Minn-Dak Farmers Cooperative

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 942 (N.L.R.B. 1993)

942
311 NLRB No. 91
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel also filed a motion to strike portions of the
Respondent’s brief or to file a reply brief. On October 21, 1992, the
Board issued an order granting the motion to strike in part and grant-
ing the motion to file a limited reply brief. Thereafter, the General
Counsel and the Respondent filed reply briefs.
2 All dates are in 1991, unless otherwise indicated.
Minn-Dak Farmers Cooperative and American Fed-
eration of Grain Millers and its Local Union
No. 405. Case 18–CA–12051
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On a charge filed January 10 and amended April 30,
1992, by the American Federation of Grain Millers and
its Local Union No. 405, the General Counsel of the
National Labor Relations Board issued a complaint
February 24, 1992 (amended April 7 and May 13),
against Minn-Dak Farmers Cooperative, the Respond-
ent, alleging that the Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to
recognize and bargain with American Federation of
Grain Millers Local Union No. 405 (Local 405) as the
exclusive bargaining representative of the Respond-
ent’s employees in an appropriate bargaining unit. The
complaint further alleged that the Respondent violated
Section 8(a)(5) and (1) by bypassing Local 405 and
dealing directly with the unit employees by presenting
them with a proposal for a new grievance procedure
which excluded Local 405 from participation and by
implementing this grievance procedure. The Respond-
ent filed a timely answer admitting in part and denying
in part the allegations in the complaint.
On June 23, 1992, the General Counsel, the Re-
spondent, and the Charging Parties filed with the
Board a stipulation and motion to transfer the case to
the Board. The parties stated that the stipulation and
attached exhibits contained all relevant facts and evi-
dence necessary for a decision in the case and that
they waived a hearing before and decision by an ad-
ministrative law judge. On September 8, 1992, the
Board approved the stipulation and transferred the pro-
ceeding to the Board for issuance of a decision and
order. The General Counsel, the Respondent, and the
Charging Parties filed briefs.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record and the briefs, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a North Dakota corporation, has
been engaged in the manufacture and nonretail sale
and distribution of beet sugar and related byproducts at
its office and place of business in Wahpeton, North
Dakota. During 1991, in conducting its business oper-
ations, the Respondent sold and shipped from its
Wahpeton facility goods valued in excess of $50,000
directly to points outside the State of North Dakota
and purchased and received at its Wahpeton facility
goods valued in excess of $50,000 directly from points
outside the State of North Dakota.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent operates primarily a seasonal busi-
ness which peaks immediately after the sugar beet har-
vest. Until the harvest is completely processed, the Re-
spondent’s plant operates 24 hours a day, 7 days a
week. During the 1990–1991 peak season, the Re-
spondent employed about 280 production and mainte-
nance employees. During the off-season in 1991, the
Respondent employed about 140 employees. Most of
the Respondent’s peak season work force consists of
individuals who worked for the Respondent during
prior peak seasons.
Before 1977, the Minn-Dak Farmers Cooperative
Employees’ Association (the Association), an inde-
pendent union, was recognized as the exclusive rep-
resentative of the Respondent’s Wahpeton, North Da-
kota production and maintenance employees. Since
then, the Association and the Respondent have been
parties to a number of collective-bargaining agree-
ments, including one with a term from June 1, 1988,
to May 31, 1991. In July 1991, the Association had
about 78 dues-paying members.
The Respondent and the Association began negotiat-
ing for a new collective-bargaining agreement in about
April 1991.2 In late July, the Association’s executive
committee decided to seek bargaining assistance from
the American Federation of Grain Millers (AFGM). On
July 25, at a meeting open to all employees of the Re-
spondent, the Association voted to commence formal
efforts to affiliate with the AFGM. On July 29, the As-
sociation mailed to employees a notice that a meeting
943MINN-DAK FARMERS COOPERATIVE
3 Bylaw chapter 1, sec. 5, the relevant bylaw, stated as follows:
Membership in Affiliate Organizations: The Executive Board
of the Association may propose affiliation with other organiza-
tions, and if the proposal is approved by a majority vote of As-
sociation members, Association members must also maintain
membership in the affiliate organization in accordance with the
affiliation agreement.
would be held on August 6 to consider affiliation with
the AFGM. The notice was sent to all production and
maintenance employees whose names appeared on a
list provided by the Respondent and represented by it
as a list of all current employees’ names and address-
es.
On August 6, the Association conducted a meeting
attended by about 100 employees and by representa-
tives of the AFGM. The meeting lasted over 3 hours
and all present were permitted to and did engage in
questions and discussion concerning consequences of
affiliation. On about August 7, the Association sent
notice to all employees on the list provided by the Re-
spondent that a meeting to vote on the question of af-
filiation would be held August 22.
On August 20, the Association’s and the Respond-
ent’s bargaining committees agreed to a contract pro-
posal for presentation to the employees for ratification.
