William B. Tanner Co.

National Labor Relations Board - Board Decisions

Jul 26, 1974

212 N.L.R.B. 566 (N.L.R.B. 1974)

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William B. Tanner Company (Formerly Pepper & Tan-
ner, Inc.) and Radio and Television Engineers, Local
Union 1275, International Brotherhood of Electrical
Workers , AFL-CIO. Cases 26-CA-3822 and 26-
CA-4037
July 26, 1974
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On May 25, 1972, the National Labor Relations
Board issued a Decision and Order I in the above-
entitled proceeding in which it found that the Respon-
dent violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act, as amended, and ordered
the Respondent to take certain affirmative action de-
signed to remedy the unfair labor practices, including
an order to bargain with Local Union 1275. Thereaf-
ter, on March 1, 1973, the United States Court of
Appeals for the Sixth Circuit handed down its opin-
ion 2 enforcing in major part the Board's Order of
May 25, 1972. The court of appeals, however, had
some question as to the enforcement of the Board's
bargaining order in view of the fact that just prior to
the original hearing in this proceeding Local 1275 and
Local 474 of the International Brotherhood of Electri-
cal Workers had merged into a single Local Union
474 with Local Union 1275 thereafter being dissolved.
The court of appeals accordingly remanded the case
to the Board to determine whether Local 1275 was
still in existence and, if not, whether there was a suc-
cessor or merged union which is the duly certified and
authorized collective-bargaining representative of the
majority of the employees of the appropriate unit.
In accord with the court's opinion, the Board, by
order dated May 21, 1973, reopened the record herein
and remanded the case for hearing before an Admin-
istrative Law Judge. Pursuant to the remand, a hear-
ing was held before Administrative Law Judge
George L. Powell on August 28 and 29, 1973, at Mem-
phis, Tennessee. On October 31, 1973, the Adminis-
trative Law Judge issued the attached Supplemental
Decision. Thereafter, the Respondent filed exceptions
with a supporting brief, and Local Union 474 filed an
answering brief.
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-
197 NLRB 109
z 474 F 2d 1256
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his conclusion that Local Union 474, IBEW, is
the legal successor to Radio and Television Engineers,
Local Union 1275, IBEW, and accordingly is the au-
thorized bargaining representative of the previously
certified unit of employees of William B. Tanner
Company, successor to Pepper & Tanner, Inc.
In reaching our conclusion herein, we note that the
record clearly establishes that the proceedings sur-
rounding the merger vote fully complied with the
Board's established requirements as to notice of the
pending vote on the merger and the opportunity on
the part of the members to cast a secret ballot on the
issue.' We also note that, at the duly noted meeting at
which the vote was taken, the vote was unanimous in
favor of Local 1275 merging into Local Union 474.
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 semiau-
tonomous 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 circumstances,
there can be no dispute that Local 474 is both factual-
ly and legally the successor to Local 1275 and, there-
fore, entitled to all the bargaining rights which this
Board previously found were the legal rights of Local
1275.4
Our dissenting colleague would not find a merger
based on the fact that only one of the Respondent's
unit employees attended the merger vote meeting of
July 8, 1971.5 In support of his position he cites several
cases in which the Board has refused to certify a union
because only one employee voted in the representa-
tion election. In addition, he cites Newspapers, Inc.,
Publishers of The Austin American and The Austin
Statesman, 210 NLRB 8 (1974), and M. A. Norden
Company, Inc., 159 NLRB 1730 (1966), for the propo-
sition that even where there is proper notice of the
3 North Electric Company, 165 NLRB 942 (1967)
4 See In 1, supra
5 While it is true that only I of Respondent's employees attended the
meeting at which the merger vote was taken , the record shows that all of the
unit employees were members of the Union (six out of seven employees)
attended the June 10 meeting at which the merger was discussed and their
strike vote was ratified in addition, the record in the original case shows that
as of late June 1971, just 2 weeks before the merger vote, the employees were
being actively represented by the Union in an attempt to get two of the
employees reinstated following their being illegally discharged by Respon-
dent , and that union representatives and the employees were in constant
contact up to and including a meeting on June 26 , 1971, when it was decided
that the men would go back to work the following Monday In addition, the
record shows that at the original hearing herein all six of the Respondent's
employees who were in the Union, including Cotton and Wulff who were no
longer employed by Respondent at the time of the hearing, appeared and
testified on behalf of the General Counsel and in support of the Union
212 NLRB No. 72
WILLIAM B. TANNER COMPANY 567
pending vote on a merger and opportunity on the part
of the members to vote in a secret ballot election, the
Board still requires a showing that a majority of each
individual bargaining unit in a consolidated local
union must approve the merger. We do not agree.
First, in Norden, the record showed that the local
union sought to be substituted had never appeared on
the election ballot and that the employees in the unit
had never had an opportunity to express their desires
as to whether they wanted to be represented by the
local union rather than the certified international
union. In Newspapers, Inc., the Board approved a
merger or change of affiliation pointing out that all of
the safeguards leading up to the vote were present. The
Board then also noted that an overwhelming majority
of the unit members voted in favor of the merger.
While the latter factor certainly is a factor to be con-
sidered when the record evidence clearly establishes
that fact, it is not, as our dissenting colleague would
find, a condition precedent for the approval of a
merger following a properly scheduled vote.
In Montgomery Ward & Co., Incorporated, 188
NLRB 551 (1971), the Board had before it this very
precise set of facts. There, Local 886, with approxi-
mately 500 members, voted to merge into a larger
sister local with over 11,000 members. At the Local
886 meeting at which the merger vote was taken, ap-
proximately 114 members were in attendance and the
merger vote was approved overwhelmingly. There
was no showing, and no way to determine how many,
if any, of the Montgomery Ward employees attended
that meeting or voted for or against the merger. Not-
withstanding this unknown factor, the Board ap-
proved the merger. Thus, it is clear to us that the
Board does not consider a failure to attend and vote
at a meeting of any consequence as long as there has
been proper notice and an appropriate opportunity to
vote on the issue.
