Insulfab Plastics, Inc.

INSULFAB PLASTICS 817 Insulfab Plastics, Inc., New England Division and International Union of Electronic, Electrical, Technical , Salaried, and Machine Workers, AFL-CIO-CLC and Independent Workers of Insulfab Plastics, Inc., New England Division, a/w IUE. Cases 1-CA-21327 and 1-CA-21531 11 March 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 5 April 1984 Administrative Law Judge Walter H. Maloney Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Insulfab Plastics Inc., New England Division, Watertown, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Order. DECISION STATEMENT OF THE CASE WALTER H MALONEY, JR., Administrative Law Judge This case came on for hearing before me at Boston, Massachusetts, upon a consolidated unfair labor practice complaint, i issued by the Regional Director of the Board's Region 1, which alleges that Respondent In- sulfab Plastics, Inc, New England Division,2 violated I The principal docket entries in this consolidated case are as follows Charge in Case 1-CA-21327 filed against Respondent by International Union of Electronic, Electrical, Technical, Salaried, and Machine Work- ers, AFL-CIO-CLC (IUE) on August 30, 1983, amended charge filed in Case 1-CA-21327, against Respondent by IUE on September 30, 1983, complaint issued by Acting Director for Region 1, on October 21, 1983, Respondent's answer filed on November 1, 1983, charge filed in Case I- CA-21531, against Respondent by IUE on November 2, 1983, consolidat- ed complaint and order consolidating Cases 1-CA-21327 and 1-CA- 21531 on December 16, 1983, the Respondent's answer to consolidated complaint filed on December 30, 1983, hearing held in Boston, Massachu- setts, on February 8 and 9, 1984 2 The Respondent admits, and I find, that it is a New Jersey corpora- tion which maintains its principal office and place of business in Water- town, Massachusetts, where it is engaged in the manufacture, sale, and distribution of plastic goods and related products In the course and con- duct of its business, the Respondent annually purchases and receives di- rectly from points and places located outside the Commonwealth of Mas- sachusetts plastic raw materials and/or equipment valued in excess of $50,000, and sells and ships from its Watertown. Massachusetts plant di- rectly to points and places located outside the Commonwealth of Massa- chusetts goods and products valued in excess of $50,000 Accordingly, the Respondent is an employer engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act The IUE and the Independent Work- Section 8(a)(I) and (5) of the Act. More particularly, the consolidated complaint alleges' that the Respondent wrongfully refused to recognize and bargain with the In- dependent after it affiliated with the IUE as the repre- sentative of its production and maintenance employees, and that the Respondent wrongfully refused a request of the Independent, as affiliated with the IUE, to supply it with information concerning rates of pay, wages, hours, and conditions of employment of bargaining unit em- ployees The Respondent admits its refusal to bargain with the newly affiliated Independent and its refusal to supply requested information but asserts that it had no obligation to do so because the Independent, which it had recognized and with which it had bargained for many years, had, on August 17, 1983, improperly voted to affiliate with the IUE. Upon these contentions the issues herein were joined.3 FINDINGS OF FACT A. The Unfair Labor Practices Alleged For many years the Respondent has operated a small plastics manufacturing plant in Watertown, Massachu- setts, a suburb of Boston . For over 25 years it has main- tained a collective-bargaining relationship with the Inde- pendent Workers of Insulfab Plastics, Inc., New England Division, an in-house union which had no members and represented no employees other than at the Respondent's Watertown factory. The most recent agreement between these parties was concluded effective November 10, 1980, for a term extending until November 13, 1983, and thereafter from year to year unless one party should give 60 days' notice of a desire to terminate upon expiration This agreement also provided for an annual renegotiation of wages during its term, but it contained no exception in its no-strike clause covering such interim negotiations. The bargaining unit described in the contract stated that the contract "applies only to all production and mainte- nance employees of the Company at its 69 Grove Street, Watertown, Massachusetts, plant, excluding office cleri- cal employees , professional employees, guards and super- visors as defined in the Act." There is no suggestion in the record that the Independent was ever certified pursu- ant to a Board election. In the last half of 1983, when the events in this case occurred, there were 32 persons em- ployed in this unit, all of whom were members of the In- dependent' Late in 1982 and early in 1983, both the members and the officers of the Independent became dissatisfied with their ability to achieve desired wage increases from the Respondent during the 1982 negotiations . They were also unhappy because of the asserted refusal by the Re- ers of Insulfab Plastics, inc , New England Division (the Independent), whether or not affiliated with the IUE, are, respectively, labor organiza- tions within the meaning of certain errors in Sec 2(5) of the Act 2 Certain errors in the transcript are noted and corrected a The contract contains a 60-day union-security clause and a provision for dues payments by checkoff All 32 unit employees were on checkoff during the events at issue herein Independent President Joseph F Flana- gan stated in his testimony that the contract had no union-security clause He was simply in error and possibly did not even understand what was meant by a union-security clause 274 NLRB No. 126 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent to pay three employees their contractual wage rates Late in 1982 and again in early 1983, Independent President Flanagan , an employee in the Respondent's saw department, contacted Vincent J Campbell, the IUE's director of organization for the New England area, with a view toward affiliating the Independent with the IUE. Campbell suggested