The employees rejected the proposal. On August 22,
the bargaining committees met again. The Respondent
withdrew all its bargaining offers.
About 6 p.m. on August 22, the Association, pursu-
ant to the August 7 notice, held a meeting open to all
the Respondent’s employees. For one half hour, the
meeting consisted of further question-and-answer dis-
cussion, with AFGM representatives present. After the
discussion period closed, the AFGM representatives
were expelled from the meeting. The employees ap-
proved affiliation with the AFGM by a secret-ballot
vote of 103 to 78. The Association kept a list of the
employees who voted. Approximately 77 were dues-
paying members, although ballots of members and
nonmembers were not segregated.
The affiliated union was designated Local 405,
American Federation of Grain Millers. Local 405 is an
unincorporated association whose members are all em-
ployees of the Respondent and whose purpose is at
least in part to deal with the Respondent concerning
wages, hours, and conditions of employment for its
members. Local 405’s charter has not been formally
issued by the AFGM, its issuance contingent only on
recognition of Local 405 by the Respondent.
Immediately after the affiliation vote, Association
President Edward Papa became Local 405’s president,
and Association Shift Representatives Rick Ehlert,
Craig Erickson, Mike Sonju, and Chuck Evevold be-
came Local 405’s vice president, chief steward, record-
ing secretary, and sergeant at arms, respectively. Cal-
vin Hoeft, who was not an officer of the Association,
became Local 405’s secretary/treasurer.
On August 23, the Association informed Larry
Steward, the Respondent’s president and chief execu-
tive officer, of the affiliation vote. On August 29,
Steward sent a letter to employees stating that the Re-
spondent had decided not to recognize the Associa-
tion’s ‘‘attempt at affiliation’’ with the AFGM and that
the Respondent was willing to continue its bargaining
relationship with the Association but was ‘‘not willing
to bargain with the Grain Millers Union.’’ The Re-
spondent’s reason for this position, Steward stated, was
that the affiliation vote did not meet the requirement
of the Association’s bylaws that affiliation be decided
by a majority of the membership.3 While the vote for
affiliation was 103 to 78, those in favor constituted
less than a majority of the Association’s total member-
ship, which, Steward stated, was composed of the Re-
spondent’s 282 production employees.
Supervisors of the Respondent and representatives of
the employees, generally including Edward Papa, have
occasionally met since the affiliation vote to discuss
wages and working conditions. The Respondent con-
sistently took the position that it was meeting with the
Association. The employees took the position that they
were now represented by Local 405. The parties essen-
tially agreed to disagree on the precise identity of the
representative and leave the issue for resolution by the
Board or the courts.
On November 22, a lawsuit was filed by ‘‘Minn-
Dak Farmers Cooperative Employees Association a/k/a
American Federation of Grain Millers, Local 405’’ in
United States District Court for the District of North
Dakota seeking a declaratory judgment that the Re-
spondent must honor the affiliation vote. On March 10,
1992, the Respondent filed a motion to dismiss for
lack of jurisdiction, contending that the Board had ex-
clusive jurisdiction over the matters raised in the law-
suit. In its July 28, 1992 decision, the court refrained
from deciding the jurisdictional issue but dismissed the
lawsuit on the merits. The court agreed with the Re-
spondent’s interpretation of the Association’s bylaws
as requiring that affiliation must be approved by a ma-
jority of the entire membership. Because it found that
the Association had 282 members and that 103 of them
had voted in favor of affiliation, the court held that the
Respondent was not required to recognize the affili-
ation vote.
On about April 3, 1992, Respondent Director of
Human Relations Jerry Pierson and Vice President of
Operations Rich Richter presented to Edward Papa a
memorandum, dated March 25, 1992, concerning a
proposal for a grievance procedure. The memorandum
stated that the grievance procedure contained in article
9 of the collective-bargaining agreement that had ex-
pired May 31, 1991, was no longer binding. The
memorandum proposed, nevertheless, that grievances
would be processed in accordance with article 9 if
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘the Employees Committee agrees to process the
grievance and function as the elected representatives of
the [Association] only.’’ If, however, the ‘‘Employees
Committee’’ declined to agree, article 9 would be used
as a ‘‘guideline,’’ but with certain changes that would
eliminate the role of the Association in the grievance
process and require each employee to represent him-
self. The changes also would make decisions at step 3
of the grievance procedure final and would eliminate
grievance arbitration. On April 24, 1992, Papa in-
formed Pierson that neither he nor the other employees
would agree to the proposal.
On about April 23, 1992, employee Frank Fink at-
tempted to file a grievance, accompanied by Evevold,
who presented himself as an officer of Local 405. Pier-
son refused to accept the grievance until the employees
agreed to the Respondent’s April 3, 1992 grievance
procedure proposal. A day later, Fink presented the
grievance as an individual on his own behalf.
