Charlie Brown's

National Labor Relations Board - Board Decisions

Jul 25, 1984

271 N.L.R.B. 378 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1820 Central Park Avenue Restaurant Corp. d/b/a
Charlie Brown's and Hotel, Restaurant and
Club Employees and Bartenders Union, Local 6,
AFL-CIO, Petitioner. Case 2-RC-19439
25 July 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 21 December 1981 and the Regional
Director's report recommending disposition of
them. The tally of ballots shows 25 for and 9
against the Petitioner, with no challenged ballots.
The Board has reviewed the record in light of the
Employer's exceptions and its brief and has adopt-
ed the Regional Director's findings and recommen-
dations only to the extent consistent with this Deci-
sion and Order.
The Petitioner, Local 6, received a majority of
the valid ballots cast in the election. The Regional
Director found that on I January 1983 the Hotel
Employees and Restaurant Employees Internation-
al Union' imposed a trusteeship on part of the Peti-
tioner and that the trusteeship was to operate under
the name "Hotel and Restaurant Employees Union
Local 100." This trusteeship was to last for at least
18 months.
It severed from the Petitioner about 40 percent
of its former membership in a number of discrete
bargaining units that were at one time represented
by several separate locals. The Employer contends
that Local 100 will represent employees in the res-
taurant industry, such as the employees in this bar-
gaining unit, while Local 6 will represent only em-
ployees in the hotel industry.
The Employer's objections to the election are
based on this change in the structure of the Peti-
tioner; one objection alleges that the organization
now seeking certification as "Local 6" is not the
same organization which filed the petition and won
the election. 2 The Regional Director recommended
that the objections be overruled, finding that the
Petitioner continued to operate as it did before the
trusteeship was imposed, and concluding that it
would be premature to find that a new local would
be formed after the trusteeship had been in place
for 18 months. He further found it unnecessary to
address the question of whether Local 100 was a
successor to the Petitioner. We cannot agree.
I The Regional Director found that the Petitioner is an affiliate of this
International organization.
2 In view of our decision herein we find it unnecessary to discuss the
Employer's other objections
271 NLRB No. 68
Where a certified or recognized representative
changes its organizational structure, the Board
must determine-to issue either an amendment of
certification or a bargaining order-whether the al-
tered organization is still the employees' represent-
ative. Our primary concern in such cases is wheth-
er the change in structure reflected the employees'
desires. Newspapers, Inc., 210 NLRB 8 (1974). We
believe the same question must be resolved in this
case before we can certify, on the basis of an elec-
tion, an organization whose structure has changed
since the election was held.
The divison of a local union into two or more
locals is a structural change that raises a question
as to continuity of representation, requiring a
showing that it reflects the employees' desires.
Climax Molybdenum Co., 146 NLRB 508 (1964).3
In this case, no employee had an opportunity to
participate in the decision to divide the Petitioner
into the present Local 6 and the trusted Local
100.4 It would therefore be inappropriate for the
Board to certify the Petitioner in this unit. More-
over, the showing of interest submitted by the
former Local 6 does not demonstrate employee in-
terest in the present Local 6. We will therefore set
aside the election and dismiss the petition.
ORDER
The petition is dismissed.
MEMBER ZIMMERMAN, dissenting.
It is undisputed that shortly after the election in
this case the Hotel Employees and Restaurant Em-
ployees International Union changed, through
trusteeship, the organizational structure and mem-
bership composition of the Petitioner. The Employ-
er filed objections to the election, alleging that
these changes in the Petitioner should preclude the
Board from certifying the Petitioner as the bargain-
ing representative of the Employer's employees.
I See also M. A. Norden Co., 159 NLRB 1730 (1966) (certified Interna-
tional seeks admendment to add local affiliate). The same is true when
two or more locals of the same International union merge into a single
local. See Newspapers, Inc., supra (division and merger); Rinker Materials
Corp., 162 NLRB 1688 (1967). The Board has recently held that continui-
ty of representation in the case of merger requires that all bargaining unit
employees have the opportunity to vote on the merger. F: W Woolworth
Co., 268 NLRB 805 (1984); see generally Amoco Production Co,, 262
NLRB 1240 (1982). We do not address here the effect of trusteeship
alone on the representative status of a labor organization.
4We therefore do not discuss the other factors that we would usually
examine in determining continuity of representation. See, e.g., Montgom-
ery Ward, 188 NLRB 551 (1971); Canton Sign Co., 174 NLRB 906, 908
(1969); Gulf Oil Co., 135 NLRB 184 (1962). Our dissenting colleague
relies on such factors in arguing that a hearing is required. We do not
disagree that these factors may raise substantial factual issues here. None-
theless, because it is undisputed that there is no record of the employees'
desires, we find any such factual issues immaterial to the ultimate conclu-
sion that there is no continuity. Those issues therefore do not require a
hearing.
378
CHARLIE BROWN'S
Based on his investigation, the Regional Director
overruled the Employer's objections, finding that
the Petitioner continues to operate "substantially"
as it did prior to imposition of the changes by the
International Union and that it "would be prema-
ture to conclude that Petitioner has undergone the
type of fundamental change that would bar its cer-
tification." In its exceptions the Employer takes
issue with these factual and legal findings of the
Regional Director.
I find that the Employer has raised substantial
and material factual issues which warrant a hear-
ing. See Section 102.69(d) of the Board's Rules and
Regulations. Further, the Board does not now have
enough facts-indeed does not know what the pre-
cise facts are-concerning the Petitioner's change
in structure and the effect of that change on its
status as the representative of the Employer's em-
ployees to warrant either setting the election aside
or issuing a certification of representative. Only
after a hearing will the Board have sufficient infor-
mation available to it to decide which of these ac-
tions should be taken.
Accordingly, contrary to my colleagues, I would
remand this case to the Regional Director to con-
duct a hearing of the Employer's objections.
379