Hydrotherm, Inc.

HYDROTHERM, INC. Hydrotherm, Inc. and Petroleum, Construction, Tankline Drivers, Yeast, Soft Drink Workers and Driver-Salesmen, Amusement and Vending Servicemen and Allied Workers , Local Union 311 of Baltimore and Vicinity Hydrotherm, Inc. and Petroleum , Construction, Tankiine Drivers, Yeast, Soft Drink Workers and Driver-Salesmen , Amusement and Vending Servicemen and Allied Workers , Local Union 311 of Baltimore and Vicinity a/w International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America , Petitioner. Cases 5-CA-16508 and 5-AC-43

7 August 1986 DECISION, ORDER, AND AMENDMENT

OF CERTIFICATION

BY CHAIRMAN DOTSON AND MEMBERS

JOHANSEN AND STEPHENS On 21 December 1984 Administrative Law Judge Arline Pacht issued the attached decision. The Respondent-Employer filed exceptions and a supporting brief, the Charging Party-Petitioner filed cross-exceptions and a brief in support thereof and in response to the Respondent-Employer's ex- ceptions, and the General Counsel filed an answer- ing 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 and to adopt the recommended Order.2

ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent-Employer, Hydrotherm, Inc., Dundalk, Maryland, its officers, agents, successors , and assigns , shall take the action set forth in the Order.

IT IS FURTHER ORDERED that the petition to amend the certification filed by Petroleum, Con- struction, Tankline Drivers, Yeast, Soft Drink

1 Although the judge states that a secret-ballot vote was conducted pursuant to an agreement for consent election, the record shows that the parties entered into a Stipulation for Certification Upon Consent Elec- tion.

2 The Respondent-Employer moves the Board to reconsider its deci- sion and certification in Case 5-RC-11961, 270 NLRB 1131 (1984) It is well settled that in the absence of newly discovered or previously un- available evidence or special circumstances , a respondent in a proceeding alleging a violation of Sec. 8(a)(5) is not entitled to relitigate issues that were or could have been litigated in a prior representation case. Pitts- burgh Glass Co. v NLRB, 313 U.S 146, 162 (1941); Secs . 102 67(f) and 102.69(c) of the Board's Rules and Regulations 1425 Workers and Driver-Salesmen , Amusement and Vending Servicemen and Allied Workers, Local Union No. 311 of Baltimore & Vicinity a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is granted, and that the Decision and Certification of Repre- sentative in Case 5-RC-11961 (270 NLRB 1131 (1984)) is amended by substituting "Petroleum, Construction, Tankline Drivers, Yeast, Soft Drink Workers and Driver-Salesmen , Amusement and Vending Servicemen and Allied Workers, Local Union No. 311 of Baltimore & Vicinity a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America" for "Pe- troleum, Construction, Tank Line Drivers & Allied Employees Union No. 311 a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America." Nam Soo Dunbar, Esq., for the General Counsel. Frank L. Kollman, Esq. (Blum, Yumkas Mailman & Gutman), of Baltimore, Maryland, for the Respondent. Mary Ellen Signorille, Esq. (Abata & Abata), of Luther- ville, Maryland, for the Petitioner.

DECISION STATEMENT OF THE CASE

ARLINE PACHT, Administrative Law Judge. Pursuant to a charge filed on June 29, 1984, by the Petroleum, Construction, Tankline Drivers, Yeast, Soft Drink Work- ers and Driver-Salesmen, Amusement and Vending Serv- icemen and Allied Workers, Local Union 311 of Balti- more and Vicinity, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union, Local 311, or the Charging Party), a complaint issued on July 16, 1984, alleging that the Re- spondent, Hydrotherm, Inc., was refusing to bargain with the Union in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). Respondent filed a timely answer on July 27, 1984. Thereafter, on August 13, 1984, Local 311 filed a petition to amend cer- tification. An order consolidating these cases for hearing issued on September 20, 1984. On October 22 and 23, 1984, a hearing was held before me in Baltimore, Maryland, at which all parties appeared and were afforded full opportunity to participate, to in- troduce and meet material evidence, and to engage in oral argument. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, the Charging Party, and the Respondent, I make the following

