F. W. Woolworth Co.

National Labor Relations Board - Board Decisions

Feb 10, 1984

268 N.L.R.B. 805 (N.L.R.B. 1984)

F. W. WOOLWORTH CO.
F. W. Woolworth Co. and United Food and Com-
mercial Workers International Union, AFL-
CIO, Local 568. Case 24-CA-4514
10 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 15 June 1982 Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting 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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
This case poses the issue of whether the merger
which took place between the United Food and
Commercial Workers International Union, AFL-
CIO, Local 552 (Local 552) and United Food and
Commercial Workers International Union, AFL-
CIO, Local 568 (Local 568) was valid, and wheth-
er the Respondent's refusal to bargain with Local
568 was unlawful. The judge found that the merger
was valid, holding that under established Board
law it was irrelevant that the Respondent's employ-
ees were excluded from the merger vote as non-
members.
The conclusion is contrary to the recent decision
in Amoco Production Co., 262 NLRB 1240 (1982), in
which the Board found that a union's denial to
nonmembers of the opportunity to participate in an
affiliation election violated fundamental due proc-
ess standards. Under the rationale of that case, we
find the merger to be invalid and hence dismiss the
complaint in its entirety.
We find no fault, however, with the judge's find-
ings of fact and credibility resolutions, which we
adopt.' The essential facts are as follows: In late
spring 1980,2 Local 552 began to organize the Re-
' 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.
We note the following factual errors in the udge's decision: (I) an arti-
cle discussing the merger of Local 552 and Local 568 appeared in Carri-
bean Business on 17 September 1980, and not 7 September 1980; (2) the
last letter sent by Local 552 to the unit employees bearing its letterhead
was dated 9 September 1980, and not 4 August 1980, and (3) in Conclu-
sions of Law 3, 27 July 1981 should read 1 August 1981.
2 Unless otherwise stated all dates herein refer to 1980.
268 NLRB No. 115
spondent's employees at its Bayamon, Puerto Rico
branch and on 21 April filed a petition to represent
these employees. During the same period, Local
552 and Local 568 sought and received the consent
of their parent international to begin merger dis-
cussions. At an organizational meeting of the Re-
spondent's employees in April Local 552 business
agent Moulert told the seven or eight employees
present that a merger of Local 552 and Local 568
was probable. This subject was raised again at a
meeting held on 2 July when Local 552 business
agent Pabon described the merger in greater detail
and invited the eight or nine persons present to
attend, as observers, the General Assembly of the
two locals on 27 July, where members of Locals
552 and 568 were to discuss and vote on the
merger.
On 11 July, Local 552 won a representation elec-
tion held among the Respondent's full-time and
part-time selling and nonselling employees em-
ployed at its Bayamon branch, by a vote of 14 to
12.
On 27 July, the members of Local 552 and Local
568 voted to approve the merger of these locals,
and thereafter Local 568 was declared the succes-
sor to Local 552 for purposes of collective bargain-
ing, including representation of the Respondent's
employees at its Bayamon branch. 3 The Respond-
ent's employees were ineligible to vote on the
merger because they were not yet dues-paying
active members.
On 15 April 1981, after the resolution of the Re-
spondent's objections to conduct affecting the elec-
tion, Local 552 was certified as the collective-bar-
gaining representative for the unit employees. On
12 May 1981, Local 568 notified the Respondent of
its desire to begin bargaining. The Respondent re-
fused, asserting that Local 568 was not a valid suc-
cessor to Local 552.
The judge found that the merger of Local 552
with Local 568 was valid. In response to the Re-
spondent's contention that it has no obligation to
bargain because its employees were precluded.from
voting on the merger, she found that, under Board
law, "a merger or affiliation election, if otherwise
valid, is not impaired if a small group of employees
is unable to vote because they were not yet union
members," citing inter alia, Montgomery Ward &
Co., 188 NLRB 551 (1971). Thus, reasoning that
the voting procedures were proper and that Local
568 was the lawful successor of Local 552, the
judge concluded that the Respondent's refusal to
a About 50 members of Local 568 and 40 members of Local 552 at-
tended the meeting, and the merger was approved by a vote of 89 to 2.
