F. W. Woolworth Co.

National Labor Relations Board - Board Decisions

Sep 17, 1987

285 N.L.R.B. 854 (N.L.R.B. 1987)

854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
'F. W. Woolworth Co. and United , Food and Com-
mercial Workers International Union, AFL-
CIO, Local 568. Case 24-CA-4514
17 September 1987
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 10 February 1984 the National Labor Rela-
tions Board issued a Decision and ' Order in - this
proceeding 1 in which it dismissed the complaint
finding that the merger of Local 552 with Local
568 was invalid because nonunion employees were
not permitted to vote in the merger election, and
that the Respondent did not therefore violate Sec-
tion 8(a)(5) and (1) by refusing to recognize and
bargain with Local 568. The Union filed a petition
in the United States Court of Appeals for the Dis-
trict of Columbia Circuit for review of the Board's
Decision and Order. Subsequently the United
States Supreme Court issued its opinion in NLRB
v. Financial Inst. Employees (Seattle-First National
Bank),2 holding that the Board exceeded 'its au-
thority by establishing a rule requiring that non-
union employees be permitted to vote in an affili-
ation election before the Board would order an em-
ployer to bargain with the affiliated union. In light
of the Court's opinion in Seattle-First National
Bank, the Board then petitioned the circuit court to
remand this case for reconsideration. The Board's
motion for remand was granted. Thereafter, the
Respondent and the Charging Party filed state-
ments of position with the Board.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On reconsideration of the record as a whole and
the statements of position, the Board has decided
to affirm the judge's rulings , findings, and conclu-
sions and to adopt the recommended Order.3
1268 NLRB 805 ( 1984) Members Johansen and Babson were not
members of the Board at the time the Board 's original Decision and
Order issued.
2 106 S Ct. 1007 (1985)
3 Administrative Law Judge Arline Pacht issued her decision and rec-
ommended Order in this case on 15 June 1982
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 judge's decision. (1) an arti-
cle discussing the merger of Local 552 and Local 568 appeared in Carib-
bean Business on 17 September 1980, not 7 September 1980, (2) the last
letter sent by Local 552 to the unit employees bearing its letterhead was
The judge found the merger of Local 552 with
Local 568 was valid and that the Respondent's re-
fusal to recognize or bargain with Local 568 violat-
ed Section 8(a)(1) and (5) of the Act. The Board
adopted the judge's findings of fact and credibility
resolutions in its 14 February 1984 decision but re-
versed the judge's violation finding solely on the
determination that the merger of Local 552 and
Local 568 was invalid because nonunion employees
were not permitted to vote in the merger election
under the holding of Amoco Production Co., 262
NLRB 1240 (1982), a case decided by the Board
after the publication of the judge's decision. With
the issuance of Seattle-First National Bank, the fail-
ure to permit nonunion employees to vote on the
proposed merger can no longer be grounds for
finding the merger to be invalid, and we shall,
therefore, analyze the issues here, as did the judge,
under equitable procedures under the principles es-
tablished by the Board prior to the Amoco decision.
As the judge correctly stated, the Board had long
held that mergers between unions at the local or'
international level are valid when 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
when the identity of the representative remains es-
sentially unchanged. We agree with the judge's
conclusion that the merger at issue here is valid.
Regarding the voting procedures, in the merger
election, the, judge found, and we agree, that the
members of both Locals were given adequate
notice well in advance of, the general assembly, at
which the merger election took place, that most of
the Respondent's employees were aware of the
pending merger, and that the vote was by secret
ballot. We therefore agree with the judge's conclu-
sion that the election procedures provided suffi-
cient guarantees of free choice and due process.