to Flanagan that if the In- dependent membership wanted to affiliate , it should call a meeting in June for the purpose of conducting a vote on this question . Later in the spring, Flanagan and Campbell agreed to postpone any vote until August. The Independent normally holds its meetings at the Armenian Hall in Watertown, a building located not far from the plant. It has also met occasionally at the plant. Meetings are infrequent but, when they are held, they normally take place at 3:45 p m. on a working day so that employees can attend on their way home from the plant.5 Flanagan posted a notice on the Independent bul- letin board at the plant notifying the membership of a meeting at the hall scheduled for August 9 at 3:45 p.m.e This meeting was held as advertised and was attended by about 20 members. Campbell and Tony Angelo, an IUE International representative , were present as invited guests. After they were introduced by Flanagan, Camp- bell spoke briefly concerning the mechanics of affiliation. He explained that, in the event of affiliation , the current membership would remain the bargaining unit and sug- gested that one of the benefits of affiliation was that the IUE could add some strength to their negotiating pos- ture and could also supply some expertise in conducting negotiations. He said that union dues would eventually increase over a period of years by $2 or $3 a month above what Independent members were currently paying . The extra money would be spent resolving union problems and paying for arbitrations arising under the contract. One member in attendance , Mario Donato, asked Campbell if the Company could retaliate against its employees if they voted to affiliate, either by closing the plant or by firing employees. Campbell assured him that there were laws against such activity. When Campbell finished speaking, those in attendance voted to call a meeting at the same place and time on August 17 for the purpose of taking a vote on affiliation. A day or so later, Flanagan posted a notice on the In- dependent bulletin board which was partially printed in bold black letters and partially typed . It read. UNION MEETING NOTICE At the union meeting held on August 9, 1983, and at the recommendation of the Executive Committee, the membership in attendance voted unanimously to recommend an affiliation vote with an international union. The vote to affiliate will take place at a special membership meeting 5 There is normally only one shift at this plant It works from 7 am until 3 30 p in c The Independent is allowed to maintain a bulletin board at the plant for the posting of notices pertaining to union business It is located a few feet from the Company 's bulletin board, adjacent to the timeclock, and not far from the coffee machine SPECIAL MEMBERSHIP MEETING DATE: August 17, 1983 TIME- 3:45 p.m. PLACE: Armenian Hall, Bigelow Street, Wa- tertown, Ma. /s/ Joseph Flangan President Copies of this notice were mailed to all members . Copies were also handed to all employees by Flanagan at the plant as they passed by him at the timeclock.7 The meeting was held as announced and 28 of the In- dependent's 32 members attended . Another came in toward the end of the meeting and announced his vote at that time.8 Flanagan presided at the meeting and began by introducing Campbell and Angelo. Campbell spoke briefly and repeated , in general, the remarks which he had made at the August 9 meeting . He explained the me- chanics of an affiliation vote and outlined some of the benefits of affiliating with the IUE. He mentioned the fact that the IUE had a pension department , a legal de- partment, and departments devoted to research, publici- ty, and education, and indicated that these facilities would be available to the Independent in the event of af- filiation . He noted that the Independent would continue to have the same meetings and the same officers and that the IUE would come in, if requested , to assist in bargain- ing and in the processing of grievances . He stated that the IUE did not come into negotiations automatically. He fielded questions as to whether the dues would go up and whether there would be any retaliation by the Com- pany if the employees voted to affiliate , giving the same answers to these questions that he gave at the August 9 meeting. He also stated that the membership retained the final decision on striking , since the IUE could not order them to strike if they did not want to do so. At this point, both Campbell and Angelo were asked to leave the room while the membership continued a private dis- cussion of the affiliation question . They did so, Campbell telling the assembled employees to take whatever time they needed to come to a conclusion. A discussion of the membership ensued , followed by a vote. Flanagan first asked for a showing of hands of those who favored affiliation . Nineteen voted in the af- firmative . Before a negative vote was called , Donato made a motion that a secret ballot vote be conducted and his motion carried . Flanagan then distributed paper and pencils to each member for the purpose of conduct- ing such an election. The paper was blank and each member wrote on the paper a "yes" favoring affiliation or a "no" opposing it. The votes were then placed in a hat and counted in view of the members by Wally Olwood and Pat Goluzian , who were appointed by 7 The copy posted on the bulletin board was temporarily removed over the weekend by Flanagan at the request of Patrick J Nicolazzo, the Respondent 's general manager, who explained to him that he would prefer that the notice not appear while certain visitors from New Jersey were visiting the plant After the visitors left, the notice was reposted 8 In his testimony Flanagan accounted for the absence of the other three members One was sick, one was on vacation , and a third simply refused to attend INSULFAB PLASTICS Flanagan for this purpose. The tally was 19 yes votes, 8 no votes, and 1 blank.9 Flanagan and another member, Clark, recounted the votes and came to the same result. Flanagan asked if everyone was satisfied with the voting procedure. No one voiced any objection. Campbell and Angelo were called back into the room and were informed of the result. Campbell thanked the members for their vote of confidence