Bernard Gloeckler North East Co.

National Labor Relations Board - Board Decisions

Apr 30, 1975

217 N.L.R.B. 626 (N.L.R.B. 1975)

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bernard Gloeckler North East Co. and International
Union, United Automobile , Aerospace , and Agricul-
tural Implement Workers of America , UAW. Case
6-CA-6496
April 30, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On April 30, 1974, Administrative Law Judge James
V. Constantine issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs.
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, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
In brief, the facts are that on October 25, 1972, an
independent labor organization known as Employee
Representatives (ER) voted to affiliate with the United
Auto Workers as Local 1461. The Administrative Law
Judge found, and the record amply supports his find-
ing, that in all respects the affiliation vote was proper
and comported with the standards required by the
Board.' Shortly after the October 25 meeting, the of-
ficers of ER gave the Respondent written notice of the
vote. This notice also informed the Respondent that an
existing collective-bargaining agreement between Re-
spondent and ER would be honored and that there
would be no change in union officers or in the daily
relationship between the parties.
At a November 9, 1972, meeting with ER and there-
after by posted notice the Respondent refused to recog-
nize the affiliation of ER with the UAW. The Respond-
ent made it clear that it would recognize only ER as the
bargaining agent of the employees.
The UAW reacted to Respondent's refusal to recog-
nize the affiliation of ER as Local 1461, UAW, with a
written protest averring that by its conduct Respondent
was committing an unfair labor practice. Despite this
protest, the Respondent thereafter in all meetings be-
tween management and officers of the affiliated local
refused to conduct any business or to process any griev-
ances until the union officer or officers answered the
question, "Whom do you represent, the employees un-
der the present contract or the UAW?" As one officer
I
i In this regard all employees in the unit were invited to the October 25,
1972, affiliation meeting either by letter or by posted notice. See the dissent
of Member Jenkins in North Electric Company, 165 NLRB 942, 943 (1967).
testified, "in order to conduct our business," the offic-
ers replied that they represented the employees under
their existing contract with ER.
Finally, at several meetings between management
and ER in February 1973 the record indicates that
Respondent replied to complaints about the "uneasi-
ness" and "stress" caused by supervisors asking union
officers whom they represented by informing em-
ployees that it would like to see things return to the way
they were before the employees voted to affiliate with
the UAW. Respondent's general manager, William
Lewis, also stated that he "wanted another chance with
the employees" and that he thought a better contract
could be negotiated so that the men would not have to
go through the UAW for more favorable working con-
ditions. Thereafter, on February 24, 1973, employees
voted in favor of a motion to disaffiliate from the
UAW. Respondent was notified on March 6, 1973, that
the employees had voted to disaffiliate and that hence-
forth they wanted to negotiate through the Bernard
Gloeckler Committee, said committee being identical
to the former ER.
On this record the Administrative Law Judge found
that the Respondent violated Section 8(a)(5) and (1) of
the Act by failing and refusing to recognize the UAW
local. He concluded, however, that no order was neces-
sary to remedy this unlawful conduct because the Feb-
ruary 24 disaffiliation vote was proper and the UAW
was lawfully succeeded by ER as of that date.
In support of this conclusion the Administrative
Law Judge asserted that the conduct of the local's offic-
ers in stating that they represented employees under
their existing contract with ER rather than the UAW
and thereafter in initiating the February 24 disaffilia-
tion vote, was "free and voluntary." We disagree.
The record evidence plainly demonstrates that Re-
spondent not only unlawfully refused to recognize Lo-
cal 1461, UAW, on November 9, 1972, but thereafter
embarked on an unlawful campaign' aimed at under-
cutting the allegiance of its employees to Local 1461
and reversing the results of the October 25 election. As
shown by the record, Respondent made it clear to em-
ployees that it rejected the affiliation vote, would not
recognize the local, and would not process grievances
or handle any other labor relations matters with em-
ployee representatives who identified themselves with
the UAW. Having inculcated an attitude of futility
2 Our dissenting colleague responds to our discussion of the record evi-
dence with the comment that the complaint does not allege such an unlawful
campaign by Respondent. Obviously this begs the question The complaint
alleges that Respondent violated Sec. 8(a)(5) and (1) by refusing to recog-
nize and bargain with Local 1461, UAW, and further alleges that Respond-
ent violated Sec. 8(a)(5) and (1) by bypassing Local 1461 and dealing
directly with employees, and these allegations place in issue the lawfulness
of Respondent's conduct on which its nonrecognition of the Union was
based or maintained The record evidence as outlined above substantiates
both allegations.
217 NLRB No. 104
BERNARD GLOECKLER NORTH EAST CO. -
concerning the affiliation with the UAW, the Respond-
ent held out the inducement of a better contract and
improved working conditions if employees formally
disavowed the UAW. Under these circumstances one
could hardly characterize the February disaffiliation
vote as a "free and voluntary" expression of employee
sentiment.
Although our dissenting colleague adopts the Ad-
ministrative Law Judge's recommendation that the
complaint be dismissed in its entirety , he does not rely
on the Administrative Law Judge 's rationale . Rather
he asserts that the UAW "originated the idea of a
change in affiliation . . . [and] stage managed the en-
tire procedure" thereby "raiding" the independent
union . Furthermore , our colleague contends that the
independent labor organization continued its existence
as a separate entity that administered its existing con-
tract and represented employees in grievance matters.
Accordingly , our colleague concludes that the UAW
"affiliate" is not the same union as ER under a different
name and is not entitled to recognition as bargaining
representative of Respondent's employees.'
The short answer to our colleague's contention that
the UAW "stage managed" the affiliation vote and
"raided" the ER is that the evidence of any such UAW
conduct is nonexistent . At most the record reveals that
the UAW explained to committee members of ER what
an affiliation vote would entail , thereafter leaving it
entirely up to the committee members of ER and to
Respondent 's employees to make their own decision
about their representation . As the Administrative Law
Judge found , at no time did UAW Representative Cas-
sesa act improperly , exceed permissible limits, or exert
undue influence on committeemen or on employees
generally.' As for the contention that ER retained its
separate identity despite the October affiliation vote,
this record fully supports a finding that if the facade of
ER as a "viable" labor organization was maintained
after the October election , it was maintained not by
3 Our colleague also intimates that the affiliation vote was a nullity be-
cause of alleged irregularities in the manner in which the vote was con-
ducted. It is worth noting that his description of the circumstances immedi-
ately surrounding the October 25 vote and these alleged improprieties is
drawn largely from the testimony of employee Ralph Neal, testimony that
was specifically discredited by the-Administrative Law Judge
'3 East Dayton Tool & Die Company, 190 NLRB 577 (1971), The Hamil-
ton Tool Company, 190 NLRB 571 (1971), and News-Press Publishing
Company, 145 NLRB 803 (1964), all of which are cited in our colleague's
dissenting decision in connection with the contention that the UAW's con-
duct constituted a "raid" on the independent ER, should be carefully exam-
ined In fact these cases demonstrate the speciousness of our colleague's
reasoning. Thus in both East Dayton Tool and Hamilton Tool the Board
concluded that frequent contact and consultation between the international
union and the independent labor organization pnor to the affiliation vote
was not only understandable but proper. In News-Press, on the other hand,
not only was there improper notice of the affiliation meeting, but the meet-
ing itself was apparently conducted by the petitioning union's attorney and
attended by a minority of employees who were given no opportunity to
discuss the matter of affiliation pnor to voting on it.
627
employees but by a Respondent determined that it
would not bargain with an affiliated local.
Accordingly , we find that Respondent violated- Sec-
tion 8(a)(5) and ( 1) precisely as alleged in the com-
plaint, that is, by refusing , on November 9, 1972, and
thereafter , to recognize and bargain with Local 1461,
UAW, as the exclusive collective -bargaining represen-
tative of its production and maintenance employees,
and by dealing directly with such employees about their
terms and conditions of employment , at a time when
they were represented by the aforementioned affiliate of
the International Union , United Automobile, Aero-
space and Agricultural Implement Workers of America,
UAW.
CONCLUSIONS OF LAW
1. UAW, its Local 1461, and Employee Representa-
tives are labor organizations within the meaning of
Section 2(5) of the Act.
2. Respondent is an employer as defined in Section
2(2) and is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
3. All production and maintenance employees em-
ployed at the Respondent's North East, Pennsylvania,
facility, excluding all office clerical employees, guards,
professional employees, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
4. Since on and after October 25, 1972, Local 1461,
UAW, has represented the employees in said unit by
reason of a valid affiliation vote of a majority of the
employees voting in said unit, and Respondent has been
since such date and is now legally obligated to -recog-
nize and bargain collectively with said labor organiza-
tion as such representative.
5. By failing and refusing to recognize and bargain
collectively with said labor organization since on and
after November 9, 1972, Respondent has engaged in
and is engaging in an unfair labor practice prohibited
by Section 8(a)(5) and (1) of the Act.
6. Since February 1973, Respondent has bypassed
Local 1461, UAW, and dealt directly with employees
in the appropriate unit with respect to their terms and
conditions of employment notwithstanding the fact
that since November 9, 1972, Local 1461, UAW, was
the duly designed collective-bargaining representative
of its employees, and by such conduct has engaged in
an unfair labor practice prohibited by Section 8(a)(5)
and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that the Respondent, Bernard
Gloeckler North East Co., North East, Pennsylvania,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 1461,
UAW, as the exclusive representative of its employees
in the unit found appropriate herein.
(b) Dealing directly with employees in the unit of
production and maintenance employees found appro-
priate herein with respect to their terms and conditions
of employment.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively with Local
1461, UAW, as the exclusive bargaining representative
of all the employees in the appropriate unit, and em-
body any understanding reached in a signed agreement.
