National Posters, Inc.

468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD National Posters, Inc. and National Litho, a Divi- sion of National Posters, Inc. and Baltimore Graphic Communications Union, Local No. 61- C. Case 5-CA-14585 June 30, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On February 11, 1988, Administrative Law Judge Bernard Ries issued the attached second sup- plemental decision. The Respondent filed excep- tions, a brief in support of exceptions, and a motion to reopen the record or, in the alternative, for re- consideration,1 and the General Counsel filed a brief in answer to the Respondent's exceptions and its motion. The Charging Party also filed a brief opposing the Respondent's motion. 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,2 and conclusions and to adopt the recommended Order.3 ORDER The National Labor Relations Board orders that the Respondent, National Posters, Inc. and Nation- al Litho, a Division of National Posters, Inc., Balti- more, Maryland, its officers, agents, successors, and assigns, shall 1. Cease and desist from i In its prior decision and order remanding this case for further hearing (282 NLRB 997 (1987)), the Board, inter aha, found no merit to the Re- spondent's contention that the high turnover rate among its employees since the last election required the holding of a new election. In its motion, the Respondent seeks to have the record reopened so that it could introduce into evidence an affidavit from its vice president, Diane Hind, describing the additional turnover and changes that have occurred since the Board's prior decision and, alternatively, requests that the Board reconsider its prior ruling that the "turnover" argument lacked merit The Respondent's motion, having been duly considered , is denied as lacking in merit and raising matters previously considered by the Board 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 In his recommended Order, the judge directs that the Board 's Order in the original proceeding in this case (265 NLRB No 115, dated Decem- ber 10, 1982) (not reported in Board volumes) be reissued We agree As the Board's Order and notice in that proceeding were not published, we shall reissue the Order and notice in full here, modified only to reflect the Charging Party's correct name (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Baltimore Graphic Communications Union, Local No. 61-C as the ex- clusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees in- cluding truck drivers, employed by the Em- ployer at its 800 Debelius Avenue and 4206 Shannon Drive, Baltimore, Maryland loca- tions; but excluding all office clerical employ- ees, guards and supervisors as defined in the Act. (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) On request, bargain with the above-named labor organization as the exclusive representative of all employees in the above-named appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement. (b) Post at its facilities at 800 Debelius Avenue and 4206 Shannon Drive, Baltimore, Maryland, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Re- gional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. * 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 " 289 NLRB No. 58 NATIONAL POSTERS 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 bargain collectively con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Baltimore Graphic Communications Union, Local No. 61-C as the exclusive representative of the employees in the bargaining unit described below. 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, on request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All production and maintenance employees in- cluding truck drivers, employed by the Em- ployer at its 800 Debelius Avenue and 4206 Shannon Drive, Baltimore, Maryland loca- tions; but excluding all office clerical employ- ees, guards and supervisors as defined in the Act. NATIONAL POSTERS, INC. AND NA- TIONAL LITHO, A DIVISION OF NA- TIONAL POSTERS, INC. Eric M. Fine, Esq., for the General Counsel. Maurice Baskin, Esq. (Venable, Baetjer, Howard & Civilet- ti), of Washington, D.C., for the Respondent. Sandra J. Hughes, Esq. (Delson & Gordon), of Washing- ton, D.C., for the Charging Party. SECOND SUPPLEMENTAL DECISION' BERNARD RIES , Administrative Law Judge. On 15 De- cember 1981 , a representation election was conducted by I In fn 2 of its Decision and Order remanding for further hearing (282 NLRB 997, the Board pointed out that I should not have entitled my first decision in this case "Supplemental Decision," because "there had been no prior judge's decision written in this case " Despite the fact that the Board's first Decision and Order in the case (265 NLRB No 115 (Dec 10, 1982), not reported in published Board volumes ) might arguably have made my first decision on remand a supplemental decision , the Board's comment is, of course, authoritative Because there has now been a "prior judge's decision," I suppose that this one would properly be 469 Region 5 among the approximately 53 eligible voters at Respondent's two plants in Baltimore, Maryland. The tally of ballots showed that 24 employees voted in favor of the Charging Party2 here, 21 unfavorable votes were cast, and 4 ballots were challenged. Without holding a hearing, the Regional Director for Region 5 ruled, inter alia, that the ballot cast by employ- ee Samuel John and another ballot should be opened and counted. Further action on the remaining two challenges was deferred pending the results of the revised tally. The Board adopted the proposed procedure. Without holding a hearing, the Regional Director for Region 5 ruled, inter alia, that the ballot cast by employ- ee Samuel John and another ballot should be opened and counted. Further action on the remaining two challenges was deferred pending the results of the revised tally. The Board adopted the proposed procedure. The two ballots were opened and the revised tally showed the Union ahead by 25 to 22. The Regional Di- rector issued a certification of representative to the Union, and the Respondent refused to bargain in order to test the validity of the certification. The Region issued a complaint asserting the Respondent's refusal to bargain to be unlawful. On 10 December 1982, the Board issued a Decision and Order in which it granted the General Counsel's Motion for Summary Judgment and held that Respond- ent was violating Section 8(a)(5) of the Act by refusing to bargain with the Union. 265 NLRB No. 115 (not re- ported in Board volumes). On 3 November 1983, the United States Court of Ap- peals for the Fourth Circuit held, contrary to the Board, that a hearing was required on the issue of Samuel John's eligibility to vote. (720 F.2d 1358.) Accordingly, by Order dated 6 April 1984, the Board directed that a hearing be held to determine the status of employees Samuel John, Albert Amend, and Wesley Souders. The right of alleged Supervisors Amend and Souders to vote had not previously been resolved because once the re- vised tally had issued in June 1982, the Union had en- joyed a lead of 25 to 22, thus making immaterial the votes of Amend and Souders. In directing the heanng, the Board recognized that the disposition of John's vote could make determinative the ballots of Amend and Souders. A hearing on the eligibility of John, Amend, and Souders was held before me in June 1984. On 23 Novem- ber 1984, I issued a decision recommending that the bal- lots of John and Souders be counted, but that Amend should be disqualified from voting as a statutory supervi- sor. Because John's ballot had already been counted, and the Union was ahead by 25 to 22, I further recommend- ed that the Board's original bargaining order be reaf- firmed. headed "Supplemental Decision," and, indeed , the Board's remanding Order directs the preparation of a supplemental decision To avoid confu- sion, however, I have entitled this decision as shown above 2 In his brief, counsel for the General Counsel has requested that the name of the Charging Party be amended to reflect its present correct title The motion is granted 470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Appeals from my recommendations were filed with the Board. In addition, on 27 December 1984, Respond- ent filed a motion to reopen the record for two purposes. One obective was to submit evidence of substantial em- ployee turnover since the election; a supporting affidavit was attached. The other was to "present evidence that the Petitioner no longer exists , or has undergone funda- mental change without due process participation by Re- spondent's employees." In support of the second contention, Respondent at- tached reprints of reports in labor newsletters, dated 5 April and 10 June 1983, regarding the merger of the Charging Party's parent organization with another Inter- national labor organization effective 1 July 1983, as well as copies of certain pages from what purported to be the Charging Party's "former by-laws." Respondent ex- plained that the evidence "was not adduced previously, in part because some of the necessary evidence was not known by the Respondent until recently,3 and also be- cause the evidence was not relevant to any issues in this case until now. The Board's previous Order Directing Hearing . . . did not authorize the Administrative Law Judge to consider any issue other than the voting eligi- bility of the three challenged employees. . . . The evi- dence sought to be adduced in this motion, therefore, which previously might have been premature if present- ed to the Judge, is now extremely relevant to the resolu- tion of the case." On 4 February 1987, the Board issued a "Decision and Order Remanding for Further Hearing" (282 NLRB 997). Although the Board affirmed my rulings, findings, and conclusions, it also decided to reopen the record to determine whether the 1983 merger had "so substantially changed Local 61 as to raise a question concerning its continued status as the certified bargaining representative of the Respondent's unit employees." A hearing for the mandated purpose was held on 29 July 1987. Briefs were filed by the General Counsel and Re- spondent on 25 September 1987. I have reviewed the transcript proceedings,4 the exhibits, and the briefs, and I recommend that the Board conclude that the merger did not substantially affect the identity or continuity of the Charging Party as collective-bargaining representative of Respondent's employees. The merger referendum was held in April 1983. Of an active IPGCU membership of 91,000, affiliated in about 540 locals, more than 49,000 members voted in favor of the merger and over 13,000 against. Active members of GAIU, which had on its rolls at the time about 76,000 members in 2000 locals, similarly approved the merger by more than a 4 to 1 majority. The effective date of the merger was 1 July 1983. 