Alexander Muss & Sons

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1330 (N.L.R.B. 1985)

1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steven Muss, Cynthia Muss Lawrence and Debbie
Muss Keshen, a Co-Partnership, d/b/a Alexan-
der Muss & Sons and Local 32B-32J, Service
Employees International Union, AFL-CIO and
Local 72, International Industrial Production
Employees Union, Party to the Contract
Tower Owners Incorporated, as alter ego and/or
Successor to Steven Muss, Cynthia Muss, Law-
rence Muss and Debbie Muss Keshen, a Co-
Partnership d/b/a Alexander Muss & Sons and
Local 32B-32J, Service Employees Internation-
al Union, AFL-CIO and Local 72, International
Industrial Production Employees Union, Party
to the Contract
Local 72, International Industrial Production Em-
ployees Union and Local 32B-32J, Service Em-
ployees International Union, AFL-CIO and Ste-
phen Muss, Cynthia Muss Lawrence and Debbie
Muss Keshen, a Co-Partnership, d/b/a Alexan-
der Muss & Sons, Party to the Contract. Cases
29-CA-9701, 29-CA-10754, and 29-CB-4908
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 9 July 1984 Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and Respondent Alexander Muss & Sons filed
a brief in response.
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
We agree with the judge that the Respondent
Employer acted lawfully when it withdrew recog-
nition from Local 32B-32J and recognized and exe-
cuted a collective-bargaining agreement with Local
72 as the representative of its unit employees.' In
doing so we rely on the fact that 15 of 17 of the
employees once represented by Local 32B-32J had
been on strike for over a year; that all the strikers
had been permanently replaced; and that 13 of 17
current employees had freely signed cards author-
izing Local 72 to represent them, but had given no
indication of support for Local 32B-32J. On these
facts, we agree that the Respondent Employer had
objective considerations sufficient to establish a
good-faith doubt of the incumbent Local 32B-32J's
majority status We also agree with the judge that
the Respondent, having lawfully withdrawn recog-
nition from the incumbent and no election petition
having been filed, was free to recognize an unas-
sisted and uncoerced majority union based on au-
thorization cards.2
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
2 Compare Signal Transformer Co, 265 NLRB 272 (1982), wherein an
election petition had been filed , thereby raising a question concerning
representation
Chairman Dotson and Member Dennis did not participate in RCA Del
Caribe . Inc, 262 NLRB 963 (1982 ), on which the Board relied in part in
Signal Transformer They express no view here on whethei RCA Del
Caribe was correctly decided or on the judge 's discussion of it
Member Hunter finds it unnecessary to pass on the judge 's discussion
of Laystrom Mfg Co, 151 NLRB 1482 (1965)
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge.
This case was tried in Brooklyn and New York, New
York, on September 19, 1984, and February 6, 1985. The
complaint in Cases 29-CA-9701 and 29-CB-4908 alleges
that Respondent Muss, the owner of Seacoast Towers,
has had a series of collective-bargaining agreements with
Local 32B-32J, that Local 32B-32J is the representative
of Muss' employees, that the employees began a strike on
February 5, 1981, which continues to the present, that
Muss recognized Local 72 on February 9, 1982, and
signed a collective-bargaining agreement with Local 72
on February 26, 1982, containing a union-security provi-
sion, that a real question concerning representation exist-
ed when the Local 72 contract was signed and that Re-
spondents Muss and Local 72 have violated Section
8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the
Act. The complaint in Case 29-CA-10754 alleges further
that Respondent Tower Owners Incorporated became
the owner of Seacoast Towers on July 5, 1983, that Muss
and Tower Owners are alter egos and that Tower
Owners is a successor of Muss. The cases were consoli-
dated on December 2, 1983.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by Muss and Tower Owners and by
Local 72, in April 1984, I make the following
FINDINGS OF FACT
LBACKGROUND
It is undisputed that Respondent Muss was engaged in
the operation of residential apartment buildings called
Seacoast Towers in Brooklyn, New York, and that it an-
nually derived gross revenues in excess of $500,000 and
purchased over $50,000, annually, indirectly in interstate
and foreign commerce.' Respondent Muss admits and I
i On July 5, 1983, Seacoast Towers was converted to cooperative
We note that this withdrawal, a necessary precursor to recognition of ownership and the buildings are now owned by Tower Owners Incorpo-
Local 72, was not specifically alleged as an unfair labor practice rated The implications of this conversion will be discussed below
274 NLRB No. 193
ALEXANDER MUSS & SONS
find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. It is
undisputed, and I find, that Local 32B-32J and Respond-
ent Local 72 are labor organizations within the meaning
