First National Maintenance Corp.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 289 (N.L.R.B. 1981)

FIRST NATIONAL MAINTENANCE CORPORATION
First National Maintenance Corporation and Dis-
trict 1199, National Union of Hospital and
Health Care Employees, Retail, Wholesale &
Department Store Union, AFL-CIO
Local 796, Amalgamated Workers Union of America
and District 1199, National Union of Hospital
and Health Care Employees, Retail, Wholesale
& Department Store Union, AFL-CIO. Cases
29-CA-6647 and 29-CB-3467
January 14, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On August 15, 1980, Administrative Law Judge
George F. Mclnerny issued the attached Decision
in this proceeding. Thereafter, Respondent First
National Maintenance Corporation filed exceptions
and a supporting brief, and the General Counsel
filed cross-exceptions and a brief thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 1
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
t We shall modify the recommended Order, in accordance with Re-
spondent First National Maintenance's exceptions, to omit the Adminis-
trative Law Judge's recommendation that it be required to maintain the
wages and other benefits set out in the now defunct collective-bargaining
agreement, until the date the contract would have expired. This part of
the recommended Order is neither consistent with our finding that the
collective-bargaining agreement is unlawful, nor necessary to remedy the
violations found.
The General Counsel and Respondent First National Maintenance have
excepted to certain credibility findings made by the Administrative Law
Judge. It is the Board's established policy not to overrule an administra-
tive law judge's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the reso-
lutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings.
In adopting the conclusion of the Administrative Law Judge that Re-
spondent Employer violated Sec. 8(a)(2) and Respondent Union violated
Sec. 8(bXIXA), we rely solely on his findings that the Union did not in
fact represent a majority of the Employer's employees on March 17,
1978, the date when the parties signed a new collective-bargaining agree-
ment, and that both Respondents knew that the Union lacked majority
status. We, therefore, do not reach the question of whether the Union
was, by virtue of a merger, the legal successor of Local 690, Amalgamat-
ed Workers Union of America.
fled below, and hereby orders that Respondent
First National Maintenance Corporation, Ridge-
wood, New York, its officers, agents, successors,
and assigns, and Respondent Local 796, Amalga-
mated Workers Union of America, Richmond Hill,
New York, its officers, agents, and representatives,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph A, 1,
(b):
"(b) Giving effect to the collective-bargaining
agreement with Local 796, dated March 17, 1978."
2. Substitute the attached Appendix A for that of
the Administrative Law Judge.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT recognize, bargain with, or
otherwise support or assist Local 796, Amalga-
mated Workers Union of America, or any
other labor organization, unless and until such
labor organization is certified as the collective-
bargaining representative of our employees, in
an appropriate unit, by the National Labor Re-
lations Board.
WE WILL NOT give effect to the collective-
bargaining agreement with Local 796 dated
March 17, 1978.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act.
FIRST NATIONAL MAINTENANCE
CORPORATION
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINTERY, Administrative Law Judge:
Based on charges filed on August 30, 1978, in Case 29-
CB-3467, and on August 31, 1978, in Case 29-CA-6647
by District 1199, National Union of Hospital and Health
Care Employees, Retail, Wholesale & Department Store
Union, AFL-CIO, herein referred to as District 1199,
the Regional Director for Region 29 of the National
254 NLRB No. 28
289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Board, herein referred to as the Board,
issued an order consolidating these cases, a complaint,
and a notice of hearing on October 18, 1978, alleging
that First National Maintenance Corporation, herein re-
ferred to as the Employer, or Respondent Employer, and
Local 796, Amalgamated Workers Union of America,
herein Respondent Union, had violated, respectively,
Section 8(a)(1) and (2) and Section 8(b)(1)(A) of the Na-
tional Labor Relations Act, as amended, 29 U.S.C. 151,
et seq., herein referred to as the Act.
On November 17, 1978,1 the Employer filed an
answer to the complaint denying the commission of any
unfair labor practices. The Employer also denied that
District 1199 is a labor organization within the meaning
of Section 2(5) of he Act, and, as an affirmative defense,
alleged that Local 1199 is not a labor organization within
the meaning of the Act in that it is affiliated "directly or
indirectly with an organization which admits to member-
ship guards and non-guard employees."
