Arizona Pork Products, Inc.

National Labor Relations Board - Board Decisions

May 30, 1986

279 N.L.R.B. 1267 (N.L.R.B. 1986)

ARIZONA PORK PRODUCTS 1267
Arizona Pork Products, Inc. and United Food and
Commercial Workers Union, Local 99R, AFL-
CIO. Case 28-CA-7343
30 May 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 30 September 1983 Administrative Law
Judge Richard J. Boyce issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
sor to ... the union purportedly certified" by the
NLRB to represent its employees; that it at relevant
times has been party to a labor contract with another
labor organization , Teamsters Local 83 (Teamsters)
which "precludes collective-bargaining with [Local 99R]
during the term of that contract"; and that the second
runoff election resulting in the certification of Local
99R's purported predecessor, United Food and Commer-
cial Workers Union, Local 448 (Local 448) "was con-
trary to law" and the first runoff election, in which
Teamsters received a majority, "is valid."
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Arizona corporation engaged in the
proceeding and nonretail sale of pork products in Phoe-
nix. Its annual sales directly to customers outside Arizo-
na exceed $50,000 . Respondent is an employer engaged
in and affecting commerce with in the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
H. LABOR ORGANIZATION
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Arizona
Pork Products, Inc., Phoenix, Arizona, its officers,
agents , successors , and assigns , shall take the action
set forth in the Order.
i In its exceptions the Respondent defends its refusal to bargain with
the Union solely on the basis of its contract with the Teamsters, the as-
serted validity of the first runoff election, and the allegedly inadequate
assurance of ballot secrecy in Local 448's merger election We agree with
the judge , for the reasons set forth in his decision, that the Respondent's
arguments lack ment We therefore find that none of the defenses raised
by the Respondent justifies its refusal to recognize and bargain with the
Union
In sec IV(A) of his decision , the judge incorrectly stated that the ini-
tial election in the underlying representation proceeding was held 10 June
1982. The election was held 4 June 1982
Jane Goldman , Esq., for the General Counsel.
Thomas J. Kennedy and Tibor Nagy, Esq. (Snell &
Wilmer), of Phoenix , Arizona for the Respondent.
DECISION
RICHARD J. BOYCE , Administrative Law Judge. This
matter was tried in Phoenix , Arizona , August 4, 1983.
The charge was filed February 16, 1983 , by United Food
and Commercial Workers Union , Local 99R, AFL-CIO
(Local 99R). The complaint issued March 11, was
amended during the trial , and alleges that Arizona Pork
Products , Inc (Respondent ) has been in violation of Sec-
tion 8(a)(5) and ( 1) of the National Labor Relations Act
(the Act) since January 24, 1983, by refusing to recog-
nize Local 99R as the collective-bargaining representa-
tive of its production and maintenance employees.
Respondent asserts that it is under no duty to recog-
nize Local 99R , arguing that Local 99R "is not a succes-
Local 99R is and has been a labor organization within
the meaning of Section 2(5) of the Act. Local 448 was a
labor organization within the meaning of that section
until its merger into Local 99R as later described.
, III. THE ALLEGED MISCONDUCT
A. Facts
On February 5, 1982, Local 448 petitioned the NLRB
to conduct an election among Respondent's production
and maintenance employees.' Later that same day, Re-
spondent and Teamsters entered into a 3-year contract
covering the employees embraced by the petition. The
Regional Director, in his Decision and Direction of
Election, rejected the contention advanced by Respond-
ent and Teamsters , as an intervenor in the representation
proceeding, that the contract was a bar to the processing
of the petition. The Board denied their requests for
review of the Decision and Direction of Election, ob-
serving that they "raise[d] no substantial issues warrant-
ing review."
An election, with both Local 448 and Teamsters on
the ballot, followed on June 10. Because neither received
a majority, a runoff election was held August 13. Team-
sters received a majonty, but the Regional Director sus-
tained Local 448's objection that an inappropriate voter-
eligibility date had been used in view of the substantial
expansion of the complement since the first election. Re-
spondent's request for review of the Regional Director's
determination was denied by the Board on the ground
that it "raise[d] no substantial issues warranting review."
