Newell Porcelain Co

National Labor Relations Board - Board Decisions

Jun 12, 1992

307 N.L.R.B. 877 (N.L.R.B. 1992)

877
307 NLRB No. 135
NEWELL PORCELAIN CO.
1 All subsequent dates are in 1991.
2 Shortly after the affiliation election, a charter was issued to the
Respondent’s employee thereby creating UE Local 611.
Newell Porcelain Company, Inc. and United Elec-
trical, Radio and Machine Workers of America
(UE). Case 6–CA–23560
June 12, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 23, 1992, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The General Counsel filed a brief in opposition
to the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent refused to rec-
ognize and bargain with the postaffiliation Union in
violation of Section 8(a)(5) and (1) of the Act. For the
reasons set forth below, we disagree with the judge
and shall dismiss the complaint.
On June 8, 1990, the Independent Porcelain Workers
Union (IPWU), a local unaffiliated union, was certified
as the collective-bargaining representative of the Re-
spondent’s production and maintenance employees.
The Respondent and the IPWU thereafter met in nego-
tiations 19 times but were unable to reach a final
agreement. The failure to secure an agreement spurred
the IPWU to seek affiliation with a larger labor organi-
zation. On March 19, 1991,1 the IPWU membership
voted 42 to 2 to affiliate with the United Electrical,
Radio and Machine Workers of America (UE).2
The following day, the UE notified the Respondent
that it had been designated the collective-bargaining
representative of the above-described unit by virtue of
the affiliation vote, and requested bargaining. In re-
sponse, the Respondent requested certain information
regarding the affiliation. On receipt of the information,
the Respondent agreed to resume bargaining, and ne-
gotiating sessions were held on April 17 and 26, and
May 3. The prior union negotiating team remained,
with the addition of UE field organizer, Lisa Fisher,
and UE International Representative Marion Wash-
ington as chief spokesperson in place of the IPWU’s
former attorney. Washington informed the Respondent
at the negotiations that he reserved the right to make
changes to the contract provisions tentatively agreed to
in the negotiations prior to the affiliation.
At the April 26 negotiation session, Washington pro-
posed a change in the previously agreed-upon IPWU
recognition clause to reflect recognition of the UE and
its Local 611. The Respondent rejected this change and
counterproposed that it be permitted to recognize the
IPWU as ‘‘affiliated with the UE.’’ The Respondent’s
counterproposal was rejected, and the parties were un-
able to reach agreement on a recognition clause.
At the third and final bargaining session on May 3,
the subject of the recognition clause was again raised
and the Respondent’s counterproposal was again re-
jected. Thereafter, the Respondent broke off negotia-
tions.
By letter dated May 14, International Representative
Washington notified the Respondent that it had can-
celed three negotiating sessions and thereby was ‘‘re-
fusing to bargain in good faith negotiations with the
United Electrical, Radio and Machine Workers of
America (UE) as the collective bargaining representa-
tive for the employees of Newell Porcelain.’’ The let-
ter concluded by requesting bargaining ‘‘[o]n behalf of
United Electrical, Radio and Machine Workers of
America (UE) and its Local 611.’’
By letter to Washington dated May 16, the Respond-
ent defended its position. The Respondent stated that
initially it agreed to bargain because it believed the
representations that had been made to it that ‘‘what
was involved was an affiliation between the Inde-
pendent Porcelain Workers Union and the United Elec-
trical, Radio & Machine Workers of America’’ (em-
phasis in original). However, during the negotiations,
Washington ‘‘refused to agree to language which
would implement that which you suggested happened
. . ., that is, affiliation.’’ Accordingly, it was now the
Respondent’s concern that an affiliation had not taken
place but rather what had occurred was the replace-
ment by the UE of the IPWU as the employees’ bar-
gaining representative.
Thereafter, Washington made various demands for
renewed bargaining. By letter dated June 17, Wash-
ington requested ‘‘[o]n behalf of UE Local 611,’’ that
the Respondent resume negotiations.