of Section 2(5) of the Act
II. ALLEGED UNFAIR LABOR PRACTICES
A The Facts
Hyman Cohen is managing agent of Seacoast Towers.2
Cohen testified that the collective-bargaining agreement
between Seacoast Towers and Local 32B-32J expired
December 31, 1980 Collective-bargaining negotiations
were not fruitful and a strike of the employees began
February 5, 1981. At that time, all but 2 of the 17 unit
members walked off the job The last negotiations be-
tween Seacoast Towers and Local 32B-32J took place in
March 1981, in the presence of a mediator Since March
1981, the Union has made no demand for negotiations
and has not sought to represent employees in grievances
However, Seacoast Towers has received a few letters de-
manding pension and welfare fund payments from the
Union the last such request was received in March 1982,
at which time Cohen instructed the employer's attorneys
to respond that the Union was no longer the bargaining
agent for the employees.
Cohen testified that permanent replacements for the
employees were hired gradually beginning in April 1981;
there was a full complement of employees on the payroll
by October 1981. None of these new hires were former
striking employees
Cohen testified that Local 32B-32J picketed Seacoast
Towers until December 1981, at first picketing was for 7
days per week and then it was reduced to 3 or 4 days
beginning in fall 1981. Cohen's affidavit shows that after
this time, and until at least March 1982, picketing oc-
curred mainly for a few hours on Wednesdays. Occa-
sionally the pickets were in a car on a street not adjacent
to Seacoast Towers but in a location where anyone driv-
ing out of Seacoast Towers would necessarily see them.
In addition, certain Muss properties in Florida were
picketed from December 1981 to March 1982 in connec-
tion with the strike at Seacoast Towers in Brooklyn.
Cohen's affidavit states that when Lawrence Litman,
an agent of Local 72, first approached him in early Feb-
ruary 1982, about representing the employees, Cohen in-
formed him that there was a union on the premises and
that the Union was on strike. Litman told Cohen that he
had authorization cards from the employees, and Cohen
examined the cards. Cohen questioned some of the em-
ployees as to whether they had signed voluntarily They
replied that they had and that they wished coverage for
medical insurance benefits. Cohen recognized the Union
on February 1 i, 1982 A 3-year contract, providing an 8-
percent raise each year and certain other benefits, was
signed on February 26, 1982, with an effective date of
March 1.
Lawrence Litman, president of Local 72, testified as to
his efforts to organize the employees of Seacoast Towers
2 1 have supplemented Cohen's testimony with his affidavit given to a
Board agent on April i4, 1982
1331
and as to the negotiation of a collective-bargaining
agreement Since his testimony and affidavit are consist-
ent with Cohen's testimony, I shall not summarize them
I note, however, that Litman's affidavit states that Cohen
told him that "he had another union " Litman responded
that this was of no moment since there was no contract
with the other Union Litman never observed any pick-
ets at Seacoast Towers at any time according to both his
testimony and his affidavit
Serge Jean-Jacques is a business agent of Local 32B-
32J He had no responsibilities relating to Seacoast
Towers until March or April 1981, at which time he was
assigned to check the pickets at Seacoast Towers Jean-
Jacques testified that he checked the pickets 7 to 5 times
per week and saw two shifts of picketers, for a total of
8-10 picketers. They were near Seacoast Towers on 14th
Street In February 1982, a picketer told him there was
another union at Seacoast Towers He could not remem-
ber how many days a week his people were picketing
then, probably a minimum of 5 days. There were no spe-
cific days specified for picketing to take place At this
time, there was only one shift of pickets from 8 a.m to
3:30 or 4 p in. The men picketed on 14th Street, but their
cars were parked on 15th Street. They walked back and
forth and they all wore picket signs On September 19,
1983, there were four pickets- Laguerre, Alhouote, Bau-
lemon, and Little. All were employed before 1981. Jean-
Jacques paid picket money to the picketers every
Wednesday
Joseph Laguerre was employed at Seacoast Towers as
a doorman and went on strike in February 1981 He tes-
tified on direct examination that he has picketed up to
the day before the trial began. In 1981, there were 2
shifts per day for 7 days per week The picketing
changed to 6 hours per day for 5 days per week when
they heard from tenants that there was a new union at
Seacoast Towers. There were are four men picketing
with signs The pickets were on both 15th and 14th
Streets. Jean-Jacques came every day On cross-examina-
tion, Laguerre stated that for "a long time" the pickets
had been on 15th Street, that is in a location not adjacent
to Seacoast Towers However, they put picket signs on
poles on 14th Street near Seacoast Towers.