We are also not unmindful of the court's concern
for the apparent position taken by several of
Respondent's employees in its employ on January 28,
1972, that indicates that the then current employees
did not favor a merger of Local 1275 into Local 474.
In our opinion, this alleged opposition to a merger
that had already taken place should not be dispositive
of the issue of a bargaining order at this time. The
court's remand was predicated in part on an apparent
dissatisfaction with Local 474 by Respondent's then
current employees. Our dissenting colleague appar-
ently would accept the letter of January 28, 1972,
referred to by the court of appeals in its opinion as
evidence of this dissatisfaction. As to this letter, we
note that in our original Decision we found that the
Respondent had engaged in acts of intimidation di-
rected to forcing its employees to write a letter dispar-
aging to the Union and that this conduct violated
Section 8(a)(1) of the Act. While we make no specific
findings with regard to the employees' January 28,
1972, letter, we note the complete absence of any
testimony by Respondent's employees with regard to
the matters set forth therein. Therefore, we can only
view the letter with a substantial degree of suspicion,
particularly since the Respondent did not present any
evidence on this issue despite the fact that the court
of appeals specifically granted Respondent an oppor-
tunity to do so. In addition, if in fact there was a
defection by the employees away from the Union,
Respondent cannot now rely on that fact to justify its
refusal to bargain.'
Respondent's unfair labor practices span a period
of more than I year. The spirit and tenor of a settle-
ment agreement entered into on January 29, 1971, was
consistently breached. Respondent threatened and
coerced its employees, engaged in individual bargain-
ing in an attempt to destroy the Union's representa-
tive status, delayed and frustrated meaningful
bargaining for a new contract, forced its employees
into an unfair labor practice strike, and discharged
employees because they engaged in legitimate union
activities. It is clear that if there was a loss of majority,
this loss resulted from Respondent's unlawful con-
duct. To deny a bargaining order at this time would
be to reward the Respondent for its extensive and
pervasive unfair labor practices, unfair labor practices
which would, in any other circumstances, clearly sup-
port a Gissel7 bargaining order.
As to our colleague's concern with regard to why
the matter of the merger was not presented at the
original hearing herein we note that although the
merger vote was taken July 80 1971, and the original
4-day hearing herein was concluded on October 1,
1971, the final ratification of the merger by the Inter-
national and the transferring of 1275's members into
474 was not finalized until well after the close of the
hearing. In these circumstances, and inasmuch as Lo-
cal 474 is the duly qualified successor to Local 1275,
and as such is entitled to all the rights, privileges, and
benefits of, and to stand in the place of, Local 1275,
we shall amend our Order of May 25, 1972.1
6 Franks Bros. Company v. N L.R B, 321 U S. 702 (1944); Daisy's Originals,
Inc, of Miami, 187 NLRB 251, 255 (1970)
7 N L R.B v. Gissel Packing Co, Inc,. 395 U S 575, 613-614 (1969).
We agree with the court of appeals that par. 1(f) and (g) of our May 25,
1972, Order are now moot because of the dissolution of Local Union 1275.
However, in view of Respondent's conduct , including its refusal to bargain
with Local Union 1275 at a time when that Union was the collective-bargain-
ing representative of Respondent's employees, we are of the opinion that the
appropriate counterpart paragraphs in the Notice to Employees are neces-
sary insofar as they relate to Local Union 474 as the successor to Local Union
1275.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, and in accord with the
court of appeals' remand of this case, the National
Labor Relations Board hereby orders that its Order of
May 25, 1972, shall be modified as follows:
1. Delete paragraphs 2(a) and 2(b) and substitute
the following:
"(a) Upon request, bargain collectively with Local
474, the duly qualified successor to Local 1275,
I.B.E.W., as the exclusive bargaining agent of the em-
ployees in the appropriate unit and, if agreement is
reached, embody the said agreement in a signed writ-
ten contract.
"(b) Upon request, bargain collectively with Local
474, I.B.E.W., the duly qualified successor to Local
1275, I.B.E.W., with reasonable frequency and
through a representative vested with authority to
make reasonably definitive decisions and responses
regarding the subject matters of collective bargain-
ing."
2. Substitute the attached notice for that in 197
NLRB 109 (1972).
MEMBER KENNEDY, dissenting:
In an apparent attempt to prevent the Employer
from benefiting from its unfair labor practices, my
colleagues would force upon the unit employees a
bargaining representative which they not only have
not selected but, indeed, have' specifically rejected. In
my opinion, this violates the most elementary princi-
ple that the purpose of the Act is the protection of the
rights of employees to organize and select their own
bargaining representatives.
The majority herein, relying on North Electric Com-
pany,9 concluded that,"the proceedings surrounding
the merger vote fully complied with the Board's estab-
lished requirements as to notice of the pending vote
on the merger and the opportunity on the part of the
members to cast a secret ballot on the issue ." Not only
are the facts in North Electric distinguishable from
those in the case before us, however, but those very
distinctions clearly require an opposite result here.
There, the majority of the unit employees, the only
employees in the union, voted to affiliate with an
international . Moreover, as the change was one in
name only, the officers and administration of con-
tracts remaining the same in the new local, the
strength of the former union, and therefore of the unit,
was undiluted by the affiliation.
Hence, in North Electric the Board's recognition of
the "democratic principle of majority rule after due
9 165 NLRB 942 (1967)
notice to all" was couched in terms of the unit, the
determinative factor here overlooked by my col-
leagues.10 For in the instant case the majority of unit
employees has not selected Local 474; rather, that
majority has positively rejected such representation.
