Cypress Lawn Cemetery Assn.

National Labor Relations Board - Board Decisions

Oct 31, 1990

300 N.L.R.B. 609 (N.L.R.B. 1990)

609
300 NLRB No. 67
CYPRESS LAWN CEMETERY ASSN.
1 The Respondent asserts that the judge’s resolution of credibility, findings
of fact, and conclusions of law are the results of bias. After a careful examina-
tion of the entire record we are satisfied that this allegation is without merit.
Furthermore, it is the Board’s established policy not to overrule an adminis-
trative law judge’s resolutions with respect to credibility unless the clear pre-
ponderance of all the relevant evidence convinces us that the resolutions are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 In affirming the judge’s conclusion that the Respondent violated Sec.
8(a)(5) by unilaterally implementing its New Operations Plan in September
1986, we find it unnecessary to rely on the judge’s discussion of deferral to
an arbitration award pursuant to the principles of Olin Corp., 268 NLRB 735
(1984), and Spielberg Mfg. Co., 112 NLRB 1080 (1955). The parties have
stipulated that they do not want deferral to that award in resolving the unfair
labor practice issues in this case.
We find no merit in the Respondent’s argument in exceptions that it did
not violate Sec. 8(a)(5) by implementing the New Operations Plan because it
acted pursuant to an alleged ‘‘sound and arguable basis’’ for interpreting the
broad management-rights clause in the parties’ contract as permitting this uni-
lateral change. The Respondent relies on NCR Corp., 271 NLRB 1212 (1984),
in support of this argument. For the reasons fully set forth in Johnson-Bateman
Co., 295 NLRB 180 (1989), we find NCR inapposite. The judge’s findings in
this case fully disclose that, as in Johnson-Bateman, there is no contractual
provision specifically addressing the subject matter of the Respondent’s
changes and susceptible of two equally plausible interpretations, the Respond-
ent’s unilateral action was not based on a substantial claim of contractual
privilege, and the dispute here is not solely one of contract interpretation.
We find it unnecessary to rely on the judge’s quotation of a summary of
the Board’s analysis of bad-faith surface bargaining issues in United Tech-
nologies Corp., 296 NLRB 571 (1989). This analysis is not applicable to the
determination of whether the Respondent’s unilateral changes, without any
prior notice to or bargaining with the Union, violated Sec. 8(a)(5).
Finally, we affirm the judge’s conclusion that the Respondent’s assistant su-
perintendents were supervisors within the meaning of Sec. 2(11) of the Act
when they coercively solicited employees to sign decertification petitions in
June 1988. The record is unclear whether the assistant superintendents were
also bargaining unit members at that time. If they were not, their coercive con-
duct is attributable to the Respondent based solely on their statutory super-
visory status. If they were, we agree with the judge’s finding that their coer-
cive conduct is attributable to the Respondent under the test set forth in Mont-
gomery Ward & Co., 115 NLRB 645 (1956).
3 The Respondent shall reimburse employees for out-of-pocket losses result-
ing from its failure to make contractual benefit funds payments. See Kraft
Plumbing & Heating, 252 NLRB 891 (1980). The computation of backpay due
as a consequence of the Respondent’s unlawful unilateral changes shall be
made as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), rather
than as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950). Finally,
we shall substitute a new notice with provisions paralleling those in the
judge’s recommended Order.
Cypress Lawn Cemetery Association and Cemetery
and Greens Attendants Union Local 265, affili-
ated with Service Employees International
Union, AFL–CIO and Cemetery and Greens
Attendants Union Local 265, affiliated with
Service Employees International Union, AFL–
CIO; Building Service Employees Pension
Trust; Building Service Health and Welfare
Trust. Cases 20–CA–20739, 20–CA–22063, and
20–CA–22350
October 31, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On April 12, 1990, Administrative Law Judge Joan
Wieder issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Cypress Lawn Cemetery
Association, Colma, California, it officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order, except that the attached notice is substituted
for that of the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT urge, encourage, and solicit our em-
ployees to file a petition to decertify the Union, and/or
coercively solicit our employees’ signatures.
WE WILL NOT withdraw recognition from or refuse
to bargain collectively with Cemetery and Greens At-
tendants Union Local 265, affiliated with Service Em-
ployees International Union, AFL–CIO as the rep-
resentative of our employees in the appropriate unit de-
scribed as follows:
All employees covered under the terms of the
March 1, 1985 to February 29, 1988, collective-
bargaining agreement between Associated Ceme-
teries and the Union.
WE WILL NOT refuse to apply the collective-bargain-
ing agreement and unilaterally implement changes,
terms, and conditions of employment, including: uni-
laterally implementing the New Operations Plan, fail-
ing to maintain a dental benefit plan, failing to contrib-
ute to the Union’s health and welfare plans, failing to
contribute to the Union’s pension trust, establishing a
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1989 unless otherwise stated.
2 Based on this admission, I find Respondent is an employer within the
meaning of Sec. 2(2) of the Act, engaged in commerce within the meaning
of Sec. 2(6) and (7) of the Act.
3 Respondent admits and I find the following employees constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning of Sec.
9(b) of the Act:
All employees covered under the terms of the March 1, 1985, to February
29, 1988, collective-bargaining agreement between the Associated Ceme-
teries and the Union.
4 Unless otherwise indicated, all references to Kingstone-Hunt are to Tony
Kingstone-Hunt, and all references to Mora are to Serafin Mora.
safety committee, changing the grievance procedure,
granting a cost-of-living allowance and base pay ad-
justment, establishing individual performance bonus,
changing the sick leave accumulation policy, estab-
lishing for each employee life insurance in the amount
of $50,000 granting education leaves, tuition payments,
and cash awards for suggestions, but we will not re-
scind any benefits we have already instituted.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with the
Union as the exclusive representative of the employees
in the above-described unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
WE WILL make whole employees represented by the
Union in the described unit by paying on their behalf
all health and welfare, pension, and dental funds,
which have not been paid and which would have been
paid absent our unilateral discontinuance of such pay-
ments, and continue such payments until such time as
we negotiated in good faith to new agreement or to an
impasse.
WE WILL, on request, restore the status quo ante to
the implementation of the New Operations Plan, and
make the bargaining unit employees, described above,
whole, with interest, for any losses or expenses they
may have incurred as a result of our unlawful unilat-
eral changes in their terms and conditions of employ-
ment.
CYPRESS LAWN CEMETERY ASSOCIATION
Boren Chertkov, Esq., for the General Counsel.
Ned A. Fine, Esq. (Fisher & Phillips), of San Francisco,
California, for the Respondent.
W. Daniel Boone. Esq. (VanBourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. These cases
were tried in San Francisco, California, on various days in
September and November 1989.1 The charge in Case 20–
CA–20739 was timely filed on November 7, 1986, by Ceme-
tery and Greens Attendants Union Local 265, affiliated with
Service Employees International Union, AFL–CIO (the
Union or Charging Party). The charge in Case 20–CA–22350
was timely filed on December 5, 1988, by the Union and
Building Service Employees Pension Trust (the Pension
Trust) and the Building Service Health and Welfare Trust
(the H & W Trust). The charge in Case 20–CA–22063 was
timely filed on July 8, 1988, by the Union and a complaint
was issued on August 22, 1988. This complaint was consoli-
dated with the other cases by order dated March 31, 1989.
The consolidated complaint alleges that Cypress Lawn Cem-
etery Association (Respondent or Company) violated Section
8(a)(1) and (5) of the National Labor Relations Act.
The complaint in Case 20–CA–22063 specifically alleges
Respondent violated Section 8(a)(1) of the Act by soliciting
employees to withdraw from the Union. This complaint also
alleges Respondent violated Section 8(a)(5) and (1) of the
Act by withdrawing recognition from the Union and then
unilaterally implementing new terms and conditions of em-
ployment. The consolidated complaint in Cases 20–CA–
20739 and 20–CA–22350 alleges Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by implementing what it
called a New Operations Plan without bargaining with the
Union and ceased making contributions to various health and
welfare and pension trust funds without bargaining with the
Union.
The Respondent, in its answer to the complaint, as amend-
ed, conceded, inter alia, that it meets one of the Board’s ju-
risdictional standards,2 but denies committing any unfair
labor practices.
On the entire record, including my observation of the wit-
nesses, and after careful consideration of the posttrial briefs
filed by counsel for General Counsel and Respondent, I
make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a nonprofit California corporation engaged
in the operation of a cemetery in Colma, California. Re-
spondent and the Union have a long-term collective-bar-
gaining relationship.3 The last agreement was negotiated with
a multiemployer association, Associated Cemeteries, and was
effective through February 1988. In late 1987, Respondent
withdrew from the multiemployer association and, until June
1987, bargained with the Union independently. Respondent
also informed the Union it would be represented by Indus-
trial Employers and Distributors Association, by letter dated
December 23, 1987. There was no testimony concerning the
involvement of Industrial Employers and Distributors Asso-
ciation in any contract negotiations with the Union.
In May 1985, Respondent appointed a new general man-
ager, Tony Kingstone-Hunt. During some of the time here
pertinent, particularly in June 1988, Serafin Mora was assist-
ant general manager,4 but he did not handle any labor rela-
tions matters at this time. Subsequently, Mora succeeded
611CYPRESS LAWN CEMETERY ASSN.
5 The parties stipulated Kingstone-Hunt was arrested and convicted of child
molestation, a felony, shortly after he testified in the arbitration proceeding.
S. Mora then became Respondent’s general manager.
6 On or about June 3, 1986, Brusin resigned his position, and after a hiatus
until August, Pence hired Carolyn Del Gaudio as the Union’s part-time busi-
ness agent. Brusin had been the business agent from about February 1986 until
his resignation in June 1986. Pence acted as business agent during this hiatus.
Del Gaudio has left Respondent’s employ and she did not testify at the unfair
labor practice hearing but did testify at the arbitration proceeding.
Kingstone-Hunt as Respondent’s general manager.5 In Sep-
tember 1985, Kingstone-Hunt promoted Tom Torvik to the
position of assistant superintendent, and directed Torvik to
compile a list of all the tasks performed by each employee
in the unit.
Based on Torvik’s study, Kingstone-Hunt developed a
‘‘New Operations Plan’’ which changed the jobs previously
performed by the employees in the Union, and distributed the
plan to the employees on or about July 29, 1986. The plan
was implemented in September 1986, without prior notice to
the Union. The Union filed a grievance and the matter was
arbitrated. On June 20, 1988, the arbitrator, Charles A.
Askin, issued his decision.
The parties have stipulated they do not want deferral to the
Askin decision and further stipulated the arbitration record
would be considered the instant proceeding to permit full
consideration of the unfair labor practice charges in Cases
20–CA–20739 and 20–CA–22350. The parties also stipulated
Respondent made unilateral changes after June 30, 1988, as
alleged in paragraphs 10 and 12 of the consolidated com-
plaint in Cases 20–CA–20739 and 20–CA–22350 and para-
graphs 13 and 15 of the complaint in Case 20–CA–22063,
without bargaining with the Union.
B. Implementation of the New Operations Plan
On or about February 5, 1986, T. Kingstone-Hunt sent a
memorandum to all union employees announcing a meeting
to discuss ‘‘work conditions, job responsibilities, operations
and plans and the future etc.’’ The memorandum also indi-
cated how impending plans would affect the employees’ fu-
ture and security. The meeting notice declared ‘‘it is essential
that nobody be absent’’ and ‘‘we must have 100% attend-
ance.’’ T. Kingstone-Hunt requested the union steward, Tony
Ferrari, assist him in setting up the meeting.
Mark Pence, the Union’s secretary-treasurer, saw the meet-
ing announcement on or about February 5, 1986, and told the
Union’s part-time business agent, Michael Brusin,6 to contact
Kingstone-Hunt, to inform him the Union was very upset
about what appeared to him in an attempt to negotiate ‘‘some
kind of plan with the—members’’ and to inform Kingstone-
Hunt it was the Union’s responsibility to negotiate with the
employer.
Ferrari gave the Union a copy of the memorandum and
talked to Kingstone-Hunt about setting up the meeting, but
he was unsuccessful in meeting Kingstone-Hunt’s require-
ments. Ferrari, while talking with Kingstone-Hunt, requested
the presence of a Union representative at the employee meet-
ing. Kingstone-Hunt replied absolutely not and if Ferrari at-
tended the meeting, it would be only as an employee, not as
union steward.
Pence spoke to Kingstone-Hunt who told him: ‘‘that he
would implement any plan that he wanted to, that it was his
property, that he would just do whatever he wanted to and
that he didn’t have to bargain with the union.’’
According to Ferrari’s uncontroverted testimony, after the
issuance of the meeting announcement, there were rumors
circulating among the employees, including some employees
would be reassigned without regard to seniority, that the re-
assignments might result in employees doing jobs they did
not like or were not used to. On July 29, 1986, in response
to the rumors, Kingstone-Hunt circulated a memorandum to
all employees stating, as here pertinent:
Most of you are by now aware that management has
for several months been developing a New Operations
Plan.
The details of this new operating procedure have not
been made available to you because all the details have
not been finalized and because we have been under-
going certain changes in the administrative staff which
needed to be addressed first. . . .
The new plan is designed to permit each employee
to identify with and be more proud of his contribution.
It will do much to ensure job security while preparing
us for the changes that are coming as we approach the
time when Cypress is filled to capacity. And it will
make a more even distribution of work load and enable
us all to claim once again that Cypress Lawn is the
most beautiful cemetery.
Pence was given a copy of this missive and instructed the
business agent, Del Gaudio, to confer with Kingstone-Hunt
to inform him he needed to negotiate with the Union. Pence
also telephoned Kingstone-Hunt on or about August 4, 1986.
Kingstone-Hunt informed Pence: ‘‘that he was going to im-
plement any plan that he wanted to, that it was his property
and he—he was going to do what he wanted to, that he
didn’t need to bargain with the union over this.’’
On or about September 2, 1986, Pence was given a copy
of the New Operations Plan by Del Gaudio. The plan had
been distributed to the employees. The New Operations Plan
begins with the statement:
The manner in which Cypress Lawn Memorial Park has
heretofore assigned workers and scheduled their tasks
has been unscientific and somewhat haphazard and has
resulted in unfair distribution of work so that some men
have been required to perform relatively ‘hard labor’ on
a more or less continuous basis throughout the work
day while others have had tasks which required little
exertion.
The statement then recognizes that ‘‘absolutely equal dis-
tribution of work is impossible.’’
Concerning Respondent’s collective-bargaining obligation,
the New Operations Plan opines:
Certainly nothing in the contractual negotiations with
the union and in the resulting agreements has ever been
intended to suggest that seniority preferences related to
quantity of work but to type of work or assignment.
‘‘Where merit and ability are approximately equal, se-
niority shall govern.’’ refers to the employee’s request
to be assigned to a ‘‘job.’’ Job creation is the responsi-
bility and the right of management. In this regard, it
should be clearly understood that the term ‘‘job’’ refers
to any grouping of ‘‘tasks’’ which in the view of man-
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 According to Del Gaudio, Kingstone-Hunt also said, during this conversa-
tion, ‘‘that, if necessary, he would take a strike and fire scabs and accept res-
ignations from the employees,’’ indicating that no matter what the Union did,
the New Operations Plan would remain in effect. These threatening comments
do not appear unusual. I credit Ferrari’s uncontroverted testimony that
Kingstone-Hunt informed him he would fire the last 10 men hired if an em-
ployee meeting did not occur. Ferrari, who testified in an open and honest
manner, also said Kingstone-Hunt was ‘‘always threatening people with lay-
offs or firing or suspensions. . . . He called employees radicals and terrorists
and threatened to fire several employees because they were bitchers.’’ I credit
his testimony.
agement combine to require an average of 8 hours of
work per day.
