RSR Corp.

National Labor Relations Board - Board Decisions

Dec 3, 1976

226 N.L.R.B. 1398 (N.L.R.B. 1976)

1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quemetco, Inc., a Subsidiary of RSR Corporation and
Miscellaneous Warehousemen, Drivers & Helpers
Local 986, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America.
Case 21-CA-13620
December 3, 1976
in bargaining negotiations and agreed on terms of a
new collective-bargaining contract which was signed
on September 27, 1974, effective to September 30,
1977. The contract contains a union-security clause.
All the unit employees joined QSU.
In December 1974, the QSU executive board de-
cided to try to affiliate with the Teamsters. Upon
inquiry as to whether the Teamsters would accept the
affiliation, the Teamsters responded in the affirma-
tive. Thereafter, the QSU board and members voted
unanimously to affiliate with the Teamsters. With re-
spect to the procedure followed in voting for affilia-
tion, the Administrative Law Judge found that "Re-
spondent's employees in the bargaining unit clearly
manifested their desire to affiliate with the Teamsters
in a manner prescribed by the QSU constitution and
they did so in a manner consistent with the standards
required by the Board for such an affiliation."
On April 25, 1975, the Teamsters requested Re-
spondent to recognize it as bargaining representative
of the employees in the appropriate unit. Respondent
rejected the request.
Notwithstanding his-fmding that the employees
had clearly manifested their desire to affiliate with
the Teamsters, the Administrative Law Judge found
that Respondent was not required to recognize and
bargain with the Teamsters because:
[T]he attempted affiliation of QSU with the
Teamsters would have resulted in the complete
loss of identity of the certified union and the
substitution of a new and different union with
its own officers, and thus a complete change in
the representative. No officers of QSU were to
have any role after the Teamsters took over. The
shop stewards were to be selected through the
Teamsters. All dues were to go to the Teamsters
general fund. QSU was to become defunct.
In Newspapers, Inc., Publishers of the Austin Ameri-
can and the Austin Statesman, 210 NLRB 8 (1974),
enfd. 515 F.2d 334 (C.A. 5, 1975), the Board was
faced with a similar problem involving the merger of
two unions. As here, the affiliation procedures con-
formed with Board requirements. At issue was the
employer's obligation to recognize and bargain with
the successor union. In rejecting the Administrative
Law Judge's conclusion that the successor union was
not the same bargaining entity as the predecessor
union, the Board said (210 NLRB at 10):
The Administrative Law Judge's decision
rests on a meaningless technicality which totally
ignores the desires of the employees involved
and Board precedent in this area. We would ad-
here to the Board's consistent policy of honoring
the desires of employees pursuant to Section 7 of
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On April 20, 1976, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent with the following:
The complaint alleged that Respondent had vio-
lated Section 8(a)(5) and (1) of the Act by refusing to
bargain with Miscellaneous Warehousemen, Drivers
& Helpers Local 986, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America (hereinafter Teamsters), as the representa-
tive of Respondent's employees in the appropriate
unit. Respondent denies that it was required to rec-
ognize and bargain with the Teamsters. The Admin-
istrative Law Judge sustained Respondent's defense
and recommended dismissing the complaint. We do
not agree.
From 1961 to 1974, Respondent's employees in the
appropriate unit were represented by International
Chemical Workers Union, Local No. 11 (hereinafter
Chemical Workers). The last collective-bargaining
contract between that union and Respondent expired
in June 1974. On April 3, 1974, an employee filed a
petition seeking to decertify the Chemical Workers.
Shortly thereafter, a number of employees asked a
representative of the Teamsters if that union would
organize the employees and intervene in the decerti-
fication proceeding. The representative said that his
union would not get involved because of a no-raid
pact with the Chemical Workers. On April 21, 1974,
Quemetco Service Union (hereinafter QSU) was
formed. It intervened in the representation case, won
the election, and was certified as bargaining repre-
sentative. Thereafter, QSU and Respondent engaged
f
226 NLRB No. 216
QUEMETCO, INC.
the Act, which clearly grants them the "right to
bargain collectively through representatives of
their own choosing." An employer has no right
of choice, either affirmatively or negatively, as
to who will sit on the opposite side of the bar-
gaining table. There are reasons why the Board
has not accepted and should not accept mergers
or substitutions of unions; but none of these rea-
sons are present in this case. There is no ques-
tion here as to the true desires of the employees
and no question with regard to the validity of
the method by which the employees' desires
were made known. Accordingly, we will find the
violation as alleged in the complaint.
All of the factors upon which we relied in the
Newspapers case are present here. As found by the
Administrative Law Judge, the procedure followed in
registering the employees' desires conformed with the
constitution of QSU and with the requirements of the
Board with respect to registering the desires of the
employees.' The vote in favor of affiliation with the
Teamsters was unanimous. To refuse to give effect to
the desires of the employees would amount to giving
the employer a right to veto the employees' choice of
a bargaining representative.
Our dissenting colleague argues that the employ-
ees' affiliation vote is unenforceable under Section
8(a)(5) of the Act because (1) the election violated
the Board's contract-bar rules, and (2) destroyed the
necessary "continuity of representation." We do not
agree. As to (1), the Board has repeatedly held that
the strictures which it imposes on its own election
proceedings are not generally applicable in proceed-
ings to amend certification,2 or in proceedings, such
as this involving employee affiliation elections.3
Thus, the Board's contract-bar rules do not apply in
affiliation elections.
As to (2), above, we disagree with our colleague
that "continuity of representation," as evidenced by
keeping the same union officers, is of paramount im-
portance in an affiliation case. It is, of course, a fac-
tor to be considered. But where, as here, the employ-
ees unanimously elect to affiliate with another union,
we are much more concerned with giving effect to
the employees' free choice of bargaining representa-
tive than with the so-called "continuity of representa-
tion" which might be disrupted by such election. For
it is the employees' freedom to select a bargaining
' See, e g, The Hamilton Tool Company , 190 NLRB 571, 574-575 (Mem-
ber Jenkins dissenting on other grounds , 1971), East Dayton Tool & Die
Company, 190 NLRB 577 (Member Jenkins dissenting on other grounds,
1971); Bear Archery, Division of Victor Complomeler Corporation, 223 NLRB
1169 (1976)
2 East Dayton Tool & Die Co, supra at 579
3 Bear Archery, supra
1399
representative of their choice which is of paramount
importance under the Act. Furthermore, we note that
none of the unit employees has complained because
the officers of QSU do not presently hold offices in
Local 986. Indeed, the record shows and the Admin-
istrative Law Judge found that "[t]he officers of QSU
simply wanted to get out of the union business. . . ."
Besides, Local 986 has made it clear to Respondent
that all contractual commitments made by QSU with
the Employer would be fully honored. This commit-
ment, in our view, is the only element of continuity in
which an employer has a legitimate interest.
Accordingly, we find, contrary to the Administra-
tive Law Judge and our dissenting colleague, that by
refusing to recognize and bargain with the Team-
sters, Respondent violated Section 8(a)(5) and (1) of
the Act.