Respondent Union did not filed an answer to the
charges against it in the complaint. However, the affida-
vit of service of that complaint, contained in the formal
papers introduced into evidence by the General Counsel,
shows that no service of the complaint was made on Re-
spondent Union.
Pursuant to notice accompanying the complaint, and
an order rescheduling hearing issued by the said Region-
al Director on March 7, 1979, a hearing was scheduled,
and opened before me, on May 7, 1979. At that time it
became apparent that Respondent Union had not been
properly notified of the allegations in the complaint and
of the time and place of the hearing. Accordingly, no
testimony was taken, no evidence was received, and the
matter was adjourned, with the concurrence of the par-
ties who were present, until June 14, 1979.
On that same day, May 7, 1979, the record shows that
a copy of the order consolidating cases and complaint
and notice of hearing was forwarded to Local 796.
Thereafter, on May 11, 1979, Mitchell W. Goldblatt,
who described himself as attorney for Local 796, filed an
answer on behalf of Respondent Union denying the com-
mission of any unfair labor practices and further denying
"knowledge and information sufficient to form a belierf
as to the status of the Employer as an Employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
Then, on June 14, 1979, the hearing continued. Goldb-
latt, the attorney for Local 796, did not appear, nor did
he advance any reason why he did not appear, but in
view of the fact that he had been properly notified of
these proceedings, the hearing continued without him.
At the opening of this day of hearing, the General
Counsel moved to amend the complaint to allege that
Respondent Employer had committed certain further
violations of Section 8(a)(1) of the Act. Over the Em-
ployer's objections I allowed the amendments and those
allegations were denied.
Following these amendments, and for reasons which
will be discussed below, I dismissed the allegations in the
complaint involving violations of Section 8(a)(2) and
I The time for filing this answer had been duly extended by the Re-
gional Director.
Section 8(b)(1)(A), and approved an informal settlement
of the additional 8(a)(1) allegations which had been
added to the complaint on June 14, 1979.
The General Counsel appealed my actions under Sec-
tion 102.26 of the Rules and Regulations of the National
Labor Relations Board, Series 8, as amended, on June 25,
1979. This appeal was upheld by the Board on Septem-
ber 4, 1979, in an Order remanding the matter to the said
Regional Director to arrange the reopening of the hear-
ing, and further ordering that I prepare and serve upon
the parties a Decision containing findings of fact, conclu-
sions of law, and recommendations upon the evidence re-
ceived pursuant to the Order.
Accordingly, the said Regional Director issued an
Order on December 4, 1979, ordering that the hearing be
reopened on December 10, 1979. The hearing did open
on that date, and continued on December II and 12, at
which time all parties2 were given the opportunity to
present testimony and documentary evidence, to examine
and cross-examine witnesses, and to argue orally.
Following the close of the hearingt the Respondent
Employer and the General Counsel submitted briefs
which have been carefully considered.
Upon the entire record in this case, including my ob-
servations of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT EMPI.OYER
First National Maintenance Corporation is a New
York corporation which maintains its principal office and
place of business at 1535 Schaefer Street, Borough of
Queens, New York, where it is engaged in the business
of providing cleaning maintenance services and related
services to various commercial enterprises including a
health related facility called Haven Manor, which is the
locus of the facts giving rise to this case.
In the year preceding the issuance of the complaint
herein, the Employer, in the course and conduct of its
business, provided cleaning and maintenance services in
excess of $50,000 to various commercial enterprises and
firms, which firms sold goods valued in excess of $50,000
directly to firms located outside the State of New York.
The complaint alleges, the Employer's answer admits,
and I find that the Respondent Employer is an employer
2 Goldblatt was not present, although the record shows that he was
duly notified of this recening of the hearing.