B. Discussion and Conclusions
Based on the testimony of all the witness and Cohen's
affidavit, I find that the striking employees were picket-
ing at Seacoast Towers at the time Local 72 was granted
recognition and a contract executed It seems that the
picketing was not as vigorous as it had been, but Cohen's
affidavit is clear that he knew there were Local 32B-32J
picketers still picketing when he recognized Local 72.
Cohen told Litman that there was a union and that it
was on strike. Moreover, Local 32B-32J had intermit-
tently made demands for fund contributions and pay-
ments up to March 1982.
The General Counsel urges that the Board's recent de-
cision in Signal Transformer Co., 265 NLRB 272 (1982),
is dispositive of the issues raised by this case The Gener-
al Counsel urges that a question concerning representa-
tion existed when Seacoast Towers recognized Local 72.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employer was aware of Local 32B-32J's claim to
represent the employees as the incumbent union, and
under these circumstances it could not recognize and
sign a contract with Local 72.
I note that no election was sought in this case. I note
further that there has been no allegation that ; aside from
the continuing claim of Local 32B-32J, there was any il-
legality in the recognition of Local 72 relating to the
signing of the cards or proof of majority.
In Bruckner Nursing Home, 262 NLRB 955 (1982), the
Board announced a new policy , departing from the Mid-
west Piping rule of strict,employer neutrality.3 The facts
in Bruckner were that two rival unions were attempting
to organize a unit of 125 employees . A card count re-
vealed that Local 1115 had obtained two authorization
cards, while Local 144 was determined to have cards
from 80 to 90 percent of the unit employees . The em-
ployer executed a contract with Local 144 and Local
1115 filed charges with the Board . The judge found that
Local 1115 had a "colorable claim" to representation
based on its continuous organizing efforts and the two
authorization cards, this constituted a question concern-
ing representation and the signing of the contract was
held to violate Section 8(a)(2) In reversing, the Board
set forth the difficulties of applying the Midwest Piping
rule a colorable claim is hard to define; the rule gives
minority unions time to organize; the circuit courts did
not approve of the rule , preferring instead a rule of the
"unassisted majority", and the rule frustrated employee
desires The Board held that it would henceforth not find
a violation in initial organizing campaigns where the em-
ployer recognizes an unassisted majority union before a
petition for election is filed The benefits of the new rule,
as enumerated by the Board, are that it is clear and that
a union with only minimal support cannot frustrate em-
ployee desires Finally, the Board cautioned that once a
petition is filed, the employer must maintain strict neu-
trality Where a petition is filed , dual authorization cards
have often been signed Further, once Board procedures
have been invoked, parties must avoid circumventing
them
In a companion case to Bruckner, the Board decided
RCA Del Caribe, Inc., 262 NLRB 963 (1982). In this
case, the employer and the IBEW were signatories to a
contract expiring in 1975 . Negotiations for a successor
agreement began in 1974, these were not successful and a
strike was conducted from January 9 to February 26,
1975 On January 27, 1975, the Independent Union filed
a representation petition and the employer thereafter re-
fused to negotiate After the IBEW obtained a majority
of signed cards, negotiations resumed and a new contract
was signed February 26 between the employer and the
IBEW . In deciding the unfair labor practice case that re-
sulted, the Board stated that the rule in Shea Chemical'
requiring strict neutrality and a cessation ' of bargaining
once an outside union files a petition was contrary to the
presumption of continuing majority status of an incum-
bent . Instead, the Board held, the mere filing of a repre-
sentation petition should not require strict neutrality
3 63 NLRB 1060 (1945)
4 121 NLRB 1027 (1958)
toward the incumbent The employer may still bargain
with the incumbent unless it withdraws recognition
based on "other objective considerations ." In this way,
the incumbent will not be artificially stripped of its status
and industrial peace and stability will not be destroyed.
