290 N.L.R.B. 1171 (N.L.R.B. 1988)

News/Sun-Sentinel Co.

National Labor Relations Board - Board DecisionsSep 21, 1988

290 N.L.R.B. 1171 (N.L.R.B. 1988)

NEWS/SUN-SENTINEL CO News/Sun-Sentinel Company and Miami Typo- graphical Union No . 430 a/w International Ty- pographical Union, AFL-CIO. Case 12-CA- 11916 September 21, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 11, 1988, Administrative Law Judge Lawrence W Cullen issued the attached decision The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed cross-exceptions and supporting and answer- mg bnefs, and the Respondent filed a brief in oppo- sition to the Charging Party's cross-exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel 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 as modified 2 ' The General Counsel excepts to the judge's description of a stipula- tion entered into by the Respondent and the General Counsel as consist- ing of facts and conclusions contained in the Regional Duector's original dismissal of charges The General Counsel stipulated only to the facts contained in the Regional Director's dismissal letter, not to the conclu- sions reached by the Regional Director This error does not affect the Judge's conclusions In sec W,A,1, par 4, the judge refers to employee Norma Scheer The reference should be to Irene Scherer The judge finds that the tally of ballots from the ballot box in the composing room was 41 for merger, 13 against merger, the correct tally was 41 for merger , 3 against We cor- rect these errors, which do not affect the judge 's conclusions In adopting the Judge 's finding that the merger between Local 895 and Local 430 was valid, we find it unnecessary to rely on the judge 's discus- sion of the Respondent 's January 28, 1986 speech to employees and the subsequent decertification petition filed by an employee on February 11, 1986 We agree with the judge's finding that there was substantial continuity of representative between premerger Local 895 and postmerger Local 430 The change effected here by the merger of Local 895 with Local 430 is unlike the change at issue in Western Commercial Transport, 288 NLRB 214 (1988), in which a small, completely autonomous independent union was replaced by an 8500-member organization, 1 of whose business agents essentially assumed control of collective bargaining and day-to- day contract administration for the unit employees As the judge found here, some of Local 895's officers became officers in postmerger Local 430 and the chapel 's own authority over collective bargaining and con- tract administration matters remained substantially unaltered by the merger of the Locals The change was not "sifciently dramatic to alter the union's identity" so as to raise a question concerning representation See May Department Stores Co, 289 NLRB 661, 665 (1988), citing NLRB v Financial Insntunon Employees Local 1182, 475 U S 192, 206 (1986) We do not rely on Quemetct, Inc, 226 NLRB 1398 (1976), which West- ern Commercial Transport overruled to the extent that it held that an amendment of certification may be granted notwithstanding evidence showing the absence of continuity of representation Member Johansen agrees with his colleagues, for reasons stated by him in his dissent in Western Commercial Transport, 288 NLRB 214 (1988), that the merger in this case did not give rise to a question concerning representation a Although the judge correctly described the unit in the body of his decision, he misdescnbed the unit in his recommended Order and notice 1171 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, News/Sun-Sentmel Company, Fort Lau- derdale, Florida, its officers , agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1(a) "(a) Refusing to recognize and bargain collec- tively with Miami Typographical Union No 430 a/w International Typographical Union , AFL-CIO as the exclusive bargaining unit representative of employees employed by the Respondent perform- ing composing room work at its Fort Lauderdale, Florida newspaper in Broward County, Florida " 2 Substitute the following for paragraph 2(a) "(a) Recognize and bargain collectively with Miami Typographical Union No 430 a/w Interna- tional Typographical Union , AFL-CIO as the ex- clusive collective-bargaining representative of em- ployees employed by the Respondent performing composing room work at its Fort Lauderdale, Florida newspaper in Broward County, Florida, exclusive of office clerical employees, professional employees , and supervisors as defined in the Act " 3 Substitute the attached notice for that of the administrative law judge We shall conform the recommended Order and notice with the judge's findings APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to recognize and bargain with Miami Typographical Union No 430 a/w International Typographical Union, AFL-CIO as 290 NLRB No 156 1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the exclusive representative of the unit employees described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act.. WE WILL recognize and bargain collectively with Miami Typographical Union No. 430 a/w International Typographical Union, AFL-CIO, as the exclusive collective-bargaining representative of employees performing composing room work at our Fort Lauderdale, Florida newspaper facility, exclusive of office 'clerical employees, professional employees, and supervisors as defined in the Act. NEWS/SUN-SENTINEL COMPANY Andreas Rivera-Ortiz, Esq., for the General Counsel. Bonnie A. Glatzer, Esq. (Seyfarth, Shaw, Fairweather, & Geraldson), of New York, New York, and Dennis R. Homerin, Esq., of Chicago, Illinois, for the Respond- ent. Richard Rosenblatt, Esq., of Colorado Springs, Colorado, for the Charging Party. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on 15 and 16 June 1987 at Miami, Florida, pursuant to a complaint filed by the Regional Director for Region 12 of the National Labor Relations Board (the Board) against News/Sun-Sentinel Company (the Respondent or the Employer or the Sun/Sentinel). The complaint, as amended at the hearing, is based on an unfair labor practice charge filed on 18 February 1986 by Miami Typographical Union No. 430 a/w International Typographical Union, AFL-CIO (Local 430 or the Charging Party) and alleges that Re- spondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by the withdrawal of rec- ognition from the Charging Party and by failing and re- fusing to bargain with the Charging Party. The com- plaint is joined by Respondent's answer in which Re- spondent denies the commission of any violations of the Act. On the entire record in this case, including my obser- vations of the demeanor of the witnesses and after due consideration of the briefs filed by counsel for the Gen- eral Counsel, the Charging Party, and Respondent, I make the following FINDINGS OF FACT AND ANALYSIS' 1. BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, with an office and principal place of business in Fort Lauderdale, Flori- ' The following includes a composite of the testimony of the witnesses, which is credited except as specific credibility resolutions are made. da, has been engaged in the publication, circulation, and distribution of a daily newspaper in Broward County, Florida. During the past 12 months, a representative period of time, Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $500,000, and during the same period of time pur- chased and received at its Fort Lauderdale, Florida facil- ity goods and materials valued in excess of $50,000, which were shipped to it directly from points located outside the State of Florida. Respondent is now, and has been at all times material, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNION The complaint alleges, Respondent denies, and I find, that Local 430 is a labor organization within the meaning of Section 2(5) of the Act. This finding is made on the basis of unrebutted testimony presented by the General Counsel and Charging Party through the testimony of International Typographical Union Representative Wimbley Waters2 and Local 430 Secretary-Treasurer Irwin Radin, concerning the functions of former Local 895 and postmerger Local 430 and their representation of employees in their relationship with employers concern- ing wages, hours, and other terms and conditions of em- ployment. III. THE APPROPRIATE BARGAINING UNIT The complaint, as amended at the hearing, alleges, Re- spondent admits, and I find that the appropriate bargain- ing unit is as follows: All full-time and regular part-time employees em- ployed by Respondent performing composing room work, excluding all office clerical employees, guards and supervisors as defined in the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES3 Fort Lauderdale Typographical Union Local 895 (Local 895) had a collective-bargaining relationship with Respondent over a period of more than 30 years. The parties had entered into successive labor agreements throughout that period, the most recent of which expired on 30 June 1984. Local 895 and Respondent had held 30 bargaining sessions to negotiate a successor to the agree- ment that expired in 1984 until impasse was reached in March 1985. On 10 March, Respondent imposed its final bargaining proposal following the impasse after these un- successful contract negotiations. The parties next met to negotiate a contract in April 1985 and did not thereafter meet to negotiate a contract until December 1985. In the interim, officers of Local 895 met with International Representative Wimbley Waters in October 1985 and asked that a trusteeship be imposed on Local 895 to 2 Waters is also president of Daytona Beach , Florida Local 892, affili- ated with the International Typographical Union. ' The General Counsel's unopposed motion to correct the record is granted, and the record is amended as shown on "Appendix A." (Appen- dix A is omitted from publication.) NEWS/SUN-SENTINEL CO 1173 commence contract negotiations again with Respondent, to obtain new leadership for Local 895 , and also to facili- tate a merger of Local 895 with Local 430, according to