The result of the majority's decision herein, therefore,
is to force unit employees to be represented in collec-
tive bargaining by a union they reject-a union
which, for all its talk about the preservation of the
former Local 1275 as the new "Unit 7" with the same
officers and with "almost autonomy, can now, by
virtue of its own members' maintaining a majority of
the newly amalgamated union, control that "Unit 7,"
and which apparently has already usurped a portion
of the jurisdiction of the former Local 1275.
I cannot join my colleagues in issuing a bargaining
order, the consequences of which are contrary to the
purposes of the Act. My colleagues ignore the fact
that there is no showing that a majority of those unit
employees have consented to the merger at any time,"
or have, in fact, even been offered the opportunity as
a unit to pass upon the merger. In the absence of any
such affirmative evidence to justify the merger, I ac-
cept the employees' expression of opposition to it. I
cannot understand my colleagues' failure to require a
showing of consent by the employees in the unit be-
fore authorizing the transfer of the unit's representa-
tion.12
10 In F W Woolworth Co Store No. 1370, 194 NLRB 1208 (1972), the
Board noted that among the 30 votes for and 2 votes against the merger were
10 or 11 ballots from among the 13 unit employees Clearly , the Board found
the obvious conclusion that a majority of unit employees favored the merger
to be an important consideration in its decision to amend the certification
therein And in Gene Graham Ford Inc., 188 NLRB 515, 518 (1971), the Board
affirmed the Trial Examiner 's finding that the petitioning union was not a
successor to the certified union because "there is no evidence that the wishes
of the [unit ] employees as to the affiliation were separately determined."
(Emphasis supplied ) Again, in approving amendment of certification in
Equipment Manufacturing, Inc, 174 NLRB 419 at 420 (1969), the Board relied
on the fact that "employees constituting not only a majority of union mem-
bers but also a majority of employees in the established bargaining unit have
voted for affiliation with the [union] " (Emphasis supplied) In
granting such amendment in Safeway Steel Scaffolds Company of Georgia, 173
NLRB 311 (1968), the Board once again noted that the unit employees, in
a separate election , had voted unanimously to transfer certification and
bargaining rights
11 The Administrative Law Judge found that only one of Respondent's
seven unit employees was present at this meeting where the vote was taken;
hence, the vote clearly was not representative of the desires of the unit
employees It is well settled that the Board will not certify a union when only
one employee voted, Kit Manufacturing Company, 198 NLRB No. 131 (1972);
The Firestone Tire & Rubber Company, 57 NLRB 868 (1944); Bernard Gold
and Jack Wasserman, Co-partners d/b/a Gold & Baker, 55 NLRB 591 (1944),
54 NLRB 869 (1944) A fortiori, the Board ought not to amend a certification
on the basis of one man's vote.
12 My colleagues profess that support for the merger from the unit employ-
ees is unnecessary . They recognize the weakness of their position , for they
argue that the employees were in "constant contact" with "the Union " The
employees were in contact with Local 1275, the certified union, and not Local
474. If reference to Local 474 was withheld from the Administrative Law
Judge and this Board , what basis is there for surmising that the employees
were informed9
Reliance upon Montgomery Ward & Co, Inc., 188 NLRB 551 (1971), is
misplaced . There the Board concluded that the submission of the question
to an employee vote was unnecessary because there had been no change in
WILLIAM B . TANNER COMPANY 569
Indeed, in Newspapers, Inc.," my colleagues in the
majority herein noted that the Board's primary con-
cern is "that the unit employees have had an opportu-
nity to pass upon the transfer of representation." 14 In
M. A. Norden Company, Inc.,15 cited in Newspapers,
Inc., the Board denied the petition "without prejudice
to further consideration upon a showing of consent by
the employees in the unit." (Emphasis supplied.)
Clearly, as this case and the other cases cited by my
colleagues therein contain no assertion that the votes
of the unit employees could possibly change the out-
come of any overall vote, the obvious inference, and
in Norden the specific determination, is that a majori-
ty of the unit employees must themselves separate
from any determination by an overall vote of union
members-consent to the merger. I am, therefore, un-
able to reconcile these observations of my colleagues
in Newspapers, Inc., with the result they reach herein.
Inasmuch as the merger of Local 1275 with Local
474 did not receive votes of a majority of the employ-
ees in the unit for which authorization of representa-
tion is sought, I would find that Local 474 is not the
authorized bargaining representative of the previous-
ly certified unit of employees.16 I would rescind the
bargaining order.
the essential identity of the bargaining representative.
In the light of the long history of jurisdictional disputes , it cannot be said
that Locals 1275 and 474 are one and the same representative.
13 210 NLRB 8 (1974).
14 Id at fn. 13 (emphasis supplied)
" 159 NLRB 1730 (1966)
16 I am mystified as to why evidence with reference to the alleged merger
was not developed in the original heanng in this matter . It is now clear that
the alleged merger transpired prior to the hearing before the Administrative
Law Judge in this case. I am now convinced that fn. I of our original Decision
and Order herein is erroneous
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
'WE WILL, upon request, bargain collectively
with Local Union 474, International Brother-
hood of Electrical Workers, AFL-CIO, the duly
qualified successor to Local Union 1275, Inter-
national Brotherhood of Electrical Workers,
AFL-CIO, and if an agreement is reached we
will embody it in a signed written contract. The
appropriate unit is:
All recording engineers, technicians, mixers,
tape editors and duplicators at its Memphis,
Tennessee, location, excluding all other em-
ployees, watchmen, guards and supervisors as
defined in the Act.
WE WILL NOT interrogate our employees regard-
ing their union sympathies and feelings.
WE WILL NOT offer inducements or indicate de-
triments to benefits presently enjoyed by our em-
ployees for the purpose of inducing , or
establishing direct dealings or arrangements with
our employees to the exclusion of the Union, the
collective-bargaining agent.
WE WILL meet with and bargain with the said
Union with reasonable frequency and through a
representative vested with authority to make rea-
sonably definitive decisions regarding the subject
matters of collective bargaining.
