Service America Corp

National Labor Relations Board - Board Decisions

Apr 9, 1992

307 N.L.R.B. 57 (N.L.R.B. 1992)

57
307 NLRB No. 11
SERVICE AMERICA CORP.
1 The Region expedited the instant representation proceeding due
to Local 115’s picketing of the Employer which began on February
11, 1992, and the Employer’s filing of an 8(b)(7)(C) charge. Local
115 also filed an 8(a)(1) and (5) charge against the Employer in
Case 4–CA–20300 alleging that it was unlawfully refusing to recog-
nize and bargain with Local 115. This charge was dismissed by the
Region on March 6, 1992. The Employer’s appeal of the dismissal
is currently pending in the Board’s Office of Appeals.
2 The expedited election was conducted on March 17, 1992, and
the ballots were impounded pending review.
Service America Corporation, Employer-Petitioner
and Teamsters Union Local No. 115, a/w Inter-
national Brotherhood of Teamsters, AFL–CIO.
Case 4–RM–1186
April 9, 1992
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 6, 1992, the Regional Director for Region
Four issued a Decision and Direction of Election in the
above-entitled proceeding finding that a question con-
cerning representation exists as the merger of Team-
sters Local Union No. 513, International Brotherhood
of Teamsters, AFL–CIO with Teamsters Local 115 did
not result in continuity of representation.1 Thereafter,
in accordance with Section 102.67 of the Board’s
Rules and Regulations, Local 115 filed a timely re-
quest for review of the Regional Director’s decision al-
leging that the merger of the two Teamsters Locals
met the requirements of continuity, and thus, the in-
stant petition should be dismissed. By Order dated
March 16, 1992, the Board granted Local 115’s request
for review.2
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel. The Board has considered the entire record in
this case, including the Employer’s brief on review,
and concludes, contrary to the Regional Director, that
the merger of the two Teamsters Locals involved here
resulted in continuity of representation.
The Employer, a Connecticut corporation, is en-
gaged in providing vending and cafeteria office food
services to businesses and commercial facilities
throughout the United States. For several years, the
Employer recognized Local 513 as the bargaining rep-
resentative of its office coffee service and vending
service employees including drivers, sales employees,
mechanics and warehouse employees at its facilities in
Westchester and Malvern, Pennsylvania, and Penn-
sauken, New Jersey. The most recent contract between
the Employer and Local 513 expired on September 25,
1991.
Local 513, chartered in Philadelphia, was an affiliate
of the International for many years. Prior to its merger
with Local 115, Local 513 represented approximately
1300 employees under approximately 80 separate con-
tracts. Traditionally, it represented employees in the
moving and waste hauling industry as well as employ-
ees engaged in the product distribution business. More
recently, however, Local 513, like all Teamsters locals,
organized in all available areas.
Local 513’s seven-member executive board con-
sisted of President and Principal Officer Larry Thomas,
Secretary-Treasurer Ernie Harris, Vice President
Santiago Gomez, Recording Secretary Elizabeth
Chavous, and three trustees whose role on the board
was to examine each month the Local’s financial
books. Thomas and Harris also served as business
agents negotiating contracts and handling grievances.
They were also the only full-time paid staff of Local
513, the other members of the executive board being
full-time employees in bargaining units represented by
Local 513. Harris, however, had only recently become
the secretary-treasurer and business agent of Local
513, taking the place of Frank Carey, former secretary-
treasurer and business agent, who retired in December
1990. Consequently, it was not Harris, but Carey, who
negotiated the most recent collective-bargaining agree-
ment with the Employer. Harris, however, did handle
a number of grievances in 1991 which arose under
Local 513’s contract with the Employer.
Local 513 had for some time experienced problems
servicing the bargaining units it represented because it
lacked adequate manpower and financing. Con-
sequently, in March 1991, Local 513 requested assist-
ance from Teamsters Joint Council No. 53 in the ad-
ministration and negotiation of its contracts. There-
after, John Morris, president of Joint Council 53 and
secretary-treasurer and principal officer of Local 115,
sent Local 115 business agents to meet with employers
on behalf of Local 513. Morris coordinated these ef-
forts with Local 513’s leadership, Thomas and Harris.
