N.L.R.B. v. Insulfab Plastics, Inc., New England Div., 85-1772

• Decision Date: 24 April 1986
• Docket Number: No. 85-1772,85-1772
• Citation: 789 F.2d 961
• Parties: 122 L.R.R.M. (BNA) 2105, 54 USLW 2599, 104 Lab.Cas. P 11,876 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INSULFAB PLASTICS, INC., NEW ENGLAND DIVISION, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 961

789 F.2d 961

122 L.R.R.M. (BNA) 2105, 54 USLW 2599,

104 Lab.Cas. P 11,876

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INSULFAB PLASTICS, INC., NEW ENGLAND DIVISION, Respondent.

No. 85-1772.

United States Court of Appeals First Circuit.

Argued March 4, 1986.

Decided April 24, 1986.

Duane R. Batista, with whom Nutter, McClennen & Fish, Boston, Mass., was on brief, for respondent.

L. Pat Wynns with whom Rosemary M. Collyer, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Associate General Counsel, and Elliott Moore, Deputy Associate General Counsel, Washington, D.C., were on brief, for petitioner.

Before CAMPBELL, Chief Judge, COFFIN, Circuit Judge, and PETTINE, ^* Senior District Judge.

LEVIN H. CAMPBELL, Chief Judge.

The question raised in this petition for enforcement of a National Labor Relations Board bargaining order is whether an employer must continue to recognize and bargain with a formerly independent local union once the union has affiliated with a large international union. The employer insists that it need not do so unless and until the Board formally certifies the affiliated union after a representation election. The Board has held, to the contrary, that an election and certification proceeding is unnecessary and that the employer commits an unfair labor practice by refusing to bargain. Thus the Board has ordered the employer to recognize and bargain with the affiliated union.

I.

The employer, Insulfab Plastics, Inc. ("Insulfab" or the "Company"), manufactures and sells plastic products at a plant in Watertown, Massachusetts. For over 25 years it had a collective bargaining relationship with an in-house union known as the Independent Workers of Insulfab (the "Union"), which represents the production and maintenance employees at the Watertown plant. In August of 1983, when the events in this case occurred, there were 32 such employees, all of whom belonged to the Union.

During contract negotiations in late 1982, members of the Union became dissatisfied with their inability to obtain wage increases from Insulfab and began discussing the possibility of affiliating with an international union. In late 1982 and again in early 1983, Union President Joseph P. Flanagan contacted Vincent J. Campbell, the Director of Organization for the New England area of the International Union of Electrical, Technical, Salaried and Machine Workers, AFL-CIO ("IUE"). At a regular membership meeting on August 9, 1983, after a presentation by IUE representatives, the approximately 20 members in attendance voted unanimously to hold a meeting for the purpose of voting on affiliating with the IUE.

A few days later, Flanagan posted a notice on the Union bulletin board at the plant informing the Union's membership about a special meeting to be held on August 17, 1983, to vote on whether to affiliate with the IUE. Copies of this notice were also mailed to all Union members, and copies were handed to employees at the plant. At the August 17 meeting, attended by 29 of the Union's 32 members, Campbell explained what affiliation with the IUE would entail. After discussion among the members, an employee moved for a secret ballot vote. Each member then wrote either "yes" (in favor of affiliation) or "no" (against it) on a piece of paper, and the votes were counted in view of the members by two employees appointed by Flanagan to do so. The final tally was 20 in favor (including a voice vote by a latecomer to the meeting), eight against, and one blank. Subsequently, all but one member in attendance voted to make the affiliation decision unanimous.

Following the election, Flanagan sent a letter to Patrick J. Nicolazzo, Insulfab's General Manager, informing him of the election results, and stating (imprecisely) that the IUE was now the employees' bargaining agent. Nicolazzo replied that the Company "does not believe that the IUE-AFL-CIO represents a majority of [its] employees in any proper group," and refused to recognize the IUE until it was certified by the Board. Thereafter Flanagan and Nicolazzo, as well as Campbell and Nicolazzo, exchanged a series of letters in which Flanagan made clear that the bargaining representative was the affiliated Union (which continued to operate under the name of Independent Workers of Insulfab) rather than the IUE itself, and that the IUE's role would be limited to assisting in servicing the membership. The Company continued to insist, however, that it would not recognize the Union until it was certified in a Board election.

