State Bank of India

National Labor Relations Board - Board Decisions

Jul 21, 1982

262 N.L.R.B. 1108 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
State Bank of India and Local 6, International Fed-
eration of Health Professionals, ILA, AFL-
CIO. Case 2-CA-17711
July 21, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On February 12, 1982, Administrative Law
Judge Harold B. Lawrence issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel and the Charging Party filed exceptions
and supporting briefs, and Respondent filed a
letter-brief in support of the Administrative Law
Judge's Decision, but containing, inter alia, a cross-
exception.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions, as modified below, of the
Administrative Law Judge and to adopt his recom-
mended Order.
We agree with the Administrative Law Judge's
conclusion that Local 777 of the Banking Employ-
ees Union (herein called Local 777) failed to
adhere to minimal standards of due process in as-
certaining whether the employees it represented
desired to merge Local 777 into Local 6, Interna-
tional Federation of Health Professionals, ILA,
AFL-CIO (herein called Local 6), and therefore
the merger attempt was invalid. In so doing, we
rely on the following factors: (1) the distribution of
the notice announcing the December 2, 1980,2
meeting at which the vote on the merger agree-
ment was to be taken was not completed until
shortly before the meeting was to take place and
therefore was untimely; (2) the notice of the De-
cember 2 meeting failed to announce that a vote on
the merger agreement would take place; (3) the in-
dividuals attending the December 2 meeting did
not have access to copies of the merger agreement;
(4) no record was kept of the identity of the indi-
viduals attending the December 2 meeting; and (5)
in light of all the above, the voting procedure-in-
I The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Prod-
ucts. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
I All dates herein are 1980 unless otherwise set forth.
262 NLRB No. 143
cluding the lack of a secret ballot-employed at
the December 2 meeting was improper.
We do not rely on the Administrative Law
Judge's conclusion that due process was lacking
because the individuals attending the December 2
meeting in fact failed to adequately discuss the
merger agreement and its ramifications. What is
relevant in these situations is whether there was
sufficient opportunity for discussion, rather than the
actual extent and substance of the discussion. In the
instant case, the fact that the notice of the meeting
was inadequate rendered the opportunity for dis-
cussion insufficent. Thus, Local 777 did not adhere
to minimal standards of due process because, inter
alia, it failed to provide a sufficient opportunity for
discussion and not because the individuals attend-
ing the meeting chose not to discuss the pending
merger agreement. 3
Inasmuch as the attempted merger of Local 777
into Local 6 was invalid, Respondent had no obli-
gation to bargain with Local 6. Absept such an ob-
ligation, Respondent's refusal to bargain with
Local 6 did not violate Section 8(a)(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
3 In light of the fact that Local 777's attempt to merge into Local 6
was invalid due to the lack of minimal due process, we find it unneces-
sary to pass on the Administrative Law Judge's discussion of whether the
merger agreement was presented by Local 777 as a fait accompli or
whether the merger, if it had in fact occurred, would have resulted in the
loss of Local 777's identity.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge:
This case was heard before me on September 9, 10, 11I,
and 17, 1981, at New York City.' The charge was filed
on December 9, 1980, by Local 6, International Feder-
ation of Health Professionals, ILA, AFL-CIO. On Janu-
ary 22, 1981, a complaint and notice of hearing was
issued alleging violations of Section 8(aX)(1) and (5) and
Section 8(d) of the National Labor Relations Act (here-
inafter referred to as the Act), by State Bank of India
(hereinafter variously referred to as the Bank or Re-
spondent), by reason of Respondent's alleged refusal to
I On November 17, 1981, Respondent moved to correct the official
report of the proceeding, citing and correcting numerous errors in the
transcript contained in pp. 9 to 887, inclusive. There being no opposition,
the motion is hereby granted and the transcript is deemed corrected in
accordance with the motion.
1108
STATE BANK OF INDIA
engage in collective bargaining with Local 6. The com-
plaint alleges that Local 777 of the Banking Employees
Union, certified representative of the tellers' and clerical
workers' bargaining unit at the Bank's branch located at
460 Park Avenue, New York City, had been merged into
Local 6, that Local 6 had thereupon demanded recogni-
tion and requested turnover of dues and other sums col-
lected from the employees by Respondent, and that Re-
spondent has refused to accord Local 6 recognition to
which it is entitled by reason of the merger and by
reason of Section 9(a) of the Act. Respondent contends
that the merger should not be recognized because the
employees were afforded neither adequate notice of the
ratification meeting nor a suitable opportunity to consid-
er the merger and because voting on the merger proposi-
tion was not by secret ballot.
The parties were afforded full opportunity to be heard;
to call, examine, and cross-examine witnesses; and to in-
troduce relevant evidence. Post-hearing briefs have been
filed by or on behalf of the General Counsel, Respond-
ent, and the Charging Party.
Upon the entire record and based upon my observa-
tion of the witnesses and consideration of the briefs sub-
mitted, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent's answer admits,
and I find that Respondent is a financial institution en-
gaged in the banking business and is organized under the
laws of India and licensed to do business in the State of
New York, with annual gross revenues from its oper-
ations in excess of $500,000 and that it is engaged in fi-
nancial transactions in excess of $50,000 with firms locat-
ed in other States than the State of New York and with
enterprises located in foreign countries. Respondent
denies, however, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act, contending that it is exempt from the Board's
jurisdiction because it is a foreign corporation substan-
tially owned and operated by the Indian Government as
an integral part of the monetary policy of the Govern-
ment of India.
Respondent's answer also denies that at all material
times, Local 777 of the Banking Employees Union was a
labor organization within the meaning of Section 2(5) of
the Act. It does not either admit or deny that Local 6 is
presently or at any former time was a labor organization
within the meaning of Section 2(5) of the Act.
William Perry testified that he was the president of
Local 6 of the International Federation of Health Profes-
sionals, ILA, AFL-CIO, and that it is a labor organiza-
tion having approximately 3,500 members, and represents
white-collar and blue-collar workers, both within and
outside New York State. His testimony establishes that it
is a labor organization within the meaning of Section
2(5). The same is demonstrated with respect to Local 777
by the testimony of Qasi Moid, its past president, re-
specting its organization and by the fact that Respondent
had entered into a collective-bargaining agreement with
it after its certification by the NLRB on January 12,
1978. At all pertinent times, both unions had the status as
labor organizations required by the Act.
Questions relating to Respondent's status as an em-
ployer within the meaning of and subject to the Act aris-
ing from its relationship to the Indian Government have
already been passed upon by the National Labor Rela-
tions Board.
