Newspapers, Inc.,

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newspapers, Inc., Publishers of the Austin American and the Austin Statesman and Houston Newspaper Printing Pressmen's Union No. 43. Case 23-CA-4612 April 9, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On July 31, 1973, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed a reply brief to the General Counsel's and Charging Party's exceptions and briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached 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 herewith. We are unable to agree with the Administrative Law Judge, for, in our opinion, he has exalted form over substance in finding that Respondent did not refuse to bargain with Houston Web Local 43 in violation of Section 8(a)(5) because Houston Local 43 is not the successor to Local 143 in the sense of being in effect the same bargaining entity. He reasoned: The [union] that had the ... agreement with Respondent . . . was Local 143. Such bargaining entity was not the Web Division of Local 143. When the "Web Division" members were trans- ferred from Local 143 to Local 43, in effect, the "Web Division" was severed from Local 143 and placed with Local 43. Local 143 continued to exist .... Thus what occurred is not a mere change wherein Local 43 emerged as a continuation of the same bargaining entity or even as an entity' which included the old bargaining entity. However, the bargaining entity, as far as Respon- dent was concerned, was the "Web Division" of Local 143 and contrary to the Administrative Law Judge's finding, Houston Local 43 emerged not only as an entity which included the old bargaining entity 1 See art. III of the constitution as set forth under heading 16 of the Administrative Law Judge's Decision. The two divisions had two common officers-the president and the secretary-treasurer. However, the president, a Web Division member, presided only over the Web Division meetings. (the "Web Division" of 143) but as a continuation of that same bargaining entity. The Administrative Law Judge's finding in the circumstances of this case is based on nothing more than a meaningless technical- ity which completely ignores what has been the Board's paramount concern in such cases--employ- ees' Section 7 right to choose their own bargaining representative. The facts as found by the Administrative Law Judge are not in dispute. But the Administrative Law Judge has failed to grasp fully the most important fact in this case. That is that Austin Local 143 was a so-called combination local which was composed of two separate and distinct divisions: a Web Division, consisting of newspaper pressmen (all of whom worked for Respondent), and a Commercial Divi- sion, consisting of pressmen who do job printing (none of whom worked for Respondent). These two divisions were for all intents and purposes two separate locals. In fact, Local 143's constitution provided for these separate divisions and for internal administration on a divisional basis. Thus, as provided for in the constitution, each division had separate officers.I The president of Local 143 presided over Web Division meetings ; a vice presi- dent, who was a member of the Commercial Division, presided over Commercial Division meet- ings. Each division had its own executive and negotiating committees; Respondent never dealt with or bargained with any member of Local 143 who was a member of the Commercial Division. Each division had separate meetings at separate times, and these meetings were limited to its own members. There were no common functions even of a social nature. After the merger of the Web Division of Local 143 with Houston Local 43, a web local, the Local 143 Web Division was dissolved and was absorbed into Houston Local 43 as the Austin Web Division. Although, after the merger, the Austin'Web Division had no constitutional officers of Houston Local 43 (except Gannaway who functioned as chapel chair- man), Local 43 allowed it to function as it had in the past. Thus, Hurst, the former president of Local 143, became what may be described as chairman or area representative of the Austin Web Division; Dyer, the former secretary-treasurer of Local 143, performed the same duties for the Austin Web Division, and Joyce, former chairman of the Web Division of Local 143 executive committee, continued as chair- man of the Austin Web Division of Local 43. In short, the same people who had represented Respon- Only the secretary-treasurer had contact with both divisions ; this contact involved primarily the dues collecting and the bookkeeping functions, such as transmitting assessments to the International. 210 NLRB No. 9 NEWSPAPERS, INC. 9 dent's web pressmen prior to the merger continued to do so after the merger.2 Nor did the Administrative Law Judge question the method by which the merger of the Web Division of 143 with Local 43 was effected. All of the require- ments considered important by the Board, such as proper notice, discussion of the issues, and a secret ballot, were met. In fact, 19 of the eligible 20 or 21 employees of Respondent who were members of the Web Division voted unanimously in favor of the merger. There is no question that any of Respon- dent's employees did not have an opportunity to express their desires through means heretofore approved by the Board.3 Thereafter, Houston Local 43 properly ratified the merger. In this regard, the Administrative Law Judge, in considering what has been the primary concern of the Board in such cases, found that it was the desire of the Web Division members of Local 143 to merge with and bargain jointly with Houston Web Local 43.4 An even clearer indication of the desires of Respondent's employees followed. For, after the Respondent refused to recognize and bargain with Local 43 in July and August 1972, Local 43 in early October solicited and obtained authorization cards from 44 employees or 100 percent of the web pressmen employed by Respondent.5 When these cards were presented to Respondent with a request to bargain, the Respondent refused to look at the cards. Thereupon, Local 43 filed a petition on October 26, 1972. However, as a result of a dispute between the S This factor, that the employees involved are assured the continuity of their present organization and representation, has been deemed of primary importance in amendment of certification cases which involve basically the same issue as the instant case--a change in representative . See The Hamilton Tool Company, 190 NLRB 571; Gulf Oil Corporation, 135 NLRB 184. a As the Administrative Law Judge noted , the Web Division members of Local 143 followed their constitution in this unusual situation as closely as possible, the only difficulty being that the constitution refers to "merger" as a merger of an entire union . However, as he also noted, strict adherence to the constitution is not the controlling factor in such cases; "What is important is whether the employees (members ) had proper opportunity to express their desires." Member Jenkins is satisfied that the record amply supports the conclusion that the one employee nonmember was given the opportunity to vote at the time the merger vote was taken See North Electric Company, 165 NLRB 942; The Hamilton Tool Company, 190 NLRB 571. See Canton Sign Co., 174 NLRB 906. See also East Dayton Tool & Die Company, 190 NLRB 577; Montgomery Ward & Ca, Incorporated 188 NLRB 551; Eqwpment Manufacturing, Inc., 174 NLRB 419; and Safeway Steel Scaffolds Company of Georgia, 173 NLRB 311. Although the latter are amendment of certification cases they set forth the factors deemed significant by the Board in cases involving merger, substitution, or change of representative, and clearly indicate that the factor of primary importance is whether the employees have had an opportunity to pass on the change of representative. 