(b) Post at its premises in North East, Pennsylvania,
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Re-
gional Director for Region 6, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBER KENNEDY, dissenting:
The Administrative Law Judge recommended dis-
missing the complaint in its entirety. I agree with this
recommendation, but would not adopt his supporting
rationale. Instead, I would rely on the following:
In January 1972, Local 1461, International Union,
United Automobile, Aerospace, and Agricultural Im-
plement _ Workers of America, UAW, hereinafter
UAW, filed a petition with the Board seeking to repre-
sent Relspondent's production and maintenance em-
ployees. The Regional Director dismissed the petition
upon the ground that an existing collective-bargaining
contract between Respondent and Employee Represen-
tatives, hereinafter ER, was a bar. In February 1972,
5 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of-Appeals Enforcing an Order of the National
Labor Relations Board."
the UAW filed unfair labor practice charges against
Respondent alleging that Respondent had dominated,
assisted , and interfered in the administration of ER in
violation of Section 8(a)(2) and (1) of the Act. The
Regional Director found no merit in the charges and
refused to issue a complaint based thereon. His ruling
was upheld on appeal to the General Counsel.
With the representation petition and unfair labor
practice charges dismissed, Dominic Cassesa, an Inter-
national representative of the UAW, suggested to offic-
ers of ER that the latter organization go the "affiliation
route" to secure the supplanting of ER by the UAW.
He informed them, however, that all members of the
executive committee of ER had to be in favor of affilia-
tion. Since Forsell, the president of ER, was opposed
to affiliation, Cassesa told the committee members that
he was "leaving it up to them" as to how to get rid of
Forsell, either by resignation or voting him out of of-
fice. Thereupon, Gene Platt, a committee member, cir-
culated a petition among Respondent's employees re-
questing that Forsell resign as president of ER. Upon
presentation of the signed petition, Forsell resigned and
was succeeded as president by Ralph Neal, a committee
member who favored affiliation with the UAW. When
Cassesa learned of Forsell's resignation , he told an em-
ployee that he had a "scheme" and that employees
could proceed with affiliation. In September and Octo-
ber 1972, Cassesa held meetings with executive com-
mittee members of ER at which the necessary steps for
affiliation were discussed and decided- upon. The
UAW, through Cassesa, provided the affiliation resolu-
tion, the notice of a meeting to vote on the resolution,
envelopes and stamps for mailing of the notices, and the
rented hall at the Rod and Gun Club at which the vote
was to be taken. Cassesa also arranged to receive a
written invitation to attend the affiliation meeting.'
The affiliation vote at the Rod and Gun Club hall
was held on October 25, 1972. Cassesa attended the
meeting accompanied by two other UAW representa-
tives. The affiliation vote was conducted in the follow-
ing manner. Individuals entering the club signed in on
a sheet of paper tendered to them by Executive Com-
mittee Member Sherman Tanner and entered one
room. After some discussion of the affiliation resolu-
tion, employees lined up and were permitted three or
four at a time to enter a kitchen where they were to
vote. Three officers of ER who favored affiliation
checked on individuals entering. Inside the kitchen
there was an' ' V' shaped counter about 12 feet long on
which there were several pencils for use in marking
6 According to Ralph Neal, a committee member, Cassesa told the com-
mittee that he would have to receive a written invitation signed by the
committee in order to attend the affiliation meeting Asked how the invita-
tion was conveyed to Cassesa, Neal replied, "Well, the first time I saw it,
he took it out of his coat pocket and gave it to us. We signed it and gave
it back to him "
BERNARD GLOECKLER NORTH EAST CO.
ballots. The employees marked their ballots at the open
counter. Employees testified that from three to six in-
dividuals were milling around the kitchen as the mark-
ing of the ballots proceeded, and one employee stated
that he watched another employee vote. The ballot box
was located on the short end of the "L" and was at-
tended by three men chosen by Neal. After the ballots
were dropped in the ballot box, the box was brought
into the meeting room where the men were assembled
and the votes were counted. The vote was 49 for affilia-
tion with the UAW and 19 against.
After the ballot results were announced, Cassesa
gave Neal a letter to be sent to Respondent announcing
the result of the affiliation vote. The letter to Respond-
ent General Manager William Lewis stated that the
name of ER had been changed to Local 1461, UAW,
that the officers of ER would remain in the same posi-
tions with Local 1461, and that the contractual com-
mitments of ER would be honored. On or about
November 9, 1972, at a meeting with the executive
committee of ER, Lewis handed them a letter stating
that Respondent did not recognize the affiliation of ER
with the UAW, and that "It is our intention to continue
to recognize the Employee Representatives as a sepa-
rate independent union, as the exclusive bargaining
agent of our employees, in accordance with the labor
contract effective March 1, 1971." Grant Tanner, a
committee member, expressed agreement with Respon-
dent's position. Neal replied, "Okay, let's go on with
the meeting.`
Notwithstanding the affiliation vote ER has func-
ti oned in the same way as it did before that vote, proc-
essing grievances, and administering its contract. Since
the vote, Respondent has inquired of the representa-
ti ves at each meeting with Respondent, "Whom do you
represent, the employees under the present (Employee
Respresentatives) contract or the UAW." The response
was always that the committee represented ER under
the current contract.
On February 8, 1973, committee members Neal and
Galt met with General Manager Lewis and Manager of
Manufacturing Carl about a cost-of-living problem.
Neal mentioned that there was uneasiness among em-
ployees because committeemen were being asked
whom they represented each time they dealt with Re-
spondent. He stated that he wished ER would go back
7 The meeting was held at the executive committee's request and Respon-
dent's position on the affiliation question (in view of its current contract
with ER) drew only agreement from the committee members. I agree with
the Administrative Law Judge's finding that UAW employee representa-
tives had a positive obligation to state precisely what their representative
capacity was on the occasion when this question was raised by the Respond-
cut, and with the Administrative Law Judge's finding that their statement
that they were not acting on behalf of the UAW could be relied on by
Respondent. I further agree with the Administrative Law Judge that such
inquiries by Respondent were not coercive. In my view, they were merely
prudent and precautionary in the light of Respondent's then current con-
tract with ER, an independent labor organization.
629
to meeing with Respondent as it had prior to the affilia-
tion vote.' Galt agreed with this statement . Lewis said
he could not express an opinion because of the law. In
the latter part of February 1973 , the employees held a
disaffiliation meeting at which they voted 69 to 2 not
to be affiliated with the UAW . The executive commit-
tee informed Carl of this action.
Respondent has consistently refused to recognize the
UAW as representative of its employees and has con-
tinued to recognize and bargain with ER as such repre-
sentative.
The UAW is seeking to accomplish in this 8(a)(5)
proceeding what is usually sought in a motion to amend
a certification during the term of a collective-bargain-
ing contract . The standards to be applied in determin-
ing the legality of Respondent 's refusal to accept the
change in affiliation are therefore no less strict than the
standards applied in the motion cases.'
In the Missouri Beef Packers case,10 the Board
stated:
As we have frequently held in the past, amend-
ment of certification is not appropriate in those
cases where a question concerning representation
is presented. Amendment of certification, by and
large, is intended to permit changes in the name of
the representative, not a change in the representa-
tive itself. Where, as here, there is no guaranty of
continuity of representation and the certified labor
organization is a functioning,, viable entity, and
opposes amendment, it cannot be granted without
doing violence to the purposes of the Act, which
include the promotion of stability in labor-man-
agement relations.
The Board will deny a motion to amend a certificate to
substitute one union for another where officials of the
moving union have played such an active role in the
movement to change affiliation as to constitute a "raid"
on the certified union," the procedure used to achieve
the change of affiliation did not provide adequate safe-
guards for reflecting the desires of the employees, lZ
and the union for which substitution is sought remains
a viable, functioning labor organization.l3
Here the UAW not only originated the idea of a
change in affiliation as as means of getting around the
8 The majority states that Respondent suggested that it would like to see
things return to the way they were before the affiliation vote. This is inaccu-
rate. Neal, the employee representative, made this statement
9 Universal Tool & Stamping Company, Inc, 182 NLRB 254 (1970).
10 Missouri Beef Packers, Inc, 175 NLRB 1100, 110,1 (1969).
11 See East Dayton Tool & Die Company, 190 NLRB 577 (1971), The
Hamilton Tool Company, 190 NLRB 571 (1971); News-Press Publishing
Company, 145 NLRB 803 (1964).
12 The Hamilton Tool Company, supra
13 The Hamilton Tool Company, supra, North Electric Company, 165
NLRB 942 (1967); Universal Tool & Stamping Company, supra; The Gas
Service Company, 213 NLRB No. 123 (1974), Missouri Beef Packers,
supra.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract-bar rule , but it also stage managed the entire
procedure even to the extent of supplying forms and
postage.-Unquestionably the UAW's conduct was tan-
tamount to a "raid" on the independent ER.
Furthermore, the Administrative Law Judge found,
and I agree with him, that "the Employee Representa-
tives continued not only to exist, but to function, fol-
lowing , the affiliation with the UAW . . . . [I]t proc-
essed grievances regularly for the employees, and,
shortly before the contract with Respondent expired,
entered into negotiations with Respondent for a new
collective-bargaining contract. Patently this labor or-
ganization under such circumstances may not be de-
scribed as defunct." The Administrative Law Judge
further found, and again I agree with him, that no
coercion or undue influence accompanied Respon-
dent's repeated inquiry to the ER committee members
as to whom they represented "so that the reply of the
committee reflected a free and voluntary act."
For these reasons, it cannot be said that the UAW
is the same union as ER under a different name and
entitled to administer the existing collective-bargaining
contract. At best the UAW is a new labor organization
seeking to supplant the the incumbent ER at a time
when the Board's contract-bar rules preclude an elec-
tion to determine a bargaining representative. Accord-
ingly, I would find that Respondent did not violate
Section 8(a)(5) and (1) of the Act by refusing to recog-
nize the UAW as bargaining representative of -its em-
ployees and by continuing to recognize ER as such
representative.
The majority state that Respondent embarked on an
unlawful campaign aimed at undercutting the alle-
giance of its employees to the UAW and in pursuance
thereof held out the inducement of a better contract
and better working conditions if employees formally
disavowed the UAW. The complaint contains no such
allegation; it is therefore improper to make such a find-
ing. Nor does the complaint allege unlawful domina-
tion of, or assistance to, ER. Moreover, in refusing to
recognize and deal with the UAW, Respondent acted
within its right to test the legality of UAW's conduct
and the validity of ER's alleged affiliation with UAW.