As to the continuity of the bargaining represent-
ative, the judge found, and we agree, that the
merger of Local 552 with Local 568 was accom-
plished in a manner that neither significantly affect-
ed the identity and continuity of the certified rep-
resentative nor altered its relationship to the Wool-
worth employees. Thus, she found that at the time
of the merger Local 551 constituted a majority of
the membership of the merged locals, that 6 of the
11 positions on the newly formed board of direc-
tors, including the presidency, were filled by mem-
bers of the Local 552 executive board, and that
Local 552 members automatically became members
of Local 568 with no losses in seniority and no
dated 9 September 1980, not 4 August 1980; and (3) in Conclusion of
Law 3, 27 July 1981 should read August 1981
285 NLRB No. 119
F. W. WOOLWORTH CO.
change in the dues structure or pension and health
plan benefits. She therefore concluded that continu-
ity in all the rights and privileges of membership in
Local 552 were preserved after the merger. The
judge further found that, after the merger, collec-
tive-bargaining agreements previously negotiated
by Local- 552 remained in effect, that the individual
bargaining units continued to ratify new contracts,
and that, for the most part, union business agents
continued to service the employees assigned them
before the merger. She noted particularly that Ben-
igno Mouliert, formerly Local 552's International
representative, was made primarily responsible
after the merger for negotiating a collective-bar-
gaining contract- on behalf of Local 568 with the
Respondent. We find that the record sustains the
judge's conclusion that the identity of the certified
bargaining representative in this case remained es-
sentially unchanged after the merger.
For these reasons, we affirm the judge's holding
that Local 568 is the lawful successor to Local 552,
that the Respondent was obligated to recognize
and bargain with it as the duly elected representa-
tive of its employees, and that its refusal to recog-
nize or bargain with Local 568 violated Section
8(a)(5) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, F. W.
Woolworth Co., Bayamon, Puerto Rico, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
IT IS FURTHER ORDERED that the decision pub-
lished at 268 NLRB 805 (1984) is vacated.
MEMBER JOHANSEN, concurring.
I concur in the result.
Efrain Riuvera and Patricia Timmons, Esq., for the Gen-
eral Counsel.
Esteban Davila,-Esq., of Hato Rey, Puerto Rico, for the
Respondent.
Christopher Hoey, of New York, New York, for the Re-
spondent.
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 (the Union or Local 568), a complaint issued
on June 5, 1981, alleging that the Respondent, F. W.
Woolworth Co., was in violation of Section 8(a)(5) and
(1) of the National Labor Relations Act.
855
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 material evi-
dence, and to engage in oral argument.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respond-
ent, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York corporation, has maintained
an office and a place of business at the Bayamon Shop-
ping Center in Bayamon, Puerto Rico, where it is and
has at all material times been engaged in the retail sale of
merchandise, dry goods, and related products. During
the past 12 months, a period representative of its annual
operations, Respondent, in the course and conduct of its
business, derived gross revenues in excess of $500,000.
During this same period of time, Respondent purchased
and caused to be transported and delivered to its place of
business merchandise, dry goods, and other goods and
materials valued in excess of $50,000 of which $50,000
were transported and delivered to its places of business
in Puerto Rico directly from points outside the Com-
monwealth. 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 International Union, AFL-CIO, Local 568, is a
labor organization within the meaning of Section 2(5) of
the Act.
II. PRIOR PROCEEDINGS 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 (Local 552), petitioned for an election
among all regular full-time and part-time selling and non-
selling 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 here.
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 that union
was soon to effect a merger with Local 568. After an in-
vestigation, and pursuant to the Board's Rules and Regu-
lations, the Regional Director issued a supplemental deci-
sion on August 27 overruling the Respondent's objec-
tions in their entirety. Subsequently, on September 25,
the Board denied the Respondent's request for review of
the Regional Director's decision and, on March 9, 1981,
also denied Respondent's motion for reconsideration of
its request for review. Consequently, on April 15, 1981,
' Unless otherwise noted, all dates refer to 1980.
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Regional Director certified Local 552 as the collec-
tive-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 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 allegations 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
substantially 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 Region-
al Director's substitution in the complaint of one labor
organization for another is an attempt to amend a certifi-
cation in contravention of Section 102.60(b) of the
Board's Rules and Regulations.
