Garlock Equipment Co.

OARLOCK EQUIPMENT CO. 247 Garlock Equipment Company and District Lodge No, 77, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 18- CA-6846 March 25, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, BABSON, AND CRACRAFT On May 15, 1980, following a consent election, the Board certified the Garlock Employees Com- mittee (GEC) as the bargaining representative of the Respondent's employees. On July 11, 1980, in Cases 18-AC-38 and 18-AC-40, the Regional Di- rector, without holding a hearing, amended the GEC's certification to reflect its June 11, 1980 af- filiation 'with the Charging Party. The Regional Director concluded that the affiliation election did not result in a fundamental change in the bargain- ing representative and also that it met the Board's due-process standards for such elections. The Board subsequently denied the Respondent's re- quest for review of the Regional Director's deci- sion and amendment of cer Lification. On August 24, 1982, the Board issued its Decision and Order,' upon a Motion for Summary Judgment, finding that the Respondent had violated Section 8(a)(5) and (1) of the Act by refusing to bargain with and to provide information to the 1AM. On June 7, 1983, as amended on July 7, 1983, the United States Court of Appeals for the District of Colum- bia Circuit vacated the Board's order.2 The court held that because the Respondent had raised "several substantial, unresolved factual issues material to continuity of representation" the Board should have held a hearing and therefore improper- ly resolved the refusal-to-bargain issue in the sum- mary judgment proceeding. Accordingly, the court remanded this proceeding to the Board for a hear- ing on the issue of continuity of representation.3 1 263 NLRB 684. 2 709 F.2d 722. 3 As recognized by the judge, the Issue of due- process is not now before us on remand. The court did not mention it and, further, no ex- ception is taken to the judge's agreement with the Regional Director and the Board and therefore to his finding that all GEC employees had a fair opportunity to vote m a secret-ballot election with adequate due-process safeguards We thus find it unnecessary to address the issue of due process in the context of this case. We note, however, that to the extent the judge's analysis in this case suggests that continuity of representative is only a "factor to be considered" in determining whether an affiliation is valid, and to the extent he relies on Quemetco, Inc., 226 NLRB 1398 (1976), his analysis is inconsistent with our decision issued this day in Western Com- mercial Transport, 288 NLRB 214 We accepted the remand and in turn remanded this proceeding to the Regional Director for the purpose of arranging a hearing before an adminis- trative law judge pursuant to the court's direction. Subsequently, on July 18, 1984, Administrative Law Judge Bernard Ries issued the attached deci- sion. The Charging Party filed exceptions and a supporting brief and the Respondent filed an an- swering brief. The Board has considered the decision and the record in light tof the exceptions and briefs and has decided to affirm the judge's rulings, fmdings, and conclusions only to the extent consistent with this Supplemental Decision and Order. As pointed out by the court, the Respondent can be found to have violated Section 8(a)(5) in the cir- cumstances of this case only if the evidence pre- sented to the judge shows that the June 1980 affili- ation did not result in a fundamental change in the bargaining representative. For the reasons set forth below, we fmd, in agreement with the judge, that the result of the affiliation was to substitute a new representing labor organization for the incumbent certified representative. Accordingly, we shall dis- miss the complaint, vacate the Amendment of Cer- tification, and dismiss the AC petitions. The facts are fully set forth in the judge's deci- sion and are now briefly summarized. The GEC is an independent labor organization that was formed by the production and mainte- nance employees of the Respondent. Following a representation election conducted May 8, 1980, the GEC was certified as the exclusive representative of the employees. As found by the judge, the GEC as initially con- stituted in May and June 1980 was a "classically simple democratic institution." There were ap- proximately 71 employees in the unit and all were considered to be members of the GEC. The mem- bership selected five of their number to serve as an executive and bargaining committee. Testimony differs whether any of these employees held formal officer positions and if so what the terms were. No constitution or bylaws were ever adopted. There was no formal dues obligation—expense money as needed was collected from the membership and an employee's failure to contribute did not disenfran- chise him All decisions of the executive committee were subject to ratification by majority vote of the entire membership. During the initial bargaining following the certi- fication no agreement was reached between the GEC and the Respondent, and on June 2, 1980, the employees went on strike. While on strike the em- ployees commenced efforts to affiliate with the JAM. The question was put to a vote on June 11, 288 NLRB No. 31 248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1980, at a meeting where all employees had notice and were eligible to vote. The vote in favor of af- filiation was 59 to 3. The following day both the GEC and District Lodge No. 77 of the JAM filed petitions to amend the certification accordingly. The record also supports the judge's finding that the affiliation vote effectively "transformed an amoeba-simple independent labor organization into a dependent affiliate of a large organization, subject to new controls and restrictions and stripped of a substantial amount of pre-affiliatingii autonomy." As set forth by the judge, the basic unit of the JAM is the local lödge. The International constitution de- termines the governance structure of such lodges including the number of officers and trustees and the manner of their selection, the setting of initi- ation fees and dues, payment of per capita taxes and assessments, and restrictions on member con- duct enforceable by fines and expulsion. The amended certification, however, did not cer- tify the GEC as a local lodge or affiliate of the IAM or of District Lodge 77, the Charging Party in this unfair labor practice proceeding. Rather, the Regional Director substituted the District Lodge as the certified bargaining representative. In 1980 Dis- trict Lodge No. 77 represented approximately 10,000 to 12,000 employees within 11 local lodges located in 27 counties of Minnesota and Wisconsin. The bylaws of District Lodge No. 77 specifically require, in the context of general supervision of its local lodges, that all collective-bargaining agree- ments be negotiated and signed in the name of the District Lodge by an "authorized Representative and the Shop Committee." The judge found that prior to the affiliation vote the GEC members were told by International Rep- resentative Woltz that the on-going contract nego- tiations with the Respondent would continue in "basically the same" manner, the only difference being that the GEC executive committee would be assisted by a professional provided by the "Ma- chinists Union." Woltz told the GEC membership that after the Respondent made its final offer the bargaining committee would present this offer to employees with a recommendation whether it should be accepted or rejected. However, in assess- ing the weight to be given this testimony the judge