That legality does not turn on the disaffiliation vote of
February 9, but on the entire course of conduct from
the steps leading to the affiliation vote to the continued
viability of ER. I would not adopt the Administrative
Law Judge's rationale that the affiliation vote was
valid, and that its effect was undone by the subsequent
disaffiliation which was also valid. Instead, I would
find that in all the circumstances the affiliation vote did
not_ require Respondent to recognize the UAW as the
alter ego of ER. On this ground, I would dismiss the
complaint.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other terms
and conditions of employment with Local 1461,
UAW, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT deal directly with employees in the
unit of production and maintenance employees
with respect to their terms and conditions of em-
ployment.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section
7 of the Act.
WE WILL, upon request, bargain collectively with
Local 1461, UAW, as the exclusive representative
of our employees in the bargaining unit described
below, with respect to rates of pay, wages, hours,
and other terms and conditions of employment,
and, if an understanding is reached, embody such
understanding in a signed agreement . The bar-
gaining unit is:
All production and maintenance employees em-
ployed at our North East, Pennsylvania,
facility; excluding all office clerical employees,
guards, professional employees, and supervisors
as defined in the National Labor Relations Act,
as amended.
BERNARD GLOECKLER NORTH EAST
Co
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This
unfair labor practice case was litigated under the provisions
of Section 10(b) of the National Labor Relations Act, herein
called the Act. 29 USC § 160(b). It was commenced by a
complaint issued on October 30, 1973, by the General Coun-
sel of the National Labor Relations Board, herein called
Board, through the Acting Regional Director for Region 6.
It names Bernard Gloeckler North East Co. as the Respond-
ent. That complaint is derived from a charge filed on January
8, 1973, by International Union, United Automobile, Aero-
space, and Agricultural Implement Workers of America,
UAW, herein called UAW, against Respondent.
In substance said complaint alleges that Respondent vi-
olated Section 8(a)(1) and (5), and that such conduct affects
commerce within the meaning of Section 2(6) and (7), of the
BERNARD GLOECKLER NORTH EAST CO.
Act. Respondent has answered admitting some allegations of
the complaint but denying that it committed any unfair labor
practices. Motions of Respondent at the tnal_to dismiss cer-
tain allegations of the complaint were denied. Briefs have
been received from Respondent and the General Counsel.
This case presents the following issues:
1. Whether Local 1461, UAW, was validly designated by
the employees on October 25, 1972, as the successor to Em-
ployee Representatives (sometimes also called the Em-
ployees' Association), the latter a labor organization which
Respondent has recognized since 1965 as the representatives
of certain of its employees.
2. Whether the employees mentioned in the preceding
paragraph constitute an appropriate unit for purposes of col-
lective bargaining.
3. Whether since October 25, 1972, Respondent has been
obliged to recognize and bargain with Local 1461, UAW, as
the representative of said employees for purposes of collective
bargaining without an election to determine whether Local
1461 enjoys a majority.
4. Whether said Employee Representatives still represents
the employees in the unit mentioned above.
5. Whether Respondent after October 25, 1972, validly
bargained collectively with said Employee Representatives.
Upon the entire record in this case, and from my observa-
tion of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I AS TO JURISDICTION
Respondent, a Pennsylvania corporation, is engaged at
North East, Pennsylvania, in manufacturing steel fabrica-
tions. During the year preceding the issuance of the com-
plaint herein it shipped goods and materials valued in excess
of $50,000 directly to, and purchased goods and materials
valued in excess of $50,000 directly from, points outside the
Commonwealth of Pennsylvania. I find that Respondent is an
employer as defined in Section 2(2), and is engaged in com-
merce within the meaning of Section 2(6) and (7), of the Act.
II THE LABOR ORGANIZATION INVOLVED
UAW, its Local 1461, and Employee Representatives each
is a labor organization within the meaning of Section 2(5) of
the Act.
III THE UNFAIR LABOR PRACTICES
A. General Counsel's Case
Dominic Cassesa is an International representative of the
UAW. A conspectus of his testimony is set forth at this point.
On January 12, 1972, he met with a group of Respondent's
employees to discuss the UAW with them. On this occasion
they all signed authorization cards. The next day he met with
more of Respondent's employees, "and received [an] ade-
quate amount of authorization cards, 1JAW." As a result of
obtaining these cards he filed an RC petition with the Board,
but this was dismissed (see Resp. Exh. 3) for the reason that
a bar existed as a result of a contract between Respondent and
another union, the Employees' Association.
631
Later, Cassesa was informed by employees that Forsell,
president of the Employee Representatives and an opponent
of the UAW, was no longer president of the former union,
and requested by them "to see if anything could be done."
Consequently- Cassesa held another meeting with Respon-
dent's employees at-which he explained to them "the entire
affiliation route." All the officers of the Employee Represen-
tatives attended this meeting.
Cassesa held still another meeting with Respondent's em-
ployees at the Ramada Inn. When he informed them that
affiliation "had to come from within them," they all informed
him that they desired affiliation and for him to prepare the
paper work to accomplish this. He then instructed them to
arrange another meeting with him and to notify all employees
in the unit of the time and place thereof and mail them a copy
of the resolution. A few days later he met with them again
at the same Inn and handed each of the employees a resolu-
tion to affiliate which he had drafted.
Employees later were notified to meet on October 25, 1972,
at the North East Rod and Gun Club to vote on said resolu-
tion to affiliate. Cassesa was invited in writing to attend this
meeting by the officers of the Employee Representatives. {See
G.C. Exh. 2.) Accompanied by another UAW International
representative and the president of the Erie UAW local
union, Cassesa attended said gathering on October 25. But he
notified those present that although he could not take charge
of the meeting because "it was their local union," he would
answer questions put to him.
Neal, president of the Employee Representatives, presided
over the foregoing assemblage. After the affiliation resolution
was discussed by the employees present Cassesa and his two
UAW companions "retreated . . . to the corner" of the room
and the balloting was conducted in another room by officers
of the Employee Representatives Following said voting Cas-
sesa made a short speech to those present and also instructed
the officers of the Employee Representatives what written
notice they should send to Respondent Such notice was so
dispatched. But Respondent on November 9, 1972, wrote to
said officers that it "does not recognize the affiliation of the
Employee Representatives with the . . . U.A.W." (See G.C.
Exh. 3.) This caused the UAW to write Respondent that the
latter was committing an unfair labor practice by its said
letter of November 9. (See G.C. Exh. 4.)
Cassesa on behalf of UAW filed a charge and amended
charge against Respondent claiming the latter's relation to
the Employee Representatives contravened Section 8(a)(2) of
the Act. (See Resp. Exhs. 1(a) and 1(b).) This was dismissed.
(See Resp. Exh. 2(a).) UAW then appealed said dismissal, see
Respondent's Exhibit 2(b), but it was denied. (See Resp. Exh.
2(c).)
Another witness, Gilbert Lewis, gave testimony substan-
tially as follows. He worked for Respondent until August
1973. While he was there a "committee" known as the Em-
ployee Representatives was the labor organization represent-
ing employees in the production and maintenance unit. In
fact, there is "currently a contract between" said committee
and Respondent, and Lewis was involved as vice president of
the committee in the negotiations resulting in it. (See G.C.
Exh. 5.)
Lewis contacted the UAW to have it represent Respon-
dent's employees. Not long after this he and some other
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees met with Cassesa. This led to the filing of an RC
petition with the Board, but it was "turned down" for con-
tract bar reasons. Because said petition was dismissed Lewis
and some committee officers again met with Cassesa. The
latter informed them of the procedure to follow to affiliate
with the UAW. After this Lewis, some committee members,
and all but one of the committee officers met again with
Cassesa, this time at the Ramada Inn, and further discussed
affiliation.
A second meeting with Cassesa at the Ramada Inn caused
the committee officers to sign a resolution, which Cassesa had
prepared, to affiliate with the UAW. (See G.C. Exh. 6.) Said
resolution, among other things, (a) designated the Employee
Representatives, also known as the committee, as Local 1461
of the UAW; (b) stated that all assets of the committee and
the committee's collective-bargaining agreement "be held un-
der the name and style of Local 1461," UAW; (c) asserted
that "related pension" and "insurance agreement" be held by
"this organization under the name and style" of Local 1461,
UAW, and "this organization" apply to UAW for a charter
of affiliation; and (d) provided that "this organization con-
tmue its relationship with [Respondent] as'the duly certified
and recognized bargaining representative of the production
and maintenance employees of said Company." Then a copy
of said resolution and a notice (G.C. Exh. 7) of a meeting on
October 25 to vote on it were mailed to all employees in the
unit for whom the committee had addresses. Not all em-
ployees were sent such notice and resolution because the
addresses of a few were not known. In addition a copy of said
resolution and said notice were posted on the wall next to the
timeclock in the shop. Cassesa was also invited to attend said
meeting of October 25 at the Rod and Gun Club.
At said meeting of October 25 a question-and-answer
period occurred in the Club's main room during which Cas-
sesa answered some of the questions. Following this, a motion
to vote on affiliation was carried. Those employees present
voted in the kitchen area of the club where a ballot box and
pencils were placed on the counter. See General Counsel's
Exhibit 8 for a diagram of this arrangement. Employees then
voted for or against affiliation with UAW. Ballots were
handed to the voters as they entered the kitchen by two
committemen. Each ballot consisted of a "little piece of paper
off a tablet." Only three or four employees were permitted to
enter the kitchen at a time, and each placed his ballot on a
table to mark it. There were no voting booths, so that em-
ployees voted in the presence of each other but a few feet
away from each other. Then each voter placed his ballot in
the ballot box.