By letter dated July 19, Washington made two dif-
ferent requests for negotiations. The first sentence of
the letter stated that the request was made ‘‘on behalf
of the United Electrical, Radio and Machine Workers
of America (UE) and its Local 611.’’ The last sentence
of the letter stated that the request was made ‘‘[o]n be-
half of UE Local 611.’’
Finally, by letter dated September 18, Washington
requested bargaining ‘‘[o]n behalf of the United Elec-
trical, Radio and Machine Workers of America (UE)
and its Local 611.’’
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 We agree with the judge’s findings that there was substantial
continuity between the pre- and post-affiliation Union, and that the
affiliation election was conducted with adequate due process safe-
guards. See Seattle-First National Bank v. NLRB, 892 F.2d 792,
797–801 (9th Cir. 1989), cert. denied 110 S.Ct. 2618 (1990); NLRB
v. Insulfab Plastics, 789 F.2d 961, 965–968 (1st Cir. 1986); May De-
partment Stores Co., 897 F.2d 221, 226–230 (7th Cir. 1990), cert.
denied 111 S.Ct. 245 (1990).
4 Compare Insulfab Plastics, supra, 789 F.2d at 964, in which the
First Circuit affirmed the Board’s finding that the employer unlaw-
The judge found that the Respondent was obligated
to bargain with the postaffiliation Union because the
affiliation election was conducted with adequate due
process safeguards, and because there was substantial
continuity between the pre- and post-affiliation Union.
See NLRB v. Financial Institution Employees, 475 U.S.
192 (1986).3 The judge concluded that the Respondent
violated Section 8(a)(5) and (1) of the Act by refusing
to recognize and bargain with UE Local 611 as the
lawful successor of the IPWU.
Our disagreement with the judge is a narrow one.
We agree with the judge’s finding that following the
affiliation election, the Respondent was obligated to
recognize and, on request, bargain with the affiliated
Union. Significantly, the Respondent did, in fact, rec-
ognize and bargain with the affiliated Union. Indeed,
during the negotiations, the Respondent proposed rec-
ognizing the IPWU as affiliated with the UE. As
noted, this is the very entity that the judge found that
the Respondent was obligated to recognize. Neverthe-
less, the Respondent’s counterpart at the bargaining
table inexplicably rejected this proposal and failed to
assure the Respondent in the subsequent bargaining
session that it was, in fact, negotiating with the affili-
ated Union.
It is well established that an employer’s statutory
duty to bargain with the chosen representative of its
employees with respect to rates of pay, wages, and
other terms and conditions of employment is an obliga-
tion only to the certified or recognized bargaining rep-
resentative. In this case, the Respondent’s obligation
runs to the affiliated Union as the lawful successor to
the IPWU. That obligation, being exclusive, exacts a
‘‘negative duty to treat with no other.’’ Medo Photo
Supply Corp. v. NLRB, 321 U.S. 678, 683–684 (1944).
When the Respondent’s proposal to recognize the
IPWU as affiliated with the UE was rejected without
explanation, the Respondent had reasonable grounds
for believing that it might be bargaining with some
other labor organization (the UE) in violation of Sec-
tion 8(a)(2) of the Act. In these unusual circumstances,
we find that the Respondent was justified in sus-
pending negotiations pending further clarification of
the identity of the party purporting to be the employ-
ees’ bargaining representative.
