Potters' Medical Center, Inc.

POTTERS' MEDICAL CENTER 201 Potters' Medical Center, Inc. and International Brotherhood of Pottery and Allied Workers, AFL-CIO, CLC. Case 8-CA-15759 June 17, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On May 18, 1983, Administrative Law Judge Claude R. Wolfe issued the attached decision. The General Counsel, the Charging Party, and the Re- spondent filed exceptions and supporting briefs and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions, as modified. We agree with the judge that the Respondent violated Section 8(a)(5) and (1) by failing and refus- ing to meet at reasonable times and with reasonable promptness, by impermissibly withdrawing recog- nition,2 and by failing to furnish relevant informa- i The Respondent argues that the judge erred in failing to find that the allegations added in the second amended complaint and at the hearing are barred by Sec. 10(b) of the Act. The Respondent argues that because these allegations occurred after the charge was filed and more than 6 months before they were first introduced into the complaint that they are time barred. We agree with the judge, for the reasons he stated, that these allegations are not time barred. Contrary to the Respondent, as the judge did, we find that NLRB Y. Font Milling Co., 360 U.S 301 (1959), is controlling here We also find that subsequent to the Supreme Court's de- cision in Font Milling the reasoning in NLRB v. Newton Bros. Lumber Co., 214 F.2d 472 (5th Cir. 1954), on which the Respondent relies, is no longer apt Contrary to the Respondent's argument, it is clear that the situations in Font Milling and here are parallel in that each involves inci- dents that occurred after the original charge was filed and more than 6 months before they were first introduced into the complaint (See the Board's decision at 117 NLRB 1277, 1288 (1957), and the court of ap- peals' decision at 258 F 2d 851, 854 (5th Cir 1958) in Font Milling, which verify the dates of the allegation and the issuance of the complaint there.) Yet, in Font Milling, for the reasons the judge here has set out, the Su- preme Court found the allegations were not time barred. For those same reasons, as the judge elaborates, the allegations here are not time barred. Further, regarding the Respondent 's reliance on Newton Bros Lumber, we note that another respondent, in Proctor & Gamble Mfg. Ca v. NLRB, 658 F.2d 968 (4th Cir 1981), made the same argument based on Newton and another case as the Respondent does here. The Proctor & Gamble court rejected that contention with words equally applicable here, i e , "these cases were decided before Font Milling and did not apply its test for determining the inclusion of subsequent events; to this extent, they are unpersuasive " 658 F.2d at 985 fn. 19. Accordingly, we reject the Re- spondent's 10(b) defense 2 In finding the withdrawal of recognition unlawful , the judge stated that the Board, in Lammert Industries, 229 NLRB 895 fn 2 (1977), stated its "longstanding disavowal of the dictum in Telautograph Corp, 199 NLRB 892 (1972), that the filing of a decertification petition suspends an Employer's bargaining obligation." We note that the statement was made by a plurality of the Board in Lammert and that it did not represent the view of the dissenters nor, necessarily , that of the concurring Board member Indeed, in Dresser Industries, 264 NLRB 1088 at 1089 (1982), the Board treated this statement as the principle of Telautograph that it was overruling We also note that, regardless of the split of the Board on the tion requested on July 12, 1982.3 The judge found, however, that the Respondent's bargaining obliga- tion ceased on or after July 28 , 1982, following a merger between the certified union, International Brotherhood of Pottery and Allied Workers, AFL- CIO, CLC (the Brotherhood), and another union, the Glass Bottle Blowers Association of the United States and Canada, AFL-CIO (the Glass Bottle Blowers). The merged union became known as Glass, Pottery, Plastics and Allied Workers Inter- national Union, AFL-CIO, CLC (the Union). Re- lying principally on the Board's decision in Amoco Production Co., 262 NLRB 1240 (1982),4 the judge found that the merger was improper as it pertained to the employees in the certified units because these employees were not afforded an opportunity to select delegates to a special convention approv- ing the merger. Accordingly , the judge found that no bargaining violations continued after the date of the merger and that no affirmative remedial order on behalf of the Union was warranted. We dis- agree. As explained below, the legal proposition underlying the judge's ruling has since been reject- ed by the Supreme Court, and there is insufficient evidence that the merger of the Brotherhood and the Glass Bottle Blowers produced a dramatic change in the representative entity that would war- rant finding lack of continuity in representation. On June 15 , 1979, the Brotherhood was certified as the collective-bargaining representative of the Respondent's service, maintenance, and technical employees (Unit A) and of its registered nurses (Unit B). As of the date of the July 28, 1982 merger, the parties had not reached agreement on an initial collective-bargaining agreement covering employees in the certified units. The Brotherhood's characterization of the suspension of bargaining issue in Telautograph, all five Board members in Lammert found that the Respondent violated Sec. 8(ax5) by refusing to bargain. 8 We find no merit to the Respondent 's contention that the information requested on July 12, 1982-names, dates of hire, wage rates, job title and description, and changes in fringe benefits regarding all bargaining unit employees-was not necessary or relevant for the purposes of collective bargaining . On the contrary, the record shows that the certified union re- quested such information for purposes of collective bargaining on March 17, 1980, and, as detailed by the judge, was unlawfully denied the re- quested information. Thereafter, the union again sought such information on December 28, 1981 , which it received. On July 12, 1982, it sought an update of the matters previously sought for the purposes of collective bargaining. In these circumstances, where the information sought con- cerned subjects that had long been the subject of collective bargaining, the union's admitted attempt to pursue an unfair labor practice claim that concerned some of those subjects does not establish that the information was sought solely in support of an unfair labor practice claim to the ex- clusion of the collective-bargaining process 4 Amoco concerned the propriety of a "members only" union affiliation vote, which excluded nonmembers from the voting process. The Board held that, under Sec. 8(aX5) and (i), unit employees, whether union members or not, must be permitted to participate and vote in an affili- ation election. This principle was later applied to a merger of local unions in F. W. Woolworth Co, 268 NLRB 805 (1984) (F. W. Woolworth I). 289 NLRB No. 28 202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD internal rules provided that employees of a newly organized employer, such as the Respondent, are not enrolled as union members, do not pay dues, and do not have a local union chartered unless and until agreement on an initial collective-bargaining agreement is reached. Because no bargaining agree- ments had been reached covering the employees of the certified units at the time of the merger, no local union had yet been chartered and no unit em- ployees had yet become union members. When the Brotherhood selected delegates to the special con- vention to consider the merger, only members of chartered local unions were permitted to send dele- gates. Accordingly, inasmuch as the employees in the certified units were not as yet members of a chartered local union, they were unrepresented at the special convention and did not otherwise ex- press a preference regarding the merger.5 In F. W. Woolworth Co., 285 NLRB 854 (1987),6 the Board held that, with the issuance of Seattle- First National Bank,7 the failure to permit non- union employees to vote on the proposed merger of local unions can no longer be grounds for find- ing the merger to be invalid. In the instant case, the