The plan created three ‘‘divisions,’’ each headed by a
foreman, as follows: human remains disposition—George
Erasmy, foreman; buildings maintenance—Jack Sala, fore-
man; and, grounds maintenance—Guillermo Mora, foreman.
The duties of the foreman, according to the New Operations
Plan, are as ‘‘Working-Foremen, not administrators. They
will work with their crews performing equal tasks to achieve
the desired results within the necessary time frame.’’ The
plan also foresees the need to ‘‘cross-over’’ in tasks but sees
each division ‘‘dependent upon itself.’’
Concerning job assignments, the plan provided:
The Union agreement states that Seniority should
govern in job assignments when merit and ability are
approximately equal. This new Work Plan, therefor,
starts by presenting the Divisions to the workers. Each
employee will thus be given the opportunity to apply
for his preferred Division. Through the Foremen, each
employee will have an opportunity to request his pre-
ferred ‘‘job’’ within that Division. It will be noted that
virtually no ‘‘jobs’’ in the new Divisions are the same
as what are considered ‘‘jobs’’ under the current sys-
tem.
When each employee has made known, in writing, to
the Foremen, his personal preference for a specific
‘‘job,’’ management will allocate jobs based on the fol-
lowing criteria: First—Merit and Ability; Second—Se-
niority; Third—Preference.
The plan assigns 7 men to Sala’s crew, 5 men to Erasmy’s
crew, and 12 men to Mora’s crew. The specific duties of
each crew are detailed. It is uncontroverted Respondent im-
plemented the New Operations Plan without informing the
Union and negotiating about such implementation.
Kingstone-Hunt gave a copy of the New Operations Plan to
every employee.
Pence instructed Del Guadio to file a grievance with
Kingstone-Hunt. Before the grievance was filed, Pence tele-
phoned Kingstone-Hunt and according to Pence’s
uncontroverted testimony:
I told Mr. Hunt that this—this operation plan was,
you know, I felt was—was absurd and unfair, that
there—that he had never attempted ever to negotiate
with the union at all, that he just went ahead and, you
know, did what he wanted to, that I felt that, you know,
we needed, you know, to negotiate this.
And frankly what he told me is that if we attempted
to arbitrate this or if we won an arbitration, that he
would go nonunion. He said that there would be no
way that the union was going to tell him what to do,
that it was his property and he was going to run it the
way he saw fit.
Pence informed Kingstone-Hunt during this conversation
that he was concerned about Respondent not bargaining with
the Union and assigning workers unfamiliar tasks for which
they had not been trained which could increase their risk of
termination. He also related his concern that the change
could result in an employee being assigned a much more dif-
ficult task for which he would not receive equitable com-
pensation. Another care was the apparent disregard of the
contract’s seniority provisions.
Pence made several telephonic demands on Kingstone-
Hunt to negotiate with the Union about the New Operations
Plan and according to Pence:
Mr. Hunt’s responses to everything was that it, you
know, that it’s his property and he’s going to run it the
way he wanted to and the union is not going to tell him
how to—how to operate his property, that, you know,
that he felt that he didn’t need to negotiate with the
union. That’s always been his—his response to every-
thing.
Kingstone-Hunt also told Pence on another occasion he
would not bargain with the Union over the New Operations
Plan, ‘‘the union is not going to dictate to him about his
cemetery.’’
Respondent argues that the business agents, Brusin and
Del Guadio, engaged in written correspondence with
Kingstone-Hunt about many matters and it was inconsistent
for Pence to communicate one or more demands to bargain
about the New Operations Plan verbally only, in contrast to
what appears to be the practice of establishing a paper trail
of union demands. I find this argument unpersuasive.
Kingstone-Hunt admitted Del Gaudio discussed the New
Operations Plan with him and said her comments could be
termed a demand to bargain, although he would not so term
her statements. Del Gaudio testified at the arbitration hearing
that during a telephone call on or about September 15, 1986,
she informed Kingstone-Hunt:
I felt that he could not unilaterally implement such a
plan as one that reorganized the entire work force at the
cemetery. That it was my opinion that he would need
to bargain with the union prior to its implementation.
According to Del Gaudio, Kingstone-Hunt replied in a
manner similar to his response to Pence, he said he had the
total right to implement such a plan, he would not allow the
Union and its employees to run the cemetery. Kingstone-
Hunt admitted having many conversations with Del Gaudio
about the New Operations Plan and management’s right to
structure the jobs and decide what work is to be done and
by whom. He also admitted at the arbitration hearing that he
would not let the Union dictate; he would run the cemetery
in the way he wanted.7
When Ferrari was requested by Kingstone-Hunt to arrange
an employee meeting concerning the New Operations Plan,
he refused Ferrari’s request for a union representative to at-
tend the meeting, and said he was going ahead with it wheth-
613CYPRESS LAWN CEMETERY ASSN.
8 The Respondent and Union stipulated during the arbitration proceeding that
if the Union made a demand to bargain about the New Operations Plan it
would have been refused by the Employer. It was further agreed the Employ-
er’s position is that it had no obligation to consult with, give notice to, or bar-
gain with the Union about implementation of the plan.
9 I find the creation of paid vacations to Hawaii and comparable locals, with
spending money, under the New Operations Plan, is compensation for services,
as a reward for good work, and as such are wages, not a gift; therefore it is
a mandatory subject of bargaining. NLRB v. Wonder State Mfg. Co., 344 F.2d
210 (8th Cir. 1965). These bonuses amount to a significant economic benefit
to individual employees and the New Operations Plan declared it was a benefit
that would be available as a condition of employment. Getty Refining Co., 279
NLRB 924, 924 (1986). This is a condition of employment Respondent must
bargain with the Union about.
10 Kingstone-Hunt testified at the arbitration proceeding that the New Oper-
ations Plan was implemented with a view to reducing labor costs by reducing
staffing from 24 to 18 within 5 years.
11 The Board held, at 639:
Initially we note that mandatory subjects of bargaining are those which
set a term or condition of employment or regulate the relation between
the employer and the employee. [Latex Industries, 252 NLRB 855, 857
(1980)] We thus find that the terms of an employee’s transfer clearly af-
fect employment conditions and are a mandatory subject of bargaining.
It is well settled that a union has a statutory right to be consulted about
a change affecting the terms and conditions of employment.
er the Union liked it or not, and if Ferrari had any quarrels
with it to file a grievance.
Pence, the Union’s chief elected officer who hired busi-
ness agents and oversaw the Union’s financial affairs as well
as holding a full-time position as a cemetery worker, dem-
onstrated he had very little time to conduct all the Union’s
affairs and no staff to assist him. He therefore took expedient
ways of conducting union business. There was no evidence
refuting his claimed practice of taking the most expedient
route to conducting union business. Pence testified in an
open and honest manner, he appeared to attempt to fully re-
spond to the questions, seeming more plausible and con-
vincing, and I credit his testimony. I therefore find that the
Union made several demands on Respondent to bargain
about the proposed and thence implementation of the New
Operations Plan.8
By letter dated October 1, 1986, Del Gaudio filed a griev-
ance concerning the New Operations Plan. The letter pro-
vides:
Specifically, we are concerned that several of the
new job assignments consolidate tasks which were pre-
viously being performed by two people, under one job
heading. Thus, your plan requires one person to per-
form a specified amount of work which before was
being done by two or more employees. In effect, this
undercuts the wage scale which was negotiated by the
parties to the Contract and which is set out in Section
9.
Therefore, pursuant to Section 20(A) of the Contract,
this constitutes written notice to you that your New Op-
erations Plan is in violation of the wage scale set out
in Section 9 of the Contract.
The Union was also concerned the New Operations Plan al-
tered other terms and conditions of employment.
The grievance was considered at a board of adjustment
and, according to Ferrari, Kingstone-Hunt again stated he
was going to operate the cemetery in the manner he wanted
and was not prepared to bargain with the Union over any
part of the New Operations Plan.
The grievance went to arbitration and hearings were con-
ducted on September 30, December 8 and 9, 1987, and Janu-
ary 26, 1988. The statutory issues raised by unfair labor
practice charges related to the subject matter of the arbitra-
tion were specifically excluded from consideration by the ar-
bitrator. Consolidated with the New Operations Plan griev-
ance was the grievance of the reassignment of Remo
Castiglioni under the New Operations Plan. The parties stipu-
lated the arbitration record into the instant unfair labor prac-
tice proceeding and agreed that the arbitration record, four
transcripts and accompanying exhibits, be considered by me
in determining the merits of the consolidated complaints. By
opinion and award dated June 20, 1988, the arbitrator,
Charles A. Askins, found:
1. The Employer violated the agreement in its imple-
mentation of the New Operations Plan.
2. The Employer shall rescind the New Operations
Plan and reinstate the job classification system which
was in effect in September, 1986.
3. The Arbitrator retains jurisdiction of the remedy
portion of this Award and any dispute with [respect]
thereto.
After implementation of the New Operations Plan, Pence
also instructed Del Gaudio to circulate a petition among the
employees which read: ‘‘would you prefer working under job
reassignment plan or working under past job conditions.’’ Of
about 22 permanent employees, 18 signed under the column
entitled ‘‘past’’ and none signed under the column entitled
‘‘new.’’
Discussion
It is well established an employer violates Section 8(a)(5)
and derivatively (1) of the Act by unilaterally changing the
terms and conditions of employment of its employees with-
out first providing their collective-bargaining representative a
meaningful opportunity to bargain about those changes.
NLRB v. Katz, 369 U.S. 736 (1962); NLRB v. Borg Warner
Corp., 356 U.S. 342 (1958). The parties do not contest the
changes made by the implementation of the New Operations
Plan if the changes are mandatory subjects of bargaining. For
example, the plan provided for bonuses, which is a manda-
tory subject of bargaining, see Singer Mfg. Co., 24 NLRB
444 (1940), modified on other grounds and enfd. 119 F.2d
131 (7th Cir. 1941), and its progeny;9 workloads and work
standards, Woodside Cotton Mills Co., 21 NLRB 42 (1940);
subcontracting pursuant to the plan, where, as here, Respond-
ent indicated a purpose for implementation of the New Oper-
ations Plan was to reduce labor costs,10 and there was no
evidence of a reduction in revenues or a significant change
in the nature or direction of the enterprise. Timken Roller
Bearing Co., 70 NLRB 500 (1946), enf. denied on other
grounds 161 F.2d 949 (6th Cir. 1947); Brown Co., 278
NLRB 783 (1986); G. Heileman Brewing Co., 290 NLRB
991 (1989); and, terms of employees’ transfers to other posi-
tions, Kansas National Education Assn., 275 NLRB 638
(1985);11 discipline, NLRB v. Bachelder, 120 F.2d 574 (7th
Cir. 1941); NLRB v. BASF Wyandotte Corp., 798 F.2d 849
(5th Cir. 1986).
Respondent argues the implementation of the New Oper-
ations Plan was not an unlawful unilateral change in terms
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The arbitrator determined the New Operations Plan, as unilaterally imple-
mented, violated the agreement because sec. 3(B) of the agreement requires
that the work customarily performed by employees be performed in ac-
cordance with past practices. . . . This dispute does not involve an as-
serted employee right to resist any job assignment. The Union protests
management’s decision to abolish virtually all of the existing jobs and im-
plement new classifications in the face of the contractual language that
work customarily performed by employees shall be done in accordance
with past practices.
and conditions of employment requiring bargaining because
it was contractually permissible. First, Respondent asserts
there is a broad management-rights clause permitting the re-
assignment of tasks under the New Operations Plan. Next, it
asserts any restrictions in the contract upon management
rights is limited to subcontracting under Section 3(B) of the
collective-bargaining agreement.12
The management-rights clause of the collective-bargaining
agreement provides:
The parties hereto have a mutual interest in securing
efficient business operations, and desire to cooperate to
that end. It is the duty and right of the Employer to
manage the business and direct the working forces sub-
ject to the conditions herein set forth. This includes the
right to hire, transfer, promote, layoff, and discharge for
proper cause provided that this will not be for the pur-
pose of discrimination against employees, and is subject
to the Grievance Procedure provided in Section 20.
Section 3(B) of the agreement provides:
Employees shall perform any and all work custom-
arily performed by them in and about Employers’ prop-
erties in accordance with past practices, and such work
shall be in the exclusive jurisdiction of the Union. The
use of particular types of mechanical equipment pres-
ently operated by members of the Union in performing
such work shall remain in the exclusive jurisdiction of
the Union.
Respondent argues section 3(B) of the agreement refers only
to subcontracting. There was no clear and convincing testi-
mony establishing a contractual restriction of the application
of this section to subcontracting. Further, there was no legal
basis for imposing such a restriction. After the arbitration
award, the Union agreed with one multiemployer association
to modify this section of the contract to restrict its applica-
tion to subcontracting. Accordingly, I conclude the record
fails to warrant the interpretive restriction sought by Re-
spondent.
General Counsel did not deem deferral appropriate and
issued the complaint but argues Respondent should not pre-
vail on the theory the management-rights clause permitted
unilateral implementation of the New Operations Plan with-
out bargaining for the issue is one of contract interpretation
which was parallel to the issue effectively resolved by the ar-
bitrator. Since Respondent does not contend the arbitration
proceedings were unfair or irregular or any party did not
agree to be bound by the award, as the award is not clearly
repugnant to the Act, General Counsel, however, urges the
contractual issue is effectively resolved and deference is re-
quired. Citing Dennison National Co., 296 NLRB (1989).
At the commencement of the arbitration proceeding, the
Union requested and Respondent specifically refused to agree
to presentation to the arbitrator of the issue of whether there
was a violation of Section 8(a)(5) of the Act by their imple-
mentation of the New Operations Plan; Respondent agreed
only to arbitration within the parameters of the collective-
bargaining agreement; which is interpretation and application
of provisions of the agreement. In Olin Corp., 268 NLRB
573 (1984), the Board set forth the criteria for Board deferral
to arbitration awards as follows:
We would find that an arbitrator has adequately con-
sidered the unfair labor practice if (1) the contractual
issue is factually parallel to the unfair labor practice
issue, and (2) the arbitrator was presented generally
with the facts relevant to resolving the unfair labor
practice. In this respect, differences, if any, between the
contractual and statutory standards of review should be
weighed by the Board as part of its determination under
the Spielberg standards of whether an award is ‘‘clearly
repugnant’’ to the Act. And, with regard to the inquiry
into the ‘‘clearly repugnant’’ standard we would not re-
quire an arbitrator’s award to be totally consistent with
Board precedent. Unless the award is ‘‘palpably
wrong,’’ i.e., unless the arbitrator’s decision is not sus-
ceptible to an interpretation consistent with the Act, we
will defer.
Finally, we would require that the party seeking to
have the Board reject deferral and consider the merits
of a given case show that the above standards have not
been met. Thus, the party seeking to have the Board ig-
nore the determination of an arbitrator has the burden
of affirmatively demonstrating the defects in the arbitral
process or award.