WE WILL NOT solicit employees to sign state-
ments or letters with regard to conduct of the
Union in a context of illegal dealings with the
employees in derogation of the Union's rights as
collective-bargaining agent of our employees.
WE WILL NOT question or solicit employees to
induce or bring about direct dealings between
employees and the Company to the exclusion of
the Union, the certified bargaining agent.
WE WILL NOT discourage union or concerted
activity protected by law by discriminating
against any employees because they have exer-
cised their rights as guaranteed by law.
WE WILL NOT refuse to furnish the Union, upon
request, with information concerning our
claimed projected cost factors relating to wage
increases proposed by the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations, to join or assist Radio
and Television Engineers, Local Union 474, In-
ternational Brotherhood of Electrical Workers,
AFL-CIO, or any other labor organization, to
bargain collectively through representatives of
their own choosing, or to engage in other concert-
ed activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to
refrain from any or all such activities, except to
the extent authorized in Section 8(a)(3) of the
Act.
WE WILL pay to James L. Cotton and Stan Da-
cus any wages they lost when they were illegally
discharged from June 14 to June 28, 1971, less
any intermediate earnings they may have had
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the aforesaid period, and with interest at
6 percent.
WILLIAM B. TANNER COM-
PANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Clifford Davis Federal Building,
Room 746, 167 North Main Street, Memphis, Tennes-
see 38103, Telephone 901-534-3161.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL, Administrative Law Judge: The issues
in this case are to resolve the following questions:
1. Is Radio and Television Engineers, Local Union
1275, International Brotherhood of Electrical Workers,
AFL-CIO, herein called Local Union 1275, still in
existence?
2. If not, is there a successor or merged Union which
is the duly certified and authorized collective-bargain-
ing representative of the majority of the employees of
the appropriate unit?
For the reasons hereinafter set forth , I find : 1. Local Union
1275 is not in existence ; 2. Local Union 474, herein called
Local Union 474, of International Brotherhood of Electrical
Workers, AFL-CIO, herein called IBEW, is the merged
successor to Local Union 1275 and is the duly certified and
authorized collective-bargaining representative of the em-
ployees of the appropriate unit.
With the General Counsel ,- the Respondent 1 and the al-
leged successor merged union to Local Union 1275 being
represented by counsel, this case was tried before me in
Memphis, Tennessee , on August 28 and 29 , 1973, pursuant
to a notice of hearing issued on June 22, 1973, by the Re-
gional Director for Region 26 of the Board which in turn
Counsel for Respondent admitted on the record herein that the corporate
name of Respondent is now William B. Tanner Company Respondent's
counsel further stated that this change was done by an amendment to the
corporate charter and that it is same legal entity with the same stockholders.
General Counsel's unopposed motion to correct the caption is hereby grant-
ed.
was based upon an Order Reopening Record and Remand-
ing Proceeding to Region Director For Hearing issued on
May 21, 1973, by the Associate Executive Secretary of the
Board. The parties were given full opportunity to present
evidence and examine and cross-examine witnesses. All par-
ties timely filed briefs on or before October 5, 1973, after
receiving a 14-day extension of time to do so.
Upon the entire record including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed, I make the following:
FINDINGS AND CONCLUSIONS
I THE FACTS
A. Background
On May 25, 1972, the National Labor Relations Board,
herein called the Board, issued a Decision and Order in this
proceeding, finding that the Respondent violated Section
8(a)(1), (3), and (5) of the Act. (197 NLRB 109)
Thereafter, on March 1, 1973, the United States Court of
Appeals for the Sixth Circuit handed down its opinion hold-
ing that substantial evidence on the record as a whole sup-
ports the findings of the Board that Respondent violated
Section 8(a)(1), (3), and (5) of the Act in the particulars set
forth in the Decision of the Board. However, pursuant to
Respondent's assertion that Local Union 1275 is no longer
in existence, but has merged with another local union which
does not represent the majority of the employees in the
appropriate bargaining unit and has never been certified by
the Board as bargaining representative, the court refused to
enforce the bargaining order against a nonexistent union or
one that had not been adjudged by the Board to be a succes-
sor or merged union to Local 1275. Accordingly, the court
remanded the case to the Board with directions that evi-
dence be heard and a determination made on the following
questions:
1. Is Radio and Television Engineers, Local Union
1275, International Brotherhood of Electrical Workers,
AFL-CIO still in existence?
2. If not, is there a successor or merged Union which
is the duly certified and authorized collective bargain-
ing representative of the majority of the employees of
the appropriate unit? If necessary, the Board is directed
to conduct a Board-supervised election to determine
this issue.
This action of the court was taken on the "timely motion"
filed by Respondent for leave to adduce additional evidence
before the Board pursuant to Section 10(c) of the Act. (474
F.2d 1256)
B. Is Local Union 1275 Still in Existence?
Lawrence J. Cohen, attorney for Local Union 474, pur-
porting to be the successor to Charging Party, Local Union
1275, stated that the IBEW was willing to stipulate that
Local Union 1275 no longer existed and that it ceased to
WILLIAM B. TANNER COMPANY 571
exist as of September 1, 1971. James E. Irwin, attorney for
Respondent, would not stipulate nor admit that Local
Union 1275 was no longer in existence . Counsel for the
General Counsel stated that they would join in the stipula-
tion that Local Union 1275 no longer existed. The testimony
of Albert T. Byars, Sr., business manager and financial
secretary of Local 474,_ showed conclusively that Local
Union 1275 was merged into Local Union 474 and, accord-
ingly, is no longer in existence. Crediting the testimony of
Byars, Sr. and the admission by Cohen and the General
Counsel, and having no additional evidence from any of the
parties including Respondent, I find that Local Union 1275
is no longer in existence.
C. Is there a Successor or Merged Union which is a Duly
Certified and Authorized Collective- Bargaining Representa-
tive of the Majority of the Employees of the Appropriate
Unit?