the unrebutted testimony of Local 85 's former secretary- treasurer , Walter Sakowski, who is now a retired member of Local 895 Sakowski testified that Local 895 officers were worn out, and the trusteeship and merger of Local 895 with Local 430 were also sought for the purpose of obtammg new leadership According to the unrebutted testimony of Sakowski and Local 430's secre- tary-treasurer, Irwin Radin , the two local unions had also discussed merger in 1983 With the approval of the International Union , the trusteeship was unposed on Local 895 on 9 October 1985 with Wembley Waters, president of the Daytona local and a part -time interna- tional representative , appointed trustee of Local 895, at which time Waters asked all the officers of Local 895 and members of its negotiating committee to remain in their offices, which they did Within the various locals of the International Union , there are "chapels" that are local committees at particular employers , which form the local There was such a chapel at the Sun/Sentinel, which had its own dues and maintained its own funds apart and distinct from the local , handled grievances in the early stages, and presented contract proposals for consideration by the Local in preparation for negotia- tions with Respondent The chapel chairman served in the role of a chief steward for the chapel members On 6 December 1985 , Respondent and Local 895 met to engage in negotiations and, at that time, Waters in- formed Respondent's vice president and director of em- ployee relations , John T Spran , that he was the trustee of Local 895 and requested and received permission to conduct a merger vote on Respondent's premises on 11 December 1985 The International sent mail ballots to members of Local 895, and Local 895 posted a notice of the merger vote 4 in the composing room of Respondent The merger was discussed at meetings of Local 895 on 3 November and 8 December 1985 The mail -vote of mem- bers of Local 895 yielded a tally of 74 in favor of the merger and 29 opposed to the merger In addition, non- union members of the bargaining unit were given ballots and permitted to vote in the composing room on 11 De- cember by placing a ballot in a padlocked box kept by Local 895 Secretary-Treasurer Sakowski at his work- place during the first -day shift, but left unattended for a 4 The notice read as follows NOTICE OF ELECTION REFERENDUM VOTE FOR MERGER BETWEEN MIAMI TYPOGRAPHICAL UNION NO 430 and Fort Lauderdale Typographical Union No 895 The agreement would merge Fort Lauderdale Typographical Union No 895 into Miami Typographical Union No 430 The election date is Wednesday December 11, 1985-Mad Ballots must be post marked by midnight Wednesday December 11, 1985- Chapel voting must be completed by Midnight Wednesday, Decem- ber 11, 1985 period 3- 1/2 to 4 hours when Sakowski left work and before he returned to collect the ballots after the first shift One nonunion member employee testified that she gave her ballot to Sakowski to place in the box and as- sumed that he had done so The employee testified she trusted Sakowski completely Sakowski did not recall the incident I credit the employee's testimony that she gave her ballot to Sakowski The tally of the jobsite balloting of nonunion members in Local 895's bargaining unit was 41 in favor of the merger and 13 opposed to the merger The total tally of the vote by Local 895 was 115 in favor of and 32 opposed to the merger The tally of Local 430's votes on the merger was 79 in favor of and 10 op- posed to the merger Waters informed Respondent by letter of 17 December 1985 to John T Spran, Respondent's vice president and employee relations director , that the employees in the bargaining unit had voted in favor of merging with Local 430 by a vote of 115 in favor of the merger and 32 opposed to the merger In this letter , Waters also re- quested a meeting to negotiate a new agreement Waters testified that between 17 December and 27 January 1986, when Respondent sent a letter to him withdrawing rec- ognition from Local 430, he had telephone discussions with Spran and Debbie Dodds , a member of Respond- ent's negotiating committee , in attempting to set up meet- ing dates to resume negotiations During one of these telephone conversations, Waters talked to Spran and asked whether Spran had received the 17 December 1985 letter and whether he had any problems with it Spran replied that he had received the letter and told Waters that he had no problems with it Spran told Waters he would send the letter to San Francisco and would have Dodds place Local 430 on the calendar On 27 January 1986 , Spran sent Waters a letter withdrawing recognition as follows January 27, 1986 Mr Wembley Waters I T U Appointed Trustee Ft Lauderdale Typographical Union Local #895 P 0 Box 84 Ft Lauderdale, Fl 33302 Dear Mr Waters We are in receipt of your letter dated December 17, 1985 We understand from your letter that as of January 1, 1986, Fort Lauderdale Typographical Union #895 no longer exists and will no longer rep- resent Composing Room