A second runoff election was held December 17. A
majority voted for Local 448; no objections were filed;
and on December 28 Local 448 was certified as the Em-
' Case 28-RC-4087
279 NLRB No. 167
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer's bargaining representative.2 The unit then con-
sisted of about 80 employees.
Meanwhile, Local 448 had become united with Local
99R, the surviving entity carrying the name of the latter.
Their respective parent organizations , Amalgamated
Meat Cutters and Butcher Workmen of North America
and Retail Clerks International Association , had merged
in 1979, becoming the United Food and Commercial
Workers International Union and making the two locals
sister organizations under a common International consti-
tution.
The merger, as it was called, of Locals 448 and 99R
was preceded by elections in October 1982 among em-
ployees in the various bargaining units represented by
the locals , members and nonmembers alike . The tally
among Local 448-represented employees was 196 for an
16 against the merger; and, among those represented by
Local 99R, 183 for and 3 against. Only a small fraction
of those eligible to vote did so.3 Employees of Respond-
ent did not vote because Local 448's status as their repre-
sentative was as yet unestablished. They apparently were
not informed of the merger before the final NLRB elec-
tion.
On October 29, in the aftermath of the merger elec-
tions, the presidents and the secretary-treasurers of the
two locals executed a merger agreement; and, by letter
to Local 448 dated December 1, the president and the
secretary-treasurer of the parent International stated the
International 's approval of it, effective as of that date.
A ballot addressing the merger issue was mailed Octo-
ber 12 to each Local 448-represented employee of
known whereabouts. With each ballot were two enve-
lopes. One, a so-called carrier envelope, bore Local 448's
address, the return address of the voter, and a line for
the voter's signature, which had to be affixed to validate
the ballot within. The other was for insertion of the
ballot, after which it was to be sealed and in turn insert-
ed in the carrier envelope for mailing . To ensure ballot
secrecy, the inner envelopes were unmarked and were
separated from the carrier envelopes before being
opened.
Accompanying each ballot, as well, were a copy of
the proposed merger agreement and a note from Local
448's president, Dennis Davison, stating:
Before you is the proposed Merger Document
that would, if ratified merge your Local Union to-
gether with our sister U.F.C.W. Local 99R.
The purpose of the proposed merger is to
strengthen our combined Locals with a merged
membership of approximately 6,500 members. It
would mean greater strength in collective-bargain-
ing, and combined resources will generate more fre-
2 The Certification of Representative contains this unit description
All full-time and regular part-time production and maintenance
employees and leadmen employed at the Employer's place of busi-
ness located at 2600 South Seventh Avenue, Phoenix, Arizona, ex-
cluding all office clerical employees , hog handlers , hog buyers, fore-
men, guards and supervisors as defined in the Act.
It is concluded that this is an appropriate unit for purposes of the Act
8 Although the record does not disclose the number of eligible voters,
it does reveal that Local 448 had about 1000 members and Local 99R
about 5500 at the time of the merger
quent and effective service to the membership, as
well as streamlining Local Union administration
through the elimination of duplication.
Please read carefully the enclosed Merger Docu-
ment and mark your ballot accordingly. Ballots
must be returned no later than OCTOBER 27, 1982.
Your Executive Board has recommended the
merger and urges you to vote for its approval.
The returned ballots were tallied by Local 448 function-
aries . There was no independent oversight.
On October 11, the day before the Local 448 ballots
were sent out, meetings were held in Yuma, Phoenix,
and Flagstaff during which copies of the merger docu-
ment were distributed and officials of Local 448 dis-
cussed the contemplated action with those represented
by it caring to attend. These meetings were preceded by
notices posted between September 27 and October 2 in
stores and plants where Local 448-represented employees
work. Each notice stated that a merger referendum was
to be conducted, that ballots would be mailed out Octo-
ber 12 and were to be returned not later than October
27th, and that the local's executive board had approved
the merger agreement and recommended employee ap-
proval. Each notice further stated:
We do not have all bargaining unit employees'
address, therefore, anyone desiring to vote on the
merger without an address on file should contact
the Union office immediately for a ballot and
Merger Agreement.
