Sullivan Bros. Printers

561 317 NLRB No. 83 SULLIVAN BROS. PRINTERS 1 All dates are in 1993 unless otherwise indicated. Sullivan Brothers Printers, Inc. and Local 600M, Graphic Communications International Union, AFL–CIO. Case 1–CA–30834 May 24, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND COHEN On July 15, 1994, Administrative Law Judge Harold Bernard Jr. issued the attached decision. The General Counsel filed exceptions, a supporting brief, and an an- swering brief. The Respondent filed exceptions, a sup- porting brief, and an answering brief. Local 600M (the Union) and the Graphic Communications International Union, AFL–CIO (GCIU), the Intervenor, jointly filed exceptions and a request for oral argument, a support- ing brief, and an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order only to the ex- tent consistent with this Decision and Order. The judge concluded that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recog- nize and bargain with the Union and by unilaterally changing terms and conditions of employment of the Respondent’s employees represented by the Union in the pressmen’s unit after the Union merged with Local 109C, which formerly represented the Respondent’s employees in that unit. We adopt the judge’s conclu- sion for the reasons stated in his decision and the addi- tional reasons articulated below. The judge further concluded that the Respondent did not act unlawfully by refusing to recognize and bargain with the Union and unilaterally changing terms and conditions of employment of the Respondent’s em- ployees represented by the Union in the bookbinders’ unit after the Union merged with Local 139B, which formerly represented the Respondent’s employees in that unit. The judge based his conclusion on his find- ing that the merger vote which resulted in the Union’s taking over as the representative of the employees in the bookbinders’ unit was not accomplished with the requisite due process. The General Counsel, the Union, and the Intervenor have excepted to the judge’s dismis- sal of the complaint with respect to the bookbinders’ unit. We find merit in these exceptions. Local 139B represented employees employed in the bookbinders’ unit at the Respondent’s Lowell, Massa- chusetts printing plant for at least 33 years. The last collective-bargaining agreement covering that unit was negotiated between Local 139B and the Respondent and had an expiration date of August 31, 1993.1 Local 139B also represented a separate unit of bookbinders at North American Directory Company (NADCO), a larger employer in the same geographic area as the Re- spondent, whose employees dominated the local in terms of membership numbers and leadership. At the time of the events at issue, Local 139B was affiliated with the Intervenor here, as is the Union. The Union represents employees in a combined mix of printing industry classifications, including bookbinders, within a larger geographic area including Massachu- setts. Local 139B and the Union maintained separate constitutions and bylaws but were covered under the same International union’s constitution and bylaws. That International constitution encourages merger in all situations where more than one local exists in the same geographic area. It also discourages maintaining locals in situations where the local membership falls below 50 active members. In 1990, NADCO announced its impending closure, and thereafter closed its bindery operations in 1991. NADCO, however, retained 10 bindery employees in 1991, including Local 139B president, Oscar Becht, to assist the pressmen until February 1993, when the plant would close completely. Thus, Becht continued in office after the 1991 layoff and, along with another remaining officer, Jeanette Pickels, who served as Local 139B’s secretary and secretary-treasurer, pro- vided the local with continuing leadership in the ab- sence of a designated official shop steward for the Re- spondent’s bindery unit. In the early part of 1993, Becht unsuccessfully broached with the approximately 10 remaining Local 139B members employed by the Respondent the possibility of their assuming leadership of the Local in the future. He also discussed the option of merging with another local, including merger with the Union. He kept the Respondent’s bindery employ- ees informed about the status of his talks with the Union’s president, George Carlsen, regarding a pos- sible merger, which he informed them would be in the best interest of the Local. He received no negative feedback. Becht held no formal meetings with the remaining Local 139B members during this period because there was no place to hold such meetings after the NADCO bindery closure. After four or five informal meetings at the Respondent’s plant with the Respondent’s em- ployees informing them of the status of negotiations, Becht decided to conduct a vote on March 29 on the proposed merger. One week before, he informed the Respondent’s bindery employees that on that date he would bring around ballots for a vote on the merger. As was his customary practice, Becht personally in- formed the five or six day-shift employees and used employee Manny Mendez, a former NADCO em- 562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 In light of our findings here that the Board’s traditional due proc- ess requirements have been met in this case, we find it unnecessary to determine whether, in view of the Supreme Court’s opinion in Se- attle-First, supra, the Board lacks authority to impose due process requirements. Thus, we deny the joint request of the Union and the Intervenor for oral argument on this issue. 3 City Wide Insulation, supra, cited by the judge, formulates the continuity test as whether the postaffiliation union’s preexisting au- thority has substantially changed for the worse. ployee, as his contact person with respect to the rest. He instructed Mendez that everyone was to receive one ballot, the employees were to vote, and the ballots were to be put in an envelope, sealed, and returned to Becht. The next day he would return to pick up the en- velope. On March 29, Becht personally handed out ballots to the five or six day-shift employees proposing merg- er with the Union. He did not collect them. He left ballots with Mendez to give to the night-shift employ- ees. He instructed Mendez to collect the ballots, to seal the envelope, and to deliver it to Becht the following day. When Becht returned the next day, he got the sealed envelope, opened it, and counted the ballots in the presence of at least some of the unit employees. There were eight ballots in the envelope, all cast in favor of the merger. There was no objection raised to the merger vote process at the time of the count or at any time subsequently. On June 14, the Intervenor no- tified Becht and Carlsen it had approved the merger, termed an ‘‘administrative transfer,’’ retroactive to May 1. On June 22, Carlsen, former Local 109C President Henry Boermeester, and Becht met with Tom Bellamo, the Respondent’s chief financial officer. Carlsen in- formed Bellamo that the Union would be representing the Respondent’s bindery and press employees. This conversation was followed by a notice of contract ter- mination from Becht to Carlsen concerning the book- binders’ expiring agreement, in which Becht confirmed in writing that Carlsen would be representing the book- binders in negotiations for a successor agreement. On July 6, Carlsen formally notified the Respondent of the administrative transfer of Local 139B into the Union. Carlsen’s letter stated that all future dealings would be accomplished through the Union. Subsequently, after several unsuccessful attempts to schedule meetings with Bellamo, Carlsen was told to contact the Re- spondent’s attorney, who informed Carlsen the Re- spondent would not recognize and bargain with the Union as the representative of its employees in either unit. Since that time, the Respondent, contending it has no obligation to recognize and bargain with the Union, has made changes unilaterally in the wages, hours, and other working conditions of employees in the book- binders’ and pressmen’s units. Once certified by the Board or voluntarily recog- nized by an employer as the majority representative of unit employees, a union enjoys a presumption of con- tinued majority support and the employer has a cor- responding continuing obligation to recognize and bar- gain with the union. Minn-Dak Farmers Cooperative, 311 NLRB 942, 944 (1993), enfd. 32 F.3d 390 (8th Cir. 1994), citing Burger Pits, Inc., 273 NLRB 1001 (1984), and cases cited therein. A change in internal structure or affiliation does not necessarily change this obligation. Consistent with the Supreme Court’s admonition in NLRB v. Food & Commercial Workers Local 1182 (Seattle-First National Bank), 475 U.S. 192 (1986), that the paramount policy of the Act, i.e., encouraging stable bargaining relationships to preserve industrial peace, should not be unnecessarily disrupted, the Board will interject itself only in the most limited of circumstances involving such internal changes. Thus, only where an affiliation vote is conducted with less than adequate due process safeguards2 or where the or- ganizational changes are so dramatic that the post- affiliation union lacks substantial continuity with the preaffiliation union will the Board find the employer’s duty to bargain does not continue. Minn-Dak, 311 NLRB at 945; City Wide Insulation, 307 NLRB 1, 3 (1992);3 May Department Stores Co., 289 NLRB 661 (1988), enfd. 897 F.2d 221 (7th Cir. 1990), cert. de- nied 111 S.Ct. 245 (1990); and Quality Inn Waikiki, 297 NLRB 497 (1989). Further, the Board has consist- ently held that a party seeking to avoid its bargaining obligation by virtue of a change has the burden of demonstrating that the change was not accomplished with minimal due