CONCLUSIONS OF LAW
1. Quemetco, Inc., a subsidiary of RSR Corpora-
tion, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Miscellaneous Warehousemen, Drivers &
Helpers Local 986, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production, maintenance, and shipping and
receiving employees, and truckdrivers employed by
Respondent at 720 South Seventh Street, City of In-
dustry, California, excluding all office and clerical
employees, guards, watchmen, and supervisors as de-
fined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. At all times since April 21, 1975, Miscellaneous
Warehousemen, Drivers & Helpers Local 986, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, has been the
exclusive representative of all the employees within
the appropriate unit for purposes of collective bar-
gaining with respect to wages, rates of pay, hours of
employment, and other terms and conditions of em-
ployment within the meaning of Section 9(a) of the
Act.
5. By refusing on and since May 6, 1975, to bar-
gain with Local 986 as exclusive representative of the
employees of the above-described appropriate unit,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
6. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY 4
Having found that Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(5) and
(1) of the Act by refusing to bargain with the Team-
sters and its designated agents as the exclusive repre-
sentative of its employees in an appropriate unit, we
will order that the Respondent cease and desist from
engaging in such unfair labor practices and, upon
request, bargain collectively with the Teamsters and
its designated agents concerning wages, rates of pay,
hours, and other terms and conditions of employ-
ment, as indicated in our Order below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Quemetco, Inc., a subsidiary of RSR Corporation,
City of Industry, California, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively
with Miscellaneous Warehousemen, Drivers &
Helpers Local 986, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, and its designated agents, as the exclusive
representative of its employees in the following ap-
propriate unit with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment:
All production, maintenance, shipping and re-
ceiving employees, and truckdrivers employed
by Respondent at 720 South Seventh Street, City
of Industry, California, excluding all office and
clerical employees, guards, watchmen, and su-
pervisors as defined in the Act.
(b) In any like or related manner interfering with
the efforts of the above-named labor organization to
bargain collectively on behalf of the employees in the
above-described unit.
4 Respondent contends that because of the Administrative Law Judge's
failure to find that the Teamsters had attempted to abuse the Board's Sec 9
procedures coupled with the General Counsel's willingness to accept and
proceed on a theory totally at odds with Board law, Respondent has been
unnecessarily and unreasonably forced into this litigation Under these cir-
cumstances Respondent argues that it should be awarded costs and legal
fees
In the past the Board has refused to award costs unless it is absolutely
clear that one of the parties has expended the Board's time and resources in
"frivolous litigation " Tudee Products, inc, 194 NLRB 1234 (1972) It is our
position that even in the event we had sustained the findings of the Admin-
istrative Law Judge and dismissed the complaint, we would not have classi-
fied the current litigation as frivolous Therefore the request of the Respon-
dent is hereby denied
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request meet and bargain with the
above-named labor organization and its designated
agents as exclusive representative of all its employees
in the aforesaid appropriate unit with respect to wag-
es, rates of pay, hours of employment, and other
terms and conditions of employment and, if agree-
ment is reached, embody it in a signed contract.'
(b) Post at its place of business in City of Indus-
try, California, copies of the attached notice marked
"Appendix." 6 Copies of said notice, on forms pro-
vided by the Regional Director for Region 21, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with,
MEMBER WALTHER , dissenting:
Contrary to my colleagues, I would adopt the Ad-
ministrative Law Judge's Decision dismissing the
complaint. The majority finds that after the merger
of QSU with the Teamsters, Respondent was re-
quired to recognize and bargain with the latter. By
sanctioning the replacement of QSU by the Team-
sters as the unit's bargaining agent through the affili-
ation procedure, the majority has permitted the cir-
cumvention of the Board's contract-bar rules which
would have precluded the holding of a representation
election during the term of the collective-bargaining
agreement between QSU and Respondent. I would
not permit the Teamsters to accomplish indirectly
what Board law would prohibit it from doing direct-
ly. While I would recognize a change of affiliation
which resulted in the continued existence of the in-
cumbent Union as a viable entity, assuming that fair
and regular procedures had been adhered to, I would
not, in view of past precedent, accept such a change
when the continuity of representation has been de-
stroyed.
51n view of the currency of a collective- bargaining agreement between
Respondent and Quemetco Service Union , nothing in this Order should be
construed to require Respondent to bargain with Local 986 concerning the
alteration of any terms of such agreement prior to the date established
therein for the reopening or renegotiation of same
6 In the event that 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 National Labor Relations Boa-d " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
QUEMETCO, INC.
In Gulf Oil Corporation, 135 NLRB 184 (1962), as a
reflection of changing economic conditions, two lo-
cals of the International Union of Operating Engi-
neers merged. The certified union filed a motion with
the Board seeking to amend its certification by sub-
stituting the local into which the certified union had
merged. The Board denied the motion stating:
[I]t appears that the changes contemplated by
Local 715 [certified Local] are not simple ad-
ministrative or structural changes. There is no
indication that the changes are designed to in-
sure to the employees presently represented by
Local 715 a continuity of their present organiza-
tion or representation. Rather, it appears that
the change would result in a complete loss of the
identity of Local 715, and the substitution of a
new and different local union as representative
of the employees in the unit for which Local 715
was certified. From this, it is clear that the alle-
gations contained in Local 715's motion consti-
tute an attempt to raise a question concerning
representation. . . . The Act and the Board's
policy, however, require that such matters be de-
termined through a petition and secret ballot of
the employees concerned.
More recently in The Gas Service Company, 213
NLRB 932 (1974), the Board refused to amend a cer-
tification to substitute a local of the same interna-
tional for the certified local, although a substantial
majority of the employees in the appropriate unit had
approved the substitution in a secret-ballot election.
The Board concluded that, as in Gulf Oil.
The petition does not assure the employees of
the continuity of their certified bargaining repre-
sentative, but rather seeks to substitute a new
and different labor organization with its own of-
ficers and a complete change in the representa-
tive. Such a proposed change would raise a
question concerning representation. Such a
question may not properly be raised by a peti-
tion to amend the certification.
In similar vein in Independent Drug Store Owners of
Santa Clara County, 211 NLRB 701 (1974),' a Board
majority refused to find that an employer had vio-
lated Section 8(a)(5) in a situation where a certified
independent union had merged with a local of an
international union and the employer had refused to
recognize the successor union as bargaining repre-
sentative of the employees for whom the independent
had been certified as representative. The Board ma-
jority stated:
7 Members Fanning and Jenkins dissenting Affd 528 F 2d 1225 (C.A 9,
1975)
1401
The resolution [to affiliate] was not designed to
insure employees the continuity of their bargain-
ing representative. Rather, it provided for the
complete loss of identity of PCA [the indepen-
dent], and the substitution of a new and differ-
ent labor organization with its own officers, and
thus a complete change in the representative.
We do not believe that this case is distinguisha-
ble from Gulf Oil Corporation. . . .
In affirming the Board's decision, the court of ap-
peals said (528 F.2d at 1227, 1228):
If there is continuity of representation, there
is no requirement for a Board election. . . . On
the other hand, if there is no continuity of repre-
sentation, management need not bargain with
the new union until it has established its rights
by an election.
While there can be continuity of representa-
tion when an independent merges into a local of
an international, explicit guarantees of unit au-
tonomy and retention of the same officers are
important... .
In the present merger, the officers did not re-
main the same. While the old local officers did
not participate in communications with manage-
ment in seeking negotiations, none participated
in the actual negotiations. This leadership
change suggests an absence of countinuity
where it counts, in a bargaining relation.. . .
