Wellington Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 2011

357 N.L.R.B. 1625 (N.L.R.B. 2011)

WELLINGTON INDUSTRIES
357 NLRB No. 135
1625
Wellington Industries, Inc. and Local 174, Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW), AFL–CIO and Independent Union Lo-
cal One. Case 07–CA–053182
December 9, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On May 2, 2011, Administrative Law Judge Keltner
W. Locke issued the attached decision. The Respondent
filed exceptions and a brief in support of the exceptions.
The General Counsel and the Charging Party filed briefs
in opposition and the Respondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Wellington Industries, Inc.,
Belleville, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

1 We agree with the judge that the Respondent violated Sec. 8(a)(5)
and (1) of the Act by conditioning bargaining with Local One for a
successor agreement upon the absence of UAW Local 174’s president,
John Zimmick, from the negotiations. Longstanding precedent estab-
lishes that “[e]mployers and unions have the right ‘to choose whomever
they wish to represent them in formal labor negotiations.’” Palm Court
Nursing Home, 341 NLRB 813, 819 (2004) (quoting General Electric
Co. v. NLRB, 412 F.2d 512, 516 (2d Cir. 1969). Parties must deal with
the chosen representatives who appear at the bargaining table except in
the rare circumstance when “the presence of a particular representative
. . . makes collective bargaining impossible or futile.” Fitzsimons Mfg.
Co., 251 NLRB 375, 379 (1980). See also R.E.C. Corp., 307 NLRB
330, 333 (1992). As argued by the General Counsel, there is no evi-
dence that the presence of Zimmick at the negotiations constituted an
“exceptional circumstance” that permitted the Respondent to refuse to
bargain.
Accordingly, we find it unnecessary to pass on the judge’s analysis
of the affiliation between UAW Local 174 and Local One. The record
shows that the Regional Director dismissed the Respondent’s RM peti-
tion in a related proceeding where the Respondent argued that the affil-
iation was invalid. The Board considered the matter and denied review
of that decision. Thus, the Board has already reviewed the validity of
the affiliation and does not reconsider the matter here.
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.
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-

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1626
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 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 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.

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.
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
WELLINGTON INDUSTRIES 1627
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 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, 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 11 (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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1628
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
recommended2
ORDER
The Respondent, Wellington Industries, Inc., Belleville,
Michigan, and at all other places 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,

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 pur-
poses.
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.”
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 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.
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
WELLINGTON INDUSTRIES 1629
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.
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 Un-
ion’s understanding and agreement that in so doing no par-
ty is waiving any claim, cause of action, right, and/or de-
fense 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
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1630
to attend our meeting and discuss the benefits and an
affiliation with their organization. The 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.
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., 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 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.
WELLINGTON INDUSTRIES 1631
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.
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

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 truckdrivers 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 truckdrivers.
WELLINGTON INDUSTRIES, INC.