found it critical that Woltz was not, and had never been, a business representative for District Lodge No. 77 and therefore probably could not state au- thoritatively what the postaffiliation procedure would be for contract acceptance. The judge noted that Woltz did not state that the employees re- tained total control over the decision whether to accept or reject a contract proposal. The judge found, and we agree, that under these circum- stances the requirement that a District Lodge rep- resentative must sign any final agreement essential- ly constitutes a veto power by the District Lodge over the GEC's former exclusive authority to con- tract with the Respondent. In our view, the judge correctly characterized this precondition to any collective-bargaining agreement as a "meaningful diminution" in the GEC's autonomy. Overall, we also agree with the judge that the record evidence drawn from District Lodge No. 77's bylaws on control over the GEC's collective- bargaining negotiations, fmancial obligations, and formal governing structure reveals not a continu- ation of the GEC but the substitution of a new labor organization as the representative of the unit employees. These changes in the GEC wrought by the affiliation have shifted the effective locus of control from a small independent organization to a large division of an international union many times its size and substantially more structurally complex. We also rely on the absence of any evidence that the District Lodge No. 77 governing documents and those of IAM itself were not controlling fol- lowing the affiliation. Specifically, there is no evi- dence of any assurance that the employees would retain local bargaining autonomy or its selection of elected officials. In Western Commercial Transport, supra, the Board applied the "sufficiently dramatic" standard derived from NLRB v. Financial Institution Em- ployees Local 1182, 475 U.S. 192 (1986), for deter- mining when changed circumstances, such as orga- nizational changes resulting from an affiliation, will raise a question concerning representation. Apply- ing that standard here, we find that the changes as- sociated with the affiliation—particularly the great- ly lessened autonomy of the GEC—were sufficient- ly dramatic to result in the substitution of a new entity for that originally certified. Consequently, a question concerning representation has been raised that must be resolved through an election under Section 9(a) of the Act. 4 We therefore will vacate our amended certification, dismiss the underlying petitions, and accordingly will also dismiss the in- stant refusal-to-bargain complaint. ORDER The National Labor Relations Board orders that its Decision and Order in Case 18-CA-6846 (263 NLRB 684) is vacated and the complaint is dis- missed. 4 Gulf Oil Corp., 135 NLRB 184 (1962) See also Port Chester Nursing Home, 269 NLRB 150 (1984). GARLOCK EQUIPMENT CO. 249 IT IS FURTHER ORDERED that the Amendment of Certification in Cases 18-AC-38 and 18-AC-40 is vacated. IT IS FURTHER ORDERED that the petitions in Cases 18-AC-38 and 18-AC-40 are dismissed. MEMBER JOHANSEN, dissenting. For reasons set forth in my dissent in Western Commercial Transport, 288 NLRB 214, issued this day, I find that the Respondent's employees' affili- ation with the IAM was valid and that the Re- spondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize the Union. Here, the Respondent's employees voted to transform their informal, independent union into an affiliate of a large international labor organization. The employees sought to affiliate with the ,IAM because they believed the IAM's expertise and re- sources would provide much-needed help in their economic strike against the Respondent. The affili- ation vote was conducted with adequate due proc- ess safeguards, and the employees voted over- whelmingly to affiliate.' Consistent with my dissent in Western Commer- cial Transport, supra, I find that District Lodge No. 77, IAM, clearly retains the majority support of the Respondent's employees. Therefore, there was no question concerning representation, the certifica- tion was properly amended in this case, and the Respondent was obligated to recognize and bargain with the Union. 1 All the approximately 71 unit employees had notice of the meeting in which the affiliation question was discussed and voted on. All employees were considered members of the Union and were eligible to vote The election was Conducted in a manner that ensured secrecy. The vote was 59 to 3 in favor of affiliation. Florence I. Brammer, Esq., for the General Counsel. Robert L. Hobbins, Esq. (Dorsey & Whitney), of Minne- apolis, Minnesota, for the Respondent. Kenneth W. Black, of Des Plaines, Illinois, for the Charg- ing Party. DECISION BERNARD RIES, Administrative Law Judge. This matter was heard in Minneapolis, Minnesota, on April 11, 1984, pursuant to a mandate for further hearing issued by the United States Court of Appeals for the Dis- trict of Columbia Circuit on June 7, 1983. Having con- sidered the entire record and the briefs filed by the par- ties, I make the following findings, conclusions, and rec- ommendation.1 1 Certain obvious errors in the transcript of proceedings are noted and corrected. I. RELEVANT BACKGROUND In a secret-ballot election conducted by the Board on May 8, 1980, the Garlock Employees Committee (GEC), an independent labor organization, was selected by Re- spondent's production and maintenance employees as their collective-bargaining representative. After a series of negotiating meetings with Respondent, GEC called a strike on June 2, 1980. During the strike, the Charging Party, District Lodge No. 77, International Association of Machinists and Aerospace Workers, AFL-CIO, was ,contacted by the unit employees to discuss the possibility of affiliation. On June 11, at a meeting attended by 62 of the 71 unit mem- bers, 59 of them voted, by secret ballot, to affiliate with the IAM. On June 12, both the JAM and the GEC filed "Amendment of Certification" (AC) petitions with the Region seeking to officially record the affiliation. After an investigation, but without a hearing, the Re- gional Director, on July 11, 1980, issued a decision and amendment of certification in which he concluded that (1) the affiliation of GEC with the IAM worked "no fundamental change in the bargaining representative"; and (2) the affiliation vote "met, in all respects, the Board's due process requirements for affiliation elec- tions." Accordingly, he ordered that the certification previously issued to the GEC be amended "by substitut- ing 'District Lodge No. 77 of the International Associa- tion of Machinists and Aerospace Workers, AFL-CIO' for 'Garlock Employees Committee' as the certified ex- clusive representative of the employees in the appropri- ate bargaining unit." The Respondent thereupon requested the Board to review the Regional Director's decision, on the grounds that (1) the affiliation had wrought a substantial change in the identity of the bargaining representative, the sort of change that can be accomplished only by a represen- tation election; (2) the affiliation election did not com- port with established due-process requirements for such elections; and (3) the Respondent had raised substantial and material factual issues that should have been re- solved by the Regional Director only after a hearing was held. On August 8, 1980, the Board denied Respondent's request as raising "no substantial issues warranting review." As it had before the amendment proceeding, the Re- spondent continued to refuse to bargain with District Lodge 77 and, on a charge filed by the Union, the Region issued a complaint alleging that the Respondent's refusal to recognize District Lodge 77, and a concomi- tant refusal to furnish certain information to it, constitut- ed violations of Section 8(a)(5). On the General Coun- sel's Motion for Summary Judgment, the Board found that Respondent had violated the Act as alleged. 