1. THE BASIC FACTS The Charging Party, formerly known as Baltimore Printing Pressmen and Assistants' Union No. 61, was for many years a local of the International Printing and Graphic Communications Union, AFL-CIO, CLC 9 Presumably the material contained in the affidavit relating to turnov- * Errors in the transcript have been noted and corrected er (IPGCU). After some period of discussion, IPGCU and another International, Graphic Arts International Union, AFL-CIO, CLC (GAIU), decided to merge into an or- ganization called Graphic Communications International Union (GCIU). In approving the merger, the members adopted three basic documents-an agreement for merger, an imple- mentation agreement, and a constitution. These docu- ments provided for a "transition period " of 9 years, in recognition of a perceived "need to smoothly and effi- ciently integrate the policies , programs, officer structure, staff and personnel of the two merging internationals." (Agreement For Merger, G.C. Exh. 34 at 2, sec. 4.) During this period, various temporary provisions put into effect at the commencement of the merger would gradually be phased out by 1992. II. THE BASIC LEGAL PRINCIPLES In NLRB v. Financial Institution Employees , 475 U.S. 192 (1986), the Supreme Court rejected the Board's hold- ing that all employees, including nonmembers of the union, should have been given an opportunity to vote in an election in which an independent union decided whether to affiliate with an International union. In its opinion, the Court also noted a second Board rule that came into play when changes occur in a union's organi- zational structure . If such changes are, in the Court's words, "sufficiently dramatic to alter the union's identi- ty," a "question of representation " will arise, authorizing an employer to lawfully refuse to deal with the affected entity until the Board has conducted a representation election. Such a representation question may arise, said the Court, when the changed circumstances make it "un- clear whether a majority of employees continue to sup- port the reorganized union." Id. at 202.5 By this standard , the Court appeared to be adopting an underlying approach akin to that applied by the Board and the courts in determining whether a new employer is in law a successor employer, i.e., can it be concluded that employment conditions are sufficiently similar so as to raise the inference that employees would , as in the past, still desire representation by the incumbent union? United Maintenance & Mfg. Co., 214 NLRB 529, 532 (1974); Ranch- Way, 183 NLRB 1168, 1169 (1970); NLRB v. Albert Armato, 199 F.2d 800, 803 (7th Cir . 1952). The conceivable organizational and structural modifi- cations of labor organizations are manifold. The reorga- nizations that, on their surface, present perhaps the most likely prospect that a change of identity has occurred are affiliations of independent unions with national unions and mergers of two local unions. Less superficially com- pelling, perhaps, is such restructuring as the change of affiliation by a local union from one parent union to an- other, or a merger of a parent with another national union; in such cases, the local has previously surrendered some control over its own shape and destiny to a superi- or authority, and its members have presumably contented s See also Id. at 205. "We repeat , dissatisfaction with the decisions union members make may be tested by a Board-conducted representation election only if it is unclear whether the reorganized union retains major- ity support " NATIONAL POSTERS themselves with the knowledge that changes affecting them might be wrought by the superior entity without their consent. In making assessments of bargaining representative "continuity," however, the Board has not expressly cre- ated presumptions about the particular nature of the modification, but rather has generally examined each case to determine the effect of the changes, if any, on the essential identity of the bargaining representative. "[S]tructure, administration, officers, assets, membership, autonomy, bylaws, size, and territorial jurisdiction," NLRB v. Pearl Bookbinding Co., 517 F.2d 1108, 1111 (1st Cir. 1985), have all come under scrutiny; while none of these factors has been denominated as critical or disposi- tive, it is obvious that some are of more significance than others. 6 The burden of demonstrating a change in identi- ty has been allocated to the party making the claim, even when the forum is an unfair labor practice proceeding. Insulfab Plastics, 274 NLRB 817 (1985), 821, enfd. 789 F.2d 961 (1st Cir. 1986). III. AN EXAMINATION OF THE PERTINENT FACTORS Local 61-C experienced very little immediate change in its structure and operations as a result of the 1 July 1983 merger of its parent union with GAIU. Virtually all the elected officers of Local 61 as of January 1983 re- mained incumbent in January 1984 and, in fact, most were still serving at the time of the hearing in 1987. The bylaws of Local 61-C were changed (by adoption at a membership meeting) in only a few respects subsequent to the merger: the oath of office was, although not re- quired, amended to conform to the new GCIU constitu- tion; the oath of membership, which is constitutionally mandated was adopted, but had no apparent substantive effect on the obligation of membership when compared with the former Local 61 oath; the jurisdictional and "Form of Organization" clauses of the Local's bylaws were broadened slightly, but not to the full extent of the scope of such clauses in the new GCIU constitution;7 and the appropriate name changes were made through- out the Local's bylaws. After 1 July 1983, Local 61-C continued to increase dues periodically, following the same procedure it had employed prior to the merger.8 All increases have been 8 Pearl Bookbinding involved the 1972 merger of the International Brotherhood of Bookbinders and the Lithographers and Photengravers International Union, which produced the Graphic Arts International Union That Union, as set out above, merged with the IPGCU in 1983 IPGCU was itself the product of an earlier merger 7 The record raises a question whether these changes even became ef- fective See R Exh 100, letter of International Recording and Financial Secretary Norton to Local 61-C President Brown dated 2 February 1984 8 R Br, which states that the Local 's dues "increased by $2 per jour- neyman over those of former Local 61 in the year following the merger," does not quite comport with the record Eight journeyman classifications had dues increases of $2, one was increased by $1 50, two by $1, and one had no increase The record also shows a $2 across-the-board increase (except for the "specialty " classification) in January 1982, a $1 general increase (with the same exception) in January 1983, and $1 general in- creases in April 1985 and January 1986 471 occasioned by revenue needs, according to the testimony of longtime Local 61-C President and Business Agent Brown, and had no connection with the merger. The new GCIU constitution does not contain any provision prescribing standards that local unions must apply in for- mulating dues. The merged constitution essentially carries forward the per capita taxes paid by the former IPGCU locals to the International prior to the merger. A provision in the merger agreement specifies that while a per capita struc- ture that will apply to all GCIU members is contemplat- ed, "there will be no changes in the Per Capita payments as a result of merger, and the matter of changes in the Per Capita structure need not and will not be considered as an issue at the 1984 Convention and can only be modi- fied thereafter by Convention action or referendum of the entire membership of the GCIU." (G.C. Exh.34, Merger Agreement, p. 3, item 7.) Brown testified with- out controversion that, as of 1987, there have been no changes in per capita taxes paid to the GCIU by Local 61-C. At least up to the end of 1986, the last information of record on the subject, there is no evidence that Local 61-C has suffered financially from the merger. For the year ending 31 December 1982, annual net revenues equaled $963 and members' equity was $17,668; as of 31 December 1986, the net revenue amounted to $2726, and members' equity was $21,111. Local 61-C has a