Pursuant to a Board-conducted election, Local Union
1275, was certified on April 24, 1967, as the collective-bar-
gaining representative of a unit of the Respondent's em-
ployees consisting of all recording engineers, technicians,
mixers, tape editors and duplicators at its Memphis, Ten-
nessee, location. Excluded from the unit were all other em-
ployees of the Respondent, watchmen, guards and
supervisors as defined in the Act. Pepper & Tanner, Inc.,
197 NLRB 109. At the time of the original unfair labor
practices herein the unit consisted of six employees, all of
whom were members of Local Union 1275. The Board in its
decision, found that the membership of Local Union 1275
is not confined to employees of Respondent but embraces
employees of other employers in the area, such as sound
shops and related businesses. Local Union 1275 was an
amalgamated union with in excess of 100 members who
were employed by various employers such as RCA Service
Company, WHBQ Radio and Television, Hirsch Electron-
ics, Audio Communication Consultants, WDIA Radio, and
various employers who belong to Mid-South Communica-
tion Contractors Association.
The members of Local Union 1275 were radio and televi-
sion installation servicemen, sound and public address sys-
tem installation servicemen, intersystem installation and
servicemen, home appliance installation and servicemen,
radio and television broadcast technicians and engineers.
The jurisdiction for these classifications is set out in the
IBEW constitution, article XXVIII, section 6(a), page 112
of General Counsel's Exhibit 7.
Local Union 474 is an amalgamated local consisting of
various groups of employees with various employers. The
Union has contracts with approximately 26 employers who
are members of the National Electric Contractors Associa-
tion; 17 independent electrical contractors; and 8 employ-
ers who are members of the Memphis Sign Contractors
Association. The classifications of workers in the Local
Union 474 prior to the alleged merger in question included
inside wiremen, outside linemen, and sign workers. Local
Union 474's jurisdiction is set forth in the IBEW constitu-
tion, article XXVIII, sections 4-5, pages 109-112 of General
Counsel's Exhibit 7. Local Union 474 had approximately
850 members prior to the alleged merger with Local Union
1275.
Before 1966, Local Union 474 had always made installa-
tions on sound and communications work. On July 14,
1966, there was an understanding that Local Union 1275
technicians were to perform this work. Shortly before 1966
there arose jurisdictional problems between Local Union
1275 technicians and Local Union 474 electricians who
were on the same job installing different systems. There was
resentment from Local Union 474 electricians because the
work that Local Union, 1275 technicians were performing
had previously been done by Local Union 474 electricians.
Local Union 474's business manager, Albert Byars, Sr. cred-
ibly testified that they still have some-old. tiiriers who resent
the fact that the technicians from Local Union 1275 are
making installations that were normally done by Local
Union 474 electricians. After Local Union 1275 had signed
its contract with the Mid-South Sound and Communication
Contractors Association, their amount of work on the same
jobs with Local Union 474 electricians increased and the
problem grew steadily. The executive boards of the two
IBEW Local Unions, i.e., Local Union 474 and Local
Union 1275, met as far back as 1968 to discuss merger.
Local Union 1275 actually approved a merger on March 3,
1968, and again on June 15, 1969. Byars stated that the
reason the mergers did not proceed further at this time was
because Local Union 474 members did not want it. Mean-
while, Local Union 1275 members continued to receive
more jobs through the Mid-South Communications and
Contractors Association and the dissention and turmoil in-
creased between the two local unions. Byars testified that
when he came into office in 1970, the conflict had almost
reached the boiling point. Byars saw the problem and con-
vinced the officers of Local Union 474 that, in agreement
with the officers of Local Union 1275, the two unions
should merge. Byars stated that Local Union 474 was doing
the work of Local Union 1275 officers in policing their
jurisdiction because Local Union 1275 did not have full-
time paid officers and it would benefit both locals if they
merged and possibly alleviate the conflict between the two
groups. Accordingly, the executive boards from the two
local unions met on June 21, 1971, and agreed to recom-
mend to their local union that Local Union 1275 merge into
Local Union 474.
The first official action in the record regarding the merger
with Local Union 474 by Local Union 1275 is reflected in
the minutes of the June 10, 1971, regular meeting, as set out
in General Counsel's Exhibit 8(a). These minutes were tak-
en by George M. Fitzgerald, the recording secretary of Lo-
cal Union 1275 at that time. Fitzgerald credibly testified
that at this June 10 meeting, Taylor Blair discussed,with the
members the dues and assessments regarding the merger.
Local Union 1275 had a joint executive board meeting with
Local Union 474 on June 21, 1971, and it was decided that
both executive boards would recommend the merger to
their local union memberships. Following the meeting with
Local Union 474, the executive board of Local Union 1275
met and agreed to call a special meeting of the membership
on Thursday, June 24, at 8 p.m. for the purpose of discuss-
ing the merger (see G.C. Exh. 8(c) for the minutes of the
meeting).
Unit employee Jim Cotton of Respondent specifically
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recalled the merger talk in the late spring and early summer
of 1971. The Union was attempting to get a contract signed
with Respondent, but had very little success. He recalled
that of the six Respondent employees in the unit the four
who were union members at the time attended the June 10,
1971, meeting because that was when the strike vote was
taken. He also recalled that there was discussion at this
meeting regarding the merger with Local Union 474.
Cotton was very clear in his testimony that all of the
employee members of Respondent were informed of the
proposed merger due to their close contact during the strike,
walking picket lines, and having meetings with Taylor Blair.
The minutes of the meeting on June 24, 1971, reflect that
the executive board met and passed a motion that Local
Union 1275 merge with Local Union 474. The minutes also
reflect that after the executive board meeting on June 24,
1971, a special meeting was held where Vice President Par-
ham explained the proposed 'merger to the membership and
International Representative Taylor Blair gave the details
of the dues structure in Local Unions 474 and 1275. There
were two employees of Respondent present at the special
meeting. The roll call of the special meeting indicated that
Stan Dacus and Sam McHugh were both present at the
meeting. McHugh, now Respondent's supervisor, was not
called to testify.