conduct of the merged unions alleged to be im- permissible involved only the exclusion of employ- ees because of their nonmembership in the Brother- hood at the time of the merger. Under Seattle-First National Bank and F. W. Woolworth II, nonmem- bership of the employees of the Respondent and their lack of participation in the merger decision is not a basis for limiting or denying a bargaining order in this case." Respondent contends, however, that the merger resulted in substantial changes in the structure of the new union so that the merged union was not a continuation or successor of the certified union, i.e., that there is no continuity of representative.9 Contrary to the Respondent, we find that the changes in representation produced by the merger of the Brotherhood and the Glass Bottle Blowers were not sufficiently dramatic in their impact on 5 The Brotherhood informed the unit employees of the upcoming merger convention but did not ascertain their desires 5 F. W. Woolworth II. ' NLRB v. Financial Institution Employees Local 1182 (Seattle-First Na- tional Bank), 475 U S 192 (1986), in which the United States Supreme Court held that the Board exceeded its authority by establishing a rule requiring that nonunion employees be permitted to vote in an affiliation election before the Board would order an employer to bargain with the affiliated union s The record shows that members of the Brotherhood were notified of the impending merger well in advance of the special merger convention Delegates to the convention were selected by each local union in repre- sentative numbers proportionate to the size of the local union member- ship. The delegates approved the merger by a vote of 159 to 17 Apart from the absence of participation by the Respondent's employees, there is no contention before us that the merger process was improper 9 The judge found it unnecessary to consider or make findings regard- ing these contentions the unit employees to warrant a finding of lack of continuity in representation. As the judge found, the record shows that the Union assumed all assets and liabilities of both the Brotherhood and the Glass Bottle Blowers. Each of the 85 affiliated local unions of the Brotherhood and the 241 local unions of the Glass Bottle Blow- ers continued operating in the same manner with the same local officers as before the merger. No Brotherhood local was merged into any local of the Glass Bottle Blowers as a consequence of the merger. Although it appears that there have been some changes in the identity of International union representatives servicing various local unions, Joseph Galvin Jr., former vice president of the Brotherhood and the individual who has negotiated with the Respondent on behalf of the Respondent's unit employees, testified that he remains the official representative of these employees. Following the merger, the president of the Glass Bottle Blowers became president of the Union. The president of the Brotherhood became assistant to the president of the Union. The secretary-treasurer of the Glass Bottle Blowers became the secretary- treasurer of the Union. The secretary-treasurer of the Brotherhood became the International auditor of the Union. The Union now has four vice presi- dents, three of whom formerly occupied that posi- tion with the Glass Bottle Blowers, and one of whom is a former official of the Brotherhood. The Union's executive board includes 11 former mem- bers of the Glass Bottle Blowers' executive board and 3 former officials of the Brotherhood. At the time of the merger, the Brotherhood consisted of about 10,700 dues-paying members and had head- quarters in East Liverpool, Ohio, where the Re- spondent is also located. The Glass Bottle Blowers consisted of about 67,000 dues-paying members and had headquarters in Media, Pennsylvania. The Union now has headquarters in the former head- quarters of the Glass Bottle Blowers. Under the provisions of the merger agreement, the Brother- hood agreed to abide by the terms of the constitu- tion of the Glass Bottle Blowers, with certain ex- ceptions pertaining to the term of the office of local union officers, the election of negotiating committee members, dues structure, and the selec- tion of delegates to the 1983 AFL-CIO conven- tion. The Respondent contends that continuity of rep- resentative is absent in this case because unit em- ployees must deal with a union no longer based in their hometown, because the Brotherhood discard- ed its constitution and agreed to abide by the terms of the Glass Bottle Blowers' constitution, and be- cause the Union did not have unspecified "local in- POTTERS' MEDICAL CENTER 203 dividuals" holding key offices. Contrary to the Re- spondent, we find that there is continuity of repre- sentation between the certified union, i.e., the Brotherhood, and the merged union. First, it is undisputed that the Union assumed all the assets and liabilities of the Brotherhood and that all local unions formerly affiliated with either the Brotherhood or the Glass Bottle Blowers con- tinued to operate in the same manner with the same local officers as before the merger. Of course, because no local union had yet been chartered on behalf of the Respondent's unit employees and no collective-bargaining agreement yet reached, there were no officers or agreements to continue as before under the terms of the merger. The Brother- hood's former representative, Galvin Jr., testified, however, that he remained the official representa- tive of the Respondent's unit employees, a role he occupied before the merger. Second, although they occupy new positions, the former principal officers of the Brotherhood con- tinue in a representative capacity with the Union following the merger. The greater number of former officials of the Glass Bottle Blowers in the new hierarchy of the Union is consistent with the ratio of dues-paying members in the merged union and is not so substantial on its face as to constitute a dramatic diminution in the Brotherhood's repre- sentative role in the merged union. Third, we find the factors relied on by the Re- spondent insufficient to show that the Union is not a continuation of the Brotherhood. The location of the Union's headquarters in a nearby State rather than in the same city where the headquarters of the Brotherhood formerly stood is of little consequence in relation to the fact that the Union has assumed all assets and liabilities of the Brotherhood. Local contacts with the Union undoubtedly will increase and participation of local union officers will arise, if and when a contract is reached and a local union is eventually chartered on behalf of the Respond- ent's unit employees. Although the Brotherhood agreed to abide by the constitution of the Glass Bottle Blowers under the terms of the merger agreement, provision was made in that agreement for retention of significant local practices of the Brotherhood, including dues structure, term of office for local union officers, and practices and procedures for the election of contract negotiating committee members. Further, the constitution of the Glass Bottle Blowers con- tains no provisions limiting the authority of a con- stituent local union to negotiate, execute, and ad- minister collective-bargaining agreements to any degree significantly different from those contained in the constitution of the Brotherhood. Neither constitution requires International union approval of local agreements and both constitutions require International union approval of local strike action. Thus, the evidence does not show that the degree of local union control will be fundamentally differ- ent because of the merger. 