Uniroyal, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1971

194 N.L.R.B. 268 (N.L.R.B. 1971)

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Uniroyal, Inc. Coated Fabrics Plant and United
Rubber, Cork, Linoleum and Plastic Workers of
America , AFL-CIO, Petitioner . Case 8-AC-83
November 22, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On November 27, 1970, Independent Employees
Union of UniRoyal, Inc., Port Clinton Division,
hereinafter Independent, was certified as the bargain-
ing representative of an appropriate production and
maintenance unit of the Employer's employees.'
On March 30, 1971, the Petitioner filed its petition
in this proceeding, seeking to amend the certification
in the respects indicated below. The Acting Regional
Director for Region 8 issued a Notice To Show Cause
on April 19, 1971, ordering the parties to show cause if
there were any reason why the petition should not be
granted. Thereafter, the parties made certain submis-
sions to the Regional Director and on May 6, 1971, he
issued a Notice of Hearing on the issues raised.
Pursuant thereto, a hearing was held before Hearing
Officer Donald E. Howard.2 Subsequent to the
hearing, the Petitioner and the Employer filed briefs
with the Board. Thereafter, the Employer notified the
Board that it was withdrawing its objections to the
requested amendment of certification, and urged the
Board to grant the petition.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
An election among the employees in the appropriate
' The detailed unit description was*
All production and maintenance employees including the shipping
warehousemen and the shipping clerk and the receiving warehousemen
and the receiving clerks in the Employer's plant in Port Clinton, Ohio,
but excluding office clerical employees, laboratory employees, and
professional employees , guards and supervisors as defined in the Act.
2 Although served with a Notice of Hearing, Independent did not
appear at the hearing, and notified the Hearing Officer that it did not wish
to participate
3 Textile Workers was the incumbent union, having represented the
employees since 1966 , when it was certified by the Board During the
pendency of these proceedings , employees continued to receive benefits in
accordance with the Employer's contract with Textile Workers.
4 The Employer operates numerous plants throughout the United States
Production and maintenance employees at 18 of them are currently
represented by the Petitioner, and are covered by the Petitioner's 1970-73
Master Agreement and a Supplemental Unemployment Benefits Plan.
There are local supplemental agreements. Under appendix "B" of the
Master Agreement, the agreement is applicable to all new production and
unit described above was held on November 6, 1970.
Of approximately 229 eligible voters, 206 cast ballots,
of which 112 were for Independent, and 94 were for
United Textile Workers of America, Local 777,
AFL-C10.3 As noted above, Independent was certi-
fied on November 27, 1970.
On December 13, 1970, slightly more than 2 weeks
after its certification, Independent called a special
membership meeting to discuss, inter alia, affiliation
with an international union. Representatives of both
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and the
Petitioner attended, and addressed the approximately
15 or 20 employees present about the benefits of
affiliation with their respective unions.
On January 26, 1971, pursuant to an agreement
between the Teamsters, Independent, and Petitioner,
a secret ballot election was conducted under the
supervision of the Toledo Labor-Management-Citi-
zens Committee. All the employees were eligible to
vote for any of the three Unions or for "No Union"
regardless of membership in Independent. The
election results showed that of 196 ballots cast, the
Petitioner received 104 votes, Teamsters received 89,
Independent received 1, and 2 voters cast ballots for
"No Union." Thereafter, on January 31, 1971,
Independent held a second special membership
meeting , attended by approximately 40 employees, at
which a five-member bargaining committee was
selected and a number of motions passed including,
inter alia, (1) a motion to have the committee take the
necessary steps to amend the Board certification to
reflect affiliation with the Petitioner; (2) a motion to
bring the employees under the Master Agreement
between the Employer and Petitioner; and (3) a
motion directing the committee to draft a local
supplemental agreement .4 On February 1, 1971,
Independent notified the Employer of the new
bargaining committee and made its first request to
bargain.
Concurrent with negotiations between Independent
maintenance bargaining units in which the Petitioner is recognized or
designated in accordance with the regulations of the National Labor
Relations Board during the life of agreement . It is expected that
representatives of the Employer and the Petitioner would determine the
steps to be taken to extend the provisions of the Master Agreement The
Employer argued at the hearing, and in its brief, that it objected to the
instant petition on the grounds that the Master Agreement would apply,
ipso facto, to the Port Clinton employees if the amendment was granted
and would thus result in an immediate change in the employees' terms and
conditions of employment and would break the continuity of their present
organization and representation Cf. American Bridge Divisions United
States Steel Corporation, 185 NLRB No 98. Later, the Employer advised
the Board that on September 1, 1971, after the case had been heard, the
Employer and Petitioner entered into a "Memorandum of Agreement"
which postponed the application of the Master Agreement to the Port
Clinton facility, and withdrew its objections to granting the amendment of
certification on the ground that its objections were rendered mopt by the
agreement of September 1, 1971.