employees of the News/- Sun-Sentinel Company We do not believe that Miami Typographical Union #430 legally represents the Composing Room employees of News/Sun-Sentinel Company and, as a consequence, we refuse to recognize and bargain with Local #430 as a representative of those employees JTS/dd /s/ John T Spran 1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On 28 January 1986, Respondent President T. O'Don- nell delivered a speech to the composing room employ- ees, he stated as follows: On December 17, 1985 we received the following letter from Wimberly [sic] Waters, I.T.U. Appoint- ed Trustee for Fort Lauderdale Typographical Union #895. [Overhead I] As you can see from this letter, after January 1, 1986 your Union, Fort Lauderdale Typographical Union #895 ceased to exist and, as a consequence, no longer can represent Composing Room employ- ees. We have sent a letter to Wimberly [sic] Waters acknowledging his letter and telling him that since your Union no longer exists, we consider Compos- ing Room employees to be independent employees. [Overhead II] We also told Wimberly [sic] Waters, as you can see, that we are not going to accept an outside group from Miami to represent our Composing Room. As far as I am concerned, the Composing Room should now be like any other independent depart- ment of our paper and should receive wage and ben- efit improvements like other independent depart- ments. As you know, we have had similar situations for the Warehouse, Mailroom, Engravers, Machine Shop and Teamster driers. In each of these cases, when the department became independent, employees got new dental insurance, increased life insurance op- tions, reduced health insurance and group life costs to employees, improved long term disability benefits, im- proved Christmas bonus, etc.-benefits that apply to all other independent employees. (Of course those of you with job guarantees would still keep them.) However, Jack tells me there are still legal questions that need to be sorted out and we have to wait until they are sorted out. In the meantime , any questions you may have re- garding independent employee benefits and policies, talk to Jack. We intend to operate the room as it has operated in the past. However, now your fore- man and supervisor will deal directly with you. We are in the middle of some exciting changes at our paper and I would like to share them with you. [Insert] Hopefully, this will all be sorted out soon and I look forward to working with each of you. [Em- phasis added.] Respondent has since refused to recognize and bargain with Local 430 as the collective-bargaining representa- tive of its employees At the hearing, the General Counsel and Respondent entered into a stipulation of facts concerning the conduct of the election, which consists of facts and conclusions contained in the Regional Director's original dismissal of the charges following an investigation, and which was received over the objection of the Charging Party and is as follows: On December 11, 1985, unit employees, among others, voted to determine whether or not they wanted their collective bargaining representative, Typographical Union Local No. 895 to merge with Miami Typographical Union No. 430, AFL-CIO. Some of the eligible voters (including retirees) re- ceived mail ballots directly from the International Union Headquarters in Colorado and other employ- ees voted personally in the December 11 election. The Charging Party maintains the employees, by a vote of 115 to 32, voted in favor of merger and thus it requested the Employer to bargain with Local 430. By letter dated January 27, 1985, the Employer refused the Union's request, stating it did not be- lieve Local 430 legally represented the unit (com- posing room) employees. The investigation revealed several improprieties in the voting procedure, and although no employee made a specific complaint concerning the conduct of the election, some em- ployees did testify with respect to those impropri- eties. For example, the eligibility list used by the Union reveals that 40 composing room employees were given ballots and 36 returned them and placed them in the ballot box. However, the tally of ballots for the composing room shows 41 for merger and 3 against . Further, by the union official's admission, there is no way of knowing if employees in the composing room who voted in person also received a mail ballot from the Union's Headquarters in Col- orado, thereby creating the possibility of permitting one voter to cast two ballots. One employee testi- fied he was given a ballot by the union official holding the election and that he placed his ballot in the box, but according to the eligibility list he did not personally cast a ballot but rather he received a mail ballot from the International Union. Further, one employee stated that she chose not to vote, and therefore did not cast a ballot, but the eligibility list indicates that the employee was given a ballot and did vote. In addition, the ballot box with only a piece of tape over the opening