10 In these circum- stances, we find that the agreement of the merged unions to abide by, in most respects, the constitu- tion of the Glass Bottle Blowers is insufficient to outweigh those factors tending to show that the Union is a continuation of the certified union. Because we find that the Union is the lawful suc- cessor to the Brotherhood, we find that the Re- spondent was obligated to continue recognition and bargaining on and after July 28, 1982, and that its refusal to do so violated Section 8(a)(5) and (1) of the Act. AMENDED REMEDY Having found that the Respondent has engaged in certain unfair labor practices that violate Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist and take certain affirmative action designed to effectuate the policies of the Act. We shall order that the Respondent recognize and, on request, bargain with Glass, Pottery, Plas- tics and Allied Workers International Union, AFL- CIO, CLC, through its designated agents, as the successor to the certified union, International Brotherhood of Pottery and Allied Workers, AFL- CIO, CLC, as the exclusive representative of all employees in the units found to be appropriate for the purpose of collective bargaining, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if agreements are reached, embody such understand- ings in writing. ORDER The National Labor Relations Board orders that the Respondent, Potters' Medical Center, Inc., East Liverpool, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain, on re- quest, in good faith with Glass, Pottery, Plastics 10 For these reasons, the instant case is factually distinguishable from Western Commercial Transport, 288 NLRB 214 (1988), in which the Board found that the affiliation of the certified union with another labor organization produced such a dramatic diminution in the autonomy of the certified union that there was a lack of continuity in representation of the unit employees and, accordingly, no obligation on the part of the em- ployer to bargain with the organization that emerged from the affiliation. Member Johansen dissented in Western Commercial and he continues to adhere to that dissent. However, in the circumstances of this case, he fully agrees with his colleagues that the Union is a continuation of the certified union and agrees, therefore, that the Respondent was obligated to continue to recognize and bargain with the Union. 204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Allied Workers International Union, AFL- CIO, CLC as the exclusive representative for pur- poses of collective bargaining of the employees in the following appropriate units, by failing or refus- ing to meet with the Union at reasonable times and with reasonable promptness for purposes of collec- tive bargaining, by withdrawing recognition from the Union without lawful cause, and by failing to comply with requests from the Union for informa- tion to which it is entitled . The appropriate bar- gaining units are: UNIT A All service , maintenance and technical em- ployees employed by the Respondent at its East Liverpool, Ohio medical center including all licensed practical nurses, nurses' aides, other aides, dietary and kitchen employees, maintenance employees, housekeeping employ- ees, X-ray and operating room technicians, ward secretaries, medical records' clerks and bookkeepers, but excluding all business office clerical employees and professional employees, guards and supervisors as defined in the Act. UNIT B All registered nurses employed by the Re- spondent at its East Liverpool , Ohio medical center excluding all other professional employ- ees, guards and supervisors as defined in the Act and all other employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Recognize and, on request, bargain in good faith with the Union as the exclusive collective-bar- gaining representative of the employees in the ap- propriate bargaining units with respect to rates of pay, wages, hours , and other terms and conditions of employment and, if agreements are reached, embody such understandings in writing. (b) On request, furnish the Union information that is relevant and necessary to its role as the ex- clusive bargaining representative of the employees in the appropriate bargaining units. (c) Post at its premises in East Liverpool, Ohio, copies of the attached notice marked "Appen- dix."11 Copies of the notice, on forms provided by i i 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 Nation- al 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." the Regional Director for Region 8, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly 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 Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that except insofar as violations have been found above, the complaint is dismissed. 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 ordered us to post and abide by this notice. WE WILL NOT refuse to recognize and bargain, on request, in good faith with Glass, Pottery, Plas- tics and Allied Workers International Union, AFL- CIO CLC, as the exclusive representative for pur- poses of collective bargaining of the employees in the following appropriate units, and WE WILL NOT withdraw recognition without lawful cause or fail and refuse to meet with the Union at reasonable times and with reasonable promptness for purposes of collective bargaining. The appropriate bargain- ing units are: UNIT A All service, maintenance and technical em- ployees employed by us at our East Liverpool, Ohio medical center including all licensed practical nurses, nurses' aides , other aides, die- tary and kitchen employees, maintenance em- ployees, housekeeping employees, X-ray and operating room technicians, ward secretaries, medical records' clerks and bookkeepers, but excluding all business office clerical employees and professional employees , guards and super- visors as defined in the Act. UNIT B All registered nurses employed by us at our East Liverpool, Ohio medical center excluding all other professional employees, guards and supervisors as defined in the Act and all other employees. POTTERS' MEDICAL CENTER WE WILL NOT fail or refuse to comply with the Union's requests for information to which it is enti- tled. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, meet and bargain collectively with the Union, through its designated agents, as your exclusive bargaining rep- resentative and, if agreements are reached, WE WILL embody such understandings in writing. WE WILL, on request, furnish the Union informa- tion that is relevant and necessary to its role as the exclusive bargaining representative of our employ- ees in the appropriate bargaining units. POTTERS' MEDICAL CENTER, INC. 205 and after considering the oral argument and able posttrial briefs, I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTION The pleadings establish that Respondent is a corpora- tion providing medical services, meets both statutory and Board jurisdictional requirements, and is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATIONS Respondent concedes and I find that the Brotherhood was a labor organization within the meaning of the Act until it merged into the Union on July 28 , 1982. I further find that the Union has existed since July 28, 1982, as a labor organization within the meaning of Section 2(5) of the Act. Kathy A. Wireman, Esq., for the General Counsel. Frederick C. Emmerling, Esq., for the Respondent. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge. This matter was teed at Steubenville, Ohio, on February 22 and 23, 1983 , pursuant to a charge filed by International Brotherhood of Pottery and Allied Workers, AFL-CIO, CLC (the Brotherhood), on May 24, 1982, and a second amended complaint issued February 3, 1983 , and again amended at hearing. The complaint alleges that Potters' Medical Center, Inc. (Respondent) has violated Section 8(a)(5) and (1) of the National Labor Relations Act by (a) refusing to fur- nish the Brotherhood and its successor, Glass, Pottery, Plastics and Allied Workers International Union, AFL- CIO, CLC (the Union), with information necessary to their performance as collective-bargaining agents; (b) failing and refusing to meet at reasonable times and with reasonable promptness for purposes of collective bargain- ing; and (c) withdrawing recognition from the Union as representative of certain of Respondent's employees. Respondent admits some complaint allegations but denies the commission of the unfair labor practices al- leged. In its answer to the second amended complaint Respondent asserts as affirmative defenses that (1) certain allegations are time-barred, (2) neither Potters nor the Union represented a majority of the employees in one of the two bargaining units involved in this case , (3) there is a bona fide question of representation in the other unit, and (4) the Brotherhood ceased to exist by virtue of its merger into another labor organization that does not rep- resent a majority