When the balloting was concluded the tellers asserted that
the number of ballots corresponded with the number of those
present at the meeting. A count established that "forty some"
were for, and 15 or 16 against , affiliation. Then Cassesa, who
did not at any time enter the kitchen, congratulated them on
their affiliation and suggested that Respondent be notified in
writing of the action voted for, i.e., to affiliate with UAW as
Local 1461, UAW. Such notice was sent to Respondent. (See
G.C. Exh. 9.) The notice also informed Respondent that the
name of "the union has been changed," that "all officers and
functional leaders remain the same," and requested Respond-
ent to "note for your records the change in the name of the
contracting union." Respondent replied in writing that it
recognized only the Employee Representatives, i.e., the com-
mittee, and that it would not recognize the affiliation of said
committee with UAW. (See G. C.'Exh. 3.)
Thereafter Respondent met with representatives of the em-
ployees on "a grievance or anything" but the officers of Local
1461, in response to questions from Respondent on such
occasions, stated they were appearing "through the men in
the shop" and not the UAW because they felt otherwise they
"could not get anywhere with it." At a grievance meeting
held in February 1973 with "the committee," Respondent
stated that it thought it "had failed with the men in the shop,
and . . . wanted another chance with them . . . that [the
men] wouldn't have to go into the International Union for"
better working conditions. Finally, at that February meeting
Respondent stated it thought it could negotiate a better con-
tract so that the men would not have to go "through
[UAW] to get everything."
Another committeeman of the Employee Representatives
is Sherman Tanner, who worked for Respondent as a spray
painter until March 1973. An adequate condensation of his
testimony follows. He attended the first meeting at the
Ramada Inn at which Cassesa was present. On said occasion,
"we talked about the affiliation and how to go about it." He
also went to the second meeting at said Ramada Inn when
"the resolution" and the notice of another meeting on Octo-
ber 25, 1972, were adopted. In addition he posted a copy of
said notice and resolution on the bulletin board in the build-
ing where he was employed, which was a different building
from that in which Gilbert Lewis worked.
Tanner went to the meeting_ at the Rod and Gun Club on
said October 25. One of his duties there was to see that
Respondent's employees entering the Club each signed as
they came in. General Counsel's Exhibit 10 which was so
signed discloses 63 signatures. A motion to vote on the resolu-
tion to affiliate was carried and then voting was conducted.
Three voted at a time standing 3 to 5 feet apart at the counter
in the kitchen of the Club. When the votes were counted
about 14 were against affiliation and 49, the remainder, fa-
vored it. Tanner also signed General Counsel's -Exhibit 9
informing Respondent of the affiliation with UAW.
In November 1972, Tanner attended a grievance meeting
with Respondent. At it Respondent made about the same
comments uttered at a March 1973 grievance meeting de-
scribed above by Gilbert Lewis.
The recording secretary of Employee Representatives is
Ted McQuiston. A synopsis of his testimony ensues. He went
to the October 25, 1972, meeting on the question of affiliation
with UAW described above. One of his duties there was to
require each employee coming in to sign General Counsel's
Exhibit 10 , and to make sure that anyone on that list voted
only once. Additionally he made notes of what took place at
the meeting. (See G. C..Exh. 11.) According to his notes 48
voted for, and 15 opposed, affiliation.
On November 9, 1972, he and other officers of the Em-
ployee Representatives were told by Respondent that the
latter would not recognize the UAW as the bargaining agent
of the employees. No employee at any time claimed that he
saw how any other employee voted on October 25, 1972; nor
did any employee ever "protest the way the affiliation vote
was run."
BERNARD GLOECKLER NORTH EAST CO.
McQuiston also described the way the voting was con-
du cted. As each person entered the kitchen where voting took
place, McQuiston made sure that such person' s name was on
General Counsel's Exhibit 10. Then after such person voted,
McQuiston saw to it that the former left the kitchen by
another door to enter the foyer. From the foyer a voter reen-
tered the main room where the meeting was being held. In his
opinion no employee signed General Counsel's Exhibit 10
twice or voted more than once.
Another member of the Employee Representatives and
also an employee of Respondent is Charles Galt. A sufficient
summary of his testimony is narrated at this point. Formerly
he was treasurer, but when he testified he was president of
said Employee Representatives, also known as "the commit-
tee." About November 9, 1972, he attended a grievance meet-
ing between Respondent and said committee. At said meeting
Respondent's General Manager read to the group a letter (see
G.C. Exh. 3) asserting that Respondent would not recognize
the affiliation with UAW. Then he asked those present
whether they were representing the UAW or the Employee
Representatives. According to Galt they replied that "we
would represent the employees," but they, in his opinion, so
replied "in order to conduct our business ." Thereupon griev-
ances were taken up and "questions [were] answered at that
time.",
Galt also was present at a meeting between officers of the
Employee Representatives, or "the committee," and Re-
spondent in February 1973. It was requested by the commit-
tee. This was held because some of the committee's officers
discovered that they "were in error" in "discussing the cost
of living" provision in the collective-bargaining contract. At
the meeting committeeman Neal stated he "would like to see
things back to normal, the way they had been at previous
time." Respondent agreed "because the shop was in a state
of uproar at the time," according to Respondent.
At the foregoing meeting of November 9 Respondent's
General Manager William Lewis stated that he felt "responsi-
ble for the condition which existed at that time, and would
like a chance to correct said condition." Respondent also
"asked for a chance to go back and try to work together with
the committee and . .. wanted us to give [it] that chance."
Finally, it was decided that the committee "would see what
the employees themselves thought about going back to bar-
gain with the company as the [Employee] Representatives,
rather than the UAW."
In addition to the evidence of the foregoing witnesses there
was evidence, adduced by Respondent's cross-examination,
that the officers of the Employee Representatives were se-
lected by some method other than balloting at an election.
B. Respondent 's Defense
Respondent 's vice president and general manager, William
L. Lewis, gave testimony substantially as follows. The Em-
ployee Representatives was formed in late 1965 or early 1966.
Since then said committee has continuously had a collective-
bargaining contract with Respondent.
In January 1972, he "became aware that the UAW was
active in the plant" when Respondent received a letter from
UAW. Lewis "first ... became aware of the affiliation"
when , about October -10, 1972, he "learned of the election
633
being posted up on the bulletin boards" in the Company's two
plants. These he caused to be removed from said boards. He
"became aware of the outcome of the meeting of October
25th" when he received a letter about October 27 to that
effect and which also was accompanied by a "resolution
copy." See General Counsel's Exhibit 9 for the letter and
General Counsel's Exhibit 6 for the copy of the resolution.
Also he observed copies of General Counsel's Exhibits 9 and
6 on Respondent's bulletin boards. These, too, he had
removed from the boards, because no permission had been
obtained to post them.
At the request of the committee, Lewis met with it about
November 9, 1972. After reading a letter (G.C. Exh. 3) to
them which in part insists that Respondent "does not recog-
nize the affiliation with the Local 1461 of the UAW . . . and
does recognize the Employee Committee as the sole bargain-
ing agent," committee member Grant Tanner said, "I agree
with the company's stand." Lewis also distributed a copy of
said letter to committee members present. Then "the different
grievances" were processed because Neal said, "O.K. Well
then let's go on."
On February 8, 1973, Lewis met with the officers of the
committee at their request "regarding the cost of living"
which it "wanted further to investigate" with the Company.
Lewis asked those appearing for the committee whether they
"represented the employees, in accordance to the present
contract, or the employees, in affiliated ,with the UAW."
Neal, a committee officer, replied, "The employees in accord-
ance with the present contract." Another committee officer,
Galt, rendered the same answer. Following this there was
extensive talk concerning the cost-of-living index, which con-
cluded with a solution acceptable to both sides.
Then Neal mentioned, at the above meeting of February 8,
that an "uneasiness" in the shop was "creating a great deal
of stress for the employee group," caused by supervisors ask-
ing the committee officers whom they represented. Continu-
ing, Neal added that he wished the officers of the committee
"could go back to meeting with management as they did prior
to the affiliation." When Lewis asked Galt how the latter felt
about this, Galt replied "exactly what Neal said." Thereupon
Lewis said that, "because of the law in this case," he could
not offer an opinion, but he could promise to "do whatever
is possible, that I can do, under the present contract." After
taking up two other matters, the meeting ended.
In February 1973, Lewis met with said committee officers
at their request. Again Lewis asked them whether they
"represent the employees affiliated with the UAW, or the
employees in accordance with the present contract." They
"all said ... we represent the employees in accordance with
the present contract." Grievances, "the possibility of plant
seniority," and merit increases were brought up. Then Galt
or Neal raised the question of "withdrawing the ... affilia-
tion vote with the UAW," and also propounded the question
of negotiating a new contract. Lewis mentioned he "would be
more than welcome to negotiate a new contract."
On March 6, 1973, Lewis received a letter from the com-
mAtee informing him that upon a vote "by secret ballot" the
employees decided "to work with the Company as the Ber-
nard Gloeckler Committee and further persue [sic] a fair
negotiation for our next contract." (See Resp. Exh. 6.) Al-
though said Bernard Gloeckler Committee, according to
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lewis, is "very different" from the Employee Representa-
tives, Ralph Neal nevetheless told Lewis that said committee
was identical to the Employee Representatives . Thereafter,
and until September, Lewis met sometimes with said commit-
tee on "grievance procedures."
In September 1973, at the request of Lewis the officers of
the employee committee met with him to take up the provi-
sions of a new collective-bargaining contract . At this and
subsequent meetings on this same subject, as well as on other
occasions since October 25 , 1972, the said officers of the
committee stated they were representing the employees "un-
der the present contract and not the UAW." But at no time
since October 25 , 1972, did they say they were representing
the UAW or Local 1461 when presenting grievances , or dis-
cussing a new contract or "negotiating any matter" with
Respondent . However, until about March 6 , 1973, when
Lewis received Respondent 's Exhibit 6, which he referred to
as-the "disaffiliation" letter, his supervisors , at his direction,
and he "every time we met with the committeemen , regarding
whatever circumstances it was, he was asked who [sic] he
represents . . . ." This was asked because Respondent
"hadn 't recognized the affiliation with the UAW ." But he
instructed his supervisors not to ask said question after re-
ceiving said letter ; and he also never personally posed such
question after said March 6.