263 NLRB 684. Respondent petitioned for review to the United States Court of Appeals for the District of Columbia. On June 7, 1983, that court reversed the Board's decision, holding (709 F.2d 722): Garlock violated the Act by refusing to bargain only if the GEC's certification was lawfully amend- S -222704 0249(28)(02—MAR-90-13:14:16) F0610 11/23/89 250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ed to reflect formal affiliation with the IAM. The Board could have properly amended the GEC's certification, without a representation proceeding, only after determining—as a factual matter—that the GEC-IAM affiliation did not result in a funda- mental change in the bargaining representative. See, e.g., J. Ray McDermott & Co. v. NLRB, 571 F.2d 850, 857 (5th Cir.), cert. denied, 439 U.S. 893 . . NLRB v. Commercial Letter, Inc., 496 F.2d 35, 39 (8th Cir. 1974); Carpinteria Lemon Association v. NLRB, 240 F.2d 554, 557 (9th Cir. 1956), cert. denied, 354 U.S. 909 (1957) . . . . If the Board holds no hearing in amending a certification, it may not summarily dispose of a continuity of representa- tion question in subsequent unfair labor practice proceedings where the employer raises substantial factual issues material thereto. Cf. NLRB v. Win- burn Tile Manufacturing Co., 663 F.2d 44, 45-46 (8th Cir. 1981) (employer refused to bargain in order to challenge a union certification following a disputed representation election). Because Garlock convincingly points to several substantial, unre- solved factual issues material to continuity of repre- sentation in this case, we vacate and remand for a hearing on that question. [Fn. omitted.] On January 26, 1984, the Board issued an "Order Re- manding Proceeding To Regional Director." In the Order, the Board, noting that it had "accepted the remand," referred the case to the Region "for the pur- pose of a hearing regarding the continuity of representa- tion." H. A COMPARISON OF THE ORGANIZATIONS The GEC was, in mid-1980, a classically simple demo- cratic institution. It had been formed by the Garlock em- ployees in the spring of that year. After certification, the employees selected five of their membership to act as an executive and bargaining committee.2 All the employees in the bargaining unit were consid- ered "members" of GEC. The membership made all de- cisions by majority vote at open meetings. When negoti- ations failed in 1980, the employees voted to strike on a majoritarian basis. No constitution or other rules were drawn up. No dues were collected; as expenses were in- curred, the hat was passed, and any funds on hand were, as one employee testified, deposited "in a billfold." An employee's failure to contribute to these collections did not deprive him or her of the right to vote. The International Association of Machinists is, of course, a labor organization of a different stripe. In 1980, it represented some 750,000 employees in the United States and Canada, and it is, like all such institutions, en- crusted with structure, machinery, and obligations. The basic organizational unit of the JAM is the local lodge, which may represent employees in one or more 2 One of the five testified that none of the five held any particular of- fices. Another testified, to the contrary, that he was elected as president, another as secretary, and a thud as treasurer, and that he did not "know if we had any others besides that or not' It is at least reasonably clear that one of the five was considered the chief spokesman, a pnmus inter pares with no apparent additional authority. bargaining units. In 1980, there may have been about 2500 local lodges in existence. The JAM constitution reg- ulates in detail the governance of these local lodges, in- cluding the manner in which officers are to be chosen, formulas for calculating the amount of initiation fees and dues that must be paid, and a requirement that the bylaws adopted by local lodges be submitted to the International president for approval. As members of the International, local lodge members are subject to pay- ment of per capita taxes and assessments, and also to var- ious restrictions, enforceable by fine and expulsion, on their conduct. The next ascending organizational level is the district lodge. Article XXIV of the International constitution provides that a district lodge "is a delegate body made up of representatives duly elected from the [local ldidges] within the. . locality in which the district lodge is es- tablished." District lodges are established and chartered by the highest governing authority of the International, the grand lodge, in localities where two or more local lodges exist; the executive council of the grand lodge de- fines the jurisdiction of each district lodge, and the dis- trict lodges "have authority over and control of all [local lodges] within their jurisdiction . . . ." Officers of each district lodge are elected by the local lodges affiliated with that district lodge. The district lodge fixes the "pro- portion and representation therein" of the local lodges within its jurisdiction and determines the "revenues to be collected from [the local lodgesj to maintain and carry on the work of the [district lodge]." The grand lodge is, and possesses, the supreme gov- erning authority. That authority is exercised between na- tional conventions by the executive council, which can, inter alia, require reports from and suspend or remove officers of local and district lodges. The International president "shall have the general supervision, direction and control of" local and district lodges and may, in ap- propriate circumstances, impose a suspension or trustee- ship on those entities. The general secretary-treasurer may, among other things, require local and district lodges to turn their books over to him. The IAM constitution provides that no local lodge may engage in a strike without obtaining permission from the International president or the executive council. In order to authorize a strike initially, a two-thirds ma- jority of the local lodge members present at the meeting must so vote "by secret ballot." If the executive council decides that an ongoing strike should be terminated, it may order members to return to work and, in some cir- cumstances, the Council and the International president may order employees to engage in a strike. The record is not as clear as it might be on the sub- jects of the legal effect of the affiliation vote and the nature of the union entity resulting therefrom. We have no evidence in this record as to the precise question on which the employees voted at the June 11 affiliation election. The Regional Director's lengthy and considered decision simply refers again and again to the fact that the subject of "affiliation" was discussed and voted on. The AC petitions in the exhibits file do not reflect the precise nature of the affiliation accomplished (or even the specif- OARLOCK EQUIPMENT CO. 251 ic "amendment" of the certification desired.) The Re- gional Director's decision, however, speaks of the "re- quested" amendment as seeking to place the existing cer- tification "in the name of District Lodge No. 77 of the International Association of Machinists and Aerospace Workers," and his order, approved by the Board, is in fact phrased in terms of "substituting" the