We now turn to the Respondent’s refusal to resume
negotiations. It is axiomatic that an unlawful refusal to
bargain must be predicated on a valid union demand
for bargaining. NLRB v. Columbian Enameling &
Stamping Co., 306 U.S. 292, 297–298 (1939). Given
the confusion engendered by International Representa-
tive Washington’s rejection of the Respondent’s pro-
posal to recognize the affiliated Union, any subsequent
demand for bargaining in this case can be considered
valid only if the Union clarified that the local, not the
UE, was the bargaining representative. Such clarifica-
tion is necessary because the UE, as ‘‘[a]n uncertified
organization[,] cannot . . . inject itself . . . into a
labor relationship where there is a certification, in the
face of the statutory provisions as to exclusiveness,
certifications, etc.’’ Auto Workers v. NLRB, 394 F.2d
757, 761 (D.C. Cir. 1968), cert. denied 393 U.S. 831
(1968). Rather, the UE’s role is limited to assisting the
exclusive bargaining representative in servicing the
unit employees. See Insulfab Plastics, supra, 789 F.2d
at 964; see NLRB v. General Electric Co., 412 F.2d
512, 516–517 (2d Cir. 1969).
Here, in demanding renewed negotiations, Inter-
national Representative Washington failed to make
clear that the bargaining representative was the affili-
ated Union rather than the UE itself. Thus, in his May
14 letter, Washington erroneously advised the Re-
spondent that it was refusing to bargain with the UE,
which Washington misidentified ‘‘as the collective bar-
gaining representative for the employees of Newell
Porcelain.’’ The letter concluded with an invalid de-
mand for bargaining because it was made on behalf of
both the UE and its Local 611.
Even after receiving the Respondent’s May 16 letter
explaining the basis for its concern that the UE was
unlawfully seeking to displace the affiliated Union,
Washington failed to take any action to dispel the con-
fusion he had created. It is true that on June 17 Wash-
ington requested bargaining on behalf of UE Local
611. However, this letter standing alone was insuffi-
cient to clarify matters because it failed to make clear
that the bargaining representative was the affiliated
local rather than the UE itself. Further, the June letter
was followed by a confusing letter the following
month containing two different requests for negotia-
tions: one on behalf of the International and the local,
and one on behalf of just the local. Finally, the Sep-
tember demand for bargaining was invalid because it,
too, was made on behalf of both the UE and Local
611.
The conclusion we draw from these communications
is that the Respondent was not alone in its confusion
over the identity of the employees’ bargaining rep-
resentative. In the absence of any clarification, we find
that the affiliated Union failed to make a valid bar-
gaining demand sufficient to trigger the Respondent’s
bargaining obligation vis-a-vis Local 611 as affiliated
with the UE.4 In the absence of a valid demand for
879NEWELL PORCELAIN CO.
fully refused to bargain with the affiliated union where the latter
clarified to the employer that the bargaining representative was the
affiliated union, rather than the International itself, as the union had
initially informed the employer.
1 All following dates will be in 1991 unless otherwise indicated.
recognition and bargaining, we cannot find that the Re-
spondent violated the Act. Accordingly, for all these
reasons, we shall dismiss the complaint.
ORDER
The complaint is dismissed.
Suzanne C. McGinnis, Esq., for the General Counsel.
John T. Billick, Esq. and Victor T. Geraci, Esq., of Cleve-
land, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Weirton, West Virginia, on November
8, 1991. Briefs subsequently were filed by the General Coun-
sel and Respondent. The proceeding is based on a charge
filed April 25, 1991,1 by the United Electrical, Radio and
Machine Workers of America (UE).
The Regional Director’s complaint dated July 11 alleges
that Respondent, Newell Porcelain Company, Inc., of Newell,
West Virginia, violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act by failing and refusing to recog-
nize and bargain with Local 611 of the International Union
as the exclusive collective-bargaining representative of the
unit.
On review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the manufacture, distribution,
and sale of porcelain insulators. It annually ships goods val-
ued in excess of $50,000 from its Newell location to points
outside West Virginia. It admits that at all times material it
has been an employer engaged in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. It also admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act, but denies
that it has any legal relationship with that Union.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent admits that since May 13, 1991, it has not rec-
ognized or bargained with Union Local 611 as the exclusive
collective-bargaining representative of a unit of its employees
but it contends that it is under no obligation to do so because
it has a legitimate question as to this legitimacy of the
Union’s status as the employee’s ‘‘new’’ bargaining rep-
resentative.