Respondent also called upon Dominic Cassesa, who had
previously given testimony as a witness for the General Coun-
sel, to testify for it. In this capacity he testified substantially
as follows. He serves Erie, Pennsylvania , as part of his duties
as an International representative in Region Two of the
UAW, with headquarters in Cleveland , Ohio. Among other
things, he answered questions indicating that he had a num-
ber of meetings with officers of Employee Representatives
before the affiliation vote taken on October 25, 1972.
Further , he at first told Tanner, who told him "they needed
help," that Cassesa could do nothing "because of a contract
bar," and that "affiliation would be impossible based upon
the President of their local, Forsell , not accepting the UAW."
Later, when Tanner informed Cassesa that Ralph Neal suc-
ceeded Forsell as such president , Cassesa "mentioned then
we have a scheme , and then we can proceed with the affilia-
tion."-
Cassesa also told Respondent 's employees that "during the
organizing drive" and in the affiliation campaign dues re-
mained the same as "they were presently paying"; that they
would continue to pay such dues "until we were successful in
negotiating a new agreement for them"; and that initiation
fees in UAW were waived for present employees and those
hired "up until we secured the new agreement." No em-
ployees signed UAW membership cards during the affiliation
drive.
At the October 25 , 1972, meeting of Employee Representa-
tives, which Cassesa attended by reason of being invited
thereto, he did not address the employees present, but he
answered some questions from them . General Counsel's Ex-
hibit 9, the letter informing Respondent of the affiliation with
UAW, was copied in substance out of the UAW organizing
handbook . Cassesa "instructed the Committee to send [it] to
the Company , along with the resolution ." It was not typed by
anyone in Cassesa's office. He also told the officers of the
Employee Representatives on October 25 that he "wanted a
free discussion . . . and to read the resolution" at the meeting
on that date. -
Respondent's plant engineer is Ivan Schoenfeldt . He testi-
fied substantially as follows. Some of his duties entail resolv-
ing disputes and processing grievances of maintenance men
whom he supervised. In performing such tasks between Octo-
ber 25, 1972, and "sometime in March 1973," he asked "the
representatives of the employees prior to processing griev-
ances if they . . . brought the grievance as representatives of
the . . . Company [sic] or the UAW . . of the employees
. . . under the present company contract, or the UAW" on
each occasion. They always responded "the employees under
the present company contract." No one at'any time said that
they were representing the UAW.
Edward Sayban, Respondent's plant manager, and a for-
mer president of the Employee Representatives, testified that
in processing grievances between October 25, 1972, and
"sometime in March 1973," he asked "the employees who
came to him with grievances" whom they represented; that
they always responded that they "represented the employees
under the present contract"; that no one ever told him during
this period that he represented or was an agent of the UAW;
and that after said October 25 "the Employee Representa-
tives Committee conducted themselves in a manner similar to
the manner which they did prior to October 25th, 1972 "
Another witness for Respondent, Dale Carll, its manager
of manufacturing, testified for it. His testimony may be con-
cisely stated as follows. Whatever employee representatives
came to him on grievances or matters concerning the contract
after October 25, 1972, he asked them whether they repre-
sented "the employees' representatives ... under their pres-
ent contract, or the employees who are affiliated with the
UAW." They always replied, "the employees' representatives
under the present contract." No one ever claimed he was
"presenting [sic] an affiliate of the UAW."
He attended a meeting with employee representatives on or
about February 8, 1973, at which the cost-of-living index
arose and was resolved. At that event Ralph Neal, one of the
employee representatives present, complained "about the un-
easiness in the plant because the question was always asked"
whether they represented the "employees under the present
contract, or the employees affiliated with the UAW." Neal
requested that "it go back to the old way . . . continue as
they did in the past." Galt, an employee, representative in the
group, said he agreed with Neal. General Manager Lewis
replied that "by law he ... could not express his opinion."
Neal also stated he wanted "to find out . . . what their
[the employees'] feelings were" on this last matter.
Carll also attended another meeting in February 1973, with
the Employee Representatives. General Manager Lewis, who
was present, asked the employee representatives whether they
were acting for "employees under the present contract or the
employees affiliated with the UAW." Galt replied, "the em-
ployees under the present contract."
At still another meeting in February 1973,- with employee
representatives, Galt informed Carll that "at a meeting they
had voted not to be affiliated with the UAW . . . 69 no and
2 yes." They also asserted that they wanted to negotiate
"their next contract ... with Bill Lewis." The employee
representatives asked Carll to so inform General Manager
William Lewis, and he did so. But no one told him how the
BERNARD GLOECKLER NORTH EAST CO.
foregoing balloting was conducted; he was informed by them
of nothing "other than the total" vote.
A former president of the Employee Representatives Com-
miittee, Richard Forsell, gave testimony in substance as fol-
lows. While he served as'such president "UAW activities
started in the plant." He was opposed to affiliating with the
LAW and conveyed his said views to employees. When he
later learned that the men felt he was not doing a very good
job as such president he told them he would resign if more
than 50 percent of them signed a "petition" to this effect. He
did resign and was succeeded by Ralph Neal.
Forsell went to the meeting on'October 25, 1972, at the
Rod and Gun Club. He voted at a counter in the kitchen on
the issue of affiliating with the UAW. There were "six or
eight . . . everybody was just milling about the whole hall"
when he voted. However, he "supposed there were six or
eight people" in the voting room "at a time." But he was
unable to state if anyone was near him while he voted. On
cross-examination Forsell admitted he did not "see how any-
one else voted," that no one told him of seeing how others
voted, and that he was not sure there were 6 or 8 in the voting
area at one time.
Gene Platt, a maintenance man for Respondent and a com-
mitteeman of the Employee Representatives, gave testimony
essentially as follows. He, among others, "was trying to get
a union in the shop, and . . . took it upon [himself], being on
the committee," to circulate a petition "so that Dick Forsell
would resign" as president of the above-mentioned commit-
tee. This was because Forsell opposed the UAW which Platt
and others wanted "to get . . . in the shop." In fact Cassesa
had told Respondent's employees that without Forsell "it
would be easier to proceed . . . to get the union in the plant";
and that they "all [on the Employee Representatives
Committee] had to be in favor of" the UAW, with no one on
the committee against it, if it was to get into the plant.
At a meeting of the committee with Cassesa at Gilbert
Lewis' home, which Platt attended, Forsell was discussed.
But Platt was unable to recall how the "subject of Mr. Forsell
came up" or what comments were made there concerning
Forsell's opposition to the UAW. However, Cassesa did say
to the group that he was "leaving it up to the [group] that
[the group] should try to get [Forsell] to resign or vote him
out, or what ever we had to do [to] eliminate him as .. .
President."
Another witness for Respondent was Grant Tanner. A
summary of his testimony follows. He is a committeeman of
the Employee Representatives, and he actively opposed af-
filiation with the UAW.
Ted McQuiston, who had previously given testimony for
th e General Counsel, was also called as a witness by Respond-
ent. A summary of his testimony for the latter follows. The
Bernard Gloeckler Employees' Welfare Fund has a total of
$1194, deposited in the First National Bank of Pennsylvania
between September 22, 1972, when the account was opened
and March 9, 1973. The committee has no other bank ac-
counts or any other assets. The name in which said bank
account was started has not been changed since October 25,
1972, nor has the Employee Representatives Committee
taken any action to dissolve itself since said October 25; in
fact, it is "still functioning" by processing grievances and
negotiating a new contract with Respondent.
635
Continuing his testimony, Ted McQuiston stated that Re-
spondent's "management and supervision [are] . . . still deal-
ing with the Employee Representatives . . . they still recog-
nize the Employee Representatives as the representative of
the employees of' Respondent. He also said that in October
1972 Grant Tanner, a member of the committee, i.e., Em-
ployee Representatives, was opposed to affiliating with the
UAW. Tanner did not sign the resolution (G.C. Exh. 6) of the
officers of said Employee Representatives to "take all steps
necessary to accomplish" affiliation with the UAW because
he was absent from the meeting at which it was proposed.
However, although the other committee members signed
said resolution, no vote was taken among committee mem-
bers before the resolution- was adopted. Said resolution,
together with notice of a meeting on October 25, was mailed
"to the employees." Both were prepared by Cassesa. But no
vote was taken among the employee members of said Em-
ployee Representatives "to find out their desire" prior to
October 25, 1972, although the resolution avers, among other
things, that "it is the desire of the membership and officers"
of such organization to affiliate with the UAW." Prior to
mailing said resolution to the employees only those who
signed it and Cassesa saw it.
According to McQuiston, Cassesa told the officers of Em-
ployee Representatives that if affiliation was consummated
said organization would receive whatever was in the bank
account of Local 1461, UAW, because the former "were
going to be Local 1461." Such balance was about $500. In
addition, Cassesa told them Employee Representatives would
receive It filing cabinet and typewriter owned by Local 1461.
Also, Cassea remarked prior to October 25 that UAW could
not charge or collect dues until it had negotiated a new con-
tract with Respondent even though the employees would
become members of UAW the moment affiliation became
"valid"; that an initiation fee to join UAW would be waived
for those employees employed by Respondent on October 25,
1972; that the UAW strike fund was available to preventing
a member from losing "his house or his car"; that it would
be better if a new contract was negotiated for the employees
"as soon as possible" as the current one "wasn't the best kind
of contract to have . . it was a bad contract"; and that if
after affiliation the employees were dissatisfied with UAW
the latter "would withdraw" if the employees voted "how
they felt."
Cassesa supplied the notices concerning the October 25
meeting, the envelopes in which they were to be mailed, the
postage to transmit them to employees, and the rent for the
use of the Rod and Gun Club. However, the decision of the
officers of the Employee Representatives to affiliate had been
made before Cassesa mentioned anything about dues' waiver,
initiation fees, filing cabinet, bank account, etc.
On October 1, 1973, McQuiston submitted a register of all
officers of the Employee Representatives to Respondent. (See
Resp. Exh. 13.) It discloses that, among other things, he is the
present secretary of Employee Representatives and that said
organization has officers as there listed.