membership of about 190 and repre- sents (both prior to and since the merger) employees in three bargaining units in Baltimore; the largest unit com- prises those employees employed by an association called Printing Industries of Maryland. President Brown has been the chief negotiator for all three contracts since 1972. For the Printing Industries contract negotiated in 1982, he appointed to his negotiating team IPGCU mem- bers Kaplan and Hosza; in 1984, he appointed Kaplan and Local 61-C Vice President Edwards; and in 1986, he selected local officer Spies and Chapel Chairman Berry. In 1984, after six or eight fruitless bargaining sessions, Brown asked Robert Callahan, a former IPGCU and then GCIU International representative, to assist in the Printing Industries negotiations. Callahan attended the last two meetings. In 1986, lack of progress again led Brown to call Callahan to the negoiations; the latter ap- peared for 1 day, and he was supplanted, also for 1 day, by James Mitchell, a onetime IPGCU vice president then serving as GCIU vice president. Brown testified that, about 1973, he had also sought the assistance of IPGCU International officers for such a purpose.9 The new GCIU constitution provides that if a local believes that it might have to strike, a membership vote for strike sanction is presented to the GCIU secretary- treasurer, who then asks the International's general board for approval. Such approval is only preliminary, howev- er; it is thereafter up to the International president to make the final decision about approving an actual strike, e The negotiating team for the American Bank Stationery unit in 1982 was Brown, Chapel Chairman Cim, and pressman Daniels, and in 1984 and 1986, Brown and Daniels Brown has been the sole negotiator for the AFSCME unit, consisting of one employee 472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and subsequently there must be authorization of the strike by a two-thirds vote of members in the affected unit as well as approval by the local union as a whole. (G.C. Exh. 34 at 51-52, ch. XIII, A.) Similar restrictions also applied, however, under the IPGCU constitution, although the procedure differed: the board of directors of the IPGCU was empowered to finally decide whether a strike was authorized (but the local then was required to secure a two-thirds approval from the entire membership, rather than just the unit in- volved). (G.C. Exh. 33 at 59-60.) Thus, both before and after the merger, Respondent's bargaining unit employees were powerless to decide for themselves whether to strike. 10 With respect to the approval of collective-bargaining agreements, Brown testified that both before and after the merger, once the membership had ratified a contract, "we usually send a copy of that, at that time, for the In- ternational's approval."11 But he went on to state his belief that "[i]t is still a contract on the local level, whether the International approves or not, actually," and that an agreement signed by a local and an employer is, without more, a "legal and binding" contract. The new constitution provides, in a section entitled "Collective Bargaining," part 2, chapter XIII, Ch. 13.2, that "All collective bargaining contracts shall be subject to approval by the International President." (Emphasis added.) The General Counsel argues that the sentence does not require that every contract must be submitted for approval, and "it does not state that the contract is rendered nugatory if the International President does not approve it." Support for this contention may be found in the argument that a clearly mandatory provision could easily have been written: e.g., "All collective-bargaining agreements must be approved by the International Presi- dent." That the drafters were capable of such clarity is found in the immediately following provision (Ch. 13.3): "No agreement shall be entered into with any employer who has establishments within the jurisdiction of more than one Local Union without consultation with the Inter- national President." (Emphasis added.) Not only is this prohibition more plainly mandatory, but its substance im- plies that locals may, in other situations than the one cited, "enter into" agreements that are immediately effec- tive. 10 On brief, in an effort to show that the GCIU "established greater authority over the local after the merger and permitted less local auton- omy than had the IPGCU," Respondent erects a strawman and then flails away at it At 12-13 of its brief, Respondent asserts that "whereas the IPGCU had not disapproved one of Local 61's requests for strike sanc- tions in recent memory, the GCIU leadership has disapproved one of two such requests subnutted by Local 61 -C since the merger (Tr 26 )" At Br 18 fn 8, Respondent refers to this as "increased review and disap- proval of local requests for strike sanctions " At 21, Respondent states that "whereas the IPGCU had never disapproved a Local 61 request for sanctions, the GCIU disapproved such a request immediately following the merger." These assertions overlook Brown 's further testimony, on the same transcript page cited by Respondent, that the sanction was disap- proved "on procedural grounds" because Local 61-C had "asked for strike sanction before it was voted by the membership, and at Tr 27, that once the procedural defect was corrected, the sanction was granted 11 Subsequently, he testified that he "think[s]" the Local has always submitted a copy to the International since the merger , and that he "always" did prior to the merger Respondent, in arguing on brief that, prior to the merger, Local 61-C "was completely subordinate to and controlled by the International," asserts, inter alia, that IPGCU "approved or disapproved local collective bar- gaining agreements ([G.C. Exh. 33], Art. XIII, §§ 1-3)." The cited provisions, under the heading "Contracts and Agreements," read: Section 1. No subordinate union or member thereof or any person shall enter into negotiations in the name or on behalf of the International Union for the purpose of making any contract or agree- ment with any organization, corporation, associa- tion, firm or individual, which may, in any manner, affect the interests of the International Union, or of any subordinate union thereof, or of any person af- filiated therewith, without having been first author- ized by the Board of Directors. Section 2. When negotiations involving [sic] the formulation of an agreement or contract which may effect [sic] the interest of the International Union, the subordinate union or person desiring to enter into such negotiations shall submit to each member of the Board of Directors a complete statement of all the facts pertaining thereto. Each member of the Board shall, thereupon, without delay, examine the same and forward his decision thereon to the Presi- dent. The President shall notify such subordinate union or person of the decision of the Board of Di- rectors. Section 3. No member or subordinate union shall act as an agent for or on behalf of the International Union without specific prior written authorization of the Board of Directors. Assuming that the foregoing applies to bargaining agreements in the first place, a literal reading of this lan- guage would have only prohibited a local from "enter[ing] into negotiations" without authorization from the former IPGCU board. Although, as noted, Respond- ent concedes that the IPGCU constitution vested in the board a right of approval or disapproval of bargaining agreements, a board reading of the language is needed to reach that conclusion. On the other hand, if the provi- sions should be construed to mean that the IPGCU board had to preliminarily approve the main themes of bargaining proposals, it could arguably be termed reten- tion of the right of approval. Section 4 of the same article clearly seems to have as- sumed local autonomy in negotiating agreements: Joint Local Agreements Section 4. Where there are two or more subordi- nate unions in any jurisdiction in the book and job branch or in the newspaper branch of the business, no local contract or agreement shall be entered into without every effort being made for all such subor- dinate unions to join them. But whatever inferences the reader may choose to draw about IPGCU's right of approval from the foregoing provisions, the remainder of the old constitution indi- NATIONAL POSTERS 473 cates that IPGCU did, in several respects, limit the au- thority of locals to agree to certain terms of employ- ment. (See, e.g., G.C. Exh. 33 at 58, 134-137 (all local wage agreements shall not exceed a 3-year duration unless waived by the president; no contract shall require or permit any member to work in excess of 7-1/2 hours per day or 5 days in a week; no regular shifts shall exceed the established number of hours constituting a day's or night's work; and similar requirements).) There is considerable ambiguity in the record on this topic; I shall return to it later. It appears that the grievance procedures between Local 61-C and its related employers have remained the same since the merger. Brown testified that the only ar- bitration in which the Union has been involved in the last 20 years was handled by International representative Callahan; but he was "[n]ot real sure whether it was before or after the merger."12 Brown asked Callahan to represent the local because he himself had never handled an arbitration. In size of membership, the merger has had no discerni- ble effect on Local 61-C. Respondent states on brief: [O]fficials of Local 61-C have discussed the possi- bility of merging