The Board pointed out that the ultimate fate of the two
unions and the new contract would depend on the results
of the election . With respect to the question of objective
considerations , the Board cited Celanese Corp, 95 NLRB
664 (1951) (union loss of economic strike constitutes ob-
jective evidence that replacements were not union mem-
bers), and Laystrom Mfg. Co., 151 NLRB 1482 (1965)
(new employees are presumed to support the union in
proportion to old employees unless there is independent
evidence that the new employees do not support the
union). .
In Signal Transformer, the case relied on by the Gener-
al Counsel , bargaining for a new contract between the
employer and the IUE failed because the membership re-
jected the proposed settlement . A strike ensued during
which the unit employees removed the IUE business
agent, called in the Teamsters , and changed all their
picket signs to mention the Teamsters instead of the
IUE. The Teamsters Union filed a representation peti-
tion . The employer recognized the Teamsters upon proof
that 124 out of the 130 unit employees had withdrawn
from the IUE and 118 of the employees had signed cards
for the Teamsters . Relying on the RCA Del Caribe case,
supra, the Board held that it was not a violation to with-
draw recognition from the incumbent in good faith
where the employer had objective evidence that 124 of
the 130 unit employees had repudiated the incumbent
IUE. However, the Board held that it was a violation to
recognize the Teamsters because a valid representation
petition had been filed.
In the instant case , the strike began on February 5,
1981. Two of the 17 unit employees did not strike. By
October 1981 the Employer had lawfully replaced the
striking employees . On February 26, 1982, when Sea-
coast Towers recognized Local 72, it had objective evi-
dence that its employees did not support Local 32B-32J:
The two oldest employees had never joined the strike
and 13 of the 17 unit employees had just signed cards for
Local 72. Thus, although Local 32B-32J was still assert-
ing a claim by picketing sporadically, it was not a viola-
tion for the Employer to withdraw recognition from
Local 32B-32J based on RCA, and Signal Transformer.
Nor do I find that it was a violation for the Employer
to recognize Local 72 and conclude a collective-bargain-
ing agreement containing union -security provisions. No
representation petition had been filed , so the neutrality
rule of Bruckner, RCA, Signal Transformer, was not in-
voked. Moreover , the employer 's actions in the instant
case vindicated the policies enunciated in Bruckner and
RCA Those cases made it clear that the Board will
foster the employees' choice of bargaining representative.
Here, 13 of the 17 employees favored Local 72 and none
had given any sign that they favored Local 32B-32J.
The Board in the two above-cited cases also strongly fa-
vored a rule promoting industrial stability . Here , the rec-
ognition of Local 72 and the subsequent signing of the
ALEXANDER MUSS & SONS
contract established the representation status of the unit
and gave the employees the benefits they had lacked and
had been seeking when they contacted Local 72 The ex-
istence of a contract providing wage rates and regular in-
creases, various benefits, and a means of resolving dis-
putes must certainly be seen as promoting industrial
peace and stability.
C. Status of Tower Owners
Since I have found that no unfair labor practices have
been committed, it is not necessary to decide the allega-
tions of the consolidated complaint relating to the status
of Tower Owners.
CONCLUSIONS OF LAW
I Respondent Alexander Muss & Sons is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
1333
2. Local 32B-32J Service Employees International
Union, AFL-CIO and Local 72 International Industrial
Production Employees Union are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondents Muss, Tower Owners, and Local 72
did not violate the Act as alleged in the complaint
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed5
ORDER
The complaint is dismissed in its entirety.
5 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
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 pur-
poses