In American Bridge Division, United States Steel
Corporation v. N.L.R.B., 457 F.2d 660 (C.A. 3, 1972),
the court of appeals held that the Board was not war-
ranted in finding that an employer had violated Sec-
tion 8(a)(5) by refusing to bargain with a local of an
international union that had been substituted for an
independent union.' The court said (457 F.2d at
663):
The Board's assertion that the union was es-
sentially the same organization with a new title
after its affiliation will not withstand scrutiny. It
is a far different organization because the people
who conduct a substantial part of the unit's
dealings with management are no longer the
association's officers, and the power of the unit's
members to control those agents has radically
changed.
The importance of the factor of continuity of rep-
resentation is the same whether in a refusal to bar-
8American Bridge Division, United States Steel Corporation, 189 NLRB
119 (1971), 185 NLRB 669 (1970)
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gain or in an amendment to certification case.' Prec-
edents in the one type of case are therefore equally
applicable as precedents in the other type.
The applicability of the contract-bar and "continu-
ity of representation" rules to facts similar to those in
the present case has recently been affirmed by the
Third Circuit in N. L. R. B. v. Bernard Gloekler North
East Co., 540 F.2d 197 (C.A. 3, 1976), denying en-
forcement of 217 NLRB 626 (1975). In that case an
independent union had represented unit employees
for several years and was a party to an extant collec-
tive-bargaining contract. An international union,
UAW, filed a petition seeking to represent the unit
employees. The Regional Director denied the peti-
tion upon the ground that the existing collective-bar-
gaining contract was a bar to an election. Thereafter
under the auspices of the UAW the employees voted
to affiliate with the UAW. The UAW then demand-
ed recognition stating that it would honor the ex-
isting contract provisions during its term. The em-
ployer rejected the request for recognition. A Board
majority (Member Kennedy dissenting) then found
that by refusing to recognize the UAW the employer
violated Section 8(a)(5) and (1) of the Act. As stated
the court denied enforcement to the Board's Order.
The court stated:
We must ascertain whether . . . the record
contains substantial evidence to support a find-
ing of continuity of the same representation.
The Company's obligation to bargain hinges on
this determination.
The court then proceeded to find that the UAW was
not the same representative as the independent union
under another name. "[T]he Company would be fac-
ing a markedly different contractual partner if the
UAW local were to represent the employees.. . .
Thus the Company would be dealing with a union
with different economic options and with a different
locus of power." The court concluded that the affilia-
tion vote raised a question of representation which
could not then be resolved because of the contract-
bar rule. It pointed out that it was paradoxical for the
Board to support the substitution of representatives
when the Regional Director had previously held that
the contract bar prevented the Board from holding
an election.
To that extent, the Gloekler court decision is in
accord with earlier Board and court decisions as I
have pointed out above.
In the present case, as a result of the merger no
officers of QSU would have retained status or would
exercise any role in the successor local. New union
stewards were elected at a Teamsters meeting. Union
membership dues were turned over to the Teamsters
and kept in the Teamsters general fund. As set forth
in the above-cited Board and court decisions, the tact
that there was no planned carryover of officers and
representatives of QSU in the successor local mili-
tates against a finding that there was a continuity of
the QSU representation in the Teamsters. Newspa-
pers, Inc., supra, cited by the majority is not to the
contrary
In Newspapers, the predecessor union had two divi-
sions: A web division which consisted of newspaper
pressmen, and a commercial division consisting of
job pressmen. These two divisions were to all intents
and purposes separate locals. Each division had its
own executive and negotiating committees, and held
separate meetings at separate times limited to its own
members. The web division voted to merge with an-
other local. After the merger, the web division func-
tioned as it had in the past although it had not const-
itutional officers in the successor local. The same
people who had represented the web pressmen prior
to the merger continued to do so after the merger.
There was thus continuity of representation, as ex-
emplified in the cited cases, which the employer was
required to recognize; and his refusal to do so vio-
lated Section 8(a)(5)
But here, as set forth above, there was no such
continuity. Accordingly, I would find, as the Admin-
istrative Law Judge, that the Teamsters attempt to
substitute for QSU as representative of employees in
the appropriate unit raised a question concerning
representation which could be decided only by a
Board election and that Respondent did not act un-
lawfully in refusing to recognize and bargain with the
Teamsters. I therefore dissent from the majority deci-
sion to reverse the Administrative Law Judge's deter-
mination.
Retail Store Employees Union, Local 428, Retail Clerks International v
N L R B [Independent Drug Store Owners of Santa Clara County], 528 F 2d
1225 (C A 9, 1975), Newspapers, Inc, 210 NLRB 8 enfd 515 F 2d 334
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, meet and bargain col-
lectively with Miscellaneous Warehousemen,
Drivers & Helpers Local 986, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America and its desig-
nated agents as your exclusive representative,
and, if agreement is reached, embody it in a
signed contract. The bargaining unit is-
QUEMETCO, INC
All production , maintenance , shipping and re-
ceiving employees , and truckdrivers employed
by us at 720 South Seventh Street , City of In-
dustry, California , excluding all office and
clerical employees , guards, watchmen , and su-
pervisors as defined in the Act.
WE WILL NOT interfere with the efforts of the
above-named Union to bargain on behalf of the
employees of the above -described unit.
QUEMETCO, INC., A SUBSIDIARY OF RSR COR-
PORATION
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard in Los Angeles, California on February 10,
1976. The charge was filed on May 9, 1975 by Miscella-
neous Warehousemen, Drivers & Helpers Local 986, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, herein called the
Teamsters or Local 986. The complaint issued on July 18,
1975, alleging that Quemetco, Inc., a subsidiary of RSR
Corporation, herein called Respondent, violated Section
8(a)(5) and (I) of the National Laobr Relations Act, as
amended.
Issues
The primary issues are:
(1) Whether Quemetco Service Union, an independent
Union that was certified by the Board as the representative
of Respondent's employees, met the standards required by
the Board in affiliating with Local 986.
(2) Whether Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to recognize or bargain with Local
986.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and the Respondent.
Upon the entire record of the case and my observation
of the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation engaged in the
recycling of metals at its plant located at 720 South 7th
Street, City of Industry, California, where it annually pur-
chases and receives goods valued in excess of $50,000 from
suppliers located outside of California. Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
1403
Local 986 is a labor organization within the meaning of
Section 2(5) of the Act. Quemetco Service Union, herein
called QSU, was a labor organization within the meaning
of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events
1. The background
From 1964 to 1974 Respondent's bargaining unit em-
ployees I were represented by International Chemical
Workers Union, Local No 11, herein called the Chemical
Workers Union. The last collective-bargaining agreement
between Respondent and the Chemical Workers Union ex-
pired in June 1974.
On April 3, 1974, Respondent's employee, James Gregg,
filed a decertification petition in Case 21-RD-1177.
Shortly thereafter a number of Respondent's employees
spoke to Local 986's business agent, Michael J. Riley. They
asked Riley whether Local 986 would organize Respon-
dent's employees, raid the Chemical Workers Union, or
intervene in the decertification proceedings. Riley replied
that the Teamsters has a no-raid pact with the Chemical
Workers Union and that the Teamsters would not involve
itself in a raid.