I conclude Respondent has failed to affirmatively dem-
onstrate the defects in the arbitral process or award. I con-
clude the contractual issue resolved by the arbitrator was fac-
tually parallel to the unfair labor practice issue concerning
the New Operations Plan. Columbia University, 279 NLRB
130 (1986); Badger Meter, 272 NLRB 824 (1984). At the
most, Respondent would have me second-guess the arbitrator
concerning the meaning of a paragraph of contract. I find the
arbitrator’s interpretation not clearly repugnant to the pur-
poses of the Act. Spielberg Mfg. Co., 112 NLRB 1080
(1955). I also find the arbitrator’s decision is not ‘‘palpably
wrong.’’ As noted above, the evidence that the contract was
modified after the arbitration decision to reflect limitation of
the terms of section 3(B) of the agreement to subcontracting,
in the absence of any evidence warranting interpreting the
contract to contain such a limitation absent such modifica-
tion, supports the arbitrator’s decision, and warrants my mak-
ing the same finding. International Harvester Co., 138
NLRB 923, 929 (1962), affd. sub nom. Ramsey v. NLRB,
327 F.2d 784 (7th Cir. 1964), cert. denied 377 U.S. 1003
(1964).
As the Board noted in Dennison National Co., supra:
In an unfair labor practice proceeding on the merits
of the statutory issue, the Board must consider whether
the Respondent’s action constituted a unilateral change
in violation of its bargaining obligation under Section
8(a)(5) of the Act. . . .
The Board’s involvement at this postarbitration de-
ferral stage, however, is not in the nature of an appeal
615CYPRESS LAWN CEMETERY ASSN.
by trial de novo. It is not necessary that the cases have
been presented to the arbitrator the way the General
Counsel might have presented it with the benefit of
hindsight. Moreover, notwithstanding that the arbitra-
tor’s award may not be totally consistent with Board
precedent, deferral is appropriate unless . . . [shown]
that the award is not susceptible to an interpretation
consistent with the Act.
Inasmuch as Respondent has withdrawn recognition from
the Union, rendering the arbitration proceeding ineffective as
a means of redress, and the unilateral change which was the
subject of the arbitration is asserted to be, and is found, to
be an unfair labor practice, I conclude judicial enforcement
is not the only means of redress warranting dismissal of this
complaint. In this respect the doctrine of Spielberg, supra,
and Malrite of Wisconsin, 198 NLRB 241 (1972), are not ap-
plicable. See Autoprod, Inc., 265 NLRB 331 (1982). I also
note this unlawful action preceded Respondent’s withdrawal
of recognition of the Union as the employees’ collective-bar-
gaining representative.
Since the parties stipulated there would be no deferral to
the arbitration decision, deference is not appropriate under
Spielberg, supra, I conclude the management-rights clause in
the collective-bargaining agreement did not authorize Re-
spondent to unilaterally implement the New Operations Plan.
One reason the management-rights clause does not save Re-
spondent harmless is, many of the unilateral changes imple-
mented by Respondent under the New Operations Plan did
not relate to the management rights specified in the collec-
tive-bargaining agreement. The general right to ‘‘manage the
business and direct the working forces’’ is not the requisite
clear and unmistakable waiver. Metropolitan Edison v.
NLRB, 460 U.S. 693 (1983); Timken Roller Bearing Co. v.
NLRB, 325 F.2d 746, 751 (6th Cir. 1963), cert. denied 376
U.S. 971 (1964); Technicolor Government Service v. NLRB,
739 F.2d 323, 327 (8th Cir. 1984); A-1 Fire Protection, 273
NLRB 964 (1984). ‘‘National labor policy disfavors waiver
of statutory rights by a union and thus a union’s intention
to waive a right must be clear before a waiver can succeed.’’
Chesapeake & Potomac Telephone Co. v. NLRB, 687 F.2d
633, 636 (2d Cir. 1982). The broad general phrase ‘‘manage
the business and direct the working forces,’’ in the absence
of any evidence of bargaining history, fails to demonstrate
the requisite ‘‘clear and unmistakable waiver.’’
Similarly, the provision in the management-rights clause
granting the employer the ‘‘right to hire, transfer, promote,
lay off and discharge for proper cause,’’ does not grant the
employer the right to unilaterally change any and all existing
terms and conditions of employment. Suffolk Child Develop-
ment Center, 277 NLRB 1345, 1350 (1985). The seniority
provisions of section 5, the temporary workers provisions of
section 6, the wage section of section 9, the benefit plans,
other provisions relating to terms and conditions of employ-
ment contained in the collective-bargaining agreement, and
established practices for transferring employees based pri-
marily on seniority, have not been superseded by the man-
agement-rights clause.
The majority of employees testifying in the arbitration pro-
ceeding claimed, without refutation from Kingstone-Hunt or
line management, that they received their job assignments
based on seniority, not merit and ability. They further testi-
fied their assignments under the New Operations Plan were
not based on seniority. Section 5 of the collective-bargaining
agreement provides, as here pertinent:
A. Where merit and ability are approximately equal,
seniority shall govern in all cases of promotion or job
assignment. In cases of layoff and rehire, seniority shall
be the only rule.
These same employees also testified at the arbitration pro-
ceeding, after their initial assignments when they were hired,
subsequent assignments were made after they were asked if
they wanted the transfer and they were the most senior em-
ployees willing to accept the position. The only exception to
this testimony was German Lopez who clearly believed man-
agement prior to Kingstone-Hunt did not like him and oper-
ated by favoritism. He admitted Kingstone-Hunt favored him
and he was given positions by Kingstone-Hunt based on fa-
voritism. I do not credit his testimony, which was singularly
opposed to all the other employee witnesses and because of
his admitted bias toward Kingstone-Hunt and his style of
management.
On the other hand, I had the opportunity to observe
Pellegrino Perone, and he appeared to be attempting to an-
swer all questions fully and honestly. I therefore credit his
corroborated testimony that Respondent, prior to implementa-
tion of the New Operations Plan, made job assignments and
transfers based on seniority after consulting with the affected
employees concerning their wishes. I also credit the
unrefuted testimony of employees at the arbitration pro-
ceeding that their new jobs under the plan were so designed
that they could not perform all the assigned duties.
I find the management-rights clause does not constitute a
waiver of the Union’s right to bargain about terms and con-
ditions of employment. The management-rights clause cannot
be construed as a waiver of the Union’s right to bargain for
there was no evidence such massive restructuring of job as-
signments without regard to seniority was ever discussed in
contract negotiations and there is no evidence of a past prac-
tice of union acquiescence in the Respondent’s unilateral im-
plementation of the New Operations Plan or similar changes.
There was some evidence another signatory to the collec-
tive-bargaining agreement, Holy Cross cemetery, made
changes in assignments of its bargaining unit employees dur-
ing 1983 to 1985, but these changes were subsequently dis-
cussed with the Union and those employees who protested
their job assignments were reassigned.
The Board stated the general principles of waiver of statu-
tory rights in Johnson-Bateman Co., 295 NLRB 180, 184–
185 (1989), as follows:
It is well settled that the waiver of a statutory right
will not be inferred from general contractual provisions;
rather, such waivers must be clear and unmistakable.
[Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708
(1983)]. Accordingly, the Board had repeatedly held
that generally worded management-rights clauses or
‘‘zipper’’ clauses will not be construed as waivers of
statutory bargaining rights. [Suffolk Child Development
Center, supra at 1350; Kansas National Education
Assn., 275 NLRB 638, 639 (1985). Cf. Rockford Manor
Care Facility, 279 NLRB 1170 (1986).] In Suffolk
Child Development Center, for example, the Board
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
found that the management-rights clause did not con-
stitute a waiver by the union of its right to bargain
about changes in medical benefits, because there was
not specific reference in that clause to employee med-
ical benefits or other terms of employment. Likewise,
in Kansas National Education Assn., supra at 639, the
Board found that language in the management-rights
clause reserving to management ‘‘the right to carry out
the ordinary and customary functions of management
and adopt policies . . . and practices in furtherance
thereof’’ did not constitute a waiver by the union of its
right to bargain about employee transfer arrangements.
More specifically, the Board found ‘‘[t]he provision is
at best vague and as such insufficient to meet the stand-
ard of a ‘clear and unmistakable waiver.’’’
Waiver of a statutory right may be evidenced by bar-
gaining history, but the Board requires the matter at
issue to have been fully discussed and consciously ex-
plored during negotiations and the union to have con-
sciously yielded or clearly and unmistakably waived its
interest in the matter. [Rockwell International Corp.,
260 NLRB 1346, 1347 (1982).]
In the instant case, there was no evidence adduced con-
cerning the bargaining history of the management-rights
clause, no less a clear showing the Union ‘‘consciously
yielded or clearly and unmistakably waived its interest in the
matter.’’ Id.
Analogously, the Board held in Angelus Block Co., 250
NLRB 868, 877 (1980):
A zipper clause must meet the standard of any other
alleged waiver. It is well established that in order to es-
tablish waiver of the statutory right to bargain in regard
to mandatory subjects of bargaining, such as is involved
here, there must be a clear and unequivocal relinquish-
ment of such right. Even where a zipper clause is
couched in broad terms, it must appear from an evalua-
tion of the negotiations that the particular matter in
issue was fully discussed or consciously explored and
the union consciously yielded or clearly and unmistak-
ably waived its interest in the matter. This is particu-
larly true where, as here, an employer relies on the zip-
per clause to establish its freedom to unilaterally
change, or institute new, terms and conditions of em-
ployment not contained in the contract.
Assuming arguendo, there was evidence during negotia-
tions the management-rights clause was ‘‘fully discussed or
consciously explored,’’ Respondent failed to follow long-es-
tablished procedure of asking employees if they wanted a
transfer to a different position and making such transfers
based on seniority. Under the New Operations Plan more
permit men were hired than allowed in the collective-bar-
gaining agreement, and the temporary employee provisions
were not followed. Kingstone-Hunt admitted in the New Op-
erations Plan, past practices would not be followed.
Also, the New Operations Plan instituted additional re-
wards such as time off with pay and mentioned the hope to
develop a bonus system. Some employees have subsequently
been granted the time off and been given paid days off and
vacations in addition to the contractually mandated benefits,
such as a company paid trip to Hawaii, with spending
money. A new disciplinary tool, referred to as report cards,
was instituted. Jobs such as road sweeping and rodent control
were performed, to some extent, by outside contractors, rath-
er than by the employees, who performed them prior to the
implementation of the New Operations Plan. The crematory
jobs were combined. In fact some jobs, like Perrone’s, which
had been dedicated to the maintenance of the sprinkler sys-
tem, were eliminated. Respondent failed to adduce any evi-
dence these changes and employee transfers were based on
merit and ability or were otherwise in accord with the provi-
sions of the collective-bargaining agreement.
I find these changes in terms and conditions are mandatory
subjects of bargaining and were material, substantial, and
significant. As previously noted, some jobs, such as sprinkler
man and mower, were virtually eliminated and the job of
section man was a new position. The addition of the report
cards to the disciplinary system is also a material, substan-
tial, and significant change requiring bargaining. Rust Craft
Broadcasting of New York, 225 NLRB 327 (1976); Murphy
Diesel Co., 184 NLRB 757, 763 (1970).
In sum, I find there was no clear and unmistakable waiver
by the Union of any collective-bargaining rights for there
was no evidence the matter was ever discussed during nego-
tiations. If there was such a discussion, some of the terms
and conditions of employment not encompassed in the man-
agement-rights clause were unilaterally modified by Re-
spondent when it implemented the New Operations Plan.
Based on these and subsequent findings, I conclude Respond-
ent unlawfully implemented these changes without affording
the Union an opportunity to bargain, and there was no im-
passe or consent given by the Union. Respondent’s conduct
constitutes a violation of Section 8(a)(5) and (1) of the Act.
Marriot Corp., 258 NLRB 755, (1981), enfd. 759 F.2d 1441
(2d Cir. 1983), cert. denied 464 U.S. 829 (1983).
Respondent also argues the Union failed to demand to bar-
gain. I find this claim to be without merit. In Al Landers
Dump Truck, 192 NLRB 207, 208 (1971), the Board stated:
The Board and the courts have repeatedly held that a
valid request to bargain need not be made in any par-
ticular form, or in haec verba, so long as the request
clearly indicates a desire to negotiate and bargain on
behalf of the employees in the appropriate unit con-
cerning wages, hour, and other terms and conditions of
employment. [Accord: Marysville Travelodge, 233
NLRB 527 (1977); Trucking Water Air Corp., 276
NLRB 1401 (1985); RTW Industries, 296 NLRB 910
(1989).]
I find the Union by Pence and Del Gaudio, demanded to
discuss what they perceived as changes in the terms and con-
ditions of employment of all the unit employees occasioned
by the implementation of the New Operations Plan.
Kingstone-Hunt admitted replying he could do whatever he
wanted in job assignments; demonstrating he understood the
demand to bargain but believed he had no obligation to ne-
gotiate over the New Operations Plan. Accordingly, I find
Del Gaudio’s and Pence’s statements to be demands to bar-
gain with the Union as the appropriate representatives of the
employees affected by the New Operations Plan. Such de-
mands further indicate there was no waiver by the Union of
their right to negotiate on behalf of the employees they rep-
resent concerning the New Operations Plan.
617CYPRESS LAWN CEMETERY ASSN.
13 The collective-bargaining agreement provides working foremen are con-
sidered to be members of the bargaining unit.
As the Board found in United Technologies Corp., 296
NLRB 571 (1989):
In determining whether a party has bargained in bad
faith, the Board looks to the totality of the cir-
cumstances in which the bargaining took place. Hotel
Roanoke, 293 NLRB 182 (1989); Port Plastics, 279
NLRB 362, 382 (1986); Atlanta Hilton & Tower, 271
NLRB 1600, 1603 (1984). The Board examines not
only the parties’ behavior at the bargaining table, but
also conduct away from the table that may affect the
negotiations. Hotel Roanoke, above; Port Plastics,
above. Among other indicia that a party has bargained
in bad faith, the Board also considers whether a party
has engaged in delaying tactics and whether a party has
made unilateral changes in mandatory subjects of bar-
gaining. Atlanta Hilton & Tower, above.
Kingstone-Hunt implemented the New Operations Plan ad-
mittedly without first providing the Union any opportunity to
bargain about these changes. As previously indicated, these
were material and substantial changes in the terms and condi-
tions of employment. I, therefore, conclude Respondent has
bargained in bad faith in violation of Section 8(a)(5) and (1)
of the Act by unilaterally implementing the New Operations
Plan.
C. Withdrawal of Recognition
Respondent withdrew recognition from the Union on June
28, 1988, shortly after the arbitration decision issued. Re-
spondent contends this withdrawal is appropriate based on
employee petitions raising a good-faith doubt the Union rep-
resented a majority of the employees in the unit. General
Counsel asserts the record does not establish Respondent had
a reasonable good faith belief the Union no longer rep-
resented a majority of the employees. Initially, General
Counsel asserts recognition was withdrawn in the face of
unremedied unfair labor practices, i.e, the unilateral imple-
mentation of the New Operations Plan in violation of Sec-
tions 8(a)(5) and (1) and 8(d) of the Act and its promotion
of the circulation of decertification petition, including the in-
volvement of supervisors in the soliciting of signatures.