5 Respondent's employee complement had doubled between February and October with the addition of a new press. However, the General Counsel did not establish either the number of employees employed on July 10, 1972, when the Union demanded bargaining or that the Union represented a majority of the employees on that date. 9 The discharges of October 24 and 27 were alleged as violations of Sec. 8(aX3) in the instant charge. They were also the subject of a grievance filed by the Union. After Respondent refused Local 43's request for arbitration, pressmen and the Respondent, the Respondent terminated 16 pressmen on October 24 and an additional 20 pressmen on October 27, 1972, which substantially wiped out the bargaining unit. As a result, Local 43 withdrew its petition on January 30, 1973, after the issuance of the complaint in this case.6 It is clear that the employees involved, as found by the Administrative Law Judge, desired to be repre- sented by Local 43; this is not a case where the employees involved have been submerged into a larger unit without their approval. Moreover, it is clear, as found by the Administra- tive Law Judge, that Respondent did not oppose the merger as such. Respondent was notified by letter of January 7, 1972, of the merger; it made no reply. And at the February 15, 1972, meeting with Local 43 officials Respondent questioned only the effect the merger might have on the local nature of bargain- ing.7 We do not contend that by this conduct Respondent accepted the merger; 8 but it is also clear Respondent did not reject it. Rather, in our opinion, Respondent evidenced bad faith by not rejecting the merger if such was its intent and thereby at least implicitly acquiesced in the merger until July when it suddenly announced that it would not bargain with Local 43.9 Why then did Respondent refuse to bargain in July with the same people it had negotiated with for years? It had no reason to doubt the validity of the Local 43 filed a Sec. 301 suit to compel arbitration. United States District Judge Jack Roberts for the United States District Court, Western District of Texas, Austin Dvision (Civil Action No. A-72-CA- 153, decided 11 /27/72) found in favor of Local 43 and ordered arbitration. In so finding, the judge found Local 43 the successor to Local 143 and that the collective -bargaining agreement was a valid and enforceable agreement between Local 43 and Respondent. The Acting Regional Director declined to issue an 8(aX3) complaint on the grounds that further proceedings on the charge should be deferred for arbitration pursuant to Dubo Manufacturing Corporation, 142 NLRB 431. 7 In this connection the Administrative Law Judge specifically discredit- ed Brown's testimony that he had referred to negotiating a contract only with Local 143 at the February 15 meeting. a The Administrative Law Judge found the evidence insufficient to find Respondent accepted Local 43 as successor to Local 143 primarily because Hurst for Local 143 signed a letter of submission for arbitration on February 15, 1972. As the Administrative Law Judge points out, however, the letter was a joint letter to the American Arbitration Association from Respondent and Local 143 written on Respondent 's stationery and therefore presumably prepared by Respondent . Moreover, the subject of the arbitration was a dispute which arose in October 1971 prior to the merger and was originally filed by Local 143. In any event, Local 43 paid the substantial arbitration costs involved in that proceeding which was pursued to completion after the merger . In our opinion , the February 15, 1972, letter signed by Hurst for Local 143 in no way affects or raises any question as to the validity or existence of the February 1, 1972, merger. 9 We note that District Judge Roberts in his opinion in the Sec. 301 suit indicated that Respondent's counsel had stated in open court that Respondent had no objection to dealing with either Local 143 or Local 43. Likewise, we note Respondent attorney's letter to Local 43's attorney of December 18, 1972, in which he requested that Local 143 and/or Local 43 supply Respondent with pressmen. (See heading 26 of the Administrative Law Judge's Decision.) 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merger; nor is there any evidence that any employee complained to it about the merger.10 It obviously was not concerned with the desires of the employees,11 nor could it bargain with the then existing Commer- cial Local 143 as that local represented only commercial pressmen and Respondent employs no commercial pressmen. It therefore appears that Respondent either saw an opportunity to rid itself of a union or felt that it had the right to pick and choose its employees' bargaining representative regardless of the employees' desires. The Administrative Law Judge's decision rests on a meaningless technicality which totally ignores the desires of the employees involved and Board preced- ent in this area. We would adhere to the Board's consistent policy of honoring the desires of employ- ees pursuant to Section 7 of 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 bargaining table.12 There are reasons why the Board has not accepted and should not accept mergers or substitutions of unions ; but none of these reasons are present in this case.13 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. within the appropriate unit for purposes of collective bargaining in respect to wages, rates of pay, hours of employment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act. 5. By refusing on and since July 13, 1972, to bargain with Local 43 as exclusive representative of the employees in the above-described appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. A THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(aX5) and (1) of the Act by refusing to bargain with Local 43 and its designated agents as the exclusive representative 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 Local 43 and its designated agents concerning wages, rates of pay, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. ORDER CONCLUSIONS OF LAW 1. Newspapers, Inc., Publishers of The Austin American and The Austin Statesman, the-Rfespon- dent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Houston Newspaper Printing Pressmen's Un- ion No. 43 is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. All pressroom employees employed at Respon- dent's pressroom operated in Austin, Texas, but excluding guards, watchmen and supervisors as defined 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 February 1, 1972, Houston Newspaper Printing Pressmen's Union No. 43 has been the exclusive representative of all the employees 10 Whether or not the employees involved have complained of or taken any action opposed to a change of representative has been one of the factors considered by the Board in deciding such cases. (See The Hamilton Tool Company, supra) 11 Note that shortly thereafter, while still refusing to bargain, it refused to even look at authorization cards which are at least considered to be some evidence of employee desire or choice. 12 See N.L.R B. v Roscoe Skipper, Inc., 213 F.2d 793, 794 (C.A. 5). Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orllers that the Respondent, News- papers, Inc., Publi%hleis of The Austin American and The Austin Statesmnan, Austin, Texasi its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with Houston Newspaper Printing Pressmen's Union No. 43 and its designated agents, as the exclusive representative of its employees in the following appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment: All pressroom employees employed in the pub. lisher's pressroom operated in Austin, Texas, but excluding guards, watchmen and supervisors as defined in the Act. 13 Cf. Sherwood F'org Inc., 188 NLRB 131. Likewise see Rinker Materials Corporation, 162 NLRB 1688; M. A. Norden Company, Inc., 159 NLRB 1730, and Yale Manufacturing Company, Inc., 157 NLRB 597. Although the latter are amendment of certification cases, they demonstrate when and for what reason the Board will not allow substitution or merger of representa- tives. These cases point out the Board's primary concern that the unit employees have had an opportunity to pass upon the transfer of representation. NEWSPAPERS, INC. (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. 