The address and telephone number of Local 448 were
then set forth.
The notices posted in the Phoenix and Flagstaff areas
also stated that there would be meetings October 11, at
designated locations and times, "to discuss the proposed
merger." The notices posted in the Yuma area contained
no such meeting notice, but a letter from the local mailed
to the Yuma-area employees at the time of the postings
contained that information.
Those represented by Local 99R voted not by mail,
but during meetings at 11 different sites from October 18
to 28. The record is sparse regarding the procedure.4
The merger agreement provided, among other things,
that the surviving organization would operate under the
name of Local 99R; that the "separate existence of .. .
Local 448 shall be terminated" as of the effective date of
the merger (except that its executive board "shall there-
after remain in existence for the time necessary and for
the sole purpose of carrying out" the merger agreement);
that the existing bylaws of Local 99R would be the
bylaws of the surviving organization; that all Local 448
4 Dennis Davison, premerger president of Local 448 and secretary-
treasurer of the merged entity, testified that the Local 99R constitution
contained no provision for a mail ballot , that Local 99R followed its
"customary and usual election procedure ," that he believed copies of the
merger document were distributed to Local 99R-represented employees
either before or during the meetings in which they voted, and that he
"would have to assume " that secret-ballot procedures were observed
Davison seemingly was testifying from supposition rather than certain
knowledge in these respects
ARIZONA PORK PRODUCTS
"books, records, and all .. . real and personal property
and . . . other assets . . of whatever nature . . . shall
be vested in" Local 99R; that Local 99R would "assume
all obligations of Local 448, "including collective-bar-
gaining obligations"; and that all "bargaining rights and
certifications" running to Local 448 had originally been
named as party thereto."
The merger agreement also provided that "the dues
structure for the former Local 448 members shall remain
as it is," and "members in good standing of Local 448
"shall become and remain members in good standing of
the successor Local Union without payment of any initi-
ation or transfer fee"; that the president of Local 99R
"shall be the President and Executive Officer or' the
surviving organization; that the president of Local 448
"shall become the Secretary-Treasurer"; that the secre-
tary-treasurer of Local 99R "shall become Executive
Vice President"; and that "the Executive Board of the
successor Local . . . shall consist of the president, Re-
corder and 14 Vice Presidents from . . . Local 99R and
the Secretary-Treasurer and 4 Vice Presidents from
Local 448."
Davison credibly testified that, as secretary-treasurer
of the surviving Local, his duties include "contract ad-
ministration and contract negotiations," including griev-
ance handling on behalf of employees formerly repre-
sented by Local 448; and that, as president of Local 448,
he had "exactly the same" duties with regard to Local
448-represented employees.
By letter to Respondent dated January 18, 1983, Davi-
son, as secretary-treasurer of Local 99R, requested con-
tract negotiations concerning the employees covered by
the certification that had issued in the name of Local
448. Respondent's lawyer rejected the request by letter
dated January 24 stating:
It is our client's position that the contract they have
with the Teamsters Union is a valid agreement
which they intend to live up to and therefore they
see no need for bargaining with your Union at this
time.
B. Discussion
Respondent's challenges to Local 448's certification-
that the underlying petition should have been dismissed
because of Respondent's contract with Teamsters and
that, in any event, the first runoff election, in which
Teamsters received a majority, was valid, making the
second runoff election "contrary to law"-are rejected.
