Cooke, Walter B., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1982

262 N.L.R.B. 626 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walter B. Cooke, Inc. and J. Tara Kluge. Case 2-
CA-16979
June 30, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On November 30, 1981, Administrative Law
Judge Steven B. Fish issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and the Charging Party filed exceptions and sup-
porting briefs, and Respondent filed cross-excep-
tions, a supporting brief, and a brief in answer to
the General Counsel and the Charging Party.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect, Standard Dry Wall Prod-
uct4 Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
a We correct a minor error by the Administrative Law Judge. The
Administrative Law Judge erroneously stated that the General Counsel
and the Charging Party had alleged joint-employer status between Cooke
and the trade houses of Pyramid and Ruggiero only with respect to those
employees at Pyramid and Ruggiero who had been formerly employed at
Cooke. In fact, the General Counsel and the Charging Party claimed that
the entire operations of Pyramid and Ruggiero were conducted as joint
employers with Respondent Cooke. They limited, however, the applica-
tion of their requested remedy to former Cooke employees at the Pyra-
mid and Ruggiero establishments.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge: Pursuant
to charges filed on December 28, 1979,' by J. Tara
I All dates hereinafter referred to, unless otherwise indicated, refer to
1979.
Kluge, herein called the Charging Party, the Regional
Director for Region 2, issued a complaint and notice of
hearing on May 27, 1980. The complaint alleges, inter
alia, that Walter B. Cooke, Inc., herein called Respond-
ent, violated Section 8(a)(1) and (3) of the National
Labor Relations Act as amended, herein called the Act
by laying off some 19 employees, and subcontracting
work formerly performed by these employees, in order
to obtain economic relief from the obligations of the col-
lective-bargaining agreement then in effect between Re-
spondent and Division 100, Local 144, Hotel, Hospital,
Nursing Home and Allied Health Service Union, Service
Employees International Union, AFL-CIO, herein called
the Union or Local 144, thereby engaging in conduct in-
herently destructive of employee rights.
On December 31, 1980, the Regional Director issued
an order amending complaint, alleging various individ-
uals employed by Respondent to be supervisors and
agents within the meaning of the Act, and alleging that
Respondent subcontracted the work formerly done by its
employees to funeral trade houses.
The hearing was opened before me on January 19,
1981. During opening statements the General Counsel al-
leged that he intended to prove that two of the trade
houses, to whom Respondent subcontracted certain of its
work, were in fact joint employers with Respondent of
these employees. 2 Respondent objected to proceeding
further with the hearing of the case, on the grounds that
the General Counsel failed to serve or otherwise notify
either Pyramid or Ruggiero of these proceedings, and
that these parties should be notified in order to be able to
protect whatever interest they may have in the outcome
of the hearing.
Both the General Counsel and the Charging Party re-
sponded by waiving any claim of any kind of relief or
finding of liability against Pyramid or Ruggiero as a
result of their alleged joint employer status with Re-
spondent. In view of that position, I denied Respondent's
request to adjourn the hearing in order to serve these al-
leged joint employers. The hearing then proceeded, and
was heard on January 19-23 and on March 2-3, 1981. s
Briefs have been received from Respondent, the Gen-
eral Counsel, and the Charging Party, and have been
duly considered. Upon consideration of the entire record
and my observation of the demeanor of witnesses, I
make the following:
' These trade houses are Pyramid and Ruggiero Funeral Services,
herein called Pyramid and Ruggiero respectively.
a Insofar as Respondent contended that it was prejudiced by the failure
to serve Pyramid and Ruggiero, I find that the 6-week interval between
January 23 and March 2, when Respondent presented its case, was more
than sufficient time for them to have contacted officials of Pyramid or
Ruggiero, if it felt it was necessary to dispute any testimony of the Gen-
eral Counsel's witnesses pertaining to the joint employer issue. In fact, as
will be seen below, George Amato, Respondent's Vice President who did
testify to this issue essentially confirmed the testimony of the General
Counsel's witnesses with respect to factual matters bearing on the joint
employer status of Respondent and Pyramid and Ruggiero. Thus Re-
spondent was not deprived of due process by the failure to serve Pyra-
mid or Ruggiero.
262 NLRB No. 74
626
WALTER B. COOKE, INC.
FINDING OF FACT
I. JURISDICTION
Respondent, a New York corporation, is engaged in
the business of providing funeral and related services,
with an office and place of business in New York, New
York. Annually, Respondent derives gross revenues from
its operations in excess of $500,000, and purchases goods
and materials valued in excess of $50,000 directly from
sources located outside the State of New York. Respond-
ent admits and I so find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. It is also admitted and I so find that Local
144 is a labor organization within the meaning of Section
2(5) of the Act.
11. THE FACTS
A. Prior Charges
On July 6, 1979, Local 144 filed charges against Re-
spondent in Case 2-CA-16572, alleging in substance that
Respondent violated Section 8(a)(1), (3), and (5) of the
Act by terminating the employment of its employees on
or about June 29, 1979, because of their membership and
activities on behalf of Local 144, and by refusing to bar-
gain collectively with the Union. On the same day,
Charging Party Kluge filed a charge in Case 2-CA-
16571, alleging that Respondent violated Section 8(a)(l)
and (3) of the Act by laying off 19 named employees be-
cause they are members of Local 144.
There is no dispute that these prior charges dealt with
the same matters involved in the current charge heard
before me.
On August 31, the Acting Regional Director for
Region 2 issued a letter refusing to issue complaint on
Local 144's charge, reading as follows:
Dear Sir:
The above-captioned case charging a violation
under Section 8 of the National Labor Relations
Act, as amended, has been carefully investigated
and considered.
As a result of the investigation it does not appear
that further proceedings on the charge are warrant-
ed.
The evidence does not tend to establish that the
above-named Employer violated the National Labor
Relations Act as alleged by you. It appears from the
evidence adduced in the investigation that Walter
B. Cooke, Inc., (hereinafter, Cooke) in or about
May 1979 determined to reduce its work force and
to subcontract out certain work to the funeral trade
services. It further appears that this decision was
based on economic conditions and not because of
any discriminatory motives which could be deemed
to be violative of the Act. It further appears that, in
or about May 1979, Cooke notified and had discus-
sions with the Union concerning the above decision.
Thereafter, on June 29, 1979, Cooke reduced its
work force by laying off about 18 of its employees.
It appears that in implementing its decision Cooke
complied with the seniority and subcontracting pro-
visions of its collective-bargaining agreement with
the Union. No evidence was adduced to establish
that the layoffs were motivated because of the em-
ployees' membership in and activities on behalf of
the Union. Further, the evidence does not tend to
establish that Cooke or any other Employer in-
volved herein violated the Act in any other manner
encompassed by your charge. I therefore am refus-
ing to issue a complaint in this matter.
No appeal was filed by Local 144 of this action by the
Region.
Also on August 31, the Region approved the with-
drawal of the charge filed by Kluge in Case 2-CA-
16571. 4
B. Respondent's Operations
Respondent, a subsidiary of Service Corporation Inter-
national, herein called SCI, owns and operates 10 funeral
chapels in New York City.5 Each chapel is supervised
by a manager who reports to George Amato, vice presi-
dent of Respondent. Donald Campbell was at the time of
the events in question vice president of SCI's eastern
region, with responsibility for overseeing the operations
of 50 SCI corporations in the eastern portion of the
country, involved in various aspects of the funeral indus-
try.
Respondent is a member of the Metropolitan Funeral
Director's Association, Inc., herein called MFDA, an
employer association. For a number of years, Respond-
ent through MFDA has recognized Local 144 as the col-
lective-bargaining representative of certain of its employ-
ees at all 10 of its locations. A collective-bargaining
agreement effective from October 9, 1976, to October 9,
1979, between MFDA and Local 144, provides for rec-
ognition of all licensed funeral directors, embalmers, un-
dertakers, registered residents and registered trainee fu-
neral directors who perform duties encompassed by their
licenses, excluding supervisors, proprietors, corporate of-
ficers, and principal stockholders of funeral establish-
ments, their close family relatives, and all other employ-
ees.
On June 28, Respondent employed 36 licensed funeral
directors and 6 registered residents at its various chap-
els.8
4 Although the record does not reflect the reason for the withdrawal
of Kluge's charge, I take judicial notice of Regional Office practice of
permitting a charging party to withdraw charges in lieu of having said
charges dismissed.
s Three chapels are located in Manhattan: 1504 Third Avenue (85th
Street), 117 West 72d Street (72d Street), 234 8th Avenue (Chelse).
Three are in the Bronx: I West 190th Street (190th Street), 2135 West-
chester Avenue (Parkchester), and 165 E. Tremont Avenue (Concourse).
Two chapels are located in Queens: Hillside Avenue in Jamaica (Jamaica)
and Roosevelt Avenue in Jackson Heights (Jackson Heights). And two
chapels are in Brooklyn: 20 Snyder Avenue (Snyder Avenue), and 6900
4th Avenue (Bay Ridge).
6 At its 85th Street chapel, Respondent employed 11 funeral directors
(C. Arnold, C. Ekholm, G. Astazadour, S. Walkoczy, T. Kluge, J. Joyce,
E. Cahill, J. Franza R. Anderson, M. Kenny, and C. Killeen), and 2 resi-
dents, J. Kassan and E. Mevec. At 72d Street, Respondent employed
three funeral directors (B. Kymick, J. McPhillips, and J. D'Errico), and
Continued
627
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The work performed by funeral directors consisted of
taking first calls which consists of both phone calls and
visits from persons requiring information about funeral
services provided by Respondent; making removals of
bodies from the place of death to the chapels; embalm-
ing, which encompasses the injection into the corpse of
embalming fluid, and generally includes also the dressing
and casketing of the bodies; and directing, which in-
cludes the supervision of the funeral service and the
burial. The funeral directors also performed arrange-
ments which refers to discussions with the families where
the details of the funeral are finalized as well as the
making of the necessary calls to the cemetery, florist,
newspapers, and churches.7
Of these responsibilities, removals, embalmings, ar-
rangements, and directions were all duties encompassed
within the license of a funeral director.
The registered residents were unlicensed, and were ba-
sically apprentices, training to become licensed funeral
directors, who would assist and learn from the funeral
directors in their various functions. As noted, the resi-
dents were covered by the collective-bargaining agree-
ment.
The collective-bargaining agreement provides for a
basic workday of 8 hours and workweek of 40 hours, for
which employees are paid weekly salaries.
Articles III and V of the collective-bargaining agree-
ment, the interpretation and reconciliation of which con-
stitutes a substantial disagreement between the parties,
and significant issues herein, are set forth below in perti-
nent part:
ARTICLE III
Management Rights-Duties of Employees-
Subcontracting-Private Arrangements-No
Diminution-Trainee Ratio
Section 1. Except as otherwise provided herein,
nothing in this Agreement is intended or shall be in-
terpreted to limit, restrict or circumscribe manage-
ment's exclusive right to designate, assign and
schedule work or to limit, restrict or circumscribe
any other management prerogative of the Employer
whether the same were exercised heretofore or not.
Every employee shall be required to perform all
duties presently being performed and in addition, all
other duties related to the operations of funeral es-
one resident, A. Tafuri. At Chelsea there was one funeral director (G.