On or about April 21, 1974, QSU was formed. QSU then
intervened in the representation case A hearing was held
on the decertification petition on April 29, 1974. Attorney
Max Dauber appeared at that hearing as the representative
of QSU. Dauber had been used from time to time by the
Teamsters. Dauber gave his address as 1625 West Olympic,
Suite 805, which is the same address and suite number as
that of the attorneys who appeared in the instant case rep-
resenting the Teamsters
On June 27, 1974, agents of the Board conducted an
election and on July 8, 1974, QSU was certified as the
collective-bargaining representative of the employees in the
bargaining unit.
Thereafter, Respondent and QSU engaged in collective-
bargaining negotiations that led to the execution of a col-
lective-bargaining agreement on September 27, 1974. That
agreement is to expire by its terms on September 30, 1977.
It provides that if QSU affiliates or merges with any other
labor organization, certain grievance, arbitration, or other
clauses in the contract are to be replaced by other provi-
sions which appear in a contract between Respondent and
the Sheetmetal Workers Union. It also contains a union-
security clause. All of the employees in the bargaining unit
t The complaint alleges. the answer admits, and I find that the following
bargaining unit is appropriate for the purposes of collective bargaining with-
in the meaning of Sec 9(b) of the Act
All production, maintenance . shipping and receiving employees, and
truckdrivers employed by Respondent at 720 South Seventh Street.
City of Industry, California. excluding all office and clerical employ-
ees, guards. watchmen and supervisors as defined in the Act
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joined QSU. The QSU membership has been coextensive
with the exployee complement in the bargaining unit.
2. The affiliation
The officers of QSU were president, vice president, sec-
retary-treasurer, and three trustees
QSU's executive board was composed of President Ed-
die Coleman, Vice President Alvin Mitchell, Secretary-
Treasurer Timothy Jones, and trustees Tom Arvizu, Raul
Solis, and Vinsor Jones. All of the executive board mem-
bers were employees within the bargaining unit Shortly
after the certification QSU retained Melvin Darrow as
counsel Beginning in late November 1974, the members of
the executive board began discussing the possibility of
QSU affiliating with another union. Several unions were
mentioned including the Steelworkers and the Teamsters.
At that time, QSU was having trouble handling grievances
and the executive board thought that a large union could
handle them better. The officers of QSU had to spend
more time than they expected to on union affairs and they
believed that more could be accomplished if there was big-
ger muscle behind them. In an executive board meeting in
December 1974, it was decided that QSU would try to af-
filiate with the Teamsters. QSU's counsel, Darrow, sent a
letter to Teamsters secretary-treasurer, Michael Riley, dat-
ed February 14, 1975, which stated in part.
The Executive Board of Quemetco Service Union has
requested that contact be made with you concerning
affiliation of our independent union with Local 986 of
the IBT.
By letter dated March 17, 1975, Riley replied as follows.
This letter is to inform you that at the March 12, 1975
Executive Board Meeting of Miscellaneous Ware-
housemen, Drivers & Helpers Local 986, International
Brotherhood of Teamsters , Chauffeurs , Warehouse-
men & Helpers of America - the Board unanimously
approved the affiliation of Quemetco Service Union
with Miscellaneous Warehousemen , Drivers &
Helpers Local 986 , provided that Quemetco Service
Union complies with their Service Unions' Constitu-
tion and By-laws.2
In March 1975 the QSU executive board together with
its counsel , Darrow , met with Teamsters Organizer La-
Flore and another Teamsters representative QSU Secre-
tary-Treasurer Jones asked LaFlore what would happen
when the affiliation took place. LaFlore replied that griev-
ances would be handled by shop stewards and if the griev-
ances couldn ' t be resolved by the shop stewards , a business
representative from the Teamsters would be called in La-
Flore also told them that the outstanding contract would
2 Riley creditably testified that the merger affiliation was approved by the
Teamsters executive board, the minutes of that executive board meeting
were subsequently read at the general membership meeting, and the minutes
were approved by the membership Local 986 does not have its own bylaws
and it operates under the Teamsters international constitution That consti-
tution deals with the rights of the International and does not have any
provisions relating to a local's absorption of another union QSU has not
been issued a charter by the international, nor has it been kept as a separate
division of Local 986
be honored , that , when negotiations came up for a new
contract in 1977, a committee would be picked from the
employees , and that the committee together with a business
representative provided by the Teamsters would negotiate
a new contract.
QSU's constitution and bylaws provides in part:
ARTICLE XI• AMENDMENTS TO
CONSTITUTION
In the event the members decide to affiliate with
any other International Union, it shall require a two-
thirds (2/3) majority of signed authorization cards for
the newly affiliated Union to be the official represen-
tative of the membership.
These cards must be submitted and checked by the
officers of the Independent Union.
Upon verification by the Independent Union that a
two-thirds (2/3) majority of the employees have desig-
nated an International Union as their representative
the Independent Union shall advertise and call a spe-
cial meeting at which time a two-thirds (2/3) majority
of those present and voting must authorize representa-
tion by the new Union . At this meeting all records and
funds shall be turned over to the newly affiliated
Union.
From about March 17 through March 22, 1974, mem-
bers of QSU circulated a petition.3 The petition was print-
ed in both English and Spanish. It read:
We, the undersigned employees of Quemetco Service
Union, wish to vote to affiliate with Miscellaneous
Warehousemen, Drivers & Helpers, Local 986, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America.
There were 109 employees in the bargaining unit who
signed the petition. A checkoff list supplied to QSU by
Respondent for March 1974 showed the names of 139 em-
ployees In addition, there was one chief steward who did
not pay dues. In all, there were 140 employees in the bar-
gaining unit, and the same 140 employees constituted the
membership of QSU. QSU's Secretary-Treasurer Jones
checked the signatures on the petition against the checkoff
list. He ascertained that all of the people who signed the
petition were still working for Respondent and there were
no double signatures.
QSU then had notices printed which read as follows:
QUEMETCO SERVICE UNION
March 25, 1975
Dear Brother:
Please be advised that over 2/3 of our membership
have signed a petition to put the question to the mem-
bers of affiliating with Miscellaneous Warehousemen,
Drivers & Helpers Union, Local 986, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America.
As a result of this petition, a membership meeting will
No members of the Teamsters and none of the members of the QSU
executive board participated in the circulation of the petition
QUEMETCO, INC.
be held at the La Puente Women's Club on Monday,
April 21, 1975, to put the question to a vote of the
membership.
The time and schedule of meetings is as follows:
1st Meeting-10 A.M.
2nd Meeting-5:30 P.M.
It is very important that all the members attend this
meeting.
Fraternally,
E. Coleman
President
On the back of the notice, the same message was printed
in Spanish . Though the notice was dated March 25, 1975,
Darrow kept them for some time and they were not posted
in the plant until about 2 weeks before the election. At that
time they were posted in a locked, glass-covered bulletin
board maintained by the Union on Respondent' s premises.
The notice remained on the bulletin board until after the
election.4
In addition to the notice being posted on the bulletin
board, about a hundred copies of the notice were passed
out by hand to the employees in the bargaining unit. About
April 15, 1975, Respondent General Manager Virgil Best
received a letter from QSU Counsel Darrow asking that
certain members of the Union be excused from work to
attend a meeting.