in the IUE and suggested that it would be a good idea to send the Com- pany a message by making the vote unanimous. An oral motion to that effect was made but there was one dis- sent. Following the election, Flanagan sent a letter, dated August 18, to Nicolazzo informing him of the results of the election. The letter read: Please be advised that the membership of the In- dependent Workers Union representing the employ- ees at Insulfab, Watertown, MA, voted overwhelm- ingly at a special called membership meeting on August 17, 1983, to affiliate with the IUE-AFL- CIO. They will be our bargaining agent and work with us on all matters concerning wages, hours, and con- ditions of employment. Your full cooperation will be appreciated by all concerned. On August 23, 1983, Nicolazzo replied as follows: This is in reply to your letter of August 18, 1983. We do not believe that the IUE-AFL-CIO rep- resents a majority of our employees in any proper group. Accordingly, we decline to recognize the IUE-AFL-CIO unless and until it is certified as such by the National Labor Relations Board. On this date, Campbell wrote to Nicolazzo as follows: This is a follow-up to the letter you received, dated August 18, 1983, from Joseph Flanagan, President of the Independent Workers Union repre- senting Insulfab employees, Watertown, Massachu- setts. As you are aware, the membership voted over- whelmingly to affiliate with the IUE-AFL-CIO on August 17, 1983. In order that the IUE-AFL-CIO may properly service the existing contract and prepare for the up- coming negotiations for a new contract , I hereby request that you furnish us with the following rele- vant and necessary information: (1) With respect to all represented employees: a. Names and address of employees. b. The job classification and rate of pay of each employee. c. The seniority date of each employee. 9 At some point in time after the paper balloting took place , a member named Eric came in the door and announced publicly that he was voting in favor of affiliation He did not cast a paper ballot 819 d. The sex, race, and date of birth of each em- ployee. (2) A copy of all benefit plans covering such em- ployees, including, but not limited to, any and all group health insurance , medical insurance, hospitali- zation, life insurance , pension plans, profit sharing, and stock bonus plans. (3) A complete list of all fringe benefits which the represented employees now receive and the cost to the company of each of these benefits, specifying those benefits, if any, to which the employee con- tributes. For your convenience , I can be reached at the above listed telephone number. The letter was signed by Vincent J. Campbell , director of organization, IUE New England District Council Two, AFL-CIO. On August 26, Nicolazzo replied to Campbell as fol- lows: This is in reply to your letter of August 23, 1983. We do not believe that your union represents a majority of our employees in any proper group. Ac- cordingly, we decline to recognize your union unless and until it is certified as such by the Nation- al Labor Relations Board. In view of the above it seems your other requests are premature. Campbell's response to this letter was to file the first of two charges in this consolidated case. Despite the pendency of the charge, correspondence between the parties to this case continued unabated. On September 8, Campbell wrote another letter to Nicolazzo which stated: This letter will serve as notice that IUE, the duly elected bargaining agent representing your employ- ees at Insulfab, Watertown, MA, intends to modify- terminate the existing collective bargaining agree- ment which expires on November 13, 1983. Please inform us at your earliest convenience as to when and where you propose to meet for the purpose of negotiations on modifications of a new contract. As is provided in the present agreement, this letter of notice has been served timely Campbell went on to repeat the request contained in his August 23 letter for information concerning names and wages of bargaining unit personnel and benefits currently accorded to them by the Respondent. On September 16, Nicolazzo replied with a letter which was almost identical to the one he sent to Camp- bell on August 26: This is in reply to your letter of September 8, 1983. As we have told you in our letter of August 26, 1983, we do not believe your union is the duly elected bargaining agent and representative of a ma- 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prity of our employees in any proper group Ac- cordingly, we decline to recognize and meet with your union unless and until it is certified as such by the National Labor Relations Board In ' view of the above, it seems your other re- quests are premature. On -September 23, Flanagan tried his hand at commu- nicating with the Respondent by sending a "Dear Pat" letter to Nicolazzo• which began: I get the impression from the NLRB agent inves- tigating the'charges in Case No. 1-CA-21,327 that you and the Company are concerned about the con- tinuity of representation of the employees of Insul- fab, Watertown, Massachusetts. Please be advised that I as President and the other duly elected officers of the Independent Union will continue to serve our-members by serv- icing our present contract and preparing for the up- coming, negotiations for a new contract. , As I attempted to explain in a recent letter to you, the membership had voted to affiliate with the IUE_AFL-CIO - and they will assist us to service the membership. The letter went on to request the same information which Campbell had requested in his August 23 and Sep- tember 8' letters: ' Nicolazzo's reply to Flanagan was mailed on October 4. It read: We are in receipt of your letter dated September 21, 1983, and find it somewhat ambiguous. You state in your letter that "I as President and the other duly elected officers of the Independent Union will continue to serve our, employees by .servicing our present contract and preparing for the upcoming negotiations for a new contract,".and you request certain personal information about our em- ployees. . However, in your recent letter of August 18, 1983,, you state that the IUE-AFL-CIO will be the bargaining agent. Also on August 23, 1983, we re- ceived a letter from