194 NLRB No. 39
UNIROYAL, INC.
and the Employer, limited apparently to the nonsub-
stantive matter of a grievance procedure, the Petition-
er, on February 16, 1971, filed a petition in another
case, seeking to amend Independent's certification to
reflect its affiliation with the Petitioner.5 The Region-
al Director dismissed the petition on March 9, 1971,
because the course of conduct of the parties leading
up to, and including, the election of January 26, 1971,
showed that a question concerning representation
existed in the bargaining unit.
When the Petitioner was notified of this action, it
took no steps to seek review of the Regional Director's
action by the Board,6 but instead took steps to
conduct another election among the unit employees.
On March 22, 1971, using its copy of the Board's
Excelsior list from the November 6, 1970, election,
notices were mailed to some 206 bargaining unit
employees of a special membership meeting for the
purposes of holding a second election on March 28,
1971. A smaller notice was posted on each of the
Employer's bulletin boards, and copies were manual-
ly distributed to approximately 165 employees on
March 24 and 25, 1971, by members of the bargaining
committee.? The issue, as framed by the notices and
also by the ballot, was:
Shall our Local Union, Independent Employees
Union of UniRoyal, Inc., (Independent) change its
affiliation to the (URW) United Rubber, Cork,
Linoleum and Plastic Workers of America,
AFL-CIO, CLC, to become our bargaining agent
for the purpose of collective bargaining with our
Employer, UniRoyal, Inc. [Emphasis supplied.]
Ninety employees appeared and cast ballots in the
March 28 election. Apparently there was no advance
debate, and the meeting was devoted exclusively to
polling the employees. After the election, which
followed essentially the same procedures utilized in a
Board-conducted election, the ballots were counted
and the results announced. Of 90 votes cast, 65 were in
favor of affiliation and 25 were opposed.
It is clear from the above-described circumstances
that the instant petition constitutes a further attempt
to confirm the results of a private ballot concerning
5 Case 8-AC-81.
6 See Sec 102 . 71 Rules and Regulations and Statements of Procedure,
Series 8 , as amended
7 During this period, there were approximately 190-200 employees in
the bargaining unit, including 126 employees who were members of
Independent
8 Missouri Beef Packers, Inc, 175 NLRB No. 179, Bedford Gear &
Machine Products, Inc, 150 NLRB 1, and Gulf Oil Corporation, 109 NLRB
861
9 We note that Independent commenced affiliation proceedings about 2
269
representation, and must be dismissed in accordance
with our well-settled principles .8 Questions concern-
ing representation can be resolved only by a secret
ballot election conducted under Section 9(c) of the
Act, and not by a petition to amend the certification.
As the Board said in Missouri Beef Packers, Inc.,
supra:
Amendment of certification , by and large, is
intended to permit changes in the name of the
representative , not a change in the representative
itself. The only change in the more recent vote was
a reduction in the number of choices on the ballot.
In the circumstances the Independent 's conduct,
in pursuing this course to achieve affiliation with
some other union while failing to engage in the
substantive bargaining to which its certificate
entitled it , is not conducive to an orderly adminis-
tration of the Act.9
Where, as here , the amendment-of-certification
petition clearly presents a question concerning repre-
sentation it must be dismissed , even in the absence of
objections by any of the parties . Moreover, we are
cognizant of our obligation to protect the integrity of
our certifications . If we were to amend Independent's
certification as requested , the employees in the
appropriate unit covered by the certification would in
effect become part of the existing multiplant unit
covered by the Petitioner's Master Agreement dis-
cussed above; and this effect would not be cured by
the parties' posthearing Memorandum of Agreement
postponing application of the Master Agreement. By
thus enlarging the unit of employees represented,
without the safeguards guaranteed by a Board-con-
ducted election , we would, in effect , be undermining
the majority-rule concept established by the express
language in Section 9 of the Act. Accordingly, we
shall dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein be,
and it hereby is, dismissed.
weeks after its certification, and prior to the start of any negotiations with
the Employer. We believe that a permissible inference might be drawn that
Independent did not intend to remain an independent union at the time it
appeared on the ballot in the November 26, 1970 , Board-conducted
election. Since the Board has always required full disclosure in its
representation proceedings , possible grounds for revocation of the
certification may exist . Cf. St. Louis Harbor Service Company, 150 NLRB
636, 652, U.S Chaircraft, Inc., 132 NLRB 922, 923. However, in the
absence of record evidence on this point, we would be unwilling to revoke
our certification on mere conjecture