2. Take the following affirmative action which 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 wages, rates of pay, hours of employment, and other terms and conditions of employment and embody in a signed agreement any understanding reached. (b) Post at its place of business in Austin, Texas, copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 14 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 Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 collectively with Houston Newspaper Printing Pressmen's Union No. 43, and its designated agents, as your exclusive representative. The bargaining unit is: All pressmen employees employed in the Publisher's pressroom operated in Austin, Texas, but excluding guards, watchmen and supervisors as defined in the Act. WE WILL NOT interfere with the efforts of the above-named Union to bargain on behalf of the employees in the above-described unit. NEWSPAPERS, INC., PUBLISHERS OF THE AUSTIN AMERICAN AND THE AUSTIN STATESMAN (Employer) 11 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, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296. DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on June 4 and 5, 1973, at Austin, Texas. The charge was filed on December 12, 1972. The complaint in this matter was issued on January 26, 1973. The issues concern whether Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Houston Newspaper Printing Pressmen's Union No. 43. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the General Counsel, Charging Party, and Respondent and have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The facts herein are based upon the pleadings and admissions therein. Newspapers, Inc., publisher of The Austin American and The Austin Statesman, the Respondent, is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Texas. At all times material herein , Respondent has maintained its principal office and place of business at 308 Guadalupe, Austin, Texas, where it is engaged in the newspaper publishing business. Its newspapers, The Austin American and The Austin Statesman, are the only newspapers involved in this proceeding. During a 1-year representative period, Respondent held membership in or subscribed to interstate news services, published nationally syndicated features, advertised na- tionally sold products, and had an annual gross volume 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exceeding $200,000. As conceded by the Respondent and based upon the foregoing, it is concluded and found that Respondent is now, and has been at all times material herein, an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Austin Printing Pressmen and Assistants' Union No. 143, and Houston Newspaper Printing Pressmen's Union No. 43, each is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Alleged Refusal To Bargain Section 8(aX5) and (1) of the Act The facts relating to Respondent's alleged refusal to bargain with Local 43 may be summarized as follows: 1. All pressroom employees employed in the publisher's pressroom operated in Austin, Texas, but excluding guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. The Respondent and Austin Printing Pressmen and Assistants' Union No. 143, for many years preceding September 30, 1971, had collective-bargaining understand- ings or agreements with respect to the appropriate bargaining unit set forth above. 3. On September 30, 1971, Respondent and Austin Printing Pressmen and Assistants' Union No. 143 execut- ed a collective-bargaining agreement which had as part thereof the following section. SECTION I Witnesseth that this Contract shall be effective from the 30th day of September, 1971, to the 30th day of September, 1972 and shall continue in effect for one year thereafter unless sixty days' written notice of intention to change shall be given by either party prior to the expiration date of this Contract. Pending the determination of the conditions of a new Contract, this Contract shall remain in effect. 4. Prior to February 1, 1973, Austin Printing Pressmen and Assistants' Union No. 143's membership may be said to have been divided into two categories. One category included those who worked for newspapers as printing pressmen and assistants. The other category included those who worked as commercial printmen or assistants. The constitution and bylaws of Local 143 and the 1 Respondent's brief appears to argue that Local 143's internal affairs were not conducted on the basis of divisions (Web and Commercial). Thus, Respondent points out testimony of Joyce to the effect that the International at one time had turned down a request for division of the Union into such parts. Considering Joyce's testimony as a whole and the practice of the Union provided in effect that the internal administration of the Union was conducted on the basis of two divisions. One division, called the Web Division, consisted of the newspaper printing pressmen and their assistants.' The other division, called the Commercial Division, consisted of commercial pressmen and their assistants. The constitution and bylaws of Local 143 and the practice of such Union provided in effect that the Web Division members controlled and administered union affairs pertaining to such division . Similarly, the Commer- cial Division controlled and administered the affairs of members in such division. 5. On September 11, 1973, notice was sent to all members of the Web Division (of Local 143) concerning a proposed vote at a meeting to be held on October 5, 1971. Said notice was as follows: t i t i • September 11, 1971 Attention all Web (Newspaper) members only, of Austin Printing Pressmen and Assistants' Union # 143: On Tuesday, October 5, 1971, during the regular monthly meeting from four until five P.M. at the CWA Hall; 708 Rio Grande, you will be asked to vote by secret ballot as follows: YES, I do wish to merge with Houston, Texas Printing Pressmen #43 for the purpose of joint negotiation of wages and other working conditions. NO, I do not wish to merge with Houston, Texas Printing Pressmen #43 for the purpose of joint negotiation of wages and other working conditions. Be further advised that the foregoing vote will not affect the present charter of Austin Printing Pressmen and Assistants Union and/or the Commercial members thereof in any manner. Sincerely, /s/ L. B. Dyer L. B. Dyer, Secy. # 143 • s s s s The membership of the Web Division of Local 143 and the employees constituting the appropriate bargaining unit at Respondent's place of business was coextensive except for one employee, named Wienart. Wienart was not a member of Local 43. Hurst, president of Local 143, notified Weinart of the scheduled meeting and invited him to attend. 6. The Web Division of Local 143 held the meeting logical consistency of all the facts, I am persuaded that Joyce, in such testimony, was alluding to an attempt to divide Local 143 into two separate unions such as Local 143A and 143B. The overall facts and Local 143s constitution clearly establish the divisional setup of the Union. NEWSPAPERS, INC. referred to in the notice set out above on October 5, 1971. Wienart, the employee who was not a member, did not attend? There were 19 members of the Web Division present and all 19 voted affirmative to the proposition.3 Thus, the Web Division voted to "merge with Houston, Texas Printing Pressmen #43 for the purpose of joint negotiation of wages and other working conditions." 