Vincent J. Campbell of the IUE-AFL-CIO, saying the same things and re- questing personal information about our employees. Along with this, on August 30, 1983, Vincent J. Campbell filed a,ULF [sic] charge in behalf of the IUE-AFL-CIO with the NLRB against the Com- pany, in which he stated that the Company refused to recognize the IUE-AFL-CIO as the bargaining agent for the Company's employees. Very obviously, there is confusion and conflict as to who is actually the-duly elected'bargaining agent of a majority of the Company's employees in an ap- propriate unit. The Company's position remains the same as stated in its letter to you of August 23, 1983, and its letters to Vincent J Campbell dated August 26 and September 16, 1983. It is extremely important that you realize that you have failed to - give notice to the Insulfab Plas- tics, Inc., Independent Workers Union's desire to a "change or termination", in writing to the Company at least sixty (60) days prior to November 13, 1983, which is the expiration date of the existing agree- ment, a question now arises as to whether or not the existing agreement can be opened by the Inde- pendent Workers Union at this late date. On November 1, Flanagan wrote another letter to Ni- colazzo in which he renewed the request for information previously sought and stated in writing: I will again try to clear up your misconception of the representation of the Insulfab employees at the Watertown, Massachusetts, location. As I had explained before, the membership had voted to affiliate with the IUE-AFL-CIO and they will assist us to service the membership. In your October 4, 1983, letter to me you errone- ously stated that I failed to give the proper sixty (60) day notice for a change or termination in writ- ing to the'Company regarding our present contract. I had requested Vincent J. Campbell to do this on behalf of the newly affiliated Independent Union members of Insulfab which he did timely, on Sep- tember 8, 1983. He further requested on my behalf certain infor- mation necessary ' to service the existing contract and prepare for upcoming negotiations. I again requested the 'same necessary information on September 23, 1983 without any response from you. Again for the third time, I am requesting that you furnish us immediately the following relevant information to assist us to service the membership and prepare for negotiations. Nicolazzo's reply, the last of several pieces of corre- spondence introduced into evidence , states the following- Your letter of November 1, 1983, mis-states the facts. As pointed out in my letter of October 4, 1983, you stated in your letter of August 18, 1983, that the IUE-AFL-CIO will be the bargaining agent. You did not say the Independent or the Independent a/w IUE-AFL-CIO will be the bargaining agent. Also, as pointed out in my letter of October 4, 1983, we received a letter from Vincent J. Campbell of the IUE-AFL-CIO on August 23, 1983, saying the same things and requesting for the IUE-AFL-CIO personal information about our employees. He did not say you had requested him to do this. Along with this, on August 30, 1983, as we pointed out in our letters of October 4, 1983, Vincent J . Campbell filed a ULP charge in behalf of the IUE-AFL-CIO with the NLRB against the Company in which he stated that the Company refused to recognize the IUE-AFL-CIO as the bargaining agent of the Company's employees. Very obviously, as we pointed out in our letter of October 4, 1983, there is confusion and conflict as to who is actually the duly elected bargaining INSULFAB PLASTICS agent of a majority of the Company's employees in an appropriate unit. As pointed out in our October 4, 1983, letter, the Company's position remains the same as stated in its letter of August 23, 1983 to you and its letters to Vincent J. Campbell dated August 26 and September 16, 1983. Your attempt to circumvent the sixty (60) day contractual opening clause of the present contract by stating you had requested Vincent J. Campbell on September 8, 1983, to give notice is an attempt to close the barn door after the horse is out. There is nothing in Campbell's letter of that date stating that you had requested him to do so. Your further statement that Mr. Campbell re- quested on your behalf certain information neces- sary to service the existing contract and prepare for upcoming negotiations is likewise an attempt to close the barn door after the horse is out. There is nothing in that September 8, 1983, letter of Mr. Campbell's stating that you had requested him to make this request; nor is there anything in that Sep- tember 8, 1983, letter of Mr. Campbell 's stating that the information was requested "in order to service the existing contract. It stated that the information was requested in order that the IUE-AFL-CIO 11 may properly prepare for negotiations .. . . Likewise, as to your statement in your letter of November 1, 1983, that you again requested the same necessary information on September 23, 1983, without any response from me. In your letter of September 23, 1983, you did not request the infor- mation to service the existing contract but merely requested the information in order to prepare for the upcoming negotiations. In view of the fact as pointed out to you in my letter of October 4, 1983, that you have failed to give notice of the Insulfab Plastics, Inc. Independ- ent Workers Union's desire for a "change or termi- nation" in writing to the Company at least sixty (60) days prior to November 13, 1983, which is the expi- ration date of the existing Agreement, a question now arises as to whether or not the existing Agree- ment can be opened by the Independent Workers Union at this late date. B. Analysis and Conclusions 1. Burden of proof The Respondent's defense in this case is that it has no duty to bargain with the affiliated Independent nor fur- nish it with information normally deemed relevant to a union's bargaining obligation because the vote conducted by the Independent on August 17, 1983, to affiliate with the IUE was somehow defective and the Independent, affiliated with the IUE, is not the same labor organiza- tion as the one with which it had been bargaining for 25 years. Throughout the hearing in this case, the question arose as to whose burden it was to