of Respondent's employees in either unit. On the entire record, ' including my observation of the demeanor of the witnesses as they testified before me, ' Certain errors in the transcript are noted and corrected III. BARGAINING STATUS AND PREVIOUS LITIGATION The Brotherhood was certified on June 15, 1979, as the exclusive collective-bargaining representative of Re- spondent's employees in the following appropriate bar- gaining units: UNIT A All service, maintenance and technical employees employed by the Respondent at its East Liverpool, Ohio medical center including all licensed practical nurses, nurses' aides, other aides, dietary and kitch- en employees, maintenance employees, housekeep- ing employees, X-ray and operating room techni- cians, ward secretaries, medical records' clerks and bookkeepers, but excluding all business office cleri- cal employees and professional employees, guards and supervisors as defined in the Act. UNIT B All registered nurses employed by the Respondent at its East Liverpool, Ohio medical center exclud- ing all other professional employees, guards and su- pervisors as defined in the Act and all other em- ployees. Thereafter, the parties commenced bargaining. After sev- eral negotiation sessions between August 1979 and May 1980 the Brotherhood filed charges2 in August 1980 that resulted in a complaint and trial before Administrative Law Judge Ries on allegations that Respondent had vio- lated Section 8(a)(5) and (1) of the Act. Judge Ries issued his decision on December 10, 1981,3 finding Re- spondent had violated those sections of the Act by fail- ing to furnish relevant information to the Brotherhood, and by unilaterally altering wage rates and modifying its pay classification system. His order required Respondent to cease and desist from this conduct and bargain in good faith with the Brotherhood as the representative of 2 Case 8-CA-14141 ' JD-605-81 206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD both units. No exceptions were filed to Judge Ries' deci- sion and it was, on January 19, 1982, adopted by the Board. On January 31, 1983, the United States Court of Appeals for the Sixth Circuit issued its order4 enforcing the Board's Order. The events on which the allegations before me are premised took place after the issuance of Judge Ries' de- cision and before the court order, and it is to those events we now turn. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts On December 28, 1981, Joseph Galvin Jr., a vice president of the Brotherhood, wrote to Respondent's at- torney, Robert Weaver, advising that in accordance with "the NLRB's decision"5 he was requesting the name, ad- dress, and current hourly wage of each employee in units A and B, together with a sick leave, funeral leave, meals, "etc.," and a list of employees being paid "merit in- crease, on-call pay, etc." Galvin advised he would be prepared to bargain on receipt of the requested informa- tion, would appreciate Weaver giving his dates of avail- ability for bargaining, and would try to make himself available on dates convenient to Weaver. Weaver replied, by letter of January 4, 1982, that the requested information was being compiled and Respond- ent would refrain from unilateral changes in wages and other terms and conditions of employment, but Respond- ent adhered to its position that bargaining would be futile so long as the Brotherhood insisted on a union-se- curity clause. Judge Ries found, and the parties agree, that they were at impasse over the issue of union security. The parties agree, and I find, that the impasse over the Broth- erhood's insistence on a union-security clause continued until it was broken by Galvin's March 22, 1982 letter, which will be discussed in due course. On January 14, 1982, Weaver wrote to Galvin, "En- closed is the information which has been compiled in re- sponse to your request. Please contact me if you have any questions." Galvin received this letter on January 18, 1982, but he and Weaver dispute the contents of the en- closures accompanying the letter. Weaver testified that the letter he dispatched was ac- companied by (1) a seven-page list of unit employees with their home addresses, rates of pay, and information on call pay and salary increases, and (2) a nine-page ex- tract from Respondent's personnel manual setting forth the fringe benefits, including those specifically requested by Galvin, afforded Respondent's employees. Galvin asserts that, although he received the cover letter and item (1), he did not receive item (2). Galvin never told Respondent that he had not received informa- tion satisfying his December 18, 1981 request. In his next communication with Respondent, a letter to Weaver dated March 22, 1982, Galvin withdrew the Brotherhood's request for a union-security clause, and * NLRB v. Potters' Medical Center, No 82-1713 (6th Cir Jan 31, 1983) 5 Galvin was obviously referring to Judge Ries' decision asked for several dates when Weaver would be available for bargaining sessions, but made no reference to the in- formation he had requested or received. The following day, March 23, 1982, Galvin sent a letter to Respondent's employees setting forth a brief chronological resume of his version of the history of Respondent/Brotherhood relationships. After relating the substance of Judge Ries' decision, he continued as follows: The Center had the right to appeal the trial judge's decision, but they did not. Again, I request- ed certain information they had been instructed to provide and at the same time, I requested meeting dates to begin negotiations . They did send me the in- formation I requested.6 On March 26, 1982, Weaver wrote acknowledging re- ceipt of Galvin's March 22 letter and stated that he would confer with Woody Miller, Respondent's adminis- trator, regarding negotiation dates, but his (Weaver's) schedule made it unlikely that any meetings in April would be possible. Weaver credibly testified that he had made a prior commitment to deliver a sailboat from Nassau to Fort Myers, Florida, during the first week of April, and had planned his vacation for the third week of April. According to Galvin, Weaver called him on April 19 and asked if he was available to meet on May 10 regard- ing unit A. Galvin said he was. Weaver said the May 10 date was not definite because he had to clear it with Miller, but asked Galvin to send the Brotherhood's pro- posals prior to May 10. Galvin said he would. Weaver testified that he was in Hilton Head, South Carolina, on April 19 and did not call Galvin on that date, but did have a telephone conversation with Galvin before April 19. He avers that the conversation con- cerned a convenient date to meet in May, in connection with which he stated a preference not to meet prior to May 10, a week after he would return from Hilton Head. Weaver testified that his reason for this preference was his expectation that there would be work for him stacked up during his absence on vacation that he would like to attend to. There is no evidence he communicated this reason to Galvin. In any case, I am persuaded that he and Galvin were testifying about the same conversation. From the more detailed and credible testimony of Galvin on the matter of the date, I conclude that although Weaver inquired about his availability on May 10, it was not a definite agreed-on date. Galvin could not reason- ably have believed it was in view of Weaver's statement that he would have to clear it with Miller, whom Judge Ries found to have authority superior to that of Weaver with respect to negotiations. I am inclined to the belief that Galvin's testimony with respect to Weaver's request for proposals refers to a conversation of May 3 rather than the one in April. Galvin and Weaver spoke on the phone on May 3, 1982.7 Galvin asked Weaver if they were going to meet e Emphasis added The recitation of the relevant portions of this conversation is a com- posite of the credible testimony of the two participants POTTERS' MEDICAL CENTER on May 10. Weaver told him that meeting was off be- cause Miller had conflicts . Weaver also requested Galvin send him the Brotherhood's proposal to study before a specific meeting date be agreed on. With a letter to Weaver of May 12, 1982, Galvin en- closed contract proposals "per our telephone conversa- tion of May 3 , 