Eventually, Local 115’s assistance led the two Locals
to talk of merger.
On September 5, 1991, Local 513 sent a notice to
all of its members announcing a meeting to be held on
September 29, 1991, for the purpose of discussing and
voting on a merger with Local 115. The meeting was
held at Local 513’s hall and Harris estimated that ap-
proximately 800 members attended. The meeting was
conducted by Local 513’s officers and included a
speech by President Thomas recommending the merg-
er. Local 115 Secretary-Treasurer Morris was present
and also spoke to the membership. A question-and-an-
swer period followed. The vote took place in the sec-
ond floor conference room where no Local 115 rep-
resentatives were present. Members entered the con-
ference room one at a time, and as their names were
checked off a roster, they were handed a ballot by
Harris who acted as an observer along with 2 or 3
union members. Each member, in turn, took the ballot
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which read, ‘‘DO YOU WISH TEAMSTERS LOCAL
513 TO MERGE WITH TEAMSTERS LOCAL 115?’’
and proceeded to the end of the conference table where
the voter marked the ‘‘Yes’’ or ‘‘No’’ box on the bal-
lot. The member then placed the ballot in a locked bal-
lot box. At the conclusion of the voting, Harris and
one of the trustee members of Local 513’s executive
board opened the ballot box and tallied the ballots. A
few late arriving voters were allowed to vote and a
separate tally was prepared. The final tally was 314
votes in favor of the merger, 12 votes against, and 2
void ballots.
Prior to the merger vote, the executive boards of
both Local 115 and 513 voted unanimously on Sep-
tember 12 and 29, respectively, to approve the merger.
Thereafter, Joint Council 53 approved the merger on
October 3, 1991, as did the Eastern Conference of
Teamsters on October 8, 1991. Approval by the Inter-
national, however, was not given until February 3,
1992, as it was delayed pending the election and in-
stallation of the International’s new officers.
Local 115, like former Local 513, was chartered in
Philadelphia and is both a member of Joint Council 53
and an affiliate of the International. As noted earlier,
Morris is the principal officer and secretary-treasurer
of Local 115; other officers at the time of the merger
included President Joseph Yeoman, Vice President
Gerald Sheahan, a recording secretary, and three trust-
ees. Prior to the merger, Local 115 represented ap-
proximately 2500 employees and had contracts with
65–70 different employers. Local 115 does not rep-
resent any particular work jurisdictional lines. Al-
though at the time of the merger it had never rep-
resented any vending employees or product distribution
drivers, it did represent a variety of employees such as
factory, office and garage employees as well as ware-
house employees, one of the classifications also rep-
resented by former Local 513.
While the International’s approval of the merger was
pending, contract negotiations between the Employer
and Local 513 began; their contract had expired on
September 25, 1991. Local 513 Business Agent Harris
had already requested the assistance of Local 115 in
negotiating this contract. Thereafter, Harris discussed
the negotiations with Local 115 Vice President
Sheahan and agreed to Sheahan’s using the standard
Local 115 contract as the initial proposal. On Novem-
ber 1, 1991, Sheahan and Local 115 Business Agent
Johnson met with Local 513 unit employees, including
some of its stewards who worked for the Employer, to
present and discuss the contract proposal. The docu-
ment was reviewed item by item and approved.
On November 25, 1991, the Employer’s negotiator,
Pamela Lewis, met for the first time with Local 115
Business Agent Sheahan and a negotiating committee
composed of Local 513 stewards and employees.