On April 21, 1975, QSU held two meetings at the La-
Puente Women's Club. Respondent's plant is run on a 24-
hour basis and two meetings were necessary to allow all the
employees to vote. The first meeting was at 10 a.m. QSU
Counsel Darrow explained to the membership what was
meant by affiliation and his remarks were translated into
Spanish . One of the members made a motion that a vote be
taken to affiliate with the Teamsters. The motion was sec-
onded and passed. Theodore A. Conter, a Lutheran minis-
ter who agreed to supervise the election, was present. No
one from the Teamsters Union was at the meeting. QSU's
Secretary-Treasurer Jones then sat at a table with Rever-
end Conter. Jones had a list of the employees in the unit.
Reverend Conter handed out ballots and Jones checked off
the names of the people receiving ballots from the list. The
ballots that were used in the election were printed in both
English and Spanish and had a "yes" and a "no" box to be
checked after the following statement : "Resolved that
These findings were based on the credited testimony of QSU Secretary-
Treasurer Jones who averred that he personally posted those notices and
observed them on the bulletin board until after the election Respondent's
supervisor , Williams , testified that he observed a brown paper bag on the
wall saying that there was a meeting but that he did not see the printed
notice Supervisor McDaniels also testified that he saw a brown paper bag
Respondent 's personnel training supervisor , Van Buskirk, also testified that
he saw a brown paper bag on the union bulletin board which stated that
there was an important union meeting at the La Puente Women's Club but
that he did not see any other notice Jones impressed me as a careful consci-
entious witness with a good memory His assertion that he personally posted
the notices and thereafter saw them on the bulletin board is fully credible
The three supervisors had less reason than Jones to be concerned with what
was posted on the employee bulletin board and their assertion to the effect
that they did not see a notice is insufficient to warrant the discrediting of
Jones
1405
Quemetco Service Union affiliate with Miscellaneous
Warehousemen Drivers and Helpers Union, Local 986, In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America." The employees then
went to another table about 15 feet away where they voted
and folded the ballots. Employees brought the ballots back
and put them into a ballot box. After the membership vot-
ed, the executive board members also voted. Reverend
Conter placed the ballot box in his locked car trunk to
await the second part of the election. At 6 p.m. that day the
second part of the election took place and the same proce-
dures were followed. After the vote, four employees were
picked to count the ballots under the supervision of Rever-
end Conter. None of the four employees were members of
the executive board or were union stewards. There were 75
ballots cast, of which 74 were for affiliation and I was left
unmarked. The results were reported to the membership.
After the election, Reverend Conter signed a letter certify-
ing that there were 74 votes for affiliation and no votes
against affiliation. A copy of the certification was sent to
the Teamsters.
3. The situation after the affiliation
Immediately after the affiliation vote on April 21, 1975,
there was a meeting of the executive board of QSU. At this
meeting checks were written to clear up all of QSU's debts
and then a check was wntten to the Teamsters transferring
QSU's funds to the Teamsters account. That check, plus all
of QSU's books and records were turned over to Darrow
who in turn saw to it that they were turned over to the
Teamsters. The QSU funds went into the Teamsters gener-
al fund. The credible and uncontradicted testimony of
QSU's Secretary-Treasurer Jones establishes that it was the
understanding of QSU's executive board that QSU would
cease to exist after the affiliation and that from then on the
Teamsters would represent the employees. He further
creditably testified that it was the understanding of the
officers of QSU that they would no longer have office, they
would have no official position in any capacity with the
Teamsters, and a business agent of the Teamsters would
handle all union business with Respondent except for the
duties of the union stewards. He creditably averred that
none of the members of the executive board wanted to
remain as union officials and that they all wanted to get
back to being workers. The officers of QSU did not sign
any formal resignations after the affiliation but they were
told by Darrow to cease operations.
On April 25, 1975, Teamsters attorney, George A. Pap-
py, wrote to Respondent as follows:
This law firm represents Miscellaneous Warehouse-
men, Drivers & Helpers Local 986, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, herein called Local 986.
On April 21, 1975, Quemetco Service Union's mem-
bership voted unanimously to affiliate with Local 986.
It is my understanding that the vote was conducted by
the Reverend Theodore A Conter of the Gloria Dei
Lutheran Church, 5872 Naples Plaza, Long Beach,
California 90803, (phone 438-0929). It is also my un-
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
derstanding that the vote was conducted by secret bal-
lot at a union meeting, and that all the employees re-
ceived notice of the meeting Local 986 has accepted
the affiliation.
Under the above circumstances, Local 986 is the
successor to all the rights and obligations of the
Quemetco Service Union. By operation of law, there-
fore, Local 986 is now the collective bargaining repre-
sentative of your employees covered by your contract
with Quemetco Service Union.
On the basis of the foregoing, Local 986 hereby for-
mally requests recognition as the collective bargaining
representative of the aforementioned employees. Lo-
cal 986 will agree to be bound by all the terms and
conditions of the aforesaid contract, for its full term.
I would appreciate an early reply to this letter so
that a smooth transition can be arranged.
By letter dated May 6, 1975, Frederick L. Sullivan, Re-
spondent's attorney, replied to Pappy in part as follows:
We have been advised by the Management of the
Company that they had no independent knowledge of
any of the matters which you allege in your letter of
April 25, 1975. In fact, your understanding as ex-
pressed in your letter, is contrary to information pos-
sessed by management.
Although we would certainly be interested in any
smooth transition where circumstances indicated, we
are constrained on the basis of the above to continue
to recognize the Quemetco Service Union as the exclu-
sive collective bargaining agent until such time as an-
other labor organization is certified by the National
Labor Relations Board. The NLRB has previously
certified the Quemetco Service Union as the exclusive
collective bargaining agent.
Sometime in early May 1975, the Teamsters held a mem-
bership meeting in two separate sessions with the employ-
ees of Respondent. About 75 or 80 employees attended.
Teamsters business agent, John Harren, asked the employ-
ees to sign applications to loin the Teamsters and checkoff
forms. Everyone signed the cards. At that meeting, em-
ployees elected shop stewards. Together with other cards
that were signed thereafter, the Teamsters now have about
125 to 130 signed authorization cards. Harren met with the
shop stewards on a number of occasions thereafter. He told
them that as soon as Respondent replied to Pappy's letter,
the Teamsters would be bargaining and handling all of the
grievances directly.5
The shop stewards elected at the Teamsters meeting
have not taken over their responsibility because Respon-
dent has maintained its position that it would recognize
only QSU and not the Teamsters Because of this the stew-
ards who had previously been selected by QSU still meet
with Respondent's representatives at regular grievance
meetings. Respondent's general manager, Virgil Best,
creditably testified that he continues to meet with the same
representatives that he had previously met with before the
5 These findings are based on the credited testimony of Harren Appar-
ently Harren was unaware that Respondent had replied to Pappy's letter
affiliation to discuss grievances and administer the con-
tract. Respondent meets weekly with the officers of QSU
and the stewards. Respondent continues to honor the con-
tract and to deal with the same representatives that it had
dealt with previously However, any contact between Re-
spondent and the officers and stewards of QSU is not
based on the desire of QSU to represent the employees, but
is the result of Respondent 's refusal to acknowledge the
Teamsters as the representative of the employees. As was
established by the credible testimony of QSU Secretary-
Treasurer Jones, it is the desire of QSU to cease to exist
and to have the Teamsters represent the employees. None
of the members of the executive board of QSU want to
remain as union officials and they all want to get back to
being workers. QSU has continued to function on a limited
and temporary basis solely because of Respondent's refus-
al to recognize the Teamsters and it will cease to exist if
that recognition is granted.