: Toward the end of the hearing, the Respondent Employer asked that
I hold an exhibit number open for receipt of an exhibit which he de-
scribed as the payroll record of the employer for the month of April
1979. The General Counsel did not object to this and I agreed to hold
Respondent Employer's Exh. 10 for this document. However, on January
23, 198(0, Respondent Employer forwarded to me a copy of its payroll,
not for April 1979, but for October 27. 1978. together with a letter pur-
porting to be a resignation by another employee and moved that these
documents be admitted into evidence. The General Counsel thereafter
filed all opposition to the admission of these documents in evidence. I
find merit in the General Counsel's opposition. The documents submiltted
are not those it was agreed to admit and no good cause has been shown
as to why they should he admitted. Respondent Employer's motion is
denlied.
290
FIRST NATIONAL MAINTENANCE CORPORATION
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. 4
II. THE LABOR ORGANIZAION INVOLVED
A. The allegation in the complaint that Local 796 is a
labor organization within the meaning of Section 2(5) of
the Act, is admitted in the answers filed by both Respon-
dents. I find that to be a fact.
B. The Respondent Employer's answer denies that
District 1199 is a labor organization within the meaning
of the Act and further alleges as an affirmative defense
that District 1199 is affiliated with an organization which
admits both guards and nonguards to membership. The
employer submitted no evidence in support of this asser-
tion and I will disregard it.
With respect to the denial of the status of District 1199
as a labor organization, the General Counsel introduced
no evidence in support of this allegation in the com-
plaint. However, the record does contain evidence that
John Donalds filed an appearance on behalf of District
1199; that Donalds testified, under oath and credibly,
that he is an organizer for that organization; and that
several employees testified, again credibly, that they had
signed authorization cards for District 1199, and had at-
tended and testified at a hearing conducted by Region 29
in Case 29-RC-4224, a case filed by District 1199, in
May 1978. As a result of that hearing, the Regional Di-
rector for Region 29 made a finding that District 1199 is
a labor organization. Because of these factors, I find that
District 1199 exists, at least in part, for the purpose of
representing employees in dealing with employers con-
cerning wages, hours, and other conditions of employ-
ment, and that it admits employees into membership, and
that it is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Ill, THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The facts in this case show that the Respondent Fm-
ployer is engaged in contracting with the owners or op-
erators of nursing homes, or health related facilities,
5 to
perform cleaning, laundry, and other housekeeping func-
tions. In November 1974 the Respondent Employer
began to perform such services at the Haven Manor
Health Related Facility in Far Rockaway, New York.
6
In December of that same year, employees working for
the Respondent Employer at Haven Manor were in-
formed by their supervisor that they would be represent-
ed for collective-bargaining purposes by Local 690,
4 The fact that the Respondent Union denied knowledge of facts on
which to base an opinion as to the "commerce" allegations of the com-
plaint does not put the matter inissue. In view of the employer's admis-
sions I do not feel that the General Counsel need burden the record with
facts showing what is already admitted. See. also, the Regional Director's
findings in Case 29-RC-4224, and the Administrative Law Judge's Deci-
sion in Case 29-CA-4631, affirmed by the Board on November 16, 1976.
, There is a distinction between these based apparently on state regula-
tion of staffing, depending upon the level of care furnished by the facili-
ty. That distinction is not really material here.
6 See Administrative Law Judge Bisgyer's Decision in Case 29-CA-
4631, issued October 7, 1976, and in the absence of exceptions, adopted
by the Board by Order dated November 16. 1976.
Amalgamated Workers Union of America (AWUOA),
herein referred to as Local 690. Subsequently, on May
9, 1975, the Respondent employer and Local 690 entered
into a collective-bargaining agreement effective May 1,
1975, and expiring on April 30, 1978.