805
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain with Local 568 violated Section 8(a)(5) and
(1) of the Act. We do not agree.
In Amoco Production Co., above, the Board noted
that while affiliation elections need not meet the
standards the Board has enunciated for its own
election proceedings, there are certain due-process
requirements which must be met in order to have a
valid affiliation election. The Board concluded that
these requirements are not met when a union
denies the nonmember employees it represents the
opportunity to vote in an affiliation election. In
reaching this conclusion the Board overruled earli-
er precedent, and relied on the following language
from the dissent in North Electric Co.:4
If the Board is to accept privately conduct-
ed elections as a basis for amending Board cer-
tifications, it should be certain that minimal
standards of due process be observed lest the
very validity of Board certifications and elec-
tions be undermined. Granted the employees
in a bargaining unit cannot be compelled to
vote, they can, at the very least, be afforded
the opportunity to vote. It appears basic to the
collective-bargaining process that the election
of a bargaining representative be made by the
employees in the bargaining unit. In our view,
therefore, a cardinal prerequisite to any
change in designation of the bargaining repre-
sentative is that all employees in the bargaining
unit be afforded the opportunity to participate
in such selection. [As cited in Amoco Produc-
tion Co., 262 NLRB at 1241.]
The Amoco case involved an election in which
nonmembers of the independent were barred from
voting on the affiliation with the International. The
same principles apply, however, when, as here,
there is a merger between two locals within the
same International union. In both instances the cer-
tified union is replaced by a different entity from
that designated by the unit employees. In both
cases a factor of primary importance is whether the
affected employees have had an opportunity to
pass on the change of representative. 5 That a
merger election involves locals of the same parent
union does not diminish the impact of the change
on the employees or extinguish the due-process re-
quirement that all employees in the bargaining unit
be afforded the opportunity to vote.
Here, Local 552 and Local 568 restricted the
vote on the proposed merger to members and limit-
ed the participation of employees in the bargaining
unit to that of observers. Because unit employees
were not permitted to vote in the merger election,
' 165 NLRB 942, 944.
5 See Sa'way Steel Scaffolds Ca of Georgia, 173 NLRB 311 (1968).
we find the merger was invalid, and therefore the
Respondent did not violate Section 8(a)(5) and (1)
when it refused to bargain with Local 568.6
ORDER
The complaint is dismissed.
6 In light of our finding that the merger of Local 552 with Local 568
was not valid, we find it unnecessary to pass on whether Local 568 was a
successor to Local 552 for purposes of collective bargaining.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge: Pursuant
to a charge filed on May 19, 1971, by United Food and
Commercial Workers International Union, AFL-CIO,
Local 568 (hereinafter the Union or Local 568), a com-
plaint issued on June 5, 1981, alleging that the Respond-
ent, F. W. Woolworth Co., was in violation of Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended.
Pursuant to notice, a hearing was held before me in
Hato Rey, Puerto Rico, on February 17 and 18, 1982.
All parties appeared at the hearing and were afforded
full opportunity to participate, to introduce and meet ma-
terial evidence, and to engage in oral argument.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and the
Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation, has main-
tained an office and a place of business at the Bayamon
Shopping Center in Bayamon, Puerto Rico, and at vari-
ous other locations in the Commonwealth of Puerto
Rico, where it is and has been all material times herein
engaged in the retail sale of merchandise, dry goods, and
related products. During the past 12 months, a period
representative of its annual operations, the Respondent,
in the course and conduct of its business, derived gross
revenues in excess of $500,000. During this same period
of time the Respondent purchased and caused to be
transported and delivered to its places of business mer-
chandise, dry goods, and other goods and materials
valued in excess of $50,000 which were transported and
delivered to its place of business in Puerto Rico directly
from points outside the Commonwealth. Accordingly,
the Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Charging Party, United Food and Commercial
Workers Union, AFL-CIO, Local 568, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
806
F. W. WOOLWORTH CO.
II. PRIOR PROCEEDING BEFORE THE BOARD
A. The Representation Proceeding
On April 21, 1980,1 Retail Clerks International Union
Local 552, United Food and Commercial Workers
Union, AFL-CIO (hereinafter Local 552), petitioned for
an election among all regular full-time and part-time sell-
ing and nonselling employees of the F. W. Woolworth
Co. at its Bayamon store. The Local won the election
held on July 11 by a vote of 14 to 12. Several weeks
later, on July 27, Local 552 merged with Local 568
thereby forming the Charging Party herein.