name of Dis- trict Lodge 77 for GEC as the exclusive collective-bar- gaining representative.5 The record, perhaps necessarily so, also contains no authoritative evidence as to the manner in which bar- gaining and other representation would have proceeded after the affiliation if Respondent had not refused to rec- ognize the new entity. The nearest thing to such ,evi- dence, I discover, is an exhibit marked by the Union at the hearing (C.P. Exh 1 for identification), but not of- fered in evidence. The exhibit is a handbill that was dis- tributed by the JAM at the June 11 employee meeting; it states, among other things, that the Garlock employees would "retain your local union" because the IAM "will charter a new Local Lodge for you"; that the "local nnion treasury" (which apparently was nonexistent) would remain the property of the local; that the employ- ees "will retain all present officers and stewards . . . until their terms of office expire"; and that there would be no initiations fee—"[u]pon affiliation, all members will simply transfer to the JAM." After having marked this exhibit, the Union's counsel began to question the JAM grand lodge representative whose name appears on it about what he told the em- ployees at the June 11 meeting "about the affiliation with the Machinists," I overruled a hearsay objection by Re- spondent, but inquired of union counsel as to the reason for broaching the subject of what the employees were told. In response, union counsel referred to the issue of whether the GEC "continued to exist in similar or sub- stantial form." I said that I did not "see what difference it makes what the people were told. . . . Mlle question is, what happened." Union counsel thereupon abandoned all questioning, made no effort to adduce testimony as to "what happened" as a result of the vote, and did not offer the exhibit. There is, then, no clearcut evidence in this record as to what status the GEC occupied after the affiliation vote. In his AC decision, however, the Regional Direc- tor had referred to the foregoing leaflet, including the as- sertion that the GEC would be established as a separate local lodge, and in his analysis he later relied on the leaf- let in finding that "[t]he only difference in the day-to-day operation of the labor organization is that representatives of the IAM are available to give advice." In its brief to me, Respondent's proposed findings of fact declare that as a result of the affiliation, "the GEC would become one of approximately 2,500 local lodges in the IAM" 3 The Regional Director's decision states IT IS HEREBY ORDERED that the Certification of Representative issued on May 15, 1980, in Case No 18-RC-I2623, be and it hereby is, amended by substituting "District Lodge No 77 of the Interna- tional Association of Machinists and Aerospace Workers, AFL- CIO," for "Garlock Employees Committee" as the certified exclu- sive representative of the employees in the appropriate bargaining unit. and, more specifically, that "the GEC would become one of approximately eleven local lodges within District Lodge No. 77." Given these concessions, it seems fair to proceed on the assumption that the effect of the affili- ation was to transform the GEC into a local lodge of the IAM. As discussed, however, the certification was not amended to change the name of the bargaining represent- ative from the GEC to whatever its new local lodge ap- pellation may be; instead, the amendment that was re- quested and granted was to name District Lodge 77 as the bargaining agent. We have seen above that a district lodge is a body consisting of delegates from its constitu- ent local lodges. The 24 pages of bylaws of District Lodge 77 in evidence, dated September 27, 1979, show that 10 local lodges were then under its umbrella, 4 and that its jurisdiction extended to "all Local Lodges" in 27 counties in 'Minnesota and 2 counties in Wisconsin. Among other things, the bylaws state that Lodge 77 "shall be the highest tribunal" of the IAM within its ter- ritory; 5 that 101 agreements for affiliated Local Lodges shall be negotiated and signed in the name of District Lodge No. 77. . . by an authorized Representative and the Shop Committee"; that Lodge 77 "shall be responsi- ble for the processing of all grievances which are not set- tled at the shop or Local Lodge level"; that "[a]ll arbi- tration cases or other governmental legal proceedings shall be carried on by and in the name of District Lodge No. 77" and may not be undertaken "without the con- sent of the Directing Business Representative"; 6 and that affiliated local lodges must pay prescribed monthly per capita taxes to the district lodge. At the hearing, Grand Lodge Representative Woltz testified that during the affiliation process, he told the employees that, after affiliation, "negotiations would pro- ceed basically the same as they had been going. The only difference, basically, would be they would have the as- sistance of a professional provided by the Machinists Union . . . . [That when the company made its final offer] we call a special meeting of all of the bargaining unit employees, and that the offer is normally presented to them in writing as well as the business representative or the representative assigned to the case explains the proposal. The committee, the bargaining committee—in this case the five person committee—explains the propos- al as well as answers any questions regarding the propos- al, as well as making their recommendation whether it should be accepted or rejected. Woltz, who had never served as a business representative for District Lodge 77, did not expressly state that Garlock employees retained total control over the decision whether to accept or 4 See art. XII, sec. 2. At the hearing, Grand Lodge Representative Woltz "guess[ed]" that District Lodge 77 represented perhaps 10,000- 12,000 employees in 1980, 5 The execntrve board of the district lodge is composed of the officers of the lodge and one member from each local lodge The executive board is the governing body between the monthly meetings of the district lodge. 6 The latter is a paid functionary who "shall exercise control of the District Office and maintam it on an efficient basis . ." He also super- vises the other paid business representatives. 252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reject a contract proposal; as I read the District Lodge bylaws, see infra, they do not. III. DISCUSSION This proceeding raises an issue not infrequently consid- ered by the Board and courts of appeals in the past, sometimes in the setting of a refusal to bargain after an AC proceeding, sometimes in a withdrawal-of-recogni- tion or similar circumstance. 