There was considerable dissatisfaction among the em-
ployees of the Respondent Employer over the terms of
this agreement and the manner of its negotiation and ex-
ecution. This in turn led to the events described in Ad-
ministrative Law Judge Bisgyer's Decision, and also to
the filing of a union-shop decertification petition under
Section 9(e)(1) of the Act in Case 29-UD-108 on June
21, 1976. The record in this case does not show whether
there was an issue on the appropriateness of a unit con-
sisting only of the Haven Manor employees of Respon-
dent Employer, but the statutory requirements must have
been satisfied because the Regional Director for Region
29 issued a Decision and Direction of Election in that
case on September 29, 1976, and a request for review of
that Decision was denied by the Board on October 29,
1976. An election was then conducted under the auspices
of the Regional Office on November 17, 1976 resulting
in 17 votes in favor of deauthorization, 5 votes against,
and 4 challenged ballots. The challenges were not deter-
minative of the result of the election, which was certified
by the Regional Director on December , 1976. There-
after, as the parties stipulated none of the employees at
Haven Manor executed any membership applications,
collective-bargaining authorizations, or dues or fees
checkoff authorizations on behalf of the Respondent
Union.8
The next in the several series of events making up the
background of this case occurred on May 1, 1977, when
one Milton Linden, describing himself as the president of
Local 106, International Production, Service and Sales
Employees Union (IPSSEU), wrote a letter to Leonard
Marsh, secretary-treasurer of the Respondent Employer,
advising him that Local 690 had merged with and into
Local 106. Then, on November 16, 1977, Linden, now
describing himself as the business manager of Local 796,
Allied Workers Union of America, again wrote to the
Respondent Employer, informing it: "At a meeting on
November 10, 1977, our members voted to disaffiliate
from Local 106, IPSSEU, and to affiliate with Local 796,
AWUOA." There is no evidence that the Respondent
Employer ever undertook any investigation of the cir-
cumstances of these affiliations and disaffiliations, or
whether, indeed, it took any action at all with respect to
the changes. All I can find, at this point, is that the union
' There are indications. but no actual evidence in the record, that
Local 690 represented employees of Respondent Employer in a broader
unit than only the Haven Manor employees. See Administrative Law
Judge Bisgyer's Decision. fn. 6.
8 The Responldent Union did not join in this stipulation. However, by
ilt failure to appear at this hearing after being dul and properly notified,
and its failure to respond to subpoenas to appear and bring in records. the
Resplxndeni Union has forfeited any right to object to my receipt of stip-
ulations, as swell as any other evidence. at the hearing.
I The General Counsel objected to the introduction of this letter and
tuo others. I find that these letters were properly identified by Stephen
Denrich, Respondent Employer's vice president as records regularly kept
in the course Iof the Resplldent Employer's business. I find that these
letters are admissable under the Federal Rules of Evidence Rule 803(6).
291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop provisions in Local 690's collective-bargaining
agreement had been canceled out by the union-shop
deauthorization election, and that the employer forward-
ed no dues or fees to any local. There is no evidence on
the fate of Local 690, or of Local 106, whether these or-
ganizations continued in existence or, in the cases of
Locals 106 and 796, whether they ever had any existence
at all other than as slips of paper in the typewriter of
Milton Linden.' 0
In the late winter and early spring of 1978, the em-
ployees at Haven Manor became interest in joining Dis-
trict 1199. A number of them signed authorization cards
for that organization. About May 15, 1978," District
1199 filed a petition in Case 29-RC-4224 to represent
certain employees of the employer. The bargaining unit,
"All housekeeping and maintenance employees employed
by the Employer at its location at Haven Manor Health
Related Facility, Far Rockaway, New York, excluding
all other employees, guards and supervisors within the
meaning of the Act," was stipulated by the parties, thus
putting to rest any question about the scope of the unit
covered by the collective-bargaining agreement. If that
had been an issue, it could have been raised by Local
796, which appeared at the hearing in that case as an in-
tervenor. Since the issue was not raised, but rather the
unit was stipulated, I may infer and find that the unit
was and is confined to the employees of Respondent Em-
ployer at Haven Manor.