7. The Austin Printing Pressmen and Assistants' Union No. 143, by letter dated October 11, 1971, and signed by L. B. Dyer, secretary-treasurer, notified the International Union of what had transpired with respect to its action toward merger of the Web Division members with Local 43. Such letter set forth the following: Mr. A. J. Rohan, President Board of Directors I.P.P. & A.U. of N.A. 1730 Rhode Island Ave. N. W. Washington, D. C. Dear Sir: October 11, 1971 On September 7, 1971 in regular monthly meeting, a resolution was read proposing merger with Houston Web Pressmen #43. On September 11, 1971 copies of the enclosed letter were mailed to each web member under the jurisdiction of this local. On October 5, 1971 at the regular monthly meeting, the members of our web division, by secret ballot, voted nineteen for and none against merger with our sister Local #43 at Houston, Texas. Having complied with all provisions of Article 1, Section 15 of the International Constitution and By- Laws, the Web members of Austin Printing Pressmen and Assistants' Union # 143 respectfully request permission for merger with Houston Web Local #43. Sincerely yours, Austin Printing Pressmen & Assistants' Union # 143 /s/ L. B. Dyer L.B. Dyer, Secretary- Treas. s s s a s 8. Local 43, Houston Newspaper Printing Pressmen's Union, by letter dated October 18, 1971, and signed by Eddie Volotko, secretary-treasurer, notified the Interna- tional Union that Local 43 was in accord with the actions 2 Although I have found that Wienart was given notice of said meeting, whether Wtenart was given notice and whether he attended such meeting would not affect the disposition of the issues in this case. 13 of Local 143 and requested approval of such action by the International. 9. The International Union, by letter dated December 10, 1971, and signed by J. Frazier Moore, secretary- treasurer, notified Locals 143 and 43 as follows: Mr. L. B. Dyer, Sec. Mr. Marvin O'Neal, Pres. Printing Pressmen's No. 143 Austin, Texas Dear Sirs and Brothers: 0 December 10, 1971 The Board of Directors at the meeting held on December 7-8, 1971, approved the request of the web members of your local union transferring to Houston Newspaper Local No. 43. Houston Newspaper Local No. 43 has been notified and you will probably receive a follow-up letter from this office in the near future. With kindest regards, Sincerely and Fraternally, /s/ J. Frazier Moore Secretary-Treasurer FOR THE BOARD OF DIRECTORS JFM/lle cc: Pres. Rohan Eddie Volotko, N-43 Membership Records Dept. s t w • 10. The Austin Printing Pressmen and Assistants' Union No. 143, by L. B. Dyer, secretary, on January 6, 1972, sent a letter to Respondent which set forth as follows: s s s s Mr. Richard Brown Publisher American-Statesman 308 Guadalupe Austin, Texas January 6, 1972 Dear Sir: The members of Austin Printing Pressmen, together with their respective families, wish to thank you for the Christmas party held in the press room during the holiday season. 3 The precise number of members in the Web Division of Local 143 at the time was not established. It appears that the number was 20 or 21. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Every one enjoyed the fellowship and the food was delicious. In addition to the foregoing I am listing the names and addresses of our executive officers for the coming year. They are: Mr. Kenneth Hurst, President-3203 Overcup Oak Drive-78704 Mr. L. B. Dyer, Sec'y. Treas.-4703 Strass Dr.78731 Mr. Chas. Joyce, Chin. Exec. Comm.-1503 W. 40th-78756 Mr. J. L. Gannaway, Chapel Chmn. 2111 W. 10th-78703 Sincerely Yours, Austin Printing Pressmen & Assistants' Union # 143 /s/ L.B. Dyer L.B. Dyer, Sec'y. 11. On January 7, 1972, Volotko, secretary-treasurer of Local 43, sent the following letter as indicated. Mr. Richard F. Brown, Publisher, American Statesman, Guadalupe & 4 th. Austin, Texas 78701 January 7, 1972 Mr. Bill M. Meroney, General Manager, American Statesman, Guadalupe & 4 th. Austin, texas 76701 Gentlemen: Registered Mail Return Receipt Requested Please be advised that the newspaper pressmen of the Austin P.P. & A.U. # 143 union have effected a merger into the Houston N.P.P. #43 effective Februar- y 1, 1972, and Houston N.P.P. #43 as the successor of the newspaper pressmen of Austin P.P. & A.U. # 143 will assume both the bargaining and contractual obligations of former newspaper pressmen of Austin P.P. & A.U. # 143 and will administer the current collective bargaining contract for its term. Sincerely, /s/ Eddie Volotko Secretary-Treasurer, Houston N.P.P. # 143. cc: Bill M. Meroney Kenneth N. Hurst L. B. Dyer 12. On January 27, 1972, L. B. Dyer, secretary- treasur- er of Local 143, transmitted the following letter to the International Union. Mr. J. F. Moore Secy. Treas. I.P.P. & A.U. 1730 Rhode Island Ave. N. W. Washington, D. C. January 27, 1972 Dear Sir: This is to advise your office that as of February 1, 1972 the web division of Local 143 will merge with Houston newspaper pressmen #43. I am enclosing January per capita tax for all members and will pay for February on for commercial members only. Brother Eddie Volotko, Sec'y. of #43 has instructed me to pay to him the per capita on all web members beginning in February. Until further notice, I shall continue doing secretarial work for the commercial division as well as handling their finances. When one of the commercial members is selected for this service, I shall so notify your office. Sincerely yours, L.B. Dyer, Sec'y. # 143 13. Prior to February 1 , 1972, Local 43 determined that each of its members, individually, in effect had an investment in its total treasury of $115. It therefore informed Local 143 that funds representing $ 115 per Web member of the Web Division should be transferred from Local 143's treasury to Local 43. Prior to February 1, 1972, aware of the need to transfer $115 per Web member to Local 43, Local 143 divided its treasury figuratively into two equal divisions . Local 143's Commercial Division was to retain one-half (1/2) of the treasury, and the other half of the treasury was deemed to belong to the members of the Web Division. The portion of Local 143's treasury deemed to belong to the Web members was sufficient to meet the need for NEWSPAPERS, INC. forwarding $115 per Web member to Local 43. Such amount of money, for approximately 20 members, at the rate of $115 for each member, and a few dollars relating to initiation fees, etc., was forwarded to Local 434 on or around February 1, 1972. In addition to the monies transferred to Local 43, there was approximately $1,000 which Local 143 kept for the Web members. Such money, around 9 months later, was transmitted to individuals, acting on behalf of the said Web members but not for Local 143 and 43. Said money was later expended for various needs of some of said Web members. 14. On or about February 1, 1972, the Web members of Local 143 were transferred to Local 43 and their dues thereafter were paid to Local 43. 