establish the regulari- ty or irregularity of the affiliation election. I conclude that the burden of establishing the irregularity of this election falls squarely upon the Respondent since it is the Respondent who is relying upon such irregularity to 821 avoid a bargaining obligation that it would otherwise be required to fulfill. Any other approach to this question would necessarily mean that the Board attaches a pre- sumption of irregularity to every affiliation election by placing the burden upon the General Counsel to show why such an election was properly conducted whenever a respondent makes a naked assertion to the contrary. A presumption of irregularity has no basis in fact, law, or normal judicial or administrative practice, and flies in the face of the standard rule that the burden of establishing an affirmative defense falls upon the one asserting it. In NLRB v. Pearl Bookbinding Co., 517 F.2d 1108 (1st Cir. 1975),10 wherein an affiliation election was challenged by a respondent who refused to bargain with a newly af- filiated union, the First Circuit stated, in sustaining the Board, More significantly, the company has failed to show that the successor union is substantially different- other than in name and affiliation-from the prior union. [Id. at 1111.) I take this language to be an explicit affirmation of the normal practice of placing upon the party claiming irreg- ularity or dissimilarity of bargaining agents the affirma- tive obligation of supporting its claim. 2. The Board's posture in inquiring into affiliation elections Had the Independent in this case requested the Re- gional Director to dispatch a field examiner to the Arme- nian Hall on August 17, 1983, for the purpose of con- ducting the affiliation election, the Regional Director would properly have declined the request. Such matters are normally regarded as internal union affairs and Con- gress has conferred no authority upon the Board to con- duct such elections or to regulate them in any way. i i Whenever the Board or the courts have undertaken to inquire into the regularity of such elections, they have done so by authority acquired only through bootstrap- ping. One such opportunity for jurisdictional self-en- largement has been found in the power of the Board to amend certifications of labor organizations which have 10 In Pearl Bookinding, supra, the First Circuit upheld the Board's find- ing that an affiliation election was valid in the face of a challenge, leveled by the same attorney representing the Respondent in this case , that the affiliated union was somehow a different organization after it voted to af- filiate than it was before the vote was taken i i To my knowledge, Congress has conferred no authority upon any other governmental agency to conduct or to regulate affiliation elections Had it wished to assign this task to the Board, it could easily have done so Title IV of the Landrum-Griffin Act grants certain authority to the Secretary of Labor (but not the Board) to investigate complaints by union members concerning the regularity of elections of union officers and votes increasing "the rates of dues and initiation fees payable by members of any labor organization in effect on September 14, 1959, "the effective date of the Landrum -Griffin amendments 29 U.S.C § 41l(a)(3). However, this case does not involve voting for union officers or an in- crease in dues in effect on September 14, 1959 The failure of Congress to regulate, or to authorize the regulation , of union affiliation elections should, under normal rules of statutory interpretation, be taken as a clear indication on its part that such activity is being left to the private sector, not to government regulation It is not for the Board or the courts to assign this function to the Board when Congress has declined to do so 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been initially certified pursuant to a representation elec- tion conducted under the provisions of Section 9 of the Act.12 No such certification was ever issued to the Inde- pendent in this case, and no amendment thereto has been requested or is indeed possible. Another vehicle for in- quiry has been the invocation of "due process," a phrase not found in the Act and nowhere defined by statute in its relation to the conduct of affiliation elections. Bear Archery, 223 NLRB 1169 (1976); Gasland Inc, 239 NLRB 611 (1978). In invoking "due process" to justify asserting jurisdiction over the affiliation elections, the Board has been sensitive to the fact that it is skating on thin statutory ice. The application of this doctrine to af- filiation elections has been halting, marked with internal differences, and subject to sharp reversals in attitude. See, for example, Amoco Production Co., 220 NLRB 861 (1975), affd. 239 NLRB 1195 (1979), reversed 262 NLRB 1240 (1982). The Board's latest position on this topic is set forth in F W. Woolworth Co, 268 NLRB 805 (1984), and May Department Stores Co., 268 NLRB 979 (1984). These are cases in which the Board has held that, in in- ternal union merger or affiliation elections, eligibility to vote must be extended to nonmembers of the merging or affiliating unions as well as to members of the unions if they are employed in the same bargaining unit. In light of this fluid and unclear state of the law, it would be in- trepid indeed to venture into other areas of inquiry not clearly marked out and I decline to do so. 3 Exclusion of nonmembers from voting The one area of affiliation election law clearly defined to date by rule of decision involves the rights of non- members to vote in affiliation elections. Unlike the situa- tion found in Amoco, a case relied upon heavily by this Respondent, at Insulfab all unit members were also union members and dues-paying members under the union-se- curity and checkoff provisions of their contract. i 3 A notice advertising a membership meeting was, under the facts of this case, to the entire bargaining unit 14 A vote conducted here among the union membership was also a vote conducted among the entirety of the bargaining unit. Seeking to come under the umbrella of Amoco and now Woolworth and May Department Stores, the Re- spondent argues that the election held on August 17, 1983, was invalid because two part-time