In the meantime, during the period that the employees
were organizing and signing authorization cards for Dis-
trict 1199, the Respondent Employer and the Respon-
dent Union executed an "addendum" to the collective-
bargaining agreement then in effect between Local 690
and Respondent Employer. The addendum extended that
agreement for an additional 3 years until April 30, 1981,
continued the same terms and conditions in effect for
that period, and provided for pay increases of $5 per
week for all employees in each of the 3 years. The ad-
dendum, or agreement, was executed on March 17, 1978,
by Leonard Marsh for the employer and by Milton
Linden, now describing himself as "President" of Local
796. There is no evidence in this record as to any of the
circumstances of this arrangement, either on the execu-
tion of the document itself, or the negotiations, if any,
which led to its adoption by the parties.
The new agreement was, however, advanced by Local
796 at the hearing in Case 29-RC-4224 as a bar to the
petition. A hearing was then held before a hearing offi-
cer of the Board assigned by the Regional Office. In that
hearing the validity of the March 17 addendum to the
Local 690 agreement with Respondent Employer was
litigated. The Regional Director for Region 29 then
issued a Decision and Direction of Election on July 28,
1978.
tO I have, of course, found that Local 796 is a labor organization
within the meaning of Section 2(5) of the Act. This finding, based on the
answer filed by Respondents, does not imply that it is an active labor or-
ganization.
"' This date is calculated from the Regional Director's Decision and
Direction of Election in Case 29-RC-4224, since it does not appear else-
where in the record.
In that Decision the Regional Director made it clear
that evidence was received at the hearing concerning the
nonpayment of dues by employees at Haven Manor, and
the mergers or affiliations between Locals 690, 106, and
796.'2 It is also clear from the Regional Director's deci-
sion that he considered the failure of the employer to im-
plement the wage increase called for in the March 17 ad-
dendum until a week after the petition was filed in Case
29-RC-4224,13 and the failure of Local 796 to appoint a
shop steward for the processing of grievances, in arriv-
ing at his decision that the addendum, or contract, dated
March 17, 1978, and asserted as a bar did not, "as admin-
istered, chart with adequate precision the terms and con-
ditions of the employees in issue," nor did it "provide
them with sufficient guidance in day to day labor rela-
tions," citing Appalachian Shale Products Co., 121 NLRB
1160, 1163 (1958). The Regional Director added that
"the agreement fails to impart a sufficient stability in
labor relations to withhold a present determination of
representation," citing Raymond's, Inc., 161 NLRB 838
(1966).
On reviewing this Decision, the Board was "unable to
find that the contract between the employer and the in-
tervenor (Local 796) has been abandoned, or that the
wages, hours and working conditions at the facility are
so at variance with the contract's terms as to remove the
bar quality from the contract." The Board vacated the
Decision and Direction of Election, found the Local 796
contract to be a bar, and dismissed the Petition. The
Board's Decision was dated August 23, 1978, and the
charges in the instant case were filed on August 30 and
31, 1978.
On June 14, 1979, at the hearing on this matter, I dis-
missed those portions of this complaint alleging viola-
tions of Sections 8(a)(2) and 8(b)(1)(A). No testimony
had been received at that time, but the Board's Decision
quoted above had been entered in evidence. It seemed to
me at that time that the Board had decided that the con-
tract was a bar, and was, therefore, a valid contract.
Hence, that decision was res judicata as to the status of
the contract which, in this case, the General Counsel
was alleging was entered into unlawfully and was, conse-
quently, invalid.
In reversing my decision, the Board referred to Sec-
tion 11228 of the Casehandling Manual, cited above, to
the effect that "evidence of the unfair labor practices al-
leged herein by the General Counsel could not be and
was not, considered by the Board in the underlying rep-
resentation case."
12 Evidence as to this was stricken from the record, not because it was
not permitted under the strictures of Sec. 11228 of the Board's Casehan-
dling Manual for representation cases, but because the witness who testi-
fied about these matters refused to answer questions about them His
entire testimony was stricken from the record. It may not be material. but
it is interesting to note that the number 796 represents the sum of the
numbers 690 and 106.
: If the addendum was reached around its effective date, May 1. I
would not consider 3 weeks too long a period for implementation of a
wage increase, but it was in fact executed on March 17. giving the em-
ployer plenty of time to arrange for payment at the new rate on May 1.
