Baldor Electric Company

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1325 (N.L.R.B. 1981)

BAI.DOR ELECTRIC COMPANY1 Baldor Electric Company and Teamsters Local Union No. 688 affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 14- CA-13418 September 30, 1981 DECISION AND ORDER BY MEMBERS FANNING. JNKINS. ANI) ZIMM ERMAN On January 15, 1981, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and General Coun- sel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Re- spondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Charging Party, herein called Local 688, after a majority of the unit employees voted on January 6, 19 80 , : to replace the incumbent labor organization, Independent Union of Electric Motor Workers, Local 57, herein called Local 57, with Local 688. The Administra- tive Law Judge further found that Respondent vio- lated Section 8(a)(5) and (1) by continuing to rec- ognize Local 57 and by continuing to honor dues- checkoff authorizations for Local 57. We do not agree and shall dismiss the complaint in its entirety. The Administrative Law Judge, in finding Re- spondent obligated to bargain with Local 688, relied on the principles set forth in Quemetco, Inc., 226 NLRB 1398 (1976), and related cases. As set 'The Respondent has requested oral argument. his request is hereby denied as the record. the exceptions and the briefs adequatel presenl the issues and the positions of the parties. ' he Respondent has excepted to certain credibilily resolutions made by the Administrative Law Judge and further contends that the Adminis- trative aw, Judge's findings of fact and cotnclusions of la", eidence a hostility and bias against Respondent which unfairl' affected Ihe ouicolme of the casc It is the Board's established polic! , not to i errule an admil- istratlme law judge's resolutiois with respect to credibility unless the clear preponderance of aill of the relevanl evidence consinclte us that the resolutions are incorrect Standard Dri Wall Priodut, Ic.. I NlRB 544 (1950). en fd 188 F 2d 362 (3d Cir 151) 'e h ax carefullv examined the record anid filnd 1o exideincc f bill or hoslililt nor an, basis for re- .ersiig his filndings. ' All dates hereinafter refer to 19ti8) less o1he is ru specified 11n this regard all employee i the Ilnli scre iniled to ttend his mnecting anid uere eligible to , ote See Member Jenkil,' disscnt in \ortrh IlA-rt (,,r- pany,. 165 NlRB 42. 943 111(7) 258 NLRB No. 183 forth below. we distinguish Quemetco. supra. in large part because of the existence here of two competing groups of employees claiming separate labor organizations as their respective bargaining agents, and rely instead on the principles set forth in Universal Tool & Stamping Co., 182 NLRB 254 (1970), in dismissing the complaint. Respondent has had collective-bargaining agree- ments with Local 57 for over 32 years, with a recent agreement effective from September 30, 1977, until September 30, 1980. On January 6. 1980, 289 of approximately 410 unit employees at- tended a union meeting during which the majority voted 195 to 91 to disband Local 57 and 214 to 72 to affiliate with Local 688. Immediately following the vote, a second meet- ing was held by a small group of dissatisfied em- ployees, and "interim officers" for Local 57 were chosen. On the evening of January 6, employee Irene Dols, elected interim treasurer of Local 57 at the meeting of dissidents and a former officer and founder of Local 57, telephoned Respondent Chief Executive Endres and requested a meeting the next morning to discuss Local 57 business. On the morning of January 7, Endres met with Dols and other Local 57 interim officers who pre- sented Endres with a written request that all union business be directed to them. The officers told Endres that the vote to disband Local 57 had not been conducted in accord with the bylaws and that, in a small meeting, they had decided to repre- sent Local 57. However, on the same morning, Local 688 rep- resentative Cooney also contacted Endres, in- formed him of the outcome of the January 6 meet- ing, and requested recognition. Endres referred Cooney to company counsel. On January 8, Re- spondent informed Local 688 that it would recog- nize Local 57 rather than Local 688. Eventually, the Local 57 group began processing grievances and elected new officers while Local 688 continued to press its demands by attempting to send Respondent dues-checkoff withdrawal cards for Local 57 and cards authorizing checkoffs for Local 688. The question before us is whether Respondent was obligated to recognize and bargain with Local 688 upon its January 7 demand. We conclude it was not. Ordinarily, an employer is required to continue to recognize a union with which it has a collective-bargaining agreement so long as that contract bars a representation petition. The duty to bargain is not affected by the union's loss of major- ity support during the term of the contract. This long-held contract-bar principle serves to stabilize bargaining relations with due regard for the statu- 1 325 DEFCISIONS OF NATIONAL LA13OR RELATI()NS BO()ARD tory right of employees to choose freely their col- lective-bargaining representative. To ignore this obligation would subject an employer to a violation of the Act.' There are circumstances, of course, under which the Board has found that the principles of free em- ployee choice and stability of bargaining relations are upheld by requiring an employer to bargain with a successor union as a result of affiliation, dis- affiliation, merger, etc. For example, in Quemetco, supra, relied on by the Administrative Law Judge herein, the Board required the respondent employ- er to bargain with a successor union after the em- ployees had voted unanimously in favor of affili- ation with that union. However, there was no com- peting group of employees demanding that the em- ployer bargain with the predecessor union or a remnant of that union. The Board has traditionally considered the actions or complaints of dissident employees in determining whether the employer is obligated to bargain after a change or alteration of the bargaining representative. s In Quemetco, supra, the Board faulted the respondent for ignoring the clear and unanimous choice of the employees and taking it upon itself to choose the employees' col- lective-bargaining representative. However, in Universal Tool, supra, the Board found no violation in the respondent's refusal to recognize the newly affiliated union where, a month after the employees voted 125 to 77 to affili- ate, 40 members of the incumbent union met and voted to supplant the old officers who had trans- ferred their allegiance to the affiliated union. Both the newly affiliated union and those interested in retaining the independent union demanded recogni- tion from the respondent employer. Similarly, in the case at hand, Respondent was faced with ten- able but competing claims of representative status from two separate groups, each of which sought to stand in the stead of the incumbent union. Re- spondent, of course, had not attended the union meetings at which the various votes were taken nor was it privy to internal union policies and pro- ceedings. Furthermore, Respondent had no role in these activities and committed no unfair labor prac- tices that may have altered the course of these events. 6 We cannot agree with the Administrative I i'nilr l iubl, lupru a t 25.) .\'lewpupcrn, i , Publivhri o/ hie .Alutim ltiteriuft anud Tl Ai lurtn Sluimaunii. 21) NL.RIt 8. 1. fri. 10 (1974) See als.o ,. urchu Oshsirn ib. f,,mo,.al Iospal./, 247 NLi RB 350 (198()) Sutmul P Kat. d/h,' Iolri. an tlail r (h.t # 2i. 231 NLR 1194 (1977). cnfd i 22 h 1 21d 24' (hth Cir. 19I8)) " Ihc record does not supprt tich Admninrali rt I.a\ Judgc' findingll that Rsporldsntll uniklisxt ll h 1.ihtld it palTllCl d , ag icrcas. hccau,,c of' the mplo ccs untiitoni ats' ? li s o 11 0il i lts filiaitl icicr'%c lwt Ad- rlmi siralt'c lai Jutlgc Il Ithis rgard Law Judge that Respondent was forced to choose between these competing groups at its peril. Under these circumstances, we find that Respondent did not violate Section 8(a)(5) and (1) by refusing to recognize and bargain with Local 688, by recogniz- ing and bargaining with Local 57, and continuing to honor Local 57 dues-checkoff authorizations. The complaint will be dismissed in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION SIATNIFlMNI 01 I HI CASE I. PRFI.IMINARY SI'AIiMlNI; ISSUE SrANI IY N. OHI. HAUM, Administrative Law Judge: This proceeding' under the National Labor Relations Act, as amended, 29 U.S.C. §151, et seq. (the Act), was heard before me in St. Louis, Missouri, on April 14-18, 1980, with all parties participating throughout by coun- sel. At the outset of the hearing, I granted the motion of Independent Union of Electric Motor Workers, Local 57 (Local 57) to intervene. 2 Subsequent to the conclusion of the hearing, on September 26, 1980, 1 granted General Counsel's unopposed August 22 motion to reopen the case and consolidated it for reopened hearing with Case 14-CA-13915, which, after adjournment, was set for hearing on November 17, 1980. Shortly prior to that date, however, I was in receipt of a November 13, 1980, motion by General Counsel to approve an all-party infor- mal settlement of Case 14-CA-13915 and to sever that case from the consolidated case. My order of November 21, 1980, : ' granted that motion without opposition, and allowed the parties until December 3, 1980. for final sub- missions. None were received in addition to the pro- posed findings, conclusions, and briefs filed on behalf of each of the parties subsequent to conclusion of the origi- nal hearing of Case 14-CA-13418. Those documents, as well as the entire case record, have been carefully con- sidered. The principal issue presented is whether Respondent has violated Section 8(a)(5) and (1) of the Act by refus- ing to recognize and bargain collectively with the Charging Party Union herein (Local 688) and to permit that Union to process grievances on behalf of or other- ' lased onll i Fchruar 2(). I96)XI) conllpainl issued hb tihc oa;lrd's Rc- glOIlill ir ector Ior Rcgioni 14. gro tillg sit 1 1a a cha.rge filLd 1t Jatlllarr 29. 1980) h the above Charginig Palrt XAlttihougih the charge ilso ailleged Iola.tiotl oft Sc 8(a)(2) sof te Act. tll conlpl.ainl dres lol iclidce Ihal alll. Igaill iol : Ihc Itoard's Rcgional )ircctor tilt Rtgeon 14 htad prc'iosi. oni March 21 I), ) denrtiad a tiloio h "t)ctio, Ra tlirt adi Alcall Itar- Itl. on hchaf thiemselves lid other iitc'rstCd ciiplo\cc's oIf aldoir l[-IciI {'slTIpal\. thrlyI tgh lcll .IT rtilrlrt,. Io tllcri . c. (' p. allat ltd l, "X pptPllCdl A " [()itiled 'rtritl puhlica.n1oi n 1326 BALDOR EL.ECTRIC COMPANY1 wise to represent an appropriate bargaining unit of Re- spondent's employees. Upon the entire record and my observation of the tes- timonial demeanor of the witnesses, I make the following findings: II. JURISI)ICTION At all material times, Respondent, a Missouri corpora- tion engaged in nonretail sale and distribution of electric motors and related products, has maintained its principal office and place of business in St. Louis, Missouri (the fa- cility involved in this case, consisting of a stamping plant and a motor manufacturing plant), as well as another fa- cility in Fort Smith, Arkansas. During the representative year 1979 immediately preceding issuance of the com- plaint, in the course and conduct of its business oper- ations, Respondent purchased and caused to be transport- ed to its said St. Louis facility goods and materials valued in excess of $50,000 transported and delivered there in interstate commerce directly from places outside of Missouri. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that at all of those times Charging Party Local 688 and Inter- venor Local 57 has each been a labor organization as de- fined by Section 2(5) of the Act. IlI. AL.LEGED UNFAIR ABOR PRACTICES A. Overview of the Case This case centers around the replacement by Respond- ent's factory employees of a bargaining representative with which they were dissatisfied, with another Union of their choice, during the term of a collective-bargaining agreement, and their employer's consequent refusal to recognize or deal with the successor Union, while insist- ing that its employees had to continue to be represented only by the labor organization the employees had reject- ed and replaced. B. Background As of January 6, 1980, the bargaining unit here in- volved consisted of around 410 employees (with a union- security provision in effect). Local 57, professedly an "independent" labor organization of those employees, had spoken for all of Respondent's production employ- ees, warehousemen, and truckdrivers' since the early 1940's-almost 40 years. Respondent has had collective- bargaining agreements with Local 57 for at least 32 years, including the September 30. 1977-September 30, 1980, agreement signed by Respondent's vice president and director of its St. Louis operations (including indus- trial relations), Henry Endres, with Respondent's lead- man, the then Local 57 president, Denzo Ray Henry, and its vice president, Herschel Williams. When the unit employees expressed dissatisfaction with provisions of that (1977-80) agreement concerning deferred pay in- 4Mainlenance worker%. clerical employee,. and guards are not includ- ed in the unit ILocal 57 is, aid to have heen certified hvby the Board in 1948 creases, Respondent refused. around August 1979. to bend. Roger M. Rettig. testifying as Respondent's w itness. described himself as national president since 1963 of Na- tional Federation of Independent Unions (NFIU) with an office address in Washington. D.C. Rettig explained that he is familiar with Local 57 as an "affiliate," "chartered" in 1953 by a predecessor of NFIU: and that the relation- ship of Local 57 to NFIU is not the same as the conven- tional relationship of a local to a national or international union-for example, NFIU has no power to take trustee- ship over an "affiliated" group. Each affiliated group- there are now 90 to 100-pays a "per capita tax" to NFIU based on the number of members in the affiliated group; thus, Local 57 paid $160 per month until January 1980. NFIU is centrally administered through national officers and a national executive committee. (Resp. Exh. II.) Local 57 also held membership in another organiza- tion, known as Midwest Independent Union Council, which provided it with negotiating data and advice, as explained by Respondent's class A armature-winder and instructor, Irene L. Dols, in its employ since 1939, testi- fying as Respondent's witness, one of the founders of Local 57, its secretary for at least 15 years through 1975, an executive board member, and its shop steward, as well as vice president of Region I of Midwest Independ- ent Union Council; and also by Denzo Ray Henry (like- wise testifying as Respondent's witness), Respondent's leadman and a top officer and official of Local 57 since the early 1950's. According to Alena E. Bartold, a member of Local 57 since 1965. its treasurer 1971-79. and now purportedly its vice president, Local 57 has not filed any of the reports required to be filed by unions with the Department of Labor since at least 1979. Claiming now once again to be president of Local 57 (see. infra, secs. C and D for circumstances leading to his alleged redesignation as president of Local 57), Respond- ent's leadman, Denzo Ray Henry. appearing as Respond- ent's witness, testified that Local 57 dues have been $5 per month, and that its election meetings have been held on company premises at a "rental fee" of $1: that he (with a few other employees) has "negotiated" all collec- tive-bargaining agreements. which were prepared by the Company; that there has never been a strike; that under the collective-bargaining agreement further pursuit of an employee grievance is a matter for each individual em- ployee and not for Local 57's constitution and bylaws which are not subject to NFIU's constitution and bylaws; that he does not know what the annual "per capita" tax paid by Local 57 to NFIU is for; that he has never spoken to NFIU officials about any subject in- volved in contract negotiations; and that although Local 57 routinely transmits copies of its collective-bargaining agreements to NFIU. never has NFIU commented on any contract provision. C. Employees' Substitution of Local 688 fir Local 57 Around mid-1979, restlessness among Respondent's factory workers seemingly had developed to the point 1327 DECISIONS OF NATI()NAL LABO()R RELATI()NS ()OARI) where they were openly expressing dissatisfaction with their in-house "independent" labor organization. Local 57, and seeking to obtain more effective representation through affiliation with an outside union having true independence and more "clout." To this end-as shown by minutes of Local 57 (C.P. Exh. 7, pp. 117-121)-at two Local 57 meetings on October 19. 1979, after Team- sters Local 688 was brought up as a substitute or succes- sor bargaining representative, with Local 57 President Richard Carlton explaining the possibilities along that line, by unanimous action: a search committee was desig- nated to procure an "outside union."6 Several days later, on October 23 or 24, Local 57 President Carlton was ap- proached in the plant by Chief Executive Endres who informed him that he had learned of the foregoing and asked Carlton what the reason was for it. Carlton replied that the membership was thinking of another union. Endres characterized the Teamsters as "gangsters." During the week of November 5, Endres showed Carl- ton a press release describing a Teamsters' representation election loss at the Company's other plant at Fort Smith, and Endres urged Carlton to "think about this." When the possibility was raised that the unit employees could simply move to substitute Teamsters for Local 57 and Carlton indicated he could "table" such a motion, Endres commended him with, "Well, you're all right. Richard." However, at the ensuing membership meeting on November 16, Carlton warned the membership that the Company appeared to have a "pipeline" to the em- ployees' union activities and stressed the need for cir- cumspection. On November 28, Local 57 President Carlton, togeth- er with its executive board and most of the shop stew- ards. met with Teamsters Local 688 representatives and their attorney, and later unanimously (with a single ab- stention) voted to recommend to the unit membership that Local 688 be substituted for Local 57 as the unit's bargaining representative. 7 In pursuance of this objective s It is noted that Alena art(ld, later a vociferous dissident and one if a splinter group bent (cn relaining Local 57 over the . ishes of the over- whelminlg majrily of the unit employees (as will bhe shown in/ru). w;as. accordinlg to te official minutes. otling in favor of tlhis action, although she claimed at this hearing that she and about half of those present .oled against it. Her testimony is belied by the minutes. Een prior to this there had been rumblings and discontent. perhaps in large part over grievance procedures which the employees fell Aecre "stacked" against them (See lt.ocal 57 minutes. C.P. Eh. 7, puwim.) Even as early as 1976, as conceded by Leadman Den7o Ray Henry, Re- spondeit's witness and ast and purportedly pesent president of locial 57, Respondent's employees had voted uanimously to disaffiliate from the "Miduest Council of Independent Unions," but there is tio idication that this resoluioil was implemented, it further appearing that agent , of that organization attetnded meetings of .,cal 57 and that the officers ,f Local 57 continued o look to it for advice and guidance. And-but onl after his recollection was allegedly refreshed by the Local 57 minutes hook (CI'. Exh. 7. p. 56)-llery flrther conceded. modifying his earlier testimony, h;l o June 17. 1977. Ahile ie presided at ai meeltig a is president. the members oled Io explore affiliati(on ll ith another n 1iottl and that also n August 19, 1977 lid. p. 67). t aother meeting chaired by Henry, it was pointed out that Respotndent's oolroom emplo,yees wished o "pull out" of Local 57 7 According to Ro;ald Gamache, principal officer of Teamsters l oca;l 688. called as a witness by Responldent mployer, hat uionI coinsists of about 15.0(1O members employed y 6X)-7() employers throughoul St. Louis and ive surrounding coultiCs. The uion hs ole set of of icrs. but each shop udit has its owin "hop officers" elected hb the shop itself. Each hop chairman presides t shop uit meelings usiness rpresert;a- plans were made to bring the matter to a vote of the membership. O Deccember 7. ocal 57 Vice President Dunn booked a large local hotel meeting place (Resp. Exh. 9) for that purpose. At the same time. Local 57 President Carlton notified NFIU Vice I'resident Selby of the decision of the Local 57 executive board to present the issue of whether to disaffiliate from NFIU and to af- filiate instead with Teamsters. When Selby asked. "Why not AFL-CIO." Carlton replied that the executive board preferred the Teamsters. A meeting was thereupon set up with Selby for December 10. On December 10, how- ever, Selby never showed up for the meeting as arranged and efforts to reach him were unsuccessful. ' Within a few days thereafter, Carlton reached NFIU President Rettig and informed him of the proposed new affiliation. When, in response to Rettig's question. Carlton indicated it was Teamsters Local 688. Rettig expressed displeasure and instructed him to merely mail the NFIU "charter" back to him if it went through." On December 16, Carlton as president of Local 57 dis- patched a letter, dated December 15, to each unit member, as follows (G.C. Exh. 2): Dear Members: There will be a special meeting of all members of the Independant [sic] Union of Electrical Motor- workers at 1:00-P.M. Sunday, January 6, 1980 at Stratford House, 800 South Highway Drive. At this time a vote will be taken, by members in good standing. to disband our present union and af- filiate with the International Brotherhood of the Teamsters, Local 688. No other business will be discussed at the special meeting. Further notice of said meeting will be posted at Baldor Electric in the near future. /s/ Richard K. Carlton Richard K. Carlton, President Upon receipt of this letter, former Local 57 president, Respondent's leadman. Denzo Ray Henry-who, as will be shown infra. was a leader of the tiny band of dissi- dents who attempted to impose their will on the over- whelming majority of unit employees and who in a rump lives of Local 688 are detailed to assist the shops ad may be replaced on request f Ihe shopp he shop chairmanl also ersed as principal nego- iating spokesman fr his shop unit. In addition to its ossn cotitultiotin anid hyl;aws (Resp. Exh 7). Local 688 is also governed by the ilernation- a consitutioi (Resp. Exh 8) of Teamsters. its "parent " All members of L.ocal 688 can vote ii it cOtitutist ll anld hlavss; he shops hase nio cp- arate cnstitutionl and hylaws. Allhough ide genleral manlagerial po ers arc trusted by Ihe I ocal 688 consfitulion ad hbyla\s to i execulise board (Resp Exh. 7. pp. 14-lh. art VII), there are also elaborate prosi- sionT for the lection of shop uit chairmen. secretaries, and stesards, and conlcernilig local selIf-govtritanlce ad adniniration, iclludinig shop unilt committees (id pp. 54-60. arts XXIX-XI.III) Although there is no doubt tha Ithere are major differenrces organizationalll and operationally he.eelln I.inal 688 ad I.ocal 57. there is also no doubt, as sill he sho in, that the uIil employees wre dissatislied ,bllh Local 57 anid anlied this ery hiuig-ic , representaliot by Local 88 itselad or Ioa 57 he foregoing leslmiont of C'arliton ctoncerning Sclbh is iuncoiltradiclt- ed. sice Selhby did 1(ot1 teslti, alld i credited Ullispied by Rettig. .IhoI tstlified a Rpon)dclt mployer', ilt- lies 1328 BALDOR ELECTRIC COMPANY session reelected Henry as "President"-according to his own testimony as a witness for Respondent Employer. assailed Local 57 President Carlton for calling the meet- ing, accusing him of "violat[ing] your oath of office" and "ask[ing] for your resignation." At or around the same time, December 17 or 18, at the conclusion of a griev- ance meeting with Company Chief Executive Endres, the latter remarked to Carlton, "I heard a rumor that you and some other people are trying to get another union in