process, e.g., News/Sun-Sentinel Co., 290 NLRB 1171, 1176 (1988), enfd. 890 F.2d 430 (D.C. Cir. 1989); and Quality Inn Waikiki, 297 NLRB at 501 fn. 13; or was sufficient to raise a question con- cerning representation, e.g., Minn-Dak, 311 NLRB at 945, citing H. B. Design & Mfg., 299 NLRB 73 (1990). The practical and policy reasons underlying the Board’s approach are abundantly clear. At issue in this type of case are essentially internal union matters with respect to which, as noted above, a strong disapproval of unnecessary Board intervention has frequently been expressed by the courts and the Board itself. E.g., Se- attle-First, 475 U.S. at 204 fn. 11, and accompanying text, Insulfab Plastics, 274 NLRB 817, 821 (1985), enfd. 789 F.2d 961 (1st Cir. 1986); and Ocean Sys- tems, Inc., 223 NLRB 857, 859 (1976), enfd. 571 F.2d 850 (5th Cir. 1978), cert. denied 439 U.S. 893 (1978). Further, most affiliations or mergers would change a union’s organizational structure to some extent, but clearly such natural and foreseeable consequences would not automatically raise a question concerning representation. Action Automotive, 284 NLRB 251, 254 (1987). As the Court in Seattle-First, supra, recog- 563 SULLIVAN BROS. PRINTERS 4 Contrary to the judge who, without explanation, questioned the basis for Becht’s knowledge concerning the union membership status of the Respondent’s unit employees as being ‘‘without foundation,’’ we accept the veteran Local 139B officer’s uncontroverted testimony that all the employees in the 10-member unit were union members at the time of the vote. In doing so, we rely on his testimony that he was a Local 139B member for 33 years, during which time he held a variety of officer positions, including the period from 1986 through the time of the merger, as well as the fact that this is a small unit. 5 Nor is there any indication that the members were not afforded the opportunity of a secret-ballot vote. In this regard, the Board has repeatedly held that the rules governing Board elections are not ap- plicable to merger votes and that the precise procedures used are not critical. Thus, the failure to provide a voting booth or some other mechanism to assure secrecy of ballots has not been found to invali- date a merger vote in the absence of any evidence that individuals observed others voting or that ballots had been tampered with. Ham- mond Publishers, 286 NLRB 49, 51 (1987). Further, although the Board has indicated in a number of cases that secret balloting is re- quired for minimal due process, the Board has nonetheless found mail balloting or the absence of secret balloting not to invalidate a merger election. See News/Sun-Sentinel, 290 NLRB at 1176; May Department Stores, 289 NLRB at 664–665; and Aurelia Osborn Fox Memorial Hospital, 247 NLRB at 359. 6 Similar to the facts here, in Insulfab, 279 NLRB at 823, in find- ing that its due process requirements had been satisfied, the Board specifically noted that no one present was ineligible to vote and that the unit was small so that all the facts were known to the employees and no one objected. nized, change is the natural consequence of ordinary, valid reasons for affiliations and mergers, such as in- creased financial support and bargaining power. Se- attle-First, 475 U.S. at 199 fn. 5. In sum, as we have stated, ‘‘[t]he notion that an organization somehow loses its identity and becomes transformed . . . be- cause it acquires more clout and becomes better able to do its job is an absurdity and one which flies squarely in the face of a clearly stated congressional objective . . . .’’ Insulfab, 279 NLRB at 823. Thus, in many cases a majority of employees will continue to support a union despite any affiliation or similar changes. Seattle-First, 475 U.S. at 203 fn. 10, and accompanying text. Additionally, as the judge noted, situations involving mergers of sister locals have less inherent potential for significant change than other types of changes. Toyota of Berkeley, 306 NLRB 893, 903 (1992), partially vacated on other grounds Nancy Watson-Tansey, 313 NLRB 628 (1994). See also F. W. Woolworth Co., 305 NLRB 775, 779 (1991), citing American Mailers (Plant #2), 231 NLRB 1194 (1977), enfd. 622 F.2d 242 (6th Cir. 1980). In light of the above, the Board’s analysis, rather than being mechanistic and using a strict checklist, is directed at analyzing the totality of circumstances in order to give paramount effect to employees’ desires. See Minn-Dak, 311 NLRB at 945; Central Washington Hospital, 303 NLRB 404, 404 and fn. 6 (1991); Qual- ity Inn Waikiki, 297 NLRB at 502; Aurelia Osborn Fox Memorial Hospital, 247 NLRB 356, 359 (1980); and American Mailers, 231 NLRB at 1195. Applying these principles to the facts of this case, we find that the merger of Local 139B and the Union was accomplished with at least minimally adequate due process and did not sufficiently change the former union so as to raise a question concerning representa- tion. Thus, we conclude that the Respondent violated Section 8(a)(5) when it refused to recognize and bar- gain with the Union and unilaterally changed terms and conditions of employment of the Respondent’s employees in the bookbinders’ unit. As stated above, the burden of establishing lack of adequate due process in the merger vote rests with the Respondent and, in the absence of substantial irregular- ity, the Board will not normally concern itself with the union’s internal voting procedures. Ocean Systems, 223 NLRB at 859. Here, as detailed above, Becht accorded Local 139B members adequate notice and a sufficient opportunity to discuss the merger prior to the vote. The fact that no formal meetings were held is not sig- nificant, especially in light of the fact that Becht’s interaction with the remaining Local 139B members was consistent with his established practice. With respect to the vote itself, there is no evidence that it was not accomplished with adequate procedural safeguards. Becht knew that all the employees were current union members.4 He personally distributed the ballots to day-shift employees and entrusted Mendez to distribute ballots to the night-shift employees and to collect the ballots and place them in a sealed envelope. Becht’s use of Mendez as a conduit was again consist- ent with his established practice. The ballots were in a sealed envelope, exactly as Becht had requested, when he retrieved them the following day. There was no evidence at all that the ballots had been tampered with or that their secrecy had in any manner been compromised.5 Most important, there is no indication that any individual objected to the voting procedures or any aspect of merger either at the time of the vote or any time subsequently, or that the vote did not re- flect the majority view.6 In these circumstances, par- ticularly noting that this case involves the merger of sister locals and that no one objected, we find the Board’s standard of minimal due process to be satis- fied. F. W. Woolworth, 305 NLRB at 779, citing American Mailers, 231 NLRB at 1195. We further find, for reasons substantially similar to the judge’s determination with respect to the book- binders’ unit, that under all the circumstances the changes between Local 139B and the Union after the merger were not so dramatic as to raise a question concerning representation. With respect to leadership, as the judge noted, citing Service America Corp., 307 NLRB 57 (1992), the Board has found that this is merely one element to be considered. The situation here is somewhat unusual. Pickels and Becht, the only remaining Local 139B officers at the time immediately 564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 In this regard, bindery employees employed by the Respondent had no chapel chair, i.e., steward, before the merger when rep- resented by Local 139B or after the merger when represented by the Union. 8 Carlsen testified that it was his intention to have the following individuals on the Union’s negotiating committee for the Respond- ent’s bindery employees: himself, Becht, Steve Wysocki (the steward from the printing unit who in the past has acted as chapel chair in the absence of a steward for the bindery unit), and a bindery unit employee if possible. 9 According to the record, Local 109C required a three-quarter vote of the shop by secret ballot before a strike could be called, and, according to Becht’s testimony, he believed that Local 139B re- quired a two-thirds majority vote before a strike could be called. preceding the merger, were offered positions with the Union. These individuals were no longer employed by NADCO at the time of the merger and declined to be- come officers in the merged Local. Thus, the dis- continuity in leadership was caused by the free choice of the former leaders themselves, and not by any pol- icy of the Union. In any event, Becht agreed to serve on the Union’s negotiating committee. There essen- tially was no other existing leadership at the time of the merger.7 In fact, as in Service America, 307 NLRB at 60, the record indicates that Local 139B’s potential problem servicing members in the future after the NADCO closing because of lack of adequate leader- ship was one of the primary reasons behind the unions’ merger. Thus, Becht, who previously served on Local 139B’s negotiating committee, will continue to per- form the same leadership role with respect to the Union’s negotiations with the Respondent. Otherwise, as in the past, negotiations will be accomplished by the president of the union, who, as in the past, will not be one of the Respondent’s employees.8 In all other re- spects, the leadership, or lack thereof, remains the same and is a natural consequence of the NADCO closing, and not of the merger itself. Membership was extended automatically by the Union to former Local 139B members, with no assess- ment of any initiation