1. Status of assistant superintendents as supervisors
and/or agents
General Counsel contends Respondent’s three assistant su-
perintendents solicited signatures for the decertification peti-
tion. Thus, it must be initially resolved whether George
Erasmy, Guillermo (Willie) Mora, and Jack Sala were super-
visors within the meaning of Section 2(11) of the Act and/or
agents of Respondent within the meaning of Sections 2(2)
and 2(13) of the Act. Respondent denies they or any other
supervisors and agents were involved in soliciting signatures
for the decertification petition.
Under Section 2(11) of the Act, a supervisor is defined as:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Possession of any one of these powers is sufficient to confer
supervisory status on the individual having such authority.
NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571, 576 ( 6th
Cir. 1948), cert. denied 335 U.S. 908 (1949); Ohio Power
Co. v. NLRB, 176 F.2d 385, 387 (6th Cir. 1948), cert. denied
338 U.S. 899 (1949).
An agent within the meaning of Section 2(2) and (13) of
the Act is defined in American Door Co., 181 NLRB 37, 41,
(1970), as an employee who, under all the circumstances, the
other employees could reasonably believe was reflecting
company policy, and speaking and acting for management.
In a notice to all employees, dated September 10, 1985,
entitled ‘‘Employment Opportunities,’’ Respondent an-
nounced: ‘‘We are currently considering a new management
position in the administration: Assistant Superintendent. . . .
This is a nonunion position.’’ Prior to filling these positions,
Respondent, on August 11, 1986, issued a memo to all em-
ployees appointing ‘‘Workforce Divisions Foremen. Sala was
designated foreman buildings and structures division, Mora,
foreman grounds maintenance division, and Erasmy, foreman
of the interments division. This memo assigned the employ-
ees to one of these three units and indicated the foremen po-
sitions are to be working positions.13 This memorandum also
stated: ‘‘The Foremen will, in the coming weeks and months,
arrange all positions to insure that each man has as much in-
dividual control over his own efforts as possible. . . . The
choosing of the individuals for each posted position will be
made by the Foremen themselves, as a group, in consultation
with the superintendent.’’
On December 12, 1986, Kingstone-Hunt issued a notice to
all employees as follows:
In order to achieve more effective management of
the general operations, we have created a new manage-
ment position.
We are pleased to announce the promotion to man-
agement of the following three employees . . . .
George Erasmy—Assistant Superintendent; Guillermo
(Willie) Mora—Assistant Superintendent; Jack Sala—
Assistant Superintendent.
The Assistant Superintendents will take over their
new responsibilities effective December 15, 1986.
Respondent, on December 15, 1986, in a message ad-
dressed to all union staff members with the subject the gen-
eral authority of assistant superintendents, declared:
Assistant Superintendents will continue to function
within their former areas of responsibilities.
However, in the interest of efficiency, each of them
is also authorized to issue instructions to or make re-
ports on any Union employee[s].
This statement is similar to that describing the duties of the
foremen in the New Operations Plan, however it also clearly
gives them the authority to ‘‘issue instructions’’ and make
disciplinary reports.
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Kingstone-Hunt claimed only he could hire and fire, but this was refuted
by Serafin Mora who testified as follows:
A. The job description for the superintendents states that the super-
intendent has the authority to hire and fire.
Q. Did Mr. Kingstone-Hunt ever tell you that only he had the authority
to hire and fire, in his opinion?
A. No, he did not.
Mora claims he hired employees prior to becoming general manager while
Kingstone-Hunt was the general manager and with Kingstone-Hunt’s knowl-
edge. Mora independently hired other employees with the knowledge of
Kingstone-Hunt and fired at least one employee, Johnson. I credit this testi-
mony of Mora for it is an admission against Respondent’s interests.
The union agent, Del Gaudio, sent Kingstone-Hunt a letter
on or about December 18, 1986, stating the three assistant
superintendents were promoted to management positions and
are not currently members of the bargaining unit, hence
‘‘they will no longer be able to perform work which is in
the exclusive jurisdiction of the union employees.’’ When
Pence received a copy of Del Gaudio’s letter he called
Kingstone-Hunt and:
A. Um—I Asked him if these were—if these were
union workers or management personnel? Did they
have the right to, to discipline?
And he told me they had the right to discipline and
that they weren’t bargaining unit employees, that they
were management employees, that they weren’t going
to do any work on the property. . . .
Q. Did you—uh—did he—did you ask him—so you
asked him whether or not they were going to do bar-
gaining unit work, is that—uh?
A. That’s correct. He told me they were superintend-
ents, that they weren’t going to do bargaining unit
work, that they, you know, were going to handle man-
agement—the management side of labor relations.
Kingstone-Hunt admitted during the arbitration proceeding
to referring to the assistant superintendents as management
but claimed he never endowed them with supervisory author-
ity.14 Respondent did not reply to Del Gaudio’s December
18, 1986 letter. Kingstone-Hunt did admit assistant super-
intendents had the power to evaluate the work of employees
but claimed only he had the authority to fire employees. The
Union filed a grievance because after awhile, the assistant
superintendents were doing bargaining unit work on occa-
sion. According to Del Gaudio’s testimony at the arbitration
proceeding, which was unrefuted, Kingstone-Hunt, in 1986,
agreed the assistant superintendents would not do bargaining
unit work. In 1987, during a board of adjustment meeting,
this grievance was discussed, and Respondent then took the
position the assistant superintendents were not supervisors so
they could perform bargaining unit work.
Tony Ferrari credibly testified that for awhile, after the
memo announcing their appointment was distributed, the
three assistant superintendents did not do any bargaining unit
work, and gradually thereafter, they began doing some bar-
gaining unit work. Ferrari informed Erasmy he was manage-
ment and was not supposed to engage in ‘‘union work.’’
Erasmy apologized and said ‘‘old habits are hard to break.’’
Erasmy did not contradict Ferrari’s testimony concerning this
conversation. Ferrari similarly informed Sala he should not
be doing bargaining unit work. Ferrari prepared a grievance
prior to these conversations concerning assistant supervisors
performing bargaining unit work.
Steven Rozzi, a current employee who has worked for Re-
spondent about 8 years, corroborated Ferrari’s testimony. Ac-
cording to Rozzi, Erasmy:
handed me a memo listing that Mr. Erasmy and Jack
Sala and Willie Mora were now made superintendents.
And that they were welcome to management, is what
it stated in the memo.
And I told Mr. Erasmy that, ‘‘Well, if you’re turning
to management and that we’re union, you can’t do
union work.’’ And he agreed with that. He goes, ‘‘No,
I can not operate the hoe or do any union work any-
more.’’
Prior to distribution of the memo, Erasmy was the number
one backhoe operator on the internment crew. After the
memo was distributed, Rozzi became the number one oper-
ator of the backhoe on that crew. About 3 months after
Erasmy became an assistant superintendent, he began to per-
form unit work, a factor which led to Ferrari’s filing a griev-
ance. Erasmy claimed he continued to work the backhoe
‘‘whenever it was needed, on and off,’’ that he never ceased
operating the backhoe.
I credit Rozzi’s testimony where it conflicts with Erasmy’s
statements based on the attitude and demeanor of the wit-
nesses. Rozzi appeared more plausible and convincing. Also,
Rozzi’s testimony was corroborated by Ferrari, both of these
witnesses were employed by Respondent in the unit at the
time they testified. Federal Envelope Co., 147 NLRB 1030,
1036 (1964), citing Georgia Rug Mill, 131 NLRB 1304,
1305 fn. 2 (1961), modified on other grounds 308 F.2d 89
(5th Cir. 1962). Further, there was no refutation of the testi-
mony Rozzi was promoted to the position of number one
backhoe operator. If Erasmy continued in his former posi-
tion, there would have been no need to elevate Rozzi, and
have Rick Slyter take Rozzi’s backup position.
When the assistant superintendents began performing bar-
gaining unit work, a grievance was filed and Kingstone-
Hunt, according to Pence’s unrefuted testimony in this pro-
ceeding and Del Gaudio’s in the arbitration proceeding, dur-
ing a board of adjustment, Respondent represented the assist-
ant superintendents would not do bargaining unit work. Sub-
sequently, by letter dated June 6, 1987, Respondent sent the
Union a letter stating:
At the time that they were designated assistant super-
intendents, December 15, 1987, it was anticipated that
they would begin to provide much more active leader-
ship than in the past, and as a result, would have little
or no time for hands-on work. . . .
Therefore, it is the view of management that they
have never ceased to meet the standards for working
foremen under the collective bargaining agreement, and
continue to do so, and for the purposes of the agree-
ment are working foremen.
This letter further corroborates the testimony that for about
3 months after their appointment as assistant superintendents,
Sala, Erasmy, and Mora did not engage in bargaining unit
work.
I conclude Respondent held the assistant superintendents
out as supervisors, not working foremen. In addition to the
619CYPRESS LAWN CEMETERY ASSN.
15 See Turnbull Cone Baking Co., 271 NLRB 1320 (1984).
16 I credit Slyter’s testimony. He answered in an open and direct manner.
17 Sala disclaimed having the authority to hire or fire or recommend termi-
nation.
18 John Sala, the son of Assistant Supervisor Sala, was hired on Sala’s rec-
ommendation. His son started first as a temporary summer employee during
school and then he became a full-time employee. John Sala was a student and
temporary employee in June 1988.
19 Sala had been the only working foreman at the cemetery for about 10
years before he was appointed one of the three assistant superintendents.
20 Sala initially testified he never issued a written warning letter or sus-
pended an employee. On cross-examination he admitted Tom Kingstone-Hunt
received a written warning and was suspended based on his conversation with
Tony Kingstone-Hunt. This testimony was inconsistent, and indicated a lack
of forthrightness and candor which was also visibly noticeable during this wit-
ness’ testimony. Based on his demeanor, I do not credit Sala’s testimony
where it is not an admission against Respondent’s interests. He appeared elu-
sive and unresponsive and at times inconsistent and implausible. I note this
decision is buttressed by the amount of testimony elicited from Sala through
the device of leading questions.
above referenced communications and memoranda, as late as
1988, Respondent, in a proposed collective-bargaining agree-
ment, had the assistant superintendents handling the first-step
grievances. Also, the assistant superintendents attended a
management conference,15 ceased attending union meetings,
and Kingstone-Hunt in a letter to Del Gaudio dated March
3, 1987, deleted them from health coverage under the
Union’s plan. At the bottom of the letter is the note, ‘‘delete,
promoted to [management], effective 1/87, George Erasmy,
Guillermo Mora, German Lopez, Carmelo Sala, and Serafin
Mora.’’ It is unknown who made the note, but the individ-
uals ostensibly promoted were not listed as employees for
whom Respondent has been making contributions into the
Union’s health insurance plan. These representations were
made prior to and during the time the decertification petitions
were circulated. The assistant superintendents were included
on the management vacation list for the initial period fol-
lowing their appointments to that position.
Respondent argues the assistant superintendents were not
supervisors; they did not possess one of the powers specified
in Section 2(11) of the Act. General Counsel claims the as-
sistant superintendents performed the duties of supervisors
and enjoyed management benefits. The initial area of dispute
is whether assistant superintendents can hire and fire employ-
ees.
According to Rozzi, whom I have found to be a credible
witness, Erasmy told him, in the presence of Slyter, while
criticizing their work and in response to Rozzi’s question
what he could do about it, replied he could hire and fire.
Slyter,16 in corroboration, testified Erasmy said; ‘‘I can hire
and fire him.’’ According to Cotroneo, Sala helped him get
his job. Sala admitted he could recommend hiring.17 Re-
spondent’s payroll records apparently reflect this ability for
they include Jack Sala’s cousin, Joe Sala, brother-in-law, Di
Santi, and, his son, John Sala.18 Serafin Mora’s brother,
Willie Mora, works for Respondent as do his cousins Hector
Gonzalez and Ernesto Moreno. In further corroboration,
Perrone testified Erasmy ‘‘told me that he had the power to
hire. He could have fired me or whatever.’’ Based on the
credited testimony of current employees Rozzi, Slyter, and
Perrone, the employment list and Sala’s admission, I find the
assistant superintendents could effectively recommend indi-
viduals to be hired.
I also find the assistant superintendents displayed the au-
thority to discipline and effectively recommend discipline of
employees. Rozzi was given a disciplinary warning dated
July 1, 1987, signed by German Lopez as superintendent and
George Erasmy as assistant superintendent. The warning in-
dicates if Rozzi did not alter his bad driving habits he would
be transferred to another position. Erasmy handed Rozzi the
warning and Rozzi discussed it with him at that time and for
the next few days.
As part of the recordkeeping that could result in discipline,
the assistant superintendents filled out weekly performance
evaluations which they and the employees called ‘‘report
cards.’’ These report cards were part of the employees’ per-
sonnel files and rated employees in more than 30 categories
of job performance. The report cards were in use from Au-
gust 1987 until June 3, 1988, when they were discontinued.
The performance evaluations contained on the report cards
were used in an award system. According to Sala, if an em-
ployee was rated as a very good worker, he got an award,
such as a trip to Hawaii. On June 16, 1988, employee Mi-
chael Jimenez received the fourth performance award, ‘‘an
all expense paid trip to Hawaii or some other place of his
choosing at the same cost and an additional week of paid va-
cation.’’
Sala19 also testified he believed consistently bad ‘‘report
cards’’ could lead to the recipient being disciplined, includ-
ing termination, because: ‘‘Well, I mean, you see those thing
is like a report card. If the report card is good, you go to
the next class. If the report is bad, you go back to next
class.’’ The employees knew the assistant superintendents
were filling out ‘‘report cards,’’ and the assistant super-
intendents gave each employee in their unit a copy of the
completed document. Slyter found the ‘‘report cards’’ an
‘‘extreme’’ cause for concern for on occasion they contained
negative statements.
Moreover, Ferrari, in unrefuted testimony, stated Jack Sala
told him ‘‘that he had saved Pino from losing his job be-
cause they were going to fire him for getting into an argu-
ment with George Erasmy. And he said he saved Pino
Perrone’s job, that he had done him a favor.’’ Sala admitted
that he asked Kingstone-Hunt to discipline his son, Tom
Kingstone-Hunt, and thereafter his son was given a rep-
rimand and suspended based on this discussion.20 I conclude
the credited evidence establishes the assistant superintendents
can effectively recommend discipline.
Sala initially testified his buildings and maintenance crew,
in particular the janitors, ‘‘automatically know what they are
going to do.’’ He does not do much janitorial work, only on
occasion. The work of the other employees on his crew is
routine. Concerning a special project called the sun garden,
Sala ‘‘direct[s] the work. . . . Make[s] sure it’s done right’’
by following an engineer’s diagram. He estimates about 50
percent of his weekly worktime is spent directing the sun
garden project if there are not many funerals. Ever since his
appointment as an assistant superintendent, he has led the
families to the burial site, ensuring there was a sufficient
number of pallbearers. Depending on the number of funerals,
between 10 to 50 percent of his time is spent handling funer-
als.
Sala also admitted on cross-examination he gave instruc-
tions to the internment crew. Rozzi testified Erasmy assigned
him his duties each morning, based on the schedule of funer-
als recorded in a daybook. Erasmy would come and tell him
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Gonzalez appeared to be vacillating and uncertain in any testimony he
perceived as unfavorable to his employer. I have not credited his testimony
except where it is unfavorable to Respondent. His general demeanor did not
appear open and candid.