Marschner) and no residents. At 190th Street Respondent employed six
funeral directors (V. Harry, L. Tillot, L. Micewicz, C. Marschena, V.
Agostinelli, and N. Stone) and no residents. At Concourse, Respondent
had two funeral directors (K. Mack and C. Towe) and no residents. At
Parkchester there were four funeral directors (C. Bonura, R. Davis, R.
Winn, and J. Marcoux) and two residents, T, Liberati and F. Basile. At
its Jamaica chapel Respondent employed two funeral directors (J. Harris
and B. Dowd) and no residents. At Jackson Heights there were four fu-
neral directors (P. Tedesco, E. Duda, P. Stenzel, and B. Hults) and no
residents. At Bay Ridge Respondent employed two funeral directors (R.
Snopkoski and P. Nicosia) and one resident, J. Falzarano. At its Snyder
Avenue chapel Respondent employed one funeral director (M. Qualan-
tone) and no residents.
I Arrangements were also frequently made by managers and assistant
managers at the various chapels, who are supervisors and were not cov-
ered by the collective-bargaining agreement.
tablishments. In emergencies, employees may be re-
quired to perform other duties.
Section 2. Except as provided in Article XVIII,
Section 2 and subject to Article V, the Union rec-
ognizes the right of the Employer to change its
method of operation, including a change to or from
the use of independent contractors or subcontrac-
tors.
Section 3. No independent contractor or subcon-
tractor will be engaged for work for which a li-
cense is required within the Employer's normal geo-
graphical service area-unless the work to be per-
formed by him has first been made available to the
Employer's remaining employees, as provided for in
Article V.
Section 4. (a) No Employer which has an employ-
ee on layoff with recall rights may engage a non-
related employer to have the latter's employees per-
form work for which a license is required for the
former Employer in connection with a funeral being
conducted by or for the former unless the work to
be performed has first been made available to the
Employer's employees, as provided for in Article
V.
(b) In the event of an alleged violation, em-
ployees shall perform as directed and the Union
shall be limited to raising a grievance, which will
be subject to arbitration, against the Employer
which it claimed has failed to utilize its recall list.
(c) As used herein, "non-related employer"
shall not include employers presently involved in
reciprocal or ongoing rental and/or service ar-
rangements, or covered funeral establishments
owned or operated by the same person, persons
or corporation or parent company.
ARTICLE V
Overtime Hours and Rates-Pyramiding-Meal
Time and Payment
Section 1. The Employer may require an employ-
ee to work additional hours beyond eight (8) hours
per day and forty (40) hours per week, and in that
event the employee shall be paid at the hourly over-
time rate for all work after eight (8) hours daily or
forty (40) hours weekly. An employee who is re-
quired to work a seventh day in any work week
shall, if he consents to work, be paid at the rate of
double his regular hourly pay for all work on such
seventh work day. No employee shall be entitled to
overtime for working a sixth or seventh successive
day so long as such sixth or seventh day shall be in
a different payroll period from the preceding five
work days. It is specifically understood and agreed
that there is to be no pyramiding of overtime.
Section 2. Recall overtime work pursuant to Arti-
cle III, Section 3 shall be made available pursuant
to subparagraphs (a) through (h) hereof to the fol-
lowing persons in the order set forth in 1. through
3. below:
1. The Employer's regular employees.
628
WALTER B. COOKE, INC.
2. Other persons, including laid-off employees,
whom the employer allows to sign-up for recall
work.
3. Any other person suitable to the Employer,
including independent contractors or sub-contrac-
tors.
(a) It is the essence of this provision that the
Employer must be able to achieve coverage and
efficiency by the use of independent contractors
or sub-contractors.
(b) Persons desiring overtime hereunder must
specify the days for which they will be available
during the following month, no later than the
twentieth day of the preceding month. As used
hereunder, "day" shall be deemed to include the
period of time commencing with the expiration
of their regular shift and the commencement of
their next regular shift. In the event that there is
a calendar day or days intervening between
shifts, the employee may also designate such day
or days. In the event sufficient employees do not
indicate availability to cover all days, weekends
and holidays, the Employer shll have the option
of using the employees on the days designated by
them and supplementing them with independent
contractors or sub-contractors, or of using inde-
pendent contractors or sub-contractors for the
entire month.
(c) Once having indicated his availability, an
employee. will be required to perform the work
requested of him as assigned during the day in
question. Failure by an employee to work as di-
rected on a day for which he had indicated his
availability, shall subject him to disciplinary
action unless his failure is based upon justifiable
excuse.
(d) In the event an employee fails or refuses to
perform the work requested of him, as assigned,
on a day for which he has indicated his availabil-
ity, the Employer shall be under no obligation to
seek other regular employees to do same beyond
those who have registered their availability for
that particular day, but may utilize whatever
means are deemed necessary in order to have the
work accomplished.
(e) In the event more than one person is re-
quired, the Employer may designate the second
person from any source whatsoever, in keeping
with his usual practice.
(f) In the event the employees do not designate
sufficient coverage as provided for in (b) above
for two (2) successive months, the Employer
shall be free to utilize independent contractors or
subcontractors thereafter indefinitely, subject to a
request by the Union for a meeting to effect the
reinstatement of the use of the priority list.
(g) Employees shall be compensated for all
work performed hereunder at the rate of time
and one-half their regular hourly rate of pay, not-
withstanding the provisions of Section I hereof,
provided that there shall be a two (2) hour mini-
mum guarantee per recall for employees under
subsections 1. and 2. above, provided however
that the minumum shall not apply to overtime
contiguous with an employee's regular shift
which shall be paid as regular overtime. Each
employee will be required to maintain and submit
detailed time records for such work and with
regard to his use of service vehicles on forms to
be made available by his Employer. There shall
be no compensation except as provided for
herein.
(h) Where the work required to be performed
is outside of the normal geographical area serv-
iced by the Employer, or in the event employees
designating their availability live too remote from
the place of the removal or other work to allow
for expeditious handling thereof, the Employer
shall be free to utilize an independent contractor
or subcontractor.
Article XVIII which is referred to in article III,
section 2, provides as follows:
ARTICLE XVIII
New Members of the Division
Section 1. Any Employer who shall be admitted
to membership in the Association or to its Labor
Relations Division subsequent to the execution of
this Agreement, may elect to accept the terms and
become a party hereto, and when notice of his ad-
mission and such elections have been given by the
Association to the Union, this collective Agreement
shall supersede any individual Agreement with the
Union which the member may have made before he
is admitted to membership in the Association or to
its Labor Relations Division.
Section 2. An Employer who was not a party to
the collective bargaining agreement which expired
October 9, 1976 may not avail himself of the sub-
contracting option provided in Article III, Section 2
for a period of six (6) months after the date of his
acceptance of this Agreement.
In article III, section 2, of the contract, the designation
"independent contractors or subcontractors," is common-
ly referred to by the parties and in the industry as
"trade." Both Pyramid and Ruggiero, the two employers
alleged by the General Counsel to be joint employers
with Respondent are considered part of trade. The use of
trade by various employers in the industry is not uncom-
mon. At Respondent the use of trade houses has been a
longstanding practice in certain situations. Respondent's
chapels are opened for visitation from 8 a.m. to 9:30 p.m.
It's employees worked five 8-hour shifts, either 8 a.m. to
5 p.m. or from 1 p.m. to 10 p.m.
Respondent's use of trade during these hours arose pri-
marily with respect to removals and embalinings. If a
need for these services became apparent, Respondent's
personnel at the chapel where the call was received
would be utilized if they were available. If not, other
chapels in the area would be contacted to see if they had
any available personnel on duty to perform these func-
629
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions. Trade would be called only if there were no funer-
al directors on duty and available to do the removals and
embalmings.
The function of assigning this work was performed be-
tween the hours of 8 a.m. to 4 p.m., by Jeannie Quinn,
Respondent's dispatcher at its central office located at
85th Street. Between 4 p.m. and 10 p.m., these functions
were performed in the same fashion by the manager, as-
sistant manager, or even by a rank-and-file employee s
employed at the particular chapel where the call was ini-
tially taken.
The hours from 10 p.m. to 8 a.m. are known as the
midnight shift. Prior to 1974 or 1975, Respondent em-
ployed four licensed funeral directors on this shift, who
worked at 190th Street and 85th Street. During this
period of time, these four employees performed all the
removals and embalmings for Respondent's chapels that
were necessary on this shift. Trade was not used on this
shift prior to 1974 or 1975.
Sometime in 1974 and 1975 Respondent eliminated the
midnight shift, and began to use trade for most of its re-
movals and embalmings that arose during the midnight
shift. The record does not reveal whether or not any em-
ployees were laid off at the time, but it does reveal that
Charles Eckholm, one of these four employees was trans-
ferred to the day shift for 9 months. The record does not
reveal who if anyone worked on the midnight shift for
this 9-month period, but Eckholm, after 9 months on the
day shift, was transferred back to the midnight shift. He
was the only funeral director employed on this shift, and
his function was essentially to dispatch trade for all of
Respondent's chapels. Eckholm had a list of the various
trade houses used by Respondent covering the various
locations of its chapels and would call the appropriate
trade house where removals and embalmings were re-
quired."
Prior to the June 28 layoffs, Sinkowski was the trade
house used by Respondent to service its Bronx chapels.
Its Brooklyn and Manhattan chapels were serviced by
Pyramid. Other trade houses used by Respondent prior
to the layoff included New York Funeral Service, Gal-
laher, and Bresher.
In 1978, trade houses performed from 500-1,000 em-
balmings for Respondent out of a total of some 4,000 em-
balmings performed for Respondent. During the same
period of time, trade performed from 1,000-1,200 remov-
als for Respondent.' 0
Many of these trade houses used Respondent's facili-
ties for embalming prior to the June 28 layoff. Sinkowski
used Respondent's Bronx chapels on a fairly regular
' The record reveals that at Parkchester and 190th Street on rare occa-
sions employees who were not on duty were called at home by various
supervisors or employees to perform removals and embalmings before
trade was utilized. However, I find this to have been an isolated and in-
frequent occurrence, and that the well-known, dominant, and established
procedure at Respondent was to call trade when there were no on-duty
personnel available.
9 On rare occasions, Eckholm would call employee Joe Franza and
permit him to make a removal or an embalming, where Franza had in-
formed Eckholm that he would be available for any such work at Snyder
Avenue or Bay Ridge that might arise during the midnight shift hours.
'o Usually whoever performs the removal will also perform the em-
balming. Not all bodies are embalmed, however, and in some situations
only the removal will be necessary.
basis. Pyramid would utilize Respondent's Chelsea
chapel when it was servicing a Chelsea call," which
was approximately once a week. New York Funeral
Service would use Respondent's Snyder Avenue facility
for an embalming, also about once a week.
None of these trade houses was charged by Respond-
ent for the use of Respondent's facilities.
None of the trade houses had an office or a desk at
any of Respondent's chapels, nor did the trades houses
have employees regularly stationed at any of these chap-
els. In addition, there was no utilization of Respondent's
vehicles by trade houses prior to the June 28 layoff.
Overtime was provided for in the contract in article
V, and called for the payment at time and a half. There
are two types of overtime, contiguous and recall. Contig-
uous overtime, which is overtime contiguous to or in
other words immediately before or after an employee's
regular shift, was a fairly common practice at Respond-
ent prior to the layoffs.