When Lewis expressed concern as to whether Local
115 actually represented the Employer’s employees,
Sheahan informed Lewis about the merger vote and
told her that Local 115 would be succeeding Local 513
as the union representative and that Local 513 had
asked Local 115 to handle the negotiations on behalf
of Local 513, Joint Council 53 and ultimately Local
115. Local 115 then offered Lewis its proposal. Lewis
looked it over and due to its extensiveness, set a date
in December for the next meeting. Since then, the par-
ties have conducted a number of negotiating sessions
but as of the time of the hearing, February 10–11,
1992, had reached no new agreement.
Once the merger was approved by the International,
Local 513 ceased to exist. By that time, all of Local
513’s membership information and most of its assets
and liabilities had been transferred to Local 115. Local
513’s union hall, however, was not transferred. Al-
though the building was not in good condition, it rep-
resented by far Local 513’s largest asset.
As of the hearing, the ultimate fate of the building
was uncertain. For the time being, it was decided that
Local 513’s former members could use the hall and
that it would also serve as the offices for former Presi-
dent Thomas and Secretary-Treasurer Harris, as well as
Recording Secretary Chavous. Chavous will use the
hall to continue to administer Local 513’s benefit
funds, i.e., its pension, legal services, and health and
welfare funds. Former officers Thomas and Harris
were appointed business agents for Local 115 and in
that capacity will maintain offices in the old Local 513
hall where they can meet with both employees and em-
ployers.
As business agents for Local 115, Thomas and Har-
ris will continue their same functions of negotiating
contracts and handling grievances. They will not, how-
ever, be working exclusively in the shops previously
represented by Local 513. Local 115, unlike former
Local 513, does not permanently assign its business
agents to service specific shops. Instead, Secretary-
Treasurer Morris assigns business agents on the basis
of availability and the type of assistance needed. Thus,
Thomas and Harris would, like Local 115’s other busi-
ness agents, service and administer contracts signed by
both Local 115 and former Local 513. As for the con-
tract currently being negotiated with the Employer,
neither Thomas nor Harris is handling those negotia-
tions; instead, as indicated above, Vice President
Sheahan heads Local 115’s negotiating team.
Although stewards for Local 115 are appointed,
while former Local 513 stewards were elected, none of
the Local 513 stewards were removed when the Locals
merged, and as of the hearing all were still serving in
this capacity. The dues structure for both Locals is es-
sentially the same, 2-1/2 times the hourly rate for full-
time employees as set by the International’s constitu-
59SERVICE AMERICA CORP.
3 No request for review was filed as to this finding.
4 Subsequent to the Regional Director’s Decision and Direction of
Election, Local 115 filed a motion to reopen the record to present
evidence as to events which occurred after the close of the hearing.
The motion alleged that the president of Local 115 had resigned to
become president of another Teamsters local and that Local 115’s
executive board, at its meeting on March 12, 1992, was expected to
fill this vacancy on the board by appointing Harris, former secretary-
treasurer of Local 513, to the position of trustee. On March 12,
1992, the Regional Director denied the motion on the ground that
even assuming Harris is appointed trustee, he would be the only
former officer of Local 513 to be given a position of responsibility
and his tenure on the executive board appears uncertain. Whoever
becomes Local 115’s new president, that person automatically has a
seat on Local 115’s seven-member board and will therefore unseat
one of the current members unless Local 115 expands the size of
the board. Also, there is no guarantee that Harris will win a seat on
the executive board at the next election to be held in the fall.
Accordingly, the Regional Director reiterated his earlier finding
that the changes involved in the instant case are sufficiently dramatic
that the former members of Local 513 are now members of and rep-
resented by an entirely new and different labor organization, Local
115. The Regional Director distinguished cases involving the merg-
ers of locals of the same international in which the Board found con-
tinuity. For example, in F. W. Woolworth Co., 285 NLRB 854
(1987), a new executive board was created and 6 of 11 positions,
including the presidency, were filled by former officers of the
merged local, and in News/Sun-Sentinel Co., 290 NLRB 1171
(1988), the authority of the merged local continued in that it retained
responsibility for processing grievances, administering its contract,
and influencing the bargaining process.
