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National Labor Relations Board v. Bernard Gloekler North East Co.

decided: August 23, 1976.


Application for Enforcement of an Order of the National Labor Relations Board.

Biggs, Gibbons and Hunter, Circuit Judges.

Author: Biggs

Biggs, Circuit Judge.

The National Labor Relations Board (Board) petitions for enforcement of an order issued by it against Bernard Gloekler North East Co. (Company)*fn1 on April 30, 1975. 217 N.L.R.B. No. 104. The Board found that Gloekler, a fabricator of steel, had violated sections 8(a) (5) and (1) of the National Labor Relations Act (Act), 29 U.S.C. § 151 et seq., by refusing to bargain with the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW). We have jurisdiction under 29 U.S.C. § 160(e). The issue presented is whether a question of representation is raised when an independent local, a party to a collective bargaining agreement in force, attempts to affiliate with a local of the UAW international union.

We find on these facts that such a question is presented and, deciding it against the Board, decline to enforce the Board's order.

I. Facts

The Administrative Law Judge (ALJ) found that "for 6 or 7 years" the independent local, Employee Representatives (Representatives), was recognized by the Company as the exclusive bargaining representative of its production and maintenance employees. On October 25, 1972, the membership of the Representatives voted without Board supervision to affiliate with the pre-existing Erie UAW Local 1461 (UAW local).

Early in 1972, Dominic Cassesa, an international representative of the UAW, was contacted by a Gloekler employee, Gilbert Lewis, to explore the possibility of the Gloekler employees joining the UAW On February 11, 1972, Cassesa filed with the NLRB Regional Director for Region Six a charge which alleged that Gloekler unfairly "dominated and interfered" with the organization and administration of the Representatives.

The Regional Director refused to issue a complaint, finding that the Representatives had been formed "wholly on employee initiative." He found no sufficient evidence within the statutory period to support the UAW charge. This determination was upheld when appealed to the Office of the General Counsel.

Cassesa then petitioned the Regional Director for an investigation of employee representation and for a certification election to determine the Gloekler employees' exclusive bargaining agent. The Regional Director denied the petition, noting that the NLRB was prevented from acting by the contract-bar rule. The rule normally will not allow a Board election during certain times of a contractual period in order to preserve industrial stability and to support the integrity of lawful contract terms.*fn2 From the record it appears that no appeal from this administrative finding was taken by the UAW.

Cassesa then indicated to some members of the Representatives' executive committee that the independent could affiliate with the UAW, if all officers were so disposed. Representatives' President Richard Forsell opposed affiliation. Forsell was confronted with a petition circulated and signed by approximately fifty percent of the "men" and he resigned from the committee, to be replaced by a committee member favoring affiliation. When informed that Forsell had resigned, Cassesa told a committee member that "we have a scheme . . . We can proceed with affiliation". Transcript, page 182.

According to the ALJ's summary of the General Counsel's case, which the ALJ did not dispute in his ultimate findings of fact, Cassesa attended at least four meetings with the Representatives' executive committee, one of which was prior to the investigation and certification petition. After Cassesa was informed that Forsell had stepped aside, Cassesa met with all, save one, of the committee as then constituted, and discussed affiliation.

Another meeting of the committee with Cassesa was held to organize the affiliation vote, followed "a few days later" by a third meeting, when Cassesa presented a draft affiliation resolution. There is no evidence that this resolution was any way amended or changed by the committee. One of its seven members, Grant Tanner, did not sign the resolution.

The Company argues that actions and representations by Cassesa and the UAW during this period prior to the membership vote provided "the thrust and motivation" behind the affiliation. Cassesa did promote affiliation by enumerating for the committee the UAW benefits available through affiliation; and by promising no change in employee dues under the current contract, no UAW initiation charge for the current membership, and UAW sponsorship of a beer party if the affiliation vote were carried. Presumably through Cassesa, the UAW did rent the hall in which the ...

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