In State Bank of India, 229 NLRB 838 (1977), the
Board held that Respondent was not within any of the
exclusions of Section 2(2) of the Act and accordingly
was within the Board's legal jurisdiction. The Board fur-
ther held that it would not exercise its discretion to de-
cline jurisdiction. The fact that Respondent is organized
under the laws of a foreign country was held to be im-
material, the pertinent question being whether it was au-
thorized to and did engage in business activities within
the sovereign jurisdiction of the United States. 2
The facts pertinent to the exercise of jurisdiction were
rehashed before me for the stated purpose of preserving
Respondent's legal position with respect to its pending
legal contest of the Board's jurisdiction. I am bound by
the Board's earlier determination that it possesses legal
jurisdiction over Respondent which it ought to exercise
and I find that no facts were presented before me which
warrant reconsideration of the jurisdictional questions or
require a different response to them than that which has
already been made. The evidence in this case indicates
that existing circumstances warrant a finding of continu-
ing jurisdiction. The employees who work at the branch
of the Bank located at 460 Park Avenue, New York
City, include both native-born Americans and persons
born in India. The latter have entered this country in
conformity with the normal operations of its immigration
laws. In many cases, they are here on work visas. They
conform to the same hiring and discharge procedures as
those to which other employees are subject. The business
activities of the Bank are substantially the same as those
of other banks in the New York area and include com-
mercial business, the servicing of savings accounts and
lending operations. Its operations are subject to state and
Federal regulation and audit by New York State banking
examiners.
Indian law does not prohibit its employees from join-
ing unions. The Bank had tacitly conceded NLRB juris-
diction over it by its recognition of the Board's authority
to conduct elections and certify the results, by entering
into a collective-bargaining agreement with Local 777
t Accord: S K Products Corp., 230 NLRB 1211 (1977). In this case, the
Board commented:
[W]e administer an Act applicable to all workingmen of our own
country "in a modern world where foreign state enterprises are ev-
eryday participants in commercial activities" within this country.
There is no question that labor-management relations within a coun-
try's territorial sovereignty are generally regarded to be matters of
"internal management and linternall affairs." We are bound to ensure
the enforcement of the Federal statute we administer and to afford
employees in this country the freedom and rights and duties specified
by that statute. By asserting jurisdiction herein, we are exercising na-
tional sovereignty in accord with generally accepted rules of interna-
tional law.
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after that Union was certified as its employees' repre-
sentative, and even by suggesting, inconsistently with the
position it takes in this case respecting jurisdiction, that
Local 6 make application for a Board-supervised elec-
tion.
I find that at all material times the Bank has been en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, has no special status as an instru-
mentality of the Government of India insofar as Ameri-
can labor laws are concerned, does not come within the
exclusions provided for in Section 2(2) of the Act, and
that the Board has jurisdiction over it in this case.
II. THE MERGER NEGOTIATIONS
A. History of Local 777
The bargaining unit in question is defined as follows:
All full-time and regular part-time tellers, clerks,
clerk-typists, messengers, bookkeepers, receptionists,
keypunch operators, secretaries and Telex opera-
tors, employed by Respondent at its 460 Park
Avenue, New York, New York facility, excluding
all other employees, guards, and supervisors as de-
fined in the Act.
As of December 2, 1980, there were 94 unit employ-
ees, of whom 46 were members of Local 777 and 13
were in their probationary period. 3 Qasi Molid, a lawyer
of Indian origin or descent who in 1977 was an employee
of the Bank, organized Local 777.4 The Union was certi-
fied by the NLRB on January 12, 1978, following a con-
sent election and entered into a collective-bargaining
agreement with Respondent on December 6, 1978, which
by its terms was to expire on September 30, 1981. Moid
served as president. A clerical worker employed by the
lawyers in whose suite Moid had office space for himself
and Local 777 was made secretary. There were no other
officers. Local 777 represented only the employees of the
Bank of India at its branch at 460 Park Avenue, New
York City. The Local never adopted a constitution or
bylaws.
B. Approach to Local 6
The General Counsel's chief witness was Kunjupillai
M. Viswambharan, the shop steward. Viswambharan tes-
tified that, because of the high level of employee dissatis-
faction with the results achieved by Local 777, he ad-
vised Moid in November 1980 that the employees
wanted a stronger union and suggested that Local 777 af-
filiate itself with a stronger union which could better
represent the interests of the employees. Moid was busy
practicing law in November 1980 and he authorized Vis-
wambharan to contact the Union's attorney, who re-
s Except where the text indicates otherwise, the facts of the case as
hereinafter set forth are a narrative composite of admissions contained in
Respondent's answer, the undisputed and credited testimony, information
contained in the exhibits, and facts stipulated by some or all of the par-
ties.
4 Moid first testified that he organized Local 777 as a not-for-profit
corporation under New York law. Later he testified that Local 777 was
already in existence when he became president, but it had no officers and
he assumed the presidency at the request of the other employees.
ferred him to William Perry. Viswambharan then pro-
ceeded to open negotiations on behalf of Local 777 with
Perry. Perry's union had membership of approximately
3,500, which included some bank employees in Pennsyl-
vania, but none in New York. According to Moid, he
had spoken to Perry in person and by telephone about
the possibility of a merger on a number of occasions
over the course of the 8-month period prior to the events
at issue in this proceeding. In fact, Molid and Perry had
reached an agreement in principle that a merger should
take place. Viswambharan's testimony made no mention
of these discussions and did not indicate any awareness
on his part that they had taken place. 5
C. The Negotiations of November 1980
Viswambharan, accompanied by Yohannan Scaraia,
another bank employee who worked to promote the
merger, met with Perry at the office of Local 6 at or
about 6 p.m. on November 21, 1980. After a discussion
of the employee's situation and the prospects of affili-
ation or merger, Perry wrote a letter to the employees,
which Viswambharan himself typed and distributed to
the employees at the Bank the following day. The letter
stated that a meeting had taken place for the purpose of
discussing affiliation of Local 777 with Local 6 and that
a further meeting on the subject was to be held. There
was no mention of merger. The further meeting referred
to in the letter took place after working hours on No-
vember 26, 1980, this time at the office of Local 777 at
1450 Broadway, New York City. According to Vis-
wambharan, the meeting was attended by Moid, one of
the attorneys for Local 777 named Tuckman, Perry,
Scaraia, and himself, and affiliation was not considered,
for Viswambharan advised Moid that the employees had
decided that they preferred a merger. (The mechanism
by which this change of intention had been registered by
the employees or precisely when they did it was never
spelled out by any of the witnesses.) Viswambharan testi-
fied that Perry, Molid, and Tuckman disappeared into an-
other room for about 20 minutes and returned with a
merger agreement. Molid and Viswambharan signed it on
behalf of Local 777 and Perry signed it on behalf of
Local 6.
Perry's testimony placed several more people at the
meeting than were mentioned by Viswambharan, includ-
ing several employees of the Bank whom he did not
know, an officer of Local 6 named Bob Tublin, and Mrs.
a Perry's early involvement in promotion of the merger is also suggest-
ed by indications in other testimony that there had been extensive contact
between Perry and those in Local 777 seeking affiliation or merger. The
following remark was made by Scaraia in the course of his testimony:
Q. When did you speak with employees, about this?
A. It was before this merger agreement was signed, when we
talked in the coffee room.