employees, jani- tor John Sahagian and screening room employee Char- lotte Aislanian, did not vote and were not allowed to vote. I conclude that they were not members of the bar- gaining unit and were hence ineligible to vote The unit description contained in the contract is silent as to their 12 See, for example, Peco, Inc, 204 NLRB 1036 (1973), Hamilton Tool Co., 190 NLRB 571 (1971), East Dayton Tool & Die Co, 190 NLRB 577 (1971), News-Press Publishing Co, 145 NLRB 803 (1964) 11 Amoco arose in Texas, a right-to-work state, where unit membership and union membership are often quite different. In Massachusetts, union- security clauses are valid and, in this case, a matter of contractual agree- ment between the parties The whole setting in which Amoco was decid- ed (and later re-decided) is absent here 14 It is clear from the record that one part-time employee was given actual notice of the affiliation election meeting and there is every reason to draw an inference from the record that the other part-timer was equal- ly apprised eligibility. It applies only "to all production and mainte- nance employees of the Company at its 69 Grove Street plant " This unit description was, as indicated previ- ously, not the product of a Board certification but of longstanding agreement between the parties Whether the Board would or would not have included part-time employees in the bargaining unit in a litigated representa- tion case is not at issue here 15 The parties did not do so and they were under no statutory obligation to do so If bargaining history means anything, it means that defer- ence should be given by the Board to the unbroken prac- tice of these parties in excluding part-time employees from the unit When, over a period of many years, the Respondent did not bargain with respect to the wages of part-timers, failed to accord them contractual vacations, sick pay, or holiday pay, and failed to grant them con- tractual seniority, it is in a poor position now to argue that they are indeed unit employees when the sole effect of such an argument is to frustrate the free and over- whelming expression of employee sentiment which took place at the affiliation election on August 17 Under the facts of this case, it is probable that Sahagian and Mrs. Aislanian would have been permitted to vote had they sought to do so, but their failure even to attempt to vote is just one more indication that they themselves did not consider the election in question to be one in which they had a legitimate interest. 16 4. Violations of due process in the conduct of the affiliation election The Respondent also seeks to nullify the results of the affiliation election on the basis of asserted procedural flaws. In its view, there was insufficient discussion of the issues, the atmosphere was tense, the voters were denied the right to vote by secret ballot, no voting list was used to check on eligibility, there were not enough pencils with which to mark the ballots, and the presiding officer was either coercive or negligent (or both) in conducting the meeting and in safeguarding the accuracy of the count. In leveling this charge, the Respondent confuses the National Labor Relations Act with Robert's Rules of Order The latter sets out at least eight methods by which an organization can properly vote on a motion under accepted rules of parliamentary procedure-a voice vote, a rising vote, a show of hands, a roll call, a paper ballot, voting machines, proxy votes, and a mail ballot.17 The latter says nothing about affiliation elec- 15 Sec 9(b) of the Act does not require the Board to direct an election in the most appropriate bargaining unit It is sufficient that the unit chosen be appropriate under the circumstances of the particular case MPC Restaurant Corp v NLRB, 481 F 2d 75 (2d Cir 1973) 16 Sahagian and Mrs Aislanian did not even attempt to vote subject to challenge, a procedure often used by the Board in representation elec- tions to resolve unit placement disputes 'r Robert's Rules of Order (Newly Revised), Scott, Foresman, and Company, 1981, pp 37, 38, 347, 348-355 In a section entitled "Methods of Voting," this universally recognized handbook on parliamentary procedure provides In practice, the method of taking a vote usually can be agreed upon informally A member who believes that a secret vote will give a truer expression of the assembly's will on a pending motion can move that the vote on the motion be taken by ballot This is exactly what occurred in this case INSULFAB PLASTICS tions and the Board's Rules and Regulations are similarly silent What Respondent appears to be arguing is that an affiliation election must be deemed null and void unless it is conducted in the same manner as a Board representa- tion election, with the sole possible exceptions that a Board agent need not be present and that objections to the election need not be made by a party to the election nor within the normal 5-day limitation period 18 The contention is without merit In the present case, a secret ballot election was taken. No one was present to vote who was not eligible to vote Because of the smallness of the unit, this fact was well known to all who participated When the results were announced, no one objected to the manner in which the election was conducted, although everyone present was given an opportunity to voice an objection. Since the participants in the election did not object to the manner in which the vote was taken, the Respondent is in a poor position to do so now simply because it does not like the way the vote turned out The Union was under no obligation arising out of statute or regulation to conduct its affiliation vote in a manner deemed suitable by the Respondent. The fact that it did not act in strict conformity with the procedures required for a represen- tation election and chose instead to conduct its business more informally in accordance with the traditions of New England town meeting democracy is no basis for post hoc faultfinding While flying the flag of "due proc- ess," the Respondent should bear in mind that one ele- ment of fundamental fairness is that the majority should rule and that its stated wishes should be accorded full weight. In question here is not free employee choice but whether petty obstructionism should