292
FIRST NATIONAL MAINTENANCE CORPORATION
This Decision by the Board would seem to be consis-
tent with its prior ruling in E & R Webb d/b/a Town and
Country, 194 NLRB 1135 (1972).
In that case the union had filed charges alleging Sec-
tions 8(a)(2) and 8(b)(1)(A) a situation similar to this and,
concurrently, had filed a petition for an election request-
ing that the petition be processed despite the charges. In
ruling on this request to proceed, the Board said at 1136:
In the instant case the issues raised by Petitioner's
charges and petition rest on resolution of the unfair
labor practice charges. Thus, the contract between
the Employer and the Intervenor constitutes a bar
to this proceeding unless the Employer's recogni-
tion of the Intervenor as the collective-bargaining
agent was itself unlawful and in violation of Section
8(a)(2) and 8(b)(1)(A) and (2) of the Act. To make
such a determination in this case [a representation
case] would be contrary to established Board policy
that unfair labor practice allegations are not proper-
ly litigable in a representation proceeding. A party
asserting such allegations may litigate them only in
an unfair labor practice proceeding designed to ad-
judicate such matters.
There is a distinction between Town and Country and
this case, in that, here, the Board has already declared
that the contract is a bar, but here the unfair labor prac-
tice charges were not filed until after the Board had
made that Decision.
In this case, then, the Board, by its remand of the case
to me, seems to have said that its prior Decision in the
underlying representation case is not res judicata on the
allegations in the complaint alleging violations of Sec-
tions 8(a)(2) and 8(b)(1)(A), and I will proceed to a deci-
sion on the facts of this case on these issues.
B. The 8(a)(2) and 8(b)(1)(A) Allegations
The complaint alleges that on or about March 18,
1978, the Respondent Employer and the Respondent
Union executed and have since maintained a collective-
bargaining agreement, notwithstanding the fact that Re-
spondent Union was not at the time of the execution of
the contract, or at any time thereafter, duly designated
or selected by a majority of the Employees of Respon-
dent employer at Haven Manor as their collective-bar-
gaining representative.
Beyond the stipulation of the parties who appeared at
this hearing that at no time material herein did any of the
employees involved execute any membership applica-
tions, collective-bargaining authorizations, or check-off
authorizations for dues or fees, the evidence received at
this hearing shows that on March 17, 1978, Local 796
did not represent a majority of the people employed at
Haven Manor. Employees Doretha Monday, Eddie
Brown, and Vesta Desrameaux all testified credibly 14
that in February or March 1978 the employees at Haven
Manor were summoned to a meeting in the office of
Harry Fuller, who, it was stipulated, was Respondent
Employer's supervisor at Haven Manor. At this meeting
14 I do not consider any of these witnesses particularly reliable but
their testimony in this instance is mutually corroborative and undenied
Milton Linden appeared and spoke to the employees.' 5
Linden told the employees what union he represented
and that just because they did not pay dues it did not
mean that they did not have a union. Linden then asked
employees for grievances and, as employees related those
to him, he spoke into a tape recorder. After that, Linden
passed around authorization cards designating Local 796
as a bargaining representative. 16 He informed the em-
ployees that if they signed the cards he would get them a
$10 raise, but if they did not he could not get them any-
thing. None of the employees signed cards and Linden
left. He returned about a week later and spoke to Eddie
Brown, giving him some more cards to distribute among
the employees. Brown threw the cards away.
Both Brown and Doretha Monday testified, credibly,
that no one signed cards for Local 796. These employ-
ees, together with Herman Berry, Nizislay Melendez,
Riccardo Melendez, Ann Cruz, Neil Moore, and Vesta
Desrameaux, all testified that they did not pay dues to
any union, and that there had been no notices, no meet-
ings, and no information supplied then about any union
before or after March 17, 1978.