22 The New Operations Plan provides, in part: ‘‘some men may wish to
change ‘jobs’ or some Foremen may wish to reassign men based on merit and
ability.’’ As previously noted, in a September 10, 1985 memo to all employ-
ees, Respondent announced: ‘‘We are currently considering a new manage-
ment position in the administration: Assistant Superintendent.’’
23 Erasmy claimed: ‘‘I told Steve Rozzi at one time that if he didn’t like
it on the crew, that he could transfer out.’’ As previously noted, Erasmy was
not a credible witness. His admission Rozzi was told he could transfer to an-
other crew without explaining the mechanism by which this could be accom-
plished, fails to provide the requisite authenticity to overcome his lack of
credibility based on demeanor.
if there was a change in assignments or of any ‘‘excess’’
work they needed to do that day. Counsel for General Coun-
sel argues the assignment of excess work reveals the assistant
superintendents assign other than routine work.
I conclude the evidence fails to show any work assign-
ments are other than routine. The excess work was not de-
scribed in detail and the evidence does not permit a finding
it is other than routine. Giuseppe Sala, Assistant Super-
intendent Sala’s cousin, a 16-year employee, testified he is
currently on Mora’s crew and his job does not require in-
structions. Rozzi admitted he could tell from the assignment
sheet what he has to do based on his knowledge and 8 years
experience. However, Erasmy informed him of the order in
which the graves were to be dug that day and the time he
had to accomplish each task. Willie Mora told Hector Gon-
zalez which sections he was assigned and when his assign-
ments changed. He also testified: ‘‘Usually, the foreman tells
you, you know, what are you going to be doing.’’21 There
was no evidence either Erasmy or the other assistant super-
intendents were mere conduits for their superiors or that the
employees believed that was their role. The employees that
testified referred to the assistant superintendents as their
‘‘boss’’ or ‘‘supervisor.’’
In Litton Educational Publishing, 214 NLRB 413, 417
(1974); the Board held:
It is undisputed that all three leadmen assign and
check work and are charged with the responsibility of
maintaining an even flow of work. It is also clear that
Unbricht informed the employees that the three
leadmen were supervisors. The record also reveals that
all three transfer employees to other work areas. Al-
though Respondent contends that these transfers occur
only with the consent of high management officials
. . . there is no evidence that the employees were told
that the leadmen were merely conduits for the instruc-
tions. Furthermore, it appears that these temporary
transfers were instigated by the leadmen, who admit-
tedly had the responsibility to keep the workflow even,
and Respondent offered no evidence that any transfer
requests by leadmen were ever refused.
The facts herein do not present a typical ‘‘leadman’’
situation, which involves a skilled or experienced em-
ployee directing the work of lesser skilled employees.
Instead the record indicates that [the leadmen] do very
little work similar to that performed by other employ-
ees, but rather spend almost all their time assigning
sorting, checking, and keeping the workflow even.
The New Operations Plan circulated to the employees pro-
vided the changes Respondent made, including the appoint-
ment of assistant superintendents, was to even out the
workflow. The announcements of the New Operations Plan
indicated the assistant superintendents were managers.22
They were placed on the managers’ vacation schedule and at-
tended managers’ meetings, including a long weekend out of
town. Their uniforms were slightly different, their jackets
were a superior quality.
Further indicia of the assistant superintendents status as
supervisors was their ability to transfer employees from one
crew to another for work-related or disciplinary reasons. An
August 11, 1986 memo to all employees, while asserting the
foremen positions are to be working positions, announced the
foremen will make job assignments, ‘‘in consultation with
the Superintendent.’’ Ferrari testified, without contradiction,
that Mora, on numerous occasions, assigned him to help out
on another crew headed by either Erasmy or Sala. Rozzi cor-
roborated this testimony when he asserted, convincingly and
credibly, that Erasmy threatened to transfer him to another
crew because of his ‘‘attitude problems.’’23 Based on the
credited evidence, I find the assistant superintendents, at all
material times, possessed the authority to transfer employees.
Another indication of supervisory status is the assistant su-
perintendents’ authority to grant time off. Sala admitted he
had authority to grant employees on his crew a day off.
Again without contradiction, Ferrari testified Mora told him
he could have time off for doctor’s appointments or other
personal needs. Ferrari also said the assistant superintendents
could reward good workers with days off. Serafin Mora ad-
mitted the assistant superintendents had the authority to re-
ward good workers with days off without any apparent ap-
proval from one of their superiors after June 28, 1988.
Erasmy awarded Slyter a day off with pay under this pro-
gram. This uncontroverted testimony requires the finding the
assistant superintendents had the authority to grant time off
to employees. Tra-Mar Communications, 265 NLRB 664
(1982).
Additionally, the assistant superintendents would regularly
assign Saturday overtime to the same employees, contrary to
past practice where overtime was assigned based on seniority
and rotation. According to Sala, he needed to get permission
to assign overtime but his requests have never been denied.
Accordingly, I conclude assistant superintendents could ef-
fectively recommend overtime.
Other factors which are indications the assistant super-
intendents are supervisors as defined in the Act include: Sala
has the same pension plan as the office staff, including the
admitted supervisors; they are paid more, even though they
are required to work longer hours; they also received bonuses
of 9 percent of their pay which was not shown to have been
awarded to the rank-and-file employees; they were given the
use of company trucks with take home privileges when they
became assistant superintendents; these trucks used company
supplied fuel and were maintained and insured by Respond-
ent; they are supplied business cards identifying them as as-
sistant superintendents; they attend management meetings;
and, they wore different uniforms. Also, the employee ratio
to supervisors would be inordinately high if the assistant su-
perintendents were not found to be supervisors. Washington
621CYPRESS LAWN CEMETERY ASSN.
24 The telegram provides, as here pertinent:
I have just been advised that an overwhelming majority of the employees
of Cypress Lawn in the present bargaining unit have stated their desire
to no longer be represented by Local 265. The Association is therefore
withdrawing recognition effective immediately. I have advised IEDA of
this action and instructed them to cancel the bargaining session scheduled
for June 30.
Beef Producers, 264 NLRB 1163 (1982); Comprehensive
Health Planning Council, 256 NLRB 1191 (1981).
In sum, I find the assistant superintendents can effectively
recommend hiring, transfer, use their independent judgment
to assign work, independently grant rank-and-file employees
rewards such as days off with pay and vacations with pay,
discipline other employees or effectively recommend such
action, and responsibly direct employees. While their duties
of directing other employees do not appear to require the ex-
ercise of substantially independent judgment, the assistant su-
perintendents are the individuals responsible for making
work assignments and ensuring the work is completed in the
appropriate manner and admitted supervisors were not shown
to be present in the work areas with sufficient frequency to
supervise the rank-and-file employees. The employees be-
lieved they were supervisors, as Respondent informed them.
I conclude the preponderance of the evidence establishes the
assistant superintendents, at all material times, are super-
visors within the meaning of the Act, and that Respondent
is therefore responsible for certain conduct engaged in by
them. Lawrence Rigging, 202 NLRB 1094 (1973); Pearson
Bros. Co., 199 NLRB 1179 (1972).
I further find that under all the circumstances, the employ-
ees could reasonably believe the assistant superintendents
were reflecting company policy, and speaking and acting for
management when they were associated with the decertifica-
tion petitions. Not only did Respondent hold the assistant su-
perintendents out as supervisors, the assistant superintendents
told various employees they could hire and fire and other-
wise affect the terms and conditions of their employment.
Accordingly, I conclude the assistant superintendents were
agents as defined in Section 2(13) of the Act. American
Door Co., 181 NLRB 37, 42 (1970); Aircraft Plating Co.,
213 NLRB 664 (1974).
2. The decertification petitions
Pence testified that after the arbitrator’s decision issued
June 20, 1988, on the New Operations Plan, he telephoned
Kingstone-Hunt and said:
I told—you know—told him that we had just won
the—the arbitration decision. I wanted him to go back
to the operations at the cemetery that—the way they
were before he implemented this—this new system.
And, he told me that if he, you know, if he had to
implement—I mean, go back to the old way that he ran
the cemetery—that he would go nonunion and there
would be no union at all.
It’d be all over, that there was nothing for him to
talk about. If we proceeded with this, that there would
be no more union.
I find Pence’s testimony credible based on attitude and de-
meanor, he appeared believable and convincing; he testified
in a direct manner with no indication of dissembling. The
statement there would be no more Union is consistent with
other statements Kingstone-Hunt made to Pence previously
that if the Union won the arbitration he would go nonunion.
As previously noted, Kingstone-Hunt admitted during the ar-
bitration, he said to several employees ‘‘he would not let the
union dictate; he would run the cemetery in the way he
wanted.’’
A week to 9 days after this conversation the Union re-
ceived a telegram from Kingstone-Hunt dated June 28, 1988,
withdrawing recognition of the Union.24
Kingstone-Hunt’s action was predicated on two petitions
circulated by Michael Jimenez and Hector Gonzalez, a cous-
in of Serafin Mora. General Counsel claims Kingstone-Hunt,
Serafin Mora, Erasmy, Willie Mora, and Sala were directly
involved in the decertification petitioning effort, thereby vio-
lating Section 8(a)(1) of the Act. Respondent disclaims any
wrongdoing and asserts the petitions suffice to form a rea-
sonable doubt of the Union’s majority status.
The legal standard in considering the defense of a good-
faith doubt of continued union majority was stated in Hos-
pital Employees District 1199P v. NLRB, 864 F.2d 1096,
1101–1102 (3d Cir. 1989), as follows:
A union chosen by an appropriate bargaining unit is
presumed to have the continued support of the majority
of its members. See Fall River Dyeing, 107 S.Ct. at
2233; NLRB v. Burns International Security Service,
Inc., 406 U.S. 272, 279 n. 3 (1972). . . . The purpose
behind this presumption is to promote stability in the
collective-bargaining relationship and hence industrial
peace. See Fall River Dyeing, 107 S.Ct. at 2233.
‘‘Where an employer remains the same, a Board certifi-
cation carries with it an almost conclusive presumption
that the majority representative status of the union con-
tinues for a reasonable time, usually a year. After this
period, there is a rebuttable presumption on majority
representation.’’ Burns, 406 U.S. at 279 n. 3 (citations
omitted). After the initial year, the question of whether
the presumption of majority support has been rebutted
is recast in terms of whether the employer ‘‘has reason-
able, good faith grounds for believing that the union
has lost its majority status’’ after a collective bar-
gaining agreement has expired. International Associa-
tion of Bridge, Structural & Ornamental Iron Workers,
Local 3 v. NLRB, 843 F.2d 770, 772 (3d Cir. 1988),
cert. denied, 109 S.Ct. 222 (1988).
In order to show good faith doubt, the employer
must produce evidence probative of a change in em-
ployee sentiment. This is a difficult burden to meet. For
example, the fact that an employee has crossed a picket
line is not evidence that the employee has abandoned
the union, NLRB v. Frick Co., 423 F.2d 1327, 1333–
34 (3d Cir. 1970). Similarly, we have declined to ac-
cept testimony proffered by an employer’s rep-
resentative based on his subjective conclusions about
change in sentiment. Toltec Metals, Inc. v. NLRB, 490
F.2d 1122, 1125 (3d Cir. 1974). In sum, for an em-
ployer ‘‘[t]o meet this burden ‘requires more than an
employer’s mere mention of [i]ts good faith doubt and
more than proof of the employer’s subjective frame of
mind.’ What is required is a ‘rational basis in fact.’’’
Toltec, 490 F.2d at 1125 (bracketed statement in origi-
nal) (quoting NLRB v. Risk Equipment Co., 407 F.2d
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 S. Mora did not deny or refute this testimony of Jimenez. I credit this
unrefuted testimony for the reasons stated below.
1098, 1101 (4th Cir. 1969)); see also Frick, 423 F.2d
at 1331.
Another criterion to the professing of a good-faith doubt
of the Union’s majority status is that this claim must be
raised in a context free of illegal antiunion activities or con-
duct by the employer ‘‘aimed at causing disaffection from
the union.’’ Celanese Corp. of America, 95 NLRB 664, 673
(1951). I have already found that in September 1986, Re-
spondent unlawfully unilaterally implemented the New Oper-
ations Plan which materially affected its employees, in viola-
tion of Section 8(a)(5) and (1) and Section 8(d) of the Act.
There was employee dissatisfaction over the New Operations
Plan and the impact its implementation had on their terms
and conditions of employment, leading, in part, to the filing
of several grievances. As will be seen below, one of the
major reasons given by Gonzalez and Jimenez for circulating
the petitions were their disaffection caused by their fears the
New Operations Plan would be rescinded. The record clearly
establishes the basis for employee disaffection toward the
Union was caused by the Respondent’s unlawful unilateral
implementation of the New Operations Plan and the rami-
fications of a return to the status quo ante its implementation.
The General Counsel asserts the decertification petitions
were tainted by the Employer’s unlawful participation in the
decertification petitions. Respondent claims it did not engage
in unfair labor practices that caused employee disaffection
with the Union and did not participate in the preparation and
circulation of the petitions. Assuming there was no illegal
conduct of the nature described above, the validity of the de-
certification petitions as a basis for creating a good-faith
doubt of the Union’s majority status is in issue.
a. The Jimenez petition
Jimenez is an 8-year employee of Respondent who, in
early February 1986 before the announcement of the details
and prior to the implementation of the New Operations Plan,
was assigned the job of restoring stained glass. Before his as-
signment as glass curator, Jimenez was a trimmer and then
a mower. In 1987, he was offered and accepted an additional
job as a security man, for which he received free lodging in
a trailer on the cemetery grounds. His trailer was located
next to Kingstone-Hunt’s. Respondent also has the services
of a private security firm. As noted earlier, on June 16, 1988,
he was awarded a prepaid vacation to Hawaii or comparable
location, shortly before he circulated the petition.
Shortly after he returned from vacation, at the end of the
workday on June 26, 1988, Jimenez encountered Serafin
Mora. Mora informed him the Union won the arbitration and
Respondent would have to return to the ‘‘old plan.’’ Mora
also said ‘‘they would take me out of my job that I have
now and put me back cutting grass.’’ Mora then mentioned
he was going to speak to Kingstone-Hunt and Jimenez said
he would follow him.25 When Jimenez entered Kingstone-
Hunt’s trailer, Mora and Kingstone-Hunt were discussing the
arbitration award. Jimenez then testified, on cross-examina-
tion as follows:
Q. Let’s go back again. The first words that were
spoken by either of—by you in terms of starting the
conversation was, Mr. Kingstone-Hunt, does this arbi-
tration award mean that I have to go back to my out-
side job, right?
A. Yes.
Q. And his answer was, yes?
A. Yes. . . .
Q. So your question was to him, after finding out
from him that as a result of the arbitration award you
were going to have to go back to your outside job, you
asked him what you could do about it—
A. Yes.
Q. And he told you you could circulate a petition.
Is that correct?
A. Yes.
Q. So he was the first one to mention about circu-
lating a petition? Right?
A. Yes.
Q. And he told you that you could circulate a peti-
tion in response to your question about how you could
keep your job?
A. Yes.
Q. Keep your assignment on stained glass. . . .
A. Well, part of that is, he also mentioned that if you
get a majority of that—of the signatures, you can do it.