The Respondent filed eight objections to the election,
the first of which alleged, in effect, that the employees
were misled in voting for Local 552 when the Union was
soon to effect a merger with Local 568. After an investi-
gation, and pursuant to the Board's Rules and Regula-
tions, Section 102.69, the Regional Director issued a
Supplemental Decision on August 27 overruling the Re-
spondent's objections in their entirety. Subsequently, on
September 25, the Board denied the Respondent's re-
quest for review of the Regional Director's decision and,
on March 9, 1981, also denied the Respondent's motion
for reconsideration of its request for review. Consequent-
ly, on April 15, 1981, the Regional Director certified
Local 552 as the collective-bargaining representative for
the above-described unit.
B. The Unfair Labor Practice Proceeding
On May 12, 1982, Local 568 requested the initiation of
collective bargaining with the Respondent. The Re-
spondent refused the Union's request asserting that the
Local was not a valid successor to Local 552. The Union
then charged the Respondent with unlawfully refusing to
bargain. Thereafter, the instant complaint issued alleging
in substance that since the merger on July 27 Local 568
has been the successor to Local 552 and, therefore, has
been and is the exclusive bargaining representative of the
Woolworth employees since the date of Local 552's cer-
tification as the employees' representative.
The Respondent filed a timely answer denying the
substantive allegation of the complaint and alleging cer-
tain affirmative defenses. Specifically, the Respondent
contends that the Charging Party and Local 552 pur-
posely withheld from the Respondent, the Regional Di-
rector, and the employees in the unit described above the
demise of Local 552 on July 27, 1980, in such manner as
to render the votes cast in that election null and void;
that Local 568 is not a successor to Local 552 in that its
officers, bylaws, dues, and initiation fees differ substan-
tially from those of its predecessor, Local 552; (3) that
the Woolworth employees were precluded from voting
for or against the merger; and (4) that the Regional Di-
rector's substitution in the complaint of one labor organi-
zation for another is an attempt to amend a certification
in contravention of Section 102.60(b) of the Board's
Rules and Regulations.
On August 3, 1981, counsel for the General Counsel
filed a Motion for Summary Judgment with the Board.
In responding, the Respondent renewed the defenses set
i Unless otherwise noted, all dates refer to 1980.
forth in its answer as summarized above. On its review
of the entire record, the Board observed that "There was
no consideration of the actual merger and the issue of
the Union's successorship in the prior representation pro-
ceeding." 2 For this reason and in light of the Respond-
ent's contentions, the Board concluded that material
issues of fact were raised which warranted denying the
Motion for Summary Judgment.3
The Respondent next moved to reopen Case 24-RC-
6466, to rescind certification, and to consolidate cases.
The Regional Director's denial of this motion was af-
firmed by the Board on February 11, 1982.
Issues
In light of the Board's ruling on the summary judg-
ment motion, the overriding issue here, i.e., whether the
Respondent is obligated to bargain with Local 568, sub-
sumes the following questions: (a) whether the prospec-
tive merger of Local 552 and 568 was purposely with-
held from the Woolworth employees, and (b) whether
by virtue of the merger between Local 552 and 568 the
Charging Party lawfully succeeded to the representation-
al rights of Local 552.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Merger Discussions
In June 1979, the Retail Clerks International Associa-
tion and Amalgamated Meat Cutters and Butcher Work-
men of America merged to form the United Food and
Commercial Workers International Union, AFL-CIO.
Less than I year later, the two constituent Locals whose
merger is at issue here, sought the consent of their parent
International to discuss a merger between them. Pursuant
to the International's authorization, the board's of direc-
tors of Local 552 and 568 met on June 29 and 30, 1980,
and unanimously approved such a merger. They set July
27 as the date for a general assembly at which a resolu-
tion endorsing the merger would be presented for discus-
sion to and vote by the membership of both Locals.