1982," again requested Weaver to advise when negotiations could begin, and complained that bar- gaining had been delayed too long. The text of this letter also states "a slight question has arisen regarding the new tuition reimbursement Woody sent me."8 The information Galvin contends he did not receive with Weaver's Janu- ary 14 letter contains an entire page devoted to tuition reimbursement. Weaver replied to Galvin's letter on May 18, 1982. After acknowledging receipt of the Brotherhood's pro- posals, Weaver stated: Because of matters unrelated to the relationship between your union and Potters Medical Center, Inc., it is impossible at this time to propose any firm dates for negotiations. We will be in touch with you when these other matters have been resolved. Weaver explains that the "matters unrelated" in his letter refers to Miller's advice that he might shortly be leaving Respondent's employment and did not want to schedule negotiation meetings until it was resolved whether he would be representing Respondent in negoti- ations. The reasons for Miller's expressed position are ex- plained by the testimony of Dr. Samuelson, president of Respondent, that Respondent contacted a firm specializ- ing in administration, Good Samaritan, in early 1982 to take over the administrative duties of the hospital. Woody Miller resigned as a result of this change , and his duties were taken over the beginning of June 1982 by Keith Minton, an employee of Good Samaritan. Minton left in August 1982. Dr. Samuelson now serves as the chief executive officer to whom department heads report. Nadena Martinovich, an employee in Unit A, filed a decertification petition with the Board's Regional Office in Case 8-RD-1093 on May 24, 1982. The Brotherhood filed the charge in the instant case on the same day. Weaver notified Galvin on June 1, 1982, that Minton had assumed Miller's duties, and was reviewing wages, fringe benefits, and personnel policies, after which Re- spondent would be able to meet. Weaver continued that negotiations would be meaningless until Minton's famil- iarization with existing conditions was completed in 2 or 3 weeks. Weaver followed this with another letter to Galvin on June 4 informing that the review would be completed the following week, and requesting that Galvin call to schedule a meeting subsequent to June 13 on the nurses unit, Unit B. Weaver added that Respondent was prohib- ited by law from negotiating on Unit A9 while a ques- tion concerning representation existed. a Emphasis added. 9 The parties agree that "Unit B" in the letter is a typographical error, and should be "Unit A " 207 On June 8, Betty Woodward, Respondent's associate administrator, found a document on her desk reading as follows: We, the undersigned do not want NOW or in the furure [sic], the Local IBAPW to represent us in any form of collective bargaining with the Manage- ment of Potters Medical Center. This statement" ° was signed by 12 of the 13 registered nurses then employed by Respondent. Woodward for- warded it to Weaver immediately. Weaver dispatched a letter to Galvin the same day, stating Respondent could no longer recognize the Brotherhood as the collective- bargaining representative of Unit B 11 because it no longer represented a majority of unit employees. This letter was received by Galvin's office on June 9. On June 9, Galvin, who had not seen Weaver's June 8 letter, called Weaver in response to his June 4 letter, and told him he was available on June 15 and thereafter to bargain for the nurses. Weaver told him of the nurses' "petition," advised he had sent a letter on it, and said he believed it would be illegal to meet and he would not meet. Galvin has had no further conversations with any of Respondent's representatives, nor have there been any negotiation meetings. On July 12, 1982, Galvin sent a letter to Weaver re- questing an up-to-date list of employee names, addresses, dates of hire, wages, and job titles, plus any changes in fringe benefits "since the last information sent to me." Weaver replied by letter of July 15 that the information would be shortly supplied. Galvin has received no fur- ther response to his July 12 letter. On the day of Weaver's reply, the Board's Regional Director dismissed the decertification petition in Case 8- RD-1093. On January 19, 1983, Galvin again wrote requesting dates for bargaining sessions in both units. Weaver responded by letter of January 29 declining to propose any dates for bargaining because of the existing litigation on the question of the existing bargaining obli- gation. If the foregoing were all the relevant facts, the resolu- tion of the matters before me would be relatively simple. There is, however, more. On July 28, 1982, the Brother- hood and the Glass Bottle Blowers Association of the United States and Canada, AFL-CIO merged to form the Union. This merger was approved by the AFL-CIO on August 5, 1982. Members of the Brotherhood were informed of the impending merger via notice to all of its affiliated local unions and publication in the Potters Herald, a union newspaper published and dispatched to io The General Counsel argues that this document was only admitted into evidence as something sent by Woodward to Weaver, and not for the truth of its contents It is true that the General Counsel only stipulat- ed the document was sent, and refused to stipulate the authenticity of the signatures. It is also true that when I received it I gave Respondent per- nussion to introduce further evidence in support of it. Respondent did so The signatures were authenticated by Woodward, based on her familtan- ty with the signatures that she acquired through observation thereof com- mencing long before the litigation at hand See Fed R Evid 901(b)(2) 11 The parties agree that "Unit A" in the letter is a typographical error and should be "Unit B." 208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD each of its members by the Brotherhood , in March 1982. The notice was republished in the June 1982 issue of the Potters Herald. The delegates to the special convention called to vote on the merger were selected by each local union in numbers proportionate to the size of their mem- bership. The method of their selection, whether by ballot or appointment, is not in the record . At the Brother- hood's convention the delegates voted 159 to 17 in favor of merger, whereupon a memorandum of agreement was signed by officers of both merging unions. At the time of the merger there were about 10,700 dues-paying members of the Brotherhood and about 67,000 dues-paying members of the Glass Bottle Blowers. The 85 Brotherhood local unions and 241 Glass Bottle Blowers locals, although now locals of the Union, con- tinued operating in the same manner as separate locals with the same officers they had before the merger. The Union assumed all assets and liabilities of the merged unions. The Glass Bottle Blowers International president, secretary-treasurer, 3 vice presidents, and 11 executive board members continued in the same positions in the Newly formed union. The remainder of the Union's offi- cials were an International vice president, an assistant to the president, an international auditor, and three execu- tive board members, all of whom were previously offi- cials of the Brotherhood. The new union, Glass, Pottery, Plastics and Allied Workers International Union, AFL- CIO-CLC, is registered with the United States Depart- ment of Labor and negotiates collective-bargaining agreements, handles grievances, and otherwise represents employees. None of the employers with whom the Brotherhood has contracts have objected to the merger. Galvin advised the Board and Respondent of the merger by letter of October 18, 1982. According to Galvin, employees do not become mem- bers or part of a local union until a contract with their employer is reached and, therefore, Respondent's em- ployees did not receive the Potters Herald and were not permitted to select delegates to the merger convention because they were not members of a Brotherhood local. Galvin told Respondent's employees of the upcoming merger convention at a May 3, 1982 meeting, but these employees were never polled regarding their desires with respect to a merger, nor has Galvin met with the em- ployees or notified them of the merger since May 3, 