15. L. B. Dyer continued to serve as an officer for Local 143 for about a month until a new officer was selected as secretary and treasurer and trained for such job. 16. Article III of Local 143's constitution sets forth the following as regards officers: s s * s s ARTICLE III Officers Sec. 1. The elective officers of this local shall consist of a President, 1st Vice-President, 2nd Vice- President, Secretary-Treasurer, Two Recording Secre- taries, Two Sergeant-at-Arms and four Committeemen. Sec. 2. The President shall be elected from and by the membership at large. Sec. 3. One Vice-President, together with two other members shall be elected by the Commercial Division and they shall constitute the executive Committee for the Commercial Division. Sec. 4. One Vice-President, together with two other members shall be elected by the Web Division and they shall constitute the Executive Committee for the Web Division. In addition the constitution provides that where there are two members in an office, that there shall be a chapel chairman. Prior to February 1, 1972, the members of the Web Division of Local 143 who were officers of Local 143 were as follows: Kenneth Hurst-president, L. B. Dyer-secre- tary-treasurer; Charles Joyce-vice president a 9 chair- man of executive committee of Web Division; and J. L. Gannaway-chapel chairman. After February 1, 1972, for about a month, L. B. Dyer continued functioning as Local 143's secretary and treasurer until the new secretary-treasurer was selected and trained. After February 1, 1972, none of the Web Division members who were officers of Local 143 functioned as constitutional officers of Local 43. J. L. Gannaway, 4 Approximately $80 above the amount necessary for the $115 share needed for 20 members was transmitted 5 The facts reveal that Local 43 assumed and took care of Local 143's is however, functioned in the comparable position of chapel chairman. The record is not clear whether new membership cards for Local 43 were issued for the former 143 Web members or not. The handling of the "merger" and related affairs was somewhat confused . As indicated elsewhere, the International directory in June 1972, sets forth Hurst as president of Local 143 . Since such directory revealed the change for the secretary-treasurer, it would appear that the directory should have reflected a change for the president if there were a change. It very well may be that a new president was not selected for Local 143. As a result of the transfer of funds and the commence- ment of payment of dues to Local 43, all of the Web members of Local 143 prior to February 1, 1972, were transferred to Local 43 . The transfer was a collective transfer and amounted to a dissolution of the Web Division of Local 143. Local 43 handled the transfer of such Web members as a transfer of the entire former Web Division of Local 143. Local 43 administered the collective affairs of such former members of Local 143 as a separate Web Division. Thus, the former Web Division members of Local 143 became members of the Austin Web Division of Local 43. As a result of the actions by Local 43, Local 143, the International Union, the transfer of funds and the commencement of payment of dues by former Web members of Local 143 to Local 43, it may be said that the Web Division of Local 143 was dissolved, and that instead it became the Austin Web Division of Local 43. Local 43 absorbed the Austin Web Division into its total union structure but allowed it to function essentially as it had in the past. Thus, Hurst, former president of Local 143, became what may be described as chairman or area representative of said Austin division; Dyer, former secretary-treasurer of Local 143, performed the same duties for this Austin Web Division; Joyce, former vice president and chairman of the Web Division executive committee of Local 143, essentially performed the same duties as chairman of the executive committee of the Austin Web Division. As indicated, Gannaway, former chapel chairman of Local 143 Web Division, continued as chapel chairman of the Austin Web Division.5 17. Sometime in February, prior to February 15, 1972, Hurst (one of Respondent's employees, a former member of the Web Division of Local 143, and the former president of Local 143) telephoned Respondent's Publisher Brown. Hurst told Brown in effect that Volotko and Pizzo from Houston would be in town and that he desired to arrange a meeting between Brown and Volotko and Pizzo so that they could sit down and talk. The testimony of Hurst and Brown as to the arrange- ments for this proposed meeting is sparse . The overall facts and Brown's testimony, however, reveal that the purpose of this meeting was clear. Thus, Brown had received the letter from Volotko informing him of the merger of the Web pressmen from Local 143 into Local 43 and that Local 43 would assume the contract and administration thereof. financial obligations with respect to the employees in the appropriate collective bargaining unit after February 1, 1972. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD What occurred in the telephone conversation between Brown and Hurst is revealed by the following credited excerpts from Brown's testimony. A. Mr. Hurst called me on the telephone and said that two gentlemen from Houston would be in town, Mr. Volotko and Mr. Pizzo, and that he requested an opportunity for us to sit down and talk. Q. All right. And Mr. Hurst was a pressman? A. Yes. That's correct. Q. And did you agree to talk to them? A. I asked him who were these gentlemen from Houston representing, 143 or 43. Q. O.K. And what did he say? A. He said they really just wanted to come in and talk. * * * * 18. On February 15, 1972, the meeting previously arranged by Hurst and Publisher Brown occurred. It is clear that Publisher Brown and General Manager Meroney attended for the Respondent. There may have been several others who attended for the Respondent, but whether they did or did not does not affect the meaning of the facts. President Pizzo and Secretary-Treasurer Volotko of Local 43 and Hurst and Dyer attended for the Union. What first occurred at this meeting is revealed by the following credited excerpts from Brown's testimony.6 * * * * * A. Mr. Hurst introduced Mr. Pizzo and Mr. Volotko and we shook hands. They sat down. And I turned to Mr. Pizzo, I think it was, and said, "May I ask who you represent here today?" And Mr. Pizzo said, "I am president of Houston Local 43." And I said, "Well, we have a contract with Austin Local 143 and I don't think we have a whole lot to talk about." Q. All right. Did Mr. Pizzo make any other representations to you about who he was representing? A. Yes. When I told him that we didn't have much 43 Hurst's testimony indicated that Brown expressed concern about local autonomy for the Austin Web pressmen. Brown's testimony, as to what was said on February 15, 1972, included remarks as revealed by the following excerpts from his testimony. * * * * Q. Did you express any intention about your contract with 143? What you intended to do. A. I told him that we intended to negotiate with 143 and as we had in the past arrive at a signed contract. Q. Is it your feeling that you imparted the message to them that you weren't going to bargain with 43 before they left that room? A. I suspect I did impart that message to them, not verbatim, but probably from things that I had said in telling him that I didn't want to talk with anyone from 43. * * * * * I am persuaded from all of the facts and all of the testimony that Brown did not express an intention "to negotiate with Local 143 and as we had in the past arrive at a signed contract." I am persuaded that Brown expressed concern over the local autonomy of the Austin Web pressmen. I am persuaded that Brown's testimony on this point is his interpretation and conclusion of the meaning of what he had said. I discredit Brown's testimony to the effect that he explicitly referred to negotiating a new contract with Local 143. I note that the old contract was not due to expire for some 5 months. I am persuaded and credit the testimony of General Counsel's witnesses to the composite effect that Brown and the various union officials discussed the question of merger, and of the ramifications of mergers as to local autonomy. 