Materials concerning the merger were mailed to the
members of both unions on or about July 3 and also
were posted at their places of employment. Included in
this distribution were a notice anouncing the time, place,
date, and purpose of the assembly; a letter signed by the
presidents of the respective Locals explaining in greater
detail the virtues of the merger; a copy of the resolution
setting forth the steps which would be taken should the
merger be approved by the membership and the Interna-
tional; and a proposed slate of officers for the successor
Union. The merger of the Locals was mirrored in this
slate. Thus, the president of Local 552 was proposed as
the president of the successor Union, while the former
president of Local 568 was designated as the first vice
president. Five other officers of Local 552 were pro-
posed as vice presidents of an enlarge executive body for
Local 568.
a F W Woolworth Co., 258 NLRB 1287 (1981).
3 Id.
807
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Local 552's Organizational Campaign
Concurrent with the time that Local 552 began enter-
taining the idea of merger, it initiated an organization
campaign among the Respondent's employees. In fact, on
April 21, the date on which Local 552 filed a representa-
tion petition with the Board, it also wrote for the Inter-
national's consent to commence merger negotiations with
Local 568.
Benigno Mouliert, then Local 552's International rep-
resentative and currently serving in that same capacity
with Local 568, testified that he mentioned the proposed
merger to seven or eight Woolworth employees who at-
tended one of the earliest organizational meetings in
April. Jose Pabon, another representative formerly with
Local 552 and now serving with Local 568, discussed
the forthcoming merger in greater detail at a July 2
meeting with some eight or nine Woolworth employees.
At that time, he shared his view as to the advantages of
merger and invited them to attend the July 27 meeting as
observers. 4 Pabon related that no one at the July 2 meet-
ing expressed dissatisfaction with the merger proposal;
rather, he believed the idea was well received. He fur-
ther stated that he mentioned the merger during conver-
sations with employees when he visited the Respondent's
Bayamon store.
In an effort to disprove the Union's contention that its
agents informed the employees of the pending merger,
the Respondent subpoenaed five of its employees, two of
whom, Edna Colon Perez and Nuris Riera, testified that
they were unaware of an impending merger at the time
of the union election. However, Perez acknowledged
that she attended only two campaign meetings in early
April and Riera attended only one meeting and then for
only 10 minutes. A stipulation also was received into evi-
dence in lieu of testimony by three other employees that
they too had a knowledge of a merger between Local
552 and 568 prior to the union election on July 11.
In addition, the Respondent introduced into evidence a
series of letters which Local 552 sent to Woolworth em-
ployees both before and after the July Ii election which
failed to allude to the merger. Moreover, the Respondent
pointed out that as late as August 5, after the merger had
been approved, Local 552 issued another letter to Wool-
worth employees on its own letterhead. After this date,
however, letters to Woolworth employees, signed by
former officials of Local 552, were on Local 568's sta-
tionery which bore the Charging Party's address and
telephone numbers.5
As noted above, the election was held on July 11 with
Local 552 winning by a two-vote margin. Some 4 days
after the election, a photograph of the labor leaders of
Local 552 and 568 appeared in the San Juan Star, an
English language newspaper, with a caption announcing
the impending merger. Another article discussing the
merger appeared in the same paper on August 10 and a
4 Since the Woolworth employees were not yet dues-paying active
members, they were ineligible to vote on the merger.
5 Prior to the merger, the address which appeared on Local 552's sta-
tionery was Ave. De Diego, num. 580, Esq. Delta Altos, Puerto Nuevo,
Puerto Rico. After August 5, the letters to Woolworth employees ap-
peared on stationery bearing Local 568's address: Edificio M-220 Carre-
tera Militar, Villa Caparra Heights Station, San Juan.
third similar story ran in a different Puerto Rican paper,
Carribean Business, on September 7.
C. The Merger Assembly
Approximately 50 members of Local 568 and 40 mem-
bers of Local 552 attended the July 27 merger meeting.6
No Woolworth employees were present. Minutes of this
meeting, supported by undisputed testimony, establish
that the terms of the merger resolution were reviewed.
Then, questions posed by several members of the audi-
ence were answered prior to submitting the issue to a
vote. Printed ballots were distributed to members whose
eligibility was verified against master membership lists
maintained by each Local. The voting took place in a
small room adjacent to the main meeting hall. The voters
cast their ballots one at a time, placing them into an
empty sealed box. A three-man committee counted the
ballots. The outcome was 89 votes for and 2 against the
merger. The proposed slate of officers also was ap-
proved.