On August 3, 1981, the General Counsel filed a
Motion for Summary Judgment with the Board. In re-
sponding, the Respondent renewed the defenses set 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.112 For this reason and in "light of Respondent's
contentions, the Board concluded that material issues of
fact were raised that warranted denying the Motion for
Summary Judgments
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.
C. 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
2 F. W Woolworth Co., 258 NLRB 1287 (1981)
3 Id
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 1 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 boards 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 voted by the membership of both Locals.
Materials concerning the merger were mailed to the
members of both unions about July 3 and also were
posted at their places of employment. Included in this
distribution was a notice announcing 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 that 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 enlarged executive body
for Local 568.
B. Local 552s Organization Campaign
Concurrent with the time that Local 552 began enter-
taining the idea of merger, it initiated an organization
campaign among 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 July2'meet-
4 Because the Woolworth employees were not yet dues-paying active
members, they were ineligible to vote on the merger
F. W. WOOLWORTH CO.
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 Respondent's
Bayamon store.
In an effort to disprove the Union's contention that its
agents informed the employees of the pending merger,
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 no knowledge of a merger between Locals
552 and 568 prior to the union election on July 11.
In addition, Respondent introduced into evidence a
series of letters that Local 552 sent to Woolworth em-
ployees both before and after the, July 11 election that
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 Local 568 appeared in the San Juan Star,
an English language newspaper , with a caption announc-
ing the impending merger. Another article discussing the
merger appeared in the same paper on August 10 and a
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 meetings
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.
5 Prior to the merger , the address that-appeared on Local 552's station-
ery 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.
6 With the merger of Locals 552 and 568 , the Union 's membership was
1100. Of this total , 591 were former members of the predecessor Local
857
D. The Locals 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 (i.e., moneys , automobile , office furniture,
and equipment), were transferred to the surviving Local.
Employers with whom Locals 552 and 568 had collec-
tive-bargaining agreements 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 that shed light on the relationship
between the successor Union and its predecessors. Thus,
the agreement provided that Local 568 would assume all
debts, obligations, and liabilities of the defunct Local;
that members in good standing of Local 552 would auto-
matically 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 welfare trust and
pension fund vested rights in Local 552 would not be al-
tered by virtue of the merger ad continued to vest under
the successor Union. Still another provision 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,
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-
ice 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 , Woolworth employee
Arlene Cintron, and Respondent's representatives to ne-
gotiate a labor contract . Respondent rejected the Union's
request the following day, advising the Union that it
would pursue its position that the Board erred in certify-
ing Local 552 as its employees ' representative.
Two weeks later, by letter dated October 15, the new president of
Local 568, Diaz, advised the Regional Director of the merger.
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Woolworth employees told of 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 that lends weight to their testimony.
Thus, the record shows incontrovertibly 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 suggest that
the Union had no interest in concealing the merger.8 At,
the time these news -articles and letters issued, the result
of the election was far from a fait accompli, because the
Respondent's objections to the election still were pend-
ing. Finally, I note that officials of both Locals warmly
endorsed the merger and, judging by their photograph in
the San Juan Star, were pleased with the event. By all
accounts, their pleasure was genuine because 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 statement
given the'time that had elapsed between the date of that
meeting in early April 1980 and the date of the hearing.
Nor is there any evidence that either Riera or the three
witnesses whose testimony was made the subject 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, Respondent did not call as wit-
8 Respondent's contention that its Spanish-speaking employees were
not likely to read an English-language newspaper misses the point. The
publication of these stones simply suggest that Local 552 made no effort
to conceal the merger, thereby lending credence to the testimony of the
two business representatives. Moreover, Respondent's argument assumes,
without foundation, that none of its employees perused the San Juan Star.
