Petition — J. Ray McDermott & Co. v. National Labor Relations Board

Supreme Court brief1978

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— Supreme Court, U. &.

FILED

| JUL 7 1978

MictineL RoDAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

— 78-51

J. RAY McDERMOTT & CO., INC.,

Petitioner,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

SAMUEL LANG

ANDREW C. PARTEE, JR.

HOWARD S. LINZY

Kullman, Lang, Inman & Bee

A Professional Corporation

Post Office Box 60118

New Orleans, Louisiana 70160

Attorneys for Petitioner

July, 1978

SCOFIELDS’ QUALITY PRINTERS, P.O. BOX 53096. WO. LA. 70153 504 822 1611

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E CASE .

“ee The . ince Conflicts With

Tue Clear Mandate Of The Act ............. 6

2. The Decision Below Conflicts With

The Decision of Other Courts of

Appeals on The Question of The

Minimum Safeguards Afforded in Af-

e 1

3. The Decision Below Conflicts With the

Decisions of Another Court of

Appeals on Appropriateness of the

Amendment of Certification

CERTIFICATE OF SERVICE E 14

APPENDIX

Opinion of the Court of Appeals e

Judgment of the Court of Appeals 19a

Decision and Ort . BIS

Decision of the Administrative Law Judge

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4 „SCC enen Petre

Bear Archery, Division of Victor Comp- . Haan Week chase ·˙· . cs eCy Nee cg mNene

Ree tometer Corporation, 223 NLRB 1169 PES ela aS See nC Ee 4 EON

f ' (1976) enen, oa ene 2

05 | Second Supplemental Decision and Cer-

| tification of Representative .................57a

TABLE OF AUTHORITIES

Cases:

American Bridge Division, U.S. Steel Corp. v.

N.L.R.B., 457 F.2d 660 (ard Cir. 1972) . 7,8,10,11,12

N Garner v. Teamsters Union, 346 U.S. 485

lig ene as deeee 0

N.L.R.B. v. Bear Archery, Division of Victor

Comptometer Corporation. F. 2e

// ͤ CN. Ü Ä » ne

N. L. R. B. v. Bernard Gloekler North East Co..

540 F.2d 197 (Grd Cir. 107% /conninůi. 12

J. Ray McDermott & Co., Inc., 215 NLRB 570 ...... 3

Statutes: *

National Labor Relations Act. as amended (61

Stat. 136, 73 Stat. 519, 88 Stat. 395, 29 U.S. C. 0

Sec. 151. et seq.)

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Ba Petitioner,

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1 versus

NATIONAL LABOR RELATIONS BOARD,

| Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, J. Ray McDermott & Co., Inc., prays that a

writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit

entered in this case on May 10, 1978.

a OPINIONS BELOW

The opinion of the Court of Appeals (Appendix 1a) is

not yet officially reported. The National Labor

‘Relations Board's decision and order is reported at 227

NLRB 1347. (Appendix 21a.)

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mene 1 Tus ens ss |

Tee TE A eee OE Oe Oh RAE EPL ORS eae a) es : We, VU onte iF * 4890

April 18, 1978 (Appendix e de eee

tiorari was filed within ninety (90) days of that date. A

thirty (30) day stay of the Court of Appeals’ judgment

has been granted to permit the filing of this petition.

rn Court's jurisdiction is invoked under 28 U. 8. C.

QUESTIONS PRESENTED

1. Did the National Labor Relations Board abuse

its authority in certifying a union as the majority

representative of a unit of employees while failing to

count potentially decisive ballots which were actually

cast in the representation election?

2. Does the “reasonable bounds” standard used by

the Court below, which gave controlling weight to the

parties interest in the finality” of Board election

results, accord adequate consideration to the right of

employees to select, by majority vote, their bargain-

ing representative?

3. May the National Labor Relations Board bypass

its own procedures for safeguarding the freedom of

employee choice by changing the certified bargaining

representative without an election?

STATUTES INVOLVED

Sections 8(a)(1) and (5) of the National Labor

Relations Act, as amended (61 Stat. 140, 20 U.S.C. Seo.

158), provide:

Werne menor: 0 Pi RETA Rea ERM eee

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Sec. 8. (a) I shal! be an unfatr labor practice

for,en.emnployer.

(1). to interfere with, restrain, or coerce

employees ir the exercise of the rights

guaranteed in Section 77.

(5) to refuse to bargain collectively with

the representatives of his employees, sub-

ject to the provisions of section 9(a)....

For the convenience of the Court, a portion of Sec-

tion 9(a) of the same Act (61 Stat. 143, 29 U.S.C. Sec. 159)

is also set forth here:

Representatives designated or selected for the

purposes of collective bargaining by the ma-

jority of the employees in a unit appropriate

for such purpose, shall be the exclusive repre-

sentatives...

STATEMENT OF THE CASE

McDermott is engaged in the offshore construction

business. In early 1974, the International Association

of Professional Divers, affiliated with MEBA, AFL-

CIO, filed a petition seeking representation of the

Company's divers, tenders and rack operators. An

election was held which was set aside by the Board

because of union misconduct. J. Ray McDermott & Co.

Ine., 215 NLRB 570.

A second mail ballot election was held in February

1975 which is the one in controversy here. A total of

and one (1) employee lost his ballot return envelope.

and was unable to secure a replacement and to vote

the deadline. Three (3) employees’ ballots, ban

timely mailed, were never received by the Labor

Board. These are the only ballots at issue. Objections

seeking to set aside the election asserted the obvious

— the will of the majority could not be determined

because of the failure to count the three valid ballots

cast. The objections were overruled and the Union was

certified as bargaining representative. Its request to

bargain was rejected by the Employer in order to

secure Court review of the certification.

Thereafter, in mid-July 1975, LAPD’s leadership

engineered a disaffiliation vote from MEBA which

was followed immediately by a vote to affiliate with

the United Brotherhood of Carpenters and Joiners of

America, AFL-CIO. This new union, Local 1012, filed a

petition to amend the certification to reflect an obliga-

tion by the Company to bargain with Local 1012 rather

than IAPD/MEBA. The Company contended that the

affiliation election should not be given effect because

it failed to meet minimum standards reflective of true

employee intent. The Labor Board, Member Walther.

dissenting, rejected the Company’s contentions and

granted the amendment without requiring a Board-

supervised election. A new request to bargain was

rejected by the Company. This refusal became the sub-

ject of the present refusal-to-bargain charge and

i 8 f

provided the appropriate vehicle for presenting both

the original fic: and the amendment of cer-

The decision below concluded that the Company un-

lawfully refused to bargain with Local 1012. This con-

\. ptiSion, with respect to the original certification, was

predicated upon “the parties’ interest in the finality of

the representation proceedings” and “that an election

by mail is (not) per se invalid whenever a potentially

decisive number of votes, no matter how small, is lost

through the vagaries of mail delivery.” It is upon this

issue — an expedient certification which ignores out-

come determinative ballots — that certiorari is

sought.

With respect to the amendment of certification, the

decision below held that the change in affiliation did

not constitute a change in bargaining representative

requiring a Board-conducted election. The Court

below also found that sufficient safeguards of

employee free choice were maintained in a union

meeting attended by a minority both of Union and unit

members. The transfer of certification issue meriting

certiorari is two-fold: (1) whether the Labor Board may

abdicate its statutory responsibility to resolve

questions concerning representation and (2) whether

private elections conducted by Union officers may be

credited in circumstances which fail to provide an op-

portunity to consider and present competing view-

points.

Thus. the facts of this case are simple and straight-

forward. The issue involved concerns the basic pur-

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Steel Corp. v. N. L. R. B., 457 F. ad 660 (ard Cir. 1972); and

N.L.R.B. v. Bear Archery, Division of Victor Comp-

tometer Corporation. F. ad (6th Cir. 1977).

(Appendix 37a). The continued existence of such

different standards on this issue impairs the uni-

formity of national labor policy that the Act was de-

signed to achieve. Cf. Garner v. Teamsters Union, 346

U.S. 485, 490-491 (1953).

_In American Bridge, the leadership of an indepen-

dent union of 304 members held confidential dis-

cussions of possible affiliation with a representative

of the 1,120,000-member United Steelworkers of

America (USW). On September 22, 1969, a notice was

mailed to all members of the independent union in-

forming them of a membership meeting on October 5

for the purpose of voting on the affiliation. One of the

members, evidently dissatisfied with the limited

opportunity to discuss the various advantages and

disadvantages of affiliation, requested a meeting in

advance of October 5 to discuss the problem. Notwith-

standing this request, no such meeting was held. On

October 5, the leadership presented its views, and a

USW representative spoke and answered questions.

The USW representatives left the meeting, and

balloting was conducted without a voting booth or any

other guarantee of voting secrecy.

The Court observed that the comparative advan-

tages and disadvantages of affiliation “were complex,

requiring thoughtful consideration by everyone

affected.” 457 F.2d at 665. Employees’ freedom of

choice and opportunity to consider and secretly vote

: —

on the question of affiliation were not protected. These

factors persuaded the Third Circuit “that the

procedures were deficient in providing a fair oppor-

tunity for the members to consider all the vital issues

confronting them.” 457 F.2d at 666.

By contrast, IAPD’s leadership, without prior dis-

closure of their own dissatisfaction with MEBA to the

general membership, sent a letter to members — most

of whom were employed by other companies — dated

July 7 advising them of a meeting on July 11 to discuss

disaffiliation. No mention was made of any intent to

affiliate with the Carpenters Union (UBC). Further,

this letter effectively gave only three (3) days notice.

Even that was greatly reduced considering the

geographical dispersion of divers throughout the Gulf

Coast and offshore. In fact, only one-third (1/3) of the

membership attended the July 11 meeting. Only then

did the general membership learn of their leadership's

intent to affiliate with the UBC. A UBC representative

attended the meeting and answered questions, while a

MEBA representative unsuccessfully sought admit-

tance. Various votes were taken with no semblance of

voting secrecy. An attempt at curing these defects by a

subsequent mail ballot election also failed.

In Bear Archery, the Sixth Circuit denied enforce-

ment of a Board order, adopting Member Walther's dis-

sent. The Court noted that he “dissented primarily

because the election procedures did not provide the

employees with an adequate opportunity for reflec-

tion and for the presentation of opposing viewpoints.”

Appendix 38a. 8

There, the Board majority characterized Walther's

dissent as arguing that the affiliation election failed to

meet minimum standards because (1) the employees

were not given an adequate opportunity to discuss and

consider the question of affiliation before voting; (2)

the notice of the special meeting of the Board of Direc-

tors did not conform to the formal requirements of the

association; (3) no impartial party was present during

the election; (4) the polling area failed to assure

secrecy of the ballot; and (5) about 30 probationary

employees were not permitted to vote. Noting that the

employees had ample notice of the special meeting

and its purpose, as opposed to here, and, therefore, had

an ample opportunity to discuss among themselves

the issue of affiliation before the meeting, the majority

stated that Member Walther’s reliance upon American

Bridge was misplaced. The majority made clear its

primary thrust: “In any event, the important thing is

that the employees had advance notice of the purpose

2 1 meeting.” (Emphasis supplied.) 223 NLRB at

The facts in both American Bridge and Sear Archery

represent superior vehicles for approving an affilia-

tion election to those here, yet both the Third and the

Sixth Circuits declined to do so. The conflict created

by the Fifth Circuit requires this Court’s granting cer-

tiorari to define the minimum requirements for such

elections. | R

3. The Decision Below Conflicts With the

Decisions of Another Court of Appeals on

the Appropriateness of the Amendment of

Certification Procedure.

The final compelling reason for granting certiorari

stems from a conflict between the Fifth and Third Cir-

cuits on the appropriateness of the amendment of cer-

tification procedure.