D. The Local Consolidate
By letter dated September 30, 1980, the International
approved the merger retroactive to August 1. 7 Thereaf-
ter, Local 568 and 552 took a number of steps to perfect
their union. First, Local 552 filed a terminal report with
the United States Department of Labor indicating that
all of its assets; that is, moneys, automobile, office furni-
ture, and equipment, were transferred to the surviving
Local. Employers with whom Local 552 and 568 had
collective-bargaining agreement also were notified of the
merger. A letter typical of those sent to such employers
represented that the "merger in no way shall affect the
autonomy of the Local. .... Local 568 will continue to
administer the collective-bargaining agreement and will
continue as the collective representative of the covered
employees."
An addendum to the formal resolution of merger con-
tains further provisions which shed light on the relation-
ship between the successor Union and its predecessors.
Thus, the agreement provides that Local 568 would
assume all debts, obligations, and liabilities of the defunct
Local; that members in good standing of Local 552
would automatically become members in good standing
of 568 as of the date they first joined Local 552 without
payment of initiation fees; and that the health and wel-
fare trust and pension fund vested rights in Local 552
would not be altered by virtue of the merger and contin-
ued to vest under the successor Union. Still another pro-
vision specified that:
The merger shall not be deemed to impair or other-
wise affect any federal or state certification of the
merged Local Union as the collective bargaining
representative or agent . . . but, all rights, privi-
leges, duties and responsibilities vested in the
merged Local Union pursuant to such certifications,
s With the merger of Local 552 and 568, the Union's membership was
1100. Of this total, 591 were former members of the predecessor Local.
I Two weeks later, by letter dated October 15, the new president of
Local 568, Diaz, advised the Regional Director of the merger.
808
F. W. WOOLWORTH CO.
agreements or authorizations are to be deemed
vested in the successor Local Union.
The record also establishes that dues obligations and
initiation fees for members of Local 552 would be unaf-
fected by the merger, that the business agents who serv-
ices the various unit employees would continue to do so,
and that retirement benefits paid to members of Local
552 would continue without revision.
E. The Respondent Refuses to Bargain
After the Respondent's legal challenges to the election
were exhausted before the Board, the Regional Director
issued a Certification of Representative to Local 552 on
April 15, 1981. Thereafter, by letter dated May 12, 1981,
Local 568 requested a meeting between its bargaining
committee comprised of Mouliert and Woolworth em-
ployee, Arlene Cintron, and the Respondent's representa-
tives to negotiate a labor contract. The Respondent re-
jected the Union's request the following day, advising
the Union that it would pursue its position that the
Board erred in certifying Local 552 as its employees'
representative.
IV. DISCUSSION
A. Woolworth Employees Were Told of the Merger
Contrary to the Respondent's contention, I am per-
suaded that many if not all of its employees were aware
of the pending merger at the time of the union election. I
draw this conclusion in part because I found Local 552's
business agents, Mouliert and Pabon, to be essentially
trustworthy witnesses. In addition, there is ample evi-
dence which lends weight to their testimony.
Thus, the record shows uncontrovertibly that prior to
the union election the Local distributed notices of the
merger meeting to its membership and posted these no-
tices in public places where Woolworth employees might
likely observe them. The widespread dissemination of
this material is not consistent with an effort to withhold
information from the Woolworth employees.
Moreover, two prominent articles appeared in a local
widely circulated newspaper announcing the merger
soon after the Union election. Also, letters were sent to
Woolworth employees on Local 568's stationery bearing
an address and telephone number different than that
which earlier appeared on Local 552's campaign litera-
ture. Again, although the news articles and letters were
printed after the election, they nevertheless suggested
that the Union had no interest in concealing the merger.8
At the time these news articles and letters issued, the re-
sults of the election were far from a fait accompli, for
the Respondent's objections to the election still were
pending. Finally, I note that officials of both Locals
warmly endorsed the merger and, judging by their pho-
8 The Respondent's contention that its Spanish-speaking employees
were not likely to read an English-language newspaper misses the point.