Ernest L. Babb, a member of Local Union 1275 for 20
years, was president from 1956 through 1968 in addition to
being financial secretary a number of terms. Babb was also
elected president in 1970 and served in that capacity until
August 16, 1971, at which time he resigned due to health.
Babb suffered a heart attack on March 4, 1971, and was laid
off from work until the first week in June 1971. The officers
of the Union kept Babb informed about the merger talk
while he was off from work and, in any event, Babb had
been aware of the prior merger talk and the two or three
meetings with the combined executive boards of the two
local unions back in 1967 and 1968.
In June 1971, Babb was informed by officers and mem-
bers of the executive board that a meeting had been held
and that the executive board had recommended that Local
Union 1275 merge into Local Union 474. Babb was in-
formed by the vice president who was filling in for him at
the time that the vice president would be on vacation and
would not be able to preside at a July meeting so it would
be necessary for Babb to send notices to-the members that
a vote would be taken on the merger with Local Union 474.
Accordingly, Babb purchased approximately 100 United
States postal cards and mailed approximately 94 or 95 of
these cards to the members whose addresses were current on
a list that was submitted to Babb by the financial secretary.
Babb's recollection of the message on the card was, "At the
meeting of Local Union 1275, July 8, 1971, a vote will be
taken on the merger with Local Union 474, meeting to be
held at Admiral Benbow Motor Inn." Babb presided over
this regular meeting of Local Union 1275 held on July 8,
1971. The minutes of this meeting reflect that a motion was
made by member Brandon that Local Union 1275 merge
with Local Union 474. The motion was seconded by mem-
ber Pannier and according to Babb's uncontradicted testi-
mony, there were questions and discussions concerning the
merger. Babb appointed member Ciamitaro as the judge
and two tellers to assist Ciamitaro. Ciamitaro was givenra
roster of the members and as the members received their
ballots they were checked off the roster. The members
marked their ballots, folded, them and gave them back to the
judge and the tellers. The votes were counted and the results
were announced. The vote was unanimous to merge. Sam
McHugh was the only Respondent unit employee present at
this meeting where the vote was taken.
Business Manager Byars called International Representa-
tive Blair 2 days later on July 10, 1971, and informed him
that Local Union 474 had voted for the merger. Blair in-
formed Byars that Local Union 1275 had also agreed to the
merger . Byars, not having previously been involved in any
merger, asked Blair how the transfer would be effected.
Blair informed Byars that it would be done by membership
transfer and that he would compile and process them.
Upon becoming aware that the two locals had voted for
the merger, Local Union 474 began steps to amend its by-
laws to include the former unit, of Local Union 1275. Local
Union 474 proposed a bylaw change and it passed on first
and second readings at their biweekly meetings in August
1971.
According to the minutes of the meeting, Local Union
474 passed the proposed bylaws change at the third and
final reading at their meeting on September 10, 1971.
The bylaws of Local Union 474, as amended, are set forth
in General Counsel's Exhibit 5. Respondent's Exhibit 1 is a
copy' of the master bylaws approved by the International
Union on December 8, 1971, and received by Local Union
474 on December 17, 1971. The unit of 474.7 which is set
forth in General Counsel's Exhibit 5, article XVI, section 11,
page 34, was added to Local Union 474's unit system to
include the former members of Local Union 1275. The by-
law change received from the International Union by Local
Union 474 on December 17, 1971, conforms to the Interna-
tional constitutional jurisdictional requirements.
Albert Byars received, on approximately September 23,
1971, a letter from International Vice President W. B. Petty
informing him that the international president had ap-
proved the amalgamating of Local Union' 1275 into Local
Union 474 effective September 1, 1971. Attached to the
letter from Petty was a letter from the International presi-
dent, Charles H. Pillard, to International Vice President
Petty informing Petty of the action taken. (See G.C. Exh.
6(a) and 6(b).)
The amalgamation of Local Union 1275 into Local
Union 474 was effective in September 1971 but Local Union
474 did not begin collecting dues from the members of old
Local Union 1275 until October 1971. Local Union 474 did
an audit of the books of Local 1275 before they assumed all
assets and liabilities on the books and records of Local
Union 1275. After receiving offical word from the Interna-
tional of the approval of the merger, the seal and charter of
Local Union 1275 were sent to the International vice
president's office pursuant to the letter from Petty dated
September 22, 1971.
Approximately 160 members of Local Union 1275 trans-
ferred into Local Union 474, unit 7. There was no change
in the classification of employees represented from Local
Union 1275 to Local Union 474.7. The group transfer list
shows that the classification and card number of all mem-
WILLIAM B. TANNER COMPANY 573
bers of Local Union 1275 were retained when they transfer
red into Local Union 474. There are currently approximate-
ly 165 members in unit 7 of Local 474. Local Union 474 has
continued to represent the former members of Local Union
1275 by pursuing grievances and consummating contracts
for them. Local 474, unit 7, has continued to service and
negotiate new contracts with employer and employers' asso-
ciations previously handled by Local Union 1275. In addi-
tion, Local Union 474.7 had added two new contracts that
Local Union 1275 did not have, namely Dinks TV and
Radio and Starr Electronics.
Ernest Babb, who had been a member of Local Union
1275 for 20 years, stated that his last receipt for Local Union
1275 was dated August 26, 1971, and his first dues receipt
from Local Union 474 was dated October 18, 1971. Babb
stated that he was currently a member of Local Union 474
and that he is represented by Local Union 474 with his
employer, RCA Service Company. Local Union 1275 had
previously represented Babb with his employer. Babb is
currently in unit 7 of Local Union 474 and unit 7 has its own
monthly meetings in addition to the biweekly meetings for
Local Union 474. According to article XVI, pages 30-34, of
Local Union 474s bylaws, unit 7 has its own subofficers and
they are elected by the members of unit 7 and all members
are eligible to be officers.