fees. Additionally, the Union has demonstrated its willingness to assume the former Local 139B collective-bargaining agreement. As mem- bers of the Union, the former members of Local 139B are covered by the same International constitution and bylaws. As previously, they are also covered by a sep- arate constitution and bylaws subordinate to the Inter- national governing documents. The constitution and bylaws of both Locals are substantially the same con- cerning membership requirements, strike votes, con- tract ratification procedures, and grievance handling. As with Local 109C, which represents the press- men’s unit, the Local 139B requirement for eligibility to hold elected union officer positions is 4 years’ membership, as opposed to 5 years under the Union’s procedures. Contrary to the Respondent’s argument, however, this difference is of no practical effect be- cause all former Local 139B employees meet the high- er eligibility requirement imposed. Further, as dis- cussed by the judge with reference to the pressmen’s local, another slight difference involves dues structure. Local 139B imposed a flat dues rate while the Union imposes dues based on a sliding scale, which would result in an overall increase for former Local 139B members. As noted above, however, former Local 139B members are not being charged initiation fees and there was no showing that the differences in dues rates were substantial. See Central Washington Hos- pital, 303 NLRB at 404 fn. 8. As the Respondent asserts, there is also a difference between Local 139B’s bylaws (and those of Local 109C) and those of the Union with respect to mem- bers’ rights to accept outside employment, with the lat- ter containing a restriction. There is no indication, however, that the Union has ever invoked its provision restricting a members’ ability to accept outside em- ployment. It is actual practice rather than policy which controls. See Central Washington Hospital, 303 NLRB at 405. Thus, in the absence of evidence that the Union has ever enforced its bylaw policy, we find no signifi- cant change. Similarly, the Respondent contends that the Locals’ ability to call a strike is dramatically changed after the mergers of Locals 139B and 109C with the Union be- cause the Union’s executive board would have the right to call a strike in either unit of the Respondent’s employees without conducting a strike vote, contrary to the Locals’ former procedures. The Union’s bylaws do provide that in ‘‘special cases’’ involving units of fewer than 25 members where the board is satisfied that the strike is supported by the membership and the International and would have no adverse impact on the Local, the executive board may authorize a strike with- out a vote. Once again, however, it is practice rather than policy which is critical under Board precedent. In this regard, Carlsen testified that it is the Union’s prac- tice to have the individual shop that will be the subject of a possible strike conduct a strike vote by secret bal- lot with a two-thirds majority vote necessary to author- ize a strike. Thus, in terms of actual practice, there is, at most, a minimal difference between the two locals’ premerger procedures and those of the Union.9 Further, the Respondent points out that, contrary to former Local 139B’s procedures, the Union’s proce- dures allow its executive board to accept a contract offer contrary to its membership’s vote. Although there is evidence that the Union’s procedures do allow its executive board to accept contracts contrary to the vote of its membership, it is clear that this procedure takes effect only in a very limited situation, i.e., where a unit rejects a contract offer, votes not to strike, and does not accept the executive committee’s recommendation. 565 SULLIVAN BROS. PRINTERS 10 As indicated above, practice rather than policy is controlling in assessing the extent of changes. 11 There is little evidence in the record about contract administra- tion practices. Becht testified that under Local 139B, grievances would be resolved informally by a shop employee in the first in- stance. If attempts to informally resolve the grievances at the shop level were unsuccessful, Becht, as president of the Local, would have the authority to resolve grievances. Carlsen testified briefly about how the Union handles grievances. After initial attempts to re- solve the grievances at the shop level by the affected individual and then the shop delegate, he has the authority to resolve grievances. Thus, the evidence does not show any significant differences in grievance handling procedures. 12 Local 139B represented bookbinders’ units in the Lowell, Mas- sachusetts area. The Union represents a combined mix of printing in- dustry classifications, including bookbinders, in a larger geographic area encompassing the Lowell, Massachusetts area. Carlsen esti- mated that about 500 members of the Union’s 700 members are em- ployed as pressmen or bookbinders. 13 In Service America, supra, the Board distinguished cases in which the affiliated or merged union underwent enormous changes in size, organization, structure, and administration from the situation where in all significant respects the employer was bargaining with an entity similar to the one with it had previously recognized and bargained with, characterizing the changes that occurred as more in the nature of administrative changes. Under these limited circumstances, such a difference does not rise to the level of a significant change. Se- attle-First National Bank, 290 NLRB 571, 573 (1988). The Respondent also asserts that the manner in which the unit’s collective-bargaining agreement will be negotiated and administered will be different under the Union than it was under Local 139B. In support, it refers to testimony that Union President Carlsen in- tends to engage in joint contract negotiations for the Respondent’s bookbinders and pressmen, rather than separate negotiations, as Local 139B and Local 109C did previously. The Respondent also refers to the Union’s bylaw provision indicating that members of the shop must submit contract proposals in writing, as contrasted with former Local 139B’s practice of seek- ing suggestions from the unit on contract proposals orally rather than in writing. As to suggestions for con- tract proposals, although Carlsen conceded that the Union’s bylaws state that suggested contract proposals must be submitted in writing to the president 90 days prior to contract expiration, he also testified that in practice its procedures for seeking proposals from em- ployees are flexible.10 He further testified that he merely suggested joint negotiations as a possibility and would be willing to conduct either separate or joint ne- gotiations as the employees wished. There is no evi- dence that the Union would insist on joint negotiations if the Respondent sought separate negotiations for the separate units. Thus, Carlsen indicated that he is ame- nable to negotiating in the same manner as the former local did previously. Under these circumstances, we cannot agree that procedures for contract negotiations differ dramatically.11 In sum, as the judge found with respect to the pressmen’s unit, the merger of Local 139B and the Union resulted in little practical change, with the Re- spondent’s bindery employees remaining an intact and autonomous group within the same International and governed by the same International constitution and bylaws. In this context, consistent with the finding of the judge with respect to the pressmen’s unit, we agree that the change in size between the premerger Local 139B and the Union is not sufficient to raise a ques- tion concerning representation in the absence of other factors. It is clearly true that the numerical strength of Local 139B was diminished considerably by the NADCO closing. Thus, at the time of the merger, there was a substantial disparity between the sizes of Local 139B and the Union. As the judge found with respect to the pressmen’s local, however, the size of Local 139B fluctuated considerably during the course of its long history. Further, the unit of bindery employees employed at the Respondent was historically just a small portion of the local’s membership. In sum, the Respondent’s bindery employees remain a small seg- ment of a larger local representing similar craft em- ployees within the same geographic area under the same International.12 In any event, the Board has not found increased size alone to be significant, especially where, as here, the merger of two sister locals is in- volved. See, e.g., Service America, 307 NLRB at 60– 61;13 Toyota of Berkeley, 307 NLRB at 904; and Ken- tucky Power, 213 NLRB 730, 731 (1974). Similarly, in this context, we find that the transfer and commingling of assets is not dispositive. Although Local 139B’s monetary assets were transferred to the Union and commingled with other funds, there is no showing that the Respondent’s bindery unit employees have less money available to them. To the contrary, Carlsen’s testimony establishes that the full resources of the Union are available to the former Local 139B unit in connection with its efforts to represent its mem- bers. Toyota of Berkeley, 306 NLRB at 904. As dis- cussed above, the Court in Seattle-First, 475 U.S. at 198 fn. 5, specifically recognized that increased size, financial support, and bargaining power are ordinary and valid reasons for mergers and affiliations. Toyota of Berkeley, 306 NLRB at 904. Thus, as found pre- viously, it would frustrate a purpose of the Act to find that employee expressions of desires to achieve these goals through affiliations and mergers automatically raised questions concerning representation. Accordingly, we find that by refusing to recognize and bargain with the Union as the exclusive represent- ative of the Respondent’s bindery employees and uni- laterally changing unit employees’ terms and condi- 566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 We recognize that the Court of Appeals for the First Circuit af- firmed the district court’s denial of 10(j) relief in this case. Pye v. Sullivan Bros. Printers, 147 LRRM 2584 (1st Cir. Oct. 26, 1994). In doing so, the court held that the district court did not abuse its ‘‘discretion in concluding that the Board had not demonstrated a clear likelihood of success,’’ and thus ‘‘injunctive relief would not have been just and proper.’’ Of course, that decision is not a final adjudication of the merits. Coronet Foods, Inc. v. NLRB, 981 F.2d 1284, 1288 (D.C. Cir. 1993) (expressing doubt that ‘‘district court finding in a 10(j) auxillary proceeding would later bind the NLRB when ruling, definitively on the unfair labor practice charge’’). See also Roofers Local 30 v. NLRB, 1 F.3d 1419, 1425 fn. 9 (3d Cir. 1993) (appellate court’s affirmance of district courts’ finding in a 10(l) injunction proceeding that certain picketing was lawful is not binding on either the Board or the reviewing appellate court in the subsequent proceeding on the merits). For the reasons set forth here- in, we find that a preponderance of the evidence establishes a viola- tion. 15 In accordance with the General Counsel’s request, we modify the judge’s Order to require the Respondent to honor the existing checkoff provisions of the current pressmen’s collective-bargaining agreement. We shall not modify the judge’s Order to require the same with respect to the bookbinder’s contract in light of the fact that the bookbinder’s agreement has expired. It is well settled that the checkoff obligation does not survive contract expiration. See, e.g., Litton Business Systems v. NLRB, 501 U.S. 190 (1991), and In- diana & Michigan Electric Co., 284 NLRB 53, 55 (1987). We fur- ther modify the Order to require the Respondent to remit all fees and dues owed under the collective-bargaining agreements, as opposed to only those collected, in accordance with the General Counsel’s re- quest. 16 To the extent that an employee has made contributions to a pen- sion fund that have been accepted by the fund in lieu of the Repondent’s delinquent contributions during the period of delin- quency, the Respondent shall reimburse the employee, but the amount of such reimbursement will constitute a setoff to the amount that the Respondent otherwise owes the fund. Any additional amounts owed with respect to these fund contributions shall be cal- culated in the manner set forth in Merryweather Optical Co., 240 NLRB 1213 (1979). 17 Kraft Plumbing & Heating, 252 NLRB 891 (1980). tions of employment, the Respondent violated Section 8(a)(5) of the Act.14 ORDER15 The National Labor Relations Board orders that the Respondent, Sullivan Brothers Printers, Inc., Lowell, Massachusetts, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to recognize and bargain with Local 600M, Graphic Communications International Union, AFL–CIO as the exclusive representative of the em- ployees in the pressmen’s and bookbinders’ units de- scribed below. (b) Repudiating the collective-bargaining agreements applicable to the employees in the pressmen’s and bookbinders’ units. (c) Failing to make contributions to the pension funds owed under the collective-bargaining agreements covering the pressmen’s and bookbinders’ units. (d) Unilaterally changing wages, hours, and working conditions of employees in the units described below without prior notice to the Union and without first af- fording the Union an opportunity to meet and bargain concerning these matters. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, recognize and bargain with Local 600M concerning the wages, hours, and other terms and conditions of employment for the employees in the following appropriate units and, if agreements are reached, embody the terms of the agreements in signed written documents: Pressmen’s Unit: All color cameramen and darkroom, black and white cameramen and darkroom, dot etchers, platemakers-black and white, photocomposer op- erators, platemakers-color, strippers, copy pre- paration, pasteup, layout and imposition, opaquers and artist, prepreparation, and plate processors, but excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. Bookbinders’ Unit: All journeyman I, journeyman I apprentices, and journeyman II employees and helpers, but exclud- ing all other employees, office clerical employees, guards and supervisors as defined in the Act. (b) Honor the terms and conditions in the current collective-bargaining agreement covering the press- men’s unit above effective June 1, 1992, through May 31, 1995, and the terms of the collective-bargaining agreement covering the bookbinders’ unit effective from September 1, 1990, through August 31, 1993, that survive contract expiration. (c) Adhere to the union-shop provisions of the col- lective-bargaining agreements described here. (d) Transmit to Local 600M any and all fees and dues owed under the collective bargaining agreements described here, with interest as set forth in the remedy section of the judge’s decision. (e) Resume pension contributions as required under the terms of the collective-bargaining agreements de- scribed here, including paying past due and unpaid contributions.16 (f) Resume honoring the checkoff provisions of the pressmen’s current collective-bargaining agreement de- scribed above. (g) Make whole employees in the pressmen’s and bookbinders’ units described above for any losses they may have suffered because of any unilateral changes in wages, hours, and other working conditions17 or be- 567 SULLIVAN BROS. PRINTERS 18 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the 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.’’ cause of the Respondent’s failure to abide by the col- lective-bargaining agreements applicable to those unit employees, to be computed as set forth in Ogle Protec- tion Service, 183 NLRB 682 (1970), plus interest com- puted in the manner set forth in the remedy section of the judge’s decision. (h) On request by Local 600M, rescind all unilateral changes; however, adhere to any changes in wages, benefits, or other terms and conditions of employment for unit employees which were unilaterally instituted but are superior to those set forth in the agreements, except on request by the Union. (i) Post at its Lowell, Massachusetts plant copies of the attached notice marked ‘‘Appendix.’’18 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (j) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to recognize and bargain with Local 600M, Graphic Communications International Union, AFL–CIO as the exclusive representative of our pressmen and bindery employees in the following ap- propriate units: PRESSMEN: All color Cameramen and darkroom, black and white cameramen and darkroom, dot etchers, platemakers-black and white, photocomposer op- erators, platemakers-color, strippers, copy prepara- tion, pasteup, layout and imposition, opaquers and artist, pre-preparation, and plate processors, but excluding all other employees, office clerical em- ployees, guards and supervisors as defined in the Act. BOOKBINDERS: All journeyman I, journeyman I apprentices, and journeyman II employees and helpers but exclud- ing all other employees, office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT repudiate the collective-bargaining agreements applicable to the employees in the units de- scribed above. WE WILL NOT fail to make contributions to the pen- sion funds owed under the collective-bargaining agree- ments covering the units described above. WE WILL NOT unilaterally change wages, hours, and working conditions of employees in the units described above without prior notice to the Union and without first affording Local 600M an opportunity to meet and bargain concerning these matters. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, recognize and bargain with the Union concerning the wages, hours, and other terms and conditions of employment for our employees in the bargaining units described above, and and put in writing and sign any agreements reached. WE WILL honor the terms and conditions of the cur- rent collective-bargaining agreement covering the pressmen’s unit effective June 1, 1992, through May 31, 1995, and the terms of the collective-bargaining agreement covering the bookbinders’ unit effective from September 1, 1990, through August 31, 1993, that survive contract expiration. WE WILL adhere to the union-shop provisions of the collective-bargaining agreements described here. WE WILL transmit to Local 600M any and all fees and dues owed under the collective-bargaining agree- ments described here, with interest. WE WILL resume pension contributions as required under the terms of the collective-bargaining agree- ments described here, including paying past due and unpaid contributions, with interest. WE WILL resume honoring the checkoff provisions of the pressmen’s current collective-baragaining de- scribed above. WE WILL make whole employees in the units de- scribed above for any losses they may have suffered because of any unilateral changes in wages, hours, and other working conditions or because of our failure to abide by the collective-bargaining agreements de- scribed above, with interest. WE WILL, on request of Local 600M, rescind all uni- lateral changes; however, we will adhere to any changes in wages, benefits, or other terms and condi- tions of employment for unit employees which were 568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Local 109C, Graphic Communications International Union, AFL– CIO; and Local 139B, Graphic Communications International Union, AFL–CIO. unilaterally instituted but are superior to those set forth in the agreements described above, except on the Union’s