First the IUE, and later the Union, filed an unfair labor practice complaint against Insulfab, alleging that the Company wrongfully refused to recognize and to bargain with the Union in violation of sections 8(a)(1) and (5) of the National Labor Relations Act (the "Act"), 29 U.S.C. Sec. 158(a)(1) & (5) (1982). On March 11, 1985, the Board adopted without comment the administrative law judge's findings and conclusions that Insulfab violated the Act in refusing to bargain since there was sufficient continuity in the identity of the bargaining agent and the election had been procedurally fair. 274 NLRB No. 126 (1985). The Board ordered Insulfab to recognize and to bargain with the affiliated Union as the exclusive collective bargaining representative of the production and maintenance employees at the Watertown plant. Also, it required the Company to furnish the Union with the requested information about job classifications, wages, seniority, and other data reasonably related to the latter's bargaining responsibilities.

II.

The Act requires an employer to bargain in good faith with the exclusive bargaining representative selected by a majority of its employees in an appropriate bargaining unit. 29 U.S.C. Secs. 158(a)(5), 159(a) (1982). Insulfab contends that it need no longer bargain with the Union, which it has recognized for over 25 years, because the membership's decision to affiliate with the IUE so substantially altered the Union as to create an essentially new bargaining representative. In the Company's view, a "question of representation" exists, requiring the Board to conduct a representation election by secret ballot to decide whether a majority of the employees now support the affiliated Union. 29 U.S.C. Sec. 159(c) (1982).

But the Board has long held, and courts (including most recently the Supreme Court) have recognized, that organizational changes such as affiliations or mergers do not inevitably raise a "question of representation" so as to necessitate a representation election. ¹ So long as the changes are not sufficiently dramatic to alter the union's identity, a decision to affiliate is an internal union matter that does not affect the representative status of the bargaining agent or end the employer's duty to continue its relationship with that union. Otherwise, the Board has reasoned, "[t]he industrial stability sought by the Act would unnecessarily be disrupted if every union organizational adjustment were to result in displacement of the employer-bargaining representative relationship." Canton Sign Co., 174 NLRB 906, 909 (1969), enforcement denied on other grounds, 457 F.2d 832 (6th Cir.1972).

Under the Board's current test, an employer must continue to bargain with the existing bargaining agent if two conditions are met. See NLRB v. Financial Institution Employees, Local 1182, --- U.S. ----, ----, 106 S.Ct. 1007, 1012, 89 L.Ed.2d 151 (1986). First, the employees in the bargaining unit must have had a fair opportunity, with adequate due process safeguards, to approve the organizational change. See, e.g., Newspapers, Inc., 210 NLRB 8, 9 (1974), enforced, NLRB v. Newspapers, Inc., 515 F.2d 334 (5th Cir.1975). Second, there must be "substantial continuity" between the pre-affiliation and the post-affiliation union. See, e.g., NLRB v. Pearl Bookbinding Co., 517 F.2d 1108, 1111-12 (1st Cir.1975). Here, the Board determined that both requirements were satisfied and that therefore the results of the affiliation election were valid. Based on the record as a whole, we uphold the Board's findings as supported by substantial evidence.

A. Due Process Standards

For the Union's vote in favor of affiliation to meet the Board's standards, it must accurately reflect the sentiments of a majority of the employees in the bargaining unit. See NLRB v. Commercial Letter, Inc., 496 F.2d 35, 42 (1974); Hamilton Tool Co., 190 NLRB 571, 574 (1971). This means that the election must "be conducted with adequate 'due process' safeguards, including notice of the election to all members, an adequate opportunity for members to discuss the election, and reasonable precautions to maintain ballot secrecy." Financial Institution, --- U.S. at ----, 106 S.Ct. at 1012. We find substantial evidence supporting the Board's finding that the Union's choice "to conduct its business more informally in accordance with the traditions of New England town meeting democracy" met the necessary due process standards.

First, it appears that members of the Union had adequate notice that an election to decide whether to affiliate with the IUE would be held. Several days after the issue of affiliation was initially discussed at the regular membership meeting on August 5, 1983, Union President Flanagan posted on the Union bulletin board at the plant a notice of the special affiliation election meeting to be held on August 17. In addition, copies of the notice were mailed to all unit members, and copies were also distributed at the plant. All but three of the 32 members of the Union attended the meeting, which was held at the customary time and location of regular Union meetings.

Moreover, contrary to Insulfab's contention, there is sufficient evidence from which to conclude that the employees were adequately informed as to the effects of affiliation and that they had sufficient opportunity for discussion before voting. IUE representatives explained the...