On October 14, 1971, unit 7 of Local 474 held its first
meeting. It was decided that new officers would be elected
for the unit and nominations were made for office.
On November 11, 1971, unit 7 of Local 474 held its sec-
ond meeting and it was announced that the elections were
postponed until the next month.
On December 21, 1971, unit 7 of Local Union 474 held
its monthly meeting and announced the results of the elec-
tion of unit officers.
Meanwhile,.on October 12,1971, International Represen-
tative Taylor Blair had filed a petition with Region 26, (Case
26-AC-21, Resp. Exh. 4) seeking to amend Local Union
1275 certificate of representative for the employees of Re-
spondent. A hearing was scheduled for November 9, 1971.
The hearing opened but was indefinitely postponed. At the
hearing, Blair undertook to testify concerning the merger.
Petitioner submitted a withdrawal request which was ap-
proved without prejudice by the Regional Director for Re-
gion 26 on November 9, 1971. Blair had appeared at the AC
hearing without counsel.
In December 1971, Blair called Business Manager Byars
and asked him what the possibilities were of conducting yet
another election strictly to gather evidence to submit to the
Labor Board to assist in the litigation involving Respon-
dent. Byars, informed Blair that they could do this and could
send out special notices to all members of unit 7 which was
the former Local Union 1275 membership and unit I which
was the inside wiremen unit of Local 474. It was Blair's
opinion that the outcome of the vote would not affect the
merger already in effect and that this was merely to gather
evidence for the National Labor Relations Board. Blair's
opinion that the extra vote would not affect the merger that
already had been completed was based upon the fact that
the International president had the power to merge local
unions as set forth in article XV, section 3 of the IBEW
constitution. Local Union 474 sent out special notices to
members of unit 7 and unit I that a special election would
be conducted on January 31, 1972. The election was con-
ducted in each unit with unit 1 rejecting the merger and unit
7 approving the merger. However, no action was taken re-
garding the consummated merger following this vote and
the former members of Local Union 1275 are currently
represented by Local Union 474 in unit 7.
II DISCUSSION AND FINDINGS
The Sixth Circuit Court of Appeals, in its remand to the
Board, stated that it was:
... unwilling to enforce a bargaining order requiring
the company to bargain with the union which the re-
cord indicates is no longer in existence. Neither are we
willing to require the company to bargain with a suc-
cessor or merged union when there has been no adjudi-
cation by the Board, supported by , substantial
evidence, that the successor or merged union is the
authorized bargaining representative of the employees
in the appropriate unit. See Union Carbide & Carbon
Corp. v. N.LRB., 244 F.2d 672 (6th Cir. 1957); Dickey
v. N.L.R.B., 217 F.2d 652 (6th Cir. 1954).
It is the General Counsel's position that the instant case
is in accord with the Union Carbide & Carbon Corp. v.
N.LR.B., supra, and I find merit in that position. In the
instant case there were no changes in the membership and
the membership elected its own local officers and there was
no change in the day-to-day relationship with the Respon-
dent. Although there were two International unions in-
volved in the Union Carbide & Carbon Corp. case, there was
only one International union involved in the instant case
and merely an amalgamation of one local union into anoth-
er union of the same International union. It is clear from the
record in the instant case that the former members of Local
Union 1275 kept their autonomy in that they formed unit
7 of Local 474 which consisted of the same job classifica-
tions and members who comprised former Local Union,
1275. At the time of the merger, unit 7 consisted exclusively
of the former members of Local Union 1275 and it was not
until later that the employees of two additional employers
were brought into unit 7. This was merely an expansion and
comprised employees who were in the same classification as
the former members of Local Union 1275. The court, in
enforcing the Board's bargaining order in Union Carbide &
Carbon Corp., supra, distinguished it from Dickey v.
N.L.R.B., supra, and we believe that the instant case is also
distinguishable from the Dickey case and that the Board's
order in the instant case should be enforced because there
is substantial evidence that a successor or merged union is
the authorized bargaining representative of the employees
in the appropriate unit. In the Dickey case the small unit of
13 employees chose the blacksmiths union and subsequent-
ly merged into a larger amalgamated union of boilermakers
and shipbuilders. The court reasoned that the blacksmiths
had complete control of the union which the employees
joined whereas they had no control over the new amalga-
mated union. Accordingly, the court refused to enforce the
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's bargaining order. The instant case is clearly distin-
guishable in that Local Union 1275 of the International
Brotherhood of Electrical Workers was an amalgamated
local of which the employees in the Respondent unit formed
only a small proportion of the total membership (6 out of
approximately 160) and the Union into which Local 1275
merged was another amalgamated local union of the same
International union. Furthermore, the local into which Lo-
cal Union 1275 merged was on a unit basis and the members
of Local Union 1275 formed a unit over which they had the
same control as they had in their former local. They voted
for their own subofficers and only the employees of a partic-
ular employer voted on ratification of a contract with that
employer. Also, the members were eligible for office in the
Local Union and eligible to be International officers and to
vote for the International officers of the same International
union. It should also be pointed out that currently there are
approximately 165 members of unit 7 of Local Union 474
and the'6 employees in the unit of Respondent would have
exactly the same proportion of representation in the merged
union as they had in the former union.