request. SULLIVAN BROTHERS PRINTERS, INC. Kevin J. Murray, Esq., for the General Counsel. Robert P. Corcoran, Esq., of Boston, Massachusetts, for the Respondent. Anton G. Hajjar, Esq., of Washington, D.C., for the Charg- ing Party and Intervenor. DECISION STATEMENT OF THE CASE HAROLD BERNARD JR., Administrative Law Judge. I heard this case in Boston, Massachusetts, February 3 and 4, 1994, on a charge filed August 23, 1993, and complaint dated Oc- tober 28, 1993, with later amendments alleging Respondent refused to recognize and bargain with Charging Party (Local 600M) and unilaterally changed employment terms and con- ditions of employment for employees in established contract covered bargaining units represented by Local 600M thereby violating Section 8(a)(5) and (1) of the Act. Respondent mainly admits it took the unilateral actions alleged in the complaint and amendments thereto but contends it had no duty to recognize or bargain with Local 600M and is there- fore blameless. It bases its defense on the grounds that em- ployees did not have a fair opportunity to decide whether to be represented by Local 600M in the course of a merger or administrative transfer by their established bargaining rep- resentatives (Local 109C and Local 139B)1 into Local 600M and because the action produced dramatic changes in Locals 109C and 139B so that there is no continuity in employees’ representation thereby nullifying any bargaining duties it had under the Act. Based on the parties’ briefs, the witnesses’ demeanor on the stand, and the entire record, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is engaged in the commercial printing business at its facility in Lowell, Massachusetts, and annually pur- chases supplies valued in excess of $50,000 directly from sources outside Massachusetts. Respondent also annually per- forms services valued in excess of $50,000 for customers outside Massachusetts. As admitted, I find Respondent is an employer engaged in commerce under the Act. I further find that at all relevant times, Locals 109C, 139B, and 600—Re- spondent admitting only with respect to the status of 600M while contending in its answer that the former Locals lost their status after the merger—constituted labor organizations within the meaning of the Act. Appropriate Bargaining Units The parties agree that the following employees of Re- spondent (the pressmen’s unit) constitute an appropriate unit for collective bargaining: All color cameramen and darkroom, black and white cameramen and darkroom, dot etchers, platemakers- black and white, photocomposer operators, platemakers- color, strippers, copy preparation, pasteup, layout and imposition, opaquers and artist, pre-preparation, and plate processors, of Respondent but excluding all other employees, office clerical employees, guards and super- visors as defined in the Act. They further agree that the following employees (the book- binders’ unit) All journeyman I, journeyman I apprentices, and jour- neyman II employees and helpers, but excluding all other employees, office clerical employees, guards and supervisors as defined in the Act, constitute an appropriate unit for collective bargaining. These units’ existence date back many years, the latest contract covering the pressmen Local 109C unit running from June 1, 1992, to May 31, 1995; the bookbinders’ Local 139B agree- ment from September 1, 1990, to August 31, 1993. (G.C. Exhs. 3 and 12.) Based on the record and the parties’ agree- ment, I find the long-established bargaining units to be ap- propriate ones under the Act. II. UNFAIR LABOR PRACTICES A. Background The facts are not in dispute. Local 109C represented em- ployees in the pressmen’s unit employed at Respondent’s plant since 1960 or so, as well as separate pressmen’s units at North American Directory Company (NADCO), the Low- ell Sun, Brady Business Forms, and Bellerica Publishing, all located in the greater Lowell, Massachusetts area, since at least the 1950s. Local 139B represented units of bookbinders at Respondent’s plant for at least 33 years and a separate bookbinder unit of employees at NADCO, also for a long pe- riod of time. This long history is marked by many collective- bargaining agreements between these unions and the employ- ers, as well as marked structural changes in the form of mergers and affiliations by the labor organizations, such as the mergers leading Local 109C from under the original aegis of the International Printing Pressmen’s and Assistants Union to its affiliation with Graphic Communications Inter- national Union, AFL–CIO (GCIU), and mergers by Local 139B leading from its earlier affiliations with the Inter- national Brotherhood of Bookbinders, then merging with the Photoengravers and Lithographers Union in 1975 followed by yet another merger of International unions leading to the affiliation with the GCIU as a sister local to Local 109C. Re- spondent continued recognition of the two locals throughout the course in their earlier structural changes. Local 600M for its part is a third sister local to Locals 109C and 139B under GCIU formed from and representing a combined mix of printing industry job classifications, including printing press- men and bookbinders with a somewhat larger geographical jurisdiction encompassing Nashua, New Hampshire, and Bos- 569 SULLIVAN BROS. PRINTERS ton, Massachusetts, including a plant located about 5 miles from Lowell, Massachusetts. The three locals maintained separate constitutions and by- laws but functioned also under the shared governance of the constitution and bylaws of the GCIU. (G.C. Exh. 20.) Membership levels in Locals 109C and 139B likewise re- flect ever continuing fluctuations; Local 109C membership numbering 350 in 1984 dropping to 240 in October 1991 and then to about 40. For its part Local 139B membership reached 400 in 1975, decreased to 145 in 1990, 20 in 1991, and then dropped down to 10 members in 1993. Local 600M membership increased from its formation some 15 to 20 years ago and mergers to a current level of 700 active mem- bers employed at 40 locations in its described area. Historically the NADCO employee members, some 210 outnumbered those employed by Respondent (18), Lowell Sun (12), Brady (3), and Billerica (1)—(there also being, in addition, 6 members at large) represented by Local 109C, as well as those represented by Local 139B and employed by Respondent (10 or 11) and NADCO (125–135). Given the pooling of votes system of determining winning candidates in the election of union officers it is not surprising that all but one of the elected officers for each local emerged from the NADCO ranks of employees. The demise in NADCO’s business in 1991, when it shut down its bindery operation, later closing the pressroom on March 12, 1993, and dismissing employees, had little or no immediate effect on the nature or viability of the locals’ con- tracts’ administration as Locals 109C and 139B continued to represent employees at the shops remaining. Employees at Respondent’s plant continued to constitute a separate appro- priate bargaining unit as did employees at the other employ- ers’ locations. Local 109C president and long-experienced Union Officer Henry Boermeester had negotiated two prior agreements covering Respondent’s 109C–represented em- ployees with assistance from Steve Wysocki a union chapel chairman and employee of Respondent, and the then current contract administration continued unabated. Oscar Becht, also a veteran officer in Local 139B, having held the position of shop steward, secretary-treasurer, vice president, and more recently president of the Local from 1986 to 1990 and then to June 1991 negotiated two contracts covering Respondent’s book binder employees with an employee’s assistance. There was historically no Local 139B shop steward exclusively for Respondent’s bindery employees; employees discussed work- place matters with Becht directly. The NADCO closure also had little impact on Respondent’s employees as they rarely if ever attended the NADCO employee-dominated meetings of either Local unless matters specific to their concerns at the Sullivan workplace drew them there. The lessened number of bargaining units, as well as the fewer members there to be serviced by remaining local union representatives, together with the fact that the existing contracts represented long-set- tled employment terms and conditions of the plant for em- ployees in these shops, is consistent with the uncontradicted view that during the long period of time in the aftermath of the NADCO closure and the merger between the locals here- after described (1991 to 1993), the two local union presidents and three chapel chairmen, with customary assistance from bargaining unit members kept representation matters running normally. B. Merger However, Local 109C President Henry Boermeester alerted to the prospect by an earlier NADCO announcement of the impending closing, published October 1990, and ‘‘not about to walk away from [the future remaining members of 109C]’’ searched for alternatives in the event, as was the case early on he could not find candidates for the open posi- tions to be left vacant by the future plant closing—connected termination of Local 109C officers numbered among the ter- minated employees, while at the same time with other lead- ers described above continued employees’ representation. Chapter 15, paragraph 1, in the GCIU constitution strongly urges a merger in all situations where one or more local unions of the International exists in the same geographical area. (G.C. Exh. 4, p. 135.) He explored this possibility with the GCIU secretary-treasurer, Guy Devito, in order as he tes- tified to look out for the best interest of the employees, as his term as president was to expire January 1994 and, in ad- dition, it would be necessary for him to seek pressman em- ployment