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American Bridge Division v. National Labor Relations Board

decided: March 21, 1972.


Staley, Adams and Rosenn, Circuit Judges.

Author: Rosenn


On this appeal we are asked to rule on the propriety of the National Labor Relations Board's amendment to the certification of a bargaining unit's representative to reflect its affiliation with the United Steelworkers of America (USW). The issue is before us on the petition of the United States Steel Corporation, American Bridge Division (the company) to review and set aside an order*fn1 of the Labor Board issued against the company for refusing to bargain with the new representatives. The Labor Board has filed a cross-application for enforcement of its order.

The bargaining unit involved consists of the salaried clerical and technical employees of the company's American Bridge Division plant in Ambridge, Pennsylvania. Since 1946, the unit has been represented by a local and independent labor organization, the Association of Technical and Clerical Employees, American Bridge Division, Ambridge Plant, (the association), and its predecessor. During 1969 when the critical events in this case took place, the association had 304 members. They were covered by a collective bargaining agreement negotiated solely between the representatives of the association and the company.

In August 1969 talks began between the association's executive committee and the USW to discuss possible affiliation with the 1,120,000 member international.*fn2 These meetings were not discussed with the association's members but resulted in a unanimous vote by the executive committee in favor of affiliation.

On September 22, 1969, a notice was mailed to all members of the association informing them that a special membership meeting would be held on October 5, 1969, for the purpose of taking a vote on the matter of affiliation with the USW. The notice stated that the executive committee hoped to be able to present all facts necessary for an intelligent vote on the issue at the meeting and added that representatives of the USW would be present.

Robert Matascik, a former officer of the association, evidently was not satisfied with this limited opportunity to discuss the various advantages and disadvantages of affiliation. On September 25, he presented a petition to the secretary of the association asking for a special meeting in advance of October 5 to discuss the problem. He had gathered 100 signatures on the petition, more than enough to meet the requirement of the association's constitution that 30% of the membership of the association must make a written demand for a special meeting. Notwithstanding this valid request, the executive committee declined to hold such a meeting on the basis that the already scheduled October 5 meeting would provide a full opportunity for debate.

On October 5, 198 of the 304 members of the association attended the meeting. The executive committee presented its views, and the USW representative spoke to the meeting and answered questions.

Upon completion of the question and answer session, the USW representatives were asked to leave the meeting. Six members of the association were appointed a temporary election committee. The members formed a line and received their ballots as they walked past the committee. The committee's members did not have a membership list to check who received a ballot and apparently relied on the fact that only union members were permitted into the meeting hall. They also could not be sure that only one ballot was handed out to each person, but because the final tally revealed 196 votes for the 198 people who signed the attendance list, there is no evidence that any irregularity actually occurred.

There was no voting booth, and members marked their ballots wherever they could. Although there was no intentional violation of the secrecy of the ballot, members of the association testified that they saw how other members voted. The votes were then placed in a wooden box and counted.

The affiliation was approved 111 to 85, and the USW informed the company of the result. The company refused to ignore the Board's certification of the association and stated that it would not recognize the newly formed local of the USW.

On November 6, 1969, the USW filed a petition to amend the 1946 certification by substituting Local Union No. 7637 of the USW as the certified representative. The Labor Board granted the amendment substituting the name of "United Steelworkers of America, Local Union No. 7637" as the certified union without requiring a Board election. The company has refused to bargain with the union.

The Labor Board recognizes that when there is a "question of representation," it is compelled by § 9(c)(1) of the National Labor Relations Act, 29 U.S.C. § 159(c)(1) (1970), to hold a supervised election to determine whom the covered employees will select as their bargaining agent. However, it contends that where there is no "question of representation," it may amend the certification of the unit during the contract term through the simplified "AC," or amendment of certification, procedure set out at 29 C.F.R. § 102.60 (1971). The Labor Board asserts that a situation presents no "question of representation" where three conditions are met: "(1) the certified union . . . does not oppose the amendment; (2) the bargaining unit remains the same; and (3) the members of the union . . . are given an opportunity to consider and vote on the question of affiliation through a democratic process and in accordance with the union's constitution and by-laws." It contends all three conditions are present in this case, and that it can validly use the amendment of certification procedure.

Upon a careful review of the record, we cannot agree that the second and third of the above-mentioned conditions are present and must therefore find that the new USW local is not the properly certified representative of ...

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