The publication of these stories simply suggests that Local 552 made no
effort to conceal the merger, thereby lending credence to the testimony
of the two business representatives. Moreover, the Respondent's argu-
ment assumes without foundation, that none of its employees perused the
San Juan Star.
tograph in the San Juan Star, were pleased with the
event. By all accounts, their pleasure was genuine since
the merger was considered a means of enhancing the
Union's power and ability to serve its membership.9
The Respondent relies heavily on the testimony of five
witnesses who uniformly maintained that they had no
knowledge of the merger at the time of the union elec-
tion. Although Perez probably attended the meeting at
which Mouliert said he mentioned the merger, I do not
find that her failure to recollect his comment is remarka-
ble or proves that he failed to make such a settlement
given all the time that has elapsed between the date of
that meeting in early April 1980 and the date of the hear-
ing. Nor is there any evidence that either she, Riera, or
the three witnesses whose testimony was made the sub-
ject of the stipulation attended the July 2 meeting at
which Pabon elaborated on the merger. Thus, I do not
find that this testimony specifically contradicts that of
Mouliert or Pabon. Significantly, the Respondent did not
call us as witnesses any of the employees who were iden-
tified by union witnesses as having attend the organiza-
tion meeting in April or in July when the merger was
mentioned. Rather, one of the witnesses whom the Re-
spondent subpoenaed acknowledged that she voted
against the Union. The only effect information about the
merger might have had on her vote, then, would have
been favorable to Local 552. Without doubt, some Wool-
worth employees probably were unaware of the forth-
coming merger. However, their lack of knowledge does
not prove, as the Respondent hoped, that the balance of
the Woolworth employees were similarly ill-informed.
The Respondent also stressed the omission of any ref-
erence to the merger in Local 552's campaign literature.
It is true that the first formal announcement of the
merger was by letter to the Woolworth employees dated
October 1981. However, by early September 1980, Local
568's stationery bearing an address and telephone num-
bers different from those which previously appeared on
the stationery used by Local 552 was employed exclu-
sively in mailings to these employees. Clearly, the use of
this stationery negates any inference of a covert intent to
misrepresent the truth of the merger between Local 552
and 568. ' 0
9 See Reflections on Bargaining Structure Changes by Professor H. R.
Northrup in BNA's Daily Labor Reporter, Jan. 2, 1974, Nos. 1-3:
. . union organization in the United States is under considerable
stress . . for the mundane facts of financial realities .... [Wlith
· . costs rising in an inflationary period much faster than income,
and with members disinclined to increase dues, many of these smaller
unions do not have the finances to serve their membership adequate-
ly .... Consequently, we have seen quite a few union mergers, and
more are likely to develop.
'° The Respondent's suggestion that Local 552 purposely misled the
Regional Director by concealing the merger prior to the union election is
also lacking in merit. The Charging Party advised the Regional Director
of the merger 2 weeks after official confirmation was received from the
International and while the Respondent's challenge to the election was
pending before the Board. Therefore, the Local could gain no advantage
by withholding news of the merger.
809
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Merger is Valid
1. Applicable principles
The Board has long held that mergers between unions
at the local or International level are valid where it is
shown that the members of the constituent unions were
given an opportunity to consider and vote on the pro-
posed change through a democratic process and where
the identity of the representative remains essentially un-
change. See NLRB v. Commercial Letter, Inc., 496 F.2d
35 (8th Cir. 1974); See Wellman Industries, 248 NLRB
325 (1980).
In determining whether a merger has altered the essen-
tial nature of the bargaining representative as it affects
the employees, case law requires an examination of
whether the new union's structure, its officials and its
powers and duties vis-a-vis that membership ensures to
the employees as substantial continuation of their present
organization and representation. Montgomery Ward &
Co., 188 NLRB 551, 552-553 (1971). Accord: Montgom-
ery Ward & Co., 154 NLRB 1197 (1965), enfd. sub nom.
Retail Clerks v. NLRB, 373 F.2d 655 (D.C. Cir. 1967).
On applying these principles to the instant case, I find
that the merger between Local 552 and Local 568 did
not alter the essential character of the Woolworth em-
ployees' collective-bargaining representative.