Q. Okay. He said, if you get a petition with the ma-
jority of the signatures saying they want to get rid of
the union, then that’s something that you can do?
A. Yes.
Q. And that—and those were his words, right?
A. Yes.
Jimenez also admitted he never would have circulated the
petition if he had not been led to believe his curator’s job
would be lost if he did not get rid of the Union. Mora said
‘‘I’d probably have to go back to on the digger.’’ When he
was in the trailer, Kingstone-Hunt told him the award would
affect him, he would go ‘‘back out on the grounds.’’ It was
not until that conversation with Mora on June 26, 1988, that
any mention was made that his job would be affected if the
Union won the arbitration. Kingstone-Hunt also informed Ji-
menez he heard a rumor Hector Gonzalez was circulating
such a petition.
I credit Jimenez’ testimony only where it was contrary to
the interests of his employer or corroborated by another cred-
ible witness. He visibly conveyed the impression of a man
faced with the problem of possibly hurting his employer and
betraying a trust and attempted to present his testimony in
a light most favorable to Respondent. He volunteered infor-
mation when he thought he was protecting his employer and
possibly his position. On direct examination he attempted to
tailor his testimony to fit what he perceived was most favor-
able to Respondent. For example, he initially testified he was
the one who first raised the possibility of a petition; it was
not until cross-examination that he admitted it was
Kingstone-Hunt that first raised the possibility of decertifica-
tion by petition. He also initially claimed, by volunteering
the information, that he circulated the petition only during
work breaks and lunchtime, and subsequently admitted he
obtained some signatures during working time. Another in-
consistency in his testimony is: on direct examination he
623CYPRESS LAWN CEMETERY ASSN.
claimed his curators job was created by the New Operations
plan, but during cross-examination he admitted he was ap-
pointed to the position which was created by Kingstone-Hunt
for him, prior to the implementation of the New Operations
Plan. He also admitted the New Operations Plan did not alter
his duties. I note Jimenez volunteered information he per-
ceived was helpful to Respondent’s case, and at times as-
serted lack of recall when other matters arising at the same
time were recalled with great particularity.
That evening, assertedly only with the help of his wife, Ji-
menez drafted a petition that stated: ‘‘We employees of Cy-
press Lawn Cemetery, are signing this petition stating that
we no longer want the Union, Local 265, to represent us. We
feel you represented the interests of the few and not the ma-
jority.’’ Jimenez did not claim his wife had any knowledge
or expertise in decertification petitions. I do not credit his
claim he received no assistance from Respondent in drafting
the petition. There is no evidence Jimenez or Gonzales had
any knowledge of the petition process. The petition was
dated June 27, 1988 and addressed to the Union. Michael Ji-
menez was the first of nine signatures on the petition.
Jimenez originally claimed he obtained all the signatures
on the petition. He then admitted he did not obtain the signa-
ture of John Sala, the last signature on the petition. The sec-
ond signature on the petition is that of Jimenez’ brother-in-
law, Maximino Jimenez. Maximino Jimenez does not speak
fluent English and he does not believe he reads English. The
evening of June 26, 1988, Jimenez telephoned his sister and
asked her to explain to Maximino that he was going to cir-
culate a petition to get rid of the Union because otherwise
he would lose his curator’s job. He does not know what his
sister told her husband, but Maximino Jimenez signed when
he came to work the next day.
The third signature, John Straton, he got at lunchtime,
along with numbers four and five, Adrian Warren and Elliot
Zuniga, all pallbearers. Jimenez related his situation and they
signed. Zuniga mentioned he did not pay dues and Jimenez
knew these pallbearers were part-time employees. The cler-
ical staff was not asked to sign the petition because Jimenez
knew they were not union members but he did not respond
to Straton’s comment he did not know if he was ‘‘involved’’
with the Union. He next presented the petition to George
Erasmy, who signed. Also around lunchtime, Jimenez and
Gonzales compared petitions. Later in the afternoon, Sala
came to him and said he wanted to sign the petition. With
these seven signatures Jimenez was ready to take his petition
to Kingstone-Hunt at about 3 p.m. and saw Gonzales who
gave him his petition. At the end of the workday, Jimenez
took both petitions to the office to give to Kingstone-Hunt,
even though his was addressed to the Union. At the end of
his workday Jimenez went to the office to give Kingstone-
Hunt the petitions when Jack Sala asked him wait, Francisco
Cotroneo was coming to the office to sign the petition.
Francisco Cotroneo claims, credibly, that he was forced to
sign the petition under duress. Cotroneo testified in Italian,
and the resort to interpreters confused the testimony to some
extent, however, his demeanor reflected a sincere attempt to
relate the facts without embellishment, in an open and forth-
right manner. Cotroneo testified:
THE WITNESS: I must explain to you everything that
happened with Sala?
Q. All right.
A. Okay.
He came five or six minutes before 5:00. He came
to find me—to look for me with a piece of paper. He
told me the general manager told me to get you to sign
this paper. I told him I will not sign the paper—I won’t
sign the paper—I want to first talk to my wife. Sala
said to me, ‘‘All right.’’ I went down—
Q. All right. Let me stop you there. That is the first
sequence, I think.
A. Yes, in the columbarium first.
Q. Fine. You did not know what the piece of paper
was about in any way, is that correct?
A. No, I did not know. . . . Any paper that they
would give me, I would take it home. . . .
Q. Did you take that piece of paper [the petition]
home to show your wife before you signed it, Mr.
Cotroneo?
A. They didn’t give me a chance.
As he was getting ready to go home, he was approached
by Erasmy in the parking lot and told to go to the office to
see Sala, his assistant superintendent. When he arrived in an
office next to Kingstone-Hunt’s office, which he referred to
as the service room, Sala and Erasmy were there. He was
then told to sign the petition. He had no idea what the docu-
ment said, he cannot read English and does not speak
English fluently. He also testified:
A. When I signed it, no. I was upset, nervous.
Q. When you signed Respondent’s l3 [the Jimenez
petition] you were nervous?
A. Yes.
Q. Why were you nervous when you were signing
Respondent’s l3, Mr. Cotroneo?
A. Because you know they told me two or three
times to sign.
Cotroneo did not know what he was signing, and after he
signed, Sala said it was ‘‘a paper from the Union.’’ Cotroneo
did not ask for an explanation for he was asked to sign close
to where Kingstone-Hunt was located and he could hear
Kingstone-Hunt. He said: ‘‘When I went in, I didn’t look at
anything. I just went and signed. I was very nervous. I was
thinking that since the manager was there, I was afraid that
maybe I was going to lose my job. I was nervous and I
signed it.’’ After he signed the petition, Sala took the petition
into Kingstone-Hunt and Cotroneo heard Sala inquire if
Kingstone-Hunt wished to talk to Cotroneo. It was not until
the following morning Cotroneo learned he signed a decerti-
fication petition.
Sala admitted he solicited Cotroneo’s signature and
Cotroneo asked to have his wife review the document. Sala
claims he explained the purpose of the petition was to get
rid of the Union but acquiesced to Cotroneo’s request to
have his wife explain the document. Sala claims when he
was at the office Cotroneo incidentally appeared to sign the
petition. Sala testified he did not say anything to Cotroneo.
I do not credit Sala’s testimony that he explained the docu-
ment and just happened on Cotroneo in the office after he
signed but did not speak to him. In subsequent testimony
Sala admitted he saw Cotroneo sign the petition. Jimenez ad-
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 Sala’s denials concerning these conversations are not credited for the rea-
sons previously stated.
27 Mora did not refute Gonzalez’ testimony, he did not even address it. I
did not credit Gonzalez’ testimony unless it was contrary to Respondent’s in-
terests because he did not answer questions openly and fully on cross-exam-
ination. He appeared to avoid any response he considered unfavorable to Re-
spondent. For example, on direct examination he described Serafin Mora as
a ‘‘friend,’’ only on cross-examination did he admit S. Mora was his cousin.
Often, he had to be directed to reply to questions during cross-examination.
mitted he heard Sala speaking to Cotroneo in Italian before
Cotroneo signed the petition.
I also do not credit Erasmy’s version of the event based
principally on his demeanor, which was not forthright. Also
his version of the event was implausible. Further, much of
Erasmy’s direct testimony was elicited through the device of
leading questions, even after I warned this could impact on
credibility resolutions. He claimed Cotroneo asked him to
give him a ride to the office from the garage area so he
could sign the petition. He also claimed Cotroneo asked him
if the petition ‘‘was good for him.’’ Since Erasmy admitted
Cotroneo’s car was in the garage area and it was after work,
he failed to explain why Cotroneo did not drive to the office
himself if he was not summoned by Sala. Then he later ad-
mitted Cotroneo said Sala wanted him to go to the office.
According to Erasmy, who admitted to having difficulty re-
calling what was said in the office before Cotroneo signed
the petition, claimed Jimenez asked if he would like to sign
and Sala did not say much. Inasmuch as Erasmy understood
Sala summoned Cotroneo to the office, it appears unlikely
Sala did not say anything. Jimenez’ admission Sala spoke to
Cotroneo in Italian is much more probable, as I previously
found.
On the evening of June 27, in the office of Kingstone-
Hunt, Kingstone-Hunt told Sala: ‘‘‘I have enough signa-
tures.’ So he says, ‘I understand you have a few friends.
Why don’t you try to have them sign anyway?’’’ and Sala
replied ‘‘The people work under me’’? The following day,
Sala sought additional signatures on the Jimenez petition.
Sala approached his son and told him; ‘‘Son, sign the peti-
tion.’’ His son’s signature is the last on the Jimenez petition.
He then spoke to two other employees, Di Sante and Bertolli,
but they refused to sign the petition. He also spoke to his
cousin, Giuseppe Sala, who refused to sign the petition. Sala
also went to the home of Canino, who was not there, hence
did not sign. Sala returned the petition at the end of the day
on June 28.
Bertolli testified that on June 28, 1988, Mora approached
him while he was working, informed him Sala wanted to see
him. He was then approached by Sala and Erasmy to go to
a room in the office area. Bertolli feared he was going to be
fired. Sala and Bertolli did not socialize and there was no
evidence that Bertolli understood the meeting to be a social
gathering. Once in the room, the three supervisors closed the
door indicating the meeting was ‘‘confidential,’’ and Sala
said:
The only reason we bring you over here, we want to
know if you want to stay in the union or get out. I said,
‘‘What are you talking about? I enjoy the union for 28
years.’’ I said, ‘‘I’d like to stay in the union if I can.’’
And he [Sala] said, ‘‘No, no, nobody will force you.’’
Di Santi was admittedly approached by Sala while work-
ing and asked if he wanted to sign the petition to ‘‘pull out
of the union . . . yes or no.’’ Di Santi replied no. Di Santi
is Sala’s brother-in-law. Sala then said ‘‘I’ve got enough sig-
natures to pull out of the union and we don’t recognize the
union no more.’’ About 6 months later, Sala told him
Kingstone-Hunt called Sala into the office and told him he
had enough signatures to pull out of the Union but if Sala
wanted, he could ask more employees if they wanted to sign
the petition. I credit Di Sante’s testimony. He appeared re-
sponsive and plausible. There was no indication of calumny
or contrivance.
At noon on June 28, Kingstone-Hunt held an employees
meeting where he informed the employees, according to Di
Sante’s unrefuted testimony, ‘‘I’ve got enough signatures to
pull out of the union and we don’t recognize the union no
more.’’
According to Ferrari, whom I have previously found to be
a credible witness, on or about June 30, a couple of days
after an employee meeting concerning Respondents with-
drawal of recognition from the Union, he asked Sala who
was responsible for the petition; Sala said Jimenez. Ferrari
then asked Sala why he signed and Sala replied: ‘‘I was
under a lot of pressure from Kingstone-Hunt, so I signed.’’
Several weeks later Sala had a conversation with Ferrari and
Castiglioni about his going to Canino’s house with the peti-
tion. Ferrari told Sala he heard he took the petition to Red-
wood City to have Alberto sign it. Sala said that was correct,
and Ferrari asked why. Sala replied: ‘‘You know why. Tony
Kingstone-Hunt told me to do it.’’26 Remo Castiglioni con-
vincingly corroborated Ferrari’s testimony. Castiglioni ap-
peared straightforward in his testimony, he exhibited a can-
dor bespeaking an effort to give full and honest responses to
the questions.
b. The Gonzalez petition
Hector Gonzalez is the cousin of Serafin Mora and had
worked at the cemetery about 1 year when he circulated the
petition. According to Gonzalez, who was a section man at
all times here pertinent, about 1 month after he was hired,
sometime in April, 1988, Serafin Mora:27
Well, he [Serafin Mora]—he just come around and ask
me how I was doing and was everything going and that
if I like those sections and things like that. And—and
if I was happy doing what I was doing and I say,
‘‘Yeah, I like—I like doing what I’m doing.’’
And, as I remember, he just mentioned it, that the
Union doesn’t like it this way, we might have to—if—
if we lose, we might have to go back to the old system
because that’s when—when I found out that they had
a—the Union was protesting the new plan.
Q. And did he say what would happen to you if it
went back to the old system?
A. Well, I—he knew—then I said, ‘‘What—what
would happen to—to the new guys?’’ And he said,
‘‘They have to trim all day, eight hours a day.’’ That
was basically—basically what it was.
Gonzalez was hired after the New Operations Plan was
implemented and never claimed he appreciated the dif-
ferences in work with any particularity. On or about Friday
625CYPRESS LAWN CEMETERY ASSN.
28 On cross-examination Gonzales said Mora answered as follows:
It’s up to you guys. A majority of the—of the guys, if they like it the
way it is.
And—and that’s when I—I said if we don’t want to belong to—want
the Union telling us what to do, what can we do.
That’s when he said, ‘‘If you—you guys don’t want to go back to the
old system, then the majority decides.’’
29 Another inconsistency in Gonzalez’ testimony is he initially claimed he
talked to Govea after lunch and then testified he spoke to him during lunch.
30 Similar to the other signatories, Gonzalez said:
And—and he also knew what was going on with the—with the Union
and the cemetery. And—and I used to ask him if he would like to—to
go back and trim all day. And—and—and he also said that he didn’t like
to—to—to go back to the old system.
31 Gonzalez related the following conversation with Gutierrez:
I start telling him that the—the cemetery had to go back to the old sys-
tem, because the Union was forcing them to go. And—and some of us
didn’t—didn’t want to do that. And—because we wanted to keep the sys-
tem we had at that time.
And I had already some signatures to pull out of the Union and I asked
him if he wanted to sign. . . . He said that he wasn’t in the Union at
that time. That he didn’t—but I ask him if he was working there, that,
if he wanted to sign, I like to have his signature. And he say, ‘‘Well,
if it—it counts, I’ll sign.’’ And he did.
June 24, 1988, Gonzalez was at a pool hall with Serafin
Mora, playing and conversing, when Serafin Mora said:
Tony [Kingstone-Hunt] was upset for—‘cause they
had—they had lost the arbitration, the Union. And that
we had to go back to the old system.
And that when I said, ‘‘What do you mean the old
system?’’ That’s when—why—he said that how it was
before, that we had to be trimming all—all day. I mean,
trimming around the hedges.
And then I—then I said, ‘‘What about if we don’t
want to—want to do that? Can we do anything?’’