here." When Carlton acknowledged it was Local 688, Endres rebuked him with: [I am] very disappointed, very disappointed .... You guys could have made a grandstand play, but you blew it.". .... You missed an opportunity. Endres added that he was a believer in an "independent union" structure, the same as former Local 57 President Denzo Ray Henry. To this Carlton responded that it was people like Denzo Ray Henry (Respondent's leadman) who had brought the employees to their existing alleged plight. But Endres merely expressed "wonder" why people would want "gangsters" to represent them, and that "Obviously I can tell that you've been misled." Later that week, when NFIU President Rettig called and asked Carlton if he was "going ahead," Carlton informed him the meeting notification letters (G.C. Exh. 2) had al- ready been mailed out. In addition to those letters, on December 19 Carlton prominently posted near the plant timeclock and on each bulletin board in each of the two plant buildings, the following further notification of that meeting (G.C. Exh. 2): To All Union Members: There will be a special meeting of all members of the Independent Union of Electrical Motor Work- ers at 1:00 pm, Sunday, January 6, 1980, at Strat- ford House, 800 South Highway Drive. The special business to be discussed at this meet- ing has been previously mentioned in personal let- ters to the membership. If you have not received such a letter at this time, please contact your shop steward or any union representative. Richard K. Carlton President, I.U.E.M.W. During the last week of December, when Carlton (with Local 57 secretary Barbaglia) met with Endres to complain concerning the seemingly preferential treat- ment being accorded to Local 688 opponents and con- cerning the removal of one of the posted notifications of the upcoming January 6 meeting, as well as concerning a threat to a unit member of a beating in case of voting for Local 688, Endres' response was that "it would probably be better" if the notice of meeting were not posted near the timeclock-resulting in Carlton's removing it from that location. On January 2, a meeting was held by a few employees including Denzo Ray Henry and Alena Bartold, at the arrangement of employee Irene Dols, with representa- "' Endres concedes he made this remark, hut he claim the contexl sias misunderstood tives of an organization known as Congress of Independ- ent Unions (CIU) and an affiliate, to take steps to legally enjoin the scheduled January 6 meeting. The employ- ees-Respondent's witnesses-who testified concerning this meeting denied knowledge as to who defrayed the expenses of the injunction proceeding. while conceding that no suggestion was made concerning the possibility of a secret ballot to determine the unit members' de- sires." On the afternoon of January 4, Carlton was served with a local St. Louis court order to show cause. returnable January 7, why the scheduled January 6 meet- ing should not be restrained.' 2 On January 3, NFIU National President Rettig ad- dressed a letter from Washington to all Local 57 mem- bers, urging them to attend the scheduled January 6 meeting to vote on whether they wished to remain with NFIU or to disaffiliate from it and replace it with Local 688 as their bargaining representative (G.C. Exh. 14). He turned over to Denzo Ray Henry sufficient copies of the letter for distribution to all members, and testified that Henry indicated to him they were distributed by hand. 3 During the week preceding the announced January 6 membership meeting, Denzo Ray Henry demanded that Local 57 President Carlton resign for "[breaking your] oath of office by sending this letter" announcing the Jan- uary 6 meeting. Declining to do so, Carlton indicated that he would conduct a fair and orderly balloting meet- ing on January 6. The January 6 Balloting The January 6 membership meeting of Local 57 was held as announced. All, or at least a quorum, of the ex- ecutive board were present, and of the 409 or 410 mem- bers, 289 or approximately 71 percent appeared'' and signed the attendance sheets (Resp. Exh. 1), which were cross-checked against the membership lists before the signer was permitted to vote. ' As had been announced " II may he of interest to observe that Denzo Ray Henry. who had upbraided Carlton for "disloyalt)" to Local 57 for mailing out the De- cember 15 notices of the Januar. 6I meeting to determine the unit mem- hers' desires, after the L.ocal 57 executive board had noted to do o --the same Denzo Ray Henry at the instant hearing insisted he was not hbeing disloyal to Local 57 b then as well as on previous occasion meetinlg oir speaking with representatives of CIU. a totally different organization from NFIU and which had been threatening to "raid" Local 57 of NFU' and take over its membership. on the subject of umbrellaing Local 57 into CIU. According to Respondent's chief executive. Endres. as well as its witness, Alena Hartold. and Dols herself. Dols is an offtcer of CIL' I! That proceeding was suhscquenlly and has apparenly l since then been treated as mxoot The plaintiff i the injunction procecding ere Dan and Maggie White who as seepers were maintenance emnhplocc and thus not part of the bargaining unit, but who ere transferred into the unit in Noecmher and joined l.ocal 57 onl, around )eccenihr 2. 1979 '' Rettig claims he is unable o "r:call" whether Deti. R iltlen)rs s much as mentioned an5 injunction prioceeding to him " According to minrilt "dissidenrit" Irene Dols. tcslif\ ig as Respond- ent Emplo)er's witness. normal attendance al metig, (other than coil- tract raltifcation meetings, when omewhal larger) is *onl 4 to 50( Ot (nlK four signatories were fulild to be nolt il good latnding. l ponl paymenl I' dues. thie \,ere permitted io ole Altlhough nmenmbership cards erye not required to hbe dlplasled. credited prirof establhshe' this was seldom if ever required t meetings: and, beside,. the identities of the voters were a;mpl\ recognized ad % ell kntiown No serious oir credible colrtentnn is made bh Resporndenl r Inters enor that anN importer or ( oilti nued 1329 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the December 15 notice (G.C. Exh. 2), the sole pur- pose of the meeting was whether "to disband our present union [i.e., Local 57] and affiliate with the International Brotherhood of Teamsters, Local 688." This purpose was rigorously adhered to. The entire meeting was chaired by Local 57 President Carlton. An extensive discussion and question-answer period of at least 2 hours preceded the balloting. Several Local 688 representatives (including their legal counsel) present answered questions, including one about the status of the existing labor contract provisions in the event the membership voted to change their bargaining representative. The response by the Local 688 repre- sentatives to this was that the contract terms would oth- erwise remain in effect and that Local 688 "would abide by the contract." A motion was made and seconded, and the question was put as to whether to disband "independent" Local 57 and to affiliate with Teamsters Local 688. At this point, the Local 688 representatives left. Printed yellow ballots were read aloud by the presiding official (Presi- dent Carlton) and distributed to the membership for their secured written vote. This ballot (G.C. Exh. 4A) read as follows: BALLOT DO YOU WANT TO DISBAND OUR PRESENT UNION? THE I.U.E.M.W. LOCAl. 57. YES NO MARK ONEl BOX ONLY Marked ballots were then deposited by the members through a perforation into a locked steel ballot box which had first been opened and displayed to them and shown to be empty. The ballots, on whether to disband Local 57 (G.C. Exh. 4A, supra), were all securely cast into the closed ballot box, and then tallied and cross- checked by the tellers, and found and announced to be 195 for and 91 against t or approximately 67-1/2 percent in favor of disbandment of Local 57. Thereupon a second, differently colored (blue) ballot was read aloud by Carlton and distributed to the membership for a second, separate vote. This ballot (G.C. Exh. 4B) read: person noit entitled I , vote did so at the meeting of Janualry 6. inor that any person castl miore than one vote. There las ample pportunity at the meeting itself to object to the casting tfr ha blll by ally person not enti- tled to d so, swithhout a such obhjecti on hcing made. Furthermiore, It- tervenor,. as well its Respoltlden as h ad ample tlime and pportunily to cross-check the signatures on the January meetling attllendance lists (Resp. Exh. I) with the I.ocal 57 membership lists, as well as the signa- tories' signatures on their social ecurity, ihholdilg. ald other employ- menit record, (C. ' xhs 10. 11. and 2 t Itialing 894 dcumenrts). it say nolthing f other investiglltive measurec readily availahle to them. No ei- deucc has eei adduced here ito hroi, so mruch as it a single signature on the January 6 attendance lists or the identis ir memhership of so much as a ingle voter in questliol. ()One personi did not ivote and o hballots scTere voided --one hecaluse it as blank and the other because hboth "yes" anrid "n" hboxes were nlarked he 195 for plus 91 againlt plus the fregoing 3 toltal the 29 member presetl BALLOT DO YOU WANT TO AFFILIATE WITH TEAMSTERS LOCAL 688? YES NO MARK ONF Box ONI.Y These written ballots were in turn, in the same fashion, securely cast by the membership, tallied by the tellers, and found and announced to be 214 for and 72 against, 17 or approximately 74 percent in favor of affiliation with Local 688, and the tallies certified in writing by the tell- ers.'8 All ballots'9 were then placed into the ballot box, which was then locked. At no time-as conceded by minority "dissendents" Alena Bartold and Irene Dols, as well as by Mary Barbre, each testifying as Respondent Employer's witness-was any objec- tion made or question raised to this procedure by any person present. 20 1 find that the entire meeting was properly con- ducted in an atmosphere of fairness and decorum, with all persons accorded the right to speak and freely express their sentiments, and with balloting and tallies securely carried out and preserved.2 ' Upon announcement of the tally of the second vote (i.e., for affiliation with Local 688), Carlton announced to the membership, "We have now affiliated with the Teamsters." There was no objection or dissident voice expressed. D. Sequelae to Employees' Replacement of Local 57 by Local 688 Immediately following the above January 6 member- ship meeting, a handful of employees-including Lead- man Denzo Ray Henry, Alena Bartold, and Irene Dols- went to a hotel room, in the same hotel, which Bartold had reserved in advance, for the purpose of designating "interim officers" for Local 57. No notice of any such meeting had been given and no quorum was present. At least one representative of another organization (Clark Libhart, a personal friend of Irene Dols and a representa- " With I blank ballot and 2 persons not oting, plus 286 (214 for and 72 against). again 289 members present were fully accounted for. "GC. Exh 9 "' nused as well as used. Somewhat over 50 ballots had been print- ed 2" Upon he basis of testimonial demeanor observations. I do not credit the testimony of Denzo Ray Henry Respondent's leadman and hotly par- tisan itness hat he stated to he assembled group that "[Tlhis meeting is unlegal [sic] because under our constitution and bh-lav., is is an Inde- penldent Union meetinig and we have other people in here beside the In- dependent Union " Although some Local 688 representatises were pres- ent to respond to questions from the floor during the question and answer period prior Io the voting. it is undisputed that they all left prior to the halloting and did nol return According to Henr)'s testimony, he also warned the employees at the meeting that "anywa) this vote goes. if it goes to the T'camters, the Teamsters ill not hbe recognized at Haldor Eleclric Clrompanll come MondaN [i c, tomorrov, nIorninig . e. ve if it 'was voted in"--a prediction which certainly turned ut Io be suc l-in- frnmed and accurate l rhtere i no credible evidence that iani drugs cre used or alctioholic beverages imbibed. or ay improper r ndue influence, means, medium or