FINDINGS OF FACT

1. JURISDICTION The Respondent, a Delaware corporation with an office and place of business in Dundalk, Maryland, has

280 NLRB No. 167 1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been engaged in the manufacture of commercial and resi- dential heating and hot water units . During the preced- ing 12 months, a representative period, the Respondent purchased and received materials and supplies at its Dun- dalk facility valued in excess of $50,000 directly from points located outside the State of Maryland. According- ly, the Respondent admits and I fmd that it is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also fmd, for the reasons set forth in this decision, that Charging Party Local 311 is now and has been at all times material a labor organi- zation within the meaning of Section 2(5) of the Act. II. THE ISSUES PRESENTED The ultimate issues presented by this case are: (1) whether the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Charging Party and (2) whether the certification in Case 5-RC- 11961 should be amended. Subsumed in both of these issues is a question posed by the Respondent regarding the effect on its duty to bargain of a merger between Teamsters Locals 333 and 311, which occurred prior to the date on which the successor union, Local 311, filed a petition for an election among the Hydrotherm employ- ees. If, as the General Counsel and the Charging Party contend, the merger brought about no significant change in the actual identity of the bargaining representative, then it follows that the successor, Local 311, is entitled to the bargaining rights of its predecessor and the certifi- cation should be amended. However, if the Respondent is correct and Local 311 emerged as a substantially dif- ferent organization, then it is not obligated to bargain with the successor and the amendment for certification should be denied. The Respondent further argues that because the change in identity was significant, the em- ployees were entitled to know of the merger at the time of the election. It claims that the allegedly purposeful concealment of that fact was a denial of the employees' due process rights and an abuse of the Board's electoral processes. III. THE CERTIFICATION OF LOCAL 311 On March 22, 1983, Local 311 filed a petition for an election among Hydrotherm's production and mainte- nance employees. Pursuant to an agreement for a consent election, a secret-ballot vote was conducted on May 12, 1983. The results of the election were 59 to 56 in favor of the Union. The Respondent's objections to the election were overruled by the Regional Director. Exceptions then were taken to the Board, which on June 11, 1984, reject- ed them and issued an order certifying the Petroleum, Construction, Tankline Drivers and Allied Employees, Local Union 311 as the authorized bargaining representa- tive of the Hydrotherm employees.' By letter of June 20, 1984, Robert Cremen, secretary- treasurer of Local 311, requested that the Respondent enter into negotiations. In a reply dated June 27, 1984, counsel for Respondent refused to bargain because "the 1 270 NLRB 1131 (1984). Company continues to believe that your union does not represent an uncoerced majority of its employees." Several days later, Local 311 filed an unfair labor practice charge with the Board. A complaint issued on July 16, 1984, which in paragraph 3(a) stated: On or about May 2, 1983 the Petroleum, Construc- tion, Tankline Drivers and Allied Employees Local Union No. 311 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, added to its membership the members of Brewery, Yeast, Soft Drink Workers and Driver- Salesmen, Amusement and Vending Service Men and Allied Workers, Local Union No. 333, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Local 311 then changed its name to Petroleum, Construction, Tankline Drivers, Yeast, Soft Drink Workers and Drivers-Salesmen, Amusement and Vending Service Men and Allied Workers Local Union 311 of Baltimore and Vicinity. Local 311's revised title appears in the caption of the in- stant complaint. In its answer , the Respondent stated that it lacked suf- ficient information to form a belief concerning the aver- ments of paragraph 3. In addition the Respondent point- ed out that although a certification had been issued to Petroleum, Construction Tankline Drivers and Allied Employee's Union No. 311, the Charging Party identi- fied in the caption of the complaint was not properly certified as the exclusive collective-bargaining represent- ative of its employees.