And—and he said, ‘‘Well, I don’t know what every-
body wants.’’
And then I said, ‘‘If we decide to—not to be rep-
resented by the Union, can we still keep the same sys-
tem?’’ And he said, ‘‘Well, if that’s what you guys
want, then we can do it.’’28
During the weekend, Gonzalez talked with coworkers, Al-
fonso Juarez, Miguel Govea, and Eustacio Arvizu informing
them Respondent lost the arbitration and the employees had
to ‘‘go back’’ to the old system. He also talked to Junior
Lopez during the weekend. These employees informed Gon-
zalez they would not like to return to the ‘‘old’’ system and
indicated they would be willing to sign a petition. On Sun-
day, June 26, 1988, Gonzalez decided to prepare a petition
and prior to work on June 27, he wrote a petition stating:
‘‘We the following no longer wish to be represented by the
Union Local 265. At Cypress Lawn Cemetery.’’ He cir-
culated the petition on June 27 and obtained 11 signatures,
including his own. He gave his petition to Jimenez to hand
over to Kingstone-Hunt. On the bottom of the petition
Kingstone-Hunt noted it was received at 5:15 p.m. on June
27.
The first employee to sign the petition after Gonzalez, was
Juarez, who signed after previously being told he would
loose his job as a section man and be forced to spend all
his worktime trimming hedges and gravestones. Next to sign
was Garcia, to whom Gonzalez also related the threat of loss
of the section man position as a result of not signing the pe-
tition. Garcia said he liked his current position and signed.
The next signatory was Tom Kingstone-Hunt, Tony
Kingstone-Hunt’s son. Garcia told Tony Kingstone-Hunt:
I ask him if he like to be a mechanic. He said,
‘‘Yes.’’ And—and that’s when I—when I—I tell him
that he might not be a mechanic much longer, if we go
back to the old—the old system.
And—and I said—well, that’s—that’s when—when
he said he—he didn’t want to go to trimming or—or
working on the sections. Because, like, obviously, he
didn’t like to work outside on sections.
I say, ‘‘Well, if you—if you want to keep it the way
it is, why don’t you sign a petition?’’ And then—then
he says, ‘‘Do you have it with you?’’ And I says,
‘‘Yes.’’ Then I show it to him and he sign.
After lunch Gonzalez29 sought out Govea, having already
related the threatened loss of position to him over the week-
end, and reminded him of that prior conversation and asked
him to sign the petition. Next Gonzalez talked to Junior
Lopez.30 After the threatened loss of position was again dis-
cussed, Lopez agreed to sign the petition. Gonzalez then
talked to Eustacio Arvizu, Ernesto Moreno and Pablo Gutier-
rez, who were working together that day. Gonzalez told them
he was circulating a petition to ‘‘pull out of the union’’ and
did they want to sign? They all replied in the affirmative and
signed. After closer questioning, Gonzalez admitted he told
them about the arbitration and they would be forced ‘‘to go
back to the old system.’’ Arvizu indicated he did not want
to return to the old system and thus wanted the get rid of
the Union. A. similar conversation was held with Moreno
and Gutierrez concerning their jobs and the Union.31
After Moreno, Gonzalez talked to Willie Mora who signed
the petition when he came upon the crew in pursuance of his
duties as assistant superintendent. Gonzalez said: ‘‘And he
knew, I assume he knew everything, that the cemetery had
lost and everything. So I just ask him if he would sign. He
said, ‘Sure.’’’ Next, Gonzalez went to Andre Thompson and
related the claim the arbitration decision would force em-
ployees to ‘‘go back to the—old system’’ if they did not get
rid of the Union. Thompson, like Gutierrez, said he was not
a member of the Union. Gonzalez told him he could still
sign if he wanted to, he wanted his signature. Thompson’s
was the last signature on the Gonzalez petition.
Gonzalez denies Serafin Mora suggested he circulate a pe-
tition. He also denied he received any help in drafting the
petition although he admitted he never previously prepared
and circulated a petition. I note Serafin Mora made similar
statements to Gonzalez and Jimenez concerning the impact
of the arbitration decision and they assertedly reacted simi-
larly. Jimenez at least admitted Respondent, by Kingstone-
Hunt, suggested he circulate the petition. Gonzalez’ testi-
mony is not credible based solely on demeanor, as found
above. I also find this disclaimer of help unbelievable. There
was no predicate on which Gonzalez would have known of
the petitioning process as a means of relieving the Respond-
ent from compliance with the arbitration decision. In fact he
testified he never signed or saw a petition before. Buttressing
this conclusion is the testimony of Jimenez that Kingstone-
Hunt told him Sunday evening he heard a rumor that Gon-
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
zalez had ‘‘already started a petition.’’ Gonzalez testified he
did not decide to prepare a petition until Sunday and did not
prepare it until Monday morning. If S. Mora and Gonzalez
did not discuss the petition process of decertifying a union,
there was no predicate on which Kingstone-Hunt would have
otherwise heard the rumor.
c. Discussion
(1) The alleged violations of Section 8(a)(1)
I find the evidence establishes Respondent’s supervisors
were involved in the initiation and circulation of the decerti-
fication petitions. Both Kingstone-Hunt and Mora are found
to have initiated the circulation of the petitions by informing
Jimenez and Gonzalez they would lose their jobs and be
transferred to less desirable positions because the Union pre-
vailed in the arbitration proceeding. Contrary to Respond-
ent’s representations, the Employer did not merely bring to
the employees’ attention their right to petition for decertifica-
tion, the information was unsolicitedly imparted accompanied
by threats of loss of position and reassignment to less desir-
able positions. This activity is consonant with Kingstone-
Hunt’s threats to the Union’s representatives that if the
Union won the arbitration: ‘‘that he would go nonunion.’’ I
find this repeated threat supports my conclusion based on di-
rect evidence that Respondent initiated and authorized the
antiunion petitioning of Gonzalez, Jimenez, and the assistant
superintendents.
Jimenez and Gonzalez were sought out by Kingstone-Hunt
and Mora; they did not go to the office and declare dis-
satisfaction with the Union. There was no evidence the em-
ployees were displeased or dissatisfied with the Union as
their collective-bargaining representative prior to Kingstone-
Hunt’s and S. Mora’s inducements to Jimenez and Gonzalez
to circulate the petitions. Jimenez testified he would never of
circulated the petition if he had not been told his job as cura-
tor was at stake; if the Union was not decertified he would
lose this position and have to go back outside and do gar-
dening work. Similarly, Gonzalez, who was always a section
man, was told he would lose that position and become a
trimmer.
These announcements of unfavorable transfers of the em-
ployees was related by management’s messengers, Gonzalez
and Jimenez, to the great majority of the employees they so-
licited as the inducement for their signing the petitions. By
sending Jimenez and Gonzalez to petition the employees on
the basis of less favorable jobs as the result of the arbitration
decision if the Union remained their collective-bargaining
representative, Respondent clearly created a situation wherein
the employees would ‘‘tend to feel imperiled in maintaining
Union membership.’’ Manhattan Hospital, 280 NLRB 113,
115 (1986).
This is not a case where employees related their dis-
satisfaction with the Union and management merely advised
the employees of their rights to decertify the Union. In the
instant case, Respondent unsolicitedly provided a cause for
disaffection with the Union and, only after telling Jimenez
and Gonzalez they would be transferred to less desirable po-
sitions, did the Employer indicate they could only eliminate
the peril to their jobs by petitioning to decertify the Union.
I therefore conclude the petitions would not have been initi-
ated save for the Employer’s threats of transfers to less desir-
able jobs, which was unlawful solicitation to abandon the
Union. Weisser Optical Co., 274 NLRB 961 (1985); Jax
Mold & Machine, 255 NLRB 942 (1981); Hearst Corp., 281
NLRB 764 (1986); Walker Mfg. Co., 288 NLRB 888 (1988).
These actions by Mora and Kingstone-Hunt were not al-
leged as separate violations of Section 8(a)(1) of the Act.
However, I find they were closely related to the other allega-
tions in the complaint, and the matter was fully and fairly
tried. C. P. Lesh Paper Co., 187 NLRB 359, 367 (1970). I
conclude Respondent, like the Employer in Federated An-
swering Service, 288 NLRB 341 (1988), inveigled Jimenez
and Gonzalez into actively promoting the signing of the de-
certification petitions, while trying to shield itself from the
fatal taint of involvement by hiding behind the ‘‘cloak’’ of
nonsupervisory employees, in violation of Section 8(a)(1) of
the Act. Technodent Corp., 294 NLRB 924 (1989); Fed-
erated Answering Service, supra. I also find the Respondent
was not a disinterested neutral concerning the two decerti-
fication petitions and the resort to relating the threatened loss
of positions and assignment of less favorable jobs were used
as inducements to get most of the signatories to sign the peti-
tions, renders the petitions ineffective to demonstrate loss of
majority support. Having found this violation, I further find
the Respondent’s asserted good-faith doubt of the Union’s
continued majority was not raised in a context free of unfair
labor practices of the type aimed at causing dissaffection
from the Union. Therefore, the withdrawal of recognition, as
well as the Respondent’s later unilateral changes in employ-
ees’ terms and conditions of employment, violated Section
8(a)(5) and (1) of the Act. Texas Electric Coop, 197 NLRB
10 (1972; Craftool Mfg. Co., 229 NLRB 634 (1977); Sac-
ramento Clinical Laboratory, 242 NLRB 944, 945 (1979);
Hohn Industries, 283 NLRB 71 (1987); Mega Van & Stor-
age, 294 NLRB 975 (1989).
Another basis for finding the petitions cannot be used to
lawfully withdraw recognition from the Union is the credited
evidence that Joe Sala, Cotroneo, and Bertolli were solicited
to sign the decertification petitions by Jack Sala, a super-
visor, with the connivance and assistance of Kingstone-Hunt,
who gave him a copy of one of the petitions to get additional
signatures. Respondent’s responsibility for Sala’s activities
concerning the antiunion petition is governed by the test of
Montgomery Ward & Co., 115 NLRB 645 (1956):
Statements made by such a [Assistant Superintendent
which is also a bargaining unit member] supervisor are
not considered by employees to be representations of
management, but of a fellow employee. Thus they do
not tend to intimidate employees. For that reason, the
Board has generally refused to hold an employer re-
sponsible for the antiunion conduct of a supervisor in-
cluded in the unit, in the absence of evidence that the
employer encouraged, authorized, or ratified the super-
visor’s activities or acted in such manner as to lead em-
ployees reasonably to believe that the supervisor was
acting for and on behalf of management.
As noted by Administrative Law Judge Anderson in
Times-Herald, Inc., 253 NLRB 524, 528 (1980):
The General Counsel established a prima facie viola-
tion of Section 8(a)(1) of the Act when it proved that
a supervisor in Respondent’s employ solicited employee
627CYPRESS LAWN CEMETERY ASSN.
32 Sala readily admitted his involvement in soliciting signatures for the peti-
tions. Mora did not testify and since he is a supervisor I presume if he had
testified he would not have contradicted the employees’ accounts of his in-
volvement in the solicitation of signatures. International Automated Machines,
285 NLRB 1122 (1987).
33 While Sala informed some employees he solicited they had the right to
refrain from signing the petition, Respondent, by Sala and other supervisors,
as previously indicated, created a situation where employees would tend to feel
peril in refraining from signing the petition. Aircraft Hydro-Forming, 221
NLRB 581, 583 (1975). Moreover, other employees were not afforded this
choice as previously discussed in relating the solicitations of Sala’s son and
Controneo.
34 General Counsel notes that at the time the telegram was sent, 7:22 e.s.t.,
Joe Sala may not have signed the petition his father was circulating. General
Counsel also argues that the unit is comprised of 25 employees, 4 supervisors
and temporary employees hired only for the summer should not be included.
Analogously, General Counsel argues that when the ineligible employees’ sig-
natures are subtracted from the count of petition signatories, claiming there
were seven ineligible, there was not a majority. Based on my findings the peti-
tion process was tainted by management’s involvement, including the activities
of the assistant superintendents, it is not necessary to reach the question of
whether a majority of unit members signed the petitions prior to Respondent’s
withdrawal of recognition. However, to ensure completeness, based on the en-
tire record, I find Respondent has failed to establish a majority of the eligible
employees signed the petitions. For example, supervisors, part-time and/or
temporary employees, who were not shown to be included in the unit, signed
the petitions.
support for a union decertification petition. Respondent,
however, has established, by way of an affirmative de-
fense, that the supervisor was also a unit member. . . .
Montgomery Ward and its progeny8 establish a burden
on the General Counsel in such circumstances to
produce evidence either: (1) of Respondent’s encour-
agement, authorization, or ratification of the conduct
. . . or (2) of conduct which might lead employees rea-
sonably to believe that the supervisor was acting for
and on behalf of management.
8 E.g., Nassau and Suffolk Contractors’ Association, Inc., 118 NLRB
174 (1957); Dayton Blueprint Company, Inc., 193 NLRB 1100 (1971);
C. Markus Hardware, Inc., 243 NLRB 903 (1979); Breckenridge Gaso-
line Co., 127 NLRB 1462 (1960).
Here, I find Respondent by Kingstone-Hunt encouraged,
authorized and ratified Sala’a actions by making a copy of
a petition available to him and encouraging his action of ask-
ing employees to sign the antiunion petition. Also the assist-
ant superintendents engaged in conduct which lead employ-
ees to believe they were acting on behalf of management.
For example, Erasmy drove Cotroneo to the office and
Erasmy and Sala again requested Cotroneo to sign the peti-
tion in an office next door to Kingstone-Hunt’s office, and
after Cotroneo signed, Sala took the petition into Kingstone-
Hunt. Sala admitted to several employees he was acting pur-
suant to the directions of Kingstone-Hunt. Bertolli was at his
work site when all three assistant superintendents conducted
him to an office where they closed the door and asked him
to sign the petition. The fact these employees were con-
ducted to the office area at the request of supervisors and
asked to sign an antiunion petition reasonably tended to co-
erce under the circumstances for there was no reason such
solicitation of their signatures could not have occurred at
their work stations.
These were not innocuous conversations. The context of
the conversations and the settings conveyed the intent that
Respondent was using its leverage as the Employer to influ-
ence employees on a question of union representation, in vio-
lation of Section 8(a)(1) of the Act. This conduct also indi-
cated to the employees the assistant superintendents32 were
acting on behelf of the employer considering the solicitations
of Bertolli and Cotroneo occurred in the office area, and
Bertolli was called away from work by all three assistant su-
perintendents. Choctawhatchee Electric Cooperative, 274
NLRB 595 (1985); Browning-Ferris Industries, 275 NLRB
71 (1985). In this case, the employees had a clear indication
the assistant superintendents were acting on behalf of man-
agement.
Sala admitted telling Di Santi that Kingstone-Hunt sent
him with the petition at the time he solicited his signature.
As found above, Sala told other employees Kingstone-Hunt
pressured him into soliciting signatures on the decertification
petition.33 This credited testimony is a further basis to find
management sponsorship and participation in the petition
process. Further giving the stamp of employer imprimatur
was the solicitation by the assistant superintendents and em-
ployees during working time. There was no evidence solicita-
tions during worktime was tolerated by Respondent in any
other circumstance. This was another indication the employer
was responsible for the actions of the supervisors, Jimenez
and Gonzalez. Both Gonzalez and Jimenez understood Re-
spondent’s involvement as evidenced by their turning the pe-
titions in to Kingstone-Hunt to deliver to the Union.