was left in the Em- ployer's maintenance room unattended from ap- proximately 3:50 p.m. to 7 or 8 p.m. on the day the voting took place. Under these circumstances, it is concluded that irregularities in the voting procedure preclude conferral of representative status upon Local 430 on the basis of the December 11 election and that, therefore, the Employer did not violate the Act by refusing to recognize and bargain with the Charging Party. A. Analysis The complaint alleges that Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to recog- nize and bargain with Local 430, the exclusive collec- tive-bargaining representative of its employees engaged in composing room work following the merger of Local 430 and Local 895 effective 1 Januray 1986. Several issues concerning this allegations were litigated at the hearing as follows: NEWS/SUN-SENTINEL CO 1175 1 Whether the 11 December 1985 merger was subject to due process safeguards which had been previously unposed by the Board or whether the recent Supreme Court decision of NLRB v Rnan- cial Institution Employees (Seattle-First National Bank), 475 U S 192, 121 LRRM 2741 (1986), here- inafter referred to as Seattle-First, precludes the Board from conducting its due process inquiry into internal union matters such as mergers 2 Whether the merger should be upheld in the event the Board has the authority to inquire into the due process requirements and in the event that the Board's due process standards are found not to have been met 3 Whether there was substantial continuity of identity between pre -merger union, Local 895, and post-merger union , Local 430, sufficient to give rise to a continuing duty by Respondent to recognize and bargain with Local 430 Respondent has also raised as a defense that Local 895 was defunct prior to the alleged merger with Local 430 and that there was therefore no union in existence to be merged with Local 430 and thus no continuity and no valid merger 1 The due process issue The General Counsel and Charging Party contend that the Board is precluded from inquiring into whether the merger election met due process safeguards as part of its traditional two-prong test to determine whether an em- ployer is required to bargain with a union following a merger, but is now limited to the second part of the test (i e, whether there was substantial "continuity" of identi- ty between the pre and postmerger unions) Both the General Counsel and Charging Party contend that Seat- tle-First stands for the proposition that the Board has no authority under the Act to inquire into union affiliations and other "internal union matters ," such as mergers, but rather is limited to determining whether there was a lack of substantial continuity of identity between the pre and postmerger unions that give rise to a question of repre- sentation under the Act in order to invoke the Board's authority under the Act to hold elections and certify col- lective-bargaining representatives Respondent contends that Seattle-First is limited to its facts and holding that the Board may not relieve the employer of its bargaining liability on the basis of a lack of due process finding be- cause nonmembers were not allowed to vote in an affili- ation election, and the Supreme Court expressly declined to address the question whether other due process re- quirements had been met by the affiliating unions in that case, thus giving support to the argument that the Su- preme Court recognized that other due process standards must be met in matters such as affiliations , and particu- larly mergers that were not involved in that case Re- spondent also cites a recent Board case, Fimco , Inc, 282 NLRB 653 (1987), in which the Board states that the Su- preme Court "has recently held that the Act does not re- quire that nonmembers be allowed to vote in affiliation elections We, accordingly, reject the Respondent's con- tention as without merit The Respondent presents no other basis for contending that the Union did not provide ade- quate due process safeguard " (Emphasis added ) From the underlined sentence, Respondent contends that the Board, itself, has given a more limited reading of Seattle- First and suggests that it will continue to consider al- leged due process violations other than contentions con- cerning the voting rights of nonmembers In its recent supplemental decision on review in Ham- mond Publishers, 286 NLRB 49 (1987), which involved an employer 's challenge to an amendment of certification following an affiliation election on due process grounds and on a lack of continuity between a pre and postaffilia- tion bargaining representative , the Board applied its tra- ditional two-prong test , concluded that the due process and continuity requirements had been met , and found it unnecessary to address the issue whether both parts of the test must be met in affiliation cases The Board stated at 50 The Board has traditionally required that two con- ditions be met before it will grant a petition for the amendment of certification based on an