A month later, on August 13, 1984, Local 311 filed a petition to amend certification to reflect a change in its name "due to the addition to its membership of the mem- bers of . . . Local Union No. 333." Thereafter, an order issued consolidating that petition and the unfair labor practice complaint for hearing. A. The Merger of Locals 333 and 311 Generally, questions concerning continuity of repre- sentation by a successor union arise when the merger occurs after a predecessor union has been certified. Here, the merger took place before the petition for an election among Hydrotherm employees was filed by Local 311 under its unamended, premerger title.2 Nevertheless, within the specific circumstances of this case, the rele- vant inquiry continues to turn on whether the successor union retained its identity so that it is entitled to step into the shoes of its predecessor as the certified bargaining agent for the Hydrotherm employees. An examination of the facts attending the merger in this case provides com- pelling proof that Local 333 was wholly absorbed by

2 As the Hydrotherm employees could not have participated in the merger vote conducted by Local 311, the validity of that process is not in issue Cf F W. Woolworth Co., 268 NLRB 805 (1984), in which the Board held that all employees who are represented by a union, whether they are members , must be accorded the right to vote on a merger be- tween their collective-bargaining representative and another local. HYDROTHERM, INC. 1427 Local 311 which emerged from the process with its iden- tity intact. In the summer of 1982, Robert Griffin, then secretary- treasurer of Local 333, spoke to Local 311's secretary- treasurer, Robert Cremen, about the prospect of a merger . Both men viewed such an undertaking favorably believing that certain advantages would accrue. From Griffin's perspective, Local 333, with approximately 400 members, was at a standstill, if not actually experiencing a decline. Because of its relatively small size , Griffin was Local 333's only paid official. He was so preoccupied with administrative matters that he had little time to devote to new organizational activities or to servicing contracts. For his part, Cremen viewed a merger as a means of expanding Local 311's jurisdiction, thereby giving it a broader base which he believed could be useful in collective bargaining. Both men sought advice from the International on how to proceed with the merger. Accordingly, after discussing the matter with and obtaining approval of their respective executive boards, the officials presented the issue to the member- ship of each local. By a margin of 71 to 20, Local 333 endorsed the merger proposal on September 19, 1982. Approximately I month later, the membership of Local 311 also approved the merger by a vote of 212 to 29. With the consent of the International, the merger was to be effective officially on February 1, 1983. Prior to that date, however, certain transitional steps were taken. Thus, after the membership of Local 333 approved the merger , its executive board, whose members, with the exception of Griffin, held full-time employment else- where, was dissolved. By virtue of the merger agree- ment, Griffin was to become a full-time business agent with Local 311. At the end of December 1982, Griffin vacated quarters which Local 333 had leased on a month-to-month basis and moved into Local 311's head- quarters which continue to be located in the Union's own building at 416 Eastern Avenue, Baltimore. On February 1, 1983, Local 333 formally ceased to exist . On that same date, all of Local 333's assets, its records, office furniture, and equipment were transferred to Local 311. By a computer transaction, the 400 mem- bers of Local 333 were assigned to Local 311, thereby expanding its membership to something over 2000 mem- bers.3 Local 333's members were charged no initiation fees and their dues payments were unaffected by the transfer. Local 333's dues structure differed slightly from that of Local 311 although both methods were sanctioned by the International. Although Local 333's members paid dues at twice the average hourly rate for each unit of employees under the respective collective-bargaining agreements , Local 311 members paid dues based on twice the hourly rate actually earned by each worker. Both dues systems were retained after the merger. One modification did occur with respect to initiation fees. Specifically, before the merger, Local 311 had two cate-