In American Bridge, supra, the Court’s primary con-

cern was whether a Board-supervised election under

Section 9 was required, or whether the amendment of

certification procedure was permissible. The Labor

Board had acknowledged a duty to conduct its own

election when there is a “question concerning repre-

sentation.” Only the absence of a “question con-

cerning representation,” renders appropriate the

amendment of certification procedure, predicated

upon a union-run affiliation election. A situation

presents no “question of representation” upon the

concurrence of three conditions: (1) the certified union

does not oppose the amendment; (2) the bargaining en-

tity remains the same; and (3) the members of the un-

ion are given an opportunity to consider and vote on

the question of affiliation through a democratic

process. The second condition was not satisfied.

The Court concluded that the new union was some-

thing quite different from the earlier organization

“because the people who conducted a substantial part

of the unit’s dealings with management are no longer

the association's officers, and the power of the unit's

members to control those agents has radically chang-

ed. In other words, there is a clear question of repre-

their own local officers or by the Steelworkers’ Un.

ion?” 457 F. ad at 663,

Certain factors, identical in this case, were the

touchstones of that decision: (1) the local union of 300

members was supplanted by an international union

almost four thousand times larger and, (2) although

the local officers remained the same, the rights of the

parties had been changed by the creation of new rights

vested in the international; e.g., options to approve

strikes and to assist in the adjustment of grievances.

In N. L. R. B. v. Bernard Gloekler North East Co., 540

F. ad 197 (3rd Cir. 1976) an independent union had a

bargaining agreement with the company which, under

Labor Board policy, barred an election. During the

term of the contract, a Gloekler employee contacted a

representative of the United Automobile, Aerospace,

and Agricultural Implement Workers of America

(UAW), to explore the possibility of the Gloekler

employees joining the UAW. An affiliation vote was

conducted but the company refused to deal with the

new union. The Court agreed with the company and

found that the purported affiliation vote raised a ques-

tion concerning representation which could not be ad-

dressed during the contract term.

As in American Bridge, the Court was persuaded by

the change in the previous local’s structure, ad-

ministration, assets, membership, autonomy and by-

laws — factors common to the three cases. The com-

pany was faced with a new union with different

economic options and with a different locus of power.

Consequently, the change in bargaining entity denied

the efficacy of an amendment of certification and re-

quired, as the only available avenue, a Board-

supervised election.

CONCLUSION

For the foregoing reasons, this petition for writ of

certiorari should be granted.

Respectfully submitted,

AMUEL LANG

Kullman, Lang, Inman & Bee

A Professional Corporation

Post Office Box 60118

New Orleans, Louisiana 70160

Attorneys for Petitioner

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CERTIFICATE OF SERVICE

In accordance with the provisions of Rule 33 of the

Supreme Court rules, I certify that I have caused o

copy of the foregoing Petition for Writ of Certiorari to

the United States Court of Appeals for the Fifth Circuit

to be served on the following persons by mailing three

copies of same via air mail, postage prepaid:

Mr. Elliott Moore

Deputy Associate General Counsel

National Labor Relations Board

1717 Pennsylvania Avenue, N.W.

Washington, D.C. 20570

and

Mr. Charles M. Paschal

Regional Director

National Labor Relations Board

Fifteenth Region

1001 Howard Avenue, Suite 2700

New Orleans, Louisiana 70113

This ay of July, 1978

AMUEL LANG

COUNSEL FOR

J. RAY McDERMOTT

& CO., INC.

APPENDIX

J. RAY McDERMOTT & CO., INC.,

Potitioner-Croas Respondent,

NATIONAL LABOR RELATIONS BOARD,

Respondent-Cross Petitioner.

No. 77-1171.

United States Court of Appeals,

Fifth Circuit.

April 18, 1978.

Petition for Review and Cross-Application

For Enforcement of an Order of the

National Labor Relations Board.

Before HILL, RUBIN and VANCE, Circuit Judges.

RUBIN, Circuit Judge:

McDermott! petitions to set aside a decision of the

NLRB holding that it has unlawfully refused, in viola-

tion of the National Labor Relations Act, §§ 8(a)(1) and

8(a)(5), to bargain with Local 1012. the certified

bargaining agent of certain of its employees, and

ordering McDermott to bargain with that union.

1 J. Ray McDermott, Inc.

2 Professional Divers Looal 1012, United Brotherhood of

Carpenters and Joiners of America, AFL-CIO.

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McDermott contends that the order is invalid

because (1) the Board's decision to certify the Inter-

national Association of Professional Divers (“IAPD”)

as bargaining agent for all regular divers, tenders and

rack operators in McDermott’s Diving Division was

invalid; (2) the Board's decision to amend IAPD's cer-

tification to name Local 1012 as bargaining agent was

invalid; (3) Local 1012's unfair labor charge was time-

barred under the National Labor Relations Act,

§ 10(b); and (4) McDermott entertained good faith

doubt, at the time it refused to bargain, that the Local

represented a majority of McDermott's employees.

Because MoDermott's arguments are not well-

founded, we order that the Board's decision, in all

respects, be enforced.

On May 25, 1970, the International Association of

Professional Divers, Inc. of Louisiana (“IAPD, Inc.“).

was incorporated as a not-for-profit corporation to

further the interests of professional divers, primarily

those operating off the Gulf Coast. An unin-

corporated association named the International

Association of Professional Divers (“IAPD”), which

had the same officers and the same members as the

corporation, began to function as a labor organization

for the purpose of organizing Gulf Coast divers'and

securing collective bargaining contracts that would

further their interests.’

4 W- lala organizational structure is considered at Part III,

Certification of the IAD

On February 11, 1974, the LAPD entered into an

agreement to affiliate with the Marine Engineers

Beneficial Association (“MEBA”), a national union.

The affiliation was later completed, and a formal

charter was issued by District 2, MEBA.

In the spring of 1974, [APD-MEBA petitioned for a

representation election among McDermott

employees. The local Regional Director of the NLRB

ordered an election to be held in the early summer

among all regular divers, tenders, and rack operators

in McDermott’s Diving Division. IAPD-MEBA won

the election, but, upon the employers’ objections, the

NLRB set it aside. J. Ray McDermott & Co., Inc., 1974,

215 NLRB 570.

In December, 1974, the Regional Director ordered a

second election, which, like the first, was to be

conducted by mail ballot. Balloting kits were subse-

quently sent to 86 eligible employees. As of the

February 26, 1975 voting deadline, 39 votes were cast

for IAPD-MEBA; 36 votes were cast against IAPD-

MEBA; 6 ballots were cast and challenged by the

employer; 1 eligible employee had died; 1 employee

lost. his ballot return envelope and was unable to

secure a replacement and to vote by the deadline; and 3

employees’ ballots were not received. These three

each testified later that each had separately mailed a

timely ballot. These three ballots could have affected

the outcome of the election.

Primarily on the basis that these three ballots had

not been received, the employer objected to certifica-

tion of [APD-MEBA. The Regional Director, however,

overruled McDermott’s objections and, on April 18,

1975, certified IAPD-MEBA as exclusive bargaining

agent for all regular divers, tenders and rack

operators in McDermott’s Diving Division. The NLRB

mmm

On July 3, 1975, Paul Woodhall, President of LAPD-

MEBA, wrote to the Manager of McDermott’s Diving

Division on an IAPD, Inc. letterhead asking to start

collective bargaining and requesting information

pertaining to the anticipated negotiations. On July 10,

1975, the Division Manager informed Woodhall that

McDermott would not furnish the requested informa-

tion or bargain with IAPD-MEBA because McDermott

disputed the validity of the union’s certification.

Woodhall reiterated the union’s request by letter on

ae 21, 1975; the request was again denied on July 24,

Creation of Local 1012

On July 7, 1975, President Woodhall mailed notice to

all IAPD members, including members working for

employers other than McDermott, informing them

that at the regular quarterly meeting to be held on July

11, 1975, the membership would consider a resolution

to disaffiliate from District 2, MEBA, and the

possibility of affiliation with “another international

union.” A separate notice was sent to the members in

their capacity as shareholders of LAPD, Inc., inform-

ing them of a shareholders’ meeting to be held at a

later time on July 11, 1975, to consider dissolution of

the corporation.

The meeting of [APD-MEBA was held as scheduled.

only members of the union were admitted.

Resolutions were offered to disaffiliate from MEBA

and to transfer affiliation to the United Brotherhood of

Carpenters and Joiners of America, AFL-CIO (“Unit-

ed Brotherhood”), to become Local 1012 of that union.

Following discussion of the resolutions, a vote was

taken by secret ballot. The results were 77 to 1 in favor

of disaffiliation from MEBA, and 76 to 2 in favor of af-

filiation with the United Brotherhood. The meeting

was adjourned, and the members reconvened as IAPD,

Inc. shareholders, voting unanimously by show of

hands to dissolve the corporation. Upon the adjourn-

ment of the corporate meeting, President Woodhall in-

troduced a vice-president of the United Brotherhood,

who presented the members with a charter for Local

1012.

As of July 11, 1975, IAPD-MEBA had roughly 200

members. The union's records do not indicate how

many of the 76 voting to affiliate with United

Brotherhood worked on July 11, 1975 for McDermott

and how many worked for other bargaining units. The

leadership of Local 1012, therefore, took steps in late

July, 1975 to secure ratification of the affiliation trans-

fer by a majority of employees in the McDermott Div-

ing Division, both union and non-union, prior to seek-

ing an amendment of IAPD’s certification as bar-

gaining agent of that unit. President Woodhall re-

quested a list of all current employees from McDer-

mott’s Division Manager. The Manager denied

Woodhall’s request for such a list. The union then

mailed balloting kits to 95 McDermott employees,

whose names were gathered from the list of employees

—

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as 3 notwithstanding one employee's inability to

8 cee mng Place in time to vote. The Regional

eher rmined that. even though there uncount-

ere timely cast and could have affected the

outcome of the election, neither the Board, the union

nor the empl

e e ployer was responsible for the loss of the

The Regional Director properly weighed the co

2 interests before him. First, he properly con-

uded that the initial decision to hold the second

ie See cats election by mail was proper. The prior

2 had secured a high degree of participation.

ause the employees involved worked a variety of

mise in scattered locations, a mail ballot was the only

rea- way to secure votes in a reasonable amount

e. and could best be expected to insure fairness

and the broadest participation possible in the vote.

Further, the parties’ interest in the finality of the

representation proceedings was a substantial one

The difficulties in conducting a definitive poll amo

McDermott employees had already postponed e

tive bargaining for over a year after the union first

petitioned for an election. It is reasonable for the

Regional Director to have found that the election

* given all the relevant circumstances, ade-

pee y demonstrated that the majority of unit

Ployees desired representation by the IAPD:; He

properly found that the election was conducted fairly

a hws the non-receipt of the mail ballots was an

fait: een, occurrence beyond the control of the par-

pa sm or the [voting employees],” Versail

g. supra, 212 NLRB at 593.

It cannot be said that an election by mail is per se in-

valid whenever a potentially decisive number of

votes, no matter how small, is lost through the

vagaries of mail delivery. Such a rule might unduly

deter the use of mail balloting in cases like this in

which a mail election, though less readily super-

visable than a ballot box election, might prove more

representative of, and fairer to, the voting employees.

We do not decide here that the decisions of the

Regional Director and of the Board in this case were

necessarily the wisest possible, or that, in future

representation cases, the interests of the parties in

finality shall always be deemed to overcome even oc-

currences beyond the parties’ or the Board's control

that prevent potentially decisive numbers of votes

from being counted. We decide only that the balance

struck by the Board in this case was reasonable. We

are bound to regard the certification of the IAPD as

valid.

III.

McDermott further asserts that the Board's decision

in 1976 to amend the IAPD’s certification to name

Local 1012 as the McDermott employees’ bargaining

agent was invalid: first, because the Board erred in its

conélusion that the transfer of affiliation was ap-

proved through proper democratic means: second,

because the Board erred in concluding that Local 1012

was merely the continuation of IAPD under another

name, rather than a new organization taking over the

IAPD’s certification without an election.