1982. There is no evidence these employees have desig- nated the Union as their collective-bargaining representa- tive. B. Conclusions 1. The limitations issue The charge filed in this case on May 24, 1982, alleges violations of Section 8(a)(5) and (1) of the Act in the fol- lowing words: Potters Medical Center, Inc. continues to refuse to bargain and has not complied with the Adminis- trative Law Judges decision of December 10, 1981, ordering the center to meet and bargain. The initial complaint issued August 27, 1982, alleging Respondent had violated Section 8(a)(5) and (1) of the Act by failing, since on or about January 19, 1982, to furnish the Brotherhood with information on fringe bene- fits, and by failing and refusing to meet at reasonable times and with reasonable promptness for purposes of collective bargaining. An amended complaint issued December 22, 1982, re- peating the allegations of the previous complaint, but adding allegations that the Brotherhood and Glass Bottle Blowers had merged with the result that the Union was now the successor of the Brotherhood and the exclusive collective-bargaining representative of Respondent's em- ployees in Units A & B. The second amended complaint issued February 3, 1983, repeating the allegations of the amended complaint and adding allegations that Respondent unlawfully with- drew recognition from the Union in Unit B on or about June 4, 1982, and in Unit A on or about June 8, 1982. t 2 The General Counsel further amended the complaint at trial to add an allegation that Respondent since on or about July 15, 1982, failed and refused to furnish infor- mation requested by the Brotherhood and its successor on or about July 12, 1982, with respect to unit employ- ees' names, addresses, dates of hire, wages, job titles and description, and any changes in fringe benefits. Respondent contends the allegations in the second amended complaint of unlawful withdrawal of recogni- tion and the allegation added at hearing are time-barred because "An amended violation occurring after the origi- nal charge is filed and more than six (6) months prior to the time it is first introduced into the case by way of amendment to the Complaint is barred under Section 10(b).13 NLRB v. Newton, 214 F.2d 472 (5th Cir. 1954)." NLRB v. Font Milling Co., 360 U.S. 301 (1959), is dis- positive of the issue. In Fant, the Union filed a charge on May 20, 1954, alleging the respondent had violated Sec- tion 8(a)(5) of the Act by refusing to bargain collectively with the union. After first refusing to issue a complaint, the General Counsel reconsidered and issued an 8(a)(5) complaint on January 29, 1955, alleging, inter alia, that respondent had unilaterally increased wages "on or about October 7, 1954." The Court held that the allegation was proper even though it concerned an event after the charge was filed, reasoning the unilateral wage increase was of the same class of violations set up in the charge, and specifically adhering to its views expressed in Na- tional Licorice Co. v. NLRB, 309 U.S. 350 (1940), as fol- lows: [W]e can find no warrant in the language or pur- poses of the Act for saying that it precludes the Board from dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the pro- ceeding is pending before the Board . . . . The 12 The reversal of dates in the complaint reflects the typographical errors in Weaver's letters and is immaterial. 11 Sec. 10(b) of the Act provides, inter alia, that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge POTTERS' MEDICAL CENTER Board's jurisdiction having been involved to deal with the first steps, it had authority to deal with those which followed as a consequence of those al- ready taken. For Board authority to the same effect see Sequoyah Spinning Mills, 194 NLRB 1175, 1193 (1972); and Firch Baking Co., 199 NLRB 414 (1972). Both the withdrawal of recognition and the July 12, 1982 refusal-to-furnish information allegations are species of the genus refusal to bargain, are clearly related to the charge, and are therefore properly alleged in the com- plaint and not time-barred. 2. The failure to furnish information The evidence requires a finding that Respondent did send Galvin the information he requested on December 28, 1981, and Galvin received it. Galvin made no protest to Respondent that he had not received what he had asked for, and the statement in his letter to employees of March 23, 1982, that he had received the information he requested plainly relates to events after Judge Ries' deci- sion issued, not to material received in 1980 as he claims. Moreover, his letter to Weaver of May 12 regarding a question on the tuition reimbursement he had been sent, and his letter of July 12 requesting an update on unit personnel and change in fringe benefits "since the last in- formation sent to me" refers, I find, to information he re- ceived in response to his December 28 request. Accord- ingly, the complaint allegation that Respondent failed and refused to furnish the information requested on De- cember 28 is without merit and must be dismissed. The later failure of Respondent to furnish the informa- tion requested by Galvin on July 12, 1982, is an unfair labor practice. The information is relevant and necessary to a labor organization's function as collective-bargaining representative,' 4 and a failure to honor a request there- for violates Section 8(a)(5) and (1) of the Act. Respond- ent was not privileged to withhold it. Even assuming ar- guendo that the decertification petition filed in Unit A raised a question concerning representation that question dissolved with the withdrawal of the petition on July 15, 1982, and the question of a merger defense never arose, at the earliest, until July 28 when the merger was agreed on. Respondent had ample time to furnish the informa- tion on Unit A before July 28 even if the nurses' petition in Unit B provided good cause to suspend bargaining in Unit B. 3. The failure to meet and bargain and the withdrawal of recognition After the impasse was broken by the Brotherhood's March 22, 1982 withdrawal of its union-security propos- als, Respondent was obligated to meet and bargain as the Brotherhood requested. The complaint alleges that since March 22, 1982, Respondent failed and refused to meet and bargain at reasonable times and with reasonable promptness with the Brotherhood and its successor, and further alleges that Respondent unlawfully withdrew 14 Grand Islander Health Care Center, 256 NLRB 1255 ( 1981). 209 recognition of the Union as collective-bargaining repre- sentative on June 4, 1982. The General Counsel takes the position that Respondent was unreasonably tardy in meeting its obligation and has no acceptable excuse. Re- spondent argues that any delays in scheduling meetings were reasonable and not designated to frustrate the Union's bargaining efforts. Respondent also points to the fact that the Brother- hood delayed negotiations from December 4, 1979, to March 17, 1980, because one of its employee members of the bargaining committee was ill. It is true that the earli- er negotiations commenced 2 months after the Board's certification and meetings thereafter were at intervals of 28 days, 21 days, 55 days, 103 days (the period during which the employee was hospitalized), 28 days, and 35 days. This past history does not, however, provide a precedent on which Respondent may rely for justifica- tion of its failure to provide any date or range of dates for bargaining after March 22, 1982, in the face of re- peated requests by the Brotherhood for such dates. One important difference between the two periods is that there were meetings in 1979 and 1980, presumably on dates agreed on by the parties, where here Galvin kept requesting, and Respondent kept avoiding giving, a spe- cific date or a range of dates. Nor was any meeting in fact scheduled pursuant to Galvin's requests. That Galvin never proposed a specific date to Weaver is of no moment. Respondent plainly knew the Brotherhood was eager to meet and requesting to meet and bargain as soon as possible. Respondent's failure to furnish a date or range of dates in response to Galvin's repeated requests on and after March 22, 1982, effectively halted any negotiations. Galvin made reasonable efforts to expedite negotiations. That Galvin did not continuously protest the delay, and elected instead to persevere in trying to extract some meeting dates provides no excuse for Respondent's con- duct.15 Similarly, the prearranged schedule of Weaver in April and the conflicts and uncertain position of Miller in May do not excuse the failure to provide possible meeting dates. The Respondent was the party to negotia- tions with the Brotherhood. Weaver and Miller were but its agents . Respondent, not its agents, had the obligation to bargain and an obligation to furnish bargaining repre- sentatives who would devote their time to prompt and continuous negotiations.'s It is settled that a busy sched- ule provides no excuse for failing to meet and confer at reasonable intervals. 