with at least one other GCIU local in the Baltimore area. (Tr. 61.) Such mergers are being encouraged by the International (G.C. Exh. 34), and additional mergers can be expected to occur in the Baltimore area during the "transition period." (Tr. 68-73.) The first sentence is accurate so far as it goes. Brown testified that he had talked about merger at some unstat- ed time to one of the officers of Local 41-S (with which Local 61-C was sharing offices), but got no "feedback" from the other officers of Local 41-S to whom he had sent materials on the subject. The matter was `just dropped."13 The first clause of the second sentence is also accurate, but could use some amplification: The merger agreement states that locals will be encouraged to merge, but, "in recognition of the principle of Local autonomy and self-government, such mergers will not be compelled." The final clause, however, can only represent Re- spondent's personal sentiment because it does not reflect Brown's testimony at the pages cited (or anywhere else). The closest Brown came to the notion of "mergers can be expected to occur in the Baltimore area" was the somewhat less affirmative "Anything is possible." There is no basis for this speculation so far as Local 61-C is concerned or, for that matter, any other Baltimore local. Respondent contends on brief that the "trial and appeal procedure for IPGCU members has been entirely revamped under the GCIU constitution" (G.C. Exh. 34, art. XXI). Although the relevant provisions have been changed, it does not appear to me that, insofar as they 12 Despite this testimony, Respondent states on brief that "[t]he GCIU ... has handled the only arbitration that Local 61-C has had under its collective-bargaining agreements." 12 In addition to Locals 61-C and 41-S, there are two other GCIU locals in Baltimore . Brown testified that "[t]here is very little in competi- tion with each other." affect members of Local 61-C, any significant substan- tive changes have been made. There are some differences in approach. The new con- stitution expands the due-process rights of the charged member by, in effect, requiring two pretrial investiga- tions-one by the local executive board and one by the membership. It also makes final a trial board's fording of innocent. Under the old system, a member could be ex- pelled only by a two-thirds membership vote, but now a majority is sufficient. On a fording of guilty, the local membership has now lost the authority to increase the penalty recommended by the trial board. The channels of appeal at the national level have decreased from three to two. The modifications of the former IPGCU constitution trial and appeal procedure do not seem sufficiently radi- cal to render Local 61-C a new and different local; nor are they the kind of changed circumstances that would appear to bring into play the Supreme Court's standard (NLRB v. Financial Institution Employees, supra) of whether the reorganization makes it "unclear whether a majority of employees continue to support the reorga- nized union." The Respondent also asserts that "[t]he new GCIU General Board has new authority to receive charges di- rectly without prior local rulings . . . ([G.C. Exh. 34], Art. XXI, § 7)." The reference is probably to section 2 of article XXI, which apparently contemplates that cer- tain charges can be filed with the general board (while the provision is not very clear, presumably those charges that may be "brought" by the general board-"Against an Officer or Other Official of a Local," "Against a Local," and "Against a Grouping"-are the ones that should also "be filed with . . . the General Board)." Al- though the IPGCU constitution contained no compre- hensive provision relating to charges received and acted on by its governing board of directors, that constitution made references to action taken by the board that would undoubtedly have been board initiated (e.g., G.C. Exh. 33 at 29, art. V, sec. 3: Board has "power to suspend or revoke the charter of a subordinate union, or conference, or council, or to suspend or cancel the cards of members thereof for violations of the laws of the International Union"; p. 40, art. VI, sec. 16: subordinate unions failing to honor a traveler's card "shall be subject to a fore of $50 in the first instance"; pp. 59-60, art. XIV, sec. 1; any local failing to obtain strike sanction "may be disciplined by fore, suspension, or the revocation of its charter, as the Board of Directors may determine"). Manifestly, some level higher than the local one had to be author- ized to entertain certain kinds of charges; in this respect, the new constitution is not materially different from the one that governed the old IPGCU. Respondent's brief stresses the changes wrought by the merger at the national level. The merger agreement pro- vides that "there will be a need for all of the Officers of the two organizations during the early years of merger, but that ultimately, the number of positions can and shall be reduced." It goes on to mandate that, as the "first of- ficers" of the GCIU, the incumbent president of the GAIU would become president of the new union; the 474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD president of the IPGCU would become "President Emeritus," an essentially advisory position, of the GCIU; the IPGCU secretary-treasurer would occupy the same position in the merged organization; the GAIU secre- tary-treasuer would fill the office of GCIU recording and financial secretary; the GAIU executive vice presi- dent would hold that office with the GCIU (but the office would be eliminated for the term beginning 4 June 1984; however, in 1988, the office of recording secretary would become executive vice president), and of the 15 vice presidents, 8 of them would be incumbent IPGCU vice presidents and the other 7 would be incumbent GAIU vice presidents. These officials were to serve on the general board of the GCIU; the remainder of the general board included "the fourteen incumbent Council- lors from among the ranks of the GAIU" and "[fJourteen General Board members elected on a regional basis from among the ranks of the IP & GCU." Thus, the GCIU general board, the central governing body of the Union between conventions, was to be com- posed of an equal number of representatives of each of the merging unions; and the merger agreement provided that as the number of officers and general board mem- bers was gradually reduced, "Every effort will be made to maintain an equal balance in the number of members of the general board from each of the merging organiza- tions during the transition period. In any event, regard- less of any imbalance in actual numbers, there shall always be equality of voting strength between the mem- bers of the General Board representing each of the merg- ing organizations during the transition period ." (G.C. Exh. 34 at 4, sec. 12.) The offices delineated above were to be filled only from the ranks of the respective merged organizations until 1992 when there would be only 10 of- fices (the president, the secretary-treasurer, and 8 vice presidents) that would be filled without regard to prior affiliation. The merger agreement recognizes a need for the two memberships to feel secure that the amalgamated union would continue to represent each of them fairly and forcefully, as the foregoing provision implies. Although respecting this perception, the agreement at the same time phases in through the transition period an organiza- tion that will, eventually, achieve "the ultimate and strongly desired goal of one International Union for the entire graphic communications industry, with greater job security and economic prosperity for the thousands of men and women who contribute their labor to produce the diverse quality products of the industry." The initial governing structure of GCIU was, as noted, 20 officers from the 2 Unions (to be gradually reduced to 10 officers by June 1992) and a "General Board" com- posed of those officers and 28 other members equally di- vided between the Unions (to be reduced by June 1992 to 12 such other general board members). It is difficult to agree with Respondent that the merger agreement "es- tablished an entirely new governing structure for the GCIU from that which previously governed the IPGCU." The latter Union was governed by a president, a secre- tary-treasurer, and eight vice presidents (the latter being required to have specific kinds of craft-oriented member- ship, such as one vice president with a "commercial jour- neyman membership," one with a "newspaper journey- man membership," etc.).14 These 10 officers constituted the IPGCU board of directors, which exercised domi- nant power over the Union between conventions. There are differences between the two kinds of admin- istrations. The new governing board of GCIU consists not only of officers, but also of other members of the two Unions. Since the latter seats are equally divided during the transition period, the change seems to be of little importance. In addition, the GCIU would not, by 1992, be selecting vice presidents by any kind of craft identification, as did the IPGCU; however, for the 1984 election, the eight IPGCU candidates for the offices of vice president were nominated according to their mem- bership in the craft-related locals as had been spelled out in the former IPGCU constitution (G.C. Exh. 34 at 15, art. III, sec. 5). Thus, the terms of office being 4 years, the new constitution continued the practice of vice presi- dential craft representation from 1983 until at least 1988 for the eight vice