TE! Vee

10a

McDermott's grounds are essentially those set forth

in NLRB member Walther’s dissent from the certifica-

tion amendment decision, Ocean Systems, Inc., 1976,

223 NLRB 857. It argues that (1) the notice to members

of the impending vote was insufficiently specific, (2)

members were not given sufficient notice for adequate

debate and consideration prior to the meeting, (3)

MEBA representatives were excluded from the meet-

ing, (4) the meeting was conducted by officers already

known to favor a transfer of affiliation, (5) members

were presented with no alternative to the officers’

resolutions, (6) insufficient time was provided at the

meeting for discussion and debate, and (7) the voters

Het ia transfer did not constitute a majority of the

union.

We agree with the Board majority that the objections

McDermott raises are either unsupported, irrelevant,

or outweighed by other evidence of fairness in the

election process.‘ What constitutes adequate notice or

time for consideration of a particular issue can be

judged only when all of the circumstances are con-

sidered. In the present case, the members received

mailed notice that was not misleading and that com-

plied with the by-laws and constitution of the corpora-

tion and of the unincorporated association. Over one-

third of the union attended the quarterly meeting. Of

4 The Board's standard for review of affiliation

is set forth in Hamilton Too! transfer elections

While the election Co. 1971, 190 NLRB 871, S76.

procedures .

standards the Board demands for its own elections,

the 78 members voting, all but one approved dis-

affiliation from the MEBA, and all but two approved

the transfer of affiliation. The record offers evidence of

some discussion among the members; the absence of

longer debate is as consistent with the conclusion of

overwhelming membership agreement as with

McDermott’s offered conclusion that the result was

railroaded through. The members’ right to a secret

ballot was adequately protected, and the majority of

members voting, as well as the majority of employees

in the bargaining unit, have offered no complaints or

opposition to the transfer of affiliation. Amoco

Production Co., 1975, 220 NLRB 861.

The record clearly evidences the union leaders’ sup-

port for an affiliation transfer, but that fact alone hard-

ly invalidates the results of the meeting they chaired.

Hamilton Tool Co., 1971, 190 NLRB 571. The task of un-

ion leaders is to lead; they cannot be faulted for

sponsorship of a particular program so long as their

leadership is fair and protective of the union

members’ rights. The members here were presented

with an obvious alternative to approval of the officers’

resolutions, namely, disapproval. The election result

is not suspect because non-members and MEBA repre-

sentatives were excluded from the deliberations.°

5 McDermott also objects because only about two-fifths of the

IAPD’s membership voted on the transfer resolutions. So long as

the absence of a majority of union members at an election cannot

be attributed to unfair action by any party, it must be presumed

that those who could have voted, but did not, assented to the will of

the majority of those voting. Cf, NLRB v. Singleton Packing

Corp., 5 Cir. 1969, 418 F. 2d 275, 279, cert. denied, 1970, 400 U.S. 824. 91

S.Ct. 47, 27 L.Ed.2d 53; NLRB v. Whittier Mills Co., 5 Cir. 1940, 111

F.2d 474, 477: North Electric Co., 1967, 165 NLRB 942.

The record in this case demonstrates overall

fairness and substantial compliance with the union's

own by-laws and constitution in contrast with those

cases cited by McDermott in support of its position.

Considering the record as a whole, we do not find that

the Board was unreasonable in concluding that the

IAPD’s members had sufficient time and opportunity

to consider the proposed transfer of affiliation. We ap-

prove the Board's finding that no irregularity so in-

a the election process as to invalidate the election

ishable on its facts. In

process. Further. no discussion

whole was held prior to the balloting. Votine omen eee ae 8

. Voting

room in which they could either proceed to vote in one corner, or. in

filiate union. In the present case, a full discussion was conducted

3 and no member of the United Brotherhood wes

Whether or not a merged union should con-

tinue to be considered the bargaining repre-

sentative of a unit of employees depends on a

factual determination — is it a continuation of

the old union under a new name or is it a sub-

stantially different organization?

NLRB V. Commercial Letter, Inc., 8 Cir. 1974, 496 F. 2d

35, 39.

This factual determination is for the Board to make

initially. We are commanded in principle and by

precedent not to re-examine its decision if it is sup-

ported by substantial evidence on the record as a

whole. NLRB v. Commercial Letter, Inc., supra; see

also, Carpinteria Lemon Assn. v. NLRB, 9 Cir. 1956,

240 F. 2d 554, 557, cert. denied, 1957, 354 U.S. 909, 77 S. Ct.

1295, 1 L.Ed. 1427.

McDermott objects to the certification amendment

on the ground that Local 1012 is not merely the IAPD

with another name, but an altogether new and

different bargaining agent. Virtually all of the dif-

ferences McDermott cites, however, are differences

not between the IAPD and Local 1012, but between the

MEBA and the United Brotherhood. The record fails to

_show any substantial difference between the IAPD and

its successor that would support the conclusion that

Local 1012 is a genuinely different organization.

The factual determination at issue revolves not

around superficial criteria such as the size of the

— — — —

respective locals or organizational differences in the

national unions of which they become a part. Rather,

we must consider whether changes have occurred in

the rights and obligations of the union’s leadership

and membership, and in the relationships between the

putative bargaining agent, its affiliate, and the

employer. NLRB v. Pearl Bookbinding Co., Inc., 1 Cir.

1975, 517 F.2d 1108, 1111-1112.

Only one factor cited by McDermott as demon-

strating a discontinuity in bargaining agents requires

detailed review: McDermott urges that a break is

manifested by the dissolution of IAPD, Inc. as an ap-

parent prerequisite to the grant of Local 1012's

charter, and by the continuing maintenance of IAPD,

Inc. 's assets in a separate account pending the even-

tual liquidation of the corporation.

The significance of the corporate dissolution is un-

clear only because of confusion as to the relationship

of IAPD and IAPD, Inc. Although counsel for McDer-

mott conceded that the two were separate organiza-

tions and that the unincorporated association was the

Wege, bargaining agent prior to April, 1976, all

D correspondence in the record with regard to un-

ion activities bears the letterhead, “International

Association of Professional Divers, Inc.” MEBA

granted a charter to the union under its corporate

name. IAPD is described in its agreement with MEBA

as an “incorporated association,” and the corporate

name appears in the heading on the union’s constitu-

tion. There is thus evidence to indicate that LAPD, Inc.

and IAPD are not two organizations, but one: if that

were so, then the dissolution of the corporation might

have substantially altered the legal relationships

among the members, officers and the employer.

Substantial evidence, however, also supports the

conclusion of the Board’s majority that the bar-

gaining agent has had a continuous, unbroken ex-

istence. First, a set of by-laws distinct from the union's

constitution appears to have governed the organiza-

tion’s corporate incarnation. Second, President

Woodhall’s testimony before the NLRB suggests that

the officers understood the organizations to be, and

treated them as, separate. Finally, union and cor-

porate meetings were convened and run separately,

with separate notices of each sent to members, and

separate minutes kept of each. These facts indicate

that the IAPD was distinct from IAPD, Inc. and that

only the unincorporated IAPD was the certified

bargaining agent of McDermott's employees. Because

only the unincorporated IAPD was the bargaining

agent before April, 1976, the dissolution of IAPD, Inc.

was not a significant change in the bargaining agent

requiring us to view the non-corporate status of Local

1012 as a substantial change in the bargaining agent's

structure.

There is also substantial evidence that the

autonomy, dues structure, and leadership of the IAPD

remained unchanged after July 11, 1975, despite its

change in identity. [APD members were required to

file membership applications with the United

Brotherhood, but acceptance was automatic. It

appears that dues paid to the IAPD were considered

good against obligations due the new Local 1012.

Further, the United. Brotherhood waived initiation

— ——

toes for six months, thus permitting a ti |

„ g a transfer of

membership from the [APD without additional finan-

cial obligations. The differences between the

organizations are superficial: no presently func-

tioning IAPD remains to contest

“Pe the certification of

Consequently, we find that the certifi

; cation amend-

ment granted to Local 1012 by the Board was valid.

IV.

In addition to challenging the Board’

their merits, McDermott een dine e

unfair labor charge filed on April 29, 1976, based on

McDermott’s refusal to bargain, was barred by the six-

month statute of limitations provided under the

National Labor Relations Act, § 10(b), because the

employer's refusal to bargain on July 24

1975

statutory limitations period arg ae

This circuit has twice held that each refusal to

bargain by an employer under a duty to bargain is a

violation of the employer's duty, and that the passage

of more than six months’ time from one such refusal

p by aconclusory labeling of the employer's duty

or of his violation as a “continuing” one. Rather, we

ek e that the primary purpose of the six-month

assure prompt adjudications of disputes bas-

ed on fresh evidence. McDermott's refusal to bargain

wae based on motives contemporaneous with its

refusal to bargain on April 21, 1976. The filing of a

complaint on April 29, 1976 brought those motives into

question, and was timely with regard to the unfair

labor charge alleged. Cf., I oo Lodge 1424 v. NLRB,

1960, 362 U.S. 411, 416-422, 80 S. Ct. 822, 4 L.Ed.2d 832;

NLRB v. McCready and Sons, Inc., 6 Cir. 1973, 482 F.2d

872.

McDermott finally contends that its refusal to

bargain in April, 1976 was justified because of the

company’s good faith doubt with respect to whether

Local 1012 truly represented the majority of bar-

gaining unit employees. This doubt was based on the

alleged invalidity of pre-1975 representation; on a

turnover of personnel at McDermott, including the

departure of four persons in February, 1976, who had

voted for the union; and, on Local 1012's alleged failure

to demonstrate organizational strength in response to

the company's recalcitrance.

These factors are insufficient to overcome the

presumption of majority support that Local 1012 en-

joys, During the first year following certification, a

union enjoys an irrebuttable presumption of majority

support. After that year, as in this case, the presump-

tion is rebuttable and may be overcome by “objective

evidence” proffered by an employer. NLRB v. News-

papers, Inc., 5 Cir. 1975, 515 F. 2d 334, 340-341. It is in-

sufficient, however, that the employer merely intuits

non-support; there must be convincing evidence.

Refusal to bargain may not be based on a combination

of employee ‘turnover and some anti-union com-

plaints, NLRB v. A. W. Thompson, Inc., 5 Cir. 1976, 525

F. ad 870, cert. denied, 1976, 429'U.S. 818, 97 S.Ct. 63, 50

L.Ed.2d 78, or on the termination of employment by a

greater number of union adherents than the difference

between the majority and minority votes in a

representative election, NLRB v. Gulfmont Hotel Co

5 Cir. 1966, 362 F.2d 588. Accord, Nazareth Regional

High School v. NLRB, 2 Cir. 1977, 549 F.2d 873. See,

NLRB v. Washington Manor, Inc., 6 Cir. 1975, 519 F. 2d

750, in which the court held that a one hundred percent

employee turnover during the term of a collective

bargaining agreement, together with a close (27 to 24)

representation election and alleged union inactivity

did not ustify the employer's doubts as to the union's

majority status ‘unaccompanied by objective

evidence that new employees do not support the un-

ion,” 519 F.2d at 753. The kind of “objective evidence

ordinarily sufficient to overcome a rebuttable

presumption of majority support would be greater

than fifty percent employee support for a decertifica-

tion petition, Automated Business Systems v. NLRB, 6

vee: 1974, 497 F.2d 262, or thirty percent support for

ecertification combined with other indicia of non-

support, National Cash Register Co. v. NLRB, 8 Cir.

ps yi due 189. iin company’s evidence falls short

For the foregoing reasons, McDermott’s re

bargain with Local 1012 in April, 1976 was scans

and unlawful, McDermott’s petition to set aside the

Board's order is DENIED, and we direct that the order

in all respects, be ENFORCED. | a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

J. RAY McDERMOTT & co., INC.,

Petitioner,

versus No. 77-1171

NATIONAL LABOR RELATIONS BOARD,

Respondent.