affiliation or merger First, the Board requires that the vote itself occur under circumstances satisfying minimum due process and continuity between the pre- and post-affiliation bargaining representative [Emphasis added ] In the Hammond case at fn 8 , the Board also noted that the Supreme Court in Seattle-First "acknowledged the Board 's traditional two-part test but did not have to reach the question of whether both continuity of repre- sentation and due process must be satisfied in all affili- ation cases " In the Hammond case, the Board likewise found it unnecessary to address this issue as it found that both the due process and continuity requirements had been satisfied Under the facts of the instant case, I find that the due process and continuity of representation re- quirements have been met as set out, and I thus find it unecessary to address the issue of whether both continui- ty of representation and due process must be satisfied in a merger case With respect to whether the merger election satisfies minimum due process , Respondent has the burden of es- tablishing an irregularity in the voting process as it is Re- spondent that is relying on the irregularity as justification for its refusal to bargain Insulfab Plastics, 274 NLRB 817 (1985) In the instant case, I find that Respondent has failed to establish that the procedures used in the vote were so irregular or so unmindful of due process as to invalidate the election Hammond Publishers, supra, East Dayton Tool & Die Co, 190 NLRB 577 (1971) Thus, the evidence in this case established that both members and nonmembers were permitted to vote at the merger elec- tion, that notice of the merger vote was posted on the bulletin board in the composing room where all employ- ees worked , that union meetings were in November and December before the merger vote on 11 December 1985 at which the merger was discussed, and that Local 895 Trustee Waters obtained permission of Respondent's rep- resentative, Vice President of Personnel Spran, to con- duct the vote on its premises Ballots were mailed to 1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD members by the International, and nonmembers were given ballots for voting in the composing room by Local 895 Secretary-Treasurer Sakowski. The vote was over- whelmingly in favor of merger. Although the ballot box for in-person voting of nonmembers was left unattended, It was padlocked according to the testimony of Sa- kowski, which I credit in this regard over that of Com- posing Room Manager John McClusky who testified that he did not recall seeing a padlock. Respondent offered no evidence even suggesting that the ballot box or its contents had been tampered with. The only employee who allegedly refused the right to vote was a supervisor, and he had not presented himself to vote but, rather, merely called out to Sakowski and inquired as Sakowski was leaving why he had not been permitted to vote, to which Sakowski replied, "because you are a supervisor." I find that none of the alleged discrepancies affected the outcome of the election. It is clear that the over- whelming majority of members of Local 895 voted in favor of the merger by returning the mailed ballots in sealed envelopes that were counted separately, according to the unrebutted testimony of Sakowski, which I credit and which showed a total of 74 in favor of the merger and 29 opposed to the merger. Thus, even if all the bal- lots cast in the composing room were not counted, there was an overwhelming majority in favor of the merger. Moreover, as discussed supra under Seattle-First, there was no requirement that nonmembers be permitted to vote to validate the merger election, and the composing room balloting was for the purpose of allowing non- members who did not receive mailed ballots to vote. As- suming that one or more members may have voted in the composing room rather than utilize their mail ballot, or even assuming arguendo, they voted in the composing room in addition to voting by mail, the election outcome would not have been affected. Further, there was no evi- dence that any member did not receive his ballot or was otherwise deprived of the right to cast his ballot. There was no evidence presented that the mail balloting was tainted in any manner whatsoever. Further, with the pos- sible exception of Norma Scheer, a nonmember who gave her ballot to Sakowski whom she stated she trusted completely, although she did not observe him place it in the ballot box, there was no evidence presented that the vote was not secret. I place no reliance or credit on the testimony of Personnel Vice President Spran who testi- fied that he heard the vote was not secret from McClusky and others. Furthermore, McClusky did not contend that the vote was not secret in his own testimo- ny. With respect to Respondent's contention that it has met its burden of proof sufficiently to shift the burden of proof to the General Counsel in order to prove that the vote occurred under circumstances satisfying minimum due process, I find that this