We talked in Perry's office everyday-and he said, 777 is not good
for us; we have to merger with some good union.
A further indication that Viswambharan's discussions with Perry may not
have had their inception in November 1980 is the correction of the date
of the meeting notice (G.C. Exh. 4) from October 26 to November 26.
Viswambharan testified that he typed the notice at home on the evening
of November 26, 1980, but could not convincingly explain such an error
so late in the month. Some copies of the notice bearing the October date
were distributed before the error was discovered.
1110
STATE BANK OF INDIA
Perry (who did not participate). He testified that the dis-
cussion got away from affiliation and became one of
actual merger, and he explained to the others that
merger meant the extinguishment of Local 777 after the
ratification vote and turnover of its books, records, and
moneys to Local 6. It thus appears that the prospects of
affiliation were still under some consideration at the time
the meeting started, which would have left no means of
verifying the wishes of the membership if it were aban-
doned in favor of merger only at the meeting on Novem-
ber 26. In any event, according to Perry, there was some
discussion back and forth and some disagreement, after
which a document was worked up by the collaborative
efforts of Moid, Tuckman, and Perry.
Moid's account differs from both of the preceding ac-
counts in a number of particulars. According to Moid,
Perry brought the merger agreement with him to the
meeting at 1450 Broadway and they signed it without an
extensive discussion. Moid requested that he be made an
officer of Local 6 and was rebuffed by Perry. Moid's
recollection was that the meeting took place sometime
between I and 5 p.m.
I have highlighted the differences in the accounts of
the negotiations because they had the effect of seriously
diminishing Viswambharan's credibility. Viswambharan's
initial testimony presented a simple situation: he men-
tioned the employee dissatisfaction to Moid and was au-
thorized to pursue merger discussions with Perry, there-
by instituting the chain of circumstances which culminat-
ed in the merger. However, the picture became more
complex when Moid and Perry testified; it became ap-
parent that the movement toward merger had com-
menced considerably earlier than Viswambharan had
stated and the impetus no longer appeared to have origi-
nated with the dissatisfied employees.
The diminution of Viswambharan's credibility com-
pelled closer scrutiny of the manner in which the trans-
action had been handled and required that I discount
Viswambharan's version of the facts whenever credible
evidence from any other source contradicted it.
III. THE MERGER AGREEMENT
The agreement sets forth that Local 6 and Local 777
desire to merge; that members of Local 777 will auto-
matically be admitted to Local 6; that Local 6 will "as a
result of this merger" represent "all present employees
and future employees of Local 777"; that "all contracts
and all office documentations" will be turned over to
Local 6; that as of November 26, 1980, Local 777 "will
not [sic] longer be in existence, and the result of this
merger will be known henceforth as Local 6." The docu-
ment concludes with the following provisions:
NOW THEREFORE, in consideration of the
mutual convenance [sic] herein contained, the
Union LOCAL 6 and the Union LOCAL 777 agree
that this memorandum is final, legal and binding.
As a result of this merger, LOCAL 6 further
agrees to inform the Employer, STATE BANK OF
INDIA, that it is the successor of the present bar-
gaining agreement between LOCAL 777 BANK-
ING EMPLOYEES UNION and the STATE
BANK OF INDIA.
Such language, omitting all mention of ratification by
the memberships or executive boards of either union, and
declaring the merger immediately effective and "final,
legal and binding" as of November 26, 1980, may well
have misled some of the employees into thinking that the
vote on the merger merely meant approval of a fait ac-
compli. This may account for the strange reaction, if it
did occur, to Viswambharan's purported offer of an
option to vote on the ratification by secret ballot: while I
do not credit Viswambharan's testimony that at the rati-
fication meeting he offered to conduct a secret ballot,
which was noisily shouted down by the employees in at-
tendance, it is understandable that, if they thought the
matter had already been legally resolved, they would
have rejected a drawn-out, pointless formality at the late
hour at which the meeting was being held. The possibil-
ity that they thought they were confronted with a fail
accompli is not obviated by the testimony of one witness
that he was aware that he could vote against the
merger. 6
IV. RATIFICATION OF THE MERGER AGREEMENT
A. The Notice of Meeting
Immediately after the conclusion of the meeting at the
office of Local 777 on November 26, 1980, Viswamb-
haran arranged a meeting place for a ratification meeting.
Then he went home and prepared a notice of meeting. It
read as follows:
NOTICE
A meeting of the members of Local 777 Banking
Employees Union, State Bank of India, 460 Park
Ave., New York, N.Y. 10022 will be held at 5:15
P.M. on Dec. 2, 1980 at AKBAR RESTAURANT,
475 Park Ave., New York, N.Y. 10022 (Opp. State
Bank of India, New York Br.) for ratification of an
agreement between Local 777 Banking Employees
Union and Local 6. Copy of the agreement can be
obtained from the undersigned.
All requested to kindly attend the meeting.
(signed)
(K.M. Viswambharan)
Steward
Local 777 Banking Employees Union.
Oct. 26, 1980.
P.S. Light Refreshment will be served.
The corrected dateline consisted of a typing of "Nov."
over "Oct." Viswambharan testified that he prepared the
notice on the evening of November 26 and posted copies
on two bulletin boards at the Bank and distributed copies
to the employees the very next day. I took judicial
notice that that day was Thanksgiving Day, a day on
which the Bank was concededly closed. Viswambharan
e Pradit Thaker.
1111
DECISIONS OF NATIONAL LABOR RELATIONS BCARD
reluctantly changed his testimony to assert that the no-
tices were posted and distributed on the next business day
following the merger conference with Perry. That day
would have been Friday, November 28, 1980. The meet-
ing was the following Tuesday. By his own testimony,
therefore, he allowed a scant 2 business days' notice of
the meeting. Such notice, if actually given, would have
been grossly inadequate for an important meeting of this
type. However, I do not credit his testimony respecting
the posting and distribution of the notice, while it may
have been started on November 28, was not completed
until the afternoon of Tuesday, December 2, the very
day of the meeting which it announced. The notice of
the ratification meeting which the employees received
must therefore be held to have been patently insufficient
and untimely.7
Defective notice cannot be excused on the ground that
no prejudice occurred; the General Counsel argues in the
post-hearing brief that the large turnout by itself demon-
strates the adequacy of the notice. The evidence estab-
lished that 57 out of 94 persons attended; it is a matter of
opinion whether that constitutes a large turnout and it is
a matter of speculation whether a notice drawn different-
ly and distributed in ample time for the employees to
think about the issues and to arrange to attend the meet-
ing might have produced a much larger turnout and a
different outcome.
