F. W. Woolworth Co.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1287 (N.L.R.B. 1981)

F. W. WOOLWORTH CO.
F. W. Woolworth Co. and United Food & Commer-
cial Workers International Union, AFL-CIO,
Local 568. Case 24-CA-4514
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on May 19, 1981, by United
Food & Commercial Workers International Union,
AFL-CIO, Local 568, herein called the Union, and
duly served on F. W. Woolworth Co., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 24, issued a complaint on June 5,
1981, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge and the complaint and notice
of hearing before an administrative law judge were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on or about
July 27, 1980, Retail Clerks Union, Local 552, af-
filiated with United Food & Commercial Workers
International Union, AFL-CIO, herein called
Local 552, merged with the Union and since that
date the Union has been the successor to Local
552; that, on or about July 11, 1980, a majority of
Respondent's employees in the appropriate unit' by
a secret-ballot election selected Local 552 as their
representative for the purpose of collective bar-
gaining; that on or about April 15, 1981, the Re-
gional Director certified Local 552 as such repre-
sentative; and that at all times since that date the
Union, as successor to Local 552, has been, and is,
the exclusive representative of the employees in the
above unit for the purpose of collective bargaining.
In addition, the complaint alleges that, commenc-
ing on or abut May 13, 1981, and at all times there-
after, Respondent has refused, and continues to
date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative,
although the Union has requested and is requesting
it to do so. On June 16, 1981, Respondent filed its
answer to the complaint admitting in part, and
()fficial nolice i taken f he record in h rpretcllltalltl proceeding,
Case 24-RC-6466. a the tcrnl "record" i defined in Scc 1o2 6h8 and
102
9
Ig) of he Board's Rules and Regulation,. Serie 8,. a; .intled See
1.' I:llir~rn. In.. Ihh NLRB 938 (1967), enfd 398 F2d 683 (4th
Cir 196): (;,old,c A- 1rlgc G o. , 167 Nl.RB 151 (9h7). cend 415
F 2d 26 (5th Cir 19,9): Ili rtLprc C, I, hl.,, 269 1: Supr 573 (I))C
Va 1967): i-lhItrr (orp. 1h4 N.RI) 378 (1967), ellltd 37 1:2d 91 (Ilh
Cir 1968): See 9(d) of the NI RA., a; amended
denying in part, the allegations in the complaint,
and alleging certain affirmative defenses.
On August 3, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and attachments including,
inter alia, an affidavit from an International repre-
sentative of the United Food & Commercial Work-
ers International Union, asserting that on July 27,
1980, a merger agreement between Local 552 and
the Union was approved by the membership of
both labor organizations and that the Union
became Local 552's successor. Attached to this
statement is a purported copy of the merger agree-
ment. Subsequently, on August 7, 1981, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment
should not be granted. Respondent thereafter on
September 9, 1981, filed a response to the Notice
To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, Respondent
denies, inter alia, that a merger between the Union
and Local 552 occurred, and asserts as affirmative
defenses: (1) the Union is not a successor to Local
552; (2) the employees were precluded from voting
on whether they wished to be represented by the
Union; and (3) the Union and Local 552 willfully
concealed the intended merger at the time of the
election so as to render the election in Case 24-
RC-6466 a nullity. Respondent also affirmatively
pleads, inter alia, (4) that the certification in Case
24-RC-6466 is invalid for the reasons set forth in
Respondent's objections, request for review, and
motion for reconsideration; and (5) the action of
the Regional Director in attempting to substitute
one alleged labor organization for another in the
complaint is an improper attempt to amend a certi-
fication, contrary to Section 102.60 of the Board's
Rules and Regulations, Series 8, as amended.
The General Counsel asserts that Respondent's
answer, including its affirmative defenses, raises no
real issues which have not been litigated and deter-
mined by the Board in Case 24-RC-6466. With re-
spect to Respondent's affirmative defenses relating
to successorship, the General counsel asserts that
such issues do not require an evidentiary hearing in
light of the affidavit by the International repre-
sentative of the Union. which was attached to the
258 NLRB No. 176
1287
DECISIONS OF NATIONAL LABOR RELATIONS BO)ARD
Motion for Summary Judgment, asserting that a
merger took place between the Union and Local
552 and claiming to authenticate a document enti-
tled "Resolution and Conditions of Merger Be-
tween UFCW Local No. 552 and UFCW Local
No. 568." In response, Respondent reiterates the af-
firmative defenses raised in its answer to the com-
plaint, and maintains that material issues of fact
exist concerning the alleged merger which were
not litigated in the underlying representation pro-
ceeding. Thus, Respondent notes that in that pro-
ceeding, including through certification, Local 552
was designated and treated by the Board as the
only labor organization involved. In this connec-
tion Respondent contends that an inference is war-
ranted that Local 552 and/or the Union deliberate-
ly withheld information from the Board concerning
the alleged merger because, despite Respondent's
questioning in its objections to the election, wheth-
er such a merger was contemplated, both labor or-
ganizations remained silent. Respondent argues
that, since merger was a subject clearly within the
two Unions' knowledge, their silence on the matter
misled the Board into unknowingly issuing a certi-
fication to a defunct union, i.e., Local 552; that,
therefore, the certification of Local 552 should be
revoked and the complaint dismissed.
A review of entire record, including that in Case
24-RC-6466, reveals that the issue of successorship
was never litigated in the underlying representation
proceeding. Thus, the Employer's objections to the
election conducted on July 11, 1980, contested the
designation of Local 552 as the Petitioner, on the
ground that Local 552 intended to merge with the
Union. However, the Regional Director's report of
August 27, 1980, overruled the objections finding
that Local 552's name on the ballot accurately re-
flected the intended collective-bargaining agent. On
March 2, 1981, the Board denied the Employer's
request for review, with Member Jenkins dissent-
ing. On March 30, 1981, the Board, with Member
Jenkins dissenting, denied the Employer's motion
for reconsideration and on April 15, 1981, Local
552 was certified as the exclusive representative of
Respondent's employees in the appropriate unit.
On the basis of the foregoing, it is clear that
while the issue of an intended merger between
Local 552 and the Union was raised, there was no
consideration of the actual merger and the issue of
the Union's successorship in the prior representa-
tion proceeding. In these circumstances, and in
light of Respondent's assertions, we find Respond-
ent has raised material issues of fact concerning the
merger issue which cannot be disposed of without
a hearing. As Respondent has raised a litigable
issue, the granting of a Motion for Summary Judg-
ment under Section 102.60 of the Board's Rules
and Regulations, Series 8, as amended, is not ap-
propriate. Accordingly, we deny the motion.
ORDER
It is hereby ordered that the General Counsel's
Motion for Summary Judgment in the above-cap-
tioned proceeding be, and it hereby is, denied.
IT IS :URIIIE:R ORI)ERED that the instant case be
remanded to the Regional Director for Region 24
for further appropriate action.
1288