19. Prior to February 1, 1972, Local 143 had initiated a grievance concerning the discharge of Melvin Latham. On February 15, 1972, a letter of submission of this grievance on letter stationery of Respondent's attorney, Gee, was executed by Hurst and Gee. Said letter is as follows: to talk about with the Houston representatives of 43, he * * * * * said, "Well, I'm kind of an International representa- tive." February 15, 1972 * * * * * The contentions of General Counsel and the Charging Party as compared to those of Respondent reveal a disputc as to the tenor of this meeting. The General Counsel and Charging Party contend, and the General Counsel's witnesses (Pizzo, Volotko, Hurst, and Dyer) testified in support thereof, that Respondent raised no question as to the merger of the Web pressmen from Local 143 into Local 6 I discredit Pizzo's testimony contradictory of this finding. I am persuaded that Pizzo had not recalled these details and that Brown testified Mr. Helmut O. Wolff American Arbitration Association 401 Praetorian Building 1607 Main Street Dallas, Texas 75201 Dear Mr. Wolff: As required by SXII (2Xc)(3) of "Newspaper Contract Agreement" between Austin Printing Press- truthfully as has been set out. NEWSPAPERS, INC. 17 men and Assistants' Union Number 143 and Newspa- pers, Inc., the parties jointly request appointment by you of an arbitrator having experience in newspaper arbitrations. The case is a discharge case. Please advise the undersigned of your designation. IPP & AU, Local 143 /s/ Kenneth N. Hurst for the Union Yours very truly, Newspapers, Inc. /s/ Thomas G. Gee Attorney for the Employer 20. The official directory of the International Printing Pressmen and Assistants' Union of North America, dated June 15, 1972, reveals that it is "A list of officers of the International Printing Pressmen and Assistants' Union; Representatives and Organizers; names and addresses of secretaries and presidents of all subordinate unions, conference and councils ; together with names and address- es of secretaries of Allied Printing Trades Councils." On page 6, said directory reveals the following: * * * * 143-Austin, Texas. Charles S. Mazyrack, 605 Karolyn Street, Round Rock, Texas 78664. President, Kenneth Hurst, 3203 Overcup Oak Drive, Austin, Texas 78704. Respondent's brief asserts that Respondent received this document around the date thereof. There is no evidence in the record to support this assertion. 21. The following letter was transmitted to Respondent on July 10, 1972. Kennith Hurst, Chmn., M. Hepburn and Chas. Joyce. Respectfully yours, L. B. Dyer, Secy. Austin Div. HOUSTON NEWSPAPER PRINTING PRESSMEN # 43 22. On July 13, 1972, Respondent transmitted the following letter to L. B. Dyer. L. B. Dyer Secretary Austin Printing Pressmen and Assistants Union Number 143 Austin, Texas July 13, 1972 Dear Sir: The Austin American-Statesman recognizes and bargains with IPP & AU Local 143. Local 143 is the certified representative for our pressroom employees. We do not recognize or bargain with any other labor organization on behalf of our pressroom employees. Yours truly, The Austin American- Statesman P. F. Fincher, Chairman Negotiating Comm. ifm/FF * * P. F. Fincher, Circulation Dir. Newspapers, Inc. American-Statesman Austin, Texas Austin, Texas July 10, 1972 23. On August 8, 1972, Kenneth Hurst, Charlie Joyce, and perhaps one other Austin Division Web member of Local 43 went to Circulation Manager Fincher's office and asked for a meeting. Fincher agreed to meet with these employees. What occurred is revealed by the following credited excerpts from Joyce's testimony.? Dear Sir: This is to give the required sixty day notice of our desire to negotiate a new working agreement with publisher of the American-Statesman. A committee representing the union has been appoint- ed as follows: Respondent's brief asserts to testimony from Joyce indicating that he was vice president of Local 143 in October 1972 Joyce's total testimony and A. Well, at that time we usually try to resolve these things before September the 30th if we can, so we went in on August the 8th and we asked for a meeting. He agreed to meet with us. And we went to his office and sat down and exchanged pleasantries and we tried to get down to business. And he stopped us and he said the total facts reveal that this testimony is inaccurate. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Just a moment." He said, "Are you representing-Is your committee representing 143 or 43?" And we told him "Well, naturally, since we are members of 43, we are representing No. 43." And he said, "I have nothing more to say to you. I will not negotiate with you." And he said, "Well, Mr. Fincher, we have to get this resolved some way." And he said, "There's no way. I won't negotiate with you. 24. Later, Joyce and the other members of the Austin Division of Local 43 secured new authorization cards from Respondent's printing pressmen employees. What oc- curred is revealed by the following credited excerpts from Joyce's testimony. * * * A. That's right. And so after we got out of that meeting, well I asked Mr. Hurst, the president of the organization, to call the president of our parent local, the Houston Local and inform him that they refused to negotiate with us and we didn't really know what to do. We were in a quandary. And so we called Pizzo and he said, well, that we would have to go on then, I guess, with the certification election to prove to them that we are-and we will send you the cards to take a poll of all the members and see if you have, what the outcome will be. Well, we received the cards sometime later and we distributed them. And we had, we gave everyone an opportunity in the pressroom. We gave them all a card and they all voted and we had 42 or 44 affirmative votes. The exact number I wouldn't be sure of. Q. Were there any in the pressroom who refused to sign a card? A. No one refused to sign a card. There were some that didn't accept a card. There were one or two that didn't vote. But of all the people that voted we didn't have any no votes. We we informed Mr. Pizzo of this and he said, "Well, it still is possible to avoid having to go through the expense to a certification election, so why don't you take those to Mr. Meroney and offer this to him, that you have one hundred percent behind you and perhaps it will resolve the matter." So we went and asked for a meeting with Mr. Meroney and he agreed. Q. Mr. Joyce, do you recall about when that -_s? A. That would have been-That would have been probably in September. Q. Of '72? A. I would say September of '72. The dates I don't recall real good. But we met with him and we- Q. Was it the same three? A. Kenneth and I went, but I don't know whether DePratter was with us at that time or not. Q. All right, sir. A. But we went in and we exchanged pleasantries :'nd then we told them that the purpose of our visit was to try to expedite the merger, the agreement on the merger. And told him that we had these cards. We'd like for him to look at them . That all the people's names and who had voted on them and they were all affirmative. Q. Did you have the cards in your presence as you talked? A. Yes. We had the cards right there . We had them right there. We offered them to Mr. Meroney and he ignored them. He said that "I don't even want to look at them." He said, "I don't care." He said, "In the first place, I don't see why you want to do this." He said, "I'm not going to help you make a mistake." And we told him we didn't think it was a mistake . That we thought it was a good thing, beneficial for both parties. And he said, well, irregardless, he didn't want to look at them. And so there was not any further business that we could have attended to there, so we again left. That meeting also last just a few minutes. * * * 25. On or about October 27, 1972, some of Respon- dent's Web pressmen were discharged .8 A grievance was apparently filed by Hurst concerning these discharges. On October 27, 1972, the following letter was sent to Hurst. Mr. Kenneth Hurst Dear Mr. Hurst: October 27, 1972 Mr. Gould has delivered to me a grievance signed by you as "Acting Chairman". Please allow me to call your attention to Section XII of the contract between IPPAU Local 143 and The American-Statesman. The union must first contest the grievance or discharge in an official meeting, then the matter shall be referred to the local Joint Standing Committee upon request "of the proper officers of the Union". We are anxious to meet with the proper authorities under the procedure outlined in the contract, with the intent of solving any grievances that may exist. But first the procedure as outlined by the contract must be followed. Yours truly, Richard F. Brown Publisher RFB/pa Hurst replied to the Respondent as is revealed by the following letter dated October 27, 1972. 