Charles Galt, another of the General Counsel's witnesses,
was also called to testify for Respondent. A summary of his
testimony as Respondent's witness is related here. He became
president of the Employee Representatives about May 7,
1973, succeeding Ralph Neal in this position. Previously, and
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during a period including October 25, 1972, Galt served as
its treasurer. As treasurer he opened a bank account for said
organization with money supplied by the employees of Re-
spondent on a voluntary basis. No steps have been taken to
dissolve said Employee Representatives, so that it is "still
processing grievances" and "negotiating a successor agree-
ment to the present contract." Galt signed General Counsel's
Exhibit 6, the resolution to affiliate with UAW. Grant Tan-
ner, another committeeman of said Employee Representa-
tives, opposed such affiliation.
Galt also corroborated other evidence recited above as to
what Cassesa said concerning dues, initiation fees, and strike
funds, in case affiliation with UAW was consummated. How-
ever, Galt claimed that he bought a "batch of envelopes" for
mailing the above resolution for which Cassesa did not reim-
burse him, although Cassesa did pay for "other envelopes"
and the letter to Respondent informing it of the affiliation.
(See G.C. Exh. 9.) Cassesa also paid for the rental of the Rod
and Gun Club.
According to Galt, Ted McQuiston prepared the written
invitation to Cassesa to attend the October 25, 1972, meeting
of the Employee Representatives . (See G.C. Exh. 2.) Galt
signed this along with other officers of said organization. This
was prepared because Cassesa told the officers thereof that
"he needed one [an invitation] or he would not be allowed to
attend." In addition, Cassesa informed them that even if he
came to the October 25 meeting he could not "chair" it or be
in charge of it, that he would be only a guest there and that
any questions intended for him would have to be channeled
through the president, Ralph Neal, and should not be pro-
pounded directly to Cassesa.
About February 8, 1973, Galt attended the meeting men-
tioned heretofore at which the cost-of-living index was taken
up and resolved. He is not sure whether management asked
those who were employee members whom the latter repre-
sented. At this time Neal expressed a desire "to see things
back . . . as they were before," and Respondent's vice presi-
dent, William Lewis, replied that he "would, too, like to see
it back like it was before." However, Lewis added that he
could not, discuss it or influence their decision in any way as
"it would have to be the committee that decided what they
did." Galt "agreed with Ralph Neal in his [said] statement."
At another meeting with management which Galt went to
about 2 or 3 weeks after that of February 8, the members of
the employees' committee were asked whom they repre-
sented. Among other things grievances were deliberated. Ac-
cording to Galt a "note" was also read to the committee by
Vice President Lewis insisting that Lewis "did not recognize
the UAW or our affiliation." Finally, Galt replied in the
affirmative to the question, put to him by counsel, "Are you
currently negotiating a contract?" The request to negotiate
was made by Vice President Lewis around January 1974.
On cross-examination Galt testified that, although Grant
Tanner was opposed to affiliating with UAW, and never
attended any committee meetings relating to such affiliation,
Tanner was "kept informed concerning what the committee
was doing." However, Galt not only informed Tanner of the
date for which meetings of the committee concerning affilia-
tion were scheduled and where they would be conducted, but
also invited Tanner to come to them. Tanner informed Galt
that the former refused to attend such meetings because he
opposed affiliation "or anything at all to do with" the UAW.
Further, on cross Galt asserted that Cassesa's references to
the bank account of Local 1461 were uttered "after the affilia-
tion vote," and that this was the first time that Cassea talked
about this subject.
Additionally, on cross Galt declared that the committee's
"decision to pursue affiliation had been" arrived at before
Cassesa's making statements regarding dues and initiation
fees, but such statements were made before the affiliation vote
was held. However, Cassesa did advert to the fact that UAW
could not accept or collect dues until a contract had been
reached by UAW and Respondent, and that "affiliation
meant automatic membership into the UAW." According to
Galt, Cassesa said affiliation meant "nothing other than auto-
matic membership in the UAW."
Respondent also called upon Ralph Neal as a witness. In
this capacity Neal in substance gave the following evidence.
Neal is in charge of quality control in Respondent's shop. He
was appointed by Forsell to serve as a committeeman for the
Employee Representatives. At that time the Employee Rep-
resentatives had only one officer, a president, who was For-
sell, and committeemen. Said Forsell was "against joining
any union," including the UAW. Neal succeeded Forsell as
president of the Employee Representatives in August or Sep-
tember 1972.
As President, Neal caused the "organizational structure"
of said Employee Representatives to include a vice president,
a recording secretary, and a treasurer. In October 1972 Neal
signed the resolution (G.C. Exh. 6) relating to affiliation, but
Grant Tanner, who was opposed to it as a committeeman, did
not. However, no vote was taken on adopting said General
Counsel 's Exhibit 6 by the committeemen ; "It was just shown
to us and we looked it over and read it and signed it."
The "idea of an affiliation" was first raised by Cassesa at
"the third meeting we had at the Brotherhood of St. Jo-
seph's," at a time when Forsell was president of the commit-
tee. In this connection Cassesa observed that all the members
of the committee "had to be in agreement" before affiliation
could be accomplished, and that "we couldn't have one
against affiliation, especially the president." No other mem-
ber of the committee spoke to Neal about becoming affiliated
prior to the first time it was brought up by Cassesa. In his
talks to the committee Cassesa explained to those who com-
posed it that all of them must "agree" and that notices must
be mailed to employees "that there would be an affiliation
meeting."
Notices of the October 25 meeting pertaining to affiliation,
supplied by Cassesa, were mailed to employees. Cassesa also
paid for envelopes and stamps used to mail such notices, as
well as for renting the hall. Addresses of such employees were
acquired by McQuiston's obtaining the name and address of
each by having each write the same on a piece of paper; but,
since all names were not thus secured , every employee was
not mailed a notice of said meeting. In addition , a notice of
this meeting was affixed at various places including the bulle-
tin board, in the shop's lunchroom, on the timeclock, and on
windows above such clock about a week before October 25.
However they were removed during the morning of the same
day they were put up. Although they were reposted the same
day they were again taken down in a few hours.
BERNARD GLOECKLER NORTH EAST CO. 637
Prior to the October 25 general membership meeting Cas-
sesa told the committee that he would "throw a beer party
.. . if we won the election." Neal also repeated substantially
what others above described as Cassesa's words concerning
UAW dues, strike benefits, and initiation fees. It need not be
repeated here. Cassesa also said (1) that "if we went on strike
our insurance would be paid . . . [and] if you bum coal . .
. we'll buy you a ton of coal, too"; and (2) that "if we
affiliated with the UAW, [the bank account of Local
1461] would become ours." Neal relayed to employees the
above remarks of Cassesa.
Neal claims the invitation to Cassesa to come to the Octo-
ber 25 meeting (G.C. Exh. 2) was given to the committee by
Cassesa, and "we signed it and gave it back to him." In his
affidavit to the Board Neal asserted that he "wrote a letter
to the company, informing them of the affiliation and re-
questing they make appropriate adjustments . . . ." (See p.
365 of the transcript.) However, prior to this Cassesa had
informed the committee "he would have to have an invitation
signed by the committee" to come to the October 25 meeting.
At said meeting Cassesa instructed them how to conduct the
meeting and the election which immediately followed it; and
he also told Neal to direct questions asked by members to
Cassesa at the meeting . Neal did so direct about 4 or 5 inqui-
ries. At that meeting Neal "expressed my feelings at the time
that I felt that we should vote for affiliation." So did Galt.
At the election on October 25 held in the kitchen, Neal
claims four or five "practically rubbing shoulders" voted "at
the counter at one time." Since said counter was about 12 feet
long it "was ... physically possible to see how someone else
voted." In fact Neal did see how another employee voted; but
he never mentioned this to anyone or in his affidavit to the
Board. Ballots consisted of a blank sheet of paper about 2
inches by 3 inches on which the voter wrote "yes" for affilia-
tion and "no" for opposing it. The letter to Respondent an-
nouncing the results of the election, which Neal and others
signed, was provided by Cassesa. (See G.C. Exh. 9.)
Since May 1973 Neal has not been president of the commit-
tee. But nothing has been done since October 25, 1972, to
dissolve it. Not only that, but since that date the Employee
Representatives Committee has continued to function as it
did before the voting on said October 25, so that it has con-
tinued to process grievances. Whenever since said October 25
said committee met with Respondent' s management and
supervisors to process grievances the committee would al-
ways be asked whether it was acting on behalf of Employee
Representatives "under the present contract" or "under the
affiliation with the UAW." Neal replied, "under the present
contract."
The February 8, 1973, meeting with management iegard-
ing the cost-of-living index was requested by Neal. Among
other things both Neal and Galt stated that they were tired
of the way things were going and that they wanted to "go
back to the way things were before the affiliation." Respon-
dent's Vice President Lewis replied that he would not express
any comment on it "due to the law," but that he had "feel-
ings" or "opinions on it."
Sometime in February 1973, Neal, accompanied by three
committee members, called upon Respondent 's manager of
manufacturing, Dale Carll, to inform Carll that the em-
ployees had voted 69 to 2 in favor of disaffiliating from the
UAW and "in favor of the company," and that Neal "wanted
to be the one to negotiate a new contract with" Respondent's
Vice President Lewis. Neal also notified the UAW and Cas-
sesa by letter of the outcome of said voting. At "practically
every meeting" which the committee prior to October 25,
1972, had with him, Cassesa told them "if we decided we did
not want the UAW . . . all we had to do was to tell him, and
the UAW would pull out and leave us and forget us." Cassesa
also told them that the officers of the Employee Representa-
tives would remain the same after affiliation.
On cross-examination Neal admitted that in an affidavit to
the Board he swore that "we let three men in at a time in the
kitchen" to vote regarding affiliation on October 25. He also
conceded that he never complained to anyone about the man-
ner in which "the balloting was run." But said affidavit also
provides that, although three voters at a time entered the
kitchen there were three others in that room, Lazer, Haag,
and Moheney, "observing that the balloting was conducted
fairly as they stood near the ballot box."