9 See "Reflections on Bargaining Structure Changes" by Professor H.
R. Northrup in BNA's Daily Labor Reporter, January 2, 1974, Nos. 1-3:
union organization in the United States is under considerable
stress . . for the mundane facts of financial realities . . [W]ith
.. 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.
nesses any of the employees who were identified by
union witnesses as having attended the organization
meeting in April or in July when the merger was men-
tioned. Rather, one of the witnesses whom Respondent
subpoenaed acknowledged that he voted against the
Union. The only effect information about the merger
might have had on her vote, then, would have been fa-
vorable to Local 552. Without doubt, some Woolworth
employees probably were unaware of the forthcoming
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 employer dated
October 1981. However, by early September 1980, Local
568's stationery bearing an address and telephone num-
bers different from those that previously -appeared on the
stationery used by Local 552, was employed exclusively
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 Locals 552
and 568.10
2. The merger is valid
a. 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-
changed. See NLRB v. Commercial Letter, 496 F.2d 35
(8th Cir. 1974); Wellman Industries, 248 NLRB 325
(1980).
In determining whether a merger had altered the es-
sential nature of the bargaining representative as it af-
fects 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 a substantial continuation of their present
organization and representation. Montgomery Ward &
Co., 188 NLRB 551, 552-553 (1971). Accord: Retail
Clerks, 154 NLRB 1197 (1965), enfd. 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 employees' collective-bargaining representa-
tive.
10 The Respondent's sugggestion 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,
b. Voting procedures were proper
As the court recognized in NLRB v. Commercial
Letter, supra at 42, the Board had 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 that 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 case 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."' 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 partici-
pate in the selection of their collective-bargaining repre-
sentative. However, under settled Board law, a merger
or affilation 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, the Board ruled that the participa-
tion of the employees was not required, in part because
they were aware of the prospective merger and "presum-
ably took this possibility into account when they cast
their ballots" at a union election that occurred some 5
months prior to the merger. Id. at 1337. By the same
token, because most of the Respondent's employees also
were aware of the pending merger they too "presumably
took this possibility into account" and cast informed bal-
lots 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 Respondent's argument
that the employees' failure to participate in or ratify the
merger vitiates the validity of the union election. See
F. W. WOOLWORTH CO. 859
National Carbon Co., 116 NLRB 488, 497 (1956), affd.
244 F.2d 672 (6th Cir. 1957).
C. The Union is lawful successor to Local 552
Evidence abounds in this record that the merger of
Local 552 with Local 568 was accomplished in a manner
that neither significantly affected the identity and conti-
nuity 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 favor-
ably with that in Montgomery Ward, supra, in which the
Board approved an amendment of certification subse-
quent to a merger between a small 500 member local
with a much larger local of some 11,000 members. See
also F. W. Woolworth Co., 194 NLRB 1208, 1209 (1972),
in which the Board held that the merger between the
local with only 162 members and only 13 in the unit
under consideration, with another local having approxi-
mately 1950 members, was not determinative in ascer-
taining whether the basic identity of the collective-bar-
gaining representative would remain the same. That
Local 552s executive board assumed 6 of the 11 posi-
tions on the Charging Party's board of directors, includ-
ing the presidency, lends further proof of a continuity in
leadership as well as its continuing influential position in
the new Union. In addition, the transfer of Local 552's
assets, liabilities, obligations, furniture, and other proper-
ties must be viewed as factors tending to preserve, if not
enhance, the financial stability of both' Unions.
Moreover, membership in one organization automati-
cally conferred membership in the other without any loss
of seniority, the dues structure for both organizations re-
mained intact, and vested rights in health and pension
plans were transferred from Local 552 to Local 568
without detriment to any union member's interests. Sub-
sequent to the merger Local 568 dad ' adopt new bylaws
that were more detailed than those that previously gov-
erned Local 552. However, on comparing the two sets of
bylaws, I find no obligation imposed by the Charging
Party's charter that is inconsistent with the provisions
that previously governed Local 552. In short, continuity
in all the rights and privileges of membership 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 interest appears to be little more than a device
to frustrate their expressed desire for union representa-
tion. However, that attempt may not prevail for on the
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
facts recited above, there can be no doubt that the, con-
solidated Union was intended to and is functioning as a
continuation of its constituent parts; the Charging Party
is the lawful successor to Local 552.11 As such, the Re-
spondent may not evade its obligation to bargain with
the Union as the duly elected representative of its em-
ployees. See Wellman Industries, supra. Consequently,
Respondent's refusal to recognize or bargain with Local
568 constitutes a violation of Section 8(a)(1) and (5) of
the Act.