QSU was an independent union with a membership of
about 140 employees. It negotiated and administered a
contract only with Respondent. Local 986 is a local of an
international union. Local 986 has about 12,000 or 13,000
members and has contracts with about 350 employers.
None of the employees of Respondent are on the executive
board of Local 986. None of the officers of QSU became
officers of Local 986.
The constitution of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, which is followed by Local 986, provides that
collective-bargaining contracts may be accepted by a ma-
jority vote of those members involved in negotiations and
voting. When in the judgment of a local union executive
board an employer has made a final offer of settlement,
such offer must be submitted to the involved membership
and can be rejected only by a two-thirds vote of the mem-
bers involved in the negotiations and voting. It further pro-
vides that if a settlement cannot be reached, the local
union executive board shall order a secret ballot to be tak-
en with a strike being authorized only if two-thirds of those
members of the local union involved in such negotiations
and voting adopt the motion to strike. There would be no
role to be played by QSU or its officers in such matters.
After the affiliation vote, Respondent continued to send
checkoff dues to QSU. For some time, QSU's Secretary-
Treasurer Jones simply sent the checks directly to the
Teamsters without endorsing them. About 2 months after
the affiliation vote Respondent became aware that the
Teamsters were receiving the dues and from that time on
Respondent asked Jones to endorse the checks. Thereafter,
Jones signed the checks as treasurer of QSU and then sent
them on to the Teamsters.
On November 24 or 25, 1975, the Teamsters and QSU
entered into an agreement All of the officers and trustees
of QSU (which constituted the entire executive board of
QSU) signed the agreement on behalf of "Quemetco Ser-
vice Union, defunct " The agreement read as follows:
1. WHEREAS, Service is, according to its by-laws,
a defunct organization,
2. AND, WHEREAS, Service has, according to its
and Teamsters' by-laws, merged into Teamsters;
I
QUEMETCO, INC
3. AND, WHEREAS, Service and Teamsters have
taken the position that Service' s bargaining rights with
respect to the employees of Quemetco, Inc., rest in
Teamsters;
4. AND, WHEREAS, Quemetco, Inc. refuses to
recognize either the defunctness of Service or Team-
sters as the bargaining representative of the employees
of Quemetco, Inc;
5. AND, WHEREAS, the legal issues with respect
to which organization has the said bargaining rights
are not likely to be settled for a period of time;
6. AND, WHEREAS, the employees in question
need representation while such legal issues are being
resolved;
7. NOW, THEREFORE, it is agreed as follows-
a). Without admitting that Service is not legally
defunct and without admitting that Service rather
than Teamsters have the bargaining rights afore-
mentioned;
b). Effective on the date appearing below; Team-
sters agree , on behalf of Service, to render profes-
sional representational services to Service such as
the processing of grievances , the negotiation of col-
lective bargaining agreements , and all related mat-
ters. It is understood that policy decisions of other
than a routine nature will be made by Teamsters
after clearance with the appropriate former officer
of Service , or his designee.
c). In consideration of the above , Service shall
pay to Teamsters the sum of ten dollars ($10.00) per
member (of Service) per month.
d). This Agreement may be cancelled upon 24
hours written notice by either party.
e). Nothing contained in this Agreement shall be
construed as a acknowledgment by either party that
the aforesaid merger of Service with the Teamsters
was not effective, or that Teamsters is not the bar-
gaining representative of the employees of Quemet-
co, Inc.
On December 8, 1975, Teamsters attorney, George Pap-
py, sent a letter to Respondent enclosing a copy of that
agreement . The letter stated:
This law firm represents Quemetco Service Union,
defunct, and Miscellaneous Warehousemen, Drivers
and Helpers Local No. 986
I am enclosing herewith an Agreement between the
above-mentioned Unions. In connection with the
above-mentioned Agreement, please consider this let-
ter a demand upon you to recognize Local 986 as the
agent of Quemetco Service Union, for the purpose of
administering the current collective bargaining agree-
ment between your firm and Quemetco Service
Union.
This letter should not be construed as an abandon-
ment of the position of the Unions as set forth in Na-
tional Labor Relations Board case No. 21-CA-13620
This letter is merely a means for the Quemetco Service
Union to continue to service its members until the
bargaining rights with respect to the unit in question,
are settled. If I do not hear from you by the close of
1407
business of December 15, 1975, 1 shall assume that
you are refusing the above-mentioned demand and
additional charges will be filed with the National La-
bor Relations Board. In addition, I shall advise the
Unions of their right to strike.
On December 19, 1975, Frederick L. Sullivan,
Respondent's attorney, answered as follows:
Your letter of December 8, 1975 addressed to
Quemetco, Inc., wherein it was mentioned that your
law firm represents the Quemetco Service Union, has
been forwarded to our office for reply.
At no time has the Employer, Quemetco, Inc, at-
tempted to designate or influence the selection of the
individuals who would serve as representatives of the
Quemetco Service Union. The Quemetco Service
Union has been ably represented by officers selected
by the employees of Quemetco. The Company, at all
times, has dealt with and will continue to deal with the
duly designated representatives of the Quemetco Ser-
vice Union.
Notwithstanding your assertion that the Quemetco
Service Union is defunct, that Union 's representatives
have continued to present grievances and to discuss
conditions of employment with the Employer. In fact,
I have been advised that the Employer has just re-
ceived a Demand for Arbitration of certain grievances
from the representative of the Quemetco Service
Union.
The Company will continue to deal with designated
agents and representatives of the Quemetco Service
Union except to the extent that such recognition may
be subject to some legal impediment.
B. Analysis and Conclusions
An employer must continue to recognize an incumbent
independent union after that union affiliates or merges
with an international union where two conditions are met.
The first is that the employees in the independent union
clearly, and in a manner that meets basic standards of fair-
ness, manifest their desire in accordance with the provi-
sions of their constitution to affiliate or merge. Employees
have the right under the Act to select their own bargaining
agent and where the employees change the internal struc-
ture or the affiliation of their union , and employer is re-
quired to accept that change. The second condition is that
a basic continuity of representation must be maintained.
Though employees do have the right to select their own
representative, an employer is not required to accept the
employees' designation of a new bargaining agent at any
time that the employees desire to change unions. The
Board's rules relating to the certification year and contract
bar are keyed to promoting a stability in bargaining rela-
tionships. Ordinarily, employees must wait until the expira-
tion of an outstanding contract before they can use Board
processes to abandon one union and require an employer
to recognize a different union.
In the instant case, employees of Respondent in the bar-
gaining unit in question, during the certification year and
during the term of a collective-bargaining contract, fol-
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowed the requirements of the constitution of QSU and
voted to affiliate with the Teamsters. That constitution
provided that in order to affiliate, two-thirds of the mem-
bers of QSU had to sign authorization cards for the newly
affiliated union, the cards had to be checked by the officers
of QSU, QSU had to advertise the calling of a special meet-
ing, and two-thirds of those present and voting at the meet-
ing had to authorize representation by the new union
There were 140 employees in the bargaining unit, all of
whom were members of QSU. More than three-quarters of
the total QSU membership and of the total employee com-
plement in the bargaining unit, 109 employees, signed the
petition to affiliate. The constitution of QSU spoke of au-
thorization cards rather than a petition, but I do not be-
lieve that there is any meaningful distinction between au-
thorization cards and a petition in the context of this case.