tion, although former Local 513 had a higher minimum
($18) than Local 115 ($16) and a special formula for
employees paid by commission. Initiation fees, how-
ever, are different; $200 for Local 115 as compared to
$100 for former Local 513. Both Locals’ constitutions
and bylaws provide for employee ratification of collec-
tive-bargaining agreements and employee strike votes
as does the International constitution. Although these
provisions are not identical (the procedures with re-
spect to these votes are described in more detail in
Local 115’s constitution), both are subject to the Inter-
national constitution, which specifies how many votes
are needed in any given circumstance for employees to
approve a contract or call a strike. Strike benefits are
also the same for both locals as such benefits come
from the International’s strike fund.
Based on the above, the Regional Director found
that the merger vote conducted by Local 513 complied
with minimal due process standards, as there was ade-
quate notice, an opportunity for discussion and a vote
by secret ballot.3 The Regional Director also found,
however, that the merger did not result in continuity
of representation. He noted, in particular, that the
former officers of Local 513, Harris and Thomas, have
no leadership role in Local 115, and that Thomas and
Harris as Local 115 business agents will not be the ex-
clusive agents for former Local 513 shops, nor were
either of them participating in the on-going contract
negotiations with the Employer. Thus, it is possible
that contract administration and grievance processing
for these shops will not be handled by former Local
513 officers. These changes in leadership and adminis-
tration were found by the Regional Director not to be
simple structural changes but instead the substitution
of a new and different local union. Accordingly, the
Regional Director, relying on Chas. S. Winner, Inc.,
289 NLRB 62 (1988), Western Commercial Transport,
288 NLRB 214 (1988), and Independent Drug Store
Owners of Santa Clara County, 211 NLRB 701
(1974), directed an election to resolve the question of
representation.4
The Board, after giving careful consideration to this
issue, finds that the Regional Director gave undue em-
phasis to former Local 513’s lack of ‘‘leadership’’ in
Local 115 and the fact that Local 513 shops were not
being solely administered by former Local 513 offi-
cers. Instead, considering all the relevant facts set forth
above, the Board finds that the merger of Local 513
with Local 115 did not result in a ‘‘new and different’’
representative but instead in the continuity of their
chosen representative.
In Western Commercial, supra at 216, and cases
cited therein, the Board set forth a number of factors
to be considered in determining continuity: (1) contin-
ued leadership responsibilities by the existing union of-
ficials; (2) perpetuation of membership rights and du-
ties, such as membership eligibility and dues structure;
(3) continuation of the manner in which contract nego-
tiations, administration and grievance processing are
effectuated; and (4) the preservation of the certified
union’s physical facilities, books, and assets. The
Board has also applied this test to the merger of two
locals of the same International. See News/Sun-Sen-
tinel, supra.
Although generally speaking, Local 513’s member-
ship information and assets were transferred to Local
115, there were significant exceptions. First, Local
513’s union hall remains in the hands of Local 513
and is being actively used by former Local 513’s offi-
cers. There is no evidence that it is going to be trans-
ferred. Second, Local 513’s benefit funds will continue
to be administered separately by a former Local 513
officer. Thus, we find that Local 513 has retained sub-
stantive and significant assets which it controls and ad-
ministers for the benefit of former Local 513 members.
There is no evidence of any change with regard to
membership rights, duties, or eligibility, and the dues
structure for both Locals is essentially the same. The
only major difference is the amount of the initiation
fee which is $200 for Local 115 as compared to $100
for former Local 513.
Although none of Local 513’s officers or executive
board members will be officers or sit on the board of
Local 115, both of Local 513’s primary officers,
Thomas and Harris, were appointed business agents for
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Although Local 115 alleged in its motion to reopen, see fn. 4
supra, that Harris was going to be appointed a trustee on Local 115’s
executive board on March 12, 1992, we see no need to reopen the
record to obtain any additional facts with respect to Harris’ position
in Local 115. As discussed in this decision, we think the present
record evidence is sufficient to establish the required continuity of
representation. If, in fact, Harris has been appointed trustee as al-
leged, this merely provides further evidence in support of our deci-
sion.
