McKesson Wine & Spirtis Co.

National Labor Relations Board - Board Decisions

Sep 20, 1977

232 N.L.R.B. 210 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McKesson Wine & Spirits Co., A Division of
Foremost-McKesson, Inc. and General Teamsters
Local 137, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Petitioner. Case 20-AC-
31
September 20, 1977
DECISION ON REVIEW AND ORDER
By CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing' was held before a Hearing Officer of the
National Labor Relations Board. After the hearing
and pursuant to National Labor Relations Board
Rules and Regulations, Series 8, as amended, the
Regional Director for Region 20 issued a Decision
and Order dismissing the petition. Petitioner filed a
request for review, 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 rulings of the Hearing
Officer made at the hearing and finds they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
On July 6, 1976, Teamsters, Chauffeurs, Ware-
housemen and Helpers Local 684, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (herein IBT
Local 684), was certified as the bargaining represen-
tative of an appropriate unit of clericals employed by
the Employer.2 Subsequent to the election held on
February 19, 1976, but prior to the issuance of the
certification, IBT Local 684 and Petitioner merged
under the procedures established by the Internation-
al, with Petitioner being the surviving Local. By letter
dated July 28, 1976, Frank Wood, the secretary-
treasurer of Petitioner, notified the Employer of the
merger and that it would be taking IBT Local 684's
place in representing these employees.
The Employer refused to recognize Petitioner as a
successor to IBT Local 684 and on August 13, 1976,
filed an RM petition. Petitioner then filed a petition
in Case 20-AC-29, seeking an amendment to the
certification. The cases were consolidated, and both
petitions were dismissed on September 30, 1976-the
I Teamsters, Chauffeurs, Warehousemen & Helpers Local 684 is the
Intervenor in this proceeding.
2 The unit description was:
RM because an election had been held in the same
unit within the previous year and the AC because
there was no evidence of employee participation in
the merger decision. The instant case is based on a
second AC petition filed by Petitioner, in which it
claims that the unit employees have since been
afforded the opportunity to express their desires with
respect to the change in representative.
The Regional Director found, in accordance with
the contentions of the Employer and Intervenor, that
Petitioner is not a successor to IBT Local 684,
essentially because she found that, rather than asking
the unit employees their desires with respect to the
merger, they were merely informed of the merger,
after the fact, and asked at that time whether they
wished to have Petitioner represent them. The
Regional Director also found that Intervenor, con-
trary to its contentions, 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 Petitioner is a successor to IBT Local
684 and shall amend the certification accordingly.
In her decision, the Regional Director has fully set
out the facts surrounding the merger of Petitioner
and IBT Local 684, including the creation of
Intervenor, as well as the procedure used by
Petitioner 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
Petitioner. The merger was discussed by members of
both boards, and on July 13, 1976, the proposal was
approved by the International, which determined
that Petitioner 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's expressing dissent.
By virtue of the merger, all of the approximately 900
members of 684 were transferred to Petitioner and
issued cards from that Local. Although the member-
ship of the two Locals were not given an opportunity
to voice their approval or disapproval of this action,
it appears that the merger was in accordance with the
International's constitution and has been duly
recorded with the Labor Department.
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
All office clerical employees employed at the Employer's place of
business in Eureka, California; excluding all other employees, guards
and supervisors as defined in the Act.
232 NLRB No. 39
210
McKESSON WINE & SPIRITS CO.
Petitioner 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 denied these protest, affirming the
validity of the merger under its procedures. However,
this dissenter group coalesced into an independent
union, adopting its own constitution and bylaws and
electing its own officers. This independent, designat-
ed as Teamsters, Chauffeurs, Warehousemen &
Helpers, Local 684 (Intervenor), 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 Petitioner has the same national union
affiliation as the certified Local does and has the
same negotiation and grievance procedures: the
same elected official has negotiating authority; and
the offices, insignia, membership and executive
meeting schedules, mailing address, dues and initia-
tion fees, and publications are the same as those of
the certified Local. In contrast, Intervenor has a
newly adopted and different constitution from the
certified Local and, while two of its officers were
formerly officers of the defunct local, the rest of its
structure is essentially different.
With respect to Petitioner's efforts to obtain
ratification of the merger from the unit employees,
the Regional Director found, in accordance with the
record, that on September 15, 1976, Joe Davis,
previously secretary-treasurer of IBT Local 684, who
now holds the office of business representative with
Petitioner, gave five notices to a unit employee, who
in turn left a notice on each unit employee's desk.
The notice announced a meeting to be held at a local
inn on September 21, 1976, for the purpose of
conducting a vote among unit employees to deter-
mine whether they approved the merger. Only two of
the five unit employees appeared at the designated
time and place, 3 and both marked ballots in secret
which asked the question, "Are you in favor of being
represented by Teamsters Local 137?" The results
showed that both ballots were marked "Yes."
3 The notice, contained in the record, was a form prepared by the union
which was amended to specify the time and place of the meeting, which we
find sufficiently clear to constitute adequate notice. The record further
Although Intervenor argues that the notice of the
meeting was ambiguous as to time, place, and
purpose, and that the employees were not asked
whether or not they approved the merger, but only
whether they wished to be represented by Local 137
or no union, the Board has held, under similar
circumstances, that subsequent ratification by bar-
gaining unit employees of a previously accomplished
merger is a sufficient basis for granting an amend-
ment to a certification. Ocean Systemns, 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 Petitioner 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 no reason for not granting
Petitioner's request and shall therefore amend the
certification in Case 20-RC-13246 to reflect the
correct name of the certified Union. This amendment
of the certification is not to be considered as a new
certification or recertification.
ORDER
It is hereby ordered that the petition to amend the
certification filed by General Teamsters Local 137,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, be, and it hereby is, granted, and that the
Certification of Representative issued in Case 20-
RC-13246 be amended by substituting "General
Teamsters Local 137, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America" for "Teamsters,
Chauffeurs, Warehousemen and Helpers Local 684,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America."
shows that the meeting was delayed 10 to 15 minutes to allow time for late
arrivals. Finally, there is some indication in the record that those employees
who did not attend were otherwise occupied on personal matters.
211