B. The Parties’ Contentions
The General Counsel and Charging Parties argue as
follows. The Respondent has an obligation to recog-
nize and bargain with Local 405, because the Respond-
ent failed to show that the affected employees were de-
nied an opportunity to vote on the Association’s affili-
ation with the AFGM in an election conducted with
adequate due-process safeguards or that the affiliation
resulted in a loss of substantial continuity between the
pre- and post-affiliation union. Allowing an affiliation
election to be decided by a majority vote of the em-
ployees actually voting is sufficient to meet the due-
process requirements. Likewise, permitting all unit em-
ployees, including those who were not Association
members, to vote in the election did not violate the
due-process requirements. Further, loss of substantial
continuity between the pre- and post-affiliation union
has not been shown, as there was continuity in union
officers and membership, and local autonomy was re-
tained on approval of contracts and authorization of
strikes. The Respondent’s bargaining obligation does
not turn on whether the affiliation was valid under the
Association’s bylaws. In any event, the Respondent is
incorrect that the Association’s bylaws require an af-
filiation to be approved by a majority of all Associa-
tion members. Finally, as the Respondent had an obli-
gation to recognize and bargain with Local 405, the
Respondent’s failure to do so, its direct dealing with
employees over a new grievance procedure, and its
unilateral implementation of the new grievance proce-
dure violated Section 8(a)(5) and (1) of the Act.
The Respondent argues as follows. The complaint
should be dismissed because the General Counsel has
failed to meet his burden on both the due-process and
continuity issues. Due process requires compliance
with the procedural requirements that the union mem-
bers imposed on themselves through their constitution
and bylaws. The affiliation vote did not satisfy due
process because it failed to meet the Association’s
bylaw requirement that affiliation be decided by a ma-
jority vote of Association members, not merely a ma-
jority of those voting. This view is supported by the
district court’s decision dismissing the Association’s
lawsuit; that decision should estop Local 405 and the
Board from relitigating whether the affiliation vote was
valid under the Association’s bylaws. The vote further
failed to meet due-process requirements because all
unit employees, regardless of whether they were Asso-
ciation members, were allowed to vote; thus, the vote
failed to show that a majority of the 78 dues-paying
Association members favored affiliation. Additionally,
the identity of the Association will substantially
change if the affiliation is recognized, because the
AFGM’s constitution substantially restricts local
unions’ autonomy in the areas of bylaws, grievances,
decisions to strike, and approval of collective-bar-
gaining agreements.
In a reply brief limited to the issue of the district
court’s decision, the General Counsel contends that the
court’s decision is not entitled to deference because the
court lacked jurisdiction over the lawsuit; the bylaw
issue decided by the court is not dispositive of the Re-
spondent’s bargaining obligation; and the Board is not
collaterally estopped by the court’s decision, as the
Board was not a party to the lawsuit.
C. Discussion
1. Applicable principles
Once certified by the Board or voluntarily recog-
nized by an employer as the majority representative of
a unit of employees, a union enjoys a presumption of
continuing majority support and the employer has a
corresponding continuing obligation to recognize and
bargain with the union. See Burger Pits, Inc., 273
NLRB 1001 (1984), and cases cited therein. The
union’s subsequent affiliation with a national or inter-
national organization does not, standing alone, affect
the union’s representative status or terminate the em-
ployer’s duty to bargain with the union. See Toyota of
Berkeley, 306 NLRB 893, 894 (1992). This is so be-
cause ‘‘[t]he basic purpose of the National Labor Rela-
tions Act is to preserve industrial peace,’’ NLRB v. Fi-
nancial Institution Employees (Seattle-First National
Bank), 475 U.S. 192, 208 (1986), and
[t]he industrial stability sought by the Act would
unnecessarily be disrupted if every union organi-
zational adjustment were to result in displacement
of the employer-bargaining representative relation-
ship.’’ [Id. at 202–203, quoting Canton Sign Co.,
174 NLRB 906, 909 (1969).]
945MINN-DAK FARMERS COOPERATIVE
4 See Toyota of Berkeley, supra; F. W. Woolworth Co., 305 NLRB
775 (1991); Santa Barbara Humane Society, 302 NLRB 833, 837
(1991); Chas. S. Winner, Inc., 289 NLRB 62, 68 fn. 22 (1988);
Ocean Systems, Inc., 223 NLRB 857, 859–860 (1976); Newspapers,
Inc., 210 NLRB 8, 9 fn. 3 (1974), enfd. 515 F.2d 334 (5th Cir.