Local 115.5 Although continued leadership by the offi-
cials of a merged union is one element the Board has
examined, we know of no requirement that officers of
a merged local must become officers of the new local
in order to find continuity. Rather, we think ‘‘leader-
ship’’ has a broader definition and thus may encom-
pass, in addition to union officers, other representatives
of the union such as business agents who fill positions
of responsibility and trust. As business agents, Thomas
and Harris are charged with the responsibility of con-
tract negotiations and grievance handling, and thus will
play a vital role in the future of Local 115. In addition,
as this is the same job they performed as officers of
Local 513, their appointment as agents for Local 115
allows them to continue to represent and further the in-
terests of Local 513 employees.
Admittedly, Thomas and Harris are not the only
Local 115 business agents (there are three others), nor
will they be exclusively assigned to service the former
Local 513 shops. However, there is no evidence that
in the ordinary course of business they will not be so
assigned. Also, we recognize that although Harris was
handling grievances for the Employer’s employees
prior to the merger, Harris did not participate in the re-
cent contract negotiations between Local 513 and the
Employer. Rather, the union negotiators handling those
contract talks are headed by Sheahan. The Regional
Director made much of the fact that the former Local
513 employees would now be represented by different
individuals. To us, this is not controlling.
In the first place, we note that even if Local 513 had
not merged and instead Harris was negotiating the suc-
cessor contract with the Employer, the Employer
would still have been dealing with a different person
from the one it had previously dealt with. The record
establishes that Harris did not assume his present du-
ties until early 1991 on the retirement of Frank Carey,
former secretary-treasurer, in December 1990. Con-
sequently it was Carey, not Harris, who negotiated the
Employer’s prior contract with Local 513 and it was
Carey, not Harris, who had been, until recently, han-
dling contracts and grievances for Local 513. Thus, in
1991, when the current contract expired, there was
going to be new union representation at the bargaining
table with or without a merger. Besides, Local 513 em-
ployees still have ratification authority over whatever
contract is negotiated.
Secondly, the fact that former Local 513 employees
may not be serviced by former Local 513 business
agents, but instead be represented by different individ-
uals (Local 115 business agents), is little different from
the situation that would have ensued had elections
been conducted by Local 513 and new officers or busi-
ness agents been elected to represent the Local’s mem-
ber employees. These newly elected or appointed indi-
viduals would merely have succeeded to the authority
of the representatives they replaced. This is generally
the situation where a change in officers or business
agents occurs as a result of the merger of two locals
of the same International. In the case at hand, Local
115 is in no different position or standing than was
Local 513; their representatives possess no more au-
thority than did the representatives of Local 513. In
any event, Harris, as discussed above, was new in the
position of business agent because he had only recently
taken over Carey’s job. Thus, Local 513 members
would have had a new representative handling contract
grievances and administration even if no merger had
occurred.
It is true that in News/Sun-Sentinel and F. W. Wool-
worth, supra, cases in which the Board found con-
tinuity in the merger of two locals of the same inter-
national, some officers of the merged local became of-
ficers in the new local and the merged local had input
in contract negotiations or its business agent had the
responsibility for negotiating the contract with the em-
ployer. Nevertheless, these distinctions are not critical.
In addition, both News/Sun-Sentinel and F. W. Wool-
worth are comparable to the instant case in that in
both, the dues structure remained the same, employee
benefits and membership rights continued, and in
Woolworth ‘‘for the most part’’ the same business
agents continued to service the employees assigned to
them before the merger.
Moreover, the cases relied on by the Regional Di-
rector in which the Board found no continuity bear lit-
tle resemblance to the instant case. Western Commer-
cial involved the affiliation of a tiny, independent
union of approximately 136 employees with an inter-
national union, Machinists District Lodge 776, rep-
resenting some 8500 employees. The independent
union had contracts with only one employer and its
membership had complete autonomy in governing its
affairs: it elected its officers as well as its representa-
tives to the executive board who in turn elected the ex-
ecutive committee to represent the union in contract
negotiations and it ratified collective-bargaining agree-
ments. In contrast, District Lodge 776 had 18 contracts
with a number of different employers and was organi-
zationally divided into 10 local lodges each of which
was represented in the District Lodge by an elected
delegate at the ratio of one delegate per 500 members.