QSU posted a notice of the election on the Union's bulletin
board at Respondent's premises 2 weeks before the elec-
tion and in addition about 100 copies of the notice were
distributed to employees. At the meeting at which the elec-
tion was conducted, QSU's attorney spoke about the
meaning of affiliation and a motion was carried to proceed
with the vote. The vote was conducted by secret ballot
under the supervision of a Lutheran minister. The proce-
dures at the election were fair and regular. Of the 74 votes,
100 percent were in favor of affiliation 6
In sum, I find that Respondent's employees in the bar-
gaining unit clearly manifested their desire to affiliate with
the Teamsters in a manner prescribed by the QSU consti-
tution and they did so in a manner consistent with the
standards required by the Board for such an affiliation
William B. Tanner Company (Formerly Pepper & Tanner,
Inc.), 212 NLRB 566 (1974), enforcement denied 517 F.2d
982 (C.A. 6, 1975); Newspapers, Inc, Publishers of the Aus-
tin American and the A ustin Statesman, 210 NLRB 8 (1974),
enfd. 515 F 2d 334 (C.A. 5, 1975) I also find that by its
letter to Respondent dated April 25, 1975, the Teamsters
requested recognition and that in its letter to the Teamsters
dated May 6, 1976 (as well as by its subsequent actions and
communications), Respondent denied that request.
On the issue of continuity of representation, many diffi-
cult problems are raised. The employees voted for affilia-
tion with Teamsters, but in fact there was no affiliation.
The intention of QSU was for QSU to become defunct and
for the Teamsters to assume the responsibility of repre-
senting the employees. The Teamsters demand for recogni-
tion dated April 25, 1975, stated that there had been an
affiliation vote However, subsequent correspondence in-
cluding a copy of the agreement between QSU and the
Teamsters that was sent to Respondent on December 8,
1975, clearly indicated that QSU was defunct. None of the
officers of QSU assumed any role with the Teamsters. The
officers of QSU simply wanted to get out of the union
business, and it was the understanding of the QSU execu-
tive board that QSU would cease to exist New union stew-
ards were elected at a Teamsters meeting Union member-
' In addition, one ballot was left unmarked It is noted that 40 to 50
percent of the membership usually attended meetings but at the affiliation
meeting, substantially more than 50 percent of the employees in the bar-
gaining unit attended
ship dues were turned over to the Teamsters and kept in
the Teamsters general fund. Though under the Teamsters
constitution , employees in the bargaining unit had certain
voting rights with regard to the acceptance of contracts
and strikes, there was no role to be played by QSU. The
officers and stewards of QSU continued to represent em-
ployees in a limited capacity and to process grievances, but
only on an interim basis until Respondent recognized the
Teamsters. QSU is not a continuing entity that will remain
the representative of the employees as an affiliate of the
Teamsters If the Teamsters is recognized QSU will disap-
pear and its officers will have no role in representing the
employees
The Board has considered problems raised by the affilia-
tions and mergers of unions in a long series of both unfair
labor practice and representation cases. Some of the cases
have turned on the principle that employees are entitled to
select their own bargaining agent and others have stressed
the requirement for continued representation by the bar-
gaining agent. The issue of continuity of representation
was decisive in the case of Gulf Oil Corporation, 135 NLRB
184 (1962), in which the Board refused to amend a certifi-
cation. In that case, Local 715 and Local 826 of the Inter-
national Union of Operating Engineers , AFL-CIO,
merged. Local 715 was the certified bargaining representa-
tive and it requested that its certification be amended by
substituting the name of Local 826 for Local 715. Local
826 had voted to accept the employees along with the con-
tract and responsibilities of Local 715. The Board denied
the motion to amend the certification holding:
.. it appears that the changes comtemplated by Lo-
cal 715 are not simply administrative or structural
changes. There is no indication that the changes are
designed to insure to the employees presently repre-
sented by Local 715 a continuity of their present orga-
nization or representation. Rather, it appears that the
change would result in a complete loss of identity of
Local 715, and the substitution of a new and different
local union as representative of the employees in the
unit for which Local 715 was certified. From this, it is
clear that the allegations contained in Local 715's mo-
tion constitute an attempt to raise a question concern-
ing representation . Local 715 requests that we resolve
this alleged question concerning representation by
amending the certification. The Act and the Board's
policy, however, require that such matters be de-
termined through a petition and secret ballot of the
employees concerned. Accordingly, we find the mo-
tion to amend the certification without merit. [Foot-
notes omitted ]
In North Electric Company, 165 NLRB 942 (1967), the
Board granted a motion to amend a certification. In that
case, an independent union affiliated with an international
union. However, unlike the instant case, in North Electric,
the international granted a charter to the independent and
the independent became a local of the international . There-
after the former independent functioned as a local of the
international with the same officers continuing in office.
The Board held that in such circumstances the amendment
of certification would ensure the employees the continuity
QUEMETCO, INC 1409
of their present organization and representation. The
Board pointed out that the independent no longer existed
as such but functioned as a local of the international and
held that it saw no reason "to require the Petitioner now to
renew its combat via the formality of a Board-conducted
election to redetermine the choice already made." See also
Emery Industries, Inc., (Dill Road) 148 NLRB 51 (1964).
Similar issues were raised in the context of a refusal to
bargain unfair labor practice case, in Cavalier Olds, Inc.,
178 NLRB 490 (1969). In that case, a certified independent
union affiliated with an international union and was issued
a charter as a local of the international. All but one of the
officers of the independent continued as officers of the new
local. In a preceding representation case, the Board grant-
ed an amendment to the certification, substituting the new
local for the independent. In the unfair labor practice case,
the Board held that the employer refused to bargain with
the new local in violation of Section 8(a)(5) of the Act. A
similar result was reached in American Bridge Division,
United States Steel Corporation, 189 NLRB 119 (1971), en-
forcement denied 457 F 2d 660 (CA. 3, 1972). In that
case, a certified independent union affiliated with an inter-
national. Unlike the instant case, the officers of the inde-
pendent continued to operate and represent the member-
ship so there was a continuity of representation. In a prior
representation case, the Board amended the certification
and, in the unfair labor practice case, the Board held that
the employer violated Section 8(a)(5) of the Act by refusing
to recognize the newly affiliated union. In The Hamilton
Tool Company, 190 NLRB 571 (1971), the Board amended
a certification where an independent that had affiliated
with an international union functioned as a local of the
international, kept an independent identity as a separate
unit, and notified the employer that the officers and func-
tional leaders would remain the same. Similar reasoning
was used in Pearl Bookbinding Company, Inc, 206 NLRB
834 (1973), enfd. 517 F.2d 1108 (C.A. 1, 1975) in which the
Board found that an employer violated Section 8(a)(5) of
the Act. There, apart from a change of name and affilia-
tion, an independent underwent no change, the officers re-
mained the same, the assets were unaffected and the
union's autonomy and bylaws remained the same. In
Newspapers, Inc., Publisher of The Austin American and The
Austin Statesman, 210 NLRB 8 (1974), enforced 515 F.2d
334 (C.A. 5, 1975) the Board also found that an employer
violated Section 8(a)(5) of the Act. In that case, one local
merged with a second local and the second local allowed
the first to function as it had in the past. The same people
who represented the employees in the first local continued
to represent them after the merger. The Board gave great
weight to the desire of the employees, holding:
There is no question here as to the true desires of the
employees and no question with regard to the validity
of the method by which the employees' desires were
made known. Accordingly, we will find the violation
as alleged in the complaint.