It is to be noted further that the subject matter of the
meeting is inadequately defined in the notice. There is no
intimation that a subject as important as a merger is to be
considered. This abbreviated and uninformative notice
deprived the employees of the freedom of choice and the
opportunity to consider, discuss, and vote which the
Board has held they are entitled to in the absence of a
Board-sponsored election.8 We have no way of knowing
what effect the denial of that right had on the ultimate
decision.
B. Paucity of Information and Lack of Opportunity
for Discussion
The purpose of the procedural safeguards which the
Board insists upon in merger situations is to ensure that
the end result conforms to the informed wishes of the
employees. The ascertainment of the employees' wishes
is inextricably bound up with the determination of
I Viswambharan's version of this entire episode is suspect. Viswamb-
haran claimed he distributed copies of the merger agreement prior to De-
cember 2, but admitted that he did not complete distribution. Three bank
employees, Robert T. Carpenter, Dinesh Patadia, and Ozell Brown, testi-
fied that the notice was not distributed until December 2; Ozell Brown
received her copy from Viswambharan as late as 3 p.m. that day; none of
them observed the notice on any bulletin board; and according to Robert
T. Carpenter and Dinesh Patadia, many employees were compelled to
make telephone calls home to let their families know that they would be
home late, obviously not having had prior notice of the meeting. Yohan-
nan Scaraia received his copy at 3 p.m. on Friday, November 28. Selena
Griffin, Respondent's personnel officer, testified that an employee
brought a copy of the notice to her on December 2, stating that it was
then being distributed.
" American Bridge Division, United States Sleel Corporation v. N.L.R.B.,
457 F.2d 660 (3d Cir 1972), denying enforcement of 189 NLRB 119
(1971), based on amendment of certification, 185 NLRB 669 (1970);
NVewspapers. Inc., Publishers of the Austin American and the Austin States-
man, 210 NLRB 8 (1974).
whether the employees have had adequate opportunity
for discusssion and formulation of an informed opinion.
In the present case, the extent of the employees' opportu-
nity to consider the advantages and disadvantages of the
proposed action and to discuss alternatives, such as affili-
ation or merger with a labor organization other than
Local 6, or simply a change of their own Local's offi-
cers, appears to have been severely limited by the un-
timeliness of the notice, the manner in which it was
drawn, and the manner in which the meeting was con-
ducted and the vote taken.
No attempt was made to make data available. Instead
of making some kind of systematic presentation to the
employees, the moving spirits behind the merger proposi-
tion left it to the employees to learn by asking questions,
a very difficult proposition because little or no pertinent
data was in their possession on which questions could be
based. In any event, one can only wonder what Vis-
wambharan could have communicated to these curious
employees in any premeeting discussions. He had demon-
strated remarkably little concern about informing himself
respecting the Union into which he wanted to merge
Local 777. About all he learned was the amount of the
dues. He did not know what the initials, "AFL-CIO"
stood for. He had not obtained from Perry any pertinent
data respecting the officers of Local 6 or of the Interna-
tional Longshoremen's Association, the types of employ-
ees represented by Local 6 at that time, the type of in-
dustries with which Local 6 was connected, or the inter-
nal procedures of Local 6 respecting matters such as dis-
cipline of members or their appeal rights. He never saw
a copy of Local 6's constitution or bylaws. At the ratifi-
cation meeting on December 2, he had to refer all ques-
tions to a representative of Local 6.
There is no evidence that on the day of the ratification
meeting the employees were cognizant of the provisions
of the constitution or bylaws of Local 6, of their mem-
bership responsibilities if they joined it, or of any of the
significant aspects of the relationship they would have
with the organization of which Local 6 was a part. They
did not even have access to copies of the merger agree-
ment. Viswambharan was not able to, or in any case did
not, distribute copies of it in time to permit informed dis-
cussion of its terms.9
Viswambharan, in his testimony, was unable to furnish
particulars of who participated in premeeting discussions
of the proposed merger or what was said. There emerges
from his testimony a picture of extremely informal, des-
ultory, catch-as-catch-can snatches of conversation,
mostly in the coffeeroom during coffeebreaks and at
lunchtime. Though he testified that as many as 25 or 30
employees came to him to discuss the merger, he could
not name more than half a dozen of them. As it was, the
discussions related entirely to dues and the benefits that
were expected to be obtained for the employees in the
negotiations which the new Union would conduct.
9 When Scaraia received his copy of the notice, he asked Viswamb-
haran for a copy of the merger agreement Viswambharan promised to
give it to him later, apparently not having copies with him. Scaraia testi-
fied that he did not receive it until the day before the meeting
1112
STATE BANK OF INDIA
Scaraia's picture of the prehearing discussions was
even more limited than Viswambharan's. According to
Scaraia, there was no discussion on Friday, November
28, 1980, the day on which the notice was actually
posted:
Q. Did you speak with any employees, concern-
ing this notice or concerning the topic of this
notice?
A. Of course, not that day, the following
Monday, we talked, in the coffee room, because we
are not allowed to talk about the union, during
working hours; only coffee time and lunchtime, we
talk about the union.
I think, it was Monday, that we were talking
about it.
Q. Okay. So, on Monday, you said, you spoke
with the employees-
A. Yes, in the coffee room.
Q. In the coffee room?
A. On lunchtime.
Q. And, at lunchtime?
A. Yes.
Q. Okay. How many coffee breaks, do you have
during the day?
A. One in the morning, for fifteen minutes; and
the lunchtime, one hour, after two o'clock.
The discussion of the merger was so limited as to be
inconsequential, sentiment for the merger being based on
the contradictory beliefs that, on the one hand, the Bank
was out to break Local 777, and, on the other hand, that
Local 777 was working for the Bank instead of for the
employees. Scaraia testified that the employees therefore
wanted to merge with a big union:
Q. What did you say, to employees?
A. Employees said, they were willing to merge
with Local 6; it is good for the employees, like I
said, before, 777 wouldn't-
The bank is supposed to-the union; it's best to
join a good union, so they will not be able to bust
We believe, the bank is about to bust the 777, or
finish the union, because, it's only for the State
Bank of India.
And, we would like to merge with a big union;
and maybe, they could do something better than
777.
The discussion which took place at the meeting itself
was not any more enlightening. At the outset, it should
be noted that the accounts of the meeting are studded
with contradictions which undermine their reliability.
Viswambharan testified at one point that he distributed
copies of the merger agreement at the beginning of the
meeting and at another point he testified that he read it
to the group and it was reread by a representative from
Local 6 because too many people did not understand
what Viswambharan had read because of his heavy
accent. There are also major discrepancies between his
testimony and the account of the meeting set forth in a
set of informal minutes prepared by him.
The minutes read in part as follows:
56 members were present from Local 777. During
the meeting, Dr. Bob Tublin was asked by the
membership questions pertaining to the merger. Dr.