17 Weaver testified that he made ar- rangements with another lawyer in his firm to meet with the Brotherhood if Respondent received an explicit demand to meet in April. There is no showing that he advised Galvin of the other lawyer's availability. The very fact that Weaver could readily secure another to meet in his stead erodes any argument that his presence was essential or that his prearranged schedule prevented April meetings. With respect to Miller, he was not the party to negotiations, merely its agent. To conclude that 15 Insulating Fabricators, 144 NLRB 1325, 1328 (1963). 16 "M"System, 129 NLRB 527 (1960). 17 Teamsters Local 612, 215 NLRB 789 (1974), Franklin Equipment Co., 194 NLRB 643 (1971). 210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Miller's quandary, not communicated to the Brother- hood, required a delay in meeting would require a pre- liminary premise that once Respondent selected Miller as agent his personal dilemmas controlled when meetings could be held. Weaver was every bit as familiar with the negotiations as Miller was , and might well have carried on negotiations without Miller. Necessary consultations with his principal by Weaver could easily have been ar- ranged by telephone or between negotiation meetings. Moreover, if Respondent elected not to permit Weaver to meet alone it could have exercised its prerogative to replace Miller with another agent. Respondent certainly must have known of Miller's indecision on whether he would remain, and could have met its obligation by ap- pointing someone else to supplant him during the meet- ings as an advisor to Weaver or Weaver's stand-in.18 The General Counsel has established by a preponder- ance of the evidence that Respondent has, since March 22, 1982, violated Section 8(a)(5) and (1) of the Act by failing and refusing to meet at reasonable times and rea- sonable promptness with the Brotherhood" for the pur- poses of collective bargaining. Respondent contends that its refusal to meet with regard to Unit A on June 4, 1982, was lawful because a decertification petition had been filed . Respondent relies on Telautograph20 and argues that even though the prin- ciple relied on was subsequently overruled in Dresser In- dustries21 on September 30, 1982, the Board in Dresser declined to find a violation of the Act where the em- ployer's conduct was in accord with the existing prece- dent expounded in Telautograph, and the same result should accrue here. The Board in Telautograph held that the timely filing of a decertification petition raises a real question con- cerning representation preventing an employer from bar- gaining with an incumbent union, but further held that this rule did not apply "in situations where, because of contract bar, certification year, inadequate showing of in- terest, or any other established reason,22 the decertifica- tion petition does not raise a real representation ques- tion." The Board adopted the Trial Examiner 's decision that noted that Telautograph was distinguishable from Massey-Ferguson23 in which the Board held any loss of majority by the Union would have been attributable to the employer's prior unilateral, and unlawful, wage in- creases. The Respondent herein has been previously found by Judge Ries, the Board, and the Court to have failed to furnish the Brotherhood with relevant informa- tion and unilaterally altered wages and modified its pay classification system, all in violation of Section 8(a)(5) 18 Woodward, the associate administrator, Dr. Samuelson, the presi- dent of the corporation , and Dr Chaplynsky and Dr Samuelson 's wife, both of whom were part owners of Respondent, presumably were aware, or could have been made aware on short notice , of the course of negotia- tions and Respondent's position thereon and all were apparently available after March 22, 1982. 19 I do not mention the Union in this context for reasons later set forth in this decision. 20 Telautograph Corp., 199 NLRB 892 (1972) 21 Dresser Industries, 264 NLRB 1088 (1982) 22 Emphasis added as Massey-Ferguson, Inc, 184 NLRB 640 (1970), enfd 78 LRRM 2289, 66 LC ¶ 12,060 (7th Cir 1971) and (1) of the Act. As a result, Respondent was ordered to cease and desist from such conduct and bargain in good faith with the Brotherhood. Respondent has not bargained with the Brotherhood as the Board Order re- quires. Additionally, I have found that Respondent has unlawfully failed to meet and bargain with the Brother- hood prior to the filing of the petition. I am persuaded that the Board's comments in Telauto- graph did not purport to overrule longstanding precedent that the mere filing of a decertification petition does not suffice to warrant a refusal to bargain where there are prior unremedied unfair labor practices, and I am further convinced that the Board's reference to "any other estab- lished reasons" in Telautograph was intended to encom- pass the situation where unremedied unfair labor prac- tices do exist. This reference and the adopted trial exam- iner's decision, should have put Respondent on notice that its legal position was probably untenable . Moreover, the Board in Lammert Industries'24 issued 5 years before Respondent declined to bargain in Unit A, explicitly stated its "longstanding disavowal of the dictum in Tel- autograph Corp., 199 NLRB 892 (1972), that the filing of a decertification petition suspends an Employer's bar- gaining obligation." Lammert had committed numerous other unremedied unfair practices . Respondent thus had additional notice via Lammert that its legal position would not likely stand close scrutiny, and it certainly was well aware that Telautograph involved no unfair labor practices, remedied or unremedied . It was also well aware that the Brotherhood had filed new charges alleg- ing Respondent was continuing to refuse to bargain in violation of Section 8(a)(5) and (1). On the foregoing, I conclude and find that Respond- ent's refusal to bargain with the Brotherhood, which amounted to a withdrawal of recognition, with respect to Unit A violated Section 8(a)(5) and (1) of the Act. Respondent's refusal to meet and bargain collectively with the Brotherhood, commencing on March 22, 1982, either standing alone or viewed as a continuation of the earlier unfair labor practices found by the Board, is suffi- ciently serious to taint the nurses' petition of June 8, 1982, which would have permitted the Respondent to suspend bargaining in Unit B absent the unremedied unfair labor practices, and Respondent is therefore pre- cluded from relying on it as a basis for its June 8, 1982, refusal to bargain with respect to employees in Unit B. Accordingly, the June 8, 1982 refusal to bargain violated Section 8(a)(5) and (1) of the Act.25 4. The merger and Respondent's bargaining obligation The General Counsel contends that the merger be- tween International unions was proper, did not signifi- cantly alter the access of Respondent's employees to their union, and did not require that Respondent's non- member employees be permitted to vote because they were not members because of Respondent's intransi- gence. 24 229 NLRB 895 fn . 2 (1977). 