presidents of IPGCU origin. Unlike the IPGCU constitution, however, the nonofficer general board members of GCIU were to be selected on a re- gional basis. (G.C. Exh. 34 at 18-19, art. X, sec. 2, A-E.) The significance to the IPGCU members of such changes seems questionable. On cross-examination, Local 61-C President Brown admitted that just before the merger, he stated to his members that he "felt that the commercial section of the IPGCU wound up being un- derrepresented on that General Board." The "commer- cial" vice president on the IPGCU board of directors had been but 1 (or at most 2, if the Canadian vice presi- dent was "commercial") person out of 10, however, so it is hard to conceive that any potential additional dilution could have seemed to be a serious matter.15 It should furthermore be noted that the new constitution has made special provision for the preservation of craft identifica- tion and control in the following paragraph found in the "Conventions" article of the new constitution (G.C. Exh. 34 at 28, art. XVII, sec. 13): Section 13. The Commercial, Paper Handler, Specialty, Newspaper, Stereotyper and Electrotyper Branches shall each have full jurisdiction in all mat- ters pertaining to regulation and control of its own branch of the printing industry, insofar as the inter- est of other crafts is not affected; and when the Chairman and Secretary of the caucus held by the Branch certify over their signatures in the Conven- tion that such a proposition has been adopted in caucus, it shall be announced by the chair and shall become the law of the International Union, unless two-thirds (2/3) of the delegates vote against such amendment. 14 The IPGCU constitution had provided that chartered locals be des- ignated as "commercial, newspaper, assistants, paper handlers, stereotyp- er and electrotyper and specialty " G C Exh 33 at 3, art I, sec 6 's As earlier stated, Brown sent a letter to his members in April 1983 urging approval of the merger NATIONAL POSTERS This provision is taken verbatim from the former IPGCU constitution, where it resided as the second sec- tion of an article entitled "Legislation" (the first section of which authorized the International to change the con- stitution and laws as it deemed necessary). (G.C. Exh. 33 at 69-70, art. XVIII.) It was not referred to at the hear- ing. On its face, it seems to both preserve the vitality of craft identity and to repose a great deal of power in the separate branches to regulate their crafts. In addition, chapter XVII, page 53 et seq., of the new constitution contains, under the heading "Practices Of The Former IP&GCU Unique To Their Respective Divisions," de- tailed provisions governing the work and benefits of the members of the various craft locals. The extent to which the jurisdiction of the GCIU has been expanded, if any, in contrast to that of the IPGCU, is difficult to ascertain. The new constitution reproduces verbatim the first significant clause of the former IPGCU jurisdiction provision by stating: "The trade jurisdiction of this International Union shall cover every aspect of printing, publishing, graphic and other forms of commu- nications and related fields of operations." The new con- stitution continues, however, "including but not limited to all work processes, operations and products directly or indirectly in whole or in any part incident to, associat- ed with or related to lithography, offset, photoengraving, letterpress, gravure, intaglio, bookbinding and finishing, paper converting, and all workers wherever located and however described working in any industry whatso- ever." In contrast, the rest of the former IPGCU juris- diction clause seems more limited : "The work jurisdic- tion of this International Union shall cover all employees of private and public employers including printing, offset, intaglio and gravure pressmen, assistants, Hymen, paper handlers, printing specialties and paper products workers, ink and roller makers, circulation workers, stereotypers, electrotypers and workers in associated op- erations." The words "lithography," "photoengraving," and "let- terpress" do not appear in IPGCU's clause; these proc- esses all constitute printing," which does appear there. "Bookbinding and finishing" and "paper converting" were not expressly included in IPGCU's provision, but may well fall under "paper products workers" or "work- ers in associated operations." Although certain specific job titles (e.g, ink and roller makers stereotypers) found in the old IPGCU constitution do not appear in the new clause, they must surely be covered by the board lan- guage of the new clause "all work processes, operations and products directly or indirectly in whole or in any part incident to, associated with or related to." 16 Al- though the new constitution refers, finally, to "all work- ers wherever located and however described working in any industry whatsoever," I very much doubt that the GCIU intends a literal interpretation of that phrase to in- clude, e.g., fishermen and poultry eviscerators. The pre- amble of the new constitution states, "This International 16 As earlier noted, the new constitution expressly refers to the elec- tion of ex-IPGCU vice presidents in 1984 from such "divisions" as "Pa- perhandler," "Stereotyper" and "Specialty ," and also to permanent "cau- cases" of those crafts 475 Union is part of and dedicated to the trend toward the formation of one Union in the graphic communications in- dustry" (emphasis added), and thereafter refers to "our industry" and "the growth and expansion of the graphic communications industry." It is interesting to note that under neither constitution has Local 61 sought to duplicate the range of the respec- tive constitutional clauses. Prior to the merger, the rele- vant provisions of Local 61's bylaws provided jurisdic- tion over "all printing pressmen, assistants, apprentices, and all offset pressmen, assistants, and preparatory work- ers employed in the industry in the territorial jurisdiction above described, except those employed in newspaper printing pressrooms." The changes proposed by Local 61-C to its bylaws after the merger afforded jurisdiction over "all pressmen, assistants, offset preparatory work- ers, duplicator operators, bindery, specialty, art, typeset- ting office workers, or any other workers in departments organized by this local and all registered apprentices in the various crafts employed in a particular plant in the territorial jurisdiction described above." 17 It can be seen that while Local 61-C attempted to expand its jurisdic- tion after the merger to specify certain coverage not pre- viously named, it did not, just as it had not pre-GCIU, try to make its jurisdiction expressly coextensive with that of the respective International constitutions. Brown testified that the present jurisdictional clauses of the four Baltimore locals "includ[e] each other's employees," but Local 61-C has "not organized anyone in that line .. . . We just made it a possibility. If we do, we are covered." The changes made here are not substantial. They argu- ably expand the potential jurisdiction of Local 61-C which, it seems, would be a more congenial modification in the eyes of the membership than a contraction, and yet the changes have not loosened the bonds of Local 61-C to the graphic communications industry. Respondent argues, "General administration, including servicing of local unions, organizing and legal activity, was also merged, with a mandate that such services be reduced [G.C. Exh. 34, sec. 6]." In point of fact, there was no "mandate" to "reduce services." The merger agreement simply provides that the foregoing functions "are just a few areas wherein economic efficiencies can be effectively introduced," a matter to be studied by a committee of the top officers.18 11 Whether these changes are in effect is unclear Local 61-C submit- ted them to GCIU In a response from recording secretary Norton in 1984, Norton appeared to be saying that it was too soon to tell whether the proposed clauses would be in conflict with the clauses of other Balti- more locals, and that any such conflict would be resolved by the Interna- tional president Brown thought that the changes had taken effect 18 It was, however, contemplated, as one of the areas of economic effi- ciency, that the number of International representatives servicing the GCIU locals would be reduced by attrition As of 1 July 1983, there were 33 International representatives on the GCIU payroll Since the merger, death and retirement have reduced the number of representatives by 15, and only 3 new representatives have been hired, leaving a total of 21 representatives Since the representatives of each premerger union pre- sumably covered the same territory, there was most likely a considerable amount of duplicative travel and expense that has now been eliminated, and, since in 1983 these employees earned roughly $35,000 each, the eco- nomic value of merger in such areas becomes apparent 476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IPGCU's constitution had provided for the establish- ment by at least two local unions, with board of direc- tors' approval, of "conferences," "councils," and "joint councils," and the board of directors could also charter "regional, national or other conferences" of locals; locals apparently could affiliate with these groups at their dis- cretion. (G.C. Exh. 33 at 5-6, art. I, secs. 10-15.19) The merger agreement allowed these groupings to "continue to operate in the same manner as they did at the date of merger," but stated that the