7 The problem arises when a recognized bargaining agent, certified or not, takes or is the subject of some action that has the effect of modify- ing its structure. The possible modifications are consider- able; they include the affiliation or merger of two inde- pendent unions, the affiliation of an independent union with a national union, the affiliation or merger of two national unions, and the change of affiliation by a local union from one national union to another. Once an in- cumbent union has undergone some such transformation, the question is often raised, as it has been here, whether the employer with whom the union has been bargaining must also extend recognition to the "new" entity (and/or whether the "new" entity may have its certification amended to reflect the change in its character). One of the basic criteria usually applied to the deter- minations in this troubled area of the law was phrased as follows by the Court of Appeals for the Ninth Circuit in Carpinteria Lemon Assn. v. NLRB, 240 F.2d 554, 557 (1956). The right of a successor union to assume the status of certified bargaining agent held by its predecessor depends on a factual issue—is the new union a con- tinuation of the old union under a new name or at- filiation or is it a substantially different organiza- tion? The Board has stated that a change in the nature of the representative that does not afford employees "a continu- ity of their present organization or representation" and that amounts to "the substitution of a new and different" representative gives rise to a "question concerning repre- sentation," which "the Act and the Board's policy. . . require . . . be determined through a petition and secret ballot of the employees concerned." Gulf Oil Corp., 135 NLRB 184, 185 (1962); Gas Service Co., 213 NLRB 932, 933 (1974). In evaluating the right of the "new" labor organization to represent the unit employees, the Board has also con- sidered, concurrently with the "continuity of representa- tion" (or, sometimes, "successor") inquiry, a second question, that being whether the change of union struc- ture was attended by an opportunity for the relevant em- ployes to deliberate about and vote on the change, often referred to as the "due process" criterion. To my knowl- edge, the Board has never definitively discussed the interplay between these two concepts. While the law on the due-process issue has over the years developed with- out much controversy in the more obvious matters of notice, deliberation, and secret ballot, the real battle- ground in this area in recent times has been the question 7 E.g , Independent Drug Store Owners, 211 NLRB 701 (1974). of whether it is sufficient that only members of the in- cumbent union be permitted to vote on the structural changes, or whether all bargaining unit employees must be enfranchised for this purpose. In Amoco Production Co., 262 NLRB 1240 (1975) (Amoco IV), the Board's Third Supplemental Decision and Order in the same case, 8 the Board has most recently ruled that "in order to provide adequate due process safeguards in an affili- ation election, all unit employees, whether union mem- bers or not, must be permitted to participate and vote in an affiliation election." 262 NLRB at 1241. Cf. North Electric Co., 165 NLRB 942 (1967). As to the particular problem of an independent union becoming an affiliate of an International union, it would appear that the Board has generally taken the view that such an affiliation does not change the fundamental char- acter of the incumbent representative. E.g., Equipment Mfg., 174 NLRB 419 (1969); Hamilton Tool Co., 190 NLRB 571 (1971). In the two cases cited by the Region- al Director in his underlying decision in the present case—Amoco III, supra, 239 NLRB 1195, and Seattle- First National Bank, 241 NLRB 751(1979)—the Board even appeared to consider the inference a per se one.8 However, in Amoco IV, the Board arguably may have abandoned the notion that an affiliation between an inde- pendent union and a national union has no effect on the "identity" of the representative; at one point, in language directly contrary to that used in Amoco III, a new Board majority observed, "To contend, as do our dissenting colleagues, that a union affiliation vote is an internal union matter into which the Board does not ordinarily intrude is inconsistent with their own position. If, in fact, union affiliations are internal union matters why does the Board even look to see if adequate due process has been 8 In Amoco I, 220 NLRB 861 (1975), the Board had found the employ- er in violation of the Act after refusing to bargain with the creature spawned by an independent union-national uruon affiliation, and in Amoco II, 233 NLRB 158 (1977), had ordered a supplemental remedy. The chal- lenge to the affiliation was that nonmembers of the independent union had not been permitted to vote in the affiliation election In Amoco III, after sua sponte reconsidering Amoco I and II, the Board reaffirmed its original position 239 NLRB 1195 (1978) Thereafter, the Court of Appeals for the Fifth Circuit remanded the case to the Board for a factual determination whether the newly affiliated union should be considered a "successor" to the original incumbent. 613 F.2d 107. A reconstituted Board, instead, again reviewed the issue of whether all the unit employees should have been allowed to vote on the affiliation, found that they should have been, dismissed the complaint, and therefore considered it "unnecessary to pass on the `successorship' issue." 262 NLRB at 1241, fn, 7. 9 In Amoco III, although the Board was focusmg on the issue of whether nonmembers of the union should be permitted to vote on the question of affiliation, it stated, "An affiliation does not create a new or- ganization, nor does it result m the dissolution of an already existing or- ganization The organizations participating in the affiliation determine whether any administrative or organizational changes are necessary in the affiliating organization . . Smce we view an affiliation vote as basical- ly concerned with the organization and structure of the union and not the representational status of employees, it is the sort of internal union matter into which the Board does not ordmanly intrude" 239 NLRB at 195, 1196, And in Seattle-First National, to the employer's argument that the substitution of the Retail Clerks International Union for the independent "is a substantial change in the bargaining representative requiring a Board-conducted election," the Board simply responded by reciting the first two sentences of the above-quoted language from Amoco Accord: Providence Medical Center, 243 NLRB 714 (1979) OARLOCK EQUIPMENT CO. 253 _ 4 I achieved?" 262 NLRB at 1241. The Board further stated that an "affiliation vote . . . directly, impacts upon mat- ters within the breadth of the Act and results in an un- dermining of the Board's own election and certification procedures." Ibid.1° That the affiliation of an independent union with a na- tional union does substantially affect the "identity" of the bargaining agent is a premise that has been firmly em- braced by the Court of Appeals for the Third Circuit, to the point, apparently, at which no amount of local auton- omy or "due process" short of a Board-conducted elec- tion would suffice to require an employer to extend con- tinued recognition to an entity so changed. Sun Oil Co. v. NLRB, 576 F.2d 553, 558; United States Steel Corp. v.