Based on this credible and corroborative testimony, to-
gether with the failure of Milton Linden or anyone rep-
resenting Local 796 to appear or testify at this hearing, I
infer and find that on March 17, 1978, Local 796 did not
represent a majority of the employees of Respondent em-
ployer at Haven Manor.' 7 I further find that, because of
his failure to recruit any employees in his visits to Haven
Manor, as well as his failure to appear at the hearing
with testimony or records on membership, Milton
Linden knew that Local 796 did not represent a majority
of the employees at Haven Manor when he executed the
addendum or collective-bargaining agreement on March
17, 1978.
There was a question in my mind at the hearing, and
before any testimony was received, as to whether the
actual recognition of Local 796 by the Respondent Em-
ployer may have occurred at some time before the ex-
ecution of the contract on March 17. There are two let-
ters from Linden to the Respondent Employer, one
dated May 1, 1977, showing the merger of Local 690
with Local 106, and one dated November 16, 1977,
showing the affiliation with Local 796. While there is no
evidence that the Respondent Employer ever did any-
thing about these changes other than noting the contents
of the letters and then filing them, the Respondent Em-
ployer's continued substantial application of the wages,
'' The estimates both of the number of people employed at Haven
Manor, and the number who attended the meeting vary, but I find, based
on the number who voted in the decertification election in Case 29-UD-
108 that there were 22 employees in the bargaining unit, of whom I find
10 or 12 attended this meeting.
[K The record contains much testimony about which of two cards was
actually distributed at this meeting. Certainly the extensive cross-exami-
nation of Monday, Brown, and Desrameaux on this point casts serious
doubt on their memories and their reliability as witnesses, but both cards
(G.C. Exhs, 7 and 8) are applications for membership in Local 796. the
difference between them being that one also authorizes the checkoff of
dues and fees. This difference is not material to a determination of the
issues here.
17 Indeed, the inference is permissible that none of the employees were
members of Local 796.
293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours, and working conditions, as found by the Board in
Case 29-RC-4224, indicates that recognition was, indeed,
extended to the two successors of the original contract-
ing union. This action could have formed the basis for
unfair labor practice charges, but such charges would
have been barred, in this case, by the 6-month statute of
limitations contained in Section 10(b) of the Act. The ex-
ecution of the contract on March 17, 1978, within the
10(b) period, does not so depend on the earlier recogni-
tion as to bring this case within the broad mandate of
Local Lodge No. 1424, International Association of Ma-
chinists [Bryan Manufacturing Co.] v. N.L.R.B., 362 U.S.
411 (1960). It is not the implementation of the contract
which is here charged as a violation of law, but its ex-
ecution.
The Respondent Employer argues, with some force,
that in the absence of a good-faith doubt as to the con-
tinuing majority of the incumbent union, it had a duty to
continue to recognize it as the bargaining representative
of its employees. This would be so, the argument contin-
ues, even in the case of successor unions. N.L.R.B. v.
Newspapers, Inc., 515 F.2d 334 (5th Cir. 1975); Amoco
Production Company, 239 NLRB 1195 (1979).
Much has been made in this case, and in the underly-
ing representative case, about the validity of the mergers
which finally resulted in the appearance of Local 796 as
the purported bargaining representative of the employees
at Haven Manor. There was no evidence submitted by
either the General Counsel or the Respondent Employer
on the subject. The reason for the lack of evidence was,
of course, the failure of any representative of the Re-
spondent Union, particularly, Milton Linden, to appear
or to supply subpenaed materials. In view of my findings
herein I do not consider the question of the validity of
the mergers significant and I will presume for purposes
of this decision that the mergers were valid.' 8 I have al-
ready found that Linden, and through him the Respon-
dent union, knew on March 17, 1978, that Local 796 had
no members employed. For the reasons given below, I
find that the Respondent Employer also knew that its
employees or at least a majority were not members of
Local 796.