At an election in May 1990, Respondent’s employees se-
lected the Independent Porcelain Workers Union (IPWU) a
local, unaffiliated union, as the collective-bargaining rep-
resentative of Respondent’s production and maintenance em-
ployees including lab technicians and working foremen. The
Union was certified on June 8, 1990, and it began an attempt
to negotiate a collective-bargaining agreement with Respond-
ent. The parties met 19 times in an approximately 10-month
period, but only reached tentative agreement on certain lim-
ited provisions, none of which had to do with the major eco-
nomic terms such as wages, health and welfare benefits, re-
tirement or pension plans, and no contract was agreed on.
At a union meeting in October 1990, the membership
began discussions of the possibility of affiliation with a big-
ger union because of feelings that the independent union
didn’t appear to have adequate strength to negotiate a con-
tract. After further unsuccessful employer-union negotiations
and further membership discussions, IPWU President Mi-
chael Nixon invited UE International Union Representative
Marion Washington to the Union’s February 14, 1991 gen-
eral membership meeting with approximately 25 members.
Washington explained the history and structure of his Union
and told them that an International representative could assist
in negotiations and make recommendations but that local
members have a right to vote on local issues and that the
members must run their own local union.
UE International Director of Organization Edmund Bruno
attended tha next general membership meeting on March 13,
and again explained the Union’s structure to approximately
25 members and how each local would run its own affairs.
A vote (consistent with union bylaws), in favor of con-
ducting an afffiliation election on March 19, was passed and
IPWU Secretary/Treasurer Mary Ice prepared and distributed
a notice to the members of the IPWU listing the date, time,
and place of the election, and officers of the IPWU distrib-
uted a second letter to members at Respondent’s gate on the
morning of the election and employees on layoff or sick
leave were notified of the election by telephone.
Out of the 46 members who were eligible to vote, 44
members voted. Although the IPWU had a system whereby
voters could be challenged, no ‘‘ineligible’’ persons at-
tempted to do so. The election was an orderly, secret ballot
election held during set hours with no electioneering per-
mitted at the polling place. Four observers, none of whom
were principal officers in the IPWU or the UE, oversaw the
election. Three of the observers were employees of Respond-
ent. The fourth observer was a ‘‘neutral’’ party who works
as a volunteer fireman in Newell. Voters were instructed to
sign in when they appeared to vote and each was given one
ballot, told to go behind a partition, cast his or her vote, fold
the ballot, and deposit the ballot in the ballot box which was
located 10 to 15 feet from the nearest observer.
At the end of the polling period, IPWU President Nixon
began tallying the ballots. Two observers unfolded ballots
while Nixon called out the votes. The ‘‘Yes’’ votes and the
‘‘No’’ votes were recorded by the other two observers. The
results were 42 votes in favor of affiliation and 2 voting
against.
On April 8, a charter was issued to Local 611 by the Inter-
national Union. The IPWU officers initially elected by Re-
spondent’s bargaining unit employees remain the officers of
UE Local 611. The stewards have remained unchanged, and
membership meetings are held at the same time and place as
the IPWU meetings, and are attended by only those employ-
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees who are members of the same described bargaining unit.
‘‘Grievances’’ are still processed as when employees were
represented by the IPWU. Decisions with respect to expend-
ing union funds are made in the same manner as when the
employees were represented by the IPWU. Finally, the em-
ployee-members of the negotiating committee have remained
unchanged and any contract agreed on must be accepted by
the union membership as was the case with the IPWU.
On March 20, International Union Representatives Wash-
ington and Lisa Fisher along with Local 611 President
Nixon, Vice President David Mellinger, and Secretary/-
Treasurer Mary Ice went to the office of Respondent’s
owner, John Roberts, to deliver a letter. This letter advised
that the UE International had, by virtue of an affiliation vote,
been designated the collective-bargaining representative of
Respondent’s employees. The letter was accompanied by a
copy of the tally of ballots and Washington orally requested
recognition from Respondent. Roberts ignored Washington,
directed his attention to former Local President Nixon, and
advised Nixon to contact the Respondent’s attorney.