Recall overtime is overtime which is not contiguous to
an employee's regular shift, and involves situations
where an employee is called in to perform overtime on
his day off or at other times not immediately before or
after his regular shift.
Recall overtime as provided for in the collective-bar-
gaining agreement, in article V, calls for an involved
system of an employee's signing up on a list specifying
his availability, requiring the employee to perform the
overtime if requested at such time, subject to discipline if
he does not, guaranteeing the employee a minimum of 2
hours per recall, and permitting Respondent to utilize
trade in the event that employees do not designate suffi-
cient coverage for 2 successive months. It is not disputed
that recall overtime as defined in the contract has not
been used by Respondent at any of its chapels. There
was some testimony that some employees signed a list in
1976 or 1977, but there is no evidence that any such list
was ever used to set in motion the provisions of the con-
tract. It appears that the employees did not sign up in
sufficient numbers to provide adequate coverage, and
Respondent simply did not use the contractual provisions
dealing with recall overtime.
There was some evidence that some employees were
called to perform overtime on occasion at times not con-
tiguous to their regular shifts. It is clear however that
these situations were not pursuant to any list, they were
purely voluntary by the employee, and pursuant to pri-
vate arrangements between the person on duty'2 making
the call to the employee notifying him of the overtime
being available.
In March 1979, a labor management meeting was held
with various officials of Respondent and the Union, in-
cluding some of Respondent's employees being present.
At this time written grievances filed by employee and as-
sistant steward Davis complaining about trade houses,
Sinkowski and Riverside, allegedly performing removals
when he (Davis) and other of Respondent's personnel
i' Pyramid at that time operated out of the Ponce Funeral Home in
Brooklyn.
i' This person was either another licensed funeral director or a man-
ager or assistant manager.
630
WALTER B. COOKE, INC.
were available for the work were brought up by union
officials and/or Davis. Respondent's representative,
Scott, responded that management had the right to move
the body any way they wanted to. Davis was also in-
formed by Scott not to harass his manager.' 3
At this meeting Union Representative Benson request-
ed that the recall overtime procedure be reinstituted.
Scott replied that Respondent had tried it in the past and
that it did not work out.
Neither of these issues was resolved at the meeting, 4
and no further action was taken by the Union with re-
spect to these matters.
Aside from the above, there is no evidence in the
record that the Union has ever protested or grieved Re-
spondent's use of trade houses to perform unit work. It is
undisputed that no arbitrations were ever filed for by the
Union in protest of Respondent's use of trade. As noted
above, Respondent eliminated the night shift in approxi-
mately 1975 and proceeded to assign the bulk of this
former unit work to trade houses, and, insofar as the
record discloses, no protest or grievance was filed by the
Union at the time.' 5
C. Respondent's Decision To Lay Off Employees
Donald Campbell was transferred to New York by
SCI to attempt to improve the profitability of various of
SCI's companies located in the eastern region. SCI was
of the opinion that the contribution to overall corporate
profits were not being made by this group of companies,
and dispatched Campbell to assess the problem and make
changes that would improve the operating margins of
these firms.
Campbell noticed a decline in business volume of the
various companies under his direction, and from 1975 to
1979 instituted a number of operational changes in many
of SCI's subsidiaries, such as eliminating equipment and
vehicles, reducing staff including some management posi-
tions by attrition and/or layoffs and closing offices.
In January 1975, Respondent employed 54 bargaining
unit employees. As of June 28, 1979, Respondent em-
ployed 36 such employees. The reduction of these 18
employees was accomplished through attrition.
In early 1979, upon reviewing Respondent's records,
Campbell noticed decreasing volume of business and rev-
enues was resulting in a decline in profitability. He in-
structed Amato to study the situation and to develop a
plan to improve Respondent's profit situation.
Amato studied Respondent's case volume statistics,
which revealed 6,537 cases in the fiscal year 1973-74
(ending April 10, 1974), 5,744 cases in the fiscal year
1977-78 (ending April 1978), and 5,248 cases in fiscal
year 1978-79 (ending April 30, 1979). Gross sales had de-
creased $350,000 from fiscal year 1978 to 1979. In fiscal
year 1978, Respondent's income before taxes was
"I Apparently Davis had previously engaged in a heated argument
with his manager, which arose as a result of Davis' complaint to the man-
ager about trade performing unit work.
" A number of other issues unrelated to areas pertinent herein were
resolved at this meeting.
I" As noted also above, the record does not disclose whether any em-
ployees were laid off as a result of this action of Respondent.
$221,611. In 1979 Respondent's records demonstrated a
loss of $4,938 of income before taxes. i
Amato, after studying these figures and observing Re-
spondent's operations, concluded that there was insuffi-
cient work to justify retention of its present complement
of employees for full 8-hour days Amato therefore rec-
ommended that Respondent subcontract a larger portion
of its work to the trade and lay-off a number of employ-
ees. As Amato explained, 'By doing this, we would pay
the trades only for the actual service or services per-
formed. We thought this would be more economical
than retaining regular employees for a full eight hour
shift when we did not regularly have eight hours of
work for them."
Amato calculated the amounts of money that he ex-
pected to save by his plan, which would also result in
saving money on equipment, vehicles, and other materi-
als. It is admitted that the largest part of the savings to
Respondent by its dccision to subcontract to trade, came
from the elimination of salaries, overtime, and fringe
benefits paid to the employees laid off. Amato concluded
substantially all of its embalming and rcml'al work
should be subcontracted to the trade, wh:ch woulk result
in the layoff of 20 employees.
Amato discussed his plan' 7 with Campbell during the
months of May and June. Amato had previously dis-
cussed the proposed changes with Allan Gallay, Re-
spondent's attorney, and asked Gallay if the layoffs were
permitted by the contract. Gallay responded that he did
not see any problem and that Respondent had a right
under the contract to institute the changes Amato was
contemplating. Gallay reminded Amato that other firms
such as Parkside and Parkwest with the same contract
and the same union had implemented similar plans and
no grievances were filed. Campbell had been informed
by various officials of Parkside and Boulevard West that
they had laid-off employees and subcontracted to trade
embalming work, and this had resulted in substantial sav-
ings for these companies.
As a result of these discussions Campbell authorized
Amato to implement his proposals. In mid-June, Amato
began contacting the various trade houses used by Re-
spondent at that time, as well as other trade houses
which Respondent had not used prior thereto. He dis-
cussed with them the possibility of handling Respond-
ent's removal and embalming work, and negotiated with
them prices and other items concerning their potential
and ability to perform the work. He reached agreement
with four trade houses to handle the work previously
performed by the unit employees who were to be laid
off. He retained Pyramid to cover Respondent's Manhat-
tan chapels, Ruggiero in the Bronx, Gallaher in Queens,
and Cafaro to handle its Brooklyn chapels. He also made
changes with respect to Respondent's vehicles and
worked out a schedule of employees to be laid off.
Amato called Gallay and asked him to notify the Union
of Respondent's decision.
16 SCI files a joint tax return covering all of its subsidiaries.
II The plan also included the promotion of six bargaining unit employ-
ees to assistant managers, a position not covered by the contract.
631
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Wednesday, June 27, Gallay called Peter Ottley,
the president of Local 144. Gallay informed Ottley that
Respondent had determined that a layoff of 20 employ-
ees was necessary, and that Respondent would thereafter
exercise its right to use trade to handle the removal and
embalming work previously performed by these employ-
ees. Ottley asked how many employees were in the unit
and was told about 32. Ottley expressed shock concern-
ing the magnitude of the layoff. Gallay responded that
the contract allows Respondent to change its method of
operation and reminded Ottley of a discussion of this
subject during the 1976 negotiations.' s
Ottley then asked when the layoffs will be effective.
Gallay replied the next day. Ottley asked why so soon
and Gallay answered that Respondent was concerned
over the detrimental effect of giving employees too
much notice. Gallay in response to another question
from Ottley informed him that the layoffs would be in
order of seniority and employees would be paid sever-
ance pursuant to the contract. Ottley asked if there were
any chance that the number laid off could be reduced to
less than 20 and Gallay said that he did not think so.
On Thursday, June 28, 20 employees were laid off.
The next day after a call from the Union, the number
was reduced to 19, since Carlo Bonura who had been
laid off was entitled to superseniority by virtue of his
being shop steward. Thus his layoff was rescinded.
The 19 employees who were laid off' 9 were read a
letter by supervisors which notified them in pertinent
part, "regretfully, I must advise that for economic rea-
sons the Company feels that it must change to the use of
trade embalmers to increase efficiency in order to sur-
vive. As a result you are being laid off effective today."
Severance checks were issued to the laid-off employ-
ees. Eleven of the 19 checks were cashed by October 1,
1979, and all of them were cashed by the date of the
hearing herein.
On Friday, June 29, Ottley contacted Gallay and re-
quested a meeting with Respondent's officials to discuss
the layoffs. A meeting was arranged for Monday, July 2,
at the Union's offices. Present were Gallay, Amato,
Scott, Ottley, and Benson. Ottley began by asking why
Respondent had to lay off 20 people. Scott responded on
behalf of Respondent by addressing himself to the
changes taking place in the industry, including changes
in the nature of services requested by families, changes in
the nature of the population in New York, and that use
of its licensed personnel was not the same as it had been
years ago. He continued that Respondent could not keep
going the same way and that its action was a response it
felt it must make to these changes.
" This discussion will be more fully set forth below.
" Those laid off included Robert Anderson, Girard Astazadour, Mi-
chael Kenny, John Joyce, Edward Cahill, Tara Kluge, Jeffrey Kassan,
Steven Walkoczy, and Joseph Franza, who worked at Respondent 85th
Street chapel; Joseph D'Errico from 72d Street; Lamont Tillot and Leon
Micewicz who worked at 190th Street; Kevin Mack from Concourse;
Roger Davis and Richard Winn who worked at Parkchester; Peter
Tedesco from Jackson Heights; Phillip Nicosia who worked at Bay
Ridge; and Martin Qualantone from Respondent's Snyder Avenue chapel,
All of the employees laid off except for Kassan were licensed funeral di-
rectors. Kassan was a resident.
Gallay then interjected that Respondent had a right
under the contract to change its operations in this fash-
ion, and reminded Ottley of their prior phone call on
June 27 when Gallay had referred to the contractual
rights of Respondent. No one from the Union challenged
or disputed Gally's assertion that the contract gave Re-
spondent the right to subcontract the work to the trade.
Benson then argued that the use of trade would not
save Respondent any money, and that using its own em-
ployees with overtime would be as economical and no
one need be laid off. Amato replied that this was not so,
that he had studied the matter, and that based on Re-
spondent's prior use of trade, and the declining case
volume and revenues, management was convinced that
this action would be more economical and that there was
no alternative.
Ottley asked if there were any way for Respondent to
lay off fewer employees. Amato responded that he could
not see any way to do so, but that if the Union had any
ideas on how to avoid the problem or accomplish the
same goal or anything he felt he wanted to discuss fur-
ther to let Respondent know. Ottley replied that he
would be in touch and the meeting concluded.