general board would not "expand the funding for Councils or Conferences, or charter new Councils or Conferences except in the case of consolidation or merger." The effect of these provi- sions, as testified to by GCIU Secretary-Treasurer McNally, was to leave existing councils and conferences (of both IPGCU and GAIU) in place and even capable of increasing their affiliations, but they could not have an "expansion in funds." The record is silent regarding the amount of funding that the board of directors had ever furnished to the councils and conferences. The matter, however, appears to have been of no moment to Local 61-C, since there is no evidence that it has ever been a member of any such council or conference, 2 ° and there is no reason to be- lieve that the freezing of funds to such groups would ever have any material effect on Local 61-C.21 Respondent argues that the merger agreement "estab- lished new procedures for delegate selection and voting representation at the governing international conven- tion." The agreement provided that for the upcoming 1984 convention, voting would be weighted to equalize the voting strength of the two former groups. For the 1988 convention and thereafter, the number of delegates would be based on the number of members in a local ac- cording to a formula that differed from that in the old IPGCU constitution, but "[t]he principle of equal voting strength shall continue in force throughout the transition period, regardless of the number of actual delegates." (G.C. Exh. 34 at 7, sec. 16.) It appears, from the formula contained in the old IPGCU constitution, that Local 61-C would have been entitled to about three delegates to an IPGCU conven- tion. (G.C. Exh. 33 at 47, sec. 1.) How meaningful these 3 delegates would have been at a convention represent- ing about 91,000 other IPGCU members is conjectural. Under the new constitution, in 1988 and thereafter, a local's delegate or delegates are entitled to vote on behalf all the local's members. (G.C. Exh. 34 at 29, art. XVII, sec. 17,C,IV.) 19 GCIU Secretary-Treasurer McNally, however, testified to an in- stance in which the IPGCU board had "turned down" an effort by a Denver local to affiliate with a California council, because "it was too far away " 20 McNally testified that councils are formed to assist small locals, some as diminutive as eight members. Local 61-C, on the other hand, has for some years had nearly 200 members 21 The Local has, however, continued its premerger affiliations with four union and craft organizations, such as the Metropolitan Baltimore Council of AFL-CIO Unions and the Allied Printing Trades of Balti- more Local 61-C's representatives to these four groups have been Presi- dent Brown and, with one change in 1983 or 1984, essentially the same individuals since at least 1981. In the end, it does not appear to be accurate to speak of "new procedures for delegate selection" for the con- vention; the procedures differed, but still were essentially the same. There was, however, new "voting representa- tion," in the sense that more people would be voting at GCIU conventions than at IPGCU conventions. If that fact were sufficient to change the "identity" of a local, then all mergers of International unions would automati- cally destroy all their subordinate locals' "identity." The Board has never so held. As Respondent points out, unlike the former IPGCU constitution, the new constitution contains a "Code of Ethics," which imposes certain standards of conduct on officers, agents, representatives, and trustees of the vari- ous constituent bodies and benefit funds of GCIU, and requires the establishment of a committee of ethics in each local, together with annual reports. These provi- sions have no direct impact on the rank-and-file member- ships of the locals, and many of the standards of conduct are already applicable by virtue of the common law and the Labor-Management Reporting and Disclosure Act. Moreover, one sentence of the IPGCU's old obligation of membership "I further promise that I will not wrong a brother member or see him wronged if it is in my power to prevent" arguably covers most of the fiduciary responsibilities spelled out in detail in the Code of Ethics. A basic contention made by Respondent is that the merger constituted a "takeover" of IPGCU by GAIU.22 One of the more specific allegations made in this cata- gory has to do with the finances of the parent organiza- tions. Respondent asserts on brief that "[p]rior to the merger, the IPGCU general fund contained more than two mil- lion dollars while the GAIU general fund ran a deficit of $16,276 (R. Exh. 106)." The last-named exhibit is a memorandum to IPGCU board members dated 1 No- vember 1982 .23 Financial statements for GAIU (G.C. Exh. 36) as of 30 June 1983 tell a somewhat different story. As of that time, GAIU had in its general fund cash resources of $43,584 and liquid investments of $582,932; however, for the 13 months ended 30 June 1983, the gen- eral fund had shown a loss of $552,888 (compared with a loss of $168,822 for the year ending 31 May 1982). None- theless, GAIU's balance sheet for the general fund as of 30 June 1983 showed a net balance of $330,010. IPGCU, however, also displayed some weaknesses in its general fund for the year ending 30 June 1983, show- ing excess expenses of $96,205. But IPGCU's apparently strong general fund balance of that date was $4,597,456. 22 On brief, Respondent has renewed its complaint about my refusal to grant a delay so that it might subpoena GCIU Vice President James J Mitchell, a resident of New Jersey, to testify (1) about the history of the authority of the GCIU and IPGCU governing boards to pass on pro- posed affiliation of locals with councils, and (2) about Mitchell's opinion that some persons in the new organization desire to erase from it all ves- tiges of the IPGCU. I found that the first objective concerned a remote matter, particularly as it related to Local 61-C, and the second would have involved the hearing in a useless controversy about the existence of a conspiracy I see no reason to believe that my ruling was erroneous 23 It was evidently this document to which GCIU Secretary-Treasurer McNally referred when he agreed at trial that the GAIU general fund showed a $16,000 deficit "prior to the merger." NATIONAL POSTERS 477 Analysis of the copious financial statements seems un- desirable in this lengthy opinion, but two points may be worth making. One is that the 1983 GAIU general fund balance sheet lists as liablilities "Inter-fund payables" of $2,086,349, derived from general fund debts to other funds operated by the GAIU; it also shows a separate loan payable to the GAIU mortuary fund of $800,352. The IPGCU financial statements, on the other hand, note that "All interfund transactions and balances have been eliminated." (G.C. Exh. 40 at 5, item 1.) Thus, compari- son of the general fund balances of the two Unions as of the merger date is not possible. Secondly, the GAIU owned a headquarters building that it had purchased in 1971 for $3,625,000; at the time of the merger, it was valued on a cost basis less deprecia- tion at almost $3 million. An appraisal on 9 December 1982, however, valued the building at $16. 5 million. (G.C. Exh. 36 at 10-11, item 2.) After the merger, this building would be commonly owned by all GCIU mem- bers. The IPGCU, on the other hand, owned no real estate and was renting its headquarters under a lease ar- rangement that would rise from $330,744 in 1984 to $438,460 in 1987. The essential problem with the GAIU, McNally re- ported in his November 1982 memorandum, was its com- parative inefficiency, causing a cash-flow problem. There is no reason, to believe that the two unions did not, in fact, as stated in the merger agreement, "anticipate accel- erating financial stress during the immediate period ahead" and did not sincerely share the opinion that "eco- nomic efficiencies can be effectively introduced, which will moderate the financial burden of the merged mem- bership." (G.C. Exh. 34 at 2, item 6.) Subsequent to the merger, 36 employees have left the GCIU payroll and only 8 new employees have been hired. Annual GCIU excess expenses in the general fund account dropped from $1,358,988 for the year ending 30 June 1984 to $326,109 for the year ending 30 June 1986 (G.C. Exhs. 37 to 39). Another aspect of the "takeover" alleged by Respond- ent is that the merged organization, including Local 61- C in this litigation, is now represented by Delson & Gordon, GAIU's former law firm. Local 61-C President Brown "thought" he recalled that the director of orga- nizing for the International had made the decision for his Local-to be represented by the firm, although the Local had not previously been represented by it, but he seemed to be attributing the need for a new attorney to the fact that the Baltimore, Maryland attorney who had previ- ously represented the Local was no longer available. It is at least clear that the choice of Delson & Gordon was, as Brown testified, directed by higher GCIU au- thority, but the issue does not seem very consequential insofar as the continuation of the Local's identity is con- cerned. The Local's regular attorney left town; the former GAIU counsel was retained because counsel was needed. New legal representation is, obviously, unavoid- able in such circumstances. Moreover, that GCIU has employed GAIU's former counsel as its attorneys seems to no more demonstrate a "takeover" by GAIU than the fact that GCIU now employs as its auditor the firm that used to work for IPGCU demonstrates the primacy