Bob Tublin read the merger agreement dated
11/26/80 between Local 777 and Local 6 and a
debat [sic] took place for about 45 minutes. After
the debat [sic) Mr. Viswambharan offered the mem-
bership a secret balot [sic] or a hand vote. Member-
ship adopted unanimously the hand vote. Voting
was taken and it was 56 in favor and non [sic]
against it; not counting the representative of Local
6 and the chairman. The Local 6 officers did not
participate in the final merger of the vote.
These minutes are also contradicted by the testimony
of Scaraia. The 56 employees seated in the meeting were
not all members of Local 777. The questions put to
Tublin, an officer of Local 6, did not pertain to the
merger, but dealt with the benefits which Local 6 ex-
pected to win for them in the negotiations for the new
contract. Other than that, Viswambharan and Scaraia
shed no light on what questions were asked. The only
question about the merger which could be recalled was
one about whether Local 6 would negotiate the new
contract with the Bank. Nothing occurred which could
be termed a "debate" as that word is normally under-
stood in the English language.
Viswambharan testified as follows:
Q. How did you begin the meeting?
A. I introduced-
Once again, I introduced the officers of Local 6;
then, I circulated the merger agreement to the
members; and then, I asked the membership if they
had any questions, because, if they did, they could
ask now, since the Local 6 officers are here and
they're in the position, to explain everything.
Then, the membership was asking so many ques-
tions about the benefits and what they can do for
us, questions like that.
I then asked Dr. Bob Tublin to answer their
questions, because, most of them, I was not aware
of.
Bob Tublin began answering their questions for
about forty five minutes; then, since nobody was
asking any further questions, I asked them, now we
have to-
I'm sorry, then I asked Bob Tublin to read the
agreement once again, because, my pronounciation,
so many people could not understand.
Scaraia also testified that the discussion related to
benefits and the proposed negotiating activities of Local
6. He testified that copies of the merger agreement were
distributed but he said nothing about the two readings
mentioned by Viswambharan:
Q. Can you tell us, how the meeting began?
1113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. First, I believe, he distributed the merger
agreement, to all the employees; Mr. Viswam, had
distributed the merger agreement to all employees.
Q. And then, what happened? (Pause)
A. Then, he asked for everybody's agreement or
disagreements; then, all the employees asked several
questions, to Mr. Viswam.
What is the benefits, we are going to get in this
merger; and what are they going to be doing.
Mr. Viswam, answered, you have to ask Local 6.
He asked, Mr. Bob. Viswam, asked Mr. Bob, you
tell them, what kind of benefits, we are going to
get.
A lot of employees, questioned, when we are
going to get the pension plan, this thing, that thing;
there was a lot of questions, for about forty five
minutes. Specifically, what benefits, are we going to
get if we merge.
Then, he explained, that we will try our best to
have a decent contract; and we'll try to bargain for
a decent contract.
We would get more benefits, than Local 6 [sic]
are now getting.
There is no evidence in the record which establishes
that either before or at the meeting there was a discus-
sion by the employees of the ramifications of a merger of
Local 777 into Local 6 or of the manner in which their
relationship to their collective-bargaining representative
would be affected. As noted, the process by which affili-
ation was ruled out and merger substituted as the pro-
posed course of action was never elucidated.
The desire of the employees to have another union
which would fight for them and win benefits for them
and their loss of confidence in the ability of Local 777 to
do so do not necessarily translate into a desire to merge
with Local 6. Implicit in the latter case would be some
knowledge respecting the matters to which I have just
alluded. That the employees were so informed is not
manifest in any of the evidence. The evidence shows
only that on December 2, 1980, three representatives of
Local 6 promised to get beneficial results for the em-
ployees in the upcoming contract negotiations with the
Bank.
What is required, and what is lacking, is proof, by a
preponderance of the evidence, that the vote taken is a
true, considered, uncoerced expression of the employees'
wishes, arrived at after appropriate deliberation.
C. Improper Conduct of the Meeting
Viswambharan testified to his familiarity with proce-
dures for the proper conduct of meetings, but his exper-
tise in that area was not apparent on the evening of De-
cember 2. No means whatever were employed to ascer-
tain the identity of the persons attending the meeting.
There was no sign-in sheet or even a list of the Local
777 membership. Viswambharan was sure that some of
the persons who attended were not union members. The
result is that today we have no record of the identity of
the persons who attended the meeting.
Viswambharan testified that he took a head count,
which at least fixes the number of persons who attended,
but even on this point his testimony introduced an ele-
ment of uncertainty because first he testified that he
counted 56 persons present besides himself at or about
5:15 p.m., together with 3 representatives of Local 6, and
later, when testifying about the balloting, he stated that
he called for a show of hands in favor of the merger and,
though there clearly appeared to be a unanimous vote of
approval, he nevertheless proceeded with a count of the
raised hands. It is not apparent why a count should have
been necessary at that point.
In the question-and-answer period, at which the repre-
sentatives of Local 6 answered the questions, most of the
discussion appears to have centered on the terms of the
contract which Local 6 hoped to negotiate for the em-
ployees rather than the pros and cons of the merger.
The vote itself was not taken in a proper manner. Be-
cause the testimony differed sharply as to what occurred
when the vote was taken, it is discussed separately
below. It suffices to state at this point, however, that I
find that under the circumstances it would have been ap-
propriate for the employees to vote by secret ballot in-
stead of by a show of hands.
The manner in which the meeting was conducted and
the other factors mentioned herein raise serious questions
as to whether the results truly reflect the wishes of a ma-
jority of the unit employees. They may well have been
denied a true opportunity to express their approval or
disapproval of the merger."' It is in precisely such cases
that the Board has refused to amend certifications and
has ordered elections to resolve the issues. "
D. Improper Voting Procedure
To the previously mentioned concern that the employ-
ees regarded the merger as a fait accompli and the wari-
ness which must result from the contradictory evidence
regarding the manner in which the terms of the merger
agreement were communicated at the meeting, must be
added concern respecting a serious deficiency in the
voting procedure which was employed.
Viswambharan's minutes of the meeting state that he
offered the membership a choice of secret ballot or vote
by show of hands and that the membership unanimously
opted for vote by show of hands and unanimously ap-
proved the merger. In their testimony, Viswambharan
and Scaraia repeat this version, asserting that the group
noisily rejected the idea of a secret ballot.
'o The possibility that all the employees in the unit were not in favor
of merging is raised by the following testimony of Scaraia:
Q. And after the merger agreement was signed, after you got
notice of the ratification meeting, did you speak with employees?
A. Ratification meetings?
Q. Meetings, that's called for, of December 2?
A. Yes, Monday, we talked with employees, saying it was good to
merge with Local 6; and most of the employees, said it was good for
us.
Since memories were poor and no attendance record was made at the
meeting, there is no way of knowing whether dissidents failed to attend,
changed their minds, or, as Respondent in effect contends, were intimi-
dated into going along with the merger or staying away from the meet-
ing. There is no way to assess the effect of their nonparticipation.