factor ill iany s.oi uiilied, at r affecting the JaIuary htimeting Nor do I regard it ;Is Viliatllg the utcome of that meetinlg r a, therwise ilproper. thlt .ocal 88 defrar!ed he cosl f thal nieetilng 1330 HALDOR ELECTRIC COMPANY tive of Congress of Independent Unions-of which Dols was herself an officer-an affiliate of the Midwest Inde- pendent Union Council. from which Local 57 had sup- posedly disaffiliated in 1976 supra, fn. 6)22 was present. The 10 employees there, including Denzo Ray Henry. Bartold, Irene, and Elmer Dols, signed a "petition for the purpose of remaining members of the IUEMW [Local 57]" (Int. Exh. 4), and they then and there "elect- ed" four of themselves as the new "officers" of Local 57-Denzo Ray Henry as "President," Ray Seiter as "Vice President," Alena Bartold as "Secretary," and Irene Dols as "Treasurer." Although this action was not posted or publicized to the unit membership, on arriving home later that day Alena Bartold saw fit to prepare a handwritten letter to Respondent Employer (dated that day, January 6, and signed the following morning), as follows (C.P. Exh. ): January 6, 1980 Baldor Electric Company 3560 Scarlet Oak Boulevard St. Louis, Missouri 63122 Dear Mr. Henry:2 3 We the governing officers of the Independent Union of Electric Motor Workers under Article 6 section Id of our Constitution and By-Laws asked that you direct all business of said Union to these officers. Denzo R. Henry-President Ray Seiter-Vice President Alena Bartold-Secretary Irene Dols-Treasurer. Sincerely, /s/ Denzo R. Henry /s/ Ray Seiter /s/ Irene Dols /s/ Alena Bartold Also on the evening of January 6, after the described "rump" meeting, Irene Dols telephoned Chief Executive Endres at his home and arranged a meeting with him for the following morning regarding "some business to dis- cuss concerning Independent Union of Electrical Motor Workers [Local 57]." On the following morning, January 7, Denzo Ray Henry, Alena Bartold, Irene Dols, and Ray Seiter identified themselves to Endres as the "gov- erning officers" of Local 57 and presented him with their January 6 letter (C.P. Exh. 1). Endres indicated that the Company would not recognize Local 688 but would continue to recognize Local 57. It is, incidentally, noted that-as explicitly conceded by Irene Dols, testifying as Respondent Employer's wit- ness-at this time (January 6-7) Alena Bartold, "elected" by the rump group of 10 (including herself) as "Secre- tary" of Local 57, was not even a member in good stand- ing of that organization because in default of paying her dues. It is further noted that Denzo Ray Henry., elected - According to Chief Executiise Eldres, Irene DI)ol as ain officer ol the NMidueIt (llouncil at this linme ::' Chief -xecutise Henlrs tind res tstified that "Mrr l ienrs" refer to him. by the same "rump" group of 10 (including himself) as the "President," was-as also testified by Irene Dols as Respondent's witness-the Respondent Company's lead- man-notwithstanding Local 57's constitution/bylaws provision (Resp. Exh. 2, art. VI, "10." p. 4) that "No lead person shall hold office in the Union, either by ap- pointment or election." 24 During the week following the January 6 membership meeting and the vote to replace Local 57 with Local 688, cards were distributed to the membership withdraw- ing the existing dues-checkoff authorizations for Local 57, authorizing dues checkoffs for Local 688, and accept- ing membership in and formally designating Local 688 as collective-bargaining representative (G.C. Exhs. 5A, B, and C). On January 15, Respondent posted in its plant a notice to employees from Chief Executive Endres that employees were under no obligation to fill out or sign any of those cards (G.C. Exh. 6). and that the Company "has a valid existing contract" with Local 57. By or about January 18, about 250 of each of those signed cards were delivered to the Company's personnel office. which, however, refused to accept them, acting on direct orders of Chief Executive Endres. There is no credible substantial proof that any of those cards has at any time since then been countermanded, revoked, or withdrawn. Chief Executive Endres was notified by Local 688 Representative Cooney on the morning of January 7 as to the outcome of the balloting on January 6 and recog- nition was requested accordingly, Cooney making it clear to Endres-as the proposed recognition agreement as "successor" to Local 57 explicitly provides (G.C. Exh. 10, p. 2 "2")-that Local 688 wished "to continue the present agreement in full force and effect" and merely to "take over the present bargaining agreement and . . . just administer it as it is." Endres referred Cooney to company counsel, to whom Cooney reiterated that Local 688 was "not interested in reopening the present agree- ment at the present time." Eventually, after apparent consultation with the company president (Rolland Bore- 2' Concerning this. it is obsers.ed that on May 2. 1979. NFIU National President Rettig allegedly informed a former Local 57 president (Her- schel Williams) that he (Rettig) had been informed by a Departmenl of t.ahor official that "every member in good standing shall he eligible t be a candidate foIr election." and that "you should not try to use the Consti- tution to prohibit [a] person suspected of being too close to manage- ment . from running for office. It is suggested hat anyone ,sho runs for Office that the members feel is too close to management. they) hould just not vote for hat person Herschel, it seems that the Department of Labor would throsv out an election that bharred an. member in good standing from running for office, should that person file a complaint ith the L. MSA" (Resp. Exh. 12 which wsith accompaniing April 2 19I). cloering letter from Respondent's counsel to judge -marked Resp Fxh, 13A and B. are hereby incorporated the hearing record. ot erruling Charging Party's objection in its April (1. 198(. letter Io iudlge like's.i~ incorporated as Resp Exh. 14.) In the same connection it is also noted that art VIII p I) of the NFIU constitution and bylaws (Resp. Fxh. t I. entphasing the "''lndepedenlce" of its constituent locals. proidels that "The local ;ailuon. ont of t nio,.s affiliated wilh the Natitonal Federation of Indepenldent Ulni on, shall remnain foreer in, iolate" Rettig, trcsif.in g a' R espondenlt', s itlles. stated hat %hetn he receisved ritten nItification fror I ocal 57 ill Janllluar tha t had decided Il disband and affiliate nilh I ocill bhg, he responded Ihal he did notl acqtiesce in tha Hioesver. he r;lnetld the "charter" hich I. cal 5i7 h;d returned 1t hinm (l Ie later rtlrned t Io the spllnter lissileltli s 1s 1os sll htelos ) 1331 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ham), company counsel informed Local 688 counsel that the Company would not recognize Local 688. When Local 57 President Carlton visited Endres on January 8 and confirmed the results of the January 6 membership meeting, Endres indicated to him that the Company would not recognize or accord Local 688 any status-regardless of the wishes of the employees-but would continue to deal with Local 57 (which the em- ployees had expressly rejected). Endres also instructed his supervisory personnel that the Company would con- tinue to recognize and deal with Local 57 and not with Local 688. On January 25 and 28, Endres convoked a number of meetings with the employees. Those meetings were addressed not only by Endres but also by his supe- rior, Company President Rolland Boreham, who pro- nounced the January 6 meeting "illegal" since the Na- tional Labor Relations Board was not present, 2 adding that the employees had not had sufficient time to consid- er the "Teamster maneuver" and criticizing the "slip- shod" procedure, while informing the employees that the Company would continue to recognize the "independent union" (i.e., Local 57), but that in view of what had hap- pened a 1979 proposed pay increase could now not be imple- mented by the Company, but that in view of what had hap- pened "but perhaps in the early summer of 1980" (testi- mony of Endres). Endres reiterated that the Company would continue to recognize only the "independent" union (Local 57) and not the Teamsters (Local 688), and that "the case [is] closed." This Company's out-of-hand rejection of Local 688 resulted in what Endres character- izes as a "stressful situation." Endres concedes that at no time has any Local 688 representative indicated to him that any change is desired in any of the provisions of the subsisting collective-bargaining agreement-only, appar- ently, that Local 688 wishes to be recognized as the unit employees' chosen successor bargaining representative to administer that contract during its duration. Endres fur- ther concedes that the Company processed no employee grievances after January 6,28 refusing to process any '" There is. of course. no requirement that the tBoard conduct, partici- pate I, or he present at such meeting, or conduct such an election Cf .VL.R.B. Gisel Packing Co.. 395 U.S. 575. 595-h() (1969). 1' Following the described January 6 membership meeting and h allot- ing discontinuing representation by Local 57, Local 57 t'resident Carlton was designated as chief shop steward on behalf ofincomil ing Local 688 and Local 57 secretary Barbaglia as shop secretary, and all but one of the Local 57 stewards as L ocal 68) stewards. All were to carry on essentially the same functions as the had with ocal 57. Hoever. Respondent re- fused I recognizi e Carlton or ay f the others or to deal with a of them or i all ss y a an) time to process any employee grieaances pre- settled y hem, upon the ground that they no ilonger spoke for the erm- ployees (despite the employees overhelming vote) since he employe s sere still represented by Local 57.. Apparentlr, about 20 grievance% So pre- tenlted h' Local 688 have lot been procevved or pursued h Locul 57 One griesance Cumberland), which had beein presented y Robert Reagan on Januar 2 as i I. ocal 57 grie.ance, s as returned to Reagan as deiied on January 7. when Reagain had become a Local 688 represntalie: tiheit Reagan sought to take the denial further on Januar 9. Respondentl re- fused oii the ground that it as not presented b a rcognied bargaining/grievance representative. According to testiny of Respoind- ent's wiltness Aleia Iartold (a dissident elected as an "officer" of l.ocal 57 b th e rum p session of 10 immediately following the described Janllu- ary membership meeting), a grieance processe d bh Local 57 after M larchl 23 invol ing employee Rusan resulted in hi s rein statemenlt wilhoul backpa. but only L after Local 688 had instituted a court prcec tlig tl comnpel Respondent t to process the grievalice. grievance presented by Local 688, but that commencing in late March or early April it resumed processing such grievances as were presented by Local 57. The union no- tices of Local 688 posted on the union bulletin board have been removed therefrom by Denzo Ray Henry, Re- spondent's leadman elected as Local 57 "President" in the described rump session of 10 employees immediately following the January 6 membership meeting.27 On January 28, Local 688 dispatched a letter (G.C. Exh. 11) to Respondent by certified mail, again request- ing recognition and enclosing at least 265 signed dues- checkoff withdrawal cards from Local 57 and the same number authorizing checkoffs instead for Local 688. This letter was refused by Respondent and returned to the sender. 