1975); Hamilton Tool Co., 190 NLRB 571, 574 fn. 8 (1971). The
cases on which the Respondent relies in asserting that due process
requires compliance with the union’s constitution and bylaws do not
support that proposition. In each case, the Board, in finding that the
employer’s bargaining obligation with the union continued after the
union’s affiliation, merely noted that the union had followed its con-
stitution’s provisions in undertaking the affiliation. The Board, how-
ever, did not indicate that compliance with the constitution was a
minimum requirement for satisfying due process. See Aurelia
Osborn Fox Memorial Hospital, 247 NLRB 356, 359 (1980); Canton
Sign Co., 174 NLRB 906, 908 (1969); National Carbon Co., 116
NLRB 488, 502 (1956). Rather, as noted above, the Board has con-
sistently stated the contrary.
5 See also Central Washington Hospital, 303 NLRB 404, 414
(1991) (no inference drawn of due-process defects from low election
turnout), enfd. sub nom. NLRB v. Universal Health Systems, 967
F.2d 589 (9th Cir. 1992). We further note that while union affiliation
elections are not required to meet the standards of Board-conducted
elections, Toyota of Berkeley, supra; Aurelia Osborn Fox Memorial
Hospital, 247 NLRB 356, 359 (1980), even Board-conducted elec-
tions are determined by a majority of the valid votes cast, without
regard to the total number of eligible voters. See Lemco Construc-
tion, 283 NLRB 459 (1987).
Thus, following a union’s affiliation with a national or
international organization, an employer’s duty to bar-
gain with the union continues unless the vote on affili-
ation was not conducted with adequate due-process
safeguards or the changes caused by the affiliation
were so ‘‘dramatic’’ that the postaffiliation union
lacked substantial continuity with the preaffiliation
union. See Seattle-First, 475 U.S. at 199, 206; May
Department Stores Co., 289 NLRB 661, 664–665
(1988), enfd. 897 F.2d 221 (7th Cir. 1990); Hammond
Publishers, 286 NLRB 49, 50 (1987). Further, it is
well established that the ‘‘party seeking to avoid an
otherwise binding bargaining obligation by asserting
the change in the bargaining representative following a
merger bears the burden of demonstrating that
change.’’ H. B. Design & Mfg., 299 NLRB 73, 73–74
(1990). Accord: May Dept. Stores Co. v. NLRB, 897
F.2d 221, 228 (7th Cir. 1990); News/Sun Sentinel Co.
v. NLRB, 890 F.2d 430, 432 (D.C. Cir. 1989).
Our inquiry in this case is further informed by the
Supreme Court’s reasoning in Seattle-First, above. The
Court there rejected the Board’s then newly devised
rule that due process required a union to allow all em-
ployees in the bargaining unit, not merely those who
were union members, to participate in an affiliation
vote. In this regard, the Court found that, under the
Act, the Board could not discontinue a certified
union’s recognition by an employer without deter-
mining that a question concerning representation,
which would warrant an election, had been raised. The
Court further found that the Board’s rule as to the
scope of the affiliation vote violated the Act’s policy
against outside interference in union decisionmaking.
2. Due-process issue
Applying the foregoing principles to the facts of this
case, we find, as an initial matter, that the Respondent
has failed to show that the vote on the Association’s
affiliation with the AFGM was conducted without ade-
quate due-process safeguards. We find without merit
the Respondent’s contention that the due-process re-
quirement was not met because the Association failed
to follow a bylaw provision that assertedly required the
affiliation be approved by a majority of the Associa-
tion’s entire membership. We need not pass on wheth-
er the Respondent’s interpretation of the bylaw in
question is correct. The Board has long held on affili-
ation issues that strict adherence to the union’s con-
stitution is not a controlling factor; what is important
is whether the members had a proper opportunity to
express their desires.4 The Respondent does not con-
tend, nor does the record show, that due process was
not satisfied by the Association’s notice of election to
its members, the opportunity afforded them to discuss
the election, or the precautions used to maintain ballot
secrecy. Moreover, apart from any internal union rule,
the Respondent has failed to show how the scope of
participation in the affiliation vote here subverted due
process to the extent that it raised a question con-
cerning representation. Insofar as the Respondent ar-
gues that due process itself requires a majority vote of
the entire membership, we note that the Board has held
that an affiliation vote in which less than half of the
members participated met the due-process safeguards.
See William B. Tanner Co., 212 NLRB 566, 567
(1974).5 Accordingly, we find that the Association’s
asserted failure to follow its bylaw did not cause the
affiliation vote to lack adequate due-process safe-
guards.