" Underwriters Adjusting Company, 227 NLRB 453 (1976); State Farm
Mutual Automobile Insurance Company, 225 NLRB 966 (1976); Moster
Safe Company, 210 NLRB 934 (1974).
1114
STATE BANK OF INDIA
Viswambharan testified that he counted all the hands
upraised on his call for the affirmative vote; that he did
not think it would have been easier to call for a "no"
vote and count those; and that on the call for the affirm-
ative vote, he could see that it was unanimous. He could
not explain why he found it necessary to take an actual
count of the vote when he already knew how many per-
sons were in attendance. He rested on the assertion that
the proper procedure required an actual count of the
"yes" votes. This adherence to proper parliamentary
procedure is noteworthy for its uniqueness, under all the
circumstances, and that very uniqueness renders the ex-
planation unsatisfactory.
The testimony of Viswambharan and Scaraia that the
employees were given a choice of voting procedures is
contradicted by testimony from two employees who tes-
tified at the request of Respondent, both of whom cur-
rently hold supervisory positions in the Bank, but did not
hold such positions at the time of the ratification meet-
ing.
Pradit Thaker, who at that time worked as a clerk, tes-
tified that Viswambharan called for a show of hands first
from those in favor of the merger and then from those
opposed to it, and never said anything about a secret
ballot.
Satish Manchanda, also formerly a clerk and now a su-
pervisor, also recalled that Viswambharan called for
hand votes, first of those in favor of merger and then of
those opposed to it, without saying anything about a
secret ballot.
On this crucial factual issue, I must credit the testimo-
ny of Thaker and Manchanda over that of Viswamb-
haran and Scaraia, whose testimony was substantially the
same. Viswambharan's testimony is vague and obscure
except with regard to certain specific key events. 2 Such
portions of Viswambharan's testimony as are specific are
seriously contradicted by other evidence in the record.
Examples of these points, which have been analyzed sep-
arately, are his testimony as to when he actually dissemi-
nated the notice of the ratification meeting and his testi-
mony as to the amount of discussion which took place
before and at the meeting respecting pertinent aspects of
the merger issue. In addition, I found unconvincing and
evasive his explanations of the mistake in the date of the
notice of the ratification meeting and of his reason for
counting hands upon a unanimous vote though he had al-
ready taken a head count of those present at the meeting.
I have also taken into consideration the fact that, as
active participants in the promotion of the merger, Vis-
wambharan and Scaraia were not in the best position to
offer unqualifiedly impartial and objective testimony.
Their version of the facts of this case is not supported by
testimony from any other employee, though 64 employ-
ees signed a "reaffirmation" of the merger. The omission
to produce testimony from any of these persons suggests
i2 The specificity of testimony is a legitimate factor that may be
weighed in evaluating the relative strength and probability of conflicting
versions of events. General Teamsters Local 959, State of Alaska, affiliated
with International Brotherhood of Teamsters; Chauffeurs. Warehousemen
and Helpers of America (Northland Msinrenance), 248 NLRB 693, fn. 2
(1980).
that had they testified they would have given testimony
favorable to the Bank's version of the events at issue.13
On the other hand, Thaker and Manchanda impressed
me as responsible, credible persons whose credibility was
not diminished by the fact that they currently occupy su-
pervisory positions in the Bank. In fact, on numerous
particulars, their testimony was consistent with other evi-
dence in the record, including much of Viswambharan's
testimony. I also note that the record is barren of evi-
dence that any type of preparation was made to take a
secret ballot if one was called for.
I therefore find that employees were not given the
option of voting by secret ballot instead of by show of
hands or by any alternative method.
Since Local 777 did not have a constitution or bylaws,
there were no internal rules which would have governed
the procedure for obtaining membership approval of a
merger. Nevertheless, the requirements of due process
had to be met in order to ensure a valid reading of the
wishes of the employees in the bargaining unit. What oc-
curred in this case was a fatal failure to meet basic due
process requirements in a number of important respects.
The notice of the ratification meeting was substantially
inadequate and was not timely distributed to the employ-
ees. At the meeting, no attendance record was taken.
There was no adequate consideration and discussion of
the merger prior to or at the meeting. Adequate informa-
tion upon which an informed decision could be made
was not furnished to the employees. The employees were
not afforded the opportunity to vote by secret ballot.
Voting was by show of hands, though the meeting was
in a public restaurant, open to observation by persons
not members of the unit, in circumstances in which a
secret ballot might well have been deemed more pru-
dent. The merger agreement itself was poorly drafted
and, as a result, many of the employees who attended the
meeting seem to have considered the merger a fait ac-
compli.
In N.L.R.B. v. Commercial Letter, Inc., 496 F.2d 35
(8th Cir. 1974), the court, granting enforcement of the
Board's bargaining order, 200 NLRB 534 (1972), charac-
terized the problem of passing on the validity of merger
and affiliation elections (drawing no distinction between
them) as involving, basically, independent analysis in
each case of the factual issues:
We point out that the Board has never laid down
hard and fast rules regarding the manner in which
merger elections must be conducted. In North Elec-
tric Co., supra, 65 LRRM at 1380, relied upon the
company, all that was said was that the vote was
"taken by secret ballot." This was at a meeting at-
tended by only 55 of 238 union members. Id. at
1379 and fn. 4. Nowhere in that case does the
Board say that this is the required procedure.
s General Teamsters Local 959, State of Alaska, affiliated with Interna-
tional Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of
America (.orthland Maintenance), 248 NLRB at 9,8; Davis Walker Steel
& Wire Corporation. 252 NL R 311 (1980).
1115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This indicates a flexible position on the part of
the Board; one designed to insure that the facts of
each particular case are reviewed. The Board is not
locked into a rigid requirement of certain specific
election procedures. Rather, the NLRB fact finder
must weigh the evidence and be satisfied that the
election was carried out in such a way as to reflect
the majority view.14
In North Electric Company, 165 NLRB 942 (1967),
cited in Commercial Letter, the Board set forth the prin-
ciples which govern in the present case:
In determining whether to grant a motion to
amend a certification, we are guided by the general
rule that such motions may not be granted when
they raise a question concerning representation that
can only be resolved by an election.... Nor do
we grant amendments where the possibility of a
question concerning representation remains open be-
cause the change of affiliation took place under cir-
cumstances that do not indicate that the change re-
flected a majority view. 1 5
What is meant to be protected is the employees' free
choice of a bargaining representative.'s Thus, a finding
that an action truly reflects the majority will cannot be
made in the absence of a democratic election in which
adequate opportunity to vote has been provided to all
who are eligible to vote.'7 By failing to provide such an
opportunity to the Bank's employees, the promoters of
the merger have made it forever impossible to know for
certain that there was adequate protection of the em-
ployees' right under Section 7 of the Act to choose their
own bargaining representative and it is impossible to
know whether the declared result of the voting truly re-
flects the majority will. Due process is the critical re-
quirement. Though the Board has defined as important
requirements protections such as proper notice, discus-
sion, and a secret ballot,' 8 it is possible to vote on a
merger or an affiliation without a secret ballot if the cir-
cumstances indicate that due-process requirements are in
fact substantially met so as to ensure a true ascertainment
of the majority will. Thus, balloting procedures were
held to be adequate even where the ballots were not
secret, but were in writing and the voting was expressly
found to have been free and uncoerced.' 9 Balloting by a
" 496 F.2d at 42.