28 On March 12, 1980, the attorney appearing herein on behalf of the Intervenor (Local 57) wrote Local 57 President Carlton and the other last properly elected of- ficers and executive board members, that he represented Denzo Ray Henry and Alena Bartold, acting on their own and other Local 57 members' behalf; that his clients were "informed that all of you have resigned and/or abandoned your elected positions . . . on or about Janu- ary 6, 1980"; that a "membership" meeting would be conducted on March 23 "for the purpose of electing offi- cers and executive board members to fill the positions vacated and abandoned by you"; and that at their option they could resume their positions and "fullfill [sic] your constitutional duties . .. by a letter or note to that effect posted on the company bulletin board . . or by letter to the undersigned or by any other means that will so advise the membership . . . prior to the March 23, 1980 meeting," barring which "other members in good stand- ing will be elected to fill the positions that you vacated" (Int. Exh. 1). This letter evoked no response. On March 23, 1980. at a meeting of which a written notice was posted on March 13 (removed the same day and reposted and again removed, and then not again re- posted) but not mailed or otherwise given to any employ- ee, concededly with no required quorum present, attend- ed by perhaps as many as 40-out of about 421 unit em- ployees, or less than 10 percent-persons whose identi- ties or voting eligibility have not been established, 2 9 without observing required nominating procedures or balloting integrity in any way comparable to that ob- served at the afore-described January 6 membership meeting, there were elected as "President," "Vice Presi- dent," "Treasurer," and "Secretary," respectively, of "Local 57," Denzo Ray Henry, Alena Bartold, Ray Seiter, and Nola Sanscie, as well as an "Executive Board" (Irene Dols took herself out of contention, other 2 Credited unconlrorted rebutlal testimony l of Cooie 2' According to uncontlrosirl id cstim on of .Local 688 B usiness Rep- resentative CteN. in sicw of the "uihapp[iiess]" of unit emplo'ees coincerning the Cotpal ly's continuinir g to deduct from their p union due, or l ocal 57 L hich they had rejected as their bargaining represenla- i.e, around March 21 or 22 Coonic> rnailcd to the Coimpany onl the I ocal 57 checkoff reocafti lon cards. thi, li me by regular mall. shich ha, i(oi beeh n reltrnI d . id ii firther dtl, dedictilns C.ere mliade: see. how- e'r er, in/ i. fn 3)0 IIt mid-April t19 8' according to Cooiey. Local 688 he ld alitos 3)8t bargaining authoritiion cards from the unit emplo ee, -" Also ilthoiil ati dispf la of meibedhip crds or checking id entities: C fn 1 5. s pra 1332 BAIDOR ELECTRIC CONMPANY than serving on the "election committee" and to "swear in" the new "officers" on April i). On March 25, these persons notified NFIU National President Rettig of their "election" and assured him that they were "working very hard to regain [our] independence, which has been in jeopardy since January 6, 1980. hen a vote was taken to disband our Union and join Teamsters L.ocal 688." and "requesting the return of our Charter" (G.C. Exhs. 12A and B). The "charter" was returned by Rettig to Alena Bartold. During the hearing both Respondent Employer and Intervenor Local 57 declined to submit the matter of representation here for resolution through a Board-con- ducted secret-ballot election. And so the matter stands.: " E. Applicable Legal Principles: Discussion and Resolution o'lIssue This case involves the right of a bargaining unit of em- ployees to select their own bargaining representative, contrary to the preference of their employer; more spe- cifically, the right of employees to substitute one bar- gaining representative for another during the term of a collective-bargaining agreement, contrary to their em- ployer's and their unwanted bargaining representative's joint insistence that the employees must be represented by the rejected bargaining representative, favored by the employer. until at least the end of the term of the agree- ment. (See. in this connection, fn. 30. supra.) I believe and hold that under the circumstances here shown the employees have the right to make such a substitution. subject only to the condition that their decision to do so has been arrived at in a reasonably fair manner reflecting the free expression of their desires. Since that require- ment has been amply met here, there is no reason to con- tinue to saddle them with an unwanted representative contrary to their wishes, the choice in that regard being theirs and not their employer's, and there being no right on the part of their rejected representative to impress them into a continued membership they no longer want. "' Except that on September 2. 1980. subsequent to the conclusilon of the hearing I granted, without opposiion. the G(eneral Counel's August 22 motion to recopen he case ad consolidate it for continuled hearing wsith Case 14-CA-13915. in hich the Regional Director on August 21. 1980, issued a further complaint. alleging that ntwilthstanding the prcei- ous hlstor and the hearing of this case, on August 8, 198,1. Respondent Employer had. in further siotation f the Act (cc. 8(;n)( ) and 12)). com- mencing in June 1980 aided and assisted L.ocal 7 hy negotlaling and en- tering into a necu collectie-hargaining agreementl with .iocal 57 efft'ci e October 1. 1980, recognizing it as the eclusise cllectise-bargainiing rep- resentativc of the unit employees notwihlandillg that it no lnger reprc- sented a maJorit) of them, and also (Nosember 6, 18(I. motion to, atrnend complaint) by rendering financial upport lo il hrough hecking ff. de- ducting. ad remitting dues to t.ocal 57 since Jlury 6. 198I . from all of the unit emplhiyees' *ages. I el this reopned proceeding down for con- tinued hearing on November 17. 198). On Nosemher 13. 1980. hoxsever. I as informed that the parties had entered into settlement agreement sviding the ine% colleciisc-bargaining agreement and the due, checkoff and under which Respondent agreed to return to the unit etllphloees, all "dues" checked off anld deducted h Responlent front it, cmpl, ccs' "sages fr Local 57 ill 198() O() Noenmhber 21. 198(O., I apprs\cd thai agreement, .secered that case from the Ilntant ca.se, and adjurcd that caw .e,, dic pendinlg compliance ith the seltlenlent agreement isec ;t- tached "Appedix A") [()mitteld from puhlica;lio.l r he foiregoting fcts are recited i)rltl for historical purposes. The setllcnmell ha1 plased ro part in a) Fildig. cotncluiotn. r dternmillnliio made in IIh i istanit cas Without undertaking the impracticable and unnieccs- sary task of reviewing a host of readily distinguishable cases involving proceedings to amend certifications. union mergers, consolidations. successions, and substilu- tions,:" the legal principles governing the situation pre- sented here were stated b the Board in Quemetco. Inc.. a subsidiurv of RSR Corporation. 226 NL RB 1398 (1976h), il which, like here, the respondent refused to bargain with Local 986. with which the unit employees had voted to merge their own independent union (Quemetco Service Union or "QSU"). There as here, the unit em- plovees had clearly manifested their merger desire pursu- ant to their own administrative procedures and in a manner consistent with Board standards. There, as here, the respondent employer nevertheless refused to recog- nize its employees' new affiliation or merger or to bar- gain with their representative. There, as here, the re- spondent employer raised the objection that the succes- sor union was not the same bargaining entity as the pred- ecessor union and that there was no "continuity" of rep- resentation-an argument which appears to fly in the face of the facts here, since here Local 688 displayed an immediate and seemingly unprecedented assiduousness in attempting to represent the interests of the unit members, with Respondent Employer seeking to thwart any "con- tinuity" in representation. In holding Section 8(a)(5) and (1) violated in Quemetco, 226 NLRB 1398, the Board quoted from its earlier decision in Newspapers. Inc.. Pub- li.sher.s of the .4ustin American and 4ustin Statesman, 210 NLRB 8. 10 (1974). enfd. 515 F.2d 334 (5th Cir. 1975): The Administrative Law Judge's decision rests on a meaningless technicality which totally ignores the desires of the employees involved and Board precedent in this area. We would adhere to the Board's consistent policy of honoring the desires of employees pursuant to Section 7 of the Act. which clearly grants [him] the "right to bargain collective- ly through representatives of their own choosing." An employer has no right of choice. either affirma- tively or negatively, as to who will sit on the oppo- site side of the bargaining table. There are reasons why the Board has not accepted and should not accept mergers or substitutions of unions: but none of these reasons are present in this case. There is no question here as to the true desires of the employees and no question with regard to the validity of the method by which the employees' desires were made known. Accordingly. we will find the violation as alleged in the complaint. The Board also commented (Quemetco. supra at 1399) on arguments for some reason re-raised by Respondent in the instant case (Respondent explicitly takes on the Board to disagree with its Quemetco decision, which R- spondent flippantly characterizes as "aberrant"): Ihus, for xailple, im \ 1. R H ( utti .Sigt (otJp Ar. 45 1 2 d 532 t11l Ci1r 10721). tolal inlike Il sIiUl.tilonlt herr'. tCrC sk.i lo h 1. ing 11ha the nil cniplo ees ld , oecd to scra;p their exitrinrg h.lrgining lepresenttitllc e a ind } o h ,ilt. a differt lrtituion ai their hrgaitting rcp- recntlllc See f 42. /u/ruL 1333 DECISIONS OF NATIONAL. LABO)R REIATI()NS I()OARI) All of the factors upon which we relied in the Newspapers case are present here. As found by the Administrative Law Judge, the procedure followed in registering the employees' desires conformed with the constitution of QSU and with the require- ments of the Board with respect to registering the desires of the employees. The vote in favor of affili- ation with the Teamsters was unanimous. To refuse to give effect to the desires of the employees would amount to giving the employer a right to veto the employees' choice of a bargaining representative. Speaking directly to the "continuity of representation" contention (which, as indicated, seems inapplicable under the circumstances here), the Board pointed out (id. at 1399): [W]e disagree . . . that "continuity of representa- tion," as evidenced by keeping the same union offi- cers, is of paramount importance in an affiliation case. It is, of course, a factor to be considered. But where, as here, the employees unanimously elect to affiliate with another union, we are much more con- cerned with giving effect to the employees' free choice of bargaining representative than with the so-called "continuity of representation" which might be disrupted by such election. For it is the employees' freedom to select a bargaining repre- sentative of their choice which is of paramount im- portance under the Act. Furthermore, we note that none of the unit employees has complained because the officers of QSU do not presently hold offices in Local 986. Indeed, the record shows and the Ad- ministrative Law Judge found that "the officers of QSU simply wanted to get out of the union business .... " Besides, Local 986 has made it clear to Re- spondent that all contractual commitments made by QSU with the Employer would be fully honored. This commitment, in our view, is the only element of continuity in which an employer has a legitimate interest. Still another contention raised by Respondent here- namely, "contract bar" as an excuse for its refusal to "agree" to its employees' substitution of their bargaining representative, or that a technical "QCR" (question con- cerning representation) was presented-was also ad- dressed and answered by the Board in Quemetco (id. at 1399, emphasis supplied): [T]he Board has repeatedly held that the strictures which it imposes on its own election proceedings are not generally applicable in proceedings to amend certification, or in proceedings, such as this involving employee affiliation elections. Thus, the Board'v contract-bar rules do not apply in affiliation elections. Even more recently, in A'.L.R.B. v. Samuel P. Katz, d/b/a American Mailers (Plant No. 2). 