9 Local 311 's membership fluctuated from month -to-month depending on when employers submitted dues payments on behalf of employees, the number of current construction contracts, and the seasonal nature of some of the members' work. gories of initiation fees: one for construction workers and another for everyone else. Post merger, a third category was added specifically for any new members who might be organized in the vending trade. Robert Cremen remained secretary-treasurer and prin- cipal executive officer of Local 311 after the merger. All other officers also remained in place with but one excep- tion. Recording Secretary Gil Ashley regarded the merger as a welcome opportunity to resign. Consequent- ly, when Griffin was hired as a business agent for Local 311 with a modest increase in salary, he also assumed the vacated recording secretary's position. Subsequently, he was appointed to fill Ashley' s seat as a trustee on the ex- ecutive board of Local 311's health and welfare fund. Prior to the merger, Local 333 had 11 or 12 separate labor agreements with 8 employers, although Local 311 had between 135 and 150 agreements. None of these con- tracts was affected by the merger. The same business agents who previously had serviced the contracts contin- ued to do so. The same shop stewards also remained in place. As principal officer of Local 311, Cremen was respon- sible for handling all business matters affecting the Local, had ultimate authority for negotiating and administering collective-bargaining agreements, and for the assignment of business agents to service the various contracts. Subse- quent to the merger, Cremen's functions were not altered in any way. Local 311's method of negotiating collective-bargain- ing agreements has not varied subsequent to the merger. Traditionally, prior to the expiration date of a contract, employees meet with Local 311 agents to formulate con- tract proposals. Generally, Cremen is in charge of the bargaining process but on occasion he may designate the business agent to conduct negotiations under his over- sight. Employees and shop stewards from the respective units also participate in the bargaining. Cremen and Local 311 President Gene Shiflitt sign all collective-bar- gaining agreements, which are subject to ratification by the unit employees covered. Local 333's contracts were handled in an identical manner. When Local 333 merged into Local 311, Griffin was authorized not only to con- tinue servicing agreement with employers who previous- ly were under contract with Local 333, but also was au- thorized to renegotiate those contracts when they ex- pired, with Cremen's participation. No variance occurred in the way that the fringe benefit funds were adminis- tered subsequent to the merger. Thus, both before and after February 1, 1983, Local 311 and various employers jointly contributed to the health, welfare, and pension plans that were and continued to be administered by a board of trustees. Subsequent to the merger, some em- ployers who previously had contracts with Local 333 agreed to contribute to these funds. Other employers, who previously had contracts with Local 333 or 311, participate in separate fringe benefit plans. As Locals 333 and 311 are both affiliated with the International Brotherhood of Teamsters, no change in the Local's constitution occurred as a result of the merger . The bylaws of Local 311 were amended subse- 1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quent to the merger but only to bring them into con- formance with the model bylaws of the International. As Cremen explained, each Local's full name reflects, in a general way, the industries or crafts that come within its jurisdiction. Thus, Local 311's name prior to the merger indicated that it represented employees in the following three fields: (1) petroleum, (2) construction, and (3) tankline drivers and allied employees. After the merger, Local 311's jurisdiction was extended to vending service employees. Approximately 50 percent of the Local's membership is in what Cremen referred to as the "industrial area," the category that includes the Hy- drotherm employees. In geographical terms, the merger did not affect Local 311's territorial jurisdiction except to include a single employer located in a town beyond the Union's former boundaries. In all other respects, Locals 333 and 311's territory overlap. B. Local 311's Organizational Campaign at Hydrotherm Although the merger was formally effective on Febru- ary 1, 1983, Local 311's name change was not officially recognized until some months later. The Local had ap- plied for a name change to the International on October 27, 1982, but the official recognition of the event and the award of a new charter bearing the amended name was not received until early May 1983. In the interim, Local 311 filed a petition for an elec- tion and entered into an agreement for consent election among ' Hydrotherm employees under its unamended name . The Board's election ballots distributed to the Hy- drotherm voters also bore Local 311's premerger title. This is not to say, however, that the merger was not dis- closed to the Hydrotherm employees. In fact, Griffin tes- tified without controversion that on one occasion when he substituted for the regular business agent at an organi- zational meeting of Hydrotherm employees, he intro- duced himself to the approximately 30 participants, men- tioning that he had served as business agent for Local 333 prior to its merger into Local 311. The organizer regularly assigned to the Hydrotherm unit, Chuck Grea- son, further testified that he did not inform the employ- ees of the merger because "it was always Teamsters 311." It is significant to note that the authorization cards uti- lized by Local 311 before and after the merger, including those which were distributed to and signed by Hydroth- erm employees, identified the Union solely as "Local Union 311." Cremen believed that the Local did not obtain new stationery bearing its amended name until July 1983.4 This stationery was used to advise the Hy- drotherm employees of a meeting held after the Local received Board certification. Although some 45 unit em- ployees attended the meeting, no one questioned or al- luded to the Local's amended title.