elsewhere at some point. He also explored merger with another union Local 67 a newspaper employee union, and considered talk of Locals 109C and 139B merging. He then discussed merger with Local 600M President George Carlsen in October 1992, telling Carlsen that if it turned out that his efforts to find someone else to run the local did not succeed there might have to be a merger. Carlsen said if that condition turned out to be the case they could talk further. Local 139B President Oscar Becht continued in office after the June 1991 layoff of other bindery employees when NADCO closed its bindery because NADCO kept 10 bindery employees, including Becht, on duty to assist the pressmen there until February 26, 1993, when the plant would close down altogether. At that point President Becht, with record- ing secretary, and secretary-treasurer, Jeanette Pickles, to- gether with willing employees from among the remaining eight members under their continuing leadership at Respond- ent’s plant handled grievances and administered the terms in the contract with Respondent dated September 1, 1990, and due to expire August 31, 1993. Since the unit there had func- tioned much as a separate satellite-like group to the NADCO prior unit mainly without any recent 139B officers from among Respondent’s employees here also the actual nature of representation continued, for the time being at least, in an uneventful manner. Becht also met with Carlsen, Boermeester, Pickles, and Local 139B members on and before March 1993 seeking Re- spondent employees to run the local in the future, presenting the alternative of a merger with Local 600M. He discussed the progress in such talks directly with five or six bindery employees on the day shift and had the information relayed to some three or four night-shift employees at the plant as there was no place to hold a formal meeting. Becht credibly testified that he informed employees in order for them to continue union affiliation the local needed to merge with a larger local, that Local 600M would take care of them the best, and that he did not get any negative feedback. Local 109C conducted membership meetings concerning, inter alia, a proposed merger with Local 600M where discus- sion ensued on the subject on November 1, 1992, including consideration of merger with sister Local 139B or Local 67, and on December 6, 1992, wherein Carlsen as an invited guest described Local 600M and took a number of questions 570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from the floor regarding the proposed merger to which he re- sponded. After Carlsen left the meeting, members discussed the topic further and Boermeester testified that the employees seemed satisfied. (Minutes of union meeting G.C. Exh. 6.) He decided to schedule a vote on the proposed merger to be held at the January 10, 1993 local union meeting and in- structed union stewards to post notices, testifying he told them the notice should contain the fact that the merger vote would be taken then and that such notices appeared in all the shops. Becht testified that he informed Respondent’s employees via a former NADCO employee he knew over the years then working for Respondent, Manny Mendez, a week beforehand that he would be bringing ballots around for employees to use for a vote on the merger question—a vote he recalled being conducted on March 29, 1993. C. Voting Procedures Local 109C voting on the merger at a doughnut shop used as a union hall occurred as scheduled beforehand and as noti- fied members. Boermeester presided. Employees some 35 to 40 from all the Local 109C-represented shops attended, in- cluding 10 or 11 from Respondent’s plant. He explained that a yes vote on the ballot was to merge and a no vote not to merge. The record supports the conclusion that a motion from the floor to postpone the vote was denied for reason- able cause, namely, that hoped-for contacts in the past with other conceivable merger candidates had led nowhere but to the conclusion that such candidate unions were not inter- ested, and because the meeting had been noticed enough in advance to have afforded other leads to have surfaced by then and because it was Boermeester’s sense that many em- ployees had showed up specifically because of the vote, lending value to the idea of taking it then with a good turn- out of members at hand. He asked those employees present who had no future interest in the local, those about to retire and for further example NADCO employees leaving employ- ment in the industry and those on the brink of becoming honorary life long members due to being over 50 kindly to abstain from voting though he assured them they had the right to vote. He prevented no one from voting and the record is free of any suggestion to the contrary. He gave each member who wanted to vote a ballot. The voter could cover the ballot with his or her hand or walk to the rear of the room, mark his or her ballot, and deposit it in a locked ballot box. Four members randomly selected from the floor by him counted the ballots after unlocking the box. Their tally of votes showed 19 in favor of the merger and 6 against. Local 139B voting took place as scheduled at Respond- ent’s plant on March 29, 1993. Becht—139B president—ear- lier, the week before informed employees he would be there on this date, that he would bring ballots to be used for a vote on whether to merge with Local 600M. He spoke with a day- shift employee directly and told employee Manny Mendez everyone was to receive one ballot, that they were to vote then put the ballot in an envelope, sealed and returned to him. No employee voiced any objection to the proposed pro- cedure. On voting day, Becht testified he handed out ballots to five or six employees, everyone on the day-shift present. The ballots are inscribed with the words: ‘‘OFFICIAL BAL- LOT PROPOSED MERGER WITH LOCAL 600M BOS- TON, MA. YES [ ] NO [ ].’’ (G.C. Exh. 15.) He left bal- lots for the night-shift employees to use with Mendez for dis- tribution to them. Becht told employees the ballots were to be placed back into the envelope and that Mendez was to then seal the envelope and deliver it to him the following day. On opening the sealed envelope the next day, he count- ed eight ballots, all being votes cast in favor of the merger. Becht was not present when the ballots were reportedly passed out the evening before the ballot count, which took place at noon—the day after he had passed out ballots to the day shift. Becht testified to the ‘‘belief’’ that someone re- ferred to only as ‘‘he’’ just handed the ballots out without checking names off at night and that the ‘‘individual’’ who passed them out at night was responsible to collect them. Without any foundation being first (or later) provided for such statement, Becht also testified that the employees who voted all were union members at the time of the vote. How he knew this is unexplained. Also left devoid of any inform- ative answers are significant questions of who had custody of the envelope from the time it was delivered to employees and then returned to Becht at noon the following day, if any- one; where was it kept, and whether any safeguards whatso- ever reasonably protected the secrecy and reliability of the ballots during the course in the day and a half consumed be- fore Becht arrived and the ballots were tallied. It is strongly compelling to believe that employee Mendez, longtime known to Becht from their NADCO acquaintanceship and Becht’s contact man later at Respondent’s plant where Mendez was employed, including specifically Becht’s only identified assistant in the voting is in a position to shed light on these crucial questions, yet he was not called to testify. The fact that Becht identified Mendez earlier in the chro- nology in events as playing a central role in conducting the vote, yet did not even know whether two described super- visors had voted based on his own inquiry or expectable word from Mendez is contrary to the notion that he knew anything at all about events in significant respects concerning the evening balloting procedures in the election. Nor did he or anyone testify to the actual voting by day-shift employees, Becht saying only he did not get the ballots right back. This was an obvious hole in the case, not merely a question whether there was actual evidence of tainted ballots yet no employee member in Local 139B whatsoever was called to the stand to describe any events first hand. See News/Sun- Sentinel Co., 290 NLRB 1171, 1176 (1988). The burden of establishing irregularities in the conduct of the election rests on Respondent, to be sure. Quality Inn Waikiki, 297 NLRB, 497, 501 fn. 13 (1989). But where the General Counsel’s own evidence at the outset on its face depicts an absence of minimal standards of due process such cannot be ignored. Thus, to begin with there is no evidence the ballots given day-shift employees were ever cast by them, and if so turned in, and if so, to whom, and if so, put in the envelope and if so, remained there until the count. There is even no evi- dence of ballots actually being given to any night-shift em- ployees or to whom ballots were given, if anyone that night, where they were kept all that evening, that night, and throughout all the morning hours. Accordingly, the ballots counted by Becht and others the next day drawn from some unidentified envelope are not shown reasonably by any pro- bative evidence to be authentic votes cast by the employees in this already poorly devised and overly lax procedure 571 SULLIVAN BROS. PRINTERS which so clearly lacked even minimal standards of due proc- ess. Santa Barbara Humane Society, 302 NLRB 833, 837 (1991). It is very aptly noted in a Board-adopted Regional Director’s decision that The U.S. Supreme Court stated in NLRB v. Financial Inst. Employees (Seattle-First National), 475 U.S. 192 (1986): The Act recognizes that employee support for a cer- tified bargaining representative may be eroded by changed circumstances. In such cases, employees may petition the Board for another election alleging that the certified representative no longer enjoys ma- jority support. Also, the Employer can based on ob- jective considerations petition the Board for an elec- tion if it can show reasonable grounds for believing the union has lost its majority. The court went on to state that it has been the Board’s practice to reject an election when two tests are met. First the union members have had an opportunity with adequate notice, to vote on the merger. Second, there has been a substantial ‘‘continuity between the pre and post affiliation union.’’ In Seattle-First National Bank, supra, the Court affirmed the Circuit Court of Appeals decision which reversed the Board’s decision. The Board had dismissed the Union’s 8(a)(5) refusal to bar- gain charge. The Board’s dismissal of the charge was based on the fact that non-union members were not given the right to vote on the affiliation. The Supreme Court stated the voting on affiliation is an internal union matter not subject to the Board’s scrutiny. Rath- er, the Board must decide only whether the new union was in fact a substantial continuation of the bargaining representative. The Board is restricted by the Act to ei- ther amend the certification or find an 8(a)(5) violation. The Board exceeds its authority when it dismisses an 8(a)(5) complaint based solely on the procedure fol- lowed in disallowing non-union members the right to vote on the affiliation. The Court stated the Act pro- vides, the only method for decertifying the union and that is by allowing the employees the right to vote on the matter. The Board cannot by itself defeat this proce- dure. The court appears to hold that if the Board in dis- missing Section 8(a)(5) did so based on the lack of con- tinuing representative status of the merged union then the dismissal would be appropriate. [City Wide Insula- tion, 307 NLRB 1, 3 (1992).] Counsel for the Charging Party noted on brief that further in this vein the Court’s opinion noted ‘‘that it may even be in- appropriate for the Board to impose due-process safeguards with respect to union members,’’ 475 U.S. at 199 fn. 6, in the opinion. I can find, however, no Board decisions revisit- ing and setting aside the requirement that at least minimal due process be accorded employees in merger votes, and the Board in at least one case issuing 6 days after City Wide In- sulation, supra, seemed clearly to be presented with the op- portunity to do so and did not do so and in fact indicated indirectly that the due process test is still in effect. Service America Corp., 307 NLRB 57, 61 fn. 6 (1992). Therefore, though the principle be under the most respectable and desir- able scrutiny inviting a further look I am bound by its cur- rent authority as Board law. There were no such defects in the Local 109C election procedure which was unchallenged by the employees and which, I find, accorded employees ample notice and an opportunity to cast their votes in secret under conditions providing an ample and fair opportunity for discussion, to consider the matter and vote, so that the results in favor of the merger with Local 600M by employees from Local 109B represents their authentic support following an appropriate procedure. Quality Inn Waikiki, supra at 501, and Toyota of Berkeley, 306 NLRB 893, 899, 901 (1992), where the administrative law judge noted that the integrity and se- crecy of the ballots were maintained. D. Continuity in Representation Respondent’s remaining defense for its admitted refusal to recognize and bargain with Local 600M and repudiate the 1992–1995 collective-bargaining agreement to which Local 109C and Respondent are parties is because the merger re- sulted in dramatic changes thereby raising a question con- cerning representation. In Toyota, supra at 900, it is noted: In determining whether a ‘‘question concerning rep- resentation’’ exists because of a lack of continuity, the Board is not directly inquiring into whether there is ma- jority support for the labor organization after the changes at issue, but rather is seeking to determine whether the changes are so great that a new organiza- tion has come into being—one that should be required to establish its status as a bargaining representative through the same means that any labor organization is required to use in the first instance. In Western Com- mercial Transport, 288 NLRB 214 (1988), the Board stated: The focus of inquiry is on whether the changes are ‘‘sufficiently dramatic to alter the union’s identity,’’ so as to raise a question concerning representation. May Department Stores Co., 289 NLRB 661, supra, citing Seattle-First, 475 U.S. 192, 206 (1986). See also News/Sun-Sentinel Co., supra at fn. 1, and May Depart- ment Stores Co. v. NLRB, supra. Consequently, the Board considers a range of factors including the contin- ued leadership responsibilities of the existing union of- ficials, the perpetuation of membership rights and du- ties, the continuance of the manner in which contract negotiation, administration, and grievance processing are effectuated, and the preservation of the certified representative’s assets, books, and physical facilities. E.g., Western Commercial Transport, supra. In applying this fact, however, specific approach ‘‘no strict check list is used,’’ rather ‘‘[t]he Board considers the totality of a situation.’’ May Department Stores Co. v. NLRB, supra, quoting with approval Yates Industries, 264 NLRB 1237, 1250 (1982). And, the burden of proving a change in a union’s identity rests with the respondent- employer. H. B. Design & Mfg., 299 NLRB 73 (1990); Insulfab Plastics, 274 NLRB 817, 821 (1985), enfd. 789 F.2d 961 (1st Cir. 1986). It is noted in City Wide Insulation, supra at 3: However, the Board in National Posters, 289 NLRB 468, 479 (1988), adopted an ALJ decision ordering the 572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Employer to bargain with the new entity. The judge in finding a continuity of representative stated: [T]he proper question in a case like this one is not whether there is a ‘‘lack’’ of local authority, but whether the preexisting local authority, with which the unit employees had presumptively been satisfied, has substantially changed for the worse. . . . E. Continued Leadership Responsibilities NADCO employees, some 210 employees who vastly out- numbered the other bargaining units at Respondent, and the other 3 employer units represented by Local 109C con- stituted all the officers and directors of the Local, 11 officers and directors. When NADCO completed its closing in Feb- ruary 1993 Boermeester continued actively to service em- ployees in the remaining bargaining units comprised of about 40 employees with the help of 3 shop steward-like chapel chairmen and in further concert with numerous local union members at their locations—including Respondent’s em- ployee and Chapel Chairman Stephen Wysocki. The chapel chairmen play a vital role under Local 109C policy serving as point guards to resolve grievances early on and over the history of 109C helping to negotiate collective-bargaining agreements. The long-term 33-year history of stable labor re- lations between Local 109C and the employers here reflects settled patterns in terms and conditions of the members’ em- ployment environment and is highly consistent with the fact that there is no record evidence contradicting that for the pe- riod in question before the merger and after NADCO closed, even with the diminution among de jure officers, normal daily contract administration including grievance handling continued unchanged; the Respondent’s contract with Local 109C remained fully in place then and the Local remained viable. Local 109C members, presumptively satisfied with their representation in premerger periods, rarely attended the Local 109C union meetings held in a rented doughnut shop room and attended mostly by NADCO employees, unless a specific Respondent-related issue arose. It was Boermeester, sometimes with another officer and Wysocki who drew from members of Respondent’s employees the bargaining objec- tives, just as was true of all the other separate bargaining units under the umbrella of Local 109C. The Local’s GCIU International representative is also an incontestable and im- portant part of the leadership for Local 109C members dur- ing the premerger period especially given the fact that, as the parties stipulated, all the sister locals operated to provide rep- resentation duties under commonly shared governance, and the source for this business-agent-like leadership remained the same, as well as the basis for assignment being the geo- graphical area involved so that representation by the Inter- national representatives remained the same. Boermeester after the merger became an elected executive board member on August 5, 1993, and represented the former Local 109C members employed by Respondent in the dispute over Respondent’s unilateral changes in a 401(k) plan in a letter sent in his official Local 600M capacity on September 28, 1993, as well as demanding bargaining over new equipment purchased by Respondent. (G.C. Exh. 11.) His long-time practice of regular contact with chapel chair- men continued, with regular contacts between Wysocki and him over representation of Respondent’s employees and Local 600M President Carlsen testified credibly that the Local denoted him for membership on the negotiating com- mittee from Local 600M when it negotiates with Respondent. He represented Local 600M in other negotiations with em- ployers whose employees Local 109C previously represented, Lowell Sun and Brady Business Forms, and concededly will do so at another