` NLRB, 457 F.2d 660 (3d Cir. 1972); NLRB v. Bernard Gloekler North East Co., 540 F.2d 197 (3r1 Cir. 1976), Other courts, however, have recognized the possibility that such an affiliation can leave unimpaired the identity of the bargaining representative. Retail Store Employees Local 428 v. NLRB, 528 F.2d 1225, 1227 (9th Cir. 1975) ("When an independent union merges into a local of an international union, the local, under certain circum- stances, can become a representative for the former members of the now-defunct independent"); St. Vincent Hospital v. NLRB, 621 F.2d 1054 (10th Cir. 1980). In determining whether "the new union [is] a confirm, ation of the old union under a new name or affiliation" (Carpinteria Lemon Assn., supra), the cases have placed emphasis on whether unit employees have continued to be represented by the same officers operating under the same procedures and with the same degree of autonomy as before the change. St. Vincent Hospital v. NLRB, supra, 621 F.2d at 1058 ("1T]he National Union's consti- tution does not significantly affect PPA's local auton- omy. Indeed the National Union's constitution guaran- tees District 1199 NM substantial local control over its own funds, strike calls, grievances, collective bargaining agreements and geographical boundaries."); Retail Store Employees Local 428 v. NLRB, supra, 528 F.2d at 1228 ("explicit guarantees of unit autonomy and retention of the same officers are important . . . . [D]ecisions finding continuity . . emphasize the maintenance of unit au- thority and the continuation of established procedures."); Pearl Bookbinding Co., 206 NLRB 834, 835-836 (1973), enfd. 517 F.2d 1108 (1st Cir. 1975) ("It did not merge with any other local. There was no structural or adminis- trative change within the Union. Its officers and their duties and functions remained the same, its assets were unaffected, the membership semained the same, the Union's autonomy and bylaws remained the same, and the size and territorial jurisdiction of the Union remained the same."); J. Ray McDermott & Co. v. NLRB, 571 F.2d 850 at 857 (5th Cir. 1978) ("[W]e must consider whether changes have occurred in the rights and obligations of the union's leadership and membership, and in the rela- tionship between the putative bargaining agent, its affili- ate, and the employer."). 1° In its Decision and Order in the present case, issued 1 month after Amoco IV, the Board stated that it did not rely, as the Regional Director had in his underlying AC decision, on Amoco III and Seattle-First Nation- al "for the proposition that the affiliation vote taken here was an internal union matter." 263 NLRB at 685, fn 3. In describing the instant case, President Lyndon John- son might have said something like, "There's more than one leash pulling that dog." Much of the evidence now in the record, such as the constitutional restrictions and obligations arising out of affiliation with the JAM, was alleged by Respondent at the request for review stage of the proceeding and was presumably assumed by the Board to be true for purposes of the disposition of that issue; nonetheless, the Board evidently gave little weight to the effect of the new restrictions on, and the conse- quent changes within, the GEC and its members. Even though, at the complaint stage, the Board decided not to rely on Amoco III and Seattle-First National, it nonethe- less effectively approved the affiliation, despite the fact that it had in the interim issued Amoco IV, which might be construed to perceive the whole area differently. The reviewing court has accepted Respondent's contention that there are "several substantial, unresolved factual issues material to continuity of representation in this case"; although the court does not identify those issues, I assume that they relate to the legal and functional changes assertedly wrought by the affiliation. The Board has, in turn, "accepted the remand." Given that the court has found the unresolved issues to be "material to continuity of representation" and that the Board has "accepted the remand," it would appear that my assessment of the facts cannot be governed by the arguably per se standard of Amoco III and Seattle- First National with respect to the effect of an affiliation of an independent union with a national union, a stand- ard that, as noted, may not have survived Amoco IV. In any event, the main current of precedent in this field has, as indicated, not generally been phrased in per se terms. The cases, that is, have usually examined the particular facts presented to determine the extent of the change ef- fected by the action under review. See, e.g., St. Vincent Hospital v. NLRB, supra; Retail Store Employees Local 428 v. NLRB, supra; Pearl Bookbinding Co., supra; New Orleans Public Service, 237 NLRB 919, 921 (1978) (the existing contract, the covered unit, and the local officers "remain the same"; the new local "retains the right to negotiate its own collective-bargaining agreement and process its own, grievances through the same elected offi- cials who led the Association"); Good Hope Industries, 239 NLRB 611, 612 (1978). The court of appeals in the instant case clearly consid- ered to be consequential the various asserted modifica- tions in authority and control effected by the affiliation. In its brief to the court (a public document which I have examined), Respondent summarized its contention that, for the following reasons, the "affiliation resulted in a change of representative": The GEC is now subject to the By-laws of Dis- trict Lodge No. 77. (A 29). While IAM representa- tives assured Petitioner's employees that they would continue to enjoy autonomy after affiliation as a Local Lodge (A 27), it does not appear that Local Lodge status preserves much, if any, autonomy.'° Under these By-laws, all organizational and educa- tional activities of the Local Lodge must be con- ducted under the supervision of the District Ledge. 254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All agreements of the Local Lodge must be negoti- ated and signed in the name of the District Lodge by an authorized Business Representative employed by the District Lodge. (A 40). Moreover, no arbi- tration or legal proceedings may be commenced without the consent of the District Lodge through its Business Representative. (A 41) The District Lodge Business Representative likewise exercises ef- fective control over grievance proceedings. (Id.) Fi- nally, under the Constitution of the IAM, the power to institute a strike is reserved to the International President or the Executive Committee. (A 43). A Local Lodge may be suspended if it commences a strike without the required approval. Moreover, under certain circumstances, the Executive Commit- tee may itself order a Local Lodge to engage in a work stoppage. (Id.) The status of the GEC as a "Local Lodge" within the IAM has essentially no significance with respect to bargaining autonomy. Effective control over contract negotiations and important issues of contract administration is exercised by the IAM's District Lodge and its professional Business Repre- sentatives. (A 48-49), After the affiliation with the JAM, there were no substantial communications whatsoever from the GEC with respect to further negotiations or the conduct of daily affairs. (A 50- 52). Rather, all demands and inquiries in this respect originated directly from the IAM's District Lodge, with no apparent coordination or contact with the GEC. The GEC refused to have any further discus- sions or communications with the Employer in the absence of a representative of the District Lodge. This refusal was expressly made upon the instruc- tions of the District Lodge itself. (Id.) Even the charge which precipitated this case was filed by the District Lodge, without any reference to any Local Lodge (A. 47). These facts establish the very antith- esis of autonomy or continuity of representation in the GEC itself. Under these circumstances, it is futile to contend that Petitioner's employees continue to be represent- ed by the GEC simply under a new name. The pur- ported "affilation" of the GEC with the JAM has not resulted simply in a continuation of the old union (the GEC) under a new name, but rather m numerous and pervasive changes in the rights and obligations of the membership and their leaders, as well as in the relationship between the bargaining agent and Respondent. 