be allowed to nulli- fy that choice. Accordingly, the Respondent's "due process" challenge to the affiliation election must fail 5. Substantial continuity of bargaining agent The Independent and the Independent, affiliated with the IUE, are one and the same organization. There can be no dispute on this record that the Independent, as af- filiated with the IUE, is a separate and distinct legal entity from the IUE, an International with whom it chose to join hands Both before and after August 17, 1983, the Independent had the same officers, the same members, the same constitution," the same bank ac- count, and the same dues There is some suggestion in the record that, at an unstated future time, the Independ- ent will have to increase its dues as a result of affiliation. This has not happened nor is there any indication of when it will happen. Certainly there is no reason to be- lieve that members will be deprived of the right to vote on the increase when and if the IUE asks it for more money In the meantime, dues remain the same and the money which currently reposes in the Independent's treasury will remain there, to be spent by the Independ- ent for its own purposes and at its sole discretion. i5 Doubtless some accommodation might also have to be made to the Board's contract bar rules if it took on the responsibility of running affili- ation elections. 19 At the hearing, sustained an objection to the admission into evi- dence of the Independent's constitution and bylaws That ruling is re- versed and the document is admitted into evidence as R-6 823 As Campbell explained at the August 17 meeting, the membership of Independent remains the final arbiter of whether and when it will strike. Assistance from the International, either in negotiations or otherwise, comes on a request basis only The notion that an organization somehow loses its identity and becomes transformed into a new legal entity simply because it acquires more clout and becomes better able to do its job is an absurdity and one which flies squarely in the face of a clearly stated congressional objective in passing the National Labor Relations Act.20 The Independent after affiliation re- mains the same small platoon it always was but it now can arrive at the bargaining table with newly acquired reinforcements. The argument that affiliation means that there is no substantial continuity in the bargaining agent is just Pearl Bookbinding revisited It should meet with the same resolution here. In finding that the Independent and the Independent as affiliated with the IUE are one and the same organiza- tion, it should be noted that both Campbell and Flanagan could have been more precise when they brought news of the affiliation to Nicolazzo's attention in August and September 21 In fact, the IUE is not the exclusive collec- tive-bargaining representative of the Respondent's pro- duction and maintenance employees. Campbell's first letter to Nicolazzo could be construed as a claim to that effect, but it could also be construed otherwise, namely, that Campbell, an International official, was merely as- sisting the existing bargaining agent who had become af- filiated with the International.22 Any genuine doubt on this score was dissipated by Flanagan's letter of Septem- ber 23 and could have been cleared up easily at a much earlier date by a phone call or a 5-minute conference at the plant. When these respective roles were spelled out in precise terms at the hearing on the record in front of Nicolazzo and his attorney, the Respondent still refused to bargain with the affiliated Independent without the intervention of a representation election conducted by the Board. 20 Sec I of the Act, states, in pertinent part The inequality of bargaining power between employees who do not posses full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other form of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries Experience had proved that protection by law of the right of em- ployees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly ad- justment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bar- gaining power between employers and employees 21 Indeed, the General Counsel could have been more precise in her opening remarks concerning the relationship of the parties in this dispute However, the complaint correctly identified the present unit bargaining representative as the Independent , affiliated with the IUE, not the IUE standing alone 22 Campbell 's actual role in bargaining with the Respondent on behalf of the affiliated Independent is closely akin to that of an attorney or labor consultant who has been retained by the Independent for that purpose 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's contention that it was really uncer- tain with whom to bargain is at best disingenuous. The duty to bargain in good faith requires more than sitting back, picking at nits, and hoping that an inept phrase or an inartful expression on the part of one's bargaining ad- versary will provide a loophole through which one can avoid entirely all the elements of a bargaining obligation. This is what the Respondent has done since August 17 and continues to do to this date By refusing to recognize and bargain collectively with the Independent Workers of Insulfab Plastics, Inc, New England Division, affili- ated with the International Union of Electronic, Electri- cal, Technical, Salaried and Machine Workers, AFL- CIO-CLC, the Respondent herein has violated Section 8(a)(1) and (5) of the Act I so find and conclude. 6. The refusal of the Respondent to provide information It is well established that an employer is obligated to furnish the union representing its employees with infor- mation which is relevant , or is of potential relevance, in assisting the union in carrying out its responsibilities as bargaining agent . In determining relevance , a liberal dis- covery-type standard should be applied . NLRB v. Acme Industrial Co., 385 U S . 