At no time during this meeting did anyone from the
Union question Respondent's right under the contract to
subcontract and or to lay off its employees. In addition it
is also clear that at no time during this meeting did any
union representatives consent to or agree with Respond-
ent's decision.
A letter dated June 29 was sent to Gallay, written by
Stephen Kahn, attorney for Local 144. The letter states
that it is the position of Local 144 that Respondent's uni-
lateral action of laying off employees, reassigning em-
ployees to new job classifications, and subcontracting out
work formerly done by union members is in violation of
the collective-bargaining agreement then in force.
The letter then requests immediate recission of these
actions, restoration of the status quo, as well as the op-
portunity to bargain concerning any changes which Re-
spondent may desire to make.2 0
On July 5, the Union notified Amato and the Ameri-
can Arbitration Association that it was demanding arbi-
tration, alleging that Respondent was in violation of the
contract by its layoff of June 28. None of the Union's
letters specify the specific contractual provision or provi-
sions allegedly violated by Respondent.
As noted above, the Union also filed unfair labor prac-
tices with Region 2 of the National Labor Relations
Board on July 6.
On July 18, the AAA submitted a list of potential arbi-
trators to the parties. Subsequently, Respondent filed a
motion in Supreme Court of New York County for a
stay of the arbitration. After extensive delay, the court
denied the motion to stay the arbitration. In the interim,
Local 1034, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called Local 1034, was certified as the collective-
20 The record does not reflect when this letter was received by Gallay
or whether it was before or after the July 2 meeting discussed above.
632
WALTER B. COOKE, INC.
bargaining representative of the unit employees em-
ployed by Respondent. 21
Local 1034 at some point not specified in the record
requested that Local 144 furnish it with the files pertain-
ing to the arbitration so it could consider proceeding
with the hearing. Local 144 did not forward the files to
Local 1034 as requested. Thereafter the instant complaint
issued, and Local 1034 decided to permit the NLRB to
determine the issue herein. The arbitration proceeding
has not been withdrawn. Respondent specifically dis-
claims any contention that the instant complaint be de-
ferred to the arbitral process.
D. The 1976 Negotiations
Article III of the collective-bargaining agreement was
first negotiated in either 1970 or 1973. No testimony was
adduced from any party as to the substance of the nego-
tiations when this contractual provision and or its inter-
relationship with other contractual provisions were
agreed on.
However, Gallay, Respondent's attorney, who was the
chief negotiator for the MFDA since at least 1970, testi-
fied as to the 1976 negotiations. His testimony which is
uncontradicted 22 and therefore credited establishes that
in 1976 Ottley, the Union's president, entered negotia-
tions for the first time. In fact, the present Union, Local
144, resulted from a merger in 1974 between Local 100
and Local 144 of the Service Employees Union, AFL-
CIO. Local 100 was the collective-bargaining representa-
tive and the contracting party with MFDA when the
clauses in dispute were negotiated. Thus 1976 was the
first negotiation that Ottley, who had been president of
Local 144 and became president of the new Union, at-
tended with the MFDA. Since Ottley was unfamiliar
with the funeral industry, Gallay endeavored to acquaint
him with the collective-bargaining agreement and the
meaning of various clauses included therein.
Present during the 1976 negotiations in addition to
Ottley were various officials and/or attorneys of Local
144, who had been involved in the negotiation and/or
the interpretation of the various clauses in dispute while
they were associated with Local 100. These individuals
included William O'Keefe, former president of Local
100, and William Pitassy, attorney for Local 100 and for
Local 144 as well, and Sustero, a business agent for both
Local 100 and Local 144. In addition there were a
number of employees present who were members of the
Union's bargaining committee. One of those members,
who was present at both the 1973 and 1976 negotiations,
" Pursuant to a petition filed by Local 1034 in Case 2-CA-18452 and
an elect on held on March 6, 1980, Local 1034 was certified as the collec-
tive-bargaining representative of the employees employed by the MFDA,
formerly represented by Local 144. In July 1980 a contract was entered
into between Local 1034 and MFDA, which covered and has been ap-
plied to the employees of Respondent.
", The General Counsel and the Charging Party objected at the hear-
ing to Gallay being permitted to testify, since he acted as attorney for
Respondent at the hearing, and his testifying violated the canons of
ethics. The Charging Party reviews this objection in her brief. I reaffirm
the ruling that I made at the hearing, permitting Oallay to testify. It is
well settled that the Board will not pass on the ethical propriety of a de-
cision by counsel to testify. Local Union Na 9. International Union of Qp-
erating Engineers (Fountain Sand & Grmael Ca), 210 NLRB 129, fn. I
(1974); Adolph Coors Company, 235 NLRB 271, 273 (1978).
was Mary DeLouise, an employee of Respondent.23 The
record also revealed that O'Keefe died-sometime in 1977,
and that Sustero was not employed by the Union at the
time of the hearing.
At the second or third negotiation session in 1976,
after a discussion of the various proposals submitted by
the Union, it became evident to Gallay that Ottley was
not fully conversant with the contract. Thus, he felt it
necessary to go over the entire contract explaining in
detail the clauses which needed explanations of what the
mutual understandings had been between the parties.
Gallay explained that article III, section 2, gave the
right to the Employer to modify its operations and to go
to trade. He went through the exceptions referred to in
this clause, and the reasons for them. With respect to ar-
ticle XVIII, section 2, Gallay explained that this limita-
tion on new members availing themselves of the subcon-
tracting option for 6 months was put in at the behest of
the Union some years ago, because the Union was con-
cerned that it could organize a new shop, which would
then join the Association and, by reason of article III,
immediately terminate employees and go to trade. Thus
the Union was able to prevent such an occurrence for
new members of the Association for 6 months. The
second limitation on an employer's right to go to trade
was article V, which as explained by Gallay referred to
situations where an employer goes to trade, and its re-
maining employees would be entitled to recall overtime
on a priority basis, assuming that gave the employer the
kind of coverage article V requires. Gallay went into
some detail as to why such a lengthy complex article had
been worked out. He explained that the problem in the
past had been that employees would accept recall over-
time only when it was convenient for them, and would
leave an employer without adequate coverage on such
nights as Christmas Eve and Thanksgiving, and that the
Employer would be unable to utilize trade for these
times unless trade was getting regular work as well.
Thus the Employer wanted full coverage with an em-
ployee obligated to work if necessary, and if the employ-
ees were not going to give coverage for 2 successive
months, then the employer could go to trade and not
worry about it. He also stated that he did not know of
any funeral establishment where the recall list was work-
ing and that full coverage was provided. When Gallay
completed his explanation of the interrelationship be-
tween these clauses and their meaning as set forth above,
no one present from the Union challenged or disputed
his statements. The only comment made on Gallay's
completion of his recitation with respect to these clauses
was made by Ottley, who said, "I understand."
There were certain areas in the contract discussed by
Gallay where his interpretation was questioned by union
officials, but not in these areas. Pitassy on a couple of
cases helped Gallay explain certain items to Ottley, but
again there was no challenge made or questions asked
concerning Gallay's discussion of articles III and V as
set forth above.
s" DeLouise was an assistant manager of Respondent at the time of the
layoff.
633
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition there were no proposals made by the
Union or the Employer during these negotiations to
change, alter, or modify these clauses.
E. Respondent's Operations After June 28
As noted above, as part of Amato's plan to improve
profits, six unit employees were promoted to assistant
managers. 24 Thus, as a result of the changes instituted by
Amato, 11 employees remained covered by the contract.
After the layoff there were no licensed funeral directors
assigned to the Chelsea, Bay Ridge, and Snyder Avenue
chapels. The 11 unit employees who remained employed
by Respondent primarily performed arrangements and
directions, and few if any embalmings or removals.
These employees received all the benefits under the con-
tract to which they were entitled.
Pyramid as indicated was retained to service Respond-
ent's three Manhattan chapels. Amato was asked by Joe
Mule, one of the two principals of Pyramid, for recom-
mendations on which employees of Respondent to con-
sider hiring. Amato recommended to Mule certain em-
ployees for hire whose work Amato felt was "such that
it would be up to what we wanted to have done, up to
our standards." Amato recommended according to his
testimony which is not disputed and is credited, quite a
few 2 5 individuals for hire by Pyramid. Some of those
whom he recommended were hired by Pyramid and
others were not. Pyramid hired on a regular basis five
former Cooke employees, all of whom were recommend-
ed by either Amato and/or Quinn. They were Cahill,
D'Errico, Franza, Mack, and Nicosia. These employees
shortly after or on the same day as their layoffs were no-
tified by Quinn or their respective supervisors that if
they were interested in employment to contact Pyra-
mid. 2 6 In addition, during the next several months, Pyra-
mid hired several employees who were not formerly em-
ployed by Cooke. They were Bob Donlan, Tony Carbo,
Larry Hoey, and James Donofrio. The Pyramid employ-
ees performed all of Respondent's embalmings and re-
movals at its Manhattan chapels which included dressing
and casketing, as well as an occasional direction or ar-
rangement.
While employed by Pyramid, these employees worked
a combination of 12-hour day and night shifts so that
there was trade service available on a 24-hour-a-day
basis. During the first week of employment at Pyramid,
they were paid a weekly salary. The next week, Mule in-
formed the employees that thereafter they were to be
paid on a per-call basis. They were paid $15 for a remov-
al, $20 for an embalming, $40 for a direction, and $20 for
an arrangement. They received no overtime pay or any
fringe benefits. 2 7
24 They were employees C. Killeell, J. McPhillips, Carl Marchena, C.
Towe, Steven Mack, and R. Snopkoski.
" He could not recall how many he recommended.
S6 Joseph Franza in fact was told by Quinn that she was trying to line
up jobs for the men with the trade houses that were coming in. She gave
him the phone number of Pyramid as well as the number of Caffaro, the
trade house that was to service Brooklyn. Franza called Pyramid first,
spoke to Pete Zunno (the other principal of Pyramid), and arranged to be
hired.
27 Pyramid had its own payroll and the employees were paid with
Pyramid checks prepared by Pyramid's clerical employee.
For the first week or two, after the layoff, Pyramid
operated out of the Ponce Funeral Home in Brooklyn,
New York, as it had done prior to the layoff, which
would necessitate transporting the remains back and
forth from Brooklyn to the various Manhattan chapels.
This proved to be inefficient and time consuming, par-
ticularly since the bulk of Respondent's work arose out
of its 85th St. chapel. Pyramid intended to use Respond-
ent's Chelsea chapel on occasion to perform embalmings
as it had done in the past, 2 8 but this location proved to
be too small a facility. Thus one of Pyramid's representa-
tives suggested to Amato that Pyramid move their base
of operations to Respondent's 85th Street chapel, so that
employees could use the facility for embalming and be
closer to or in the chapels where they would be required
to work. Amato agreed and thereafter Pyramid moved
into the basement of Respondent's 85th Street chapel.
Pyramid had a desk, a telephone, and filing cabinets in
one section of the basement.
For the use of Respondent's premises in this fashion,
Amato negotiated a price reduction with Pyramid's rep-
resentatives of about 20 percent of the price charged Re-
spondent for Pyramid's embalming and removal serv-
ices. 29
It is undisputed and in fact admitted by one of the
General Counsel's witnesses that the move of Pyramid
from Brooklyn to Respondent's 85th Street chapel bene-
fitted the employees as well as Pyramid, since they could
make more removals and embalmings.