10 After the TAM takeover, the GEC became one of eleven Local Lodges within District Lodge No. 77 The jurisdiction of this District Lodge extends to 27 counties m the state of Minneso- ta, including all of the Minneapolis/St Paul metropolitan area, as well as to two Wisconsin counties. (A 39-40). The hearing having been held, I can find no serious in- accuracy in the foregoing assertions, although there is some ambiguity regarding the matter of negotiating bar- gaining agreements. As discussed above, Grand Lodge Representative Woltz testified that he told the employ- ees, apparently prior to the election, that bargaining would proceed with the "assistance" of an JAM repre- sentative and that when the Company made a final offer, it would be presented to the bargaining unit employees, evidently to vote on whether it should be "accepted or rejected." The validity of this projected scenario is somewhat clouded by the fact that Woltz is not and has not been a business representative for District Lodge 77, and there- fore perhaps was in no position to make any authorita- tive statement about the anticipated procedure. In any event, the requirement of the District Lodge's bylaws that all agreements for affiliated lodges "shall be negoti- ated and signed in the name of District Lodge No. 77 . . . by an authorized Representative and the Shop Com- mittee" appears to mean that no agreement can be con- summated on behalf of the Garlock employees, no matter how amenable they may be to its terms, unless the Dis- trict Lodge representative is willing to affix his signature. In effect, such a precondition affords to the District Lodge a veto power over contracting, which may be re- garded as a meaningful diminution in the autonomy of GEC.11 Respondent has, it seems to me, essentially proved what it told the court it would prove: the affiliation has transformed an amoeba-simple independent labor organi- zation into a dependent affiliate of a large organization, subject to new controls and restrictions and stripped of a substantial amount of preaffiliation autonomy. 12 As indi- cated above, there are Board cases that arguably would not view these changes as significant (see especially Que- metco, Inc., 226 NLRB 1398 (1976), in which the inde- pendent local clearly wished to surrender its autonomy and disappear, but the Board nonetheless found sufficient continuity). However, in view of the court's evident dis- position to consider the instant changes as materially af- fecting the identity of the bargaining agent, the Board's acceptance of the remand, and the fact that it does appear that a certain loss of autonomy and increase of membership obligation did occur as a result of the affili- ation, I feel constrained to conclude that, in the court's words, there was a "fundamental change in the bargain- ing representative." It is appropriate at this point to turn to the other issue frequently considered by the Board in these cases, the question of "due process" in the effectuation of the change. The present fact pattern is an unusual one, for " One of the negohatmg committee members testified to his under- standing that "now that we had affiliated, we would now have one of the LAM representatives come in and negotiate a contract for us" 12 There are, in addition, the dues and per capita tax obligations that accompany IAM membership. Even if it were true that the GEC members were told that their cur- rent officers would continue in office, see C.P Exh 1, that pronuse would be complicated by the facts that (1) as shown above, two members of the five-person executive committee were at odds in their testimony concerning whether there ever were any officers; (2) the leaflet promise of continuation of the officers was only until "their terms of office expire," and if there is a dispute about the very existence of officers, it is unlikely that they enjoyed any defined terms, which would evidently mean, according to the TAM constitution (R. Ex)" 1 at 1 1 1), that new elections for all officers would have to have been held in January 1981; (3) there were, at best, only a president, treasurer, and secretary, leaving to be immediately elected, as required by the IAM constitution, at least two new officers and a board of trustees. (R Exh. 1, pp. 110-111) GARLOCK EQUIPMENT CO. 255 here we have what I think might, under a traditional view, be characterized as a "change" in the bargaining agent, but we also have evidence that all the employees were allowed to vote in a procedure that seems to have met the Board standards for fairness." It might reason- ably be asked why the secret-ballot election held on June 11, 1980, at which 59 of the 71 employees in the bargain- ing unit voted in favor of affiliation, does not serve to validate any "change" in the identity of the representa- tive that may have occurred. The question is not easily answered. I must confess to uncertainty about the Board's posi- tion on this point. It has often stated that when there is, in law, a basic change in the continuity of the representa- tive, that circumstance raises a "question concerning rep- resentation" that even an informal election among the employees cannot resolve, but which can be settled only through a Board-conducted election. Gulf Oil Corp., 135 NLRB 184 (1962) (a majority of the membership of the old local voted for the merger); Gas Service Co., 213 NLRB 932, 933 (1974) (the election was held "among the employees"). In Amoco IV, on the other hand, the Board could be understood to be saying that a fair election in which all unit employees are permitted to participate may be suffi-- cient to cure any identity change. As noted above, in that case the Board stated that an "affiliation vote" "di- rectly impacts upon matters within the breadth of the Act and results in an undermining of the Board's own election and certification procedures" and "affect[s] the interests of all employees. 262 NLRB at 1241. Nonethe- less, the Board rifled that "adequate due process safe- guards" would be provided if all unit employees were permitted to participate in an informal affiliation election. This could mean that even where changes of substance occur as a result of the affiliation, the unit employees may approve them by the device of a fair and compre- hensive intramural election." On the other hand, it is possible that, in Amoco IV, the Board was saying that in any sort of "affiliation" elec- tion, no matter how limited or inconsequential its effect, there is bound to be enough of an impact on the charac- ter of the bargaining representative so as to require that an unit employees be permitted to vote;" but was not "The court's remand, as noted, does not appear to agree with the Re- spondent's argument that due process was lacking, and Respondent's brief to me does not mention that issue. i4 may be noted that in Amoco IV, 262 NLRB at 1242, fn 12, the Board cited for a limited proposition, but perhaps thereby exhibited some sympathy with, the case of Quemetco, Inc., supra, 226 NLRB 1398, 1399 (1976), in which the Board majority, characterizing "continuity of repre- sentation" as only a "factor to be considered" rather than being of "para- mount importance" in an affiliation case, had Stated: [W]here, as here, the employees unanimously elect to affiliate with another union, we are much more concerned with giving effect to the employees' free choice of bargaining representative than with the so-called "continuity of representation" which might be disrupted by such election. For it is the employees' freedom to select a bargaining representative of their choice which is of paramount importance under the Act 15 In Amoco IV, the Board majority quoted the reference in the dissent in North Electric Co., supra, 165 NLRB at 944, that "any change in desig- nation of the bargaining representative" requires an all-employee election. saying, at the same time, that all changes of identity can be made acceptable if the non-Board election procedure is