4 In fact, the Union's June 20 bargaining demand was sent under the new letterhead . Further, the Respondent directed its reply letter to the Union under its amended title IV. DISCUSSION A. The Charging Party is the Lawful Successor to Local 311 In determining whether a merger has altered the essen- tial nature of a bargaining representative as it affects em- ployees, case law requires an examination of whether the successor union's structure, its officials, and its powers and duties vis-a-vis those employees ensures them a sub- stantial continuation of their certified bargaining agent. J. Ray McDermott & Co. v. NLRB, 571 F.2d 850, 857 (5th Cir. 1978); Montgomery Ward & Co., 188 NLRB 551, 552-553 (1971); Retail Clerks, 154 NLRB 1197 (1965), enfd. 373 F.2d 655 (D.C. Cir. 1967). With these considerations in mind, I find that the merger between Locals 333 and 311 did not alter the es- sential character of the Hydrotherm employees' collec- tive-bargaining representative. The International's consti- tution continued to govern; Local 311's bylaws also were unaffected. The Union's chief executive officer remained the same as did all other officers with the exception of the recording secretary. Methods of negotiating collec- tive-bargaining agreements were not altered; the same business agents continued to service contracts on a plant- by-plant basis, exactly as they had prior to the merger; shop stewards remained in place and grievance proce- dures were unchanged. The methods of assessing dues also were retained as were the modes of payments to the fringe benefit funds. Local 311's place of doing business and way of conducting its day-to-day affairs was the same as before. The few variances that the merger brought about were of a relatively minor nature. Thus, Local 311's member- ship of 2000 expanded by 400 and its jurisdiction was ex- tended to cover employees in the vending industry. One business agent was added to the payroll who continued to service the 12 collective-bargaining agreements previ- ously negotiated by Local 333, and shop stewards in those plants that had 10 or more employees had their dues paid by Local 311. None of these factors could have any appreciable impact on Hydrotherm employees. Notwithstanding the ample evidence of the retention of Local 311's identity subsequent to the merger, the Re- spondent protests that Hydrotherm employees were pur- posely deprived of their opportunity to decide whether they desired representation by a merged union. The Re- spondent further maintains that there are facts in the record which suggest that if the merger had been di- vulged, the outcome of the Board election might have been affected.