Day-to-day representation matters were handled by
61SERVICE AMERICA CORP.
6 In the Employer’s brief on review, the Employer requests that
even though it did not file a request for review of the Regional Di-
rector’s finding that the merger vote complied with minimal due-
process standards and even though it recognizes that the Board gen-
erally only considers those issues raised in the request for review,
if the Board should reverse the Regional Director’s lack of con-
tinuity finding, the Board should then consider the Employer’s argu-
ment to the Region that the merger vote was not the result of a prop-
erly conducted, secret ballot election. The Employer is correct in that
under § 102.67(g) of the Board’s Rules and Regulations, the Board
after granting a request for review considers only those issues on
which review was granted. However, even assuming it were appro-
priate for the Board now to review the merger vote, the Employer
has failed to present any evidence or make any argument dem-
onstrating that the Regional Director’s finding that the vote met due-
process standards is incorrect.
full-time professional business agents. These agents
had no previous connection or working experience
with either the independent’s members or the employer
with whom it contracted.
Similarly, in Chas. S. Winner, supra, an independent
union of only approximately 30 members voted to af-
filiate with Teamsters Local 115 (the same local in-
volved here) representing about 2500 members. By vir-
tue of the affiliation the independent’s funds and assets
were to be comingled with those of the Teamsters, its
officers fully replaced by Teamsters officers and its af-
fairs no longer in its hands but governed entirely by
the Teamsters’ constitution and bylaws. So too in Inde-
pendent Drug Store Owners, supra, where the merger
of a small, independent union of 38 with Local 428 of
the Retail Clerks resulted in the complete loss and
identity of the independent union.
In all three of these cases, the affiliated or merged
union underwent enormous changes in size, organiza-
tional structure, and administration. In the instant case,
however, not only was the increase in membership less
substantial, the organization, structure, and administra-
tion of the merged local remained essentially the same.
Before the merger Local 513 was a Teamsters local,
member of the Teamsters Joint Council 53 and affili-
ated with the International. After the merger, former
Local 513 employees were still members of a Team-
sters local, which likewise was a member of Joint
Council 53 and affiliated with the Teamsters Inter-
national. The Employer, too, was in a similar position.
Prior to the merger it dealt with a Teamsters local and
its officers and business agents; after the merger it still
dealt with a Teamsters local and the Teamsters organi-
zation. Although Local 513’s constitution and bylaws
was replaced by Local 115’s, since both are subject to
the controlling provisions of the International’s con-
stitution and bylaws, their organization and administra-
tion are to a great extent identical. Thus, in all impor-
tant respects the Employer was bargaining with an en-
tity similar to the one with which it had previously
recognized and bargained. Consequently, the changes
which occurred here are more in the nature of adminis-
trative changes and are not the kind of substantial
changes which result in the creation of a different rep-
resentative.
As the Board finds the merger of the two Teamsters
Locals in the instant case to constitute continuity of
representation, no question concerning representation
exists. Accordingly, the expedited election held on
March 17, 1992, is vacated and the petition is dis-
missed.6
MEMBER OVIATT, dissenting.
I would affirm the Regional Director’s finding of no
continuity for the reasons stated in his Decision and
Direction of Election, the relevant portions of which
are attached as Appendix A. I would, however, reverse
the Regional Director’s Order Denying Motion to Re-
open Record, also attached as Appendix B, and grant
the motion of Local 115 to reopen the record.
APPENDIX A
With respect to the issue of continuity of representation,
however, I find that a question concerning representation ex-
ists. The continuity of representation requirement is designed
to ensure that no one can substitute an entirely different rep-
resentative in disregard of established mechanisms for mak-
ing such a change. Seattle-First National Bank, 290 NLRB
571 (1988); Western Commercial Transport, 288 NLRB 214,
217 (1988). The evidence establishes that Local 513 has
ceased to exist, and all of its assets, with the exception of
its building, have been transferred to Local 115. The former
officers of Local 513, who are now Local 115 business
agents, have no leadership role in Local 115. They may con-
tinue to service former Local 513 shops, but they will not
be limited to such assignments. Thomas and Harris will be
assigned work on a daily basis, as will the other Local 115
business agents. Thus, contract administration and grievance
processing may not be handled by former Local 513 officers.
In addition, neither Thomas nor Harris was or will be in-
volved in the ongoing contract negotiations with the Em-
ployer. These are not ‘‘simple administrative structural
changes’’ but instead the substitution of a new and different
local union as the representative of the unit employees. Gulf
Oil Corp., 135 NLRB 184, 185 (1962). As noted, the initi-
ation fees of Local 115 differ from those of Local 513. Al-
though for the time being the Local 513 union hall will re-
main open to members, and the Local 513 benefit funds will
remain intact, these facts alone are insufficient to outweigh
the changes in leadership and administration as a result of
the merger. Given these changes, the employees are not as-
sured of the continuity of their present organization and rep-
resentation. Newspaper, Inc., 210 NLRB 8, 9 fn. 2 (1974).
In these circumstances, I find that a question concerning rep-
resentation exists and that an election is appropriate. Charles
S. Winner, Inc., 289 NLRB 62, 68–69 (1988); Western Com-
mercial Transport, supra; Independent Drug Store Owners of
Santa Clara County, 211 NLRB 701 (1974).
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX B
ORDER DENYING MOTION TO REOPEN RECORD
On March 6, 1992, A Decision and Direction of Election
was issued in the above-captioned case finding that there was
a lack of continuity of representation following the merger
of Teamsters Union Local No. 513 with Teamsters Union
Local No. 115. On March 9, 1992, Local 115 filed with the
undersigned a Motion to Reopen the Record and supporting
brief requesting that the record be reopened to permit Local
115 to present evidence concerning certain developments
which occurred or were going to occur subsequent to the
close of the hearing on February 11, 1992. The Motion al-
leged that the President of Local 115 had resigned following
his election to the presidency of another local of the Team-
sters, thereby creating a vacancy on Local 115’s executive
board, and that when the executive board met on March 12,
1992, it was expected to appoint Ernie Harris, former Sec-
retary-Treasurer of Local 513 and current business agent of
Local 115, to fill that vacancy until elections for the execu-
tive board are held this fall. On March 10, 1992, the Em-
ployer-Petitioner filed its opposition to Local 115’s Motion
and requested that, if the Motion was granted, additional evi-
dence concerning the current negotiations should also be
considered.
It is clear from the record in this proceeding, as described
in greater detail in the Decision and Direction of Election,
that Local 513, a local union of approximately 1300 mem-
bers, with only 2 full-time paid officials, was unable to prop-
erly service the approximately 65 bargaining units it rep-
resented, and was experiencing administrative, financial and
institutional difficulties. It turned to Joint Council 53 for as-
sistance in conducting the day-to-day affairs of the Union
and received help from various officials of Local 115, which
has approximately 2500 members. The principal officer of
Local 115, Secretary-Treasurer John Morris, is also the Presi-
dent of the Joint Council. Subsequently, Local 513 submitted
a proposal to merge with Local 115 to the membership for
a vote. The membership voted in favor of the merger. Appar-
ently, the membership of Local 115 never voted on the
merger but Local 115’s executive board unanimously ap-
proved the merger on September 12, 1991. After the merger
was approved by the International Union, the books, records
and assets of Local 513, except for the building which
housed its offices and meeting rooms, were transferred to
Local 115. Local 115 assumed the debts of Local 513. Local
513 ceased to exist and all its members became members of
Local 115, subject to Local 115’s constitution, by-laws, dues
and fees, and governed by the officers and executive board
of Local 115. While the two former full-time paid officials
of Local 513 became business agents of Local 115, the
record shows that those officials were going to be assigned
duties in the same manner as other Local 115 business agents
and that the bargaining units previously represented by Local
513 would not necessarily be serviced by, or only by, the
two former Local 513 officers. The record evidence shows
that Local 115 had taken over the collective bargaining nego-
tiations with the Employer-Petitioner, and no former official
of Local 513 participated in these sessions. As business
agents, the former Local 513 officials would have no role in
the leadership, control and administration of Local 115. As-
suming for purposes of this ruling that former Local 513
Secretary-Treasurer Harris, who only became an officer of
Local 513 in December 1990, is appointed as a member of
the executive board of Local 115, he would have some voice
in the administration of Local 115. However, none of the
other six members of Local 513’s executive board have been
appointed to any positions of responsibility in Local 115.
Moreover, the Local 115 executive board consists of seven
members—four union officers and three trustees. Harris’ ten-
ure on the executive board appears uncertain as the indi-
vidual who succeeds the former President who resigned will
have a seat on the executive board and will have to displace
one of the current members, unless the Union expands the
size of the executive board. Of course, there is no way of
knowing whether Harris will win election to the executive
board in the fall.
The foregoing establishes that Local 513 merged with, but
in effect was absorbed or swallowed up by, Local 115, the
dominant organization. The only entity that existed after the
merger was Local 115, augmented by the former membership
of Local 513. Nothing of sufficient significance or substance
representing Local 513 survived the merger. The fate of
Local 513’s building and benefit funds is unclear. None of
the organizational or institutional trappings of Local 513 re-
mained after the merger. In these circumstances, it is clear
that the changes involved were sufficiently dramatic that the
former members of Local 513 were now members of and
represented by an entirely new and different labor organiza-
tion, Local 115.
The continuity requirement has been recognized by the Su-
preme Court, NLRB v. Financial Institution Employees of
America Local 1182, 475 U.S. 192, 206 (1986), and the
Board has never held that this requirement does not apply or
should be applied differently in the case of the merger or af-
filiation of two locals of the same international union. On the
contrary, the Board has decided a number of cases involving
such situations and has applied the same analysis and ration-
ale as in other merger or affiliation cases. See Gulf Oil Cor-
poration, 135 NLRB 184 (1962); Quality Inn Waikiki, 297
NLRB No. 71 (1989); News/Sun Sentinel Company, 290
NLRB 1171 (1988); F. W. Woolworth Company, 285 NLRB
854 (1987). The Board has found continuity to exist in some
cases involving the mergers of locals of the same inter-
national union. See F. W. Woolworth, supra; News/Sun Sen-
tinel, supra. However, those cases are distinguishable on their
facts. In F.W. Woolworth, supra at 854, a new executive
board was created and 6 of 11 positions, including the presi-
dency, were filled by former officers of the absorbed local.
See also Action Automotive, Inc., 284 NLRB 251 (1987)
(president of merged local added to surviving local’s execu-
tive board as Executive Assistant to the President, retaining
primary responsibility for all negotiations and grievance ac-
tivity in areas previously serviced by merged local and super-
vising former business representatives). In News/Sun Sentinel
Company, supra at 1177, the autonomy and authority of the
absorbed local remained substantially unaltered as it contin-
ued as a chapel retaining responsibility for processing griev-
ances, administering its labor agreement and influencing the
collective-bargaining process. In the face of the precedents
discussed above, which I am obliged to follow, I am com-
pelled to find that continuity of representation is lacking in
the instant case and that a question concerning representation
exists. Any questions and arguments as to the wisdom of the
63SERVICE AMERICA CORP.
Board’s policy in applying its continuity requirement to the
merger of two locals of the same international union must be
addressed to the Board. Accordingly, the Union Involved’s
Motion to Reopen the Record is denied.