2. Voting procedures were proper
As the court recognized in NLRB v. Commercial
Letter, supra at 42, the Board has never laid down hard
and fast rules for how merger elections are to be con-
ducted. Nevertheless, the merger here was accomplished
pursuant to procedures which provided sufficient guaran-
tees of free choice and due process.
Proper advance notice was given to the members of
the sister Locals well in advance of the general assembly.
The vote was by secret ballot so that each participant
made his choice privately. The Respondent submits,
however, that the elections should have been held sepa-
rately to ensure free choice for the membership of each
Local and so that the members of Local 568 could not
dominate the election process. The Respondent's argu-
ment is flawed for it assumes incorrectly that the mem-
bership of either Local would cast a block vote. As it
turns out, of the 91 members present, only 2 opposed the
merger. Although the balloting process used by the
Locals may not accord precisely with the standards im-
posed by the Board in conducting its own elections, nei-
ther were they "so lax or so substantially irregular as to
negate the validity of the election." NLRB v. Commercial
Letter, supra at 42 quoting Hamilton Tool Co., 190 NLRB
571, 575 (1971).
The resolution approved by the memberships of both
Locals on July 27 recites that the consolidation was not
intended to impair the certification of either constituent
union. Nonetheless, the Respondent challenges the certi-
fication of Local 552, in part on the grounds that its em-
ployees were precluded from voting on the merger and
thereby were denied a basic statutory right to participate
in the selection of their collective-bargaining representa-
tive. However, under settled Board law, a merger or af-
filiation election, if otherwise valid, is not impaired if a
small group of employees is unable to vote because they
were not yet union members. As the Board stated in
Montgomery Ward & Co., supra at 553, where there is no
change in the essential identity of the bargaining repre-
sentative, the question of whether all the employees in
the bargaining unit knew or approved of the merger be-
comes irrelevant. Accord: Wellman Industries, supra at
329; American Enka Co., 231 NLRB 1335, 1337 (1977).
In American Enka Co., the Board ruled that the par-
ticipation of the employees was not required, in part be-
cause they were aware of the prospective merger and
"presumably took this possibility into account when they
cast their ballots" at a union election which occurred
some 5 months prior to the merger. Id. at 1337. By the
same token, since most of the Respondent's employees
also were aware of the pending merger they too "pre-
sumably took this possibility into account" and cast in-
formed ballots on July 11.
Significantly, the record is devoid of evidence that any
Woolworth employee petitioned the Board for a decerti-
fication election, sought to withdraw from membership
in the Local, attempted to form a rival union, or in any
other way manifested opposition to the merger. For
these reasons, I find no merit in the Respondent's argu-
ment that the employees' failure to participate in or
ratify the merger vitiates the validity of the union elec-
tion. See National Carbon Co., 116 NLRB 488, 497
(1956), affd. 244 F.2d 672 (6th Cir. 1957).
3. The Union is the lawful successor to Local 552
Evidence abounds in this record that the merger of
Local 552 with Local 568 was accomplished in a manner
which neither significantly affected the identity and con-
tinuity of the certified bargaining representative nor al-
tered its relationship to the Woolworth employees.
The merger did less to dilute the numbers and influ-
ence of Local 552 as to strengthen it. Thus, Local 552
had a membership of 591 which constituted a majority of
the 1100 total membership of the Charging Party at the
time of the merger. This fact pattern compares favorably
with that in Montgomery Ward, supra, where the Board
approved an amendment of certification subsequent to a
merger between a small 50-member local with a much
larger local of some 11,000 members. See also F. W.
Woolworth Co., 194 NLRB 1208, 1209 (1972), where the
Board held that the merger between a local with only
162 members and only 13 in the unit under consideration,
with another local having approximately 1950 members
was not determinative in ascertaining whether the basic
identity of the collective-bargaining representative would
remain the same. That Local 552's executive board as-
sumed 6 of the 11 positions on the Charging Party's
board of directors, including the presidency, lends fur-
ther proof of a continuity in leadership as well as its con-
tinuing influential position in the new Union. In addition,
the transfer of Local 552's assets, liabilities, obligations,
furniture, and other properties must be viewed as factors
tending to preserve, if not enhance, the financial stability
of both unions.