Mule and Zunno arrived at the 85th Street chapel
around 9:30 a.m. and generally remained until 5 p.m.
During this period of time they dispatched their employ-
ees to the various jobs. Between 5 p.m. and 9:30 a.m., the
employees were dispatched by Respondent's personnel.3 0
The dispatching that was conducted by either Mule or
Zunno or by Respondent's personnel encompassed very
little discretion or judgment on their part. For the large
majority of situations it made no difference to Respond-
ent who performed the particular job. Either Quinn or
Respondent's employee on duty would call down to Pyr-
amid and request an employee for an embalming, a re-
moval, and/or a direction. Very rarely would Respond-
ent make any requests concerning who would be as-
signed, although occasionally they would request a
"former Cooke employee" be furnished for a job,3 ' or a
specific person be selected. These requests would gener-
28 The record reveals that, prior to the layoff when Pyramid serviced
Respondent in Brooklyn and Manhattan, it used Respondent's Chelsea
chapel for embalming on the average of once a week.
29 No written agreement was entered into between Respondent and
Pyramid with respect to the reduction in price or in fact the original
agreement, which provided for payment by Respondent to Pyramid on a
per-call basis.
3s By either Jeannne Quinn or after control was closed by Respond-
ent's employee or supervisor on duty in the 85th Street chapel. It was
estimated by employee Franza that 90 percent of his assignments were
given to him by either Mule or Zunno. The remaining 10 percent were
assigned by Quinn or other of Respondent's employees.
Sl As noted, Pyramid employed four individuals not previously em-
ployed by Respondent, in addition to Franza, Nicosia, D'Errico, Cahill,
and Kevin Mack, who had been in Respondent's employ.
634
WALTER B. COOKE, INC.
ally involve directions, where Quinn "liked the way"
that certain former employees directed a funeral.3 2
A rotation system was established among Pyramid's
employees whereby assignments were generally made on
the basis of who had received the last assignment, in an
attempt to equalize the work as much as possible. If a
second man was needed for a removal, a second Pyramid
man would be used. In these circumstances, the second
Pyramid employee would not be paid for the call.
Pyramid employees used Respondent's embalming
tables, and some of Respondent's supplies until the
supply was exhausted by the end of the summer, when
for the most part Pyramid used its own supplies.
Pyramid for the large majority of its work used its
own vehicles, but on occasion, in an emergency situa-
tion, it would be permitted to use Respondent's vehicles
to perform removals. 33
The record contained one incident wherein Respond-
ent's officials became involved in a disciplinary incident
concerning a Pyramid employee. In late July or early
August, Ed Cahill received a phone call at home, on his
day off, from Quinn. She asked him if he would come in
and do some removals and embalmings. Cahill replied
yes and reported to Respondent's basement at 85th
Street. While he was talking with Mule, Quinn came
down and informed Cahill that he had to make an ar-
rangement. Cahill replied that he did not want to make
an arrangement and that he did not have to do it. He
added that when he was hired, he had told Pyramid that
he would not make arrangements. s4 Quinn did not re-
spond, but Mule ordered Cahill to make the arrange-
ment. Cahill answered, "I refuse, I told you this." Mule
told Cahill that he was fired. It is undisputed that Quinn
made no request of Mule that he terminate or otherwise
discipline Cahill for his refusal to perform the assign-
ment.
Franza testified that while he was employed by Pyra-
mid, Leo Denny, Respondent's manager at 85th Street
asked him to keep an eye on resident and sort of take
Schroeder "under his wing." In this connection, Franza
was present in the embalming room while Schroeder em-
balmed a body,3 5 from three to five times during the 13
months that Franza worked for Pyramid. The record
does not reflect whether or by whom Franza was paid
for being present when Schroeder embalmed on these
occasions. The record also does not establish how or
when Franza other than these three to five occasions
"kept an eye on or took Schroeder under his wing."
st For instance D'Errico, who testified that Quinn specifically request-
ed that he be assigned a particular job, usually a direction, in less than I
out of 100 calls. D'Errico further testified that this occurred from 5 to 10
times during his employment at Pyramid, which lasted some 13 months.
Nicosia testified that he could not recall Quinn ever asking for a particu-
lar Pyramid employee to perform a job Franza testified that Quinn
would on occasion request that he or a former Cooke employee perform
a certain job.
"s The vehicles involved are station wagons used to transport the re-
mains.
$4 Cahill testified that he had informed Pyramid at hire that he would
not perform arrangements, because S20 was in his judgment insufficient
renumeration for this service.
s$ The law requires that a licensed funeral director be present when a
resident performs embalmings.
In addition, the record reveals that D'Errico, Nicosia,
and Franza, at the request of Mule, filled in for Respond-
ent's employees and covered Respondent's chapels in
Manhattan as a license on Thanksgiving, Christmas, and
New Year's day.
Pyramid, in addition to servicing Respondent, per-
formed work for four or five other accounts.3s About 85
percent of Pyramid's work however was performed for
Respondent. When Pyramid serviced these other ac-
counts, Pyramid's employees serviced them in the same
manner and pursuant to the same essential procedures as
they did when they serviced Respondent. On some occa-
sions, the employees would use the facilities of these
other accounts including their equipment and supplies to
embalm bodies. On other occasions, they would use Re-
spondent's 85th Street facility to perform embalmings for
Pyramid's other accounts. At times Pyramid employees
also embalmed bodies using Respondent's 72d Street and
Chelsea facilities while servicing Respondent's funerals
which arose out of these locations. Three to 4 months
after Pyramid began to service Respondent in Manhattan
on a regular basis, it lost two of its other accounts,
Ponce and Barone.
Lamont Tillot, who had been employed at Respond-
ent's 190th Street location prior to the layoff, after being
notified of his layoff by his manager, was told to call
Quinn. He did so, and was told by Quinn to call Rug-
giero and that "they will have a job for you." Tillot im-
mediately called Ruggiero, spoke to Robert Ruggiero,
and was given a job.
Tillot while employed by Ruggiero worked whatever
hours he wanted, and averaged 12 hours a day. He was
paid on a per-call basis, performing embalmings, remov-
als, dressing, and casketing. He serviced Respondent's
three Bronx chapels, and performed 95 percent of the
embalmings at these three locations, and 5 percent of
them at Ruggiero's chapel. Tillot was paid by Ruggiero's
check and used Ruggiero's vehicles for removals. Rug-
giero had other accounts, but Tillot did not perform any
work servicing these firms. Ruggiero utilized family
members (two brothers) as well as an employee named
Andrews to service these other accounts and to service
Respondent's chapels during the hours that Tillot was
off.
Tillot ordinarily did not report to Ruggiero's chapel,
but would be dispatched by Robert Ruggiero to do re-
movals and embalmings at Respondent's Bronx chapels.
Tillot carried a beeper with him and would be beeped by
Ruggiero and would call Ruggiero's office to receive an
assignment. Ordinarily, after Tillot completed a job at
one of Respondent's chapels, he would report to the
manager of Respondent's chapel and inform him that the
job was completed. At that point, on some occasions, the
manager would inform Tillot that Respondent had an-
other removal and/or embalming for him to perform.
Tillot would either call Ruggiero to report that he was
going out on the assignment or, on some occasions, the
manager would instruct Tillot to go out on the job, and
he would call Ruggiero to so report.
36 These were Ponce, Barone, Andrelte. Canza. and Vanella Funeral
Service.
635
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin Qualantone had been employed as funeral di-
rector for Respondent at Snyder Avenue prior to the
layoff. After the layoff he received calls from John Gal-
laher Funeral Service and Zunno or Mule of Pyramid,
and was told that they had been given Qualantone's
name, and asked him to come to work for them. After
some discussions with these individuals as well as a rep-
resentative from Caffaro, Qualantone arranged to per-
form only directions and hairdressing for these firms on
a per-call basis.3 7 He did not report to any particular
trade house and used his home as an office taking calls
on a first-come-first-served basis, Qualantone performed
such work at Respondent's chapels in Manhattan, Brook-
lyn, and Queens for these trade houses, as well as per-
forming some services for accounts of these trade houses
other than Respondent, such as Andrette and Ponce. He
also performed some services for several other trade
houses not associated with Respondent's chapels. These
included Cionin Funeral Service, Each Funeral Service,
and Greenwood Funeral Service. Qualantone's work for
all of these trade houses was essentially the same, in
terms of procedure and performance whether or not it
was performed at Respondent's chapels or at chapels of
other funeral establishments.
As noted above, on March 14, 1980, Local 1034, IBT,
was certified as the collective-bargaining representative
of the employees employed by MFDA the members in-
cluding Respondent. In July 1980, a contract was execut-
ed, which provided that members of MFDA could only
use trade services whose employees are covered by the
Local 1034 contract. Pyramid could not afford the terms
of the Local 1034 contract, and, since Respondent pro-
vided the bulk of its business, was forced to close some-
time in July 1980.
Around the same time Respondent decided to assign
the majority of its embalming and removals to West Side
Funeral Service, a trade house which is a subsidiary of
SCI. A letter dated June 25, 1980, sent by SCI and
signed by Amato to all former laid-off employees, stated
that management was considering the possibility of pro-
viding employment for certain previously laid-off em-
ployees. The letter requested that the former employees
return a form indicating whether they were interested in
employment as well as their earliest date of availability.
As a result of this letter, sometime in July 1980, West
Side hired the employees who had previously performed
most of the work on Respondent's accounts while work-
ing for Pyramid and Ruggiero. as These employees did
not retain their Walter B. Cooke seniority when they
were employed by West Side. s 9
The procedure utilized by Respondent in making its
assignments is and has been since August 1980 to assign
its own employees first to all work including embalmings
and removals if possible. When the supply of Respond-
37 As noted above, Gallaher serviced Respondent's chapels in Queens
and Caffaro Respondent's chapels in Brooklyn.
" Cahill, Franza, Qualantone, Tillot, D'Errico, and Nicosia.
" West Side, which as noted was a subsidiary of SCI, had a collec-
tive-bargaining agreement with Local 1034. Pyramid did not and as noted
went out of busineas as a result of losing Respondent's account. Gallaher
and Ruggiero did not have a collective-bargaining agreement with Local
1034 in July 1980, but at some subsequent time did enter into such an
agreement.
ent's own employees is exhausted, West Side's employees
are utilized.4 0 When West Side is unable to perform the
necessary work, Respondent then uses Ruggiero and
Gallaher.41
III. ANALYSIS
A. The Prior Charges
Respondent argues that the previous dismissal of Local
144's charge in Case 2-CA-16572, and the approval of
the withdrawal of Kluge's previously filed charge in
Case 2-CA-16571, by the Region which admittedly were
based on the same conduct attacked herein mandate dis-
missal of the instant complaint.
However it is well settled that a prior charge which is
withdrawn without prejudice, or a dismissal by a Re-
gional Director of a prior charge, even where the identi-
cal conduct is involved, does not constitute an adjudica-
tion on the merits, and no resjudicata effect can be given
to these actions.42
The cases cited by Respondent in its brief in support
of its position on this issue are either clearly inapplicable
and distinguishable 3 or merely unsupported dicta by an
administrative law judge. Quality Transport Inc., 211
NLRB 198, 201 (1974).