The General Counsel maintains that the Board's bargain-
ing order should be enforced because the members of Local
Union 1275 clearly voted in a democratic manner by secret
ballot at a meeting that was clearly publicized to the em-
ployees of the unit in question as well as to all members of
Local Union 1275 whose current address was known to
Local Union 1275. He points out that Sam McHugh, the
unit employee, was present at the July 8, 1971, meeting
when the unanimous vote to merge was taken. Also, he
notes that there was a close relationship between the union
members in the unit at this time due to the fact 'of the
continued problems with negotiating a new contract with
the Respondent and the strike which had just ended against
the Respondent. I find merit in this argument. The testimo-
ny of unit employee Jim Cotton was clear that the other
members of the unit were'aware of the merger talk and at
the time in question talked daily and had frequent meetings
together discussing their situation. Cotton stated emphati-
cally that he and other employees of Respondent, Good-
man, Dacus and McHugh, discussed the Union daily and
that this was the- utmost thing in their minds during this
whole period of time. '
The AC Hearing
A primary reason the U.S. Court of Appeals for the Sixth
Circuit did not enforce the Board's bargaining order herein
was because of Respondent's motion for leave to adduce
additional evidence before the Board pursuant to , Section
10(c) of the Act. Respondent attached to its motion a copy
of the petition filed in Case 26-AC-21 and a letter dated
January 28, 1972, addressed to Albert T. Byars signed by
five employees of Respondent.
The testimony of International Representative Blair at
the AC hearing is confusing, and understandably so, for
Blair was attempting to testify concerning a matter of which
he had, at best, imperfect and secondhand knowledge. Blair
did not attend the July 8 meeting at which Local Union
1275 took its merger vote. As counsel for the General Coun-
sel explained at'the hearing, he did not call Blair to testify
because he was attempting to offer the best evidence avail-
able concerning the merger. Only four witnesses were
called. They were: (1) James L. Cotton, sound engineer
with Respondent from July 1969 until August 7, 1971, and
a member of Local Union 1275 until the latter date; (2)
Albert T. Byars, Sr., business manager and financial secre-
tary of Local Union 474 since July 1970; (3) Ernest L.
Babb, president of Local Union 1275 during 1970 and 1971;
and (4) George M. Fitzgerald, Jr., recording secretary of
Local Union 1275. The minute books of Local Union 1275
were authenticated and the minutes of the pertinent meet-
ings were introduced into evidence. These witnesses testi-
fied without contradiction and are credited. Their testimony
plus the exhibits admitted into evidence records the facts as
set out herein and relied upon in this case.
However, the General Counsel did not present unit em-
ployee Sam McHugh due to the fact that he is now in a
supervisory position with Respondent, a position which he
has held since June 1972. The General Counsel contends
that if Respondent was sincere in its motion made to the
United States Court of Appeals for the Sixth Circuit for
leave to adduce additional evidence before the Board pur-
suant to Section 10(c) of the Act it could have easily done
so. Unit employee Sam McHugh, who is now in a superviso-
ry position with Respondent, was readily available for testi-
mony in this matter as well as Mark Goodman who is also
still in the employ of Respondent. It is noteworthy that
McHugh was present at the June 24 and July 8, 1971, meet-
ings and is thus presumably in as good position as any
known witness to refute any testimony offered concerning
the Local Union 1275 merger vote. The fact that this super-
visor was not put on the standby the party which sought
this hearing is an indication that he would not have refuted
any of the testimony offered.
Finally, the record reveals that virtually all of the unit
employees at Respondent for whom Local Union 1275 was
the certified bargaining representative,2 did in fact become
members' of Local Union 474 at the time of the merger on
September 1, 1971. Thus, Cotton, Crawford, Dacus, Mc-
Hugh, and Wulff were all transferred into Local 474 on
September 1, 1971. Since Crawford, Cotton, and Wulff had
stopped paying dues sometime in the spring of 1971, they
were dropped from membership in accordance with section
4 of article XXIII of the IBEW constitution in October and
November 1971. Dacus remained a member of Local Union
474 until September 1, 1972, and McHugh was issued a
withdrawal card in July 1972, when he became a supervisor.
Another Respondent employee, Goodman, was also trans-
ferred to Local Union 474 and was dropped from member-
ship on November 1, 1971. The final Respondent employee,
King Brumley, last paid dues to Local 1275 in March 1971.
He was, therefore, dropped from membership on October
1, 1971. (For reasons which are not explained, he was not
on the list of Local 1275 members transferred to Local 474
on September 1, 1971, although it appears he should have
been.) In short, of the seven Respondent employees,,at least
2 Local Union 1275 was certified on April 24, 1 967, for a unit of the
Company's employees consisting of all recording engineers, technicians, mix-
ers, tape editors and duplicators at its premises in Memphis, with all other
employees, watchmen, guards and supervisors excluded.
WILLIAM B. TANNER COMPANY
six became members of Local 474 on September 1, 1971,
and under the IBEW constitution, the seventh also should
have been transferred and remain a member until October
1, 1971, when he became 6 months in arrears in his dues.
The General Counsel maintains, and I agree, that the best
evidence in this matter has been presented and that that
evidence establishes that Local Union 474 was properly
selected as a successor to Local Union 1275 by the members
of Local Union 1275. Accordingly, Respondent is required
to bargain with Local Union 474, the duly certified and
authorized collective-bargaining representative of the ma-
jority of the employees of the appropriate unit by virtue of
the merger into it by Local Union 1275.
Upon the foregoing findings and conclusions and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Local Union 1275 is no longer in existence.
2. Local Union 474 is the legal successor to Local Union
1275 since September 1, 1971, and as such is the duly au-
thorized collective-bargaining representative of the employ-
ees of the Respondent in the unit previously certified by the
Board.
THE REMEDY
575
Having found that Local Union 474 is the legal successor
to Local Union 1275 , Respondent is required to bargain in
good faith with Local Union 474.
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record in the case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following:
ORDERS
1. Local Union No. 474, International Brotherhood of
Electrical Workers, AFL-CIO, is the legal successor to Ra-
dio and Television Engineers, Local Union No. 1275, Inter-
national Brotherhood of Electrical Workers, AFL-CIO,
and accordingly, is the authorized bargaining representative
of the previously certified unit of the employees of William
B. Tanner Company, successor to Pepper & Tanner, Inc.
2. The transcript of the proceedings are corrected as set
forth in Appendix A. [Appendix A omitted from publica-
tion.]
3In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings , conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.