The UE then sent a letter to Respondent’s attorney advis-
ing him of the affiliation and requesting negotiations. Re-
spondent answered by expressing concerns regarding
‘‘proof’’ of the UE’s status and requesting answers to a se-
ries of questions. On March 28, Washington responded to
counsel’s request with a letter explaining the new relation-
ship. This letter identified the name of the new union as
‘‘United Electrical, Radio and Machine Workers’ of America
(UE).’’ Subsequently, Respondent’s counsel received a letter
dated April 4, from Michael Nixon, who signed the letter as
president of the ‘‘Independent Porcelain Workers’ Union af-
filiated with the Electrical Workers.’’
Thereafter, the parties met for negotiations on April 16
and 17 and May 3. The only change in the participants in
negotiations was that the UE Field Organizer Lisa Fisher was
present and that International Representative Washington re-
placed Michael Kapp, the IPWU’s former attorney, as chief
spokesperson.
At the first April meeting, the Union proposed a grievance
procedure which Respondent disagreed with because Re-
spondent said it had ‘‘been close to’’ an agreement on a
grievance-arbitration procedure with the IPWU.
At the second meeting, the Union revised its grievance
procedure proposal (which was still unacceptable to Re-
spondent), and proposed a nondiscrimination clause and a
recognition clause to reflect recognition of the UE. Respond-
ent firmly rejected a change in the recognition clause, saying
that it had already agreed to a recognition clause with the
IPWU. Respondent orally counterproposed that the Respond-
ent be permitted to recognize the IPWU as ‘‘affiliated with
the UE.’’
At the May negotiation session, the subject of the recogni-
tion clause was again raised, but the UE rejected the use of
the name of the former independent union in the recognition
clause and no agreement was reached.
A fourth meeting was scheduled; however, Respondent
filed an RM petition with the Board and canceled the meet-
ing. The RM petition was initially held in abeyance due to
the pendancy of the instant proceeding and other charges, but
was then dismissed by the Regional Director on June 7. The
dismissal was affirmed by the Board on September 11, and
since that time Respondent otherwise has continued to rebuff
the Union’s repeated requests to resume negotiations.
On May 21, 38 employees identified as ‘‘members of UE
Local 611,’’ petitioned Respondent to resume negotiations
but Respondent did not respond to the petition.
The record otherwise shows that Respondent’s counsel
sent a letter to Washington, dated May 16 (after the third ne-
gotiating session with the UE), in which he stated:
As you know, at the negotiation sessions, it became
clear that what was involved was not an affiliation, but
rather the end of the Independent Porcelain Workers
Union as the certified bargaining representative and its
replacement by the Electrical Workers.
Respondent also asserts other ‘‘facts’’ relevant to the va-
lidity of the alleged affiliation and notes that the UE is sig-
nificantly larger than the Independent Porcelain Workers’
Union; that there are several more layers of bureaucratic,
policy making divisions which were absent in the Porcelain
Workers’ Union; that the International must become involved
in any collective bargaining where the potential for a strike
exists and the International must actually approve a strike
prior to it being called; that the International has the right
to revoke a local’s charter, and dues will eventually be paid
directly to the International; and that the International be-
come instrumental in bargaining for and determining contract
terms for the local during the negotiations.
III. DISCUSSION
As noted in the Board’s decision in F. W. Woolworth Co.,
305 NLRB 775 (1991), the United States Supreme Court
stated in NLRB v. Financial Institute Employees (Seattle
First National Bank), 475 U.S. 192 (1986), that:
In some cases the affiliated union will not petition
the Board to amend its certification but will instead
wait to see whether the employer will continue to bar-
gain. If the employer refuses to bargain the union may
then file an unfair labor practice charge with the Board.
In the past the Board required the employer to bargain
if the affiliation satisfied its two pronged due process
and continuity test. . . .