The only case cited by Respondent which in my judg-
ment provides any support for Respondent's position is
APA Transport Corp., 239 NLRB 1407 (1979). Howev-
er, although this case does give some effect to a prior
Regional Director's dismissal, I find it to also be distin-
guishable from and not controlling on the instant case. In
APA, the Board considered the prior dismissal letter,
only insofar as it contained factual evidence sufficient to
meet Respondent's burden of rebutting the presumption
of illegality of a bidding provision of a superseniority
clause under Dairylea Cooperative Inc., 219 NLRB 656
(1975), enfd. 531 F.2d 1162 (2d Cir. 1976). This finding
was necessary only to deny the General Counsel's
motion for summary judgment, and was not an adjudica-
tion on the merits of this issue.44
Accordingly, I find that the Board's well-established
refusal to give resjudicata effect to prior withdrawals or
dismissals is controlling herein, and that the Region's
prior dismissal and approval of the withdrawal of the
prior charges do not mandate dismissal of the instant
complaint.
40 The bulk of Respondent's removals and embalmings have been per-
formed by West Side since that date.
4' As noted, Ruggiero and Gallaher are now signatories to a Local
1034 contract.
42 Fanet Inc., 202 NLRB 409 (1973); Omico Plastics inc, 18U4 NLRB
767 (1970); Cone Bro Contract Ca, 158 NLRB 86 (1966); W. Ralston d
Ca Inc., 131 NLRB (1961); Swanson's Inc. 125 NLRB 407 (1959).
4 Maosher Steel Ca v. N.LRB., 568 F.2d 436 (5th Cjr. 1978); Gulf
State Manufacturers Inc v. N.LR.B, 598 F.2d 896 (5th Cir. 1979).
" I would note that in another portion of the decision, the Board in
APA, supra, granted summary judgment with respect to the maintenance
of the superseniority clause extending beyond layoff, where the respond.
ents had not presented any factual evidence to rebut the presumption of
illegality.
636
WALTER B. COOKE, INC.
B. Was Respondent's Layoff of 19 Employees on June
28, 1979, "Inherently Destructive of Employee
Rights"?
The General Counsel and the Charging Party argue
that Respondent's conduct in laying off its employees on
June 28 and thereafter subcontracting out the work to
the trade is conduct "inherently destructive of employee
rights" and thereby violates Section 8(a)(1) and (3) of the
Act. They place principal reliance on Los Angeles Marine
Hardware Co., 235 NLRB 720 (1978), enfd. F.2d 1302
(9th Cir. 1979), as well as other cases both prior and sub-
sequent 4 5 to Los Angeles, which find 8(aX3) violations on
a similar theory.46 In Los Angeles, supra, a single em-
ployer consisting of three corporations relocated its rec-
reational sales operation from one plant in San Pedro,
California, to two other plants in other cities in Califor-
nia, in the midst of a collective-bargaining agreement
with a labor organization. Respondent therein took the
position that the contract did not cover the plants to
which the work was transferred, and did not apply the
contract's terms to the employees at the new plants. This
action resulted in the terminations of the employees who
were employed at San Pedro.
The Administrative Law Judge, affirmed by the
Board, found that the decision to move was an economic
one, based on the loss of profits and an anticipated loss,
and not based on hostility or animus to the Union. 47 In
fact an allegation that the relocation was utilized as a
means of getting rid of the union was not established by
the evidence.
However, he also found that the contract did apply (in
view of the simple employer finding) to the other two
plants, and Section 8(d) of the Act precludes a party
from making a midterm modification in said agreement
without the consent of the other party. Therefore Re-
spondent modified the contract in midterm without the
consent of the union, by removing the work to another
plant, reducing the wages, and hiring new employees to
replace the employees who had worked at San Pedro. It
was further found that since the terminations of the em-
ployees resulted from the efforts of respondents to
escape the economic obligations imposed by the con-
tract, these terminations were unlawful, since they were
part of a plan to escape such obligations and were "in-
herently destructive of employee interests."
The first question to be determined herein is whether
or not Respondent's actions constituted a midterm modi-
fication of the contract. The General Counsel and the
Charging Party contend that the contract between Re-
spondent and the Union prohibits subcontracting of work
to the trade in these circumstances. Respondent on the
other hand contends that the agreement expressly per-
mits its actions.
4' Am-Del Co Inc. and Compton Service Ca, 225 NLRB 698 (1979);
Rushton & Mercier Woodworking Ca, 203 NLBR 123 (1973).
46 Brown Company, 243 NLRB 769 (1979); Big Bear Supermarkets Nu
3, 239 NLRB 179 (1978).
*' It was found that respondent's labor costs in the contract was a sig-
nificant factor in its decision to relocate. However, it was found that the
fact that high labor costs resulting from bargaining with a union had been
the source of economic straits does not render the decision other than
economic.
The parties disagree as to the meaning of and interrela-
tionship between article III, section 2, and section 3. The
General Counsel and the Charging Party argue that
section III restricts section II and limits the right of Pc-
spondent to engage a subcontractor to perform work
within its normal geographic area, and that Respondent
by section II retains only the right to use trade when
overtime work becomes available and when the normal
compliment of employees cannot handle the work and
the priorities in article V have been complied with.
Respondent on the other hand argues that section II
gives it the unlimited right to go to trade, subject only to
article XVII (which involves new members of the Asso-
ciation) and article V which deals only with recall over-
time, and details an involved procedure dealing with as-
signments for this type of work. Thus, since the record is
clear that the procedures dealing with recall overtime in
article V48 have not been in use for some time at Re-
spondent, article III, section 2, applies, and Respondent
supports its right to change its operations to use of trade
for part of its unit work.
The General Counsel and the Charging Party adduced
no probative evidence4 9 in support of their interpretation
of the agreement. They called no officials of Local 144
or employees who were members of Local 144's bargain-
ing committee to testify in support of such an interpreta-
tion. They rely primarily on statements made in cases
dealing with construction of contracts generally, indicat-
ing that a fair and customary rather than an inequitable
construction of a contract should be preferred," that a
contract should not be interpreted in a way as to lead to
harsh or absurd results,51 and that a construction which
"will result in a contract the parties probably and nor-
mally would enter into, rather than one which is improb-
able and unusual," is preferred. 52
They contend that is inherently illogical, improbable,
and unusual for a contract to provide detailed and specif-
ic limitations on the right of the employer to subcontract
recall overtime work, and then to allow the unfettered
right to subcontract out the normal work of employees.
This would permit the employer to obliterate the entire
unit at any time.
These arguments do have some logic and some persua-
siveness, but in my judgment a careful reading of all the
sections of the disputed articles support the interpretation
of the contract advanced by Respondent.
4' Such as employees signing up on a list indicating their availability
for this kind of work.
4g They contend that past practice supports their interpretation of the
agreement. I do not agree. Although the record reveals that, prior to the
layoff, Respondent attempted to assign work to unit employees before
utilizing trade, the record also reveals that frequently trade was used
without offering the job to unit employees, particularly during the even-
ings. In addition the record revealed that at one point Reapondent elimi-
nated the night shift, which had formerly performed embalminga and re-
movals at night, and gave the work to the trade, without protest from the
Union.
'o Bank of North Carolina N.A. v. Rock Island Bank, 570( F.2d 202, 207
(7th Cir. 1978).
"s Rothlein v. Armour d Co., 87 LRRM 2319 (W.D. Pa. 1974).
's Continental Bus Systems v. N.LR.B., 325 F. 2d 267. 273 (10 Cir.
1963).
637
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article III, section 2, gives Respondent the right to
subcontract subject only to article XVIII and article V.
Similarly article III, section 3, the provision relied on
most heavily by the General Counsel and the Charging
Party, prohibits subcontracting, unless the work has first
been made available to the Employer's remaining em-
ployees, as provided for in article V. When one reads ar-
ticle V, section 2, it specifically refers back to article III,
by providing that "recall overtime work pursuant to Ar-
ticle III, Section 3" shall be made available to the em-
ployees as in the priorities specified therein. Thus, these
priorities seem only to apply in the case of recall over-
time and not to any other type of work. This conclusion
is reinforced by the other provisions of section 2. Subdi-
vision I provides that the essence of this provision is that
the employer be able to achieve coverage by the use of
its regular employees equivalent to that obtainable
through the use of trade. This is made clear by the other
provisions therein, which require employees to sign up
on a list for coverage, specify the dates of their availabil-
ity; which require them to work on these days, subject
to disciplinary action if they do not; and which allow
Respondent to go to trade immediately and indefinitely,
if sufficient coverage is not provided by an employee list
for 2 successive months. In addition, the list of priorities
for assignments provides that after regular employees
comes laid-off employees whom the Employer allows to
sign up for recall overtime. This demonstrates that the
contract contemplated layoffs of employees and that
recall overtime be made available to the remaining em-
ployees of the Employer after such a layoff.
Although in some circumstances it might seem illogi-
cal or inequitable for a union to allow subcontracting of
normal work, and only restrict overtime work, it is obvi-
ous that in this situation that is not the case. The use of
trade in the industry as well as at Respondent is not un-
usual and is in fact commonplace. The provisions dealing
with recall overtime clearly provide for obligations and
committments from both sides ill order to enable the Em-
ployer to service its business adequately. Therefore I
conclude that the Employer by limiting its otherwise un-
qualified right to subcontract in recall overtime situations
has agreed to do so only where the employees can dem-
onstrate the ability to adequately service the Employer
during these hours.
My conclusion is fortified by examining the other ex-
ception to article III, section 2, article XVIII, section 2.
This provides that for the first 6 months after an employ-
er becomes a member of the Association, it cannot avail
itself of the subcontracting option in article III, section 2.
It is clear that this provision as explained by Gallay was
inserted to prevent an employer from joining the Associ-
ation and then immediately subcontracting out all of his
work.
I am therefore persuaded that, although the contract is
somewhat ambiguous, Respondent's interpretation of the
agreement is the correct one and that a fair reading of
the agreement establishes that Respondent is permitted to
subcontract out to the trade, subject only to the two ex-
ceptions set forth above. (Recall overtime work, where
sufficient coverage has been provided by the employees,
and for new Association members.)
Although I make this finding based on my reading of
the contract, I also rely on the testimony of Gallay that
in 1976, when he provided the union negotiators who
were parties to the contract with this long prevailing in-
terpretation of the contract, no union officials present
challenged or objected to such an interpretation.53
The Federal Rules of Evidence, Section 801(dX2)B),
permits the admission of evidence against a party, where
the party has manifested his adoption or belief in its
truth. It is clear that silence can be relied on as such a
manifestation. The Advisory Committee's notes concern-
ing this rule sums up the rationale as follows: "When si-
lence is relied upon, the theory is that the person would,
under the circumstances, protest the statement made in
his presence, if true. The decision in each case calls for
an evaluation of probable human behavior." 54
The record discloses that Gallay explained the prevail-
ing interpretation of a contract negotiated in the past to
Ottley, a new negotiator, in the presence of O'Keefe, Pi-
tassy, and Sustero, all of whom had knowledge of the
truth of Gallay's statements. I find under these circum-
stances that, if Gallay's interpretation were incorrect,
one of these union officials and attorneys, particularly
O'Keefe, would have challenged Gallay's assertions. The
clauses involved are not minor or insignificant provi-
sions. They permit, if Gallay is credited, the Employer
the right to subcontract out all of its work, subject to
two limited exceptions. It is certainly reasonable to be-
lieve that, if this were not so or if the Union believed it
not to be so its officials would have made its position
clear at that time. They did not do so, and I deem it ap-
propriate to conclude, which I do, that their failure to so
protest is supportive of Respondent's interpretation, and
the fact that the Union believed that Gallay was correct
in his analysis of the contract's terms and its provisions.