4. The foregoing labor organizations constitute a single
continuing entity, herein identified as the Union.
5. All regualar 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, personnel supervisor, pro-
fessional personnel, guards, and supervisors as deemed 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 here, the
exclusive bargaining representative of the employees in
the unit above-described for purposes of collective bar-
gaining with respect to wages, rates of pay, hours of em-
ployment, and other terms and conditions of employment
within the meaning of Section 9(a) of the Act.
7. By refusing since about May 13, 1981, to meet and
bargain in good faith with the Union as the representa-
tive of its employees in the unit described above, Re-
spondent 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(a)(1) 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(a)(5) and
(1) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, it is recommended that the Respondent
recognize and, on request, bargain with the , Union
through its designated agents as the exclusive representa-
11 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), in which 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
tive of all employees in the unit found to be appropriate
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 under-
standing is reached, embody such understanding in a
signed agreement.
For the purpose of determining the duration of certifi-
cation, the initial year of certification shall be deemed to
begin on the date the Respondent commences to bargain
with the Union as the recognized exclusive bargaining
representative in the appropriate unit. i 2
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, F. W. Woolworth Co., Bayamon,
Puerto Rico, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with
the Union through its designated agents, as the exclusive
representative of its employees in the following appropri-
ate unit with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment:
All regular full-time and part-time selling and non-
selling employees employed by the Employer at its
Bayamon Shopping Center Store, Bayamon, Puerto
Rico, including cafeteria employees; but excluding
all-managenal personnel, the store manager, assist-
ant store manager-trainee, restaurant manager, per-
sonnel supervisor, professional personnel, guards
and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, meet and bargain with the above-
named labor organization through its designated agents
as exclusive representative of all its employees in the
aforesaid appropriate unit with respect to wages, rates of
pay, hours of employment, and other terms and condi-
tions of employment and, if agreement is reached,
embody it in a signed contract.
(b) Post at its Bayamon, Puerto Rico store, copies of
the attached notice, in both English and Spanish, marked
"Appendix." 14 Copies of the notice, on forms provided
12 The purpose of this provision is to ensure that the employees in the
appropriate unit are accorded the services of their selected bargaining
agent for the period provided by law See Wellman Industries, supra at
343, fn 26 and cases cited therein
13 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec . 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
Continued
F. W. WOOLWORTH CO.
by the Regional Director for Region 24, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing , the National Labor Relations Board has
found that we refused to bargain with United Food and
Commercial Workers International Union, AFL-CIO,
861
Local 568, successor to Retail Clerks Union, Local 552,
affiliated with United Food and Commercial Workers
International Union, AFL-CIO, as the exclusive collec-
tive-bargaining representative of all our employees in the
following appropriate unit:
All regular full-time and part-time selling and non-
selling employees employed by the employer at its
Bayamon Shopping Center Store, Bayamon, Puerto
Rico, including cafeteria employees; but excluding
all managerial personnel, the store manager, assist-
ant store manager-trainee, restaurant manager, per-
sonnel supervisor, professional personnel, guards
and supervisors as defined in the Act.
WE WILL NOT refuse to recognize, but WE WILL, on
request, meet and bargain collectively with United Food
and Commercial Workers International Union, AFL-
CIO, Local 568, through its designated agents, as your
exclusive bargaining representative and, if an agreement
is reached, WE WILL embody in writing and sign such an
agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
F. W. WOOLWORTH CO.