622 F.2d 242 (6th Cir. 1980), in enforcing a Board decision 231 NLRB 1194 (1977). reiterating the principles quolted above, the court:"' stated (622 F.2d at 243): [T]he election procedures Aere adequatc. The record shows that the employees had ample oppor- tunity for discussion concerning the election, and the notice of the election d as timely and ade- quately given. \'hile we cannot approve of the i- formality of the election procedures, " it does not appear upon the record that individual privacy was invaded by the method employed, that any employ- ee was prejudiced, or that more formal methods would have achieved any different result. There was no evidence that the company's bargaining ob- ligation was significantly affected by the merger and the substitution of Local No. 4 officers for Local No. 12 officers. This Court has not adopted continuity of repre- sentation as a standard. The Board stated the proper standard in its opinion. that the Act grants employees the right to bargain through representatives of' their own choice. As long as that choice has been Jfeely made and the employer is not prejudiced. the employ- ees' preference should he recognized. [Emphasis sup- plied.] See also: N'ewspapers. Inc.. supra; A'L.R.B. v. Commercial Letter, Inc., 496 F.2d 35. 39-42 (8th Cir. 1974); .Vew Or- leans Public Service, Inc., 237 NLRB 919 (1978). "Continuity of representation" means continuity of representation of the unit employees for collective bar- gaining, an ongoing process even during the contract term, involving the myriad chores of administration of the collective-bargaining agreement (such as grievance handling), on behalf'ofthe employees, for whom the Act's protections in this regard are intended. It is of little if any legal concern of the employer who its employees' representative is, and neither the employer's place to act as the vindicator of his employees' rights where they choose to have their own preferred vindicator (cf. Frankfurter, J.. in Ray Brooks v. :.NL.R.B., 348 U.S. 96, 103 (1954); Burger, J., in Local 57. International Ladies' Garment Workers' Union. AFL-CIO [Garwin Corp.] v. IN.L.R.B., 374 F.2d 295, 308 (D.C. Cir. 1967), cert. denied 387 U.S. 942 (1967); The Washington Post Compa- ny, 165 NLRB 819, 826, fn. 42 (1967), nor to spurn their substituted bargaining representative as "persona non grata" (.L.R.B. v. Signal Manufacturing Company, 351 F.2d 471 (Ist Cir. 1965). cert. denied 382 U.S. 985 (1966)). "The employer may neither dictate nor control the makeup of his employees' bargaining representative" (Canton Sign Co., 174 NLRB 906, 909 (1969), and cases cited, enforcement denied on other grounds 457 F.2d 832 (6th Cir. 1972)-see fi. 31. supra). What from the em- ployer's point of view is the "worst" bargaining repre- sentative may from the employees' point of view be the " It is to) be Inoted that this cas e aS dcided hIy the ante court as decided :I..R.Ra.. Bear 4rcher. Diviion oj itlor Comptomlctr ('aorpl - ratiorl. 57 F.2d 812 {0th Cir 1)77). and NV.. RB.. v .1 ' Winchester, Ic,. 588 F2d 211 (ht61h Cir 1978), upon A hlch Kepolldeul relic'. here : It is fair to ay that cmipared io tie elcctiron procedures used in Ka1z. those ltilized in the inltilt ca1c verc aI paraigon o fornmalit 1334 IAII)OR ELECTRIC ()lMP'ANY "best." "An employer has no right of choice, either affir- matively or negatively, as to who will sit on the opposite side of the bargaining table." .Newspupers. Inc.. supr at 10. "Metaphysical arguments as to the nature of the entity with which we are dealing should not be permit- ted to obscure the substance of what has been done or to furnish a smoke screen behind which the company may with impunity defy the requirements of the statute that it bargain uith the representative that its employees have chosen." .. L.R.B. v. Ilarri.s-Woodsvol Companl ,. Ilie., 179 F.2d 720. 723 (4th Cir. 1950). Under the circumstances here shown, to fail to give effectiveness to the unit em- ployees' decision to substitute another bargaining repre- sentative for one they regarded as unsatisfactory would not only abort the employees' wishes and "amount to giving the employer a right to veto the employees' choice of a bargaining representative" (Quemetco. supra at 1399). but would also under the circumstances shown cancel out any bargaining representative for the employ- ees involved (see, e.g. fri. 26. supra), contrary to their wishes-as well as to foist upon them a rejected, unwant- ed "representative" and subject the vast majority of the unit employees to control and rule by a miniscule rump group of dissidents favored by the employer. Such con- sequences would, in my view, be thoroughly inconsistent with and intolerable to the basic policies and purposes of the Act. So long as employees' freedom of choice of bargaining representative-a declared cornice of the Act-is to be subserved, "continuity of representation" is the employ- ees' concern. whereas continuity of contract provisions is the employer's (as well as the employees') concern. Just as the employer has the right to change his bargaining representative without dictation from the employees, so do the employees have the right to change theirs without dictation from the employer. Neither has veto power over the other's choice. The employer does, however (as also do the employees), have a legitimate concern that. in case of a change by the employees of their bargaining representative, the provisions (other than designation of bargaining representative) of any existing collective-bar- gaining agreement be maintained. So long as the employ- ees' newu bargaining representative, as here, assures that and is willing to assume the obligations of the contract, the employer has no right to insist that his employees may not change their bargaining representative.:" As for the procedures observed at the membership meeting on January 6, although they were not-nor need they have been-carried out to the last tittle of theoreti- cal scientific strictivsinmu, they were fair and uninfected l ma h argued that ill cmllcr l may h aidx crl alffclctd Uhcre the eiiplo ce',' nci'. hargaining rcprc.,cnliiai. ha, It's, fiarcili 'olidil thai their foriner rcprct'iltallix' c trl Ihoutih i ch lllclloIl 'kould prc' nlabih 11otl ustlif) aii cllplo!cl' rct;ual I(I rcgiill l i o iiicr l IIr ll ; coltraixcl ilh the ilitlll) dcxigtillctl rcprc cntatlit x Altlhoilgh Io i 1le hoxuililg or laim ll .a n dc hecrc i . ill a,, c cci ihcrc. i herc. the collcc- li.c-hargaining agrccmnl , nilcl (on .i i lape (i of coilaliioial allit onl th prt of ither of ihe coliltrilcing pariie, iI I 1he c C o %uh iillIlilO l.f a clxcx hargaillllg lcpr en taClii c. tie pI lili i i io reachI ed illld nCL Iol hi dialt, iil N lti .nic iokcil, thL cmposcnr xuhxliluuIIig a IucccSor pier halp Ic %Loi clI) I1 the Coliltraltil lJi ligliol l iil(l rcq( ilrCd pcrIl- - ,iicc1lll tihrctllder No conl tnlil l o1 rcach oJ 1 ll \ f il' x1ixallilI\ prox iioli ofl Ihc collicci c-hargailing iagrcciiiL i11 ol CIlil r id c i n Idti hICrcill with irregularity. Ample notice of the meeting was af- forded, there was a large attendance. and all who wished to he heard were permitted to speak. Adequate time- over 2 hours-was allotwed for discussion and questions and answers. The identity of the participants was noted in a signed attendance list. subjhect to verification. which has in no way been assailed. Balloting was secure. utiliz- ing a locked ballot box. Tellers were used to count and cross-check the ballots. and the tally certified in writing with ballots retained under lock and key for verification. No objection was voiced to the conduct of the balloting nor carl any reasonable objection be asserted thereto-it wvas far more than has been sustained as adequate in other cases. Other than the votes cast at the January 6 meeting. indicative of substantially adequate support for the substitution of bargaining representative, no substan- tially credible evidence has been presented by Intervenor or Respondent to establish the degree of any alleged em- pioyee continued support for replaced Local 57, in con- trast to the impressive bargaining credentials held by Local 68. a6 Nor is there any indication that-as is not unusual in situations like this-any challenge has been mounted or pressed in any state or Federal court to the internal validity of the procedures followed or the ac- tions taken at the January 6 meeting, or that the conduct and outcome of that meeting was fatally flawed under the constitution and bylaws of Local 57 or for essential unfairness. Respondent raises a challenge in the instant proceeding to the outcome of the balloting (described aboxe) as being inadequate to effect a change of representative be- cause it xsas less than two-thirds of the entire unit mem- bership, although it 'was concededly carried by more than two-thirds of the large number of employees who attended the Januar 6 membership meeting. To begin with. whatever the "2/3 requirement" in the Local 57 constitution and bylaws (Resp. Exh. 2 art. VII. "la." p. 5) may or may not mean in connection with the liquida- tion or dissolution of Local 57, there is no such require- ment for the designation (or substitution) of a statutory bargaining representative. The Act"7 requires only a ma- jority for that purpose-a requirement amply satisfied here;' certainly that statutory provision cannot be oer- ridden or revised by an inplant "independent." or other. union or an employer so as to convert the legislative command to the substantially greater stringency of a 2/3 requirement which Congress was unwilling to impose But, even beyond that, in my view the "2/3 require- mert" of Local 57 was itself satisfied, since the substitu- tion of bargaining representative as accomplished by more than a two-thirds vote of the membership at the duly called membership meeting. The provision in ques- tion (Resp. F:.xh. 2. article VII, "." p. 5) speaks of "al affirmative vote of 2/3 of the membership a quorum Cf. c g . .1. R h A t:. ruprra. I" 11 IlaI he .i llicrcst. ill iiis ctIIlCCIOItl. 0) liotl' Itist Rc'Ipoldclitl a x ll a III IiLrxclonr uLluilig ihelt IiaC.rig IcClItJil iII x iiti.aioi piii .ira.t I lroci I, II rqlll Cllllll I1lilt t i ll iirirl h ,1-I IIII\ 1II Ih I .1 riliall Bi.ilr t. Jl tll ' \ I IB \ (;,/l/) AzilC (,i ;is' t 5 i 51. { {W) { 'X t I )) 1 3 5 DECISIONS OF NATIONAL IABOR RELATIONS IO()ARI) being present, at a special meeting called for this purpose only, notice of such meeting having been posted for fif- teen (15) days prior to voting." The prior notification and the special single purpose meeting requirements were clearly met. Since the quoted language speaks of "a quorum being present"-which it unquestionably was, and there being no contention to the contrary-the clear context of the "membership" wording is in relation to those members present at the meeting at which the "quorum [is] present," in other words the membership "at a special meeting called for this purpose only," and not of the entire membership at large including those not desiring to attend notwithstanding proper notification. Cf. J. Ray McDermott Co., Inc. v. N.L.R.B., 571 F.2d 850, 856, fi. 5 (5th Cir. 1978), cert. denied 439 U.S. 893 (1978); toamilton To00ol Company, 190 NLRB 571 (1971). Were it otherwise, the organization could never be liqui- dated or its assets distributed unless no less than two- thirds of the entire membership voted in person at a meeting called for that purpose, to do so; even though, notwithstanding concededly adequate notification of the purpose of the meeting, they simply chose not to attend-an interpretation which seems to me unreason- able and contrary to the plain meaning of the words used. 9 Various other criticisms leveled by Respondent and Intervenor at the conduct of the January 6 meeting are too insubstantial to merit discussion."' I declined ;at the hearing to allos tCstill(ony fronm alleged Imcllhels of te riginal drafting onmlittee of te .ocal 57 constielutionll and h!l l and Ihers ats to their llnderstaidig of Ih meaning of the proi- sion" ill questi on I so ruled Ifr stceral reasons -hetaclils I Wa; of tlt iCv (a', Stiated aboe) Ihlat Ithe (Iques tion o f stlbshtitLtion I hargaininig rp- rescntati e did not requir a x o-tliirds sole f Ithe cltire mcniltirship hut only a mal orit 5 te: antd bectause I as of the further icv Ihiat iii all' evyent Ihe language in quetiolil as sufficienlly plail as to ncalt tI o1- third of tie membnhership "alt ia special metcling calletd for this prpose only" - "r quirment"lt xhich xx as satisfied hby lh halloling rt.suls here. and Ihat I did lot require aid v ould ot he assisted by a lotle> of la expert," (n all sides) ads ising mne ho. to interpret