Moreover, contrary to the Respondent’s contention,
the district court’s decision in the Association’s lawsuit
does not affect our resolution of this issue, for two rea-
sons. First, the district court lacked jurisdiction over
the lawsuit. West Point-Pepperell, Inc. v. Textile Work-
ers Union, 559 F.2d 304 (5th Cir. 1977), is authority
directly on point. That case concerned a lawsuit, like
the one here, seeking resolution of an employer’s obli-
gations following the merger of its employees’ bar-
gaining representative with another union. Noting that
the Act vests exclusive authority in the Board to pass
on issues of representation, the court of appeals af-
firmed dismissal of the complaint for lack of jurisdic-
tion, explaining:
Whether or not a merged union should remain
as the bargaining agent of a unit of employees de-
pends on a factual determination, whether it is a
continuation of the old union under a new name
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 West Point-Pepperell has been cited with approval by the court
of appeals in whose geographical jurisdiction the Respondent is lo-
cated. See Electrical Workers IBEW Local 204 v. Iowa Electric
Light & Power Co., 668 F.2d 413, 416–417, 418 (8th Cir. 1982).
The primary jurisdiction rationale considered in that case as an alter-
native to the exclusive jurisdiction theory would also militate in
favor of the district court’s declining jurisdiction over the Associa-
tion’s lawsuit, as the affiliation issue had been presented to the
Board by Local 405’s unfair labor practice charge.
7 Moreover, the court failed to explain why the Respondent, any
more than the Board itself, would have a right to, in effect, enforce
the Association’s bylaws governing its relationship with its own
members under these circumstances.
8 As indicated above, the Association’s asserted failure to comply
with its own bylaws is not determinative of whether the due-process
standard was satisfied. This fact renders irrelevant the Respondent’s
argument that the Board is collaterally estopped by the court’s deci-
sion from deciding whether the affiliation vote complied with the
bylaws.
or is a substantially different organization. This
calls for a resolution of the right to represent, a
matter within the exclusive domain of the NLRB.
[Id. at 307.]
Thus, the applicable precedent shows that, as the
Board had exclusive jurisdiction over the issue pre-
sented by the Association’s lawsuit, the district court
lacked jurisdiction over the lawsuit.6
Additionally, even assuming arguendo that the court
had jurisdiction, its ruling that the Respondent was not
required to recognize the affiliation vote is not entitled
to deference, because it was based on an incorrect test.
As indicated above, the criteria used to determine
whether a union’s affiliation alters an employer’s statu-
tory duty to bargain are whether the affiliation vote
was conducted with due-process safeguards and wheth-
er there was substantial continuity between the pre-
and post-affiliation union. See Seattle-First, above, 475
U.S. at 199. In finding the Association’s lawsuit with-
out merit, however, the district court determined the
Respondent’s obligation to honor the affiliation vote
merely on the basis of whether the vote complied with
the Association’s bylaws.7 Thus, the court failed to
apply the appropriate test. In sum, we agree with the
General Counsel that the court’s decision need not be
given deference.8
Our finding that, contrary to the court’s decision, the
Association’s asserted failure to follow its bylaw did
not relieve the Respondent of its obligation to recog-
nize the postaffiliation union finds further support in
the Supreme Court’s decision in Seattle-First. In re-
jecting the Board’s rule that nonmembers be allowed
to vote on union affiliations, the Court, 475 U.S. at
209, stated:
[Under t]he Board’s rule . . . an employer may
invoke a perceived procedural defect to cease bar-
gaining even though the union succeeds the orga-
nization the employees chose, the employees have
made no effort to decertify the union, and the em-
ployer presents no evidence to challenge the
union’s majority status. Any uncertainty on the
employer’s part does not relieve him of his obli-
gation to bargain collectively. ‘‘If an employer
has doubts about his duty to continue bargaining,
it is his responsibility to petition the Board for re-
lief. . . . To allow employers to rely on employ-
ees’ rights in refusing to bargain with the for-
mally designated union is not conducive to [in-
dustrial peace].’’ Brooks v. NLRB, 348 U.S. 96,
103 (1954).
The same can be said of the Respondent’s reliance, in
refusing to recognize Local 405, on the possible rights
of Association members to object to perceived defects
in the Association’s procedures.
We also find no merit in the Respondent’s conten-
tion that the due-process requirement was not met be-
cause, as the Association allowed all unit employees to
vote on affiliation with the AFGM, the election did not
determine whether a majority of the Association’s 78
dues-paying members favored the affiliation. In Se-
attle-First, as noted above, the Supreme Court rejected
the Board’s then-held position that, for an affiliation
election to meet the due-process requirement, all unit
employees, including nonmembers of the union, had to
be permitted to vote. The Board’s reason for imposing
this requirement had been that, because the union
served as the exclusive bargaining representative for all
unit employees, not solely those who were union mem-
bers, all unit employees should have a voice in decid-
ing whether to approve the union’s proposed affili-
ation. The Court found that the Act provided other
mechanisms for deciding whether employees desire a
change in a union’s representative status and that the
Board’s rule exceeded its authority under the Act. The
Court, however, gave no indication that a union could
not voluntarily include the entire bargaining unit, rath-
er than only the union membership, in the vote on the
affiliation issue.