432 (1967); Brooklyn Union Gas Company, 220 NLRB 189 ( 1975), and cases cited therein; Samuel Kosoff & Sons, 269 NLRB 424 ( 1984). Any infor- mation concerning the status or compensation of bargain- ing unit employees is presumptively relevant and is pro- ducible upon request. American Oil Co., 164 NLRB 29 (1967). The Respondent 's reply to repeated requests for information concerning the identity and compensation of unit employees was repeated denial , irrespective of whether the request was made by Flanagan or by Camp- bell. Its excuse was either that the request was premature or that there was no bargaining currently in progress and hence no obligation existed to furnish requested data This argument is also Pearl Bookbinding revisited and should meet with the same results . Accordingly, I find and conclude that, by refusing to supply both Campbell and Flanagan with data requested concerning the status and compensation of bargaining unit employees and the provisions and costs of fringe benefit programs for unit employees, the Respondent herein violated Section 8(a)(1) and (5) of the Act On the foregoing findings of fact, and on the entire record considered as a whole, I make the following CONCLUSIONS OF LAW 1 The Respondent, Insulfab Plastics, Inc., New Eng- land Division, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Independent Workers of Insulfab Plastics, Inc , New England Division, affiliated with International Union of Electronic, Electrical, Technical, Salaried, and Machine Workers, AFL-CIO-CLC and the International itself are, respectively, labor organizations within the meaning of Section 2(5) of the Act. 3 At all times material herein, the Independent Work- ers of Insulfab Plastics, Inc , New England Division, af- filtated with the International Union of Electronic, Elec- trical, Technical, Salaried, and Machine Workers, AFL- CIO-CLC has been the exclusive representative for pur- poses of collective bargaining in the following described unit, which is a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. All production and maintenance employees of the Respondent employed at its Watertown, Massachu- setts, plant, exclusive of office clerical employees, professional employees, guards, and supervisors as defined in the Act. 4. By refusing to recognize and bargain collectively with the affiliated Independent , and by refusing to fur- nish it information relating to job classifications , wages, seniority, vital statistics of bargaining unit employees, a list of all fringe benefits paid to unit employees, and copies of fringe benefit plans pertaining to unit employ- ees together with the costs of said plans, the Respondent herein violated Section 8(a)(1) and (5) of the Act. These unfair labor practices have a close, intimate , and substan- tial effect on the free flow of commerce within the meaning of Section 2(2), (6), and (7) of the Act. REMEDY Having found that the Respondent has committed cer- tain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and to take certain affirmative actions designed to effectuate the purposes and policies of the Act. Specifically, I will recommend that it be required to recognize and bargain collectively with the affiliated Independent and that it be required to furnish the affiliated Independent with the information this Union had requested On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed23 ORDER The Respondent, Insulfab Plastics, Inc, New England Division, Watertown, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with Independent Workers of Insulfab Plastics, Inc, New England Divi- sion , affiliated with the International Union of Electron- ic, Electrical, Technical, Salaried, and Machine Workers, AFL-CIO-CLC as the exclusive collective-bargaining representative of the production and maintenance em- ployees employed by the Respondent at its Watertown, Massachusetts plant, and refusing to furnish that Union with requested information relating to job classifications, wages, seniority, vital statistics of bargaining unit em- ployees, a list of all fringe benefits paid to unit employ- 23 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings , conclusions , and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses INSULFAB PLASTICS ees, and copies of all fringe benefit plans pertaining to unit employees together with the costs thereof. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act. (a) Recognize and bargain collectively with Independ- ent Workers of Insulfab Plastics, Inc., New England Di- vision, affiliated with the International Union of Elec- tronic, Electrical, Technical, Salaried, and Machine Workers, AFL-CIO-CLC as the exclusive collective- bargaining representative of the production and mainte- nance employees employed by the Respondent at its Wa- tertown, Massachusetts plant (b) Furnish to the aforesaid labor organization request- ed information relating to job classifications, wages, se- niority, vital statistics concerning bargaining unit em- ployees, a list of all fringe benefits paid to unit employ- ees, and copies of all fringe benefit plans pertaining to unit employees together with the costs thereof. (c) Post at its Watertown, Massachusetts plant copies of the attached notice marked "Appendix."24 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 24 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " 825 (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain with this Union or refuse to furnish it requested information pertaining to its bargaining responsibilities, and WE WILL NOT in any like or related manner interfere with, restrain, or coerce em- ployees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act. WE WILL recognize and bargain collectively with In- dependent Workers of Insulfab Plastics, Inc., New Eng- land Division, affiliated with the International Union of Electronic, Electrical, Technical, Salaried, and Machine Workers, AFL-CIO-CLC 'as the exclusive collective- bargaining representative of the production and mainte- nance employees employed at our Watertown, Massa- chusetts plant, exclusive of office clerical employees, professional employees, and supervisors as defined in the Act. WE WILL furnish this Union with requested informa- tion pertaining to job classifications, wage rates, seniori- ty, and vital statistics of bargaining unit employees, and WE WILL furnish this Union with requested information pertaining to fringe benefits paid to unit employees, copies of fringe benefit plans pertaining to unit employ- ees, and the costs of said plans. INSULFAB PLASTICS, INC., NEW ENGLAND DIVISION