both fair and comprehensive. Adoption of the latter principle would constitute a reversal of the often reiterat- ed Board rule that a "change in identity" raises a "ques- tion concerning representation" that may only be re- solved by a Board-conducted election, and I believe that it would not be proper for me to infer such a volte face without more." I therefore feel compelled to conclude, given the ap- parent intendment of the court of appeals and the other precedential guidance referred to above, that the com- plaint should probably be dismissed. I would be remiss, however, if I did not bring to the Board's attention a recent commentary that may help to clarify the Board's thinking about this recurrent question. A penetrating and persuasive study of the problem ad- dressed here may be found in Union Affiliations and Col- lective Bargaining, 128 U.Pa.L.Rev. 430 (1979). Among the conclusions reached in that note (which predated Amoco IV) are that, in evolving the "continuity of repre- sentation" criterion, the Board has engaged in an "unduly cramped reading of [its] freedom under the stat- ute and a failure to scrutinize inherited common law doc- trines in the light of the policies of the Act" (although in practice the Board "has tempered the ill effects of its sins with a healthy disregard for its own doctrine," a saving inconsistency not engaged in by the Court of Appeals for the Third Circuit, which, in the three cases earlier cited above, has assertedly "entered the lists of metaphysics with an awesome vengeance"). Id. at 440. The note fur- ther argues that the fundamental contention that a "change in the identity of an existing bargaining repre- sentative necessarily raises a question concerning repre- sentation. . finds no support in the statute." Id. at 442. In the end, the note concludes that while affiliations and mergers usually do indeed materially alter a representa- tive's identity, and that to say otherwise is to indulge in fiction, the metaphysical approach—assessing the extent to which the new creature resembles the old one—is pointless. More important than "continuity of identity" is the issue of whether there is "continuity of representa- tion," and the latter can be demonstrated by a fairly con- ducted affiliation election (which, the authors of the note believe, should be considered valid even when limited to members of the incumbent union). The foregoing approach, once apparently embraced in Quemetco, supra, seems to be generally harmonious with the Board's treatment of related areas of the law, and would seem even more acceptable if conjoined with the Amoco IV requirement of a unitwide affiliation election. Thus, Board-conducted elections have never been a sine qua non for recognition, and the Board has never insisted 16 I note that in Amoco IV, 262 NLRB at 1241, fn. 7, and a similar later case, F. W. Woolworth Go, 268 NLRB 805, 808 fn 6 (1984), the Board, after concluding that the less-than-umt-wide elections were inad- equate in any event, found it "unnecessary" to pass on whether the new petitioners were "successors" to the previously recognized unions It can be argued that this preservation of a separate "successor" issue means that even if umtwide affiliation elections had been held, thus removing that obstacle, it would still be necessary to confront the "successor" issue. 256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that employees must somehow demonstrate that they possess a clear and unambiguous understanding of all that union representation entails before they will be al- lowed to have such representation. Recognition without resort to Board procedures is commonplace, and once such recognition has been ex- tended, the Board unquestionably would never permit the employer to withdraw recognition on the ground that it believed the employees had not been sufficiently aware of all the ramifications of the union's structure and allocation of authority at the time they vouched their support for the Union. This is even more certain, if that is possible, once a contract has been negotiated after vol- untary recognition. Similarly, in cases in which the Board orders employers to bargain on the basis of a showing of employee support as demonstrated by author- ization cards, see NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), it is most unlikely that the Board would ever require, or permit, an inquiry into how much an employ- ee knew, at the time he or she signed, about the union and how it operated; indeed, the Supreme Court says that an employee will be held to his signature on an au- thorization card regardless of his protest that he lacked comprehension of the very meaning of the card, unless he is "deliberately and clearly" misled about its legal effect. 395 U.S. at 606. In the foregoing situations, recognition may not be re- scinded (or may be required) even where the issue sought, but not permitted, to be raised relates to the vital question of whether employees do or do not wish to bar- gain collectively at all. In the present case, and cases like it, the issue is, it is fair to say, considerably more limited. The Garlock employees have already signified once, in a May 1980 secret-ballot Board election, that they desire to bargain collectively. In June, after a presentation made by the IAM and a discussion lasting "between 45 minutes and an hour and a half," 17 they again did so, by a secret vote of 59-3 in a unit of 71 employees. 17 G.0 Exh. 1(h), p 3 There is no evidence contradicting this finding by the Regional Director in his decision. There seems to be little reason, in these circumstances, to doubt that the Garlock employees wished to be repre- sented by a national union with whatever possible obliga- tions and restrictions such representation might entail; there is, indeed, perhaps less reason for any such doubt than in the other situations noted above in which the Board applies a conclusive presumption about the conno- tations of signatures on authorization cards. So far as the record shows, no one but the Respondent has objected to the affiliation. If there were to come a time when the employees wanted to terminate their relationship with the JAM, they could secure a decertification election by having 3 out of ,every 10 of them sign a petition asking for such an election. The law review note earlier cited acknowledges that the union successorship cases present "the difficult task of reconciling the two partly inconsistent goals of guar- anteeing employees their free choice of bargaining repre- sentative and fostering stable collective bargaining rela- tionships"; it further argues that "[t]o say that the Board's decisions in this area have been inconsistent would be a generous understatement." 128 U.Pa.L.Rev. at 433. The note appears to point the way to achieving stability while safeguarding free choice, by allowing em- ployees who have already chosen a bargaining represent- ative to change the nature of that representation without Board intervention or further commitment of Board re- sources. It does, however, seem to me that my own choices are circumscribed here by the implications of the court's remand; the Board's acceptance of that remand; the cri- teria most commonly applied by the Board in the past to determine whether there has been, in the court's phrase, a "fundamental change in the bargaining representative"; and the Board's traditional position that such a change raises a "question concerning representation" that only the Board can resolve. Accordingly, I feel constrained to recommend dismissal of the outstanding Order. [Recommended Order omitted from publication.]