We therefore find it entirely fair and reasonable for
a union to let a question of affiliation be determined
by a vote of the entire bargaining unit that the union
represents. Such a vote, of course, may not necessarily
ascertain—at least to a mathematical certainty—the
majority view of union members in the unit, although
in most cases the views of union members probably
are not likely to differ greatly from those of unit em-
ployees overall. In any event, we can hardly find that
due process is subverted by a union’s allowing all unit
employees to vote on an affiliation involving the union
that is their exclusive bargaining representative. To the
contrary, this more inclusive procedure would seem to
afford, if anything, a greater degree of certainty on the
only question relevant to the Respondent —that of the
947MINN-DAK FARMERS COOPERATIVE
9 In arguing that the Association improperly allowed all unit em-
ployees to vote, the Respondent took the position that the Associa-
tion’s membership was made up of its 78 dues-paying members.
However, in arguing that the affiliation vote did not comply with the
Association bylaw assertedly requiring approval by a majority of the
entire membership, the Respondent took the position that the Asso-
ciation’s membership was composed of all 280 unit employees. If
the Respondent’s latter position is correct, the Association, by per-
mitting all unit employees to vote on the proposed affiliation, was
merely attempting to allow its membership to decide the affiliation
question—as the Respondent argues it was obligated to do. In re-
solving this case, we need not decide whether the Association’s
membership was composed of all unit employees or only those who
paid dues.
10 In finding that the Respondent was not obligated to recognize
the AFGM because the affiliation vote did not meet the asserted re-
quirement of the Association’s bylaws that a majority of members
approve an affiliation, our dissenting colleague misconceives the in-
quiry. As the Supreme Court stated in Seattle-First, 475 U.S. at 207:
In amending the union’s certification or ordering the employer
to bargain, the Board does not ‘‘sanction’’ the union’s affili-
ation. Rather, it signifies only that the reorganized union con-
tinues as an ongoing entity that the employer should continue
to recognize.
Thus, it is essentially irrelevant to the Board’s inquiry whether the
procedures followed in approving the affiliation were in accordance
with the union’s own governing documents. Rather, as described
above, our proper focus in union affiliations is due process and sub-
stantial continuity, and we find these tests were met here. Moreover,
the essential facts here are that in an election in which the 280 unit
employees were afforded adequate notice, opportunity to discuss the
issues, and ballot secrecy, they approved the Association’s affiliation
with the AFGM by a vote of 103 to 78. To find, under these cir-
cumstances, that, despite the clear vote in favor of affiliation with
the AFGM, the Respondent is, nevertheless, not required to recog-
nize the AFGM because a provision of the Association’s bylaws was
not met would truly exalt form over substance.
11 See Central Washington Hospital, 303 NLRB 404 fn. 7 and ac-
companying text (1991), enfd. sub nom. NLRB v. Universal Health
Systems, 967 F.2d 589 (9th Cir. 1992).
12 See Central Washington Hospital, above, 303 NLRB at 405 fn.
10 and accompanying text.
13 Art. I, sec. 7, provides as follows:
REPRESENTATION: The International Union and the Local
Union to which the member belongs, and each of them, are by
him irrevocably designated, authorized and empowered exclu-
sively to appear and act for him and in his behalf before any
court, arbitrator, board committee or other tribunal or agency in
any matter affecting his status as an employee and exclusively
to act as his agent, either in his name or the name of the Union
as the case may be, to represent and bind him in the presen-
tation, prosecution, adjustment and settlement of all grievances,
complaints or disputes of any kind or character arising out of
the employer-employee relationship, as fully and to all intents
and purposes as he might or could do if personally present.
Union’s continued majority status.9 The Act’s policy
against outside interference in union decisionmaking
that the Seattle-First, Court invoked would surely be
violated if we were to find that the Association’s inter-
nal decision to permit all unit employees to vote on the
affiliation jeopardized its representational status.10
3. Continuity issue
We further find that the Respondent has failed to
show that the Association’s affiliation with the AFGM
changed the Association so dramatically that it lacked
substantial continuity with the preaffiliation entity. Fol-
lowing affiliation, the Association, renamed Local 405,
had many of the same officers as before. Its president
remained the same, and the four Association shift rep-
resentatives continued as officers of Local 405. Fur-
ther, we find no merit in the Respondent’s contention
that Local 405 did not retain substantial autonomy
concerning the important areas of contract bargaining,
grievance handling, and calling strikes.11 That the
AFGM president or executive board possesses formal
authority under the AFGM’s constitution to take ac-
tions affecting such matters as a local’s grievance han-
dling, contract approval, or decisions to strike does not
support a finding of lack of substantial continuity ab-
sent evidence that the such authority was exercised
with some regularity.12 Thus, various provisions of the
AFGM constitution cited by the Respondent are
unpersuasive.