810
F. W. WOOLWORTH CO.
Moreover, membership in the one organization auto-
matically conferred membership in the other without any
loss of seniority; the dues structure for both organiza-
tions remained intact and vested rights in health and pen-
sion plans were transferred from Local 552 to Local 568
without detriment to any union member's interests. Local
568 did adopt new bylaws subsequent to the merger
which were more detailed than those which previously
governed Local 552. However, on comparing the two
sets of bylaws, I find no obligation imposed by the
Charging Party's charter which is inconsistent with the
provisions which previously governed Local 552. In
short, continuity in all the rights and privileges of mem-
bership in Local 552 were preserved after the merger.
Further, collective-bargaining agreements negotiated
by Local 552 remained in effect; ratification of new con-
tracts continues to repose in the individual bargaining
units. For the most part, the business agent previously as-
signed to various groups of employees continues to serv-
ice them. In this regard, it is noteworthy that Mouliert,
formerly Local 552's business agent who worked closely
with Woolworth employees during the election cam-
paign, was assigned primary responsibility for negotiating
a collective-bargaining agreement with the Respondent.
The Respondent's attempt to interpose its employees'
purported interests appears to be little more than a
device to frustrate their expressed desire for union repre-
sentation. However, that attempt may not prevail for, on
the facts recited above, there can be no doubt that the
consolidated Union was intended to and is functioning as
a continuation of its constituent parts; the Charging
Party is the lawful successor to Local 552.1 As such,
the Respondent may not evade its obligation to bargain
with the Union as the duly elected representative of its
employees. See Wellman Industries, supra. Consequently,
the Respondent's refusal to recognize or bargain with
Local 568 constitutes a violation of Section 8(a)(1) and
(5) of the Act.
CONCLUSIONS OF LAW
i. F. W. Woolworth Co. is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
I I The Company's contention that the Regional Director de facto
amended the Certification of Representative in contravention of Sec.
102.60(b) of the Board's Rules and Regulations by substituting Local 568
for Local 552 as the Charging Party in the complaint is without merit. It
is well settled that the Board may use an unfair labor practice hearing to
expand on and correct deficiencies in a representation case. See, e.g.,
NLRB v. Bata Shoe Co., 377 F.2d 821 (4th Cir. 1967), cert. denied 389
U.S. 917 (1967), where the court held that all that due process of law
requires is that there be a hearing at some stage of the administrative pro-
ceeding before objecting parties' rights can be affected by an enforcement
order. The same principal is equally applicable here where the employer
was accorded a sufficient hearing to raise any concerns as to the substitu-
tion of Local 568 for Local 552.
2. United Food and Commercial Workers International
Union, AFL-CIO, Local 568, is a labor organization
within the meaning of Section 2(5) of the Act.
3. At all times since July 27, 1981, Local 568 has been
a successor to Retail Clerks Union, Local 552, affiliated
with United Food and Commercial Workers Internation-
al Union, AFL-CIO, succeeding to all certification
rights of its predecessor.
4. The foregoing labor organizations constitute a single
continuing entity, herein identified as the Union.
5. All regular full-time and part-time selling and non-
selling employees employed by the Employer at its Ba-
yamon Shopping Center Store, Bayamon, Puerto Rico,
including cafeteria employees, but excluding all manage-
rial personnel, the store manager, assistant store manag-
er-trainee, restaurant manager, personel supervisor, pro-
fessional personnel, guards and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective-bargaining within the meaning of Section 9(b)
of the Act.
6. The Union was and is, at all times relevant herein,
the exclusive bargaining representative of the employees
in the unit above-described for purposes of collective
bargaining with respect to wages, rates of pay, hours of
employment, and other terms and conditions of employ-
ment within the meaning of Section 9(a) of the Act.
7. By refusing since on or about May 13, 1981, to meet
and bargain in good faith with the Union as the repre-
sentative of its employees in the unit above-decribed, the
Respondents thereby violated Section 8(a)(5) and (1) of
the Act.
8. By the foregoing conduct, the Respondent also has
interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the
Act and has thereby engaged in unfair labor practices
within the meaning of Section 8(aXl) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(aX5) 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 upon request bargain with the Union
through its designated agents, as the exclusive represent-
ative 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.
[Recommended Order omitted from publication.]
811