8 The discharge of these employees is not an issue in this case. NEWSPAPERS, INC. 19 October 27, 1972 Newspapers, Inc. Austin American-Statesman P. O. Box 670 Austin, Texas 78767 Gentlemen: We as members of Austin Printing Pressmen and Assistants' Union contest the discharge of members who were fired on October 24, 1972. The Union contends the Publisher is in violation of Section 12, Subsection C in that he did not follow the procedure set forth. We as members did not feel the #2 press was safe. The Safety Committee had not inspected the press prior to being asked to work on it. We feel their discharge was illegal and unjustified. We as members had a verbal contract with our pressroom superintendent. He had agreed that we would not be asked to switch presses after the shift had begun or during the press run. Also, the maintenance crew would not be asked to become a production crew. We as members of The Union request that all men discharged on said date be reinstated and made whole. Sincerely, /s/ Kenneth Hurst Kenneth N. Hurst Representative Austin Printing Pressmen and Assistants' Union KNH/skh Hurst transmitted to the Respondent another letter concerning this matter on October 30, 1972, as is revealed by the following: * Mr. P. F. Fetcher The AustinAmerican Statesman 308 Guadalupe Street Austin, Texas 78767 October 30, 1972 Dear Sir: The Austin Area Newspaper Printing Pressmen of Houston Local No. 43, I.P.P. & A.U. do hereby contest the discharge of D. Loyd, L. Rodriguez, C. Reeves, P. Howard, J. McMillian, T. Monahan, P. Davis, R. Wienart, S. Young, J. Wood, L. Allison, K. Hurst, D. Day, B. Richmond, E. Boaz, Bodensky, J. Gomez, T. Kieth, R. Lipking, and D. Sartin on the 27th day of October, 1972. The union also wishes to include L. B. Dyer, C. Joyce, Sr., B. Woods, J. Gannaway, L. B. Day, R. Morley, R. Oneal, J. Hopwood, M. Latham, L. Garcia, L. Davenport, M. Oneal, D. Deprator, J. Billingsley, G. Tannehill, and M. Patty who were discharged on the 24th day of October, 1972, and the names of any others who the union may have inadvertently failed to mention. The union wishes to immediately begin grievance procedure as set forth in Section 12 of the working agreement. Respectfully, /s/ Kenneth N. Hurst; Austin Area. Representative (President) KNH:ajm Copies: Arthur L. Pizzo William Wheat, Attorney D 26. On December 18, 1972, Respondent's attorney transmitted a letter to William N. Wheat, attorney. This letter contained, inter alia, the following paragraphs: * * * This is to advise you that I have been asked by Mr. Donald S. Thomas to associate with him for the purpose of representing Newspapers, Inc., in the matter of arbitration of a certain dispute and/or disputes between the Austin Printing Pressmen Union No. 143 and/or 43 and the Austin American-Statesman. * * * Newspaper, Inc., has authorized me to request, through you as attorney for Austin Printing Pressmens and Assistants' Union No. 143 and/or 43, that the Union supply the Austin American-Statesman with six (6) competent journeyman pressmen. These Newspapers desperately need these journeymen pressmen to operate the presses in their pressroom. This request is made in accordance with Section II, Paragraph (2) of the subject contract; To wit: Analysis and Conclusions The foregoing facts clearly reveal that Local 43 made a proper demand for collective bargaining as to the appropri- ate bargaining unit on July 10, 1973. Respondent's reply, dated July 13, 1972, asserting in effect that it was obligated to bargain with Local 143, clearly constituted a refusal to bargain with Local 43. The question presented is whether the General Counsel has established the essential elements necessary to support a finding of conduct violative of Section 8(a)(5) and (1) of the Act. Thus, the General 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel has to establish that a proper demand for bargaining was made as to the appropriate bargaining unit, that Local 43 was the exclusive representative of the employees in such unit, and that Respondent has refused to recognize or bargain with such representative when required to do so. Basically, the litigation of the issues in this case reveals that the General Counsel's (and Charging Party's) theory of violative conduct is that Local 43 became the legal successor of Local 143 in the sense of being the continua- tion of the same bargaining entry as a result of a "merger" around February 1, 1972. Intertwined in this issue appears to be another contention. This contention being that Respondent accepted the "merger" as a continuation of such bargaining entity by its conduct on February 15, 1972, and thereafter. That the General Counsel's and Charging Party's theory of violation is so limited is seemingly apparent from the total litigation of the issues. Furthermore, if it is assumed that the General Counsel and Charging Party have not established a violation in such regard by Respondent (of refusing to bargain), the facts otherwise do not support a finding of violative conduct by Respondent. Thus, al- though the question of a proper bargaining demand by Local 43, a refusal to bargain with Local 43 by Respon- dent, and the appropriate bargaining unit, are all estab- lished, other essential elements are not established. Thus, the number of employees in the appropriate bargaining unit, at or around the time of Local 43's demand for bargaining on July 10, 1972, is not established. The facts as to the number of employees in the appropriate bargaining unit reveal that around February 1, 1972, there were apparently 21 or 22 employees in the appropriate unit and that 20 or 21 of such employees were members of Local 143. The facts further reveal that all of such employees as were members of Local 143 were transferred to Local 43. The facts otherwise reveal that later the number of employees in the appropriate bargaining unit increased and that in October 1972 there were approximately 44 employees in the appropriate collective- bargaining unit. There is no evidence to reveal that the number of employees in the appropriate collective-bargaining unit who were members of Local 43 increased from 20 or 21 until September or October 1972. Thus, the General Counsel has not established, excluding his successorship theory, that a majority of the employees in the appropriate collective-bargaining unit had authorized Local 43 to be their bargaining agent as of July 10, 1973. No presumption of majority status, excluding the successorship theory, can attach to Local 43 because of the collective-bargaining agreement between Local 143 and the Respondent. Excluding the successorship theory, such presumption of majority status from the collective-bargaining unit would attach to Local 143. Other evidence submitted in this case would reveal that Local 43 received authorization cards from a majority of the appropriate bargaining unit employees in September and October 1972. Were there to be a contention that the theory of Respondent's violation of Section 8(aX5) be based upon this, such fails because there is no evidence of independent unfair labor practices , and in accord with N.L.R.B. v. Gisse! Packing Company- 395 U.S. 575 (1969), the Respondent could insist upon the question of repre- sentative status being determined by a Board election. Although the foregoing is noted, it is clear that the General Counsel litigated this case on the basic theory that Local 43 became the successor of Local 143 in the sense of a continuing bargaining entity . As indicated, the General Counsel also litigated the question as to whether Respon- dent agreed to the "merger" between Local 143 and Local 43. Respondent's brief alludes to cases involving a "schism" issue.9 Although the facts in this case appear somewhat similar to those in "schism" cases, this case does not