In particular, the Respondent argues that under arti-
cle I, section 7 of the AFGM constitution, Local 405
will lack power to pursue its own grievances or make
representational decisions. That section, however, au-
thorizes the local union, as well as the international
union, to act for members in any matters affecting
their status as employees and to represent and bind
them in the prosecution and settlement of all griev-
ances, complaints, or disputes arising out of the em-
ployer-employee relationship.13 Thus, rather than de-
priving the local of power, this provision grants power
to it. Moreover, there is no showing that the inter-
national limits the authority of its locals by routinely
involving itself in prosecution and settlement of mem-
bers’ grievances, complaints, or disputes.
The Respondent argues that article II, section 8(g) of
the AFGM Constitution removes authority from the
local by granting the International president authority
to instruct the local whether to pursue grievances. The
provision, however, does much less than the Respond-
ent suggests. Article II, section 8(g) solely concerns
situations in which a grievance is terminated by a local
union official. The section establishes a procedure for
the grievant to protest the termination to the local
president, in which case the matter is referred to the
local executive board for review. The section provides
that a decision of the board ‘‘to pursue or not to pur-
sue the grievance . . . shall be final unless the Execu-
tive Board is otherwise instructed by the International
President.’’ Thus, this section does not give the inter-
national president general authority to instruct the local
whether to pursue a grievance. Rather, the Inter-
national president’s authority under this section per-
tains only to a local executive board’s determination of
protests of terminated grievances. There is no evidence
of how often such protests are made or how often local
executive boards’ decisions of such protests are re-
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 See, e.g., Allied-Signal, Inc., 307 NLRB 752 (1992).
15 See Circuit-Wise, Inc., 306 NLRB 766 (1992); Harowe Servo
Controls, 250 NLRB 958, 1049 (1980).
16 The complaint alleged and the Respondent’s answer admitted
that the following employees of the Respondent constitute an appro-
priate bargaining unit:
All specific regular and campaign employees designated by
job classification in Article 18 of the collective bargaining
agreement between Minn-Dak Farmers Cooperative Employees’
Organization and Minn-Dak Farmers Cooperative effective from
August 3, 1988 through May 31, 1991, excluding all other em-
ployees.
versed by the International president. Thus, the Re-
spondent has failed to show that article II, section 8(g)
significantly encroaches on Local 405’s authority.
Contrary to the Respondent, article V, section 6 of
the AFGM Constitution does not substantially limit the
local’s decisions regarding if and when to strike. That
section provides that ‘‘[n]o strike action by any Local
Union or group of Local Unions shall be deemed au-
thorized actions, unless approved in advance by the
General Executive Board, or if it is not in session, by
the General President.’’ Thus, this provision gives the
AFGM no power to overrule a local’s decision not to
strike. Moreover, this section purports only to delineate
conditions under which a strike action is authorized by
the AFGM. There is no evidence concerning how often
the AFGM’s general executive board or general presi-
dent deny approval to local unions’ strike actions.
Consequently, the Respondent has failed to show that
article V, section 6 restricts Local 405’s authority in
any material way.
Similarly, the provision of article IV, section 13 re-
quiring collective-bargaining agreements to be ap-
proved by the AFGM’s president or his authorized rep-
resentative has not been shown to significantly im-
pinge on Local 405’s autonomy, absent any evidence
concerning the frequency with which collective bar-
gaining agreements reached by AFGM locals are dis-
approved by the president or his representative.
Finally, we do not find that Local 405’s autonomy
is unduly restricted by the requirement in article II,
section 8 of the AFGM constitution that each local’s
bylaws be substantially the same as model bylaws ap-
pended to the constitution and that amendments to
local bylaws be approved by the AFGM’s president.
The Respondent does not contend that the model by-
laws themselves vary substantively in any significant
way from the Association’s bylaws. Further, there is
no evidence of how often or under what circumstances
locals’ proposed bylaw changes are disapproved by the
AFGM president. In sum, the provisions of the AFGM
constitution on which the Respondent relies do not es-
tablish that the Association’s affiliation with the
AFGM changed it so dramatically that it lacks con-
tinuity with the entity that was the Association prior to
the affiliation.