"I 165 NLRB at 942.
L6 St. Vincent's Hospital v. N.LR.B., 621 F.2d 1054 (10th Cir. 1980),
enfd. 238 NLRB 1525 (1978).
17 North Electric Company, supra, fn. 6 (1967); see William B. Tanner
Company, 212 NLRB 566 (1974), enforcement denied Tanner Company v.
N.LR.B., 517 F.2d 982 (6th Cir. 1975), on the ground that substantial
evidence on the record considered as a whole did not support the
Board's finding that the successor or merged union was the authorized
representative of the employees in the appropriate unit.
1 Underwriters Adjusting Company, 227 NLRB 453 (1976).
19 Samuel P. Katz d/b/a American Mailers (Plant #2), 231 NLRB 1194
(1977), enfd. 622 F.2d 242 (6th Cir. 1980), the court noting that it had not
adopted continuity as a standard but that the Board, in its decision, had
stated the proper standard, to wit: the employees' preference as to bar-
gaining representative should be recognized so long as their choice has
been freely made and the employer is not prejudiced.
show of hands has been sustained when it has been spe-
cifically found that the employees who attended the
merger ratification meeting "were given ample opportu-
nity to express their preference as to the merger." 20 On
the state of the evidence in this case, however, which
clearly established the failure to inform the employees
and the failure to have adequate discussion during a rea-
sonable period of time prior to the meeting, it cannot be
found that the voting was free or uncoerced, or informed
or based on ample opportunity for expression of prefer-
ence.
E. Failure To Preserve Identity
The General Counsel has failed to establish that the
employer failed to engage in collective bargaining with a
merged union which preserved the identity of the union
which had previously been recognized as the certified
representative of its employees.
The evidence in the present case clearly establishes
that Local 777 was intended to disappear completely.
The membership, which was less than half of the bar-
gaining unit's membership of 94, was to be absorbed by
Local 6, which at that time had approximately 3,500
members, none of whom were banking employees in
New York State, and none of the officers of Local 777
were expected to continue managing its affairs.
In a somewhat analogous situation, it had been stated:
We hold that when a local independent labor
union affiliates with and becomes a local unit of an
international union and transfers control over the
rights of its members of the international whose
constitution and by-laws make substantial changes
in the rights of employees to the contract, affects
their obligations to management and links their con-
cerns with thousands of other members of the inter-
national throughout the country, a change is effect-
ed in the bargaining agent of such employees.2 '
Of course, the merger of an independent union with an
international union does not necessarily mean that the in-
terests of the members of the independent union will be
submerged and neglected. The facts of each case must be
looked at separately, to determine whether the situation
0O Kentucky Power Company, 213 NLRB 730, 732 (1974). In this case,
employees' consent was not actually necessary because the international
president was authorized to order a merger and determine the merger
terms whenever in his opinion a merger was warranted.
S2 Sun Oil Company of Pennsylvania v. N.LR.B., 576 F 2d 553, 558 (3d
Cir. 1978), denying enforcement of Board orders requiring recognition
and bargaining, 228 NLRB 1063 (1977) and 228 NLRB 1072 (1977). In
his concurring opinion in The Hamilton Tool Company, 190 NLRB 571,
576 (1971), Chairman Miller commented:
Members of locals affiliated with large international unions enjoy
the benefits of, and are subject to the restrictions imposed by, the
constitutions, bylaws, and practice of those sophisticated and highly
institutionalized nationwide organizations. They are of a quite differ-
ent character from a totally local, "home-grown" and autonomous
independent union. Few realists in the world of industrial relations
would assert that a local of the Auto Workers or the Steelworkers is
the "same union" as the autonomous predecessor independent. A
Board claiming expertise in this area of social and economic life
should not close its eyes to these realities.
1116
STATE BANK OF INDIA
involves continuation of the old union under a new name
or a substantially different organization. 22
A merger will not be approved where it involves the
complete loss of the identity of the union which is
merged. In passing upon applications for change of certi-
fication following a merger, the Board has looked to fac-
tors such as whether there was any substantial change in
the operation, whether the same contracts were being
administered, where they were being administered -by the
same personnel in the same manner as before the merger,
whether the membership is the same, and whether the
old officers, address, accounts, liabilities, books, cash ac-
counts, equipment, furniture, and other properties were
retained. In short, the employees must be ensured sub-
stantial continuity of organization and representation,
without significant effect upon the basic identity, rights,
and obligations of the group of employees, and such as-
surance arises from the presence of factors such as con-
tinuity of obligations owed, continuity of service to the
members by the same union personnel and retention by
the employees, notwithstanding their proportionate loss
of voting strength, of power to exercise significant con-
trol over ratification of contracts, decision affecting their
own unit, retention of officers, administration of existing
contracts, and bona fide succession to the merged local's
bargaining rights.2 3 However, in all cases, it is of crucial
importance that the change be accomplished by proce-
dures which meet minimal standards of due process in
connection with consideration of and voting upon the
merger 24
The evidence indicates that the proposed merger of
Local 777 into Local 6 would have resulted in a lack of
continuity of representation. In fact, that seems to have
been the very objective of some of the empoyees. The
scant evidence adduced on the point indicates that the
interests of the memberships were disparate. There exist
none of the indications of continuity which the Board
has in past cases considered to be a prerequisite of a
valid merger. The lack of due process has been conclu-
sively established.
V. FAII.LURE TO EFFECTUATE THE MERGER
AGREEMENT
The consummation of the proposed merger would
have meant the absorption as a matter of fact of Local
777 into Local 6. At the very least, this would have had
to involve the turnover by Local 777 to Iocal 6 of its
books, records, contracts, and funds; the extinguishment
of Local 777 as a legal entity; and its disappearance from
the scene. It has not been established by a preponderance
of the evidence that any of these things have occurred.
Instead, it appears that no records, documents, or funds
were transferred to Local 6 and that either Local 777 or
another union with a confusingly similar name, with
22 ..L.R.B v. Commnercral Leite· Inc.. 496 F 2d 15 (8th Cir. 1974),
entg 20(L NLRB 534 ;1'72)- Colxer Saw Companyv. Inc., 446 F.2d 870 (2d
Cir. 1971)
21 MSontgomery Ward & (Co. Inc. 188 NLRB 551 (1971).
24 William B Tanner Company,. 212 NLRB 566 (1974). enforcement
denied 517 F2d 982 (6th Cir 1975) Accord F W. Wolworth Companv
Store No. 1j70, !94 NI RB 1208 (172); Peco, Inc., 204 NLRB 1036
(1971); US Stel Coio. L. ,L.R.[, 457 F.2d 660 (3d Cir 1972).