the laniguage il ap- plicalion to the siltuation aild legal issue ils olsd. A special appeal hb Respondent imployer frontm his ruling, which was supported h the (ieneral Coulnsel aind te Charging lParl (CiG.C. xh. 15 aid C.t IIxh 6. it. ). resulted il ;a I;oard deterninaltioni 11ii April 24. ItO. dlenlyiing fie sp- cial appeal swithout prejudiice Io Responldeclt' right iI rnlcss its psioit in any excepti nls filed "' Itlis coileciotll it is to hbe loted that sarious itf Ihe I cal 57 dissi- dentc fcv (c.g. Irene Dols ) llho Itestified, al Rcspondelt Enlplo)ter's msil- llesses. al the hearing cxpressl i dicated Ihal the nlly fault they futid v ith the hallotling as tile fact tIat it as ti nlt carried h! t o-lthird of the trltir membnhership, i mtithstanding that it vas carried hy o, er itv o- thirds (of the large number in alltlendance at ith nmeetinig Rctsponldni's laud Itersvenor'l ) colunslel hov exer. raised additinal mailters. vhich i mn) icx are \sholly il lsbstantial rhesc ill he hricl mcilionced here. I find that he adance nlofilicafiein ras clearl) adeqiatle. reasolnablc. ad ffeetCCIc s Itl lfiming. xlxording. aild nlethid Of conlnlll- nicatiol I ind that the x ordiig "Tcanser, nmeetinig oil at hotel mnar- queec was neither iprolpcr or in a ay isleaditng, lor i ther ay evidence that allhxbod) , Illin isled: n1or do I pcrccie that payVlCellt for the mnctillg place b I ocal 8 xais iunlaful or iliated lle niletting indeed, it i a sax t ings f titoncN for local 57 and it, nicr ers. I lind that te ltigtl al nature of Ihe discussionl alld the enllireC miClig aboit 4 hours. or oie-half day i a Sunida-y x..re ienltirely adequate and falir I perccisc nothinlg xs ronllg l I tic presence Of' l ocal 68h rprescltl- itie tduring te prelimitar tlis ii tio ad qtilc ion-anisx.r periid re- cedinig tic halloting. it being clear ail udisputed thalt i\ all left bforr tile ballotinig I fild :hal te allendanctic-ta.kinig measures, itlh igltd lists subiject t erificaion. andi tile recognitiot o sitters. xxr atequatte. fir. aid stulfficielt to insllr' The Itcglit\ if le ballo t hlCTC is lo c idctce Under all of the circumstances shown, the credited proof establishes, and I find. that the design, notification for, methodology, and procedures followed at the de- scribed membership meeting of January 6, 1980. were fair, reasonable, proper, and lawful; and that the outcome thereof should not be nullified for any reason involving the manner in which it was called or the procedures under which it was held," or upon any other basis here established. Well-intentioned though Respondent Employer and the small group of Local 57 Employer "loyalists" may be, in my view, considering the meticulous fairness of the procedures observed at the membership meeting of January 6, within the framework of the Act's basic pur- pose of permitting employees to select (or retain or re- place) their own bargaining representative, neither the Employer nor the small remaining Local 57 group should be permitted to impose their will upon the vast majority of contrary-minded unit employees, who have hall so much ,as oie ballot xas i properly cast. by aly person solt enti- Iled to sole. or that more than tne hballol as cast by a person. I Finld hilti tec recy Oif tIh hallos cast xias adequatel1 maintained. ad that Ihelr scc ri!y for Vrificationl x i; asssurced I an Illluiniprcssed by Rcpollrlt' t/Itllers tIr'sn c lontetilloi that there xx as an eces i of blank ballots printled or dislributed. ince there s 1ino prooxf hltalsoever that any such hlanlk hllot x.as acluall> used for- oling. Rcspolndent's/lttierenllor's criticist bolt l)enlo Ra tlctinr beilng dentied the ue f the micro- phon)1e and/l'r pdium is insubstatial anhd x ilihout merit. since such a practice if requeietd hb) others is xxell. clnderichng hlie cr I;lrge lnumbter present. \xdi11il hailc presetlIId LIIIutecessar alld probahbly hinurmoulnlable tnechanical difltficultics d x mould haxl prolonlged the meetinig beyolnd reaslonlable liti ii Clltirallc. i xCe 11 as substatlialll reduced the time iailab l f r 1 eLI.Ii iII i Id illl e\rs. and also renlox ed the presiding chairilan if Ithli iecting. I ocal 57 Presidentl Carliton froin controll there- il', pttiialla e lIdactig ito hellaiTl xhat a a orderly, fair a reason- abl! decoroils ICe ling Iur lhernore. adnitltvdls. Denzo Ray lenry s;is Toi tiCUlied lhc flootr. but,. itl tlh coiitrar.!. permiltited Io sal, hat he ihed to sia itl holt itnerrilion fromi Ihe dilis. iterrupters. or heckler being ilentced from the dlais. a nd credited exildcncc eslabhlishes his re- marks. dlix eretl i a teltoriall aild sonorous xoicc hich carries wtl1 (is ohbscred by tin at he hearing). xxcre heard hb the audience. I also relct, as Iartakting ofl Iie natre f he thater of the absurd. Respondentt x\ itlcss arid pur lortredl "ne'" if'f'icer f IxLocal 57 Alena artold's conten- tin (siupported b N:FIL National residentt Rettig) at te lichearinig that all tlllil mnelhtbrs f I ocal 688 continue to i c mtembers of ot;al 57 even thougtl Ihcy ha1 l expressly indicalted he ilo lolnger are N or d I regard tle presence. at the Jaiiar) 6 Ileeting. f Mary IHarbrc a uit iiltmber of allgedl eqiCqli ocal Staiias t iocal 57 mtmbhter itititig or igrifi- canlt to It Oitclcoe l t ereof. since shIe contccdedly nleither regittered nor oteed a;ll I thlr i no sho.xing that her presence .a, other han inertl! nonparicipa c. alld he "questuiolls" if any raisd threb hciig il best i/i ititlllt,. " il \\t llie Jitllilar6 h Iletltg lll is l t I loar)ilrd-condcted ecrct- halllo electioll. as lltilltd (:ltt abosI thlcr is no rtqtiretenll Iill h Actl or elsexhltre that OIN aL lioard-conlducted lecction ill suffice Cf .\'. R. '. (G': PaA it ( o., ipra: . 1..B1 \ 'itirpxpi. iii ittr Ira.r, lunitirs Lo/.u/ 413 \I..HR.l.. 487 2 d 1091() 1IOh (DC Cir I 73) Qtuctn't'. Iupt/rru (Again, i his COilltectilut. it is noited that at ie ilstlait hearing Rspontidenlt illnplh er a d le 1t1hler llienor sptiried tihe siggestion hb rile that ;I s retI hallIlt he conduclltd undller I;tard aullpices. ad r- fusid t il agree thereto I h eiC c il ail To cdall itntitnl to this is il factor \x nIt'll! J if c.tlsidration inl dleterllininlg the' boIn /i/cls O'f RKcpnllt li's/tittrs Cellx(rs fIll1-lilllilg \xtilh the tilg proctduretis et1n- ploctdl it tIle Januar> 6 itecing t Ilirlher tihle that ia it% Li rmitnp "clecttons" Of later i IIli. a\ o J iLlir 6 ;I. \ell as i March 23. Ittr- tl tIr di Ll It .x. ii C e It c I ls t I ll i/llltg Iht' saiftcg.r s tip rlt e it il' 1iiall i t etlitig I Jltilar i. besixh ets flililg t' coillpl x i its ,ix I hi lx s ' r 'tluL elCIeilt ii \ ar is i 'pcctis ) 13 HALDOR ELECTRIC COMPANY overwhelmingly opted for a change of bargaining repre- sentative to Local 688. t2 2 To e sure. Respondent i its exccllent pos-trial rief. el a ll- tcrenor. cite socme cases hich hex indicate go the other vxi II is true thal sonime of Ithlse declsions are n readil dstinguishable on superficisl analysis. specificall) those of the hird Circuit. resultillg i it smcle · hal murky decisional pool (Cf. e g . the Third Circuit Court of Appeals pro- nouncement Ihlta a HBoard election s a precondition to etplioier ohliga- lion o bargain %khere he enplosLer h not s tolated he Ac (t Oil Comnpanc of PeYIIs/anIIt a x . L. RKl. 57th F.2d 553. 55t (3d Cr 197$i). seeminglv cntrary ititi onli to the Act (Sec ((a)) but altIs to Ih S- preme Court ( ct rrapru. illd prior Suprenle Court decisions therinI cited). While. needless to sax,. I entertaltn deference fr the x le.s tif aN court of appeals. even xx1 itn the fraille f referetnce if m) basic obhliga- tion to adhere to oard decisions to the cttrary of court of appeals dIe- Cisions uacquiesced i h the Hloard util thle ctnflic i set .t rest h tilLe Supreme Court. certainly that deference is necesarily subiJect I the overriding supremacy of decisions of the Supreme Court itself (f isiwtl oupra). Nolt ilthstanditg all if t[his. hos eser. a discerning eye coc ik Lcd the large ody of significantt 'y arialit cases inslrlIstg iLnioll rnierger, af- filiations, disaffihations, rea ffitatitnu,, thdrasx als. sccessions. silstt- tions. replacements. proceedings to amend certificalions. etc. idicates the "ctonfict" may be more apparen thall real These cases ilxolrce such sidely di erse sit naions is union applicatlion fur certification anteld- ments Itlo a1s here): employer dislike for .t particular lnioill ind prefer- ence for an in-house. "ss, cetheart" or toher more read il controllablehi "labor rgami/tattou' (as here) or ecemingi\ coercise or restraintfiu CLnl- plover bults that tile epltixees tad better go in ite direction rather Lthani the ther (as here: "you hble it' employer failure It* implement xx.age increase cupled x ith pinted renilnder to employees hb. etc.) m- ployer uns illlngness t accept the emplolyees' demostrated choice sif bargatnillg representaltie (as here) e pleor ullivlligne t suhit l i a HBoard-conducted secret-halloi el ctiol of hbargaining representatis . iti still ay claimed doubt i employer's mind (as here) a small niinorri splinter grotup oif employee uilling lo abide by the expressed .ill of the clear majorit) of eployees concernin g their choice f halrgaining representatleC as conltemplaled by the Act (as here). atlenlpled sIring- arm "lakeover" or "raid" upon a ''xeak" unitil by ait "trong" union against the will of the cak" union or tile bargaining unit (riot a here). closely divided schism in a hbargainig uit (n itrs here). crude "electlonl" not meeting ilrtinal standards oif fairness ad tus uacceptable as a measurenent f the unit mpisxec' desires (lOt as heret. etc. etc II is apparent that the presence r absetnce if alns such faclur(,r) ma or should alter the outcome of the particular case presented fr adjudica- lion. Without idulging in te luxury of all exlcnsi e rex iexx of the mlassi5e field of factually disergent cases r the edious enterprise sf shelling r- iotInei decidendarurn from dicta in the plenitude of cases to he found. what emerges from a discriminating analysis of the large mede of those cases, particularly within the more sharply ficused referential frame of the oard's mst recent \plications sif its guiding principle, le.g. Qure- ineico and Katz. uproa is that the approach to each case must. because sif the infilitude sif factual sartations. necessarily he ad tisk and the parlicu- lar result cast in terms of the particular factual cngerries showu.\ When this is carefull) done, decisiins x hich seem to clash are almost insart- abl). if not allisgether. rconcilable Where a bargaining unit of emploxees, decides that it is iisatisfied xx ith the qualilty f its represenation. r that it would improve the tioe of its bargaining muscle by changing that represenltatin r affilsatilg 'xith a larger abti organization. it is squarel xi thiln the statutory scheme th;at II may exercise the right its change that representation: proitdeal silly (as here) that the unit emplyvees are given adequate Intice ail ipportluni t to express heir desire And in that case it mailtters nt whether te less bargaining represntatii e I% a smaller ir larger labsir sirganilatiltln. ince the Unit emplossce culd h e selected it t begill x&ilt I lasrg nmade their free choice. frnom then sti it is tisl the emplosrer', rightl io i def tihe unit's ill and insist that it he repress-tesd . oir coitnue to be repreitcdll, by a iargaining rpreelIalt sce the unit ht, ildsleated ili Iornger rpreseit, it For the employer Io st Insistl ti nuder he circunlMslanCes here hoiisn. and ii, refuse i h;bargain it the cnlployce' d]\ desigticd successor represtulaltie. coniilutte, ;i rfusal it hrgair i rldfl f.11l11 1' eqllrCd by the Act Applying the d ho IicsuaIl pproach \klcl I hclieC' is Teqtre) iII cases if this pe. hil hbcrung lai ishly nndful f the legisiatisclx le- clared purposes of the Act I ciiio brig nil yself behlliese ti !hIe Act ia nl erlldicd. or ishat its core purpiiC oif pacifical Isn Of tldisuirial iIrest osiuldss he crxicd. by) pcrinttl g, h ]1iird or Cousrt fiat. a dissildent r rump group Of i0 lattcr perhap, i niaty .1i 4t) enpioee i a coliectise- hb;argallnllg tiIt f sIcr 4(X) i/ air i-bise "lilcpc ndi'n abtor irgallia- ton cll lsc'ncl.c di fi r 40 ycL'; rs is thlie iitlly sind enltipls er-faxi-ored cntl itcc' repreeta' tx e- iargehs headed hb it, \iss it idman to rule the e listnr st t h ar e cr shod osf tIhc r.mainini g itrpoiry sc's. it lltll atl duig tl. si l. r-- vNh IhliItiglN centrar sote of a isa majoril sif li' unit at a x.cl-atlettd- ed iiectitig calteil fr Ihat specific purpose and surrounded x1tilt reati- sble safeguards. Undir these particular circu'ntallc'. in n ' xlcx it ill bcomen s rhse cmplyer IO ;issittle the' role osif te s tindicator of tile righlt if' its c-iplixcc-s xlherr e thle lalter ari colt rary 'i-nlltlsled (ifrln.i . iriq s 4 5 t S i al )3) it is orll Intiicrest. r C'r Ihe enmplocr Ii allcmnpt I, utnhorse its nmplir cc' oir-is si h l llr g L'clt II ICg le be tie11 C ''. tlslsl s; l n tilt O ' aa (.Slirlti J .tJ fuatri. lr-ti ~iSi. iiqru . 