Having found that the Respondent has failed to
show that the vote on the Association’s affiliation with
the AFGM was not conducted with adequate due-proc-
ess safeguards or that the affiliation with the AFGM
changed the Association (renamed Local 405) so dra-
matically that it lacked substantial continuity with the
preaffiliation entity, we conclude that the Respondent
violated Section 8(a)(5) and (1) by failing and refusing
to bargain with Local 405 as the exclusive bargaining
representative of the Respondent’s production and
maintenance employees. We therefore find that the Re-
spondent also violated Section 8(a)(5) and (1) by di-
rectly dealing with unit employees concerning a pro-
posal for a new grievance procedure14 and by unilater-
ally implementing a grievance procedure that excluded
Local 405 from participation.15
CONCLUSION OF LAW
By failing and refusing since about August 29, 1991,
to recognize and bargain with Local 405 as the exclu-
sive bargaining representative of the Respondent’s em-
ployees in an appropriate bargaining unit,16 by bypass-
ing Local 405 and presenting directly to unit employ-
ees on about April 3, 1992, a proposal for a new griev-
ance procedure that excluded Local 405 from participa-
tion, and by unilaterally implementing the proposed
grievance procedure on about April 23, 1992, the Re-
spondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order the Re-
spondent to cease and desist and to take certain affirm-
ative action to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Minn-Dak Farmers Cooperative,
Wahpeton, North Dakota, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from (a) Refusing to recognize
and bargain with American Federation of Grain Millers
and its Local 405, as the exclusive bargaining rep-
resentative of the employees in the following appro-
priate unit:
All specific regular and campaign employees des-
ignated by job classification in Article 18 of the
collective bargaining agreement between Minn-
Dak Farmers Cooperative Employees’ Organiza-
tion and Minn-Dak Farmers Cooperative effective
from August 3, 1988 through May 31, 1991, ex-
cluding all other employees.
(b) Bypassing Local 405 and dealing directly with
unit employees concerning a new grievance procedure.
949MINN-DAK FARMERS COOPERATIVE
17 If this Order is enforced by a judgment of a 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.’’
1 Similarly, in Santa Barbara Humane Society, 302 NLRB 833,
837 (1991), the Board rejected an employer’s argument that a union
merger ballot was invalid because the voting did not comply with
the procedures set forth in the union’s constitution and bylaws for
the election of officers. In that case, it was questionable whether the
procedures in question applied to a merger vote and in any event
the vote fully met minimal due-process requirements.
(c) Unilaterally implementing a grievance procedure
that excludes Local 405 from participation.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with Local
405 as the exclusive representative of all employees in
the unit described in this decision with respect to rates
of pay, wages, hours, and other terms and conditions
of employment and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) On the request of Local 405, set aside any griev-
ance that was unilaterally adjusted by the Respondent
pursuant to the grievance procedure that was imple-
mented about April 23, 1992.
(c) Post at its Wahpeton, North Dakota facility cop-
ies of the attached notice marked ‘‘Appendix.’’17 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 18, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER OVIATT, dissenting.
Unlike my colleagues, I cannot find that the Re-
spondent was obligated to bargain with the Union.
Rather, in my view, the Union’s affiliation process was
flawed because the Union did not comply with a basic
and fundamental tenet of its bylaws.
In determining whether or not a union’s affiliation
or merger process is valid, I agree that it is not always
necessary—to find the process valid—that the union
comply with all requirements set forth in its constitu-
tion and bylaws. Indeed, the failure to comply with
various procedural requirements may often have no ef-
fect on the minimal due-process requirements.
In Toyota of Berkeley, 306 NLRB 893 (1992), noted
by my colleagues, the Board held, and I agreed, that
a merger process was not flawed by the union’s failure
to comply with certain notice provisions, including no-
tice by certified mail, set forth in the union’s constitu-
tion and bylaws. In that case, the alternative notice
procedures used by the union assured full and fair no-
tice to members.1
Here, I am troubled because I must conclude that
the Union failed to comply with a critical requirement
of its bylaws. As I read the Union’s bylaw chapter 1,
section 5, it requires that a majority of members must
approve an affiliation. Based on the vote held, no de-
termination can be made that a majority of members
in fact approved the affiliation in issue.
In these circumstances, where the Union did not ob-
serve a most significant requirement of its bylaws—
i.e., that defining who must vote to approve an ac-
tion—the Respondent was not obligated to honor the
results of the affiliation vote. Certainly a majority of
those who voted for affiliation may have been non-
members, while a majority of those who voted against
affiliation may have been members. In such a situation
the rights of the members as guaranteed by the bylaws
would be submerged and indeed lost.
APPENDIX
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with
American Federation of Grain Millers and its Local
405, as the exclusive bargaining representative of our
employees in the following bargaining unit:
All specific regular and campaign employees des-
ignated by job classification in Article 18 of the
collective bargaining agreement between Minn-
Dak Farmers Cooperative Employees’ Organiza-
tion and Minn-Dak Farmers Cooperative effective
from August 3, 1988 through May 31, 1991, ex-
cluding all other employees.
WE WILL NOT bypass Local 405 and deal directly
with unit employees concerning a new grievance pro-
cedure.
WE WILL NOT unilaterally implement a grievance
procedure that excludes Local 405 from participation.
WE WILL recognize and, on request, bargain with
Local 405 as the exclusive bargaining representative of
all employees in the unit described above with respect
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to rates of pay, wages, hours, and other terms and con-
ditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
WE WILL, on the request of Local 405, set aside any
grievance that we unilaterally adjusted pursuant to the
grievance procedure that we implemented about April
23, 1992.
MINN-DAK FARMERS COOPERATIVE