contention is without merit. Initially, I do not find that the alleged discrepancies were so egregious as to shift the burden of proof. In the recent Hammond Publishers case, the Board addressed an allegation that an unattended ballot was sufficient to sup- port a finding that an election did not meet due process and, rejecting that contention, specifically noted, as in the instant case, that there was no evidence of any tam- pering with the ballot box. I similarly do not find the other alleged due process deficiencies, such as the refusal to permit an admitted supervisor to vote or the handling of a single ballot of a single employee, to cast doubt on the election process. Nor do I find that the alleged de- functness, discussed infra, of Local 895 casts doubt on Local 430's majority status . I thus do not find Royal Coach Lines v. NLRB, 838 F.2d 47 (2d Cir. 1988),5 to be controlling under the facts of this case even assuming the Board adopts the rationale of that case with respect to the shifting of burden of proof from Respondent to the General Counsel. The record also shows no evidence of any challenge by any employee to the conduct of the election. Re- spondent's attempt to inject a decertification petition filed by an employee in February 1986 was rejected. It is clear that at the time of Respondent's refusal to recog- nize and bargain with Local 430 there was no evidence of employee dissatisfaction with the merger election process. Furthermore, the decertification petition was filed following a speech by Respondent's president after Respondent's refusal to recognize and bargain with Local president after Respondent's refusal to recognize and bargain with Local 430, and in that speech Respond- ent's president made implicit promises of improvements in the unit employees' wages and benefits once Respond- ent no longer had to deal with a union, but could deal independently with the employees. 2. Respondent's defunctness defense As part of its defense to its refusal to bargain, Re- spondent has alleged that Local 895 was defunct and thus there was no union for Local 430 to merge with. I find no merit to this defense as the evidence clearly shows that Local 895 and Respondent had an ongoing bargaining relationship for a period of over 30 years, en- tering into a series of successive collective-bargaining agreements until they reached impasse in January 1985 and met again in April 1985 without success. Local 895's alleged lack of activity between April and 6 December 1985, when Waters (who had been appointed trustee of Local 895 in October 1985) met with the Respondent, did not establish that the Union was defunct. Former secretary-treasurer, Sakowski, testified that the current union leadership was tired and no new leadership could be found. The Local thus sought a trusteeship in order to eliminate the contract stalemate, better serve the mem- bers, and to facilitate a merger. Merger discussions were held between officials of Local 895 and Local 430 in Oc- tober 1986, and approval was obtained from the Interna- tional organization to commerce preparing for and to conducting merger elections, which were duly conduct- ed. None of the foregoing establishes that the Union was defunct or unwilling or unable to represent its member- ship. Rather, the evidence discloses that the Union sought the trusteeship and the merger in order to bring fresh leadership to the Union and to eliminate the im- passe in contractual negotiations and work for a new contract. Moreover, Respondent carries the burden of 6 Respondent brought this case to my attention by a postbnef letter NEWS/SUN-SENTINEL CO proof in the assertion of its defense and failed to present any evidence of the unwillingness or inability of Local 895 to serve its members , such as to shift this burden of proof to the General Counsel or to otherwise prove its defense Yates Industries, 264 NLRB 1237 , 1250 (1982), Pioneer Inn Associates , 228 NLRB 1263 , 1264 (1977), Her- shey Chocolate Corp, 121 NLRB 901, 911 (1958), Kent Corp, 272 NLRB 735 (1984) 3 The continuity issue I find that the evidence establishes that Local 430 is the legitimate successor and colltive-bargaining repre- sentative of Local 895 as the result of the valid merger vote of Local 430 and Local 895 on 11 December 1985 and their subsequent merger effective on 1 January 1986 I find that the evidence supports a finding of continui- ty between premerger Local 895 and postmerger Local 430 It is undisputed that two members of Local 895's ex- ecutive board were appointed members of the executive board of Local 430 on the effective date of the merger, and that less than a month later former Local 895 re- cording secretary Mel Field was appointed as recording secretary of Local 430 on the resignation of the incum- bent secretary In addition, the chapel, composed of Sun- Sentinel bargaining unit employees , remained in existence and continued in its role to have responsibility for the processing of grievances and the administration of the labor agreement I make this