Those issues, having been raised and resolved in the rep-
resentation proceeding, cannot be relitigated in this "re-
lated subsequent unfair labor proceeding," there being no
newly discovered or previously unavailable evidence
bearing on them.5
5 Board Rules and Regulations , Sec 102 67(f) The Board defines the
phrase "related subsequent unfair labor practice proceeding" to mean "an
8(a)(5) case based on certification in a representation proceeding ." Serv-
U-Stores, 234 NLRB 1143, 1144 (1978) See also Escambia River Electric
Cooperative, 265 NLRB 973 (1982), St Mary's Infant Home, 255 NLRB
1139, 1140-1141 (1981); General Marine Transport Corp, 238 NLRB 1372,
1376 (1978) The present case falls squarely within that definition
1269
Respondent's remaining contention-that Local 99R
.,is not a successor to . . the union purportedly certi-
fied" and thus is not entitled to the benefits of the certifi-
cation-likewise is rejected. The Board has determined
that the United Food and Commercial Workers Interna-
tional Union is "a continuation of" the two organizations
from which it derived, "succeed[ing] to the representa-
tional rights of both unions."6 The present merger agree-
ment appears to be patterned after, or at least is substan-
tially similar to, that governing the merger which cre-
ated the parent international, beyond which Local 448's
erstwhile president, as secretary-treasurer of the surviv-
ing local, continues to serve those formerly represented
by Local 448 much as he did before. In addition, the
procedure underlying approval of the merger agreement
by the Local 448-represented employees plainly com-
ported with the requisite standards of due process.'
It is concluded, therefore, that Local 99R, as constitut-
ed since December 1, 1982, is a continuation of Local
448 and the former Local 99R, properly succeeding to
the representational rights of Local 448, including the
certification on which Local 99R based its request that
Respondent bargain.8
Respondent's rejection of that request consequently
violated Section 8(a)(5) and (1) as alleged.
CONCLUSION OF LAW
By refusing to recognize and bargain with Local 99R,
as found herein, 'Respondent violated Section 8(a)(5) and
(1) of the Act.
On these findings of fact and conclusion of law and on
the entire record, I issue the following recommended"
ORDER
The Respondent, Arizona Pork Products, Inc., Phoe-
nix, Arizona, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with United Food and Commercial Workers
Union, Local 99R, AFL-CIO as the exclusive bargaining
representative of its employees in the following appropri-
ate unit:
All full-time and regular part-time production and
maintenance employees and leadmen employed at
the Employer's place of business located at 2600
South Seventh Avenue, Phoenix, Arizona; exclud-
ing all office clerical employees, hog handlers, hog
e Warehouse Groceries Management , 254 NLRB 252 , 256 (1981)
Compare State Bank of India, 254 NLRB 1108 (1982)
a That Respondent's employees did not vote on the merger issue does
not invalidate this conclusion-"such participation or ratification is not
required " American Enka Co, 231 NLRB 1335, 1337 (1977)
a All outstanding motions inconsistent with this recommended Order
are denied If no exceptions are filed , as provided by Sec . 102 46 of the
Board 's Rules and Regulations, the findings , conclusions, and recom-
mended 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
purposes
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
buyers , foremen , guards and supervisors as defined APPENDIX
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, bargain with the above-named labor
organization as the exclusive representative of all em-
ployees in the aforesaid appropriate unit with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding is reached,
embody such understanding in a signed agreement. 10
(b) Post at its Phoenix, Arizona facility copies of the
attached notice marked "Appendix."" t Copies of the
notice, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable 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.
10 So that the employees in the appropriate unit will have the services
of their chosen bargaining representative for the minimum time provided
by law, the period of certification shall be construed as beginning on the
date Respondent starts to bargain in good faith with Local 99R. St
Mary's Infant Home, 255 NLRB 1139, 1142 (1982), Mar-Jac Poultry Co.,
136 NLRB 785, 786-787 (1962)
11 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-
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 "
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to bargain collectively concern-
ing rates of pay, wages, hours, and other terms and con-
ditions of employment with United Food and Commeri-
cal Workers Union, Local 99R, AFL-CIO as the exclu-
sive bargaining representative of our employees in the
following appropriate unit:
All full-time and regular part-time production and
maintenance employees and leadmen employed at
our place of business located at 2600 South Seventh
Avenue, Phoenix, Arizona; excluding all office cler-
ical employees, hog handlers, hog buyers, foreman,
guards and supervisors as defined in the Act.
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.
WE WILL, on request, bargain with the above-named
Union, as the exclusive representative of all employees in
the bargaining unit described above, with respect to
rates, pay, wages, hours, and other terms and conditions
of employment, and, if an understanding is reached,
embody the understanding in a signed agreement.
ARIZONA PORK PRODUCTS, INC.