7 In that case, the Third Circuit Court of Appeals refused to enforce the
Board's order after finding that the change in organization was more than a
new title and involved bargaining with a different organization The court
also held that proper election procedures were not followed
However, unlike the instant case, the officers who had rep-
resented the employees before the merger continued to rep-
resent them afterwards, and there was a continuity of rep-
resentation rather than a mere substitution of unions. The
situation was quite different in Independent Drug Store
Owners of Santa Clara County, 211 NLRB 701, enfd. 528
F.2d 1225 (C.A. 9, 1975) In that case, an independent in-
cumbent union, the Pharmaceutical Clerks Association
(herein PCA) transferred its operations to Retail Store Em-
ployees Union, Local 428, Retail Clerks International As-
sociation, AFL-CIO, after a merger vote of the employees.
PCA urged its members to join Local 428 and provided for
the dissolution of PCA. The Administrative Law Judge
found that Local 428 became the exclusive representative
of employees represented by PCA, and inherited its con-
tract with the employer. The Board held-
Contrary to the Administrative Law Judge, we do
not believe that Respondent was required to recognize
Local 428 as the bargaining representative of the unit
represented by PCA or as a party to the contract. The
resolution was not designed to insure employees the
continuity of their bargaining representative. Rather,
it provided for the complete loss of identity of PCA,
and the substitution of a new and different labor orga-
nization with its own officers, and thus a complete
change in the representative. We do not believe that
this case is distinguishable in principle from Gulf Oil
Corporation, 135 NLRB 184, where the Board refused
to amend the certification from one local to another
local of the same international. The membership of
the certified local had voted in favor of the merger.
The Board held that this requested substitution raised
a question concerning representation, which under
Board policy should be determined through a petition
and secret ballot election.
We find that on March 20, 1973, Local 428's status
was not that of the exclusive bargaining representative
with the presumption of continuing majority. We find
that the Respondent was not obliged to accept in 1973
the Union-conducted poll of employees of approxi-
mately a year earlier as a proof of majority. Respon-
dent did not act unlawfully in refusing to recognize or
bargain with Local 428 until its majority status was
established in a Board-conducted election.
In enforcing the Board's decision in Independent Drug
Store Owners of Santa Clara County, the Ninth Circuit
Court of Appeals held (528 F.2d at 1228):
While there can be continuity of representation
when an independent merges into a local of an inter-
national, explicit guarantees of unit autonomy and re-
tention of the same officers are important.
The Board was again presented with a merger situation
in William B Tanner Company, (Formerly Pepper & Tanner
Inc.), 212 NLRB 566 (1974) enforcement denied 517 F.2d
982 (C.A. 6, 1975). In that case the Board found that an
employer unlawfully refused to bargain with a successor
union. The certified union, Local 1275, IBEW merged with
Local 474, IBEW into a single local union 474. The Board
held (212 NLRB 566):
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, the record clearly shows that after the
merger Local 1275's identity continued by virtue of its
being continued and maintained as a separate semi
autonomous unit, designated as unit 7 of Local 474
The record further shows that the officers and agents
of Local 1275 continued to be officers of Local 474
and as agents of 474 administered those contracts to
which Local 1275 was a signatory. In these circum-
stances, there can be no dispute that Local 474 is both
factually and legally the successor to Local 1275 and,
therefore, entitled to all the bargaining rights which
this Board previously found were the legal rights of
Local 1275.
However, in The Gas Service Co., 213 NLRB 932 (1974),
the Board refused to amend a certification. In that case,
Local 53 and Local 1613 of the International Brotherhood
of Electrical Workers, AFL-CIO, merged. Local 1613 was
the certified bargaining agent. The locals jointly petitioned
to amend the certification to substitute Local 53 for Local
1613. Local 1613 was to continue to exist as a labor organi-
zation. In relying on Gulf Oil Corporation, supra, and Inde-
pendent Drug Store Owners of Santa Clara County, supra,
the Board held (213 NLRB at 933)
In these circumstances, we find that the Joint Peti-
tioners contemplate more than an administrative or
structural change. The petition does not assure the
employees of the continuity of their certified bargain-
ing representative, but rather seeks to substitute a new
and different labor organization with its own officers
and a complete change in the representative. Such a
proposed change would raise a question concerning
representation. Such a question may not properly be
raised by a petition to amend the certification... .
Rather, that question may only be considered upon
the timely filing of a representation petition and a se-
cret ballot of the employees concerned.
In two subsequent cases involving affiliation of indepen-
dent with international unions , the Board found that the
employers refused to bargain in violation of the Act. In the
first of those cases , Bernard Gloeckler North East Co., 217
NLRB 626 (1975), the employer was notified that the ex-
isting contract would be honored and that there would be
no change in union officers or in the daily relationship
between the parties. In the second case, Amoco Production
Company, 220 NLRB 861 (1975) the certified independent
union became a local of the international, the independent
ceased to exist and notified the employer that the officers
of the independent were to continue as officers of the local.
In all of the cases cited above except for Gulf Oil, supra,
Independent Drug Store Owners of Santa Clara County, su-
pra, and The Gas Service Co, supra, facts were present to
establish a substantial continuity of representation. How-
ever, in Gulf Oil, Independent Drug Store Owners of Santa
Clara County, and The Gas Service Co., there was no find-
ing of continuity of representation. In those cases there was
a complete loss of identity of the certified union and the
substitution of a new and different union as the representa-
tive of the employees. In Gulf Oil and The Gas Service Co.,
the Board found that an amendment of the certification
would not be warranted In Independent Drug Store Owners
of Santa Clara County the Board found that it was not a
violation of Section 8(a)(5) of the Act for the employer to
refuse to bargain with the "successor" union.
I find that the instant case is controlled by the law set
forth in those three cases . In the instant case , as in those
cases, the attempted affiliation of QSU with the Teamsters
would have resulted in the complete loss of identity of the
certified union and the substitution of a new and different
union with its own officers, and thus a complete change in
the representative. No officers of QSU were to have any
role after the Teamsters took over. The shop stewards were
to be selected through the Teamsters. All dues were to go
to the Teamsters general fund. QSU was to become de-
funct. The Teamsters had agreed to abide by QSU's con-
tract with Respondent, but I do not believe that in itself is
sufficient to avoid the conclusion that the Teamsters were
simply being substituted for QSU. Respondent argues in its
brief that QSU was attempting to turn over its certification
bargaining rights to another union and go out of business.
I believe that the facts set forth above establish that that
was the case. I shall therefore recommend that the com-
plaint be dismissed in its entirety.
CONCLUSIONS OF LAW
I Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2 The Teamsters is a labor organization within the
meaning of Section 2(5) of the Act, and QSU was a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent has not violated the Act as alleged in the
complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
* U S GOVERNMENT PRINTING OFFICE 1977-241-596 / 3