JUDGMENT

Before: HILL, RUBIN and VANCE, Circuit Judges.

THIS CAUSE came on to be heard upon a petition

filed by J. Ray McDermott & Co., Inc., to review an or-

der of the National Labor Relations Board issued

against said Petitioner, its officers, agents,

successors, and assigns, on January 21, 1977, and upon

a cross-application filed by the National Labor

Relations Board to enforce said Order. The Court

heard argument of respective counsel on February 2,

1978, and has considered the briefs and transcript of

record filed in this cause. On April 18, 1978, the Court

being fully advised in the premises handed down its

decision granting enforcement of the Board's Order. In

conformity therewith it is hereby

- ORDERED AND ADJUDGED by the United States

Court of Appeals for the Fifth Circuit that the said

order of the National Labor Relations Board in said

e Rae . %

22a

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor Rela-

tions Board adopts as its Order the recommended

Order of the Administrative Law Judge and hereby or-

ders that the Respondent, J. Ray McDermott & Co.,

Inc., New Orleans, Louisiana, its officers, agents,

successors, and assigns, shall take the action set forth

in the said recommended Order.

Dated. Washington, D.C. January 21, 1977

Howard Jenkins, Jr., Member

John A. Penello, Member

NATIONAL LABOR

RELATIONS BOARD

(SEAL)

MEMBER WALTHER, dissenting:

For the reasons previously expressed in my dis-

senting opinion in the underlying representation

proceeding. Ocean Systems, Inc., 223 NLRB No. 105

(1976). I dissent from my colleagues finding of a viola-

tion herein.

Dated. Washington, D.C. January 21, 1977

Peter D. Walther, Member

NATIONAL LABOR

RELATIONS BOARD

23a

JD-639-76

: New Orleans, LA

DECISION

(Number and Title Omitted)

Statement of the Case

PLATONIA P. KIRKWOOD, Administrative Law

Judge: This case was heard at New Orleans,

Louisiana, on July 20, 1976, pursuant to a charge filed

on April 29, 1976, by the above named union (Union“)

against the above named company (“Respondent”)

and a complaint which issued on June 3, 1976. The case

presents the following question:

Did the Respondent violate Section 8(a)(5) and

(1) of the Act by refusing to recognize and

bargain with the Union as the exclusive bar-

gaining representative of the employees com-

posing the unit described below?

Upon the entire record in the case,’ including the

post-hearing briefs filed by the General Counsel and

the Respondent, and from my observation of the wit-

nesses, I make the following:

Findings of Fact and Conclusions

I. The Business of the Respondent

Respondent is a Delaware corporation doing busi-

1 Underlying representation proceedings in Case 15-RC-5361

and 15-AC-28 (223 NLRB No. 105) were duly noted as an ad-

ministrative and official matter during the hearing, as were the

Board's findings, rulings and order in those proceedings. Official

notice was (and is) also taken of the record in those proceedings as

the term “record” is defined in Sections 102.68 and 102.69(f) of the

Board's Rules and Regulations, Series 8, as amended. See LTV

‘Electro Systems, Inc., 166 NLRB 938, enf'd 388 F. 2d 683 (C. A. 4.

1968): Golden Age Beverage Company, 167 NLRB 151, enfd 415

F. 2d 26 (C. A. 5, 1969); Intertype Company v. Penello, 269 F. 2d 573

(D. C., Va. 1967); KFC National Management Company, 204 NLRB

630: and Section 9(d) of the NLRA.

FIP EEO Te ESD , ,

19,3 5 * 8

24a

ness in the State of Louisiana, with its principal of-

fices located in New Orleans, Louisiana. It is engaged

in the general contracting, marine contracting, oil

field construction and fabricating business. During

the past 12 months, a representative period, Respon-

dent purchased and received goods valued in excess of

850.000 directly from points located outside the State

of Louisiana. During the same 12-month period of time

Respondent shipped goods valued in excess of $50,000

directly to points outside of Louisiana. Respondent

admits and I find that it is an employer engaged in

commerce within the meaning of Section 2(6) and (7) of

the Act, and that its interstate commerce operations

te the Board's discretionary jurisdictional] stan-

ards.

II. The Labor Organization Involved

A prior determination by the Board in the under-

lying proceedings in Case 15-AC-28, 223 NLRB No.

105, and the credible evidence additionally adduced in

this proceeding, establishes, and I find, that the Union

is, and has at all times here relevant been, a labor or-

1 within the meaning of Section 2(5) of the

ct.2

2 Respondent disputed the status of the Union as a labor

organization partially on grounds considered and rejected by the

Board in the underlying amendment to certification proceeding.

See 223 NLRB No. 105. As the Board's determinations and

decisions are. oi course, binding upon me. I would not countenance

Respondent's efforts to attack the validity of the Board's rulings

and decisions in the underlying proceedings in any way. Nor

would I permit it or any other party to litigate at this hearing any

matters which were or could have been litigated in the said prior

representation proceeding. See Pittsburgh Plate Glass Co. v.

N. I. R. B. 313 U. S. 146, 162; Rules and Regulations of the Board. Sec-

tion 102.67(f) and 102.69(c).

In light of the Respondent's denial of the current status of the Un-

ion as a labor organization. I did permit Respondent, however. the

opportunity to ask the Vice President of the Union a limited

— A a acres 5 the Union's activities as an

0 representative at dates su ent ‘ i-

sion in 223 NLRB No. 105. ee

25a

Ill. The Alleged Unfair Labor Practices

A. Background and Chronology of

Relevant Events

On April 18, 1974, the Regional Director of the

Fifteenth Region of the National Labor Relations

Board (Regional Director”), issued a Decision and

Direction of Election in Case 15-RC-5316 which in-

volved the Company herein and the International

Association, of Professional Divers, a/w District 2,

MEBA, AFL-CIO (“IAPD”). The unit found ap-

propriate by the Regional Director consisted of divers,

tenders, and rack operators employed by the Company

in its Diving Division excluding all other employees,

free lance divers and tenders, shop employees, dis-

patchers, office clerical employees, shop clerical

employees, guards and supervisors as defined in the

Act. The election was conducted by mail ballot and a

majority of those voting cast ballots for IAPD.? The

Board however, set that election aside because of par-

tially meritorious objections the Company had filed

and ordered that a second election be conducted among

the employees in the unit found appropriate by the

Regional Director. 215 NLRB No. 104.

The second election was also held by mail ballot. The

tally of ballots was served on the parties on February

27, 1975. It disclosed that of approximately 86 eligible

voters, 39 cast ballots for, and 36 against. IAPD; and 6

cast challenged ballots. The Company filed objections

to that election also.

3 The tally showed that of approximately 78 eligible voters. 40

cast ballots for IAPD, 33 cast hallots against IAPD, and 3 cast

challenged ballots.

26a

On April 18, 1975, the Regional Director issued a

Second Supplemental Decision and Certification of

Representative in which he overruled the Company's

objections, sustained, 4 of the 6 challenges, found it

unnecessary to resolve the 2 remaining challenges as

they were no longer determinative, and issued a cer-

tification to IAPD. The Company then filed a request

for review with the Board, and on June 30, 1975, the

Board, by telegraphic order denied that request for

review.‘

On July 3, 1975, Paul Woodhall, president of the certi-

fied union, wrote Robert J. McGuire, the Company's

division manager, to request information so as to

prepare for negotiations and to suggest a meeting date

for bargaining. By letter dated July 9, 1975, McGuire

responded that the Union's requests were being con-

sidered. One day later, by letter of July 10, 1975,

McGuire informed Woodhall that the Company did not

believe that the Board's certification was valid and

that the Company was consequently declining to

bargain or to furnish information.

On July 21, 1975, Woodhall again wrote McGuire and

requested the identical information requested in the

July 3 letter. Additionally, Woodhall requested the

current addresses of all divers, tenders, and rack

operators then employed by the Company. By letter

dated July 24, 1975, McGuire again refused to supply

4 On April 22, 1975, before the Request for Review was f

* led.

IAPD wrote the Company requesting certain information. The

Company replied by lettor dated April 29, 1975, refusing the re-

quest and stating that a Request for Review of the ional Direc-

tor’s Supplemental Decision and Certification be filed.

the information and repeated the challenge of the cer-

tification's validity.

On September 10, 1975, the Union filed a petition to

amend the above certification, so as to designate it in

place of IAPD as the certified representative. The

Employer opposed the petition. A hearing was then

held, and on April 12, 1976, the Board granted the peti-

tion and ordered that the certification issued on April

28, 1975, supra, be amended by substituting the name

of the Union for that of IAPD. 223 NLRB No. 105.

On April 15, 1976, Woodhall wrote to McGuire again

requesting a negotiation meeting and suggesting cer-

tain specific dates. On April 21, 1976, McGuire replied

stating that he would not meet with the Union, and

asserting further that the Company not only ques-

tioned tie validity of the certification and the amend-

ment thereto but also that it did not believe the Union

currently represented a majority of the employees in

“any unit appropriate for purposes of collective

bargaining.”

B. The Contentions of the Parties

and Their Merits

The complaint's relevant provisions allege in part

that “commencing on or about July 10, 1975, and con-

tinuing to date, and more particularly on or about

April 21, 1976, Respondent refused and continues to

refuse to recognize and or bargain with the Union on

behalf of employees composing the unit for which the

Union holds the certificate of representative issued to

it by the Board as above described.” Respondent ad-

mits that, as alleged, it has refused to bargain with the

28a

Union in July 1975, and in April 1976, and continues to

refuse to bargain with it. Respondent maintains that,

nonetheless, the complaint improperly describes its

conduct to bean unfair labor practice within the mean-

ing of Section 8(a)(5) of the Act. It rests this claim on

the following contentions, each of which I consider,

seriatim.

ist. More than 6 months has expired since the al-

leged cause of action — i.e., the refusal to bargain —

arose, and a complaint is therefore barred under the

provisions of Section 10(b) of the Act. Respondent

claims, in this respect, that its refusal to bargain with

the Union in July 1975 was unequivocal in nature and

that the charge — filed more than 3 months later — was

therefore time-barred.

I find no merit in the above contention. The undis-

puted facts establish that the Union made a bargain-

ing demand on Respondent on April 18, 1976, which the

Respondent admittedly refused to honor on April 21,

1976, and that the charge which initiated this proceed-

ing was filed but 8 days later. Under well-established

Board precedent, it is clear and I find that even though

Respondent had rejected prior bargaining requests

addressed to it, its new refusal to recognize and

bargain with the Union provided the basis for an in-

dependent cause of action on which this complaint

properly rests.“ See, for example, United States Gyp-.

sum Company, 143 NLRB 1122, 1126, Note 6; Strong

Roofing and Insulating Company, 152 NLRB 9, en-

5 A motion to dismiss the complaint on 10(b) grounds was made

in Respondent's answer to the complaint and was denied by me at

the hearing. I hereby reaffirm my ruling on that motion.

. Of such evidence as

eren

N 1 ‘ 1 : ;

29a

forced, 386 F. ad 929 (C. A. 9), affirmed on other

grounds, 393 U.S. 357.°

2nd. The certification of representative in Case 15-

RC-5361 and the amendment of certification in Case

15-AC-28 were invalidly issued.

It is outside my province to rule upon the issues

sought to be raised by this contention of Respondent. I

accept the Board's decision and its ruling in the under-

lying representation and amendment to certification

proceedings as correct and final.“

3rd. Respondent's final contention is that its

refusal to bargain on April 21, 1976 — 3 days after the

expiration of the 1-year period following the Board's

certification of the Union's status as the majority

representative — was predicated on a good faith doubt

of the Union's continued enjoyment of majority sup-

port.

6 Iam cognizant of the existence of some court decisions ex-

pressing a view contrary to that taken by the Board in applying its

concept of 10(b) in cases involving successive refusal to bargain

though not on facts precisely analogous to those in the case at

hand. N. I. R. B. v. M and Sons, Inc., 482 F. 2d 87% (C. A. 6).

denving enforcement of 195 NLRB 28, cited by Respondent in its

brief. is one such case. Decisions by other Circuits similarly hold-

ing are cited by the Sixth Circuit Court in its opinion in McCready.

Assuming those court decisions provide support for the

Respondent's argument it is clear that the Board's decisions do

not. | am, of course, bound to follow the Board's decisions and rul-

ings until the same are reversed by the Supreme Court. See

Prudential Insurance Agents, 119 NLHKB 768, Ranco, Inc., 109

NURB 998, 1009, fn. 8; Lenz Co., 153 NLRB 1390.

7 Respondent may, of course, reiterate before the Board, its con-

tentions concerning the correctness of the representation case

determinations, and its position that evidence allegedly material

to those determinations was not considered, inasmuch as the

Board clearly has discretion both to reopen the case for the receipt

t wishes to proffer or, without

reopening, to decide that its original determinations were wrong

But the Board's power and di to take such action does not

permit me that latitude. I note, in this respect, that Respondent

made no proffer of evidence newly discovered since the date of the

Board's proceedings it hore attacks.

Resolution of the issue raised by this contention of

Respondent rests on well-settled principles of law.

These principles were recently restated in Bartenders

Hotel, Motel and Restaurant Employer Bargaining

Association of Pocatello Idaho, and its Employer-

Members, 213 NLRB 651. Quoting from an earlier deci-

sion — Terrell Machine Company, 173 NLRB 1480,

1481, enf'd427F. 2c 1088 (C. A. 4), the Board said in rele-

vant part:

It is well settled that a certified union, upon ex-

piration of the first year following its cer-

tification, enjoys a rebuttable presumption

that its majority representative status con-

tinues. This presumption is designed to

promote stability in collective-bargaining

relationships, without impairing the free

choice of employees. Accordingly, once the

presumption is shown to be operative, aprima

facie case is established that an employer is

obligated to bargain and that its refusal to do

so would be unlawful. The prima facie case

may be rebutted if the employer affirmatively

establishes either (1) that at the time of the

refusal the union in fact no longer enjoyed ma-

jority representative status; or (2) that the

employer's refusal was predicated on a good-

faith and reasonably grounded doubt of the un-

ion's continued majority status. As to the sec-

ond of these, i.e., “good faith doubt,” two pre-

requisites for sustaining the defense are that

the asserted doubt must be based on objective

considerations and it must not have been ad-

vanced for the purpose of gaining time in

which to undermine the union. [This second

point means, in effect, the assertion of doubt

must be raised “in a context free of unfair

labor practices.“ See Nu-Southern Dyeing «&

Finishing, Inc., 179 NLRB 573 fn. 1 (1969), en d

in part 444 F. 2d 11 (C. A. 4. 1971.)

To establish that its refusal to bargain with the Un-

ion on April 22, 1976, was predicated on a “good-faith

and reasonably grounded doubt” of the Union's ma-

jority status on that date, Respondent relied on the

testimony of Division Manager McGuire. According

to McGuire, he arrived at a conclusion that the Union

had not retained the support of a majority of the unit

employees on the basis of a combination of the follow-

ing objective facts: (a) the vote for union representa-

tion in the 1975 certification election exceeded the vote

against representation by only a narrow margin (39 to

36); (b) only 52 of the 86 employees who were eligible to

vote in the 1975 election still remained employed with

the Company; (c) there were now 89 employees within

the bargaining unit, an increase in the unit comple-

ment of 3 employees — and of these 89, 37 were newly

hired since the conduct of the 1975 election: and (d)

each of 4 employees who resigned his job in February

1976 (each of whom was promptly replaced by anewly

hired employee) had advised McGuire at the time of

resignation that he had voted for the Union.“

8 Other cases similarly holding are set out in the able brief filed

by General Counsel. t's equally able brief recognizes

the existence of these principles and their applicability as a means

of testing the validity of the contention here being considered.

9 McGuire also testified about his subjective belicf that the Board

. erred in finding that a majority of the unit employces in 1975 had

voted for union representation, In so testifying. McGuire was not

presenting any valid ground for the refusal to bargain but was

reiterating a claim Respondent had unsuccessfully urged before

the Board in the 0 proceeding.

Reviewing the above evidence, it is plain that all

that Respondent has proved with respect to the ex-

istence of an objective basis for its asserted doubt of

the Union's majority status on April 21, 1976, is that, in

the slightly more than 1-year period following the

Board's conduct of the certification election, there had

been an increase in the size of the unit of less than one

half of one percent, and a turnover in unit personnel of

approximately 52 percent. In accord with well estab-

lished Board law, I find neither of these factors to be

sufficient to support a conclusion that Respondent

had a reasonably grounded and valid objective basis

for doubting that the Union did not continue to enjoy

the majority support among the unit employees, and

for refusing, accordingly, to bargain with Union. 10 as

it did, on April 21, 1976.

In light of all the foregoing findings, I conclude that,

by virtue of Section a) of the Act the Union, at all

times here material was and now is the exclusive

representative of the Respondent’s employees in the

appropriate unit as above-describéd, and that the

Respondent, by its refusal to bargain with the Union

2 April 21, 1976, violated Section 80a) (5) and (1) of the

ct.

The Remedy

Having found that the Respondent has engaged in

unfair labor practices proscribed by Section 8(a)(5)

and (1) of the Act it will be recommended that Respon-

10 See and com King Radio Co 208 NLRB 5

583, Terrell! Machine , 173 1480, 1480-81, outa 487

F. 2d 1088 (C.A. 4, 1970), and the cases there cited.

dent be required to cease and desist therefrom and take

certain affirmative action which I find necessary to

effectuate the policies of the Act. Furthermore, having

found that Respondent unlawfully refused to bargain

with the Union as the exclusive bargaining repre-

sentative in the appropriate unit described above, I

shall recommend that it be ordered to do so upon re-

quest and if an agreement is reached to embody that

agreement in a signed contract.

Upon the foregoing findings of fact and conclusions

and the entire record and pursuant to Section 10(c) of

the Act, I hereby issue the following recommended:

ORDER"!

Respondent J. Ray McDermott & Company, Inc., its

officers, agents, successors and assigns, shall:

1. Cease and desist from:

(a) Failing or refusing to bargain collectively

concerning rates of pay, wages, hours of employment

or terms and conditions of employment with Profes-

sional Divers Loca] 1012 of The United Brotherhood of

Carpenters and Joiners of America, AFL-CIO, as the

exclusive representative of its employees in the

following appropriate unit:

11 In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor

Relations Board, the findi conclusions, and Order herein shall.

as provided in Section 102.48 of the Rules and Regulations, be

. SF the Board and become its findings, conclusions, and

order, all objections thereto shall be deemed waived for all

purposes.

36a

All divers, tenders, and rack operators

employed by the Respondent in its Diving

Division; excluding all other employees, free

lance divers and tenders, shop employees, dis-

patchers, office clerical employees, shop

clerical employees, guards and supervisors

as defined in the Act.

WE WILL NOT in any like or related manner interfere

with, restrain or coerce employees in the exercise of

their rights under the National Labor Relations Act.

WE WILL upon request recognize and bargain collec-

tively in good faith with the above-named Union as the

exclusive representative of the employees in the ap-

propriate unit with respect to wages, hours and con-

ditions of employment, and, if an understanding is

reached, we will embody such understanding in a

signed agreement.

J. RAY McDERMOTT & COMPANY, INC.

(Employer)

Dated By

THIS IS AN OFFICIAL NOTICE AND MUST

NOT BE DEFACED BY ANYONE

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any

questions concerning this notice or compliance with

its provisions may be directed to the Board's Office,

Plaza Tower, Suite 2700, 1001 Howard Avenue, New .

Orleans, LA 70113. (Tel. No. (504) 589-6354).

NATIONAL LABOR RELATIONS BOARD,

~ Petitioner, | |

and

LOCAL UNION NO. 1903, OF THE

INTERNATIONAL UNION, UAW,

Intervenor,

versus

BEAR ARCHERY, DIVISION OF VICTOR

COMPTOMETER CORPORATION,

Respondent.

No. 76-2041.

United States Court of Appeals,

Sixth Circuit.

May 10, 1977.

Application For Enforcement of an Order

of the National Labor Relations Board.

Before WEICK and CELEBREZZE, Circuit Judges,

and GREEN, District Judge.*

Full Text of Order

The National Labor Relations Board has petitioned

for enforcement of its order finding the Bear Archery

* Honorable Ben C. Green. Senior District Judge, United States

District Court for the Northern District of Ohio, sitting by designa-

tion. Pica

Division of the Victor Comptometer Corporation in

violation of Section 8(a)(5), (1) of the National Labor

Management Relations Act for refusal to bargain with

Local 1903 of the United Auto Workers.

The company’s employees were represented by an

independent union, the Bear Archery Employees’

Association, which had been recognized as bar-

gaining agent by the employer but which had not been

certified by the Board. On September 10, 1974, a ma-

jority of employees voted to affiliate the Association

with UAW and it became Local 1903. The company re-

fused to bargain with the UAW, complaining that the

affiliation election was not fairly conducted and that it

did not comport with minimum due process. Two of

the three-member panel of the Board rejected the com-

pany’s contentions. Member Walther dissented

primarily because the election procedures did not

provide the employees with an adequate opportunity

for reflection and for the presentation of opposing

viewpoints. 5

After consideration of the record. briefs and oral

arguments of counsel, we conclude that enforcement

of the Board’s order should not be granted for reasons

stated by Member Walther in his dissenting opinion.

Accordingly,

It is therefore ORDERED that the petition for en-

forcement of the NLRB’s order be, and it hereby is,

denied.

—

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ES RF ee, / K - TT

ee 3 =? CE yt. Fae } S ce Oe 42 ing * asi ey Vs

tion — Local No. 1903 of International Union, Unit-

2 Workers of America (UAW). Case 7-CA-

April 29, 1976

DECISION AND ORDER

By Chairman Murphy and Members Fanning and

Walther

On August 14, 1975, Administrative Law Judge

Robert Cohn issued the attached Decision in this

proceeding. Thereafter, Respondent filed exceptions

and a supporting brief, and Charging Party filed an

answer to the Respondent’s exceptions and brief.

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the

National Labor Relations Board has delegated its

authority 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 and to

adopt his recommended Order.

In late August 1974.1 several employees of the

Respondent, including the president and vice presi-

dent of the Bear Archery Employees Association

1 All dates hereafter are in 1974 unless otherwise noted.

(herein called the Association),? met with a repre-

sentative of the International: Union, United Auto-

mobile, Aerospace and. Agricultural Implement

Workers of America (herein called the UAW), to dis-

cuss the possibility of the Association affiliating with

the UAW. The employees, at that time, decided that a

meeting of the Association’s board of directors should

be held on September 4, to discuss the issue of affilia-

tion with the UAW. Each member of the board of direc-

tors was, thereupon, personally asked by an officer of

the Association to attend the special meeting and was

informed that this would be a very important meet-

ing. Of the 30 members of the board of directors, 29

attended the September 4 meeting and, after dis-

cussing the pros and cons of affiliation, voted unani-

mously by secret ballot to recommend to the members

that the Association affiliate with the UAW and thata

“special membership meeting” be held to vote on af-

filiation.

On September 5, notices were posted throughout the

plant announcing a special association membership

meeting, to be held at the American Legion Hall on

September 10, for the purpose of taking a secret ballot

vote on the issue of affiliation with the UAW. Because

the employees were then working on three shifts, the

notice also stated the time employees on each shift

were scheduled to attend the meeting.

On September 10, the meeting and voting, by shifts,

2 Since 1973, the Respondent has recognized the Association, a

noncertified t labor organization, as the collective-

ment with the Respondent expired December 1975.

took place at the American Legion Hall, the usual

association meeting place. Each employee, upon

entering the hall, was handed a piece of paper by the

Association's vice president which contained the

board of directors’ resolution and recommendation in

favor of affiliation. The employee was then told by the

Association's president, Gary Swanson, that if he or

she had any questions or comments before voting, he

or she should go to another part of the hall, removed

from the voting area, where about 200 chairs had been

set up for the members’ comfort. The Association's

president repeated this statement a number of times so

that all employees who entered the hall were aware of

the opportunity for discussion. Subsequently, Swan-

son and the UAW representative, Walter Schultze,

conducted a meeting in this area. During the first two

voting shifts, all of the employees went to the discus-

sion area, where they listened to Schultze and Swan-

son speak on the advantages of affiliation and asked

questions. During the last shift, however, only about

20 of the approximately 200 employees participated in

the meeting. The others went directly to the voting

area to cast their ballots.

It is not clear how long the meetings lasted.

However, at the conclusion of said meetings, each

voter was directed to a table where the Association’s

secretary and treasurer checked to see if the

employee’s name was on the Employer's official

seniority list which was used as the voter eligibility

list. If the employee’s name was on the list, he or she

was given a ballot, the voter's name was checked off

the list, and he or she was directed to a long table fac-

ing the wall about 20 feet away from the officers’ table

_—_—

where, back turned toward the officers, he or she

would mark the ballot, fold it twice, and deposit it in a

locked ballot box which was situated at the end of the

officers’ table. The ballot box was never removed from

the table and was guarded at all times by either the

Association’s secretary or treasurer. |

At 6 p.m., the polls were closed and the ballots were

counted by a special committee of six employee volun-

teers which included officers and nonofficers of the

Association. Of 519 eligible voters on the seniority

list, 329 voted for, and 67 voted against, affiliation.®

The following day, September 11, Respondent was

notified by letter from the association officers of the

affiliation vote and the fact that the Association would

henceforth be known as Local 1903 of the UAW. The

letter expressly advised Respondent that all officers

and functions of the Union would remain the same;

that there would be change in the day-to-day

relationship between the employees’ designated

representative and the Company; afd that Local 1903

of the UAW would honor all existing contractual

obligations between the Association and the Com-

pany. By letter to the Association dated September 13,

Respondent statsd that it would continue to recognize

only the Association.

3 While all of the Respondent's employees are named on the

seniority list, together with their dates of hire, sec. 8 of the current

Frye Fag we)

43a

Based on the foregoing, we agree with the Adminis-

trative Law Judge's finding that the affiliation elec-

tion was valid and accurately reflected the wishes of

the employees. Therefore, we also agree with the Ad-

ministrative Law Judge's further finding that

Respondent, by refusing to recognize and bargain

with Local 1903 of the UAW, violated Section 8(a)(5)

and (1) of the Act.

Unlike our dissenting colleague, we find that the af-

filiation election was conducted with sufficient

procedural and substantial safeguards to insure a

democratic vote, the results of which accurately

reflected the wishes of the employee-members of the

Association. Not a single employee in a unit of over

500 has been heard to complain that the election was

other than fair and regular. It strikes us as odd, in-

deed, that only the Respondent Company and our

colleague have come forward to attack the election

procedures as denying employees their due process of

law.

Our dissenting colleague argues that the affiliation

election failed to meet minimum standards of due

process because: (1) the employees were not given an

adequate opportunity to discuss and consider the

question of affiliation before voting; (2) the notice of

the special meeting of the board of directors did not

conform to the formal requirements of the

Association's bylaws; (3) no impartial party was pres-

ent during the election; (4) the polling area failed to

assure secrecy of the ballot; and (5) about 30

probationary employees were not permitted to vote.

We find that the above do not provide grounds for set-

ting the election aside.

als he

— —

: oe

Our colleague states that there was no real oppor-

tunity for the members to discuss and consider the

question of affiliation. This ignores the uncontrovert-

ed facts that all voters were given full opportunity to

ask questions and make statements for or against af-

filiation before the voting began and that a majority of

the employees on the first and second voting shifts

took advantage of this opportunity. The fact that only

about 20 of about 200 voters on the third voting shift

took advantage of the opportunity for discussion can-

not be construed as a denial of their right to such dis-

cussion. There is no testimony that any employee was

denied the right to speak against affiliation.

Moreover, the employees had ample notice of the

special meeting and its purpose and, therefore, had an

opportunity to discuss among themselves the issue of

affiliation before the September 10 meeting. This is all

that the Board or courts have required in the past. In

light of the foregoing facts, we find our colleague's

reliance on American Bridge Division, United States

Steel Corporation v. N.L.R.B.,4 and Peco, Inc.,5 mis-

placed.

Thus, unlike the facts in the present case, in

American Bridge 100 employees had signed a petition

requesting a special meeting in advance of the affilia-

tion election in order to discuss the isse fully, which

request was denied by the officers of the incumbent

association; neither a seniority nor membership ligt

was used to determine eligibility or to check off the

name of each employee who was handed a ballot and,

thus, there was no way to insure that each employee

4 457 F.2d 660 (C.A. 3, 1972).

5 204 NLRB 1036 (1973).

received only one ballot; there was no designated

voting area and members of the association marked

the association, as well as officers, testified that they

could and did, in fact, see how employes-members

voted.

The facts in Peco are also strikingly different from

those in the instant case. There, the incumbent

association which was the certified representative of

the production and maintenance employees conduct-

ed two separate membership mee‘ ings to vote on the

question of affiliating with Marine Engineers

Beneficial Association (MEBA). The first meeting, in

February 1974, was held at a time which precluded

attendance by all employees who worked the after-

noon shift and, hence, only 20-30 employees or at best

30 percent of the membership attended and the election

was admittedly not by secret ballot. The second meet-

ing, held in September of that year, was attended by

only 11 of the employer’s approximately 100 unit

employees. The 11 employees adopted an affiliation

resolution and agreed to submit the resolution to the

full membership for ratification. The president of the

association, Jerry Winfrey, thereupon sent out ballots

to all employees and a letter endorsing the “name

change.“ Although 37 employees signed a petition re-

questing that a meeting be held to discuss this issue

and although Winfrey agreed to hold this meeting and

to stop the balloting, he continued with the referen-

dum. Subsequently, at a meeting allegedly held for the

purpose of discussing affiliation, the association

president, without allowing the requested discussion,

announced the results of the referendum stating that

46a

the proposal to change the association’s name had

The Board found that this affiliation procedure did

not meet a minimum standard of due process on the

grounds that (1) the association's president refused

the employees’ request for discussion; (2) many mem-

bers apparently did not participate in the referendum

because they believed the voting was discontinued

pending a meeting to discuss the issue; (3) the

September meeting at which the affiliation resolution

was adopted by voice vote was attended by no more

than 30 percent of the association’s membership; (4)

the association continued to exist after the affiliation

referendum and, subsequently, signed a contract with

the employer; (5) there was clear evidence that at least

37 members were dissatisfied with the election

procedures and intervened in the Board action claim-

ing that they had been denied due process; and (6)

members who opposed affiliation were subsequently

elected to a majority on the association’s board of

directors. ’

It is clear from the record that the employees here,

unlike those in either Peco or American Bridge, had

adequate opportunity to discuss and consider the

question of affiliation before the voting began. The

employees had ample notice of the meeting and its

purpose and the polis were open throughout the day so

that all employees had ample opportunity to attend

the meeting and to vote. Both the UAW representative

and the president of the Association were present at

the meeting and all members were accorded an oppor-

tunity to raise questions or make comments for or

47a

against the proposed affiliation. Thereafter, the elec-

tion was conducted by secret ballot and, most

significantly, no employee has objected to the

procedures followed, challenged the validity of the

election, or claimed that he or she was denied due

process.

We also cannot agree with our colleague that the

election was marred by irregularities merely because

the special meeting of the Association’s board of

directors was not called in accordance with the formal

requirements of the Association’s bylaws, which re-

quire that notices of special meetings must be in writ-

ing and state the purpose of the meeting. We agree

with the Administrative Law Judge’s finding that the

failure to give written notice of the special director’s

meeting was merely a technical deficiency which can-

not be relied upon to overturn the election. In any

event, this deficiency was cured by the facts that all 30

members of the board of directors were notified of the

meeting and informed of its great importance; that all

but 1 of the directors attended the meeting; and that the

vote of the board of directors was unanimous in favor

of affiliation and of calling a special membership

meeting for the purpose of voting on affiliation. We

note, too, that no member of the board of directors has

protested the procedures used in calling the special

meeting of the directors. As the Board stated in The

Hamilton Tool Company, 190 NLRB 571, fn. 8 (1971),

“the Board.. does not normally concern itself with

determining whether a membership meeting was held

in strict conformity with a union’s constitution and

bylaws absent a clear showing ... of substantial

irregularity.” See also East Dayton Tool and Die Com-

SORT LE EY, N

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affected the results of the election which was

overwhelmingly in favor of affiliation. As the Board

observed in Hamilton Tool Company, supra at 575, un-

der similar circumstances “when adequate opportuni-

ty to vote is provided to all those . . . eligible to vote,

the decision of the majority actually voting is binding

on all,”

In conclusion, we find that while the procedures fol-

_ lowed in the instant affiliation election may not have

measured up to the standards the Board demands for

conducting its own elections, we are unwilling to find

that the procedures were so lax or so “substantially

irregular” as to negate the validity of the election, es-

pecially in the absence of any complaint from an

employee or member of the Association. In our opin-

ion the vote accurately reflected the desires of the vast

majority of the member-employees and we find no

reason to require a Board-conducted election to re-

determine the choice already made by the employees.

Rather, we are satisfied that regular procedures under

appropriate safeguards have been followed to deter-

mine the employees’ wishes on the question of affilia-

tion. We find that none of the arguments advanced by

our dissenting colleague warrants setting aside the

employees wishes.

Accordingly, we agree with the Administrative Law

Judge that Respondent by refusing to recognize that

the Charging Party is the collective-bargaining

ropresentative for the production and maintenance

employees has violated Section 8(a) (1) and (5) of the

Act.

Sia

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor .

Relations Board adopts as its Order the recommended

Order of the Administrative Law Judge and hereby

orders that Respondent, Bear Archery, Division of

Victor Comptometer Corporation, Grayling,

Michigan, its officers, agents, successors, and

assigns, shall take the action set forth in the said

recommended Order.

MEMBER WALTHER, dissenting:

I do not agree with my colleagues adoption of the

Administrative Law Judge's finding that the Respon-

dent violated Section 8(a) (5) of the Act by refusing to

recognize the Charging Party following an affiliation

election. In my view, the minimal standards of due

process were not met by the circumstances surround-

ing the affiliation vote, and, hence, the Respondent did

not violate the Act by refusing to honor the results of

such a vote.

The record reveals that the bargaining unit

employees were not given the opportunity to collec-

tively discuss and consider the question of affiliation.

Rather, each employee was presented with only the

executive board's resolution favoring affiliation® and

& The resolution favoring affiliation was passed at a ‘special

meeting” of the board of directors of the Bear Archery Employees

Association. However. contrary to the requirements of the

Association's constitution and by-laws, there was no written

notification of the special meeting nor were the board members in-

formed in advance of the purpose of such meeting.

individually given the opportunity to question a

representative of the UAW, the Union with whom af-

filiation was sought. No impartial party was present

at any time during the voting procedures nor was there

a “special membership meeting” as had been an-

nounced. Indeed, there was no membership meeting

providing any opportunity for discussion in which

questions or opposition could be expressed from the

floor.®

The question of affiliation undeniably raises vital

issues which affect the employees and require

thoughtful consideration. Here, however, the voters

were presented with only one side of the affiliation

issue and voted immediately. Such an unbalanced

presentation cannot qualify as an open discussion

providing an opportunity for questions or dissent and

consideration. And such an unbalanced presentation

followed immediately by the voting surely had an un-

wholesome and unsettling effect and tend[ed] to in-

terfere with that sober and thoughtful choice which a

free. election is designed to reflect. % The Board

sought in Peerless Plywood Co., supra, to eliminate

9 The balloting procedure cannot be characterized as a

2 Only 20 members out of 200 to 250 voting in the first

shift heard the “speech” or discussion by the UAW repre-

sentative; others voted after receiving only the resolution favor-

ing affiliation. Similarly, some of members voting in the

remaining shifts did not hear the discussion by the UAW repre-

sentative. Evidently a majority of voters did not take part in any |

discussion. In any event, such biased presentations to scattered

groups of employees do not constitute a meeting. nor do such hit-

* — opportunity for members to

opposition, even less to raise relevant questions before

fol members.

10 Peerless Plywood Co., 107 NLRB 427 (1963).

a < Sy.

such an unsettling effect by prohibiting last-minute

In American Bridge Division, United States Steel

Corporation v. N. L. R. B. ii the court refused to enforce

a Board bargaining order which was based on an af-

filiation vote even though, unlike the instant case, the

employees had been permitted to discuss the affilia-

tion issue at a membership meeting just before the

vote. The court said that a “period of reflection was

certainly an element of the opportunity to consider

an issue of such vital importance to the members. No

such “period of reflection” was permitted here

either.!3

While internal union elections are, of course, not re-

quired to follow Board electoral procedures, due

process requires that the basic safeguards of a free

and fair election cannot be ignored it those elections

are to serve as the basis for Board sanctions. As

Member Jenkins observed in his joint dissent with

Member Zagoria in North Electric Company:!“

If the Board is to accept privately conducted

elections as a basis for amending Board cer-

tifications, it should be certain that minimal

standards of due process be observed lest the

very validity of Board certifications and elec-

tions be undermined. i

11 457 F.2d 660, 666 (C. A. 3, 1972).

12 189 NLRB 119 (1971).

13 In making this finding, I need not and do not rely on any other

portion of the Third Circuit's opinion in American Bridge, supra.

14 165 NLRB 942, 944 (1967).

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As in Peco, Ino., i wherein the Board refused to grant

an amendment of certification because the members

were not given an adequate opportuni prior to the

vote to discuss the proposed Leas’ ini. the

members here were also denied the opportunity to dis-

cuss and consider the proposed affiliation. The

procedures thus fail to meet the minimal standards of

due process.

Further, the “election” was marred by other

irregularities.‘ The vote, for example, was not in

reality secret. The ballots were marked at an open

table within feet of the officers of the Association who

acknowledged their open support for affiliation. Often

several employees marked ballots at the open voting

table at the same time.

The facts put in the record by the General Counsel

are clear and uncontradicted regarding the voting. All

the activities took place in one room, 69-1/2 by 34 feet.

In one corner was the only entrance used. Most of the

voters came after leaving work, but the polls were

open to stragglers all day. As voters entered, they

were handed acopy of the executive board's resolution

favoring affiliation and told they could ask questions

or go directly to vote. Approximately 200 chairs were

set up in the room and in the center at the far end the

UAW representative and president of the Union sat,at

a table to answer questions. The two officials of the

Union checking the eligibility list stood next to them

15 204 NLRB 1036, 1037 (1973).

16 Approximately 30 unit employees were disenfranchised bas-

ed on their status as employees.”

55a

behind another table which the potential voters faced,

then turned with their ballots and walked a few feet toa

table against the wall and voted openly for all to see.

While one of the observers estimated she was 20 feet

from the balloting, the room was only 34 feet wide.

Within a space of at most 17 feet to the side of the two

officials answering questions were the vote observers

and tables. If the voting table was 3 feet wide and the

observers only 3 feet from the speakers, this means

ballots were marked openly at most 11 feet from the

observers with other voters in between the tables or

voting at the same time.

Clearly, this balloting procedure does not meet the

requirement of a “secret ballot’’ as defined in section

3(k) of the Labor Management Reporting and Dis-

closure Act, 29 USC § 402(k).'? The Department of

Labor, charged with enforcing the secret ballot

provisions with regard to internal union elections, in-

terprets section 3(k) as requiring “that there be no

possibility that any one would be able to determine

how a member's vote was cast.“ is The balloting here

falls far short of meeting this test.

17 Sec. 3(k) defines secret ballot as “the expression of a choice

with respect to any election or vote taken upon any matter, which

is cast in such a manner that the person expressing such choice

cannot be identified with the choice expressed."

48 American Bridge, supra at 666, citing Shultz v. Local 420

Aluminum Workers Union, 74 LRRM 2281 (N. D. N. V.. 1970). My

colleagues’ argument that the question is whether the Department

of Labor would the balloting here misses the mark. The

provisions of sec. 3(k) provide a fair standard against which to

measure the validity of the balloting in this case. The court in

American Jridge was of this view, and applied the Department of

Labor's “secret ballot” definition to a similar affiliation vote on

which this Board had predicated its bargaining order, and con-

cluded, inter alia, that the vote did not meet this test and refused to

enforce the Board's bargaining order.

filiation.!9 In the absence, therefore, of an opportunity

for the unit employees to openly and collectively dis-

these circumstances, I am unwilling to confer repre-

would not find that the Respondent violated the Act by

refusing to recognize the Charging Party. Accord-

ingly, I would dismiss the complaint in its entirety.

that the Respondent and !

should concern ourselves with defects in the affiliation election

procedure when no employées have publicly objected. Frankly. it

surprises

me that after all these years it should odd to

anyone that the Board, in the absence of employee con-

cerns itself with matters invol the of election

procedures. After all, due process is a matter of Board con

cern.

This case arises out of a privately conducted election to deter-

mine what labor organization is to be the statutory bargaining

tative of the employees. The Board is being asked. in

Steed to enforce the election victory of the UAW. Through the

years, the Board has consistently sought to guarantee that elec-

tions conducted under its are run in accordance with the

requirements of dud process. At no point have employee objec-

tions been deemed to be a condition precedent to such an examina-

tion.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD

J. RAY MCDERMOTT & CO., INC.

Employer

and Cave No. 15-RC-5361

INTERNATIONAL ASSOCIATION OF

PROFESSIONAL DIVERS, AFFILIATED WITH DIS-

TRICT 2, MEBA, AFL-CIO

Petitioner

SECOND SUPPLEMENTAL DECISION AND CER-

TIFICATION OF REPRESENTATION

Pursuant to a Decision on Review, Order, and Direc-

tion of Second E] tion issued December 13, 1974, by

the National Labor Relations Board, a second election

by mail ballot was conducted under the direction and

supervision of the Regional Director for the 15th

Region of the National Labor Relations Board, among

certain employees of J. Ray McDermott & Co., Inc.,

(herein called Employer) to determine whether they

wished to be represented for purposes of collective

bargaining by International Association of

Professional Divers, affiliated with District 2, MEBA,

AFL-CIO (herein called Petitioner). Ballots were sent

by United States mail to eligible voters from the

Regional Office of the National Labor Relations Board

on January 15, 1975, to be returned to this office no

later than the close of business February 26, 1975. The

tally of ballots served upon the parties immediately

following the counting of the ballots on February 27,

1975, disclosed the following results:

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N W ee 105 4625 ya 110 nnn en ye . N. 169 set e ee 0 9 enn 16

Approximate number of eligible voters .. 86

Void ballots „„ „ „„ 0

Votes cast for Petition er 39

Votes cast against Petitioner ............. 36

Valid votes counted ............. N ies se 75

Challenged ballo tis 6

Valid votes counted plus

challenged ballo tee 81

The challenged ballots are sufficient in number to

affect the results of the election.

Employer on March 6, 1975, timely filed objections

to the election, a copy of which was duly served upon

Petitioner and a copy of which is attached hereto.

Pursuant to Section 102.69(c) of the Board's Rules

and Regulations, Series 8, as amended, an investiga-

tion of the challenged ballots and objections has been

conducted, during which both parties were afforded an

opportunity to submit evidence bearing upon the

issues. Having carefully considered the facts, the

undersigned makes the following findings:

THE CHALLENGED BALLOTS

R. F. Andresakis, Stephen P. Wilson, Paul J.

Simonette, Gerald P. Savoie, Mack Gabel, and Pau!

Owen, Jr., were challenged by the Employer on the

grounds they were no longer employed at the time

they voted in the election.

The investigation disclosed that R. F. Andresakis

was terminated by the Employer on or about January 6

or 7, 1975. Andresakis stated he mailed his ballot on or

about January 22 or 23, 1975. The postmark on his

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ballot was unclear, but the date stamp placed on it by

a er gi ela A ait ta aida

the Region on February 3, 1975.

The investigation disclosed that Stephen P. Wilson

was terminated by the Employer on or about January 6

or 7, 1975. Wilson stated he mailed his ballot on or

about January 20, 1975. The postmark on his ballot was

unclear, but the date stamp placed on it by the

Regional Office indicates that it was received by the

Region on January 21, 1975.

The investigation disclosed that Pau! J. Simonette

was terminated by the Employer on or about January

6, 1975. Simonette’s ballot was postmarked January

19, 1975, and was received by the Regional Office on

January 20, 1975.

The investigation disclosed that Gerald P. Savoie

was terminated by the Employer on or about January

13, 1975. Savoie's ballot was postmarked on February

21, 1975, and was received by the Regional Office on

February 24, 1975.

The termination of Simonette and Savoie became

the subject of an unfair labor charge docketed as Case

No. 15-CA-5601. After investigation, the undersigned,

on March 19, 1975, dismissed said charge. The appeal

period has expired with respect to said dismissal.

The termination of Andresakis and Wilson became

the subject of an unfair labor practice charge docketed

as Case No. 15-CA-5598. After investigation, the

undersigned, on March 19, 1975, also dismissed this

charge. Thereafter, on April 8, 1975, Petitioner timely

appealed the Regional Director’s dismissal of the

charge. However, on April 10, 1975, the Petitioner

withdrew its appeal as it pertained to Andresakis. At

the present time, no ruling has been received with

respect to the appeal as it relates to Wilson.

As stated in Plymouth Towing Company, 178 NLRB

651, and cases cited therein, an employee is eligible to

vote in a mail ballot election if he is employed when

his ballot is cast, even if he is terminated before the

ballots are counted. Since there are no charges pend-

ing to preserve the issue of their employment status, I

find that Andresakis, Simonette, and Savoie were ter-

minated prior to the time they mailed their ballots.

were not employees of the Employer on these dates.

and therefore were not eligible voters.

Accordingly, the challenges to the ballots of An-

dresakis, Simonette, and Savoie are sustained.

The investigation disclosed that Mack Gabel was

terminated by the Employer on January 13, 1975.

Gabel stated that he mailed his ballot on February 16.

1975. Thus, Gabel was not an employee of the

Employer at the time he mailed his ballot, and

therefore was not an eligible voter.

Accordingly, the challenge to the ballot o. Gaber is

sustained.

The investigation disclosed that Paul Owen, Jr., was

terminated by the Employer on January 6, 1975. Owen

stated that he received his ballot on January 16, 1975,

6ia

and mailed it on or about January 18 or 19, 1975.

Owen's ballot was postmarked on January 24, 1975,

27, 1975.

The termination of Owen by the Employer became

the subject of an unfair labor charge docketed as Case

No. 15-CA-5565. After investigation, the undersigned,

on February 18, 1975, dismissed said charge.

Petitioner thereafter timely appealed the Regional

Director’s dismissal of the charge. To date, no ruling

has been made with respect to said appeal.

It is directed that the challenges to the ballots of Paul

Owen, Jr., and Stephen P. Wilson not be resolved and

that they remain uncounted since they are no longer

determinative of the outcome of the election.

THE OBJECTIONS

Objections Nos. 1, 2, 3, 4, and 5:

The Employer failed to present any evidence in sup-

port of these objections and none was adduced during

the investigation.

Accordingly, the Employer's Objections Nos. 1, 2, 3,

4. and 5 are overruled in their entirety.

Objection No. 6:

The language set forth in the Employer’s Objection

No. 6 is too vague, general, and imprecise to meet the

requirements of the Board's Rules and Regulations

home addresses (except the overseas voters). The fact

that 76 ballots were timely received in the first elec-

tion out of 78 eligible voters clearly demonstrates the

feasibility of mail balloting and demonstrated that

ballots mailed to the employees’ home addresses with

sufficient time for return accomplished the desirable

objective of having a very large percentage of the

voters cast ballots. The success of this first election in

that respect, and the fact that the situation was sub-

stantially unchanged prior to the rerun election, was

clear indication that mail balloting in the same

manner as before was satisfactory. Hence, the

procedure in the rerun election was substantially the

game as in the first election. Therefore, the Regional

Director, within his discretion and after careful con-

sideration, conducted the balloting by mail.

The Board has frequently recognized that certain

exigencies require departure from the normal manual

balloting procedure and has permitted the Regional

Director's broad discretion in arranging the details

of an election, including in appropriate instances, the

determination as to whether to conduct the election in

whole or in part by mail.” North American Aviation,

81 NLRB 1046, 1047; Matter of F. I. DuPont de Nemours

and Company, 79 NLRB 345. In view of all the above

considerations, I find that in this instance, N

balloting was fully justified. re

1 It should be noted that in this rerun election 81 ballots were ro-

ovived out of a total.of 86 eligible voters. The bulk of remaining un-

cast ballots is the subject of Objection No. 8, infra.

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Objection 7(b) - Mail Balloting Did Not Insure

a Secret Ballot:

The Employer furnished no evidence in support of

this objection and no evidence was discovered that the

secrecy of the ballot was disturbed. |

As no evidence was presented that the secrecy of the

ballot was impaired, it can only be assumed that the

Employer attacks the nature of mail balloting in

general as violative of the secrecy of the ballot. This

issue is hardly novel and was laid to rest by the Board

in Groendyke Transport, Inc., 154 NLRB 1040, and

Continental Bus System, Inc., 104 NLRB 599. I

therefore find the secrecy of the ballot was not im-

paired. ö

Objection 7(c) - Employees Who Did Not Un-

derstand the Voting Procedures or the Ballot

Were Not Afforded an Opportunity to Receive

Verbal Explanation from a Board Agent:

There was no evidence produced or discovered that

any voter needed or desired verbal explanation from

anyone. There were no void or spoiled ballots.

Furthermore, this being a rerun election, many

employees were knowledgeable as to the procedure.

‘Also, election notices had presumably been posted,

and each voter received a copy of the Board's official

Notice of Election and an individual explanatory

notice along with his mail ballot kit. These instruc-

tions have been drafted with due consideration of the

election procedures and the.“ laboratory conditions“

desirable in Board conducted elections. It is difficult to

Mae vA. Yee ey he

comprehend under these circumstances how any

voter could fail to understand the procedure. Ad-

ditionally, neither party to the election nor any of the

voters indicated prior to the election, or subsequent

thereto, that the procedure or ballot was misunder-

stood. I therefore find no indication whatsoever that

anyone misunderstood or failed to understand the

procedure or the ballot.

Objection 7(d) - Mail Balloting Did Not

Preserve the Secrecy of Those Who Did and

Did Not Vote:

The parties to the election were entitled to know that

the mail ballots being counted were received from

eligible voters. This is a timetested and approved

manner of balloting. Though procedurally different

than manual balloting, the result is similar as to iden-

tity of who votes, since in the manual balloting, par-

ties are entitled to, and do normally have, observers

who represent them at the polls and check off the

names of voters. The Board and the undersigned

presume that parties to the elections will: (1) not main-

tain a list or attempt to determine for any future use

who did or did not vote; (2) if any party does keep such

a list, either physically or mentally, no adverse action

will be taken against those who did or did not vote for

that reason; (3) no benefit will be given to those who

did or did not vote; and finally, (4) actions set out in (2)

and (3), supra, could be unfair labor practices under

certain conditions, I therefore find that if secrecy of

those who voted was not preserved, it is not a basis for

setting aside an election.

Objection 7(e) - Mail Balloting Did Not Afford

Privacy of Voting Booth:

A mail balloting kit provides a voter with all infor-

mation necessary to cast his ballot for the choice he

deems appropriate. The instructions clearly advise

the voter it is to be secret. Therefore, in the absence of

evidence of any alleged lack of privacy, I find this ob-

jection is no basis for objection; see Objection 7(b),

supra.

Objection 7(f) - Mail Balloting Caused Uncer-

tainty and Irregularities:

There was no evidence furnished or discovered to

support this objecticn; therefore, no basis exists for

setting aside the election based on this objection.

Based on all the above, the undersigned concludes

that Employer's Objection No. 7 raises no substantial

or material issue with respect to the election or con-

duct affecting the results of the election. Accordingly,

Employer's Objection No. 7 is overruled in its entirety.

Objection No. 8:

The Emplover asserts in Objection No. 8 that a

number of eligible employees, sufficient to affect the

outcome of the election, received, marked, and mailed

their ballots to the Regional Office in time to be re-

ceived by the February 26, 1975 deadline, and these

ballots were either never received by the Regional Of-

fice or were received and not counted.

In support of its position, the Employer presented

two witnesses, a statement taken from an employee,

and a copy of a telegram it received from another

employee, all of whom were unit employees at the time

of the election. Three of the four employees involved

allegedly received, marked, and mailed their ballots to

the Regional Office. The fourth employee allegedly

lost the return envelope for his ballot but requested

another one from the Regional Office which he never

received.

Employee A stated that on or about January 28, 1975,

he discovered his ballot in the mail after returning

home from working offshore, and that he marked his

ballot and deposited it in the mail on or about January

30, 1975. Employee B stated by telegram that he re-

ceived his ballot on January 15, 1975, whereupon he

marked the ballot and deposited it in the mail on the

same day. Employee C stated that he received an elec-

tion package on or about January 20, 1975. According

to Employee C. he deposited his ballet in the mail on or

about January 30, 1975.

Employee D stated that he received his ballot on or

about January 15, 1975, after returning home from

offshore. According to Employee D, he was sent back

offshore approximately two days later. Employee D

stated that he took the mail ballot with him offshore |

and through some mishap lost the return envelope for

the ballot. Employee D informed the lead diver of the

loss of the return envelope. The lead diver told

z og yet derontor are mistaken about these dates

since the mail ballot kits were mailed from the Regional Office on

January 15, 1975.

EN heidi CR SNA c cine a A

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Employee O that he would notify the Employer s office

about the matter. Employee D remained offshore ap-

proximately six to eight weeks and did not return

home until around the first of March, 1975. Employee

D stated that upon returning home, his mail did not

contain a return envelope from the Regional Office.

The Regional Office mailed out 86 mail ballot kits on

January 15, 1975. A total of 81 ballots were returned to

the Regional Office on or before the February 26, 1975

voting deadline. No ballots were received by the

Regional Office after the alloted voting period.

Several employees, either directly or through the

Employer, notified the Regional Office of the necessi-

ty for new mail ballot kits and they were mailed out to

these employees on the same day of their request.

On January 28, 1975, the Regional Office was

notified by one of Employer's officials that Employee

D needed a new return envelope® and another one was

mailed to Employee D at his permanent home address

on the same day.

In determining whether circumstances preventing

employees from voting are sufficient to require a new

election, the Board follows the general rule that the

circumstances must be within the control of one of the

parties to the proceeding or must arise out of un-

fairness in the scheduling or mechanics of the elec-

tion. Versail Manufacturing, Inc., 212 NLRB No. 85. In

the present case, itis obvious that Employee D was not

prevented from voting by the parties to the proceed-

3 The official also notified the Region on January 28, 1975, that an

employee in the unit died.

ing. Employee D received his ballot kit on or about

January 15, 1975; and if he had chosen to do so, he could

have marked and mailed the ballot on the same day. In-

later taking the mail ballot kit with him where he in-

advertently lost the return envelope. The Regional Of-

fice, upon being notified of Employee D's need for a

new return envelope, mailed one to his permanent ad-

dress as listed on the Excelsior list. Assuming

arguendo that the new return envelope arrived in the

mail at Employee D’s home, he did not return from off-

shore until around the first of March 1975, which was

after the mail ballot deadline.

Also, beyond the control of the parties was the dis-

appearance of the ballots of Employees A, B, and C.

Although it is hard to imagine that the Post Office

could have lost the ballots of these employees, it is, of

ballots were not, in fact, mailed or that the employees

carelessness in the method of mailing caused them to

be lost before the Post Office obtained possession.

Nevertheless, regardless of what happened to the

ballots, it is obvious that their disappearance was not

due to any action or inaction by the parties, nor was it

due to unfairness in the scheduling or mechanics of

the election. See Versail Manufacturing, Inc., supra.

Based on the above and the fact that there must bo

some finality to the results of an election, I find that

the failure of Employees A, B. C. and D to register their

votes in the election was due variously to employee

carelessness and inaccessibility, and to possible

vagaries in the U. S. Postal Service. Neither of these

factors was Sttributable to either the parties or the

Regional Office. It is therefore concluded that

Employer's Objection No. 8 raises no substantial or

material issue with respect to the elec“ on or conduct —

affecting the results of the election.

Accordingly, Employer’s Objection No. 8 is over-

ruled in its entirety.

CONCLUSION AND ORDER

For reasons herein-above set forth:

IT IS CONCLUDED that the challenge to the ballots

of Andresakis, Simonette, Savoie, and Gabel are sus-

tained. The challenge to the ballots of Paul Owen, Jr.,

and Stephen P. Wilson are no longer determinative

and no disposition will be made with respect to them.

IT IS FURTHER CONCLUDED that Employer's Ob-

jections Nos. 1, 2, 3, 4, 5, 6, 7. and 8 do not raise substan-

tial or material issues affecting the election, and they

are hereby overruled.

CERTIFICATION OF REPRESENTATIVE

IT IS HEREBY CERTIFIED that International

Association of Professional Divers, affiliated with

District 2, MBA. AFL-CIO, has been designated and

selected by a majority of employees of J. Ray McDer-

mott & Co., Inc., in a unit consisting of:

Divers, tenders and rack operators employed

by the Employer in its Diving Division; ex-

NTL RNA ES RE a

0 J 70 i“

Hi ai DARN 2!

cluding all other employees, free lance divers

and tenders, shop employees, dispatchers, of-

fice clerical employees, shop clerical

employees, guards, and supervisors as de-

fined in the Act.

The aforesaid organization is the exclusive

representative of such employees for the purpose of

collective bargaining with respect to rates of pay,

wages, hours of employment, and other conditions of

employment.‘

Dated at New Orleans, Louisiana, this 18th day of

April, 1975.

/s/ Fred A. Lewis

Fred A. Lewis

Acting Regional Director,

Region 15

National Labor Relations Board

Plaza Tower Building,

Suite 2700

1001 Howard Avenue

New Orleans, Louisiana 70113

Rules and a request for review of this Second

Decision may be filed with the Board in

Ww D.C. This must be received by the Board in

Washington by May 1,

a, : 16

A 1

Wr Ga MER ag

9 rr.

Amn

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0 Nn eee

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.