25 United States Gypsum Co, 259 NLRB 1105, 1112 (1982). POTTERS' MEDICAL CENTER Respondent argues that the Brotherhood failed to adhere to minimum standards of due process in ascertain- ing whether Respondent's employees desired the merger, citing State Bank of India, 262 NLRB 1108 (1982), and therefore Respondent has no obligation to bargain with the new and different organization. The merger procedures followed by the unions in this case generally comport with those approved by the Board in Texas Plastics, 263 NLRB 394 (1982); Knapp- Sherrill Co., 263 NLRB 396 (1982); Warehouse Groceries Management, 254 NLRB 252 (1981); and Wellman Indus- tries, 248 NLRB 325 (1980), in finding that the Interna- tional union resulting from the merger of two Interna- tional unions succeeded to the representation rights of the merged union, but the local union involved in Texas Plastics and Knapp-Sherrill was given the opportunity to send delegates to the merger convention, and the unit members in Wellman were given the opportunity to vote and ratified the merger. Warehouse Groceries does not in- dicate whether nonmembers were given an opportunity to express their desires regarding the merger. The Board has held that in affiliation cases all bargain- ing unit employees must be allowed to vote in any elec- tion held on any change in affiliation of the bargaining representative. Seattle-First National Bank, 265 NLRB 426 (1982); Amoco Production Co., 262 NLRB 1240 (1982). Whether their votes are determinative of the issue is immaterial. That this principle also applies to merger cases is indicated by the Board's application of the re- quirements of Amoco to a merger in Laborers Local 652, 266 NLRB 219 fn. 1 (1983). State Bank of India issued 2 days before Amoco and focused on "minimal standards of due process in ascertaining whether the employees it rep- resented desired to merge ... ." The Board has long held that union mergers, "without more, do not operate to alter the representative character of the bargaining agent,"28 but it has also consistently required that such changes be affected by procedures protecting the right of employees to freely select their own representatives. See, for example, State Bank of India, supra; Fluhrer Bakeries, 232 NLRB 212 (1977); Rinker Materials Co., 162 NLRB 1688, 1689 (1967). The Board, in short, has consistently required the minimal due process referred to in State Bank of India, supra. The General Counsel's argument that Respondent's in- transigence prevented the employees from becoming members and, therefore, removed any necessity that Re- spondent's employees be permitted to vote is based on Wellman Industries, 248 NLRB 325 (1980). Wellman in- volved repeated violations of Section 8(a)(5) over a sev- eral year period, including discharges, surface bargain- ing, unilateral layoffs, transfers, and pay reductions, to- gether with repeated frivolous defenses and a flagrant disregard of previous Board and court orders, including a denial of certiorari by the Supreme Court of the United States. The Board viewed the employer's conduct to be so serious as to require the employer to reimburse the charging party union for litigation and negotiation expenses. In this context, the Board held that the em- 26 Canton Sign Co, 174 NLRB 906, 908 (1969), enf denied on other grounds 457 F 2d 832 (6th Cir 1972) 211 ployees' lack of premerger opportunity to express their view on the merger because they were not a chartered local union, and not because there was no collective-bar- gaining agreement covering them, resulted from the em- ployer's prolonged refusal to bargain in good faith and furnished no defense to the refusal to bargain. In neither the prior case nor the case before me has Respondent engaged in conduct as flagrant as that found in Wellman. Respondent has advanced no patently frivo- lous defenses, and has in fact prevailed on some issues in both cases. It cannot fairly be said on the evidence before me, including the fact that the impasse occasioned by the Brotherhood's insistence on a union-security clause did not end until March 22, 1982, that the failure to reach a contract was entirely caused by Respondent's unfair labor practices. Judge Ries, and therefore the Board and the Court that adopted his decision, specifical- ly noted that an extension of the certification year was not appropriate "since I have not concluded that Re- spondent committed any unfair labor practices which ap- preciably delayed the bargaining."27 The circumstances of the instant case do not remotely resemble those in Wellman, and the General Counsel's contention that the Respondent's conduct prevented its employees from having a voice in the merger is rejected. The issue before me is not whether unit employees had an opportunity to vote on a change of representation as it was in Seattle-First National Bank, supra, and Amoco, supra. There was no vote in this case. There was, how- ever, a selection of delegates to convey the desires of local union members to the merger convention. Respond- ent's employees were not polled on the question, were denied the right to select delegates, and therefore were denied the right to express their views on the merger. The thrust of Amoco is not in my opinion limited to its express holding that due process requires that in an affili- ation election all unit members must be permitted to par- ticipate and vote. The underlying principle on which the Amoco holding is grounded is found in the dissent of Members Jenkins and Zagoria in North Electric Co.28 This dissent was specifically adopted by the Board in Amoco, and states, in pertinent part: It appears basic to the collective-bargaining process that the selection of a bargaining representative be made by the employees in the bargaining unit. In our view, therefore, a cardinal prerequisite to any change in designation of the bargaining representa- tive is that all employees in the bargaining unit be af- forded the opportunity to participate in such selec- tion. Respondent's employees had designated the Brotherhood as their collective-bargaining representative. The merger effected a change in the designation of that representa- tive. The employees in Units A and B were not "afford- ed the opportunity to participate in such selection," and were therefore not afforded the due process to which they were entitled. I do not think it matters at all wheth- 27 Potters' Medical Center, 8-CA-14141, JD-605-81 (1981) 28 165 NLRB 942, 944 (1967) 212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er an affiliation or a merger is being dealt with. The principle remains the same. Accordingly, I am persuaded that the merger was improper to the extent it relates to Respondent's employees,29 the successorship issue re- garding representation rights for these employees is moot30, and Respondent did not violate Section 8(a)(5) and (1) by refusing to bargain with the Union on or after July 28, 1982. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act, and the Brotherhood was a labor organization within the meaning of the Act until July 28, 1982. 2. By, from on or about March 22, 1982, to July 28, 1982, failing and refusing to meet at reasonable times and with reasonable promptness with the Brotherhood for purposes of collective bargaining; and by withdrawing recognition from the Brotherhood as the exclusive col- lective-bargaining representative of Respondent's em- 09 This decision does not purport to pass judgment on the merger of the two International unions as it affects employees of other employers. That issue is not before me. 30 Amoco Production Co., 262 NLRB 1240 (1982). ployees in Units A and B on June 4 and June 8, 1982, respectively; and by failing to furnish relevant informa- tion to the Brotherhood on and after July 12, 1982, Re- spondent violated Section 8(a)(5) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of the Act. 4. Other than as above found, Respondent has not vio- lated the Act as alleged in the complaint. THE REMEDY A deviation from the normal remedies is required by the evidence and the complaint allegation by the General Counsel that the Brotherhood was dissolved by reason of the July 28, 1982 merger. Respondent has no bargaining obligation with the Union, and an order to bargain with the Brotherhood would be a futile act. I am of the opin- ion, however, that the unfair labor practices occurring before the merger require a remedy. My remedy will, therefore, require Respondent to cease and desist from its unlawful conduct and to bargain on request with any labor organization hereafter duly designated by a majori- ty of its employees in appropriate Units A and/or B as their exclusive representative for purposes of collective bargaining. (Recommended Order omitted from publication.]