First, that union members have had an adequate op-
portunity to vote on the affiliation. North Electric Co.,
165 NLRB 942, 943 (1967). The Board ordinarily re-
quired that the affiliation election be conducted with
adequate ‘‘due process’’ safeguards, including notice of
the election to all members, an adequate opportunity for
members to discuss the election, and reasonable pre-
cautions to maintain ballot secrecy. E.g., Newspapers,
Inc., 210 NLRB 8, 9 (1974), enf’d 515 F.2d 334 (C.A.
5, 1975).
The affiliation election in question was conducted in a
manner which meets these due-process requirements. Two
meetings were held at which the members had an opportunity
to discuss the prospect of affiliation with UE representatives.
After an election was decided on appropriate notice was pro-
vided and the election was held by secret ballot, with no evi-
dence of any irregularity or objection. The result of the elec-
tion, 42 in favor of affiliation and 2 against affiliation (out
of 46 unit employees), shows that the employees overwhelm-
881NEWELL PORCELAIN CO.
ingly desired affiliation and otherwise I find that the event
was consistent with the standards of NLRB v. Financial Insti-
tute, supra.
The Supreme Court restating the second required element
to find a valid successor union as follows:
Second, that there was substantial ‘‘continuity’’ be-
tween the pre- and post-affiliated union. The focus of
this inquiry was whether the affiliation had substantially
changed the union; the Board considered such factors
as whether the union retained local autonomy and local
officers, and continued to follow established proce-
dures.
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 NLRB 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.
The evidence of record set forth above amply dem-
onstrates that there was ‘‘substantial continuity’’ after the af-
filiations. Specifically, I note that the incumbent local offi-
cers retained their positions and continued to play a major
role in union affairs following the affiliation in contrast to
the facts relied on by the Respondent, Western Commercial
Transport, 288 NLRB 214 (1988).
Here, the duties and responsibilities of the president, vice
president, and secretary/treasurer did not change and all the
stewards continue to hold the same positions as before the
affiliation. Although the offices of sergeant at arms and trust-
ees have been added since the affiliation, they are held by
employee-members and do not affect the ‘‘continuity’’ issue.
The same employee officers continued to participate in ne-
gotiations with Respondent after the affiliation election with
the only change being that UE International Representative
Washington replaced the IPWU’s attorney as the employees’
spokesman. Despite Washington’s role as chief spokesman,
I find that the local officers discussed and agreed on all pro-
posals made by the UE representative. Moreover, only the
members and not the International representative have a right
to vote on and approve the contract and the UE’s constitution
and bylaws specifically prohibit UE representatives from ne-
gotiating alone with an employer.
Since the affiliation election, the members’ rights also
have remained the same. For example, officers of both the
pre- and post-affiliation entity were required to be members
in good standing and contract proposals must be accepted by
the members. The dues and fee structure have not been
changed as a result of the affiliation. While dues will change
if a contract is finalized, this will occur as a result of achiev-
ing a contract and not as a function of affiliation. Moreover,
UE Local 611 has demonstrated that it has authority to
change its local documents as shown immediately after the
affiliation, when a three-member bylaw committee was
formed for the purpose of preparing new local bylaws. Three
meetings were held between March 19 and April 30, during
which the three employee-members, none of whom were of-
ficers, decided on the new bylaws. Also, grievances sub-
mitted by the UE Local 611 are not cleared with the UE dis-
trict or the International Union. In fact, UE Local 611 cre-
ated its one grievance form by using its old form as its
model. The ability to call a strike has not been altered as a
result of the affiliation and the local still retains the right to
strike, but must notify the UE International president or his
representative prior to the strike and any strike related to col-
lective bargaining must be approved by a vote of the mem-
bership of the local union.
The affiliation did not alter the number or location of
membership meetings and meetings continued to be held on
the first Tuesday of the month at the Newell fire hall. Simi-
larly, meetings of the UE Local 611’s executive board con-
tinue to take place at either a local funeral home or res-
taurant, as they did prior to the affiliation.