I find nothing in the record of this case to support the Respondent's contentions. There is no basis for an infer- ence that Local 311 purposely concealed the merger from the Hydrotherm employees. To the contrary, the evidence shows that Griffin told a substantial number of them that a merger had taken place. Moreover, after cer- tification, the unit employees were expressly apprised of the merger and it apparently made no difference to them for they raised no question nor voiced any criticism about the matter. As the Supreme Court recognized, albeit in a different context, if employees clearly desire HYDROTHERM, INC. 1429 to dissolve a union they may do so by bringing a repre- sentation petition. See NLRB v. Gissel Packing Co., 395 U.S. 575, 613 (1969). The Respondent argues that a 20-percent increase in Local 311's membership, the formation of a new division within Local 311, and the addition of a new business agent could have made a difference to Hydrotherm em- ployees as it diluted their voting power, altered the allo- cation of Local 311's resources, modified procedures for the conduct of collective bargaining , and imposed finan- cial burdens. The factors identified by the Respondent are either in- significant or nonexistent. At the outset, I note that Chuck Greason, the business agent assigned to Local 311's campaign at Hydrotherm, testified without dispute that he informed employees at an organizational meeting of the total membership of the merged Local. The record also shows that before and after the merger mem- bership deviated by as much as 200 to 300 members in any given month for a variety of reasons unconnected to the merger itself. Thus, the addition of approximately 400 members could not burden a union already accus- tomed to fluctuations in its total size . The Respondent is simply incorrect in asserting that the merger altered the method by which collective-bargaining negotiations were conducted or the manner in which grievances were han- dled. Moreover, since labor contracts are negotiated on an individual plant basis and must be approved only by those within the unit, the addition of more members to the Union could not dilute the vote of Hydrotherm em- ployees on the matter of greatest importance to them. The addition of the vending division to Local 311's juris- diction was a distinction without a difference insofar as Hydrotherm employees were concerned. They were in- cluded in Local 311's industrial division, which existed prior to the merger and continued to be the largest craft category both before and after February 1, 1983. The Respondent also maintains that Local 333's financial situ- ation imposed a burden on Local 311 and, consequently, might have influenced the way in which Hydrotherm employees regarded representation by Local 311. The record shows that although Local 333 was not well to do, neither was it poverty stricken. Although Local 333 did transfer an indebtedness of approximately $4700 to Local 311, it also conveyed assets worth over $2000. Local 333 was involved in no outstanding litigation, had only one grievance that may have been pursued to arbi- tration, and had no members who currently were out of work. Thus, although Local 333 may not have enriched Local 311 from a fiscal point of view, it is fair to say it enhanced the successor union by enlarging its member- ship and extending its craft jurisdiction. Perhaps even more important is the fact that after the merger Local 311 was in as flourishing a financial posture as it was be- forehand. Thus, its total networth in 1982 was $166,647 and $253,114 at the end of 1983. The Respondent next suggests that the same reasons that motivated some union members to oppose the merger might have also influenced additional Hydroth- erm employees to vote against representation by Local 311. What the Respondent ignores is that the Hydroth- erm employees were not voting on whether they desired a merger between Local 333 and Local 311. They were not being asked nor were they entitled to ratify the merger. Rather, they were voting on an altogether dif- ferent question-whether they wished to be represented by Local 311 or not at all. Finally, the Respondent argues that Local 311's failure to inform the Board of its amended title was an abuse of the Board's election processes. It is true that the Board scrupulously protects the fairness of its elections. How- ever, the technical defect involved in the Hydrotherm vote is not the sort of problem that warrants invalidating an election. The Board has made it clear that a procedur- al defect like the one at issue here will not defeat the le- gitimate claims of a union where there is no ambiguity on the true identity of the bargaining representative. See Circleville Metal Works, 266 NLRB 719 (1983), in which the Board held that the failure to include on a decertifi- cation petition the name of the local lodge that executed a collective-bargaining agreement with the employer, rather than the name of the district lodge that was origi- nally certified as the employees' collective-bargaining representative, would not invalidate the decertification election. Local 311's failure to advise the Board of its amended name was apparently nothing more than an in- advertent oversight. As soon as the mistake was brought to its attention by way of the Respondent's answer to the instant complaint, in this case, the Charging Party promptly moved to amend its certification. Based on the record in this case, the evidence is over- whelming that the merger between Locals 333 and 311 did not significantly affect the continuity of representa- tion by the certified union nor alter its relationship to the Hydrotherm employees. Local 311's formal name was changed as a consequence of the merger but its identity was not. The union that received Board certification was not replaced by a different entity, it continued to be quintessentially Local 311. Thus, there can be no doubt that the Charging Party is the lawful successor to Local 311. Therefore, the fact that the amended title of the Local did not appear on the election ballot presented to the Hydrotherm employees is immaterial and its certifi- cation as their duly elected bargaining representative should be amended.5 It is well settled that where, as here, there is substan- tial continuity in the identity of the successor union an employer may not lawfully refuse to recognize and bar- gain with the successor.6 It follows that the Respond- ent's refusal to bargain with the Charging Party violates Section 8(a)(5) and (1) of the Act. B. Charging Party's Request for Attorney 's Fees is Denied In reliance on Tiidee Products,' counsel for the Charg- ing Party applies for an award of attorney's fees, charg-

