuse to recognize or bargain with independent
Local Union One as the exclusive representative of its employees in the certified unit.
WE WILL NOT refuse to bargain collectively and in good faith with the exclusive bargaining
representative of our production and maintenance employees and truck drivers by conditioning
bargaining upon the absence from negotiations of any individual designated by the Union as one
of its bargaining agents.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in
the exercise of these rights, guaranteed to them by Section 7 of the Act.
WE WILL bargain collectively and in good faith with the exclusive bargaining representative of
our production and maintenance employees and truck drivers.
WELLINGTON INDUSTRIES, INC.
(Employer)
Dated:_________________ By: ______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2569
(313) 226–3200, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
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NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 226–3244