of the latter.24 Respondent advances an argument that the provisions of the GCIU constitution assigning the offices of presi- dent, recording and financial secretary, and executive vice president during the transition period only to former GAIU members is violative of section 401(e) of the Labor-Management Reporting and Disclosure Act. (LMRDA), 29 U.S.C. § 481(e).25 Record evidence shows that the U.S. Department of Labor warned GCIU International President Kenneth Brown in 1983 that the transitional constitutional restric- tions on the eligibility of general officers would "consti- tute a violation of Title IV of the LMRDA, and subject those officer elections to challenge, pursuant to Section 402 of the LMRDA." Nonetheless, an election held in 1984 apparently went unchallenged. Minutes of a general board meeting in February 1987 state that Vice President Mitchell had written the president that the procedures "may be in violation of the law" and that if the general board did not act to assure compliance with the statute, Mitchell would file a complaint. The president noted that the same transitional procedures had been used by "all the former International Unions that now make up the GCIU" and that if a complaint were filed regarding the 1988 elections, the matter would be dealt with at that time. Respondent argues, first, that the continuing dispute over the eligibility requirements "makes it impossible to 24 Respondent urges that President Brown not be credited in certain areas "in view of the repeated contradictions between his testimony on cross-examination and both his direct testimony and his sworn prehearing affidavit." As an example, Brown testified on direct examination that the merger brought about only a few changes in the Local's bylaws: that the Local was "instructed" to change the name, but that the modifications of the jurisdiction and "form of organization" clauses were adopted by the Local on its own initiative. Respondent asserts on brief that Brown wrote in his affidavit that "there had been no changes in Local 61 's `bylaws, officers, or dues' following the merger (Tr. 45-46)." The language purportedly quoted by Respondent on brief does not appear in the transcript. It does not even appear in the affidavit (at the hearing, I felt it unnecessary to receive the affidavit because I was led to believe that any inconsistencies had been brought out in the testimony; I now reverse my ruling). The affidavit states that "[t]he same officers, local dues structure, Local Constitution and Bylaws and geographical ju- risdiction that existed prior to the merger between the IP&GCU and GAIU were retained by Local 61 after the effective date of the merger." The record does not show these assertions to be untrue : the bylaws were not changed until a membership meeting on 23 October 1983, and then in the relatively minor manner earlier noted ; the date of resignation of Local Vice President Hosza in or around 1983 is not clear , but he retired perhaps in May as a result of disability, not the merger, and was evident- ly replaced soon after the data of the merger by a sitting member of the Local's executive board ; and, as Brown expressly pointed out at the hear- ing, he had said in the affidavit that there had been no change in the "dues structure," not the "dues." It appeared to me that Brown was doing his best at the hearing to recall some relatively ancient history . He probably did not recollect ev- erything accurately, and he demonstrated some unfamiliarity with the de- tails of both the old and new constitutions , but he tried. I was impressed by his admission that he told the members that the "commercial" section would be "underrepresented" on the new board . To the extent that my conclusions here rest on Brown's credibility, I view his testimony with favor except when the evidence otherwise shows that his memory failed him. 25 The statute requires that "every member in good standing shall be eligible to be a candidate and to hold office (subject to section 504 of this title and to reasonable qualifications uniformly imposed." 478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD state with certainty that no additional changes will take place in the near future which could further affect the union's claim to continuity." However, if a complaint is filed in 1988, under any scenario the most that could happen would be that a special election would be held (before the unrestricted 1992 elections roll around) with- out such built-in preferences. That sort of result, howev- er, would hardly militate in favor of Respondent's claim that the continuity of Local 61-C could be even more at- tenuated by future events. In 1992, as previously pointed out, the union-origin restrictions will disappear. As the second prong of this argument , Respondent as- serts that the "illegal and discriminatory structure also constitutes an independent ground for Respondent's re- fusal to bargain, as the Board has in the past revoked the certifications of unions engaged in unlawful , invidious discrimination," citing Metal Workers Local 1, 147 NLRB 1573 (1964), and Handy Andy, Inc., 228 NLRB 447, 456 (1977). Respondent contends that in Handy Andy, the Board failed to act on the allegations of union discrimi- nation "solely because they were raised in a representa- tion proceeding, rather than in an "appropriate unfair labor practice proceeding," and that the present case falls into the latter category. Respondent misreads Handy Andy. The Board at least three times (228 NLRB at 451, 453) stated that it was addressing the question of raising a union discrimination defense in a "certification and bar- gaining order" context, and also made singularly clear that it will entertain such an issue only in those "unfair labor practice proceedings" in which the union stands formally accused of discrimination. Id. at 455-456. Moreover, I very much doubt that the type of "dis- crimination" under discussion would, in any event, be that contemplated by the Board in Handy Andy. Nor is it clear that the reservation of designated national positions for members of each union for a transitory period in a merger situation is violative of 29 U.S.C. § 481(e). Re- spondent offers no citations to support its claim of ille- gality. In Wirtz v. Hotel & Restaurant Employees Union Local 6, 391 U.S. 492 (1968), the Court found unreason- able a bylaw that made 97 percent of the membership in- eligible to run for office, pointing out that "[u]nduly re- strictive candidacy qualifications can result in the abuses of entrenched leadership that the LMRDA was expressly enacted to curb" (id. at 499). The present circumstances do not appear to present a case of "entrenched leader- ship"; in any event, if by some chance a determinative finding should be made prior to 1992, when the union- affiliation restrictions terminate, that the restrictive pro- vision is unlawful, an article in the GCIU constitution would invalidate it. (G.C. Exh. 34 at 47, art. XXXIII.) Because it refers to the matter at four different places in its brief, Respondent obviously attaches some signifi- cance to the fact that "Local 61-C's office address fol- lowing the merger also was different from that of Local 61 [Tr. 46-47]." The cited source makes clear, however, that the reason for the relocation, which in fact did not occur until "a year and a half ago," was that the original office building was "torn down," which makes it some- what difficult to comprehend why this change might seem merger-related. IV. ANALYSIS AND CONCLUSION In NLRB v. Financial Institution Employees, supra, 475 U.S. at 203, which involved the affiliation of an inde- pendent union with a national union, the Court made the broad statement that "[i]n many cases, a majority of em- ployees will continue to support the union despite any changes precipitated by affiliation," citing with apparent approval the even broader statement in American Range Lines, 13 NLRB 139, 154 (1939), that affiliation "has no probative value concerning the employees' choice of the [union] as their collective bargaining representative." As earlier discussed, this latter fiat is more expansive than the Board has since been willing to be. And even the Court in Financial Institution Employees accepted that if changes in the affiliating entity "are sufficiently dra- matic to alter the union's identity, affiliation may raise a question of representation." Id. at 206. The Court deci- sively disagreed with the employer, however, that "affili- ation necessarily changes the union's identity." In so stating, the Court appeared to put in question the position of the Court of Appeals for the Third Circuit, which, while examining the facts in each such case, has generally viewed the superimposition of a national struc- ture on a formerly independent union as almost inevita- bly creating a change in identity. See Sun Oil Co. of Pennsylvania, 228 NLRB 1072 1977), revd. 576 F.2d 553 (3d. Cir. 1978), and cases cited at 554. The Board has nonetheless persisted in holding that if the effects of the affiliation are such that the localized authority and char- acter of the indendent are not significently impaired by the association with the International union, the baggage that always accompanies such affiliations (e.g., per capita taxes and other obligations to the adoptive parent) does not affect the essential identity of the former bargaining representative. Indeed, in New Orleans Public Service, 237 NLRB 919, 921 (1978), involving the affiliation of an in- dependent with an International, the Board assumed "an entirely new