5 See Knapp-Sherrill Co., 263 NLRB 396 (1982), Foremost-McKesson, Inc., 232 NLRB 208 (1977).

6 See Knapp-Shern/1 Ca, 268 NLRB 860 (1984), Wellman Industries,

248 NLRB 325, 338-339, (1980) 7 194 NLRB 1234, 1235-1237 (1972), enfd. as modified 426 F.2d 1243 (D.C. Cir.), cert. denied 400 U.S. 950; 196 NLRB 158, 159 (1972), enfd.

502 F.2d 349 (D C. Cir. 1974), cert. denied 417 U S. 921 (1974). 1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing that the Respondent's defenses were frivolous. Al- though the defenses raised by the Respondent were de- batable and far from persuasive, this does not necessarily mean they were wholly without merit or posed purely for evasive purposes. There is no dispute that the Respondent was unaware of the merger between Local 333 and 311 when it reject- ed the Union's request to bargain and officially learned of the merger when the complaint was filed in this case. The Respondent promptly filed its answer, which set forth the defenses subsequently litigated in the hearing before me. In the absence of pretrial discovery, the Re- spondent was not in a position to determine whether the merger involved more than a change of name until evi- dence was presented at trial . Moreover , in contrast to the employer's conduct in Tiidee Products, supra, the record in this case does not show that the Respondent previously engaged in "clearly aggravated and pervasive misconduct." Heck's Inc., 215 NLRB 765, 767 (1974). For these reasons , I cannot conclude that the Respond- ent's defense in this action was patently frivolous and, therefore, deny Charging Party's request for attorney's fees.

CONCLUSIONS OF LAW

1. Hydrotherm, Inc. is an employer within the mean- ing of Section 2(2), (6), and (7) of the Act.

2. Petroleum, Construction, Tankline Drivers, Yeast, Soft Drink Workers and Driver-Salesmen, Amusement and Vending Machine Servicemen and Allied Workers, Local Union No. 311 of Baltimore and Vicinity, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor orga- nization within the meaning of Section 2(5) of the Act.

3. On February 1, 1983, the Charging Party, identified in paragraph 2 above, became the lawful successor of the Brewery, Yeast, Soft Drink Workers and Driver-Sales- men, Amusement and Vending Servicemen and Allied Workers, Local Union No. 333 and the Petroleum, Con- struction, Tankline Drivers and Allied Employees Local Union No. 311.

4. As the lawful successor, the Charging Party cited in paragraph 2 above succeeded to all certification rights of its predecessor, the Petroleum, Construction, Tankline Drivers and Allied Employees Local Union No. 311.

5. All production and maintenance employees em- ployed at Hydrotherm, Inc.'s Dundalk, Maryland facili- ty, including maintenance/utility employees , assemblers, machine operators , testers, inspectors , brazers, painters, welders, machinists, set up operators, material handlers, storekeepers , shipping and receiving clerks, tool and die makers, but excluding managerial employees , lead super- visors, office clericals, schedulers, expediters, production control clerks, quality insurance technicians, purchasing agents, industrial and manufacturing engineers , profes- sional and confidential employees , guards and supervi- sors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.

6. The Charging Party, Local 311, was and is at all times relevant herein the exclusive bargaining representa- tive of the employees in the unit described above for purposes of collective bargaining with respect to wages, rates of pay, hours of employment , and other terms and conditions of employment within the meaning of Section 9(a) of the Act.