351 I l2d 471) ts Ilht c-iplocr Nsr. iIm nix \ icxe should hie snlill rump dlsiden't ciiqu Ihrough Boarn aid Iscoirt fiat hC eniablicd i arl dilsntanI:iC' and rtule ster itsnd represeti'" the ocr- x h lit nig co sraryn-iti ded maiot'o t stanip i'l ANct's orffic'ial approt hit on st sich i result iould. in nm ipilSun- -regardless li fue uch a es- stnia lls ic-ait ltels semantic ism . t luctsllsnc, or label as "con'it uItx sif repreiseltatiOn" (Itslt. it I% to he ti ed, cs l utnullt Of represe'tatills's: q s'ft' xIithat cOnItilutI Of rresit'% tnlsion Cart there be by labor organzatiltn re- _iecled. declared defunct, or replaced is o\xn temh .ers)-set the un- derllig p ies f the Act sits their head h resulting i empsyer i- sieasl sif empisiee selectn ( of the eplispee's bargaining represcntatxlce. alld nttllntt instead sif majlrlt re 'The very meaning of "contilnulx of eprcscilalio"'--a prasi rgtrJiL- Ls-icounlered i the declsions--is %hrsr cd ill amibigit atid x'agiclie fre barahiergsintg tnu hre has Cin- timtcs ad contIsiuei to he the same Although here. also. the cry sani ]ndid idu;as, ic. CarlIin and arhaglia) contlluued xilhout hialu t bche the hargating spokesmen fr the bargainltg nit. ecen that kind of "cton- tinuit "- cannot he required since. a, is xell known. bargaining spokesnmen not infrequentI change r are replaced during the term sif a collectixe agre-inttent b reasson of death. ihIsahilit. reslignalloti nisfeasance, noufea- sauce,. r ect in of different hargalitng nit officers. fficials. r bar- gaiinig spokesmten durlng the cnlract ternm. Hut xxhatexer it ma mean. "c''i lllUinity sif rpreientatlson" i''s a supporsed rquirenln.nt undelr lithe Act sufflicieltl Io trigger ior deactis ate the harzgalnling requiremenl on ile pr Of all emploser, calnnts mean "conllnUtly" of "recpresetntationi." fir the emplsrer' avanitage r at Its 5ll tsslenc ( here). a i represntlatxc" xx hose representali-c stalt s has bc''n s'.x/irs's rscie tcd, edi ts d and ni /ih- drwn spn he i/is' s -ri- s h /pl's's' fits' "r pres tatins -p urp irts II represcns ' 'thleI sIll ; llrxxer I Rcspssndenl's inuisience that conlract obligation s thrieatened. tat itrn such question is lhere i ixol ed ince the emploiees' oerxxhelmingly clected successor ['niun h cexplicitly expressed t, il- iention (c'5 eill i x trl ig). rebntffe l h i t e n cmplixr. t hsnsr the existi ulg contract: nor is there an) claim Ihal Ic flianciml stability of the uicces- sor, in affiliate of a large Internatioilal labor organilation. is e'ss han thait f its predecessor in-house ntiy II may. finall. he added that this subjectl-i .. administratton f he picies protecling employces%' rights to ttntranlllleled celectilon of their sxxn. unimposcd bargaiting rpresenlil- tsx'e under the Actlis sone explicily entrusted Cngress and ingular- Iy apt fr he natinal industrial rlation't plic' regulation sif the Borard based sin its accumulated data of gencratis, of industlrial relations regu- lalory expertise The record in this case replete as it isx tllh crisscrnossng elemennt ts of industrial relatlions strife insoi ng csnflict hbetcen t xiN unions. heir nalionas l and innt.ernatisnal parent organi/atilts. sclhsmaiic'al- I, didcd cmplosec'. ad ani emplover parial IoI a small nrut sot i one' side. apli demonnstrates thatl 'lr nmalnenallnce f that freedom frsm ur- densnome commnerce 'lo\sil g frirost labor lnrcst res..lutiion i rquired tso he cast iii ertns sif the iidutirial rea linss posliy expertise legislati sel entrustc t ad resuidtg in t lhe cloard. rather hain i narrowx technicat legallc terms such as thise xx hich might he applicable unsler rincl crnmon n lass .sonlracI colncepts It has repeatedly becen pnted oiut that ordinarl centract kais concepts arc not hodsl t hc tratsplained tilt' filid lit' labor relaisnot and labsor cstiraci, (J / (sass Comp(tasi- \'L R.,R 321 S % 332. 334 tq 44): % I. RB If & f OIdtshh-. ris. 377 F' 2d 712. 717 (21 Cir tl't7) \ . H \ Georgns E I.i/tt fat Sr- ag I. 373 Id 7 b2. 'til (ti t Cir l't a( f:u , 'nt ir rt V\:I...B. 327 2d 14 xl (uh Crr Ii4)4(: Co,,. "The egal Niture if C(',Ilccis se \ largainling Agreccn-il,, " 57 \lilh I Ri-\ I 5SX )). inld Ihcl Suipreinse (s rtu s regular y a nd conit c'lxJ ni'pealt iO poulri iI lhai suich tnfa I. rs sir' for (' lrC Iitlrd's pohlc'. dc'r' rnsrl tiuns , that cLI atoSris it' iri itiric i ls j'I% I t ISt s'fIiect Is sirrt.cessiry \\rli c , to hb sir-, si c ni plouXct Iis IiP.- righ ts ch r su sl i s ireM% ' it' ilL' s ll teriiti 'cni , of I shib r sau[ t1 e sist., its hI s Itir .h ssslLI1. ' ighl Il i 11n1i t i t hi s e im p jo1 i-i's C ritiiu, d 1337 DECISIONS OF NATIONAL LABO()R RELATI()NS II()ARI) It is accordingly found and determined that, under the circumstances here shown and found, when the bargain- ing unit members at the duly convoked January 6, 1980, special membership meeting expressed their desire to re- place Local 57 with Local 688 as their bargaining repre- sentative, Local 688 thereby in fact and in law became their bargaining representative; and that Respondent's re- fusal thereafter to recognize or deal with Local 688 con- stituted a refusal to bargain collectively with its employ- ees as required by the Act, and, further, interference with, restraint, and coercion of its employees in the exer- cise of their rights under the Act. Upon the foregoing findings and the entire record I state the following: CONCLUSIONS 01 LAW 1. Jurisdiction is properly asserted in this proceeding. 2. At all material times, the following employees of Respondent at its St. Louis, Missouri. facility have con- stituted and now constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All hourly paid production, tool room, warehouse- men and truckdriver employees EXCLUDING foremen, assistant foremen, watchmen, guards, time- keepers, maintenance men, office employees, sales, engineering or supervisory trainees, and all other clerical employees. 3. At all times since January 6, 1980, Teamsters Local Union No. 688 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has been and is the exclusive representative of all the employees within the afore-described appropriate unit for purposes of collective bargaining with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act. 4. Through (I) its refusal and failure, continuing to the present time, to recognize and give effect to the said bar- gaining unit employees' designation on January 6, 1980, of said Teamsters Local 688 as their bargaining repre- sentative; (2) its continuing refusal and failure since Janu- ary 6, 1980, to bargain collectively with said Local 688 at said Local 688's requests at and since that time, as the exclusive representative of the employees of the above- described appropriate unit; (3) its refusal and failure to pay over to said Union checked-off dues pursuant to the authorizations of said unit employees; and 4(a) its contin- ued recognition of and dealing with Local 57 and its pur- ported representatives as said unit employees' bargaining mllUst 'OIllnuc' to be scrcd h a bargaining represcntlie thLy harc re- jected aid replaced, an> more han h emploee have the right Io insist Ihat the emploer a;ly Inol change bhut must COtllinuc It) uilie his silc bargaiilig agent. rcprcsenlatlive, r anorney - or, indeed. that it remain it husimncss ( l'erlihe W orkcr, ,J Iericu v. Drli/ngton .Atfutljucrillnllg C'. In , 3801) U S. 263 (1965)). or .cvei tha a purchasecr of its husll s, nIcce,- ,saril5 he boind by the Iermis of it. colleciiye agreemecnt (Ilowordl Joiv ioi C'.. I Dv tr Io it. cal Joitll I:rc uicve Bcourd. HIlcl/ & Rc.llt rlll I:tl1- p1l)rc & Burtendcrs International I'nion. I-I.-C10, 417 S 24) (1974); Y. _R.B. Birn, Internalrincal Sccurlry S.ricc. Inc., 46 U. S 272 (1I72) representatives notwithstanding said unit employees' re- placement thereof by said Local 688 on January 6. 1980, under the circumstances hereinaboho e described and found, and 4(b) further nota ithstanding the improper and unlawful assumption and assertion of office and rep- resentative status by said purported representatives of Local 57 on and after January 6, 1980. Respondent has refused and failed, and continues to refuse and fail to bargain collectively with its e- '"Lyees as required by the Act. and has thereby violahtcl and continues to vio- late Section 8(a)(5) of the Act. 5. Through its said actions, set forth in Conclusion of Law 4, upra, Respondent has also interfered with, re- strained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act, and is continuing so to do, in violation of Section 8a)(1) of the Act. 6. The aforesaid unfair labor practices and each of them have affected, affect, and unless permanently re- strained and enjoined will continue to affect, commerce within the meaning of Section 2(6) and (7) of the Act.' :' Ttn- RiMtI)N In view of the findings and conclusions herein, Re- spondent should be required to cease and desist from continuing its described violations of the Act, and to deal and bargain collectively in good faith with Local 688 as of January 7, 1980, the date when Respondent was in- formed of its bargaining representative status: and to cease and desist from continuing to deal with Local 57 or any of its purported representatives or to check off from its unit mployees' wages any dues for, or to pay any such over to. Local 57, as of January 7, 1980. Re- spondent should also be required to accept for process- ing and to process and bargain in good faith with Local 688 concerning all unit employee grievances which Re- spondent has refused since January 7, 1980, to accept or process when presented by Local 688, and Respondent should be required to process and bargain concerning the same, as of the dates so presented, without assertion of any objection of untimeliness. Any wage change which Respondent has failed to implement because of the unit employees' selection of Local 688 to replace Local 57 (as announced on or about January 25, 1980, by Respond- ent's president. Rolland Boreham, as recounted, supra, and undenied by Respondent), if still not implemented. should be required to be implemented forthwith or to be bargained about in good faith retroactively with Local 688 and the unit employees made whole in respect thereto, together with interest, calculated as explicated by the Board in i: UW' Woolworth Comnpa,v 90 NLRB 289 (1950); Isis Plumbing & Heating Co.. 138 NLRB 716 (1962), and Florida Steel Corporation. 231 NLRB 651 (1977). Cf. Samuel P. Katz di/h/a American VMailers Plant No. 2, 231 NLRB 1194, 1205 (1977). enfd. 622 F.2d 242 (6th Cir. 1980): .4moco Chemnicals Corporation. 211 NLRB 618 (1974). Unit employees' union dues checkoffs since the date of Respondent's refusal to accept them from ' PropciL d fllldil gt c ot CHtiln, i d) dect.istol ] are aI Ci d ol lJ the C1It111 Ctoll/siei11 ith the 1r llltlic ., COi ls'It cI1 i,1 ll. 1 l tlCieiilc l Ftreti 1338 BALDOR ELECTRIC COMPANY Local 688 and the cancellation thereof to Local 57, as described, supra, should likewise be turned over and paid by Respondent to Local 688, together with interest cal- culated as above. Respondent should further be required to preserve and make available to the Board's agents. for analysis and copying, its records, foir such computation and compliance determination purpose. Finally, the usual notice to employees should he posted at Respondent's St. Louis plants. [Recommended Order omitted from publication.] 133)