In essence, it appears that the Respondent is attempting to
reject its employees’ affiliation because the employees went
outside the local community to gain assistance in negotiating
a contract for their properly elected collective-bargaining
unit. This was done with the approval of the vast majority
of employees and only after the Respondent, with the assist-
ance and advice of its own ‘‘outsiders’’ (its chief spokesman
and counsel from Cleveland), failed to make timely progress
in negoiating a contract. In gaining affiliation with an Inter-
national union under the circumstances described above, the
employees have moved to place themselves on a more equal
negotiations footing with the Respondent while retaining sub-
stantial continuity between the pre- and post-affiliated union.
This is their right under the National Labor Relations Act.
Here, I find that the Respondent’s attempt to seize on such
‘‘nits’’ as Local President Nixon’s use of the phrase ‘‘Inde-
pendent Porcelain Workers Union Affiliated with the UE,’’
in his April 4 letter (after the International had been voted
on and had contacted the Respondent), and the Union’s re-
quest during negotiations to change the previously agreed-on
recognition clause to reflect the post- rather than the pre-af-
filiation name of the Union, as justifications for reasonably
questioning the status of the collective-bargaining representa-
tive is disingenuous in a manner consistent with the facts in
Insulfab Plastics, 274 NLRB 817 at 824 (1985).
Here, despite its awareness that 42 of 44 votes (of 46 eli-
gible voters) approved the affiliation (as well as a subsequent
May 21 petition for it to resume negotiations signed by 38
employees), Respondent filed an RM petition seeking another
election and thereafter refused to meet for any further nego-
tiations. This grasping attempt to find a ‘‘loophole’’ and
thereby delay to avoid its bargaining obligation must be rec-
ognized as unsupportable and inconsistent with any claim
that the affiliation constitutes a dramatic change in the bar-
gaining representative. To require a formal representation
proceeding under such circumstances as requested by the Re-
spondent would be an abuse of the Board’s procedures.
I conclude that under all these circumstances, UE Local
611 is the lawful successor of the Independent Porcelain
Workers Union and that the General Counsel has shown that
the Respondent has refused to bargain with this Union in
violation of Section 8(a)(1) and (5) of the Act, as alleged.
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Independent Porcelain Workers Union, and United Elec-
trical, Radio and Machine Workers of America, Local 611,
are, respectively, labor organizations within the meaning of
Section 2(5) of the Act.
3. At all times material, United Electrical, Radio and Ma-
chine Workers of America, Local 611, has been the exclusive
representative for purposes of collective bargaining in the
following described unit, which is a unit appropriate for col-
lective bargaining within the meaning of Section 9(b) of the
Act:
All production and maintenance employees, including
working foremen and lab technicians, employed by the
Employer at its Newell, West Virginia, facility; exclud-
ing office clerical employees, plant clerical employees,
kiln firemen and other guards, professional employees
and supervisors as defined in the Act.
4. By failing and refusing to recognize and bargain collec-
tively with United Electrical, Radio and Machine Workers of
America, Local 611, Respondent violated Section 8(a)(1) and
(5) of the Act.
REMEDY
Having found that the Respondent has committed certain
unfair labor practices, I will recommend that it be directed
to cease and desist from engaging in those practices and any
like or related conduct, and to post the attached notice. Re-
spondent also will be directed to recognize and on request
bargain with United Electrical, Radio and Machine Workers
of America, Local 611, as the exclusive bargaining represent-
ative of its employees in the above appropriate unit and, if
an understanding is reached, embody that understanding in a
signed agreement. The initial certification year will be rees-
tablished and deemed to begin again when Respondent first
commences to bargain in good faith. See the Woolworth
case, supra, and Wellman Industries, 248 NLRB 325 at 343
(1980).
Otherwise, it is not considered to be necessary that a broad
order be issued.
[Recommended Order for dismissal omitted from publica-
tion.]