7. By refusing since about June 27, 1984, to meet and bargain in good faith with Local 311 as the representa- tive of its employees in the unit described above, the Re- spondent violated Section 8(a)(5) and (1) of the Act.

THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Specifically, it is recommended that the Respondent recognize and, on request, bargain with Local 311 through its designated agent as the exclusive representa- tive of all employees in the unit herein found to be ap- propriate 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 an un- derstanding is reached , embody such understanding in a signed agreement. It is also recommended that since the identity and continuity of the bargaining representative has been preserved subsequent to its merger on February 1, 1983, the petition to amend certification should be granted. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed8

ORDER For the purpose of determining the duration of certifi- cation, the initial year of certification shall begin on the date the Respondent commences to bargain with Local Union No . 311 as the recognized exclusive bargaining representative in the appropriate unit.9 The Respondent, Hydrotherm, Inc., Dundalk, Mary- land, its officers, agents , successors , and assigns, shall

1. Cease and desist from

(a) Refusing to recognize and bargain collectively with the Charging Party, Local 311, through its designated agents, as the exclusive representative of its employees in the following appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All production and maintenance employees em- ployed at Hydrotherm Inc.'s Dundalk, Maryland fa- cility, including maintenance/utility employees, as- semblers, machine operators , testers, inspectors,

9 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions , and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.

9 The purpose of this provision is to ensure that the employees in the appropriate unit are accorded the services of their designated bargaining agent for the period provided by law. See Wellman Industries, supra at 343 fn 26 and cases cited therein. HYDROTHERM, INC. brazers, painters , welders, machinists, set up opera- tors, material handlers, storekeepers, shipping and receiving clerks, tool and die makers, but excluding managerial employees, lead supervisors, office cleri- cals, schedulers, expeditors, production control clerks, quality insurance techinicians, purchasing agents, industrial and manufacturing engineers, pro- fessional and confidential employees, guards and su- pervisors as defined in the Act constitute a unit ap- propriate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act.

(b) In any like or related manner interfering with, re- straining , or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) On request, bargain with the Charging Party, Local 311, as the exclusive representative of all employ- ees in the aforesaid appropriate unit with respect to rates of pay, wages , hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement.

(b) Post at its Dundalk, Maryland facility copies of the attached notice marked "Appendix."10 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable 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 Re- spondent has taken to comply.

IT IS FURTHER RECOMMENDED that the petition for amendment of certification is granted.

10 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 "

APPENDIX NOTICE To EMPLOYEES

POSTED By ORDER OF THE

NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 1431 After a hearing the National Labor Relations Board has found that we unlawfully refused to bargain with Petro- leum, Construction, Tankline Drivers, Yeast, Soft Drink Workers and Driver- Salesmen , Amusement and Vending Servicemen and Allied Workers, Local Union No. 311 of Baltimore & Vicinity a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining repre- sentative of all our employees in the following appropri- ate unit: All production and maintenance employees em- ployed at Hydrotherm Inc.'s Dundalk, Maryland fa- cility, including maintenance/utility employees, as- semblers, machine operators, testers, inspectors, brazers, painters, welders, machinists, set up opera- tors, material handlers, storekeepers, shipping and receiving clerks, tool and die makers, but excluding managerial employees, lead supervisors, office cleri- cals, schedulers, expediters, production control clerks, quality insurance technicians, purchasing agents, industrial and manufacturing engineers, pro- fessional and confidential employees, guards and su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective- bargaining within the meaning of Section 9(b) of the Act.

WE WILL NOT refuse to recognize or bargain with Local 311 but will, on request, meet and bargain collec- tively with the Union, through its designated agents, as your exclusive bargaining representative and, if an agree- ment is reached, WE WILL embody in writing and sign such an agreement.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. HYDROTHERM, INC.