Moid as its president, is presently operating. Though
Moid testified that he left the details of Local 777's disso-
lution in the hands of the union's attorneys, he was
unable to furnish any information about the steps taken
by counsel with respect to the legal dissolution of Local
777 and no serious effort was made to obtain such infor-
mation while the hearing was in progress. Respondent
produced a photograph of the current office directory
posted in the lobby of a building at 45 West 48th Street,
New York City, which shows Local 777 on the directo-
ry. Moid asserted that this was an error resulting from
the fact that he now runs a union known as Local 777B.
Perry conceded that he had never received any turn-
over of books, records, or contracts and he was unable
to produce any copies of correspondence with Local 777
in which such turnover had been requested, though
within his own union there had been executive board ap-
proval of the merger as required by its own bylaws. As
of the time of the hearing, no written report had been
filed with Department of Labor which reflected the fact
that a merger had taken place. Verbal mention of the
merger had been made in response to a departmental in-
quiry 6 months before the hearing.
The question of whether Local 777 continues to have
a legal existence thus remains murky, with serious conse-
quences respecting my findings as to credibility and as to
the effectuation of the merger. Even if the validity of the
merger were deemed to be unaffected by counsel's fail-
ure to take the steps necessary to terminate the corporate
existence of Local 777 or by the failure to transfer
records and assets, the omissions nevertheless cast doubt
upon the vigor with which any of the due-process re-
quirements for a valid merger were pursued and com-
plied with and add more technical confusion to a trans-
action whose technical validity is already questionably
on other grounds. Furthermore, in the absence of turn-
over of books, records, membership lists, contracts, or
other documents, and the union treasury, the current
legal status of Local 777 is so unclear that I must hold
that, whatever the validity of the steps taken from the
negotiation of the agreement through the ratification
meeting, there is no evidence that a merger has in fact
been effectuated.
VI. DEMAND FOR, AND REFUSAL OF, RECOGNITION;
THE "REAFFIRMATION"
On December 3, 1980, Perry sent a letter addressed
generally to "State Bank of India" at 460 Park Avenue,
New York City, announcing the merger of Local 777
into Local 6 and demanding recognition of Local 6 as
the collective-bargaining agent of the employees. The
Bank responded, through counsel, that it would not rec-
ognize I.ocal 6 as the representative of its employees and
suggested that Local 6 seek an election supervised by the
NLRB. According to Perry, initial telephone conversa-
tions which he had with a Bank officer gave him the im-
pression that recognition would be accorded. There is
sharply conflicting evidence respecting a telephone con-
versation which Perry thereafter had with the attorney
who wrote the Bank's response. The evidence is utterly
irreconcilable but all the testimony regarding it is in
1117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement that the demand for recognition of Local 6
was based entirely on the ground that a valid merger had
taken place.
In mid-December, because of the Bank's refusal to rec-
ognize Local 6, the signatures of 64 employees were col-
lected on an undated document under the following dec-
laration:
We, the undersigned, employed at State Bank of
India, 460 Park Ave., New York, N.Y. 10022, reaf-
firm the merger agreement between Local 777
Banking Employees Union and Local 6, I.F.H.P.,
ILA AFL-CIO dated the November 26, 1980 and
hereby designated Local 6 as our exclusive bargain-
ing agent regarding wages and fringe benefits.
The original document was forwarded to Perry by
Viswambharan. The General Counsel contended that it
constituted evidence that a merger agreement had been
entered into and ratified. Actually, it is hearsay as to the
events which transpired in connection with the merger
agreement and the events which occurred on the evening
of December 2, 1980. It does not even recite which of
the signatories attended that meeting. In any event, it
cannot rectify the failure to observe the requirements of
due process.25
Unquestionably, proof of employee support for a
merger gathered after the effectuation of the merger can
be germane to the issue of what constitutes the true de-
sires of the employees, but such expressions, whether by
way of authorization cards or willingness of employees
to strike will only be considered by the Board in cases in
which the true desires of the employees are ascertainable
because all of the important requirements of due process,
such as proper notice, adequate discussion of the issues
and voting by a proper and suitable method, were com-
plied with.2 6
26 Significance of this document, in evidence as G.C. Exh. 6, as sup-
port for an independent charge of violation of Sec. 8(a)(5) by reason of
failure to accord recognition pursuant to Sec. 9(a), is precluded by its
lack of standing as a petition and by the absence of credible evidence that
a copy of it had ever been sent to the employer or a demand for recogni-
tion based on it. Scaraia, who helped collect the signatures, vehemently
asserted that it was a "statement" and not a "petition." Perry testified
that he mailed a copy to the Bank, but could produce no evidence of
such mailing nor any correspondence referring to it. The Bank officer to
whom it would have come in normal course testified that he never saw it
prior to the hearing. The General Counsel also limited its applicability,
stating, "This document shows the support of the bargaining unit em-
ployees for a merger." That being its only relevance, it becomes mean-
ingless in the light of the failure to prove, by a preponderance of the evi-
dence, that a valid merger took place.
a6 Newspapers, Inc.. Publishers of the Austin American and the Austin
Statesman. 210 NLRB 8 (1974); Samuel P. Katz d/b/a American Mailers
(Plant #2), 231 NLRB 1194 (1977), enfd. 622 F.2d 242 (6th Cir. 1980).
VII. CONCLUSION
Assurance that the employees' wishes were properly
ascertained and expressed could exist only if the require-
ments of due process as laid down by the Board were
scrupulously observed. The evidence, however, shows
that they were not complied with in a number of impor-
tant respects.
As a result of these violations of due process, there
exist such serious questions as to what the wishes of the
employees were with respect to representation, and such
an absence of credible evidence which would tend to es-
tablish what the employees thought they were doing
when they raised their hands at the ratification meeting
or what knowledge they had of possible alternatives, that
the true significance of the uncontroverted facts that the
vote taken at the meeting was unanimous and that a
large number of employees signed a "reaffirmation" sev-
eral weeks later, is conjectural. The resolution of these
issues must abide an election.
A valid merger not having been consummated, I hold
that Respondent was never at any time obligated to rec-
ognize Local 6 as the collective-bargaining representa-
tive of any of its employees, even after Local 777 aban-
doned its incumbency during the period of the collec-
tive-bargaining agreement due to expire September 30,
1980.
Upon the foregoing findings of fact and upon the
entire record herein considered as a whole, I make the
following:
CONCLUSION OF LAW
Respondent has not engaged in the unfair labor prac-
tice alleged in the complaint herein.
Upon the basis of the foregoing findings of fact. con-
cluslbn of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER2 7
The complaint herein is dismissed in its entirety.
27 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
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