I note additionally that when Gallay informed Ottley
of this layoff on June 27, and on July 2 when Respond-
ent's representatives met with union officials, Gallay re-
minded Ottley of his previous comments regarding Re-
spondent's rights under the contract. In neither of these
occasions did any union officials dispute Gallay's state-
ments, challenge the right of Respondent to take the
action it did under the contract, or assert that the con-
tract prohibited the subcontracting, as contended by the
General Counsel and the Charging Party. They merely
requested that the scope of the layoff be diminished.
Therefore I find that, contrary to the position of the
General Counsel and the Charging Party, the contract
65 I note that those union officials present included O'Keefe, the prior
president who negotiated the agreement, the Union's attorney Pitasy.
Business Agent Sustero, and employee negotiators who were also present
when the clauses were negotiated.
"4 Fed. R. Evid. 801(dX2XB) Advisory Committee's Notes 1975. See
also United States v. HoosIer. 542 F.2d 687, 688 (6th Cir, 1976); Helleic
Lines Ltd. v. Gdlf Oil Corp, 340 F.2d 398, 401 (2d Cir. 1%5).
638
WALTER B. COOKE, INC.
does not prohibit subcontracting in the circumstances
herein, 56 but in fact permits Respondent to do so. 5 e
The General Counsel and the Charging Party assert
that the evidence establishes that Respondent unilaterally
subcontracted bargaining unit work to the trade, without
affording the Union the opportunity to bargain concern-
ing such action, in violation of Section 8(aX)(1) and (5) of
the Act. 5 7
I find it both unnecessary and inappropriate to make
such a determination on this record.
Preliminarily, I note that the complaint contains no
8(a)(5) allegation, nor any allegation as to a refusal to
bargain concerning the decision to subcontract to the
trade. Moreover, although there were extensive discus-
sions and comments made by the General Counsel and
the Charging Party throughout the course of the hear-
ing, in opening statements, in opposition to a motion to
dismiss, and otherwise, concerning the theory and ration-
ale supporting a violation, no mention was made of a Fi-
breboard violation.5 8 Therefore, Respondent was not at
any time during the hearing made aware of or put on
notice that its alleged failure to notify and/or bargain
with the Union concerning its decision to subcontract
was in issue. The matter was not fully litigated,5 9 and I
find that Respondent would not be afforded due process,
if a violation of Section 8(a)(3) of the Act, were to be
found in whole or in part based on a Fibreboard theory.
Additionally, I am somewhat puzzled by the General
Counsel and the Charging Party's reliance on such a Fi-
breboard violation to establish that the layoffs and sub-
contracting were "inherently destructive of employee
rights," and violative of Section 8(a)(3) of the Act. Al-
though it is not entirely clear, they seem to be equating
the phrase unilateral subcontracting in Fibreboard to a
unilateral midterm modification in violation of Section
8(d), and argue that therefore even if the subcontracting
is permitted under the contract, Respondent's failure to
notify and bargain with the Union prior to its implemen-
tation, automatically translates into an 8(aX3) as well as
an 8(a)(5) violation. This is quite an interesting extension
of Fibreboard. which is I believe unsupported by any
cases. As Los Angeles, and Brown. supra, the cases most
heavily relied on by the General Counsel and the Charg-
ing Party make clear, the finding of an 8(d) modification
's I note that the recall overtime provisions of the contract had not
been in effect at Respondent's premises for many years, and the parties
had not agreed to the reinstatement of the list and the recall overtime
priorities. Thus Respondent was free under the contract to subcontract to
the trade.
5" In this connectioni, I note that where a contract clause is ambiguous
the burden is on the General Counsel to bring forth evidence to explain
the ambiguity and establish that the contract has been violated. Motor
Car Dealers As.,ociation of Greater Kansas City, 225 NLRB 1110 (1976).
a? Fibreboard Paper Products Corporation v. N.LR.B., 279 U.S. 203
(1964); Clevenger Logging. Inc. 220 NLRB 768 (1975); Syufy Enterprise. a
Limited Partnership, 220 NLRB 738 (1975): Pay 'N' Save Corporation, 210
NLRB 311 (1974).
5a While it is true that the complaint does not mention that Respond-
cnt's acts constituted a midternm modification of the agreement, it is clear
from the comments made on the record that this was the basis for the
assertion that Respondent's actions were taken in order to escape the ob-
ligations of the contract and therefore inherently destructive of employee
rights. Thus. Respondent was put on notice that this was in issue.
59 I note that Respondent's counsel did not cross examine on, nor
present witnesses with respect to, this issue.
is independent of and irrelevant to whether the parties
have bargained about the issue. In fact in Los Angeles,
supra, a Fibreboard type violation was alleged but dis-
missed. However, the violations of Section 8(aX5) and
(3) were found in any event, since a modification can be
implemented only with the consent of the other party. In
Big Bear and Rushton, supra, no Fibreboard violations
were alleged. Although in Pay 'N' Save and Clevenger,
supra, 8(a)3) violations were found, along with a Fibre-
board violation, it is clear that other evidence in addition
to the Fibreboard violation was relied on to establish the
8(a)3) violation.60
In the instant case there is no evidence of animus, hos-
tility to the Union, or any other evidence tending to es-
tablish a discriminatory motivation by Respondent. The
General Counsel and the Charging Party place much sig-
nificance on Amato's testimony that in deciding to sub-
contract and to lay off the employees, he was motivated
by a desire to reduce costs and improve profitability. In
that connection Amato conceded that the contract's pro-
vision calling for 8 hours of work per employee was a
problem that he sought to address, since Respondent did
not regularly have 8 hours of work for all of its employ-
ees. Thus, by having work performed by the trade on a
per-call basis, Respondent would no longer be obligated
to provide 8 hours of work per day to its employees and
also would save money on the salaries and benefits under
the contract that it no longer would have to pay to em-
ployees being laid off. The General Counsel and the
Charging Party triumphantly point to this testimony as
establishing that Respondent's motivation was to avoid
the economic obligations of the contract and was there-
fore inherently destructive of employee rights.
However, a close examination of Amato's testimony
established no more than would the testimony of any em-
ployer justifying any decision to subcontract or indeed to
even lay off its employees. Thus, anytime an employer
decides to subcontract, he expects to save money, and
obviously it will do so frequently if not predominantly
from savings that result from its not having to pay the
wages and benefits and/or to guarantee a full day's work
to employees guaranteed under a collective-bargaining
agreement, if one is in existence. Indeed when an em-
ployer decides to simply lay off employees for economic
reasons, it is not uncommon to determine whether there
is sufficient work to keep such employees occupied for a
full day, to justify an employer paying contractually
agreed-upon wages, benefits, and guarantees of hours. It
seems to me that this is all that Amato's alleged admis-
no Thus in Pay 'N' Save, the record revealed various 8(aXl) threats
which permitted a finding that Respondent's actions were motivated by a
desire to disparage and undermine the Union. In Clevenger the record re-
vealed an 8(d) violation, in that the contract specifically prohibited the
subcontracting engaged in by the employer therein. as well as evidence
of unlawful threats by the employer to shut down its own trucks if the
Union persisted in fighting the employer's unilateral institution of a pay
system. In .m-Del Co.. supra, no Fibreboard violation was found but only
a violation on effects bargaining. Indeed in Town & Country Manufactur-
ing Co.. Inc., 136 NLRB 1022 (1962), the case oftenll cited for finding
8(3a)3) violations in such situations, the Board relied on factors other than
the refusal to bargain. such as threats made and hostility to the Union
shown by the Employer's officials, to find discriminatory terminations by
its subcontracting.
639
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions amounted to herein. Clearly, Respondent's business
was faltering, and its profits were decreasing. Thus, to
avoid continuing its operations in such a fashion, it made
some decisions which it felt were necessary to reverse
the trend of lost profits. In doing so it concluded that the
changes in the industry had created a situation whereby
Respondent was paying employees a weekly salary, and
guaranteeing them 8 hours of work, where the work
available was insufficient to keep them busy. Thus, it
concluded that a change to a subcontractor whom it
could pay on a per-call basis was more economical. I
find nothing discriminatory in such a decision by Re-
spondent, even where it may have failed to notify or
consult with the Union prior to implementing its actions.
This brings me to a theory propounded by the General
Counsel and the Charging Party as either alternative or
complementary to their allegation that the subcontract-
ing violated the contract. They argue that the evidence
establishes that Respondent, after the layoff, became a
joint employer with Pyramid over the terms and condi-
tions of employment of Nicosia, Cahill, Mack, Franza,
and D'Errico and with Ruggiero of Tillot. They argue
that at least with respect to these employees, Respondent
did not really subcontract at all, since they remained in
the bargaining unit at all times, except that they did not
receive the wages and benefits provided for in the con-
tract.
My reading of the relevant cases indicates that this
theory may in fact be an essential ingredient to establish-
ing that Respondent's conduct was violative of the Act,
and may very well be so regardless of whether the con-
tract prohibits, permits, or is silent about Respondent's
right to subcontract to the trade in the circumstances
herein.
Indeed, an examination of the cases wherein the Board
has found conduct motivated by a desire to escape the
obligations of a collective-bargaining agreement to be in-
herently destructive, contain a common thread and in-
clude a single-employer finding. Thus, in each case, an
employer by varying mechanisms or devices, such as re-
location of a plant,6 1 subcontracting,8 2 converting em-
ployees to independent contractors and subcontracting,6
closing a plant and reopening at another location, 64 and
franchising one store of a multistore chain,65 effectuated
a transfer of work from a company with a union contract
to another company, either without a union or with a
less expensive union contract. In each case the company
where the bargaining unit was transferred to was found
to be an alter ego of or a single employer with the com-
pany which originally employed employees and were a
party to a union contract. It is in these circumstances,
where the Board finds conduct motivated by a desire to
escape the obligations of a contract to be inherently de-
structive of employee rights, since it would permit an
employer to achieve by indirection (the transfer of work
to its alter ego), what he cannot achieve by direct means
6' Los Angeles, supra.
I2 Brown, supra.
63 Am-Del. supra
64 Rushton & Mercier, supra; Helrose Bindery, Inc. and Graphic Arts
Finishing, !nc, 204 NLRB 499 (1973).
6" Big Bear. supra.
(i.e., the reduction of or elimination of contractual obli-
gations). In such cases terminations resulting from such
efforts of an Employer are inherently destructive of em-
ployee rights. e 6
I note that the facts herein do not come close to estab-
lishing an alter ego or single-employer relationship as
found in the cases cited above, wherein a violation was
found. Indeed such is not even alleged by the General
Counsel or the Charging Party, who instead argue for a
joint-employer finding.
