RSR Corp.Download PDFNational Labor Relations Board - Board DecisionsDec 3, 1976226 N.L.R.B. 1398 (N.L.R.B. 1976) Copy Citation 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 Copy with citationCopy as parenthetical citation