Lomansney Combustion, 273 NLRB 1241 (1984).
In fact, Cotroneo specifically requested earlier the oppor-
tunity to consult his wife about the petition before signing
it when approached by Sala in the more comfortable sur-
roundings of his worksite. His request was not honored, he
was later taken to the office area and pressured into signing
the petition. This violation further irrevocably taints the de-
certification petition process. Bertolli was not informed of
the nature of the request to accompany three supervisors to
the office. Sala also queried Di Santi and Joe Sala to deter-
mine if they would sign the petition. Sala admitted to order-
ing his son to sign the petition. This approach to his solicita-
tion of signatures further indicates the coercive nature of his
efforts.
In sum I find Respondent encouraged, initiated, authorized,
and ratified Sala’s solicitation efforts and, at the least, rati-
fied the solicitation efforts of Sala, Mora, and Erasmy, in
violation of Section 8(a)(1) of the Act. I also find the sig-
natories to the decertification petitions did not have the req-
uisite complete and unfettered freedom of choice. Therefore,
I conclude the petitions are not reliable indicators of the em-
ployees’ true sentiments. NLRB v. Link Belt Co., 311 U.S.
584 (1941).
(2) Respondent’s withdrawal of recognition
On June 28, 1989, the day after Gonzalez, Jimenez, and
the assistant superintendents initially gave Kingstone-Hunt
the decertification petitions, Kingstone-Hunt sent the Union
a letter and telegram withdrawing recognition to the Union
as Respondent’s collective-bargaining representative. Re-
spondent contends the unit has about 34 employees accord-
ing to its payroll register and the petitions had 20 signa-
tures.34 Thus it claims ‘‘the overwhelming majority of the
employees of Cypress Lawns in the present bargaining unit
have stated their desire to no longer be represented by Local
265.’’
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When a collective-bargaining agreement expires, the in-
cumbent union is presumed to continue as the collective-bar-
gaining representative of the majority of the employees in the
bargaining unit. See Club Cal-Neva, 231 NLRB 22 (1977);
Guerdon Industries, 218 NLRB 658, 659 (1975); Barrington
Plaza & Tragniew, 185 NLRB 962 (1970), enf. denied on
other grounds 470 F.2d 669 (9th Cir. 1972). This presump-
tion may be rebutted by evidence that the union lost its ma-
jority status or by evidence presented by the employer of a
good-faith doubt of the union’s majority status based on ob-
jective considerations supporting that doubt. Terrell Machine
Co. v. NLRB, 427 F.2d 1088 (4th Cir. 1970), enfg. 173
NLRB 1480 (1969); Guerdon Industries, supra. When a rea-
sonable founded good-faith doubt is claimed, such doubt
must be raised in a context free of unfair labor practices. Nu-
Southern Dyeing & Finishing, 179 NLRB 573 (1969), enf.
denied in part 444 F.2d 11 (4th Cir. 1971). I conclude, based
on the record as a whole, there was no legitimate basis for
Respondent’s claimed good-faith doubt of the Union’s major-
ity status. At all times material, the Union’s presumed major-
ity continued. Celanese Corp. of America, 95 NLRB 664
(1951).
In this case the Union sub judice was entitled to a pre-
sumption of majority status based on the contract which ex-
pired March 1, 1988. Having found the petition was not
raised in a context free of unfair labor practices, it cannot be
used as a basis to claim good-faith doubt of majority status.
I have assessed the overall impact of the violations Respond-
ent has committed concerning the decertification petitions
and conclude they cannot be considered as legitimate objec-
tive considerations of a good-faith doubt of the Union’s ma-
jority status. Choctawatchee Electric Cooperative, supra at
601. I also find the unlawful unilateral implementation of the
New Operations Plan, standing alone, would so taint the peti-
tioning process as to render the withdrawal of recognition
unlawful. I find Respondent’s reliance on the petitions as ob-
jective basis for a good-faith doubt of the Union’s majority
status misplaced and its refusal to bargain under these cir-
cumstances was a violation of Section 8(a)(5) and (1) of the
Act. Idaho Fresh Pak-Inc., 215 NLRB 676, 679 (1974); Can-
tor Bros., 203 NLRB 774 fn. 4 (1973).
(3) Unilateral changes after withdrawal of recognition
Respondent admitted upon withdrawing recognition from
the Union, on June 30, 1988, it unilaterally and without prior
notice to or bargaining with the Union, implemented new
terms and conditions of employment including, inter alia,
continuation of the New Operations Plan changes such as al-
terations in hours of work, premium pay/overtime, grievance
procedure, sick leave, wages, performance bonuses, estab-
lishing life insurance in the amount of $50,000, disability in-
surance, dental insurance, pension, safety committee, and a
health program. Also included in these acknowledged unilat-
eral changes is the admission Respondent failed to maintain
a dental benefit plan and/or to make contributions to the
health and welfare and pension trust plans mandated in the
expired collective-bargaining agreement. By memorandum to
all personnel dated June 30, 1988, Respondent informed the
employees of the above listed changes, plus changing the
grievance procedure, granting a cost-of-living allowance and
base pay adjustment, establishing individual performance
bonus, changing the sick leave accumulation policy, granting
education leaves, tuition payments, and cash awards for sug-
gestions.
As the Board found in United Technologies Corp., 296
NLRB 571 (1989):
In determining whether a party has bargained in bad
faith, the Board looks to the totality of the cir-
cumstances in which the bargaining took place. Hotel
Roanoke, 289 NLRB No. 16, slip op. at 7 (Mar. 15,
1989); Port Plastics, 279 NLRB 362, 382 (1986); At-
lanta Hilton & Tower, 271 NLRB 1600, 1603 (1984).
The Board examines not only the parties’ behavior at
the bargaining table, but also conduct away from the
table that may affect the negotiations. Hotel Roanoke,
above; Port Plastics, above. Among other indicia that
a party has bargained in bad faith, the Board also con-
siders whether a party has engaged in delaying tactics
and whether a party has made unilateral changes in
mandatory subjects of bargaining. Atlanta Hilton &
Tower, above.
It is undisputed that retention of the health and welfare
trust benefit plan and payments to that and the other contrac-
tual funds, as provided in the expired collective-bargaining
agreement, are mandatory subjects of bargaining, as are the
other admitted and otherwise determined unilateral changes
to the employees terms and conditions of employment. Scott
Lee Guttering Co., 295 NLRB 424 (1989). There were no
exigencies demonstrated that would excuse Respondent from
its bargaining obligation.
Respondent infers changes in the operation occasioned by
the Cemetery reaching maximum capacity in the near future
is a sufficient economic justification for its unilateral
changes. I find the bare claim of compelling economic con-
siderations unpersuasive. There were no financial data ad-
duced to demonstrate the existence of compelling economic
considerations. The cost of the New Operations Plan and
other unilateral changes are not in evidence.
As the Board stated in Van Dorn Plastic Machinery Co.,
265 NLRB 864 (1982), modified 736 F.2d 343 (6th Cir.
1984):
The Board has repeatedly held that economic expedi-
ency or sound business considerations are insufficient
defenses to justify unilateral changes in terms and con-
ditions of employment. Once the General Counsel has
made a prima facie showing of an 8(a)(5) violation—
as has been done here—a respondent must demonstrate
why the refusal to bargain was privileged. In the instant
case, Respondent was responsible for showing that
‘‘compelling economic considerations’’ warranted its
acting unilaterally. This has not been done here.
After considering the foregoing and the entire record, I
find no legitimate basis for Respondent’s claimed good faith
belief the Union lacked majority status. The Union’s pre-
sumed majority status continued at all material times. There-
fore, Respondent was not entitled to change the terms and
conditions of employment for bargaining unit employees
without notice to, and bargaining with, the Union. Admit-
tedly, Respondent did neither before it changed the above
stated terms and conditions of employment after June 28,
1988. I find these terms and conditions of employment are
629CYPRESS LAWN CEMETERY ASSN.
35 Nothing should be construed to require Respondent to alter any economic
benefits granted to employees since the implementation of the New Operations
Plan on or about September 2, 1986, in the absence of a request by the Union,
Respondent make such a restoration of benefit.
36 The provisions of employee benefit fund agreements are variable and
complex, accordingly, the Board does not provide at the adjudicatory stage of
a proceeding for the addition of interest at a proscribed rate on unlawfully held
fund payments. The Board leaves to the compliance stage the question of
whether Respondent must pay any additional amounts into the funds in order
to satisfy this ‘‘make-whole’’ remedy. These additional amounts may be deter-
mined, depending on the circumstances of each case, by reference to provi-
sions in the documents governing the funds at issue and, where there are no
governing provisions, to evidence of any loss directly attributable to the un-
lawful withholding by Respondent, found herein, which might include the loss
of return on investment of the portion of funds withheld, additional administra-
tive costs, etc., but not collateral losses. Fox Painting Co., 263 NLRB 437
(1982); Merryweather Optical Co., 240 NLRB 1213 (1979).
37 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
Continued
mandatory subjects of bargaining. Accordingly, I find Re-
spondent’s failure to give the Union notice and an oppor-
tunity to bargain about these changes violated Section 8(a)(5)
and (1) of the Act. Storer Communications, 297 NLRB 296
(1989).
CONCLUSIONS OF LAW
1.Respondent Cypress Lawn Cemetery Association is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Cemetery and Greens Attendants Union Local 265 is a
labor organization within the meaning of Section 2(5) of the
Act.
3. At all times material, the Union has been the exclusive
collective-bargaining representative within the meaning of
Section 9(b) of the Act for the following appropriate unit:
All employees covered under the terms of the March 1,
1985 to February 29, 1988, collective-bargaining agree-
ment between Associated Cemeteries and the Union.
4. At all times material, the Union has been the exclusive
collective-bargaining representative of all the employees in
the unit found appropriate in Conclusion of Law 3 for the
purposes of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By urging, encouraging, and soliciting its employees to
file a petition to decertify the Union, coercively soliciting
employees’ signatures, including the threat of less favorable
working conditions if the employees failed to sign the peti-
tions, Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
6. By unilaterally instituting and implementing the New
Operations Plan, which changed terms and conditions of em-
ployment in the above described unit, Respondent, without
notice to or consultation with the Union, violated Section
8(a)(5) and (1) of the Act.
7. By withdrawing and withholding recognition of the
Union as the exclusive representative of its employees in the
above specified unit, the Respondent has refused to bargain
with the Union in violation of Section 8(a)(5) and (1) of the
Act.
8. By making numerous unilateral changes in terms and
conditions of employment in the above-described unit after
the unlawful withdrawal of recognition, without notice to or
consultation with the Union, including failure to maintain a
dental benefit plan, failure to contribute to Union health and
welfare plans, failure to contribute to the Union’s pension
trust, establishing a safety committee, changing the grievance
procedure, granting a cost-of-living allowance and base pay
adjustment, establishing individual performance bonus,
changing the sick leave accumulation policy, establishing for
each employee life insurance in the amount of $50,000,
granting education leaves, tuition payments and cash awards
for suggestions, without notice or consultation with the
Union, Respondent has refused to bargain with the Union in
violation of Section 8(a)(5) and (1) of the Act.
9. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found Respondent has engaged in certain unfair
labor practices, I find it necessary to order it to cease and
desist and take certain affirmative action designed to effec-
tuate the policies of the Act.
Having found Respondent has refused to meet and bargain
with the Union in violation of Section 8(a)(5) and (1) of the
Act, it will be ordered to cease and desist therefrom and, on
request, to bargain collectively in good faith with the Union
as the exclusive representative of all of the employees in the
appropriate unit, and in the event an understanding is
reached, to embody such understanding in a signed agree-
ment. See Winn-Dixie Stores, 243 NLRB 972 (1979); Alsey
Refractories Co. 215 NLRB 785 (1974). In addition, Re-
spondent should maintain in effect the terms and conditions
of employment specified in the now expired collective-bar-
gaining agreement unless and until the Respondent and the
Union agree otherwise, or until the parties bargain to a legiti-
mate impasse. Respondent, having in 1986 implemented the
New Operations Plan without notifying the Union and af-
fording the Union an opportunity to bargain concerning the
decision and its effects, shall, upon request by the Union, re-
store the status quo ante as it existed prior to the implemen-
tation of the plan.
To the extent Respondent has changed the terms and con-
ditions of employment in effect under the old agreement to
the economic detriment of employees, the Respondent is re-
quired to make whole the employees for any losses they suf-
fered as a consequence of its unlawful unilateral changes and
withdrawal of recognition.35 The Respondent shall also be
required to make whole any trust funds provided for under
the expired collective-bargaining agreement, which would
have been paid absent Respondent’s refusal to apply the
terms of the agreement to its employees and unilaterally dis-
continue these payments,36 and to post the atached notice. In
the event any backpay is due, the computation of backpay
shall be in the manner provided by the Board in F. W. Wool-
worth Co., 90 NLRB 289 (1950), together with interest as
provided in New Horizons for the Retarded, 283 NLRB 1173
(1987), except that any interest accrued prior to January 1,
1987, shall be computed in the manner prescribed in Florida
Steel Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended37
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
38 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
ORDER
The Respondent, Cypress Lawn Cemetery Association, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Urging, encouraging, and soliciting its employees to
file a petition to decertify the Union, coercively soliciting
employees’ signatures, including the threat of less favorable
working conditions if the employees failed to sign the peti-
tions, Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
(b) Withdrawing recognition from, or refusing to bargain
collectively with Cemetery and Greens Attendants Union
Local 265, affiliated with Service Employees International
Union, AFL–CIO as the exclusive representative of all the
employees in a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act,
composed of:
All employees covered under the terms of the March 1,
1985 to February 29, 1988, collective-bargaining agree-
ment between Associated Cemeteries and the Union.
(c) Changing unilaterally terms and conditions of employ-
ment without first affording the Union the opportunity to
bargain over the proposed changes, including: implementa-
tion of the New Operations Plan, failure to maintain a dental
benefit plan, failure to contribute to the Union’s health and
welfare plans, failure to contribute to the Union’s pension
trust, establishing a safety committee, changing the grievance
procedure, granting a cost-of-living allowance and base pay
adjustment, establishing individual performance bonus,
changing the sick leave accumulation policy, establishing for
each employee life insurance in the amount of $50,000,
granting education leaves, tuition payments and cash awards
for suggestions, without notice to or consultation with the
Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and bargain with the Union as the exclusive
representative of the employees in the unit described above;
and upon request, restore the status quo ante before the im-
plementation of the New Operations Plan in 1986.
(b) Make the employees in the unit described above whole
for any losses they may have suffered as a consequence of
the Respondent’s unlawful unilateral changes to their terms
and conditions of employment and withdrawal and with-
holding recognition of the Union, as their exclusive collec-
tive-bargaining representative in the manner specified in the
section above entitled ‘‘The Remedy.’’
(c) Preserve and, on request, make available to the Board
or its agent, for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary or appropriate to
analyze the amount of money due under the terms of this
Order.
(d) Post at facility and place of business in Colma, Cali-
fornia, copies of the attached notice marked ‘‘Appendix.’’38
Copies of the notice, on forms provided by the Regional Di-
rector for Region 20, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director within 20 days from the
date of this Order what steps the Respondent has taken to
comply.