While the Board considers joint- and single-employer
situations interchangeable in terms of various issues such
as jurisdiction, obligation to bargain or to remedy unfair
labor practices, and appropriate unit, it is uncertain
whether a joint-employer finding would be sufficient to
establish inherently destructive conduct. The alter ego or
single-employer findings which are made in the cited
cases imply a lack of an arm's length transaction with the
other company, thereby in effect finding that an employ-
er subcontracted or otherwise transferred work to itself.
In joint-employer situations no such lack of an arm's
length transaction is required, and the basis of the finding
is that one employer while subcontracting in good faith
to an otherwise independent company has retained suffi-
cient control for itself of the terms and conditions of em-
ployment of the employees employed by the subcontrac-
tor, to permit a finding that it is a coemployer over those
employees.
The finding herein would have to be that Respondent,
although in good-faith subcontracting to Pyramid and
Ruggiero, by retaining for itself sufficient control over
the conditions of employment of these employees, has in
effect subcontracted out to itself at least with respect to
these employees. However, I need not decide whether
this argument has merit since I find, as set forth below,
that no joint-employer relationship has been established
between Respondent and either Pyramid or Ruggiero
with respect to any employees.
I note preliminarily that the General Counsel and the
Charging Party do not contend that a joint employer
exists between Respondent and Gallaher or Caffaro, al-
though employees of these firms serviced Respondent's
chapels in Brooklyn and Queens after the layoff, per-
forming the work previously performed by Respondent's
employees employed at these chapels. A number of these
employees of Respondent who worked in its Brooklyn
and Queens chapels were laid off as a result of Respond-
ent's actions, and are includable as discriminatees herein.
No theory has been advanced by either the General
Counsel or the Charging Party as to how the layoffs of
these employees should be found unlawful, absent a
joint-employer finding with respect to Gallaher or Caf-
faro, which firms were assigned the subcontract for this
work.
More significantly, however, the General Counsel and
the Charging Party allege joint-employer status only
with respect to five of Pyramids nine employees, and of
one of three or four of Ruggiero's employees. With re-
spect to Pyramid, although the record was not fully de-
66 Los Angeles. supra: Brown, supra; Rushton, supra.
640
WALTER B. COOKE, INC.
veloped with respect to the four employees employed by
Pyramid who were not former employees of Respond-
ent, it did indicate that at least for some portion of the
13-month period in question these four employees were
stationed at Respondent's premises along with the former
Cooke employees, and performed embalmings and re-
movals on a similar basis with said former Cooke em-
ployees. As for Ruggiero, the record disclosed then,
when Tillot was off, employee Andrews or other Rug-
giero relatives performed work for Respondent.
I note that the record discloses that both Pyramid and
Ruggiero serviced accounts other than Respondent
during this period, and that all Pyramid's employees in-
cluding the five former Cooke employees performed
work servicing these other accounts. Thus, a joint-em-
ployer finding limited to the former employees of Re-
spondent, whose main distinction between themselves
and other employees of the subcontractors seems to be
the fact that they formerly were employed by Respond-
ent appears to me to be a highly doubtful conclusion to
make.
Even apart from the above-cited factors, I find the
record insufficient to establish a joint-employer relation-
ship herein. "The Board has long held that the critical
factor in determining whether a joint employer relation-
ship exists is the control which one party exercises over
the labor relations policy of the other."67 In the instant
case, Pyramid and Ruggiero were responsible for their
own hiring, 68 disciplining, and discharging 69 its employ-
ees. The employees are paid by the subcontractors from
a separate payroll, and their hours of work are regulated
by these Employers.7 0 There is no evidence of any joint
ownership or joint management, and no evidence of a
prior relationship between the parties which persuades
me that their dealings were at less than arm's length. In
6' O'Sullivan, Muckle, Kron Mortuary, 246 NLRB 164, 165 (1979); The
Southland Corporation d/b/a Speedee 7-Eleven, 170 NLRB 1332, 1334
(1968).
" The fact that Respondent recommended that Pyramid and Ruggiero
hire certain employees including those actually hired is of minimal signifi-
cance. There was no requirement that these companies hire anyone and
in fact they did not hire all those recommended by Respondent. In this
connection, see John Breuner Company, 248 NLRB 983 (1980), where the
Board found the fact that an Employer required a subcontractor to hire
its former employees and to apply the seniority provisions of the employ-
er's contract vis a vis these employees, was insufficient to establish a joint-
employer relationship.
59 I attach even less significance to the single incident testified to by
Cahill concerning his discharge from Pyramid. I note that although his
discharge resulted indirectly from his failure to obey Quinn's instruction
to perform an arrangement, in fact he was terminated only after Mule
gave him the same order and he failed to comply. Moreover, it is undis-
puted that at do time did Quinn or any other official of Respondent re-
quest, order, or even suggest that Cahill be discharged or disciplined in
any way for this conduct.
'o It is true as pointed out by the General Counsel that since the em-
ployees are paid on a per-call basis, their wages and to some extent their
hours are controlled indirectly by Respondent. However, this is true with
respect to all Of the trade houses in the industry, both before and after
the layoffs. In the instant case Pyramid for the first week paid its employ-
ees on a weekly salary, but then decided that it would be more profitable
to switch to a per-call basis. This decision was made without any consul-
tation with Respondent, insofar as the record discloses. It would be
anomalous indeed to base a joint-employer finding on such a unilateral
decision made by a subcontractor. In any event I find such indirect con-
trol over wages and hours to be insufficient to establish a joint-employer
relationship.
fact, as noted, Pyramid was used by Respondent along
with numerous other trade houses, both before and after
the layoffs, in essentially the same fashion, with the post-
layoff procedures and work performed essentially the
same, except for the fact that additional work was being
performed by Pyramid and Ruggiero.
In this connection the alleged "supervision" of Pyra-
mid and Ruggiero employees, by Respondent's personnel
giving limited instructions about work performance and
informing employees of jobs to be performed was in
most respects similar to pre- and postlayoff conduct in-
volving trade houses in the industry in general, as well as
with Respondent in particular.
The only significant difference in the pre- and post-
layoff relationship between Pyramid and Respondent
concerns Pyramid having moved its office into Respond-
ent's premises at 85th Street. This resulted in substantial
periods of time where Mule and Zunno were not present
and where Respondent's officials or employees would
either call up or walk down to the basement office at
85th Street to dispatch Pyramid's employees. However, a
close examination of the facts reveals that the amount of
control exercised by officials and/or employees of Re-
spondent over the terms and conditions of employment
of Pyramid's employees in these circumstances is quite
minimal and unsubstantial. In fact the record reveals that
the employees of Pyramid had formulated their own
system of work assignments in which they would try to
equalize the work as much as possible. In most cases a
call would come down or a visit made to the office by a
Cooke employee, and a request would be made for any
employee to perform a particular job, and it made no dif-
ference to Respondent which employee was selected.7 '
The fact that Pyramid moved its office from the Ponce
Funeral Home in Brooklyn to Respondent's 85th Street
chapel, I find to be even less probative of a joint-employ-
er relationship. 72 I note that the move was made primar-
ily for the convenience of Pyramid and Pyramid's em-
ployees, and at the request and behest of Pyramid's offi-
cials. 73 In addition, the price paid to Pyramii by Re-
spondent was reduced by 20 percent as a result of the
move.7 4
The record also revealed that Respondent permitted
Pyramid to use Respondent's vehicles in emergency situ-
ations, and that on a few occasions Franza, pursuant to a
request by a supervisor of Respondent, engaged in some
limited supervision over a registered resident employed
by Respondent by staying in a room with the resident, as
requested by law, while he was performing embalmings.
II The instances disclosed by the record, where Respondent would re-
quest that a "former Cooke employee" or a particular former Cooke em-
ployee be assigned for certain jobs, usually directions, were infrequent
and would not be sufficient to establish a joint-employer relationship. See
OSullivan Muckle, supra
"7 California Labor Industries, Inc, 249 NLRB 600 (1980); John
Breuner. supra.
73 This action therefore can be considered merely an example of Re-
spondent and Pyramid engaging in management coordination in the best
interests of both companies. Furniture Distribution Center Inc., 234 NLRB
751 (1978).
74 Note that in California and John Breuner, supra, there was no reduc-
tion in price as a result of the subcontractor using the premises of the
Employer as its office, and still no joint-employer relationship was found.
641
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While these facts do tend to support a joint-employer
finding,75 I find them, as well as some other factors cited
above, which similarly support such a finding, such as
the indirect control of wages and hours, to constitute
limited instances of participation in the management of
Pyramid and Ruggiero by Respondent, set against an
otherwise complete absence of participation in its labor
relations. (California, supra.) The minimal amount of con-
trol exercised by Respondent in the context of the entire
relationship between Respondent and Pyramid and Rug-
giero, I regard as insufficient to warrant the conclusion
that Respondent was a joint employer of any of the em-
ployees of these trade houses. 76
The General Counsel and the Charging Party have
cited a number of cases supporting their contentions that
a joint-employer relationship exists herein. 7 I have care-
fully read these cases and conclude that the facts in these
and other cases cited reveal much more extensive and
substantial control over the labor relations of the em-
ployees of the subcontractors therein, than were present
in the instant case.
Having found that no joint-employer relationship exist-
ed between Respondent and any of the employees em-
ployed by Pyramid or Ruggiero, and that the collective-
bargaining agreement permitted Respondent to subcon-
tract work to the trade, in the circumstances present
herein, there is very little left supportive of the General
?s I attach little or no significance to the testimony that Pyramid em-
ployees were asked by Mule, their own supervisor, to fill in for Respond-
ent's employees on a few holidays. This appears to me to be no more
than an extension of their functions as employees of a subcontractor, to
do work that Respondent's employees are unable for one reason or an-
other to perform.
le O'Sulliwn, Muckle, supra; California, supra, John Breuner, supra;
Furniture, supra; The Southland Corp., supra.
77 Sun-Maid Growers of California, 239 NLRB 346 (1978), enfd. 104
LRRM 2543 (9th Cir. 1980); Clayton B. Metcalf and C. B. Construction
Co., 223 NLRB 642 (1976); Cycle Cleaning Corp. and Maurice Gershman
d/b/a Queens Nassau Nursing Home, Joint Employers, 218 NLRB 1213
(1970); Floyd Epperson and United Dairy Farmers Inc., 202 NLRB 23
(1973), enfd. 491 F.2d 1390 (6th Cir. 1974).
Counsel and the Charging Party's case. There remains
only the testimony of Amato that he was motivated in
part in his decision to lay off and subcontract by the fact
that the contract then in existence guaranteed 8 hours of
work a day for its employees. I have already concluded,
as discussed more fully infra, that such an admission
hardly qualifies as establishing a "desire to avoid the ob-
ligations of a collective bargaining agreement," sufficient
to establish that Respondent's actions were inherently de-
structive of employee rights.
Accordingly, I find that the General Counsel has not
established by a preponderance of the evidence that Re-
spondent's conduct in laying off some of its employees
and thereafter subcontracting the work previously per-
formed by these employees to various subcontractors
was violative of the Act. Therefore, I shall recommend
dismissal of the complaint in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Local 144 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not violated the Act as alleged.
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the Act, I hereby issue the following recommendation:
ORDER 78
The complaint is hereby dismissed in its entirety.
78 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
il Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
642