set of bylaws . . . a new system of internal union discipline . . . . a different fee schedule, and that persons outside the unit may be involved in the removal of officers, the investigation of membership applications, the amount of initiation fees, and the expenditure of funds," but still found "no essential change in the identi- ty of the bargaining representative" in view of the reten- tion of various insignia of local control after the affili- ation. Circuit courts have agreed: St. Vincent Hospital V. NLRB, 621 F.2d 1054 (10th Cir 1980); NLRB v. Insulfab Plastics, supra. In the present case-a local already affiliated with an International union that merges with another Internation- al-the theoretical basis for concluding, in the Supreme Court's words in Financial Institution Employees, supra, that "it is unclear whether the reorganized union retains majority support," is considerably more narrow. Here the unit employees voted in the first instance to be repre- sented by a labor organization that itself was under the governance of another larger organization; they chose to be part of a national structure, with all the added freight that such a relationship entails and portends. It thus cannot be said here, as it was in U.S. Steel Corp. v. NLRB, 457 F.2d 660, 664 (3d Cir. 1972), in which an in- NATIONAL POSTERS 479 dependent became associated with a national union, "The very act of affiliation here is a commitment to change in the fulcrum of union control and representation." Although the GCIU constitution was a new one (blending, however, many provisions of both former con- stitutions), "[t]he factual determination at issue revolves not around superficial criteria such as . . . organizational differences in the national unions of which they become a part." J. Ray McDermott & Co. v. NLRB 571 F.2d 850, 857 (5th Cir. 1978). In cases like this one, the Board (consistently) and the courts (frequently) have paid little attention to the fact that the merger of international unions necessarily wrought changes in the governing entity. When the International Brotherhood of Book- binders merged in 1972 with the Lithographers and Pho- toengravers International Union to become the GAIU, and an employer raised the issue of the changed identity of a local of the former Bookbinders, neither the admin- istrative law judge nor the Board even made reference to the new constitution, Pearl Bookbinding Co., 206 NLRB 834 (1973), and the Court of Appeals for the First Cir- cuit, in NLRB v. Pearl Bookbinding Co., 517 F.2d 1108, 1111 (1975), other than summarizing the Respondent's ar- gument predicated on the local being "subordinate to a new international with a new president and constitution," concentrated entirely on those local factors reflecting a continuity of representation. Similar superficial treatment by the Board was accord- ed the affiliation of Retail Clerks International Associa- tion and the Amalgamated Meat Cutters and Butcher Workmen of North America when, in 1979, they joined together as the United Food and Commercial Workers International Union. The Board briefly recited certain as- pects of the merger agreement, such as the integration of the national officers of the two unions into a single hier- archy, the transfer of membership, property, rights, and obligations from both unions into the new one, the al- lowance of "some discrepancies" between the constitu- tions of the locals and that of the new organization, and the like, and concluded that the newborn organization and its locals succeeded to the representational rights of the merged organizations. Warehouse Groceries Manage- ment, 254 NLRB 252, 255-256 (1981), enfd. per curiam 683 F.2d 418 (1st Cir. 1982). In the instant case, there were no changes in the higher echelon governance by virture of the merger that could be deemed to seriously raise the question whether a majority of the Respondent's bargaining unit employ- ees would continue to desire Local 61-C as their bar- gaining representative. And at the local level, Local 61- C essentially retained its longstanding identity. Respond- ent argues that "[l]ack of local autonomy following an international merger is one of the most significant factors leading to a Board finding of change in identity." In my view, however, the 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. The record shows that almost all the same officers (with an exception unre- lated to the merger) continued to serve after the merger; the Local's bylaws remained virtually the same, with a few changes that are, as a practical matter, of no conse- quence; the dues structure, including the procedure for increasing dues, remained intact, as did the per capita payments to the parent union; the Local's assets re- mained its own; the negotiating committees stayed basi- cally the same, with only normal, nonmerger-related turnover; and strike sanctions are still, as they were prior to the merger, subject to higher level approval.26 Only one factor gives me pause, but not for long. As previously discussed, Respondent believes that under the IPGCU constitution, the International had "approved or disapproved local collective bargaining agreements." If that were true, and the GCIU simply continued to exer- cise similar authority, the merger would have effected no change in the relative autonomy of Local 61-C. If, how- ever, the members of the Local possessed the authority before the merger, but did not thereafter, to finally con- summate their own bargaining agreements, a question of continuation of identity would be raised. In previous discussion of this issue , it appeared, in my view, that the former IPGCU constitution did not re- quire submission of bargaining agreements for prior clearance by the International, but did impose various re- quirements that must be included in the agreements; fail- ure to win employer acquiescence in such provisions would, I assume, have effectively precluded an IPGCU local from entering into agreements. The new GCIU constitution, which states that local agreements are "sub- ject to approval" by the International president, may mean only that the president can intervene to prevent the execution of an agreement, and not that he must for- mally approve every contract before it takes effect; or it may mean the latter. Brown was of little definitive help on this issue. He testified to his belief that once a local and an employer agree on a contract, it is "legal and binding." But he also said that he "thought" Local 61-C had "always" submit- ted contracts for International "approval," both before and after the merger. He maintained, however, that "it is still a contract on the local level, whether the Interna- tional approves or not, actually." I note that Brown testi- fied that he sends copies of "proposals" to the Interna- tional to make sure the local is not violating any Federal law or International bylaw, and he may send copies of the consummated contracts to the International for the same purpose. On the other hand, Respondent may be correct in as- serting that the IPGCU International routinely approved or disapproved local bargaining agreements, based on knowledge Respondent would have acquired from an ex- amination of the Union's records. At the hearing, counsel for the Union stated, in summarizing the documents pro- vided to Respondent pursuant to a subpoena to the Inter- national, "We provided in response to specific para- graphs requesting information about such items, the 26 These facts render distinguishable the cases cited by Respondent, all of which (other than the Third Circuit cases) involved complete and new dominance over, or absorption of, one labor organization by another, e.g., Gas Service Co., 213 NLRB 932, 933 (1974), "a new and different labor organization with its own officers and a complete change in the representative." 480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD strike sanction, contract approvals, documents discussing the merger." Counsel further stated that, from the files of 10 randomly selected Locals, "[f]ive from the former GAIU and five from the former IPGCU," the Union "provided files of the contract and research department, reflecting contract refusals, which was-approvals which was a stack about five inches high." Respondent did not contradict these representations, and the files thus pro- duced may account for the position taken on brief that the former IPGCU approved or disapproved bargaining agreements. Given the ambiguity of the evidence and of the "sub- ject to approval" clause, as originally discussed above (compare G.C. Exh. 34 at 51, Ch. 13.2, with Ch. 13.3), together with the fact that the IPGCU constitution itself had imposed various limitations on the ability of locals to negotiate their own contracts with total independence, I am not persuaded that a sufficient showing of substantial change has been made on this issue. I might further note that the Board has not found a change in identity where, in addition to other constitutional restrictions and obliga- tions assumed by an independent 's affiliation with an International, the International did not permit its locals to sign bargaining agreements that failed to incorporate a prescribed national wage floor. Sun Oil Co., supra. Accordingly, I conclude, as a matter of law, that the 1983 merger of the International unions did not cause a substantial change in the identity of Local 61-C and a consequent lack of continuity of representation by Local 61-C with respect to the Respondent's employees in the certified unit. [Recommended Order omitted from publication.]