premerger Local 109C-represented unit at Billerica Publishing. Wysocki retains the same leadership role at Respondent after the merger that he held before and will be used accord- ing to Carlsen’s credited testimony as a negotiating commit- tee member as before in contract negotiations with Respond- ent. The two shop delegates (chapel chairmen) at Lowell Sun also continue in these positions under Local 600M. There were no such positions at Brady and Billerica due to the small unit size. Carlsen credibly testified he offered leader- ship positions to Local 109C members so interested and never refused to grant former Local 109C leaders or mem- bers such appointments or chances for election to Local 600M positions. He confirmed that, in the same manner Local 109C always sought contract proposals from unit em- ployees before contract negotiations, he had also done so be- forehand in the negotiations with Lowell Sun since the merg- er and would continue to do so in contract negotiations. Counsel for Respondent urges that the loss of Local 109C officers on merger with Local 600M caused dramatic change in the labor organization. The Board has, however, as already (noted above), eschewed a reliance on any single factor for such finding and rather evaluates the entire circumstances. In particular the Board has indicated while ‘‘continued leader- ship by the officials of a merged union is one element the Board has examined, we know of no requirement that offi- cers of a merged local must become officers of the new local in order to find continuity’’ going on to say leadership has a broader definition encompassing other representatives who fill positions of responsibility and trust. Service America Corp., supra at 60. The record establishes a substantial con- tinuation in the leadership of Local 109C in terms of the de- livery of representation services to Local 109C members fol- lowing the NADCO closing—caused diminution in the num- ber of officer—which diminution was not caused by the merger but was simply another earlier dynamic change in the continuing ever changing evolution of the Local and its Inter- nationals as described above. Considering this naturally caused reduction in number of officers there is a reasonable basis to believe that in the nature of things the merger which left Boermeester, three chapel chairmen, and interested in- volved employee members in continued substantial local au- thority to run their representation affairs caused little actual day-to-day changes. Viewing other factors discussed below in tandem the Local 109C preexisting authority has certainly not been shown to have substantially changed for the worse after the merger. City Wide Insulation, supra. F. Membership Rights and Duties The members of Locals 109C and 600M are covered by the same International constitution and bylaws, a common circumstance, and a separate constitution or bylaws covered each Local’s members prior to the merger. (G.C. Exh. 5; G.C. Exh. 20.) There is a 4-year employment rule for run- ning for office in Local 109C, 5 years for Local 600M mem- bers—all Local 109C members qualify under the latter. Con- 573 SULLIVAN BROS. PRINTERS tract ratification procedures are the same as are strike votes and strike fund contributions and disbursements. Meeting in- tervals are the same as before, as are grievance-handling pro- cedures. The access to International representatives remains the same as before—based on geographical area the same representatives are assigned. Local 600M imposes dues on a sliding scale based on income but is not currently requiring any dues payments from the former Local 109C members given Respondent’s failure to recognize Local 600M, and the per capita tax is the same. Local 600M accepted all the Local 109C members into membership without initiation fees. Dues will eventually rise to $9.22 versus $8 formerly charged Local 109C members. There are no differences of any consequence in these matters. Local 109C assets only consisted of $12,000 which trans- ferred into the Local 600M strike or emergency fund. Dues are now paid into the general Local 600M funds. Local 109C records transferred to Local 600M. Local 600M assumed the liabilities of Local 109C including pension obligations to cer- tain retirees and accepted the former Local 109C members into its memberships on approval of the merger by it and the International. Local 600M also accepted the ongoing Local 109C collective-bargaining agreement not due to expire until May 31, 1995, thereby continuing the Local 109C negotiated terms as far as Local 600M President Carlsen and his Local are concerned. The two sister locals in GCIU have always shared important representation governance under the GCIU constitution commonly associated with local unions affiliated with the same International union, a close enough association so that it can be said: Mergers of this kind, in contrast to mergers of small local independent unions with international organiza- tions, have less inherent potential for significant change. Note Union Affiliation & Collective Bargain- ing, 128 U.Pa.L.Rev. 430, 457 (1979). [Toyota of Berkeley, supra at 903.] I have also considered the view that the greater number of members in Local 600M (700 to 40 in Local 109C) evi- dences a dramatic change in the Local 109C members’ rep- resentation but find no merit there. All the locals here experi- enced dramatic growth changes throughout the course in their long histories and the numbers rose and dropped as a common matter; it is uncontradicted that the Respondent’s employees and the other units of Local 109C continued in major respects as autonomous bargaining units postmerger with the right and power to devise their own contract de- mands, negotiate their own contracts through local union of- ficers and unit employees in their separate units, conduct their own strike votes—as before with International sanction, and process and resolve grievances through their own shop representatives, all within a mostly identical union organiza- tional structure, within nearly the same geographical and trade union jurisdiction encompassing theirs. The mere change in numbers of union members had no real effect or change at all. If anything the merger—an event altogether in keeping with a classical role accorded sister locals to help continue collective-bargaining representation for fellow union members in the same geographical and trade jurisdiction—is a strengthening effect on the Local 109C members local au- thority which continued in real respects described above in- tact even more fully supported by augmented Local 600M re- sources. As I find the merger of the two GCIU Locals to constitute continuity of representation, no question concern- ing representation exists. Respondent admits to the specific complaint allegations of unlawful refusal to recognize and bargain with Local 600M which the record reflects occurred on or about August 11, 1993, and to the unilateral changes described below. CONCLUSIONS OF LAW 1. The Respondent, Sullivan Brothers Printers, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Charging Party, Local 600M, Graphic Communica- tions International Union, AFL–CIO and Locals 109C and 139B, GCIU, respectively, at relevant times constituted labor organizations within the meaning of Section 9(b) of the Act. 3. At all times material, Local 600M, Graphic Commu- nications International Union, AFL–CIO has been the exclu- sive representative for purposes of collective bargaining in the following described appropriate unit for collective bar- gaining within the meaning of Section 9(b) of the Act: All color cameramen and darkroom, black and white cameramen and darkroom, dot etchers, platemakers- black and white, photocomposer operators, platemakers- color, strippers, copy preparation, pasteup, layout and imposition, opaquers and artist, pre-preparation, and plate processors, of Respondent but excluding all other employees, office clerical employees, guards and super- visors as defined in the Act. 4. By its withdrawal of recognition from Local 600M, Graphic Communications International Union, AFL–CIO and its refusal to bargain with the Union, Respondent violated Section 8(a)(5) and (1) of the Act. 5. By its repudiation of the collective-bargaining agree- ment in effect from June 1, 1992, through May 31, 1995, covering the above-described pressmen’s unit, and by ceasing contribution to the pension plans, announcing a 401(k) plan, ceasing dues deductions and their remittance to Local 600M, refusing to bargain over new equipment, granting Christmas bonuses, and implementing a proofreading bonus, all regard- ing the pressmen unit employees, without according notice to and an opportunity to bargain thereon to Local 600M, Re- spondent has violated Section 8(a)(5) of the Act. 6. The aforesaid unfair labor practices have a close, inti- mate, and substantial effect on the free flow of commerce within the meaning of Section 2(2), (6), and (7) of the Act. 7. Respondent did not violate Section 8(a)(5) of the Act with respect to the bookbinders unit of employees of Re- spondent formerly represented by Local 139B. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. With respect to any dues and fees col- lected by the Respondent pursuant to checkoff, but withheld from Local 600M, I shall order that all such funds be remit- ted to Local 600M, with interest to be computed in the man- ner prescribed in New Horizons for the Retarded. In accord- 574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ance with the Board’s decision in New Horizons for the Re- tarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the ‘‘short-term Federal rate for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amend- ment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). [Recommended Order omitted from publication.]