determination notwithstand- ing the lack of recognition accorded Local 430 by Re- spondent and lack of a collective-bargauung agreement in existence Moreover, the chapel continued to elect its own officers, collect its own dues, and maintain its own assets, savings, and checking accounts In addition, the chapel continued to have responsibility for input into the collective-bargaining process Waters testified contract ratification votes, while a Local 430 matter, would rou- tinely be voted on only by the employees of the particu- lar employer with whom a contract is being negotiated In addition, while the constitution and bylaws of pre- merger Local 895 became those of postmerger Local 430, they were substantially similar to those of premerger Local 895 The dues structure of Local 895 was also identical to that of postmerger Local 430 Moreover, members of Local 895 were accorded the same rights and privileges of membership after the merger as they had before the merger In making its determination whether there has been substantial continuity between a premerger and post- merger union, the Board makes its determination on the "totality of a situation" rather than reliance on "the pres- ence or absence of certain cited criteria " Yates Indus- tries, supra I find that the totality of the circumstances in this case fully supports a finding of substantial continuity between premerger Local 895 and postmerger Local 430 I find that the General Counsel has shown that there was substantial continuity between Locals 895 and 430 fol- lowing the merger Conversely, I find Respondent has faded to demonstrate a lack of continuity between Local 895 and Local 430 Insulfab Plastics, supra at 821 See also Quemetcoo Inc, 226 NLRB 1398 (1976), in which the Board held the choice of representation by employees is 1177 of paramount importance over the continuity of repre- sentation CONCLUSIONS OF LAW 1 The Respondent, News/Sun-Sentinel Company, is an employer within the meaning of Section 2 (6) and (7) of the Act 2 The Charging Party, Miami Typographical Union No 430 a/w International Typographical Union, AFL- CIO is a labor organization within the meaning of Sec- tion 2(5) of the Act 3 At all times material, Miami Typographical Union No 430 a/w International Typographical Union, AFL- CIO has been the exclusive representative for purposes of collective bargaining in the following described ap- propriate unit for collective bargaining within the mean- ing of Section 9(b) of the Act All full-time and regular part -time employees em- ployed by Respondent performing composing room work, excluding all office clerical employees, guards and supervisors as defined in the Act 4 By its withdrawal of recognition from Local 430 and its refusal to bargain with Local 430, Respondent violated Section 8(a)(5) and (1) of the Act 5 The aforesaid unfair labor practices have a close, in- timate, and substantial effect on the free flow of com- merce within the meaning of Section 2(2), (6), and (7) of the Act THE REMEDY Having found that Respondent has committed certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative actions designed to effectuate the purposes and policies of the Act, including the posting of an ap- propriate notice I shall recommend it be required to rec- ognize and bargain collectively with Miami Typographi- cal Union No 430 a/w International Typographical Union, AFL-CIO In the absence of a showing of any special circumstances that would warrant the inclusion of a visitatonal clause , I decline the General Counsel's re- quest to include one as part of the remedy Cherokee Marine Terminal, 287 NLRB 1080 (1988) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The Respondent, News/Sun-Sentinel Company, Fort Lauderdale, Florida, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to recognize and bargain collectively with Miami Typographical Union No 430 a/w International 6 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- poso 1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Typographical Union, AFL-CIO as the exclusive bar- gaining unit representative of its composing room em- ployees employed by Respondent at its Fort Lauderdale, Florida newspaper in Broward County, Florida. (b) In any like or related manner interfering with, re- straining , or coercing employees in the exercise of the rights quaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies and purposes of the Act. (a) Recognize and bargain collectively with Miami Ty- pographical Union No. 430 a/w International Typo- graphical Union, AFL-CIO, as the exclusive collective- bargaining representative of the composing room em- ployees employed by Respondent at its newspaper facili- ty in Fort Lauderdale, Broward County, Florida. (b) Post at its Fort Lauderdale, Florida newspaper fa- cility copies of the attached notice marked "Appendix B."7 Copies of the notice, on forms provided by the Re- gional Director for Region 12, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tamed for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "