Fluhrer Bakeries

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fluhrer Bakeries, Employer-Petitioner and General Teamsters Local 137, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Union-Peti- tioner. Cases 20-RC- 13919 and 20-RM-2052 September 20, 1977 DECISION ON REVIEW AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a consolidated hearing was held before a duly desig- nated Hearing Officer. After the hearing and pursuant to the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director for Region 20 issued a Decision and Direction of Election in the above-entitled proceeding. The Union-Petitioner filed a request for review, and a brief in support thereof, which was granted by the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds no prejudicial error was committed. They are hereby affirmed. Upon the entire record in this case, the Board finds: As found by the Regional Director, the Employer and Teamsters, Chauffeurs, Warehousemen & Help- ers Local 684, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (IBT Local 684), entered into a collective-bargaining agreement cover- ing the employees sought herein on October 15, 1975. The agreement was effective from October 1, 1975, through September 30, 1978. General Teamsters Local 137, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 137), claims that by virtue of the merger between it and IBT Local 684, and the subsequent approval of Local 137 as their exclusive bargaining representative by a majority of the bargaining unit employees, it has succeeded to the position of the now defunct IBT Local 684 with respect to the above contract, which is therefore a bar to the petition herein. The Regional Director found, in accordance with the contentions of the Employer and the Intervenor,1 that Local 137 is not a successor to IBT Local 684, i Teamsters, Chauffeurs, Warehousemen & Helpers Local 684 (Indepen- dent). 232 NLRB No. 40 essentially because the unit employees were not asked their desires with respect to the merger, but were merely informed of the merger, after the fact, and asked whether they now wished to have Local 137 represent them. The Regional Director also found that the Intervenor, contrary to its conten- tions, is not a successor to IBT Local 684 inasmuch as it does not meet the test of continuity of leadership and representation. While we agree with the latter finding, for the following reasons we find, contrary to the Regional Director, that Local 137 is a successor to IBT Local 684 and that, accordingly, the above contract constitutes a bar to the instant petitions. In her decision, the Regional Director has fully set out the facts surrounding the merger of Local 137 and IBT Local 684, including the creation of the Intervenor, as well as the procedure used by Local 137 in obtaining ratification of the merger from the unit employees. These essential facts are not in dispute. Thus, she found that in the spring of 1976 some members of IBT Local 684's executive board began examining the possibility of a merger with Local 137. The merger was discussed by members of both boards, and on July 13, 1976, the proposal was approved by the International, which determined that Local 137 would be the surviving Local with jurisdiction over IBT Local 684's assets, territory, etc. On July 20, 1976, the merger was discussed at the final meeting of IBT Local 684's executive board and approved without any member expressing dissent. By virtue of the merger, all of the approximately 900 members of IBT Local 684 were transferred to Local 137 and issued cards from that Local. Although the membership of the two Locals were not given an opportunity to voice their approval or disapproval of the action, it appears that the merger was in accordance with the International's constitution and has been duly recorded with the Department of Labor. At the time of the merger, IBT Local 684 had collective-bargaining agreements with some 57 em- ployers, all save 6 of which have since recognized Local 137 as the successor to IBT Local 684. Subsequent to the merger, several persons who had been members of the defunct IBT Local 684 filed protests over the merger with the International. The International later dismissed the protests, affirming the validity of the merger under its procedures. However, this dissenter group coalesced into an independent union, adopting their own constitution and bylaws and electing their own officers. This independent, designated as Teamsters, Chauffeurs, Warehousemen & Helpers Local 684 (Intervenor) 212 FLUHRER BAKERIES has intervened in these proceedings, claiming it is a continuation of the defunct IBT Local 684, or at least a successor, although no longer affiliated with the International. Although the Regional Director failed to make specific findings in this regard, it is clear from the record that Local 137 has the same national union affiliation as IBT Local 684; the same elected official has negotiating authority; it has the same negotiation and grievance procedures; and the officers, insignia, membership and executive meeting schedules, mail- ing address, dues and initiation fees, and publica- tions are the same as those of IBT Local 684. In contrast, Intervenor has a newly adopted and different constitution from IBT Local 684, and, while two of its officers were formerly officers of the defunct local, the rest of its structure is essentially different. With respect to Local 137's efforts to obtain ratification of the merger from the unit employees, the Regional Director found, in accordance with the record, that on the morning of October 20, 1976, Joe Davis, previously secretary-treasurer of IBT Local 684 and now business representative of Local 137 servicing the unit in question, along with one current and one former employee of the Employer, sched- uled a meeting at a local inn for 6 p.m. that evening with the unit employees for the purpose of conduct- ing a vote to determine if they approved of the merger. A list of employees believed to be employed was prepared and divided among the three. Each of them was to contact specific employees and notify them of the meeting. Eighteen of the 23 unit employees attended the meeting and marked ballots in secret which asked the question, "Are you in favor of being represented by Teamsters Local 137?" After the balloting at the meeting, Davis and two other union members drove to the Employer's plant where ballots were marked in secret by three employees who were working at the time. All ballots were commingled. The results showed 18 ballots marked "yES," I "NO," and 1 blank ballot. Although the Intervenor argues that the employees were not asked whether or not they approved the merger, but only whether they wished to be repre- sented by Local 137 or no union, the Board has held, under similar circumstances, that subsequent ratifi- cation by bargaining unit employees of a perviously accomplished merger is a sufficient basis for finding a successor. Ocean Systems, Inc., 223 NLRB 857, 860 (1976). Inasmuch as the record shows that there has been no substantial irregularity in the procedures utilized in obtaining ratification, in that the notice was adequate and all bargaining unit employees were given the opportunity to discuss the matter and indicate their desires in secret, and as Local 137 has demonstrated that the continuity of the bargaining representative has not been broken because it retains IBT Local 684's constitutional framework, dues structure, and elected officials who have authority to negotiate collective-bargaining agreements and pro- cess grievances, we find that Local 137 is a successor to IBT Local 684 and that, accordingly, the above- referred-to contract is a bar to the petitions herein, which we shall therefore dismiss. ORDER It is hereby ordered that the petitions filed herein be, and they hereby are, dismissed. 213