Fast Food Merchandisers, Inc.

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.