Fast Food Merchandisers, Inc.

National Labor Relations Board - Board Decisions

Feb 20, 1985

274 N.L.R.B. 143 (N.L.R.B. 1985)

FAST FOOD MERCHANDISERS
Fast Food Merchandisers, Inc. and Local 525,
United Food and Commercial Workers Interna-
tional Union, AFL-CIO, CLC. Petitioner. Case
11-AC-15
20 February 1985
DECISION ON REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 19 December 1979 the Regional Director for
Region I1 issued his Decision and Amendment of
Certification in the above-entitled proceeding in
which he amended the Certification issued on 4
May 1979 in Case 11-RD-284 to the then Amalga-
mated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local P-706 by substi-
tuting Local 525, United Food and Commercial
Workers International Union, AFL-CIO, CLC. i
Thereafter in accordance with the Board's Rules
and Regulations the Employer filed a timely re-
quest for review of the Regional Director's deci-
sion on the grounds that the Regional Director
erred in finding that Local 525 and Local P-706
had validly merged pursuant to separate votes con-
ducted on 30 December 1978 and 17 February
19792 in view of the fact that the employees of the
Employer had been extended adequate due process
in considering the merger pursuant to a 21 October
1979 meeting called to "ratify" the December 1978
vote.
By telegraphic order dated 28 February 1980 the
Board granted the Employer's request for review.
We have considered the entire record in this case
with respect to the issues under review and make
the following findings.
Beginning in 1973 the Employer's employees had
been represented by Local P-706 of the then Amal-
gamated Meat Cutters Union. In December 1978
an employee filed a decertification petition in Case
11-RD-284 and the parties entered into a stipulat-
ed election agreement. Shortly thereafter a notice
was posted or mailed by the Meat Cutters an-
nouncing a meeting on 30 December 1978 at which
those in attendance voted whether to "disaffiliate
with Local P-706 and affiliate with Local 525" of
the then Retail Clerks Union. Of the 176 unit em-
ployees, 16 attended the meeting and voted 15 to 1
for what was orally described as a "merger." On
11 January the Board election was held. Local P-
706 remained the sole union on the ballot and re-
ceived a majority of the 158 valid ballots cast. On
' On 7 June 1979 the Meat Cutters merged with the Retail Clerks
International Union to form the United Food and Commercial Workers
See Texas Plastics, 263 NLRB 394 (1982)
2 All dates hereafter are in 1979 unless otherwise indicated
143
4 May the Board issued its Decision and Certifica-
tion of Representative3 to Local P-706 overruling,
inter alia, the Employer's objection which contend-
ed that the Meat Cutters' holding of the merger
vote had interfered with the election.
Prior to the Board's decision, however, the fol-
lowing events had taken place. Since Local P-706
was an amalgamated local, the merger process was
completed on 17 February when the employees of
the other employers voted. The Employer's em-
ployees were expressly excluded from this vote.
The 17 February tally was in favor of merger as of
course was the combined tally of the 30 December
1978 and 17 February votes. Pursuant to these
votes, sometime in March Local P-706 surrendered
its charter to the Meat Cutters and admittedly
became defunct. The Board, which was then con-
sidering challenges and objections in the decertifi-
cation proceeding, was not informed of this action.
On 6 July Local 525 filed a petition in Case 11-
AC-14 seeking to amend Local P-706's certifica-
tion to reflect its merger into Local 525. On 18
September the Regional Director granted the Em-
ployer's motion to dismiss on the ground that the
30 December 1978 merger vote was procedurally
defective because the employees had not been
given adequate notice of the union meeting at
which the merger vote occurred. Local 525 did not
request review of the Regional Director's decision.
With a view to devising the "quickest way to
settle the matter" and thereby remedy the deficien-
cy of the 30 December 1978 vote, Local 525 sent a
27 September letter to all employees of the Em-
ployer who had either been members of the then
defunct Local P-706 or who had since signed mem-
bership cards for Local 525. The letter informed
the recipients of a 21 October meeting whose sole
purpose would be to vote again on the merger
issue. This letter indicated that only "Union Mem-
bers" would be eligible to vote. Of the 176 unit
employees, 67 members were sent letters of which
52 were received. The 21 October vote was 14 to
none in favor of merger. Thereafter Local 525 filed
the instant petition.
Following a hearing the Regional Director or-
dered that the certification issued to Local P-706
be amended to substitute Local 525. The Regional
Director rejected the Employer's contention that
the Decision and Order in Case 11-AC-14 was dis-
positive by reasoning that Local 525 had rectified
the procedural inadequacy of the 30 December
1978 vote by holding the 21 October meeting after
adequate notice. The Regional Director also found
no merit in the Employer's contention that the at-
3 242 NLRB 8 (1979)
274 NLRB No. 25
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tempted merger vote in October was a nullity since
by that time Local P-706 was no longer in exist-
ence. He held that since the merger had already
occurred pursuant to the 30 December 1978 and 17
February votes, the employees of the Employer
were in effect ratifying an accomplished event. As
to the members-only aspect of the 21 October vote,
the Regional Director relied on Amoco Production
Co., 239 NLRB 1195 (1979), to hold that the issue
of union merger is similar to that of union affili-
ation and that therefore merger voting is also an in-
ternal union matter which may be limited to mem-
bers without violating due process requirements.
We find merit in the Employer's contention that
Local 525's failure to notify nonmember unit em-
ployees of the 21 October merger vote and to
extend to nonmembers an opportunity to vote vio-
lated fundamental due process standards. In so
finding we rely specifically on our decisions in
Amoco Production Co., 262 NLRB 1240 (1982),
overruling 239 NLRB 1195, and F W. Woolworth
Co., 268 NLRB 805 (1984). In the former case we
held that a union's denial to nonmembers of the op-
portunity to participate in an affiliation election
renders the election invalid on due process
grounds. In the more recent case we held that the
same principles apply to merger between two
locals within the same international union. Here
employees who had not belonged to Local P-706
or who had not joined Local 525 were barred from
the 21 October vote. Since not all the Employer's
employees represented by Local P-706 were per-
mitted to vote to ratify the earlier procedurally de-
fective merger of Local P-706 with Local 525 we
find that merger as ratified invalid. Accordingly
we shall dismiss Local 525's petition to amend the
certification issued to Local P-706.
ORDER
The petition is dismissed.