involve a typical "schism" issue.10 "Schism" cases involve situations wherein there are disputes between two unions as to who is the representative. In this case Local 143 and Local 43 are not in dispute as to who should be the bargaining representative . This case involves a question as to whether Local 43 is in effect the same bargaining entity as was Local 143.11 As in many cases there are consistencies and inconsisten- cies in the facts. Thus, after the Web members of Local 143 had merged into and been transferred as members to Local 43, a grievance procedure was continued as though processed by Local 143. Hurst signed a letter relating to such grievances, on February 15, 1972, for Local 143. Later, with respect to a grievance filed in October 1972, Hurst's letters were first as "acting chairman," then as from the Austin Printing Pressmen, and later as if from Local 43. On the other hand it may be argued that the letter of Respondent's gounsel on December 18, 1972, shows recognition of the status of Local 43 as bargaining representative, and it may be argued that it reveals that there is no question of majority status, only of the technical question of who was the representative. I have considered all of the foregoing consistencies and inconsistencies . In my opinion the evidence as to the consistencies and inconsistencies appears to reveal a matching of wits in the nature of legalistics pleadings. Thus, the letter that Hurst signed on February 15, 1972, about a grievance, and purportedly for Local 143, was on stationery of Respondent's attorney. The letters in October 1972, similarly, appear to be positions and clarifications in the nature of legalisms . Contrasted to the overall thrust of the evidence, I am not persuaded that such evidence aids in determining the issues in this case. The Charging Party argues that the facts in Canton Sign Co., 174 NLRB 906, are comparable to the facts in this case. The Charging Party argues that the Board's decision in Canton supports a finding of violative conduct in this case. The facts of the two cases are somewhat similar in general aspect but different in a vital respect. Thus, in Canton the predecessor union completely merged with another Union. In the instant case only a part of Local 143 has merged with Local 43. 9 Cf. Hershey Chocolate Corporation. 121 NLRB 901. claim could be made without being barred by the ousting contract. 10 Local 43's bargaining demand was made on July 10, 1972, within the Cf. Sears Roebuck and Company, 110 NLRB 226, period of time preceding the expiration of a contract wherein a competing NEWSPAPERS, INC. 21 Although Respondent attacks the validity of the "merg- er" between Local 143 and Local 43, 1 am persuaded that the "merger," to the extent that it is a "merger," is proper. However, the "merger" was not a merger of the entire unions, Thus, the question of whether such "merger" occurred does not resolve the question of Local 43's representative status. The facts in this case are akin to a situation wherein the employees in an appropriate collective-bargaining unit decide to switch affiliation. The Respondent contends in effect that when notified of the merger of Local 143's Web pressmen with Local 43, it would have committed an unfair labor practice if it had recognized and bargained with Local 43. Although there is language in some Board and court, cases that appear, to support this contention, I am not persuaded that this is a correct statement of princi- ple.12 Such language in such cases are with reference to different factual situations, or may be said to be dictum. I am persuaded that in February 1972, the Respondent could have agreed to the substitution of Local 43 for Local 143 as bargaining representative and as to the administra- tion of the contract. I am persuaded that no violation of the Act occurs when all interested parties are in agreement and when the employees involved have selected the second union as their representative. The facts reveal that the Respondent neither explicitly agreed to the change in representative nor clearly opposed such change. The issue in this case, however, is whether a violation occurred on or about July 10, 1972. There is, as indicated, a dispute as to the meaning of "merger." The term "merger" in the Union's constitution refers to merger of an entire union. It is clear that such term is not applicable in this case to what occurred. Local 143 did, in effectuating the merger of the Web pressmen, follow the principles of merger as set out in the constitution. Whether or not there was adherence to the constitution is not of controlling significance. What is important is whether the employees (members) had proper opportunity to express their desires. In this case, in practical effort, the Web members were severed from Local 143 and placed in Local 43 as a unit. In my opinion, the facts reveal that this was substantially their desires. Their desires appear to be to continue as a "Web Division" unit and to bargain jointly with Local 43.13 Considering all of the facts, I am persuaded that the General Counsel's theory that Local 43 became the successor of Local 143 in the sense of a continuing bargaining entity fails. Thus, the collective-bargaining entity that had the collective-bargaining agreemer with the Respondent in late 1971 and early 1972 was Local 143. Such bargaining entity was not the Web Division of Local 143. When the "Web Division" members were transferred from Local 143 to Local 43, in effect, the "Web Division" was severed from Local 143 and placed with Local 43. 12 Cf. Sherwood Ford, Inc., 188 NLRB 131. 13 Cf. Sherwood Forth Inc, 188 NLRB 131, wherein it was held that a second union could not bargain in effect as a representative for the recognized union when it was in effect a substitution of one union for the othhr But see Avon Convalescent Center, 204 NLRB 64. 14 In the event no exceptions are filed as provided by Sec. 102.46 of the Local 143 continued to exist, and Local 43 which had previously existed continued to exist with an added division. Thus, what occurred is not a mere change wherein Local 43 emerged as a continuation of the same bargaining entity or even as an entity which included the old bargaining entity. In sum, I conclude and find that Local 43 is not a successor to Local 143 in the sense of being in effect the same bargaining entity. Accordingly, on a successorship theory, the General Counsel has not established that Respondent had an obligation to bargain with Local 43 on July 10, 1972. Although Respondent did not appear to oppose the "merger" as such, Respondent did question the effect it might have on the local nature of bargaining. Coupling this with the February 15, 1972, letter of submission for arbitration signed by Hurst for Local 143, the facts are insufficient to establish that Respondent accepted the substitution of Local 43 as bargaining agent instead of Local 143. Considering all such facts, and the foregoing, it will, therefore, be recommended that the allegation of conduct violative of Section 8(a)(5) and (1) be dismissed. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Newspapers, Inc., publisher of The Austin American and The Austin Statesman, the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Houston Newspaper Printing Pressmen's Union No. 43, and Austin Printing Pressmen and Assistants' Union No. 143, each is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. All pressroom employees employed in the Respon- dent's pressroom operated in Austin, Texas, but excluding guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The facts do not establish that Respondent has refused to bargain with Local 43 (Houston Newspaper Printing Pressmen's Union No. 43) in violation of Section 8(a)(5) and (1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 The complaint in this matter shall be dismissed in its entirety. 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.