C. General Counsel 's Rebuttal
Employee Gilbert Lewis testified regarding the disaffilia-
tion vote. He attended the meeting at which said vote was
taken. At such meeting, which was held in the lunchroom of
Respondent's shop, ballots were cast on the question of disaf-
filiation. A ballot, consisting of a piece of paper, together with
a pencil, was distributed to each employee present. Then
"someone passed a hat around" in which the ballots were
deposited. The employees were "sitting in the lunchroom"
when the hat was passed around to collect their votes.
D. Concluding Findings and Discussion
1. As to the appropriateness of the unit
The unit described in paragraph 5 of the complaint is an
appropriate one within the contemplation of Section 9(b) of
the Act, and I so find . This is composed of:
All production and maintenance employees employed at
the Respondent's North East, Pennsylvania, facility, ex-
cluding all office clerical employees, guards, professional
employees and supervisors as defined in the Act.
Further, I find that for 6 or 7 years, prior to October 25,
1972, Respondent recognized the Employee Representatives
as the collective-bargaining agent of the employees in said
unit. This is because (a) the answer admits "that the majority
of employees since 1965 have been represented for the pur-
poses of collective bargaining by the Employee Representa-
tives"; and (b) the answer fails to deny the allegation in
paragraph 6 of the complaint that "a majority of the em-
ployees described in`paragraph 5 above designated and se-
lected Employee Representatives . . . as their representative
for the purposes of collective bargaining with the Respond-
ent."
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Whether affiliation was validly consummated
a. Cassesa 's conduct prior to the election to affiliate
On the issue in this subparagraph (a) I credit Cassesa and
only that part of Respondent's evidence consistent with his
testimony. On such credited evidence I find that Cassesa's
actions and behavior prior to the election were not improper
or otherwise affected the validity of the election to affiliate
with the UAW. Respondent strongly contends that certain
conduct by Cassesa has rendered the election invalid. But I
find that such conduct does not destroy the validity of the
election. Cf. The Hamilton Tool Company, 190 NLRB 571
(1971). These acts of Cassesa may be briefly set out here.
First, it is true that dues and initiation fees were waived.
But I expressly find that such waiver extended to all em-
ployees, and, therefore, did not undermine the election. B. F
Goodrich Tire Company, a Division of the B. F Goodrich
Company, 209 NLRB 1175 (1974). N.L.R.B. v. SavairManu-
facturing Co., 414 U.S. 270 (1973), does not require a con-
trary result for in that case dues and initiation fees were
waived only for employees signing union "recognition slips."
Respondent additionally insists that Cassesa also rendered
assistance, some of it in the form of stamps and envelopes, to
the Employee Representatives. I find that he did do this. But
I further find that his assistance did not interfere with the
freedom of the officers to reject it if they so wished, and that
paying for the stamps and envelopes was not so irregular as
to contaminate the election. Cf. East Dayton Tool & Die
Company, 190 NLRB 577 (1971). I find that UAW was not
instrumental in the efforts to terminate the status of the Em-
ployee Representatives as the collective bargaining agent of
the employees in the unit. Cf. Hamilton Tool Co., supra at
573. See Canton Sign Co., 174 NLRB 906 (1969).
Nor did Cassesa exceed permissible limits when he in-
formed the employees that, if they affiliated with UAW, its
strike fund would aid them in keeping up payments on cars
and homes. I do not consider this a form of unlawful solicita-
tion, and I so find.
It is not necessary to allude to additional conduct, other
than the beer party mentioned below, of Cassesa prior to
October 25 which Respondent relies on to subvert the affilia-
tion election. I find that none of it can be described as having
attributes which the Board has held to be sufficient to con-
demn an affiliation vote. Cf. National Carbon Company, a
Division of Union Carbide and- Carbon Corporation (Edgewa-
ter Works), 116 NLRB 488 (1956). But I do wish to briefly
advert to the beer party which Cassesa promised if the vote
to affiliate was successful. In this respect I credit Respon-
dent's evidence that Cassesa promised to give a beer party if
the vote favored affiliation with the UAW and that, following
the election he fulfilled said promise. While I personally do
not approve of beer parties to induce voters to endorse an
affiliation movement, I cannot find that it is so reprehensible
as to nullify or taint an otherwise valid election. While not
precisely applicable, Cochran Co., Inc., 112 NLRB 1400
(1955), suggests the foregoing conclusion.
Nor do I find that Cassesa acted improperly in suggesting
that he be invited to the meeting of October 25, 1972. On this
issue I find, crediting Respondent's evidence, that he made
known that he wanted to be invited to said meeting and that
as a result of such disclosure he was asked in writing to come
to said meeting. (See G.C. Exh. 2.) But I find that he exerted
no intimidating pressure or undue influence to induce the
committeemen to execute said General Counsel's Exhibit 2.
Merely because he indicated that he desired to be present, and
that he felt he could not attend without being asked to come,
does not amount to that quality of improper solicitation
which the Board has found to constitute unlawful pressure or
undue influence.
Accordingly, I find "all the requirements considered im-
portant by the Board, such as proper notice, discussion of
issues, and a secret ballot, were met." See Newspapers, Inc.,
Publishers of the Austin American and the Austin Statesman,
210 NLRB 8 (1974). Although the cited case is not precisely
in point, in my opinion it is relevant in determining whether
the affiliation vote of October 25 was valid.
b. Whether the procedure preceding the October 25
balloting was valid
A notice was mailed to a great number, but not all, em-
ployees, and it was also posted in various places at the plant,
that a meeting would be held to vote on the question of
affiliating with UAW. (G.C. Exh. 7.) I find that such notice
was thus communicated to a sufficient number of employees
to assure that practically all became aware of the date of the
meeting and its purpose. See Hamilton Tool Co., supra at 572.
Indeed a large majority voted. See General Counsel's Exhibit
10. In my opinion Respondent's argument to the contrary is
not'well taken. At most there were 90 in the unit (see G.C.
Exh. 12 and 13), and 63 actually went to the meeting and
voted. This was a large enough number to assure a valid
election. See the East Ohio Gas Company, 140 NLRB 1269,
1270 (1963). Nor is there merit to the argument that the place
of said meeting was inconvenient, especially since no evidence
was introduced at the trial that the Rod and Gun Club was
situated at an inaccessible location or that anyone complained
of the site. Nor do I find that the notice was inadequate to
inform employees of the essence of the meeting and of the
balloting to take place there.
Further, I find that the meeting was conducted in a regular
manner, with Neal (a witness for Respondent) presiding. (See
G.C. Exh. 11.) Cassesa's presence, I find, did not destroy the
regularity of the meeting or interfere with the free will of the
employees present. See Hamilton Tool Co., supra. And the
fact that Cassesa,answered some questions did not destroy the
free atmosphere of the meeting. In fact, when questions were
asked from the floor of Neal he testified, and I find, that he
determined which questions he would answer and which he
would refer to Cassesa. See, also, General Counsel's Exhibit
11 to the same effect. It is true that Cassesa requested Neal
to refer questions to Cassesa in case Neal did not want to
respond thereto, and Neal did so; but Neal also answered
questions himself without passing them on to Cassesa. Hence
I find that no impropriety occurred merely because Cassesa
offered his assistance in answering inquiries propounded by
employees at said meeting. Cf. Hamilton Tool Co., supra. And
I expressly find that Cassesa did not control the meeting.
On this issue I find that Cassesa's conferring with the
committeemen prior to October 25, 1972, did not amount to
participation in the affairs of the Employee Representatives
BERNARD GLOECKLER NORTH EAST CO
or constitute a "schism" as set forth in Respondent's brief.
See Hamilton Tool, Co., supra
c. Whether the October 25 vote to affiliate was valid
It is my opinion , and I find, that the vote to affiliate with
the UAW was valid. The fact that three persons voted at one
time at a counter is not enough to nullify the vote, since it was
12 feet in length. And the fact that three others remained in
the voting area to oversee that voters did not crowd each and
placed ballots in the ballot box is not improper. Neal's tes-
timony that people were milling around in the room is not
credited, especially since no one else (whether testifying for
the General Counsel or the Respondent) corroborated him.
Rather, I believe that the persons milling around were these
three overseers. In any event the presence of said overseers
did not disturb anyone as no one complained about their
being in the voting room.
The absence of voting booths does not affect the validity of
the election since the voters were far enough apart at the
counters to be assured of privacy. I find that such arrange-
ment was proper absent evidence that any voter complained
that it interfered with the secrecy of the voting. Cf. Equip-
ment Manufacturing, Inc., 174 NLRB 419 (1969); Cochran
Co., supra at 1409. It is true that Neal testified he saw how
one employee voted. But I do not credit him because at no
time did he mention this or complain about this alleged lack
of secrecy to the Board or Respondent or the overseers prior
to testifying at the trial. Assuming he did see how such person
voted it is apparent that Neal must have deliberately ap-
proached such voter closer than necessary and in a manner
which escaped the scrutiny of the overseers in the room.
Moreover, the persons in charge of the election caused each
voter to sign his name as he entered the voting room. (See
G.C. Exh 10.) Such persons in charge also saw to it that
nonemployees did not vote and that no employee voted more
than once. This procedure has been approved by the Board.
See Hamilton Tool Co., supra.
Since each voter placed his ballot in a ballot box I fmd that
the secrecy of the voting was preserved. And the fact, which
I find, that after voting an employee left the room by another
door than that used to enter it demonstrates that an orderly
atmosphere was maintained at the election. Although the
meeting may have continued in session by having the ques-
tion-and-answer period going on while the voters were in the
polling room this did not affect the validity of the election.
See Hamilton Tool Co., supra.
Finally, on this phase of the case I fmd that if Cassesa
provided the committee with a written announcement of the
results of the election to be transmitted to the Respondent
this does not rise to the stature of unlawful assistance to the
committee or unwarranted interference with its internal af-
fairs. (See G.C. Exh. 9.) It does no more than show that he
was saving the committee the trouble of composing a letter
reciting a series of events which actually occurred. However,
Neal testified that he prepared this letter. See p. 365 of the
transcript. But I make no finding as to who actually wrote
General Counsel's Exhibit 9 because even if Cassesa did he
acted lawfully.
639
d. Whether Respondent lawfully dealt with employee
representatives from October 25, 1972, to the disaffiliation
vote in February 1973
It is undisputed, and I fmd, that grievances and other
matters arising under the contract between Respondent and
the Employee Representatives, which was still in effect dur-
ing the above period, were entertained by Respondent. They
were presented to it by the very same person who composed
the committee of the Employee Representatives. When such
committee presented such items to Respondent the latter's
officers asked said committeemen whether the committeemen
appeared on behalf of the UAW or the Employee Representa-
tives. Each time said committeemen answered that they were
acting for the Employee Representatives. I find no violation
of the Act in Respondent's dealing with said committeemen
as agents of the Employee Representatives. The reasons for
such finding may be succinctly stated in the remainder of this
subparagraph (d).
In the first place, at no time did the UAW seek to attend
any of said meetings with Respondent after the affiliation
vote of October 25. Hence, I find UAW allowed the commit-,
tee to function as it had in the past. Also the identical group
which represented employees prior to, continued to represent
them after said affiliation vote of October 25. See Newpapers,
Inc., supra. It would seem that such exact identity was sanc-
tioned by the UAW as it did nothing to alter the composition
of the committee; or to advise the Respondent that some other
group now was the only authorized representative of the
employees. Thus the same bargaining entity met with Re-
spondent.
Secondly, the contract between Employee Representatives
and Respondent (see G.C. Exh. 5), which did not expire until
March 1, 1974, was still adhered to by Respondent and the
committeemen. Since such contract was binding upon the
UAW until it expired no harm resulted when Respondent
abided by its terms, regardless of whether the agent of the
employees acting pursuant to said contract called itself UAW
or Employee Representatives.
It is true, and I find, that Respondent refused to recognize
the UAW. (see G.C. Exh. 3.) But all that the UAW did about
this refusal was to threaten to file charges with the Board.
(See G.C. Exh. 4.) Thus it was natural for Respondent to
continue to process grievances with the committeemen in
order to fulfill its contractual obligations. Said obligations
had to be performed because the contract was still in effect
regardless of whether UAW or the committee was the bar-
gaining agent for the employees.
And I further find that the committeemen, on the first
occasion of being asked who their principal was, replied that
they were representing the employees and not UAW because
they wanted to be certain that Respondent would deal with
them. According to Gait, such reply was made "in order to
conduct our business." But this does not excuse the commit-
teemen for misrepresenting the UAW; they should have said
no. Their statement that they did not act on behalf of the
UAW could be relied on by Respondent. Hence, I fmd that
Respondent dealt with the committeemen at the latter's re-
quest as officers of the Employee Representatives and that
this did not derogate from the authority of UAW as the
collective-bargaining representative of the employees. Pat-
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ently Respondent was warranted in treating the committee-
men under these circumstances as agents of the Employee
Representatives. Accordingly, I find that paragraph 10 of the
complaint has not been established.
3. Whether the vote to disaffiliate is valid
Initially, I am of the opinion that disaffiliation may occur
at any time provided the steps preceding the vote are proper
and the mechanics of voting conform to the Board's criteria
surrounding a vote to affiliate. On this preliminary question
of law I concur in Respondent's argument that Section
9(c)(3) of the Act is not pertinent, so that a year need not
elapse after an affiliation vote. This is because the "valid
election" referred to in Section 9(c)(3) is a Board-conducted
election held pursuant to Section 9(c)(1)(B) of the Act. Also,
an affiliation vote does not change the labor organization
representing the employees but, rather, gives a new label to
the same group. It is similar to the situation when A, a
registered Republican, changes his registration to that of
Democrat; but patently A himself has not thereby become
another person physically.
A'critical analysis of that part of the record pertaining to
the vote to disaffiliate on February 24, 1973, convinces me,
and I find, that it was valid. Thus, I find that the employees
were adequately notified of the purpose, time, and place of the
discussion and subsequent balloting, and that the evidence
fails to show that the secrecy of the ballot was not preserved.
See, also, Respondent's Exhibit 6. Further, I find that the
evidence fails to indicate that Respondent did not remain
neutral or engaged in any conduct which improperly in-
fluenced the employees to favor disaffiliation. Additionally
upon this aspect of the case I find that the disaffiliation vote
was not tainted merely because the balloting was conducted
upon the premises of respondent, i.e., in Respondent's lunch-
room. Indeed, it is not uncommon for the National Labor
Relations Board to hold elections pursuant to Section 9 of the
Act upon the premises of the employer whose employees are
the electors.
In this connection I find, crediting that testimony consist-
ent with this finding, that Cassesa, prior to the affiliation
vote, expressly told the committee that notwithstanding a
vote in favor of affiliation the UAW would recognize and be
bound by a disaffiliation vote if the employees filed that they
no longer desired to remain part of the UAW. Under such
circumstances I find that, regardless of other considerations
entering into my decision, this assurance by Cassesa
amounted to a condition which gave the employees an option
to prevent the affiliation from enjoying a status for a definite
term or period of time.
4. Whether the employee representatives continued to exist
following the affiliation vote
On the record unfolded before me I find that the Employee
Representatives continued not only to exist, but to function,
following the affiliation with the UAW, which occurred on
October 25, 1972. Thus I find that it processed grievances
regularly for the employees, and, shortly before its contract
with-Respondent expired, entered into negotiations with Re-
spondent for a new collective-bargaining contract. Patently
this labor organization under such circumstances may not be
described as defunct. Cf. Mack Trucks, Inc., 209 NLRB 1038
(1974).
It is true, and I find, that the committee of said Employee
Representatives on each occasion it met with Respondent was
asked whether it appeared as an agent of the UAW or on
behalf of the Employee Representatives. It may be argued
that by incessantly propounding this inquiry Respondent
sought to keep alive the organization known as the Employee
Representatives. But I find that no coercion or undue influ-
ence accompanied this question, so that the reply of the com-
mittee reflected a free and voluntary act. That reply always
was that the committee appeared as an arm of the Employee
Representatives. It follows, and I find, that the Employee
Representatives not only failed to lose its identity but also
continued to serve the employees after October 25, 1972.
In this connection it is significant that at no time after
October 25, 1972, did the UAW make any effort to represent
the employees of Respondent other than to write to Respond-
ent protesting the latter's refusal to bargain with the UAW.
See General Counsel's Exhibit 4. It would seem that the
UAW itself did nothing to attempt to attend any of the meet-
ings between Respondent and the committee.
5. Whether Respondent bypassed the UAW and dealt
directly with employees
Admittedly Respondent continued to deal with the com-
mittee after October 25, 1972. This may be thought to consti-
tute bypassing the UAW. But said committee had been im-
pliedly, if not expressly, designated by the UAW to act for the
UAW in representing the employees after said October 25. At
no time did the committee in meeting with Respondent insist
or -even assert that said committee was operating as an arm
of the UAW. And at no time did the UAW seek to meet with
Respondent. Although Respondent made known to the Em-
ployee Representatives it would not recognize the UAW (see
General Counsel's Exhibit 3), the UAW did nothing to at-
tempt to attend meetings between Respondent and said Em-
ployee Representatives. Hence I find that Respondent merely
continued its past'practice of dealing with the Employee
Representatives and, under the circumstances, did not bypass
the UAW. One of those circumstances is that the UAW
designated the committee to continue to meet with Respond-
ent.
Additionally, I find that after October 25, 1972, Respond-
ent did not deal directly with its employees nor in any other
manner disparaged or derogated the collective-bargaining
representative of said employees. Although Respondent dur-
ing this period dealt with the committee, such committee was
a constituent part of the Employee Representatives and, as
such, was part of a labor organization. On this issue I ex-
pressly find that such committee was not an unorganized
group of employees. And I further find that the record is bare
of evidence that Respondent otherwise dealt with individual
employees. Accordingly I find that the allegations of para-
graph 10 of the complaint have not been established.
Upon the foregoing findings of fact, and the entire record
in this case, I make the following:
BERNARD GLOECKLER NORTH EAST CO. 641
CONCLUSIONS OF LAW
1. UAW, its Local 1461, and Employee Representatives
each is a labor organization within the meaning of Section
2(5) of the Act.
2. Respondent is an employer as defined in Section 2(2),
and is engaged in commerce within the meaning of Section
21,6) and (7), of the Act.
3. All production and maintenance employees employed at
the Respondent's North East, Pennsylvania, facility, exclud-
ing all office clerical employees, guards, professional em-
ployees and supervisors as defined in the Act, constitute a
unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act
4. From October 25, 1972, to February 24, 1973, the UAW
and its Local 1461 represented the employees in said unit by
reason of a valid affiliation vote of a majority of the employees
voting in said unit; and Respondent during said period was
legally obliged to recognize and bargain collectively with said
labor organizations as such representative.
5. By failing to recognize and bargain collectively with said
labor organizations in regard to the employees in said appro-
priate unit during the foregoing period Respondent has en-
gaged in an unfair labor practice prohibited by Section 8(a)(5)
and (1) of the Act.
6. No order is necessary to remedy the foregoing unfair
labor practice because since February 24, 1973, said UAW
and its Local 1461 have been lawfully succeeded by the'Em-
ployee Representatives as the collective-bargaining represen-
tative of the employees in said appropriate unit.
7. On February 24, 1973, a majority of the employees in
said unit validly voted to disaffiliate from said UAW and its
Local 1461, and to be represented by the Employee Represen-
tatives as their collective-bargaining agent.
8. Since February 24, 1973, Respondent has validly recog-
nized and bargained with said Employee Representatives as
the collective-bargaining representative of the employees in
said appropriate unit.
9. At no material time since October 25, 1972, has Re-
spondent dealt directly with employees in said appropriate
unit while said employees were validly represented by a labor
organization.
[Recommended Order _ for dismissal omitted from
publication.]