The Respondent Employer was aware of the union-
shop deauthorization election held in 1976. It knew, and
stipulated to the fact, that it had received no checkoff re-
quests. There is credible testimony in the record that
Harry Fuller, the employer's supervisor at Haven
Manor, had told employees Doretha Monday, Eddie
Brown, and Herman Berry that there was no union. I do
not credit Fuller's denial of this. He did not impress me
as a candid or open witness and his statement that he
never discussed wages with prospective employees is
simply preposterous. Finally the testimony of Eddie
Is Thus, I will not consider in this Decision the question of whether
the employer's rights were prejudiced by the General Counsel's refusal to
enforce the Respondent Employer's subpoena dures tecum to Milton
Linden. That subpena was particularly directed at obtaining evidence of
the mergers. Since I assume the merger is valid. I can discern no preju-
dice to the Respondent Employer in the General Counsel's action. Paren-
thetically, I might say that the Board's Rules and Regulations. Series 8,
as amended. Sec. 102.31(d) do not appear to lodge any discretion in the
General Counsel in determining whether to enforce Respondent Employ-
er's subpoena duces ecum.
Brown and Doretha Monday concerning the meetings of
employees with Milton Linden shows clearly that none
of the employees were members of Local 796 or wanted
to be members. I infer that the Respondent Employer
had knowledge of these meetings because of Fuller's
action, which he did not deny, in summoning employees
to the first meeting, and the failure of Leonard Marsh to
testify concerning any negotiations or conversations
which led up to the execution of the contract with
Linden on March 17, 1978.
However, it is not really necessary to find that Re-
spondent Employer knew of the lack of majority since
good faith would not excuse its action in recognizing and
supporting a minority union, International Ladies Gar-
ment Workers Union, AFL-CIO [Bernhard-Altmann Texas
Corp.] v. N.L.R.B., 366 U.S. 731 (1961).
By executing the contract on March 17, 1978, the Re-
spondent Employer has violated Section 8(a)(2) of the
Act and the Respondent Union has violated Section
8(b)(1)(A).
C. The Violations of Section 8(a)(1)
At the hearing in this case on June 14, 1979, the Gen-
eral Counsel moved to amend the complaint to add a
paragraph alleging that on or about May 1, 1979, the Re-
spondent Employer, through Denrich and Fuller threat-
ened its employees with reprisals if they gave testimony
or appeared at the instant hearing. Over the Respondent
Employer's objections I allowed the amendment. 9
The incident alleged to be a violation of Section
8(a)(1) of the Act apparently occurred at sometime in
May 1978 before the hearing in Case 29-RC-4224. Vesta
Desrameaux testified that she had been subpenaed to
appear at that hearing and that she had shown the sub-
pena to Harry Fuller. Sometime later on that day Fuller
came up to her and said that Denrich had told him that
if she took off on Monday she could take off for the rest
of the week and that the next time she was off she could
"forget about that." This testimony was corroborated by
Doretha Monday, who did not mention this incident, but
was called by the General Counsel in rebuttal, and then
testified about the incident. Fuller denied the incident.
In this case, while I generally found Fuller to be an
unreliable witness, I believe his denial. Desrameaux, I
find, was a poor witness. Her memory was bad and she
evidenced an almost intractable inability to understand
questions put to her or to answer questions directly.
Monday was active on behalf of the Charging Party, and
her memory was also not good, as may be seen in her
replies to questions about the authorization cards passed
out by Milton Linden. I do not credit her corroboration
of Desrameaux's testimony. While there may have been
some conversation between Fuller and Desrameaux
about the latter's time off, I cannot find that this was a
threat to discipline Desrameaux because she had asked
for time off to answer a subpena for the Board. Indeed,
19 These objections were based on surprise and inability to prepare a
defense. In view (of the fact that no testimony on these allegations was
received until December 10. 1979. I do not feel that these objections are
meritorious.
294
FIRST NATIONAL MAINTENANCE CORPORATION
she testified that she returned to work after the hearing
and nothing was said and nothing happened.
The second incident apparently covered by this allega-
tion of the complaint occurred at the hearing in the rep-
resentation case on June 19, 1978. John Donalds, the or-
ganizer for District 1199, testified that someone at Haven
Manor had called him while he and a number of employ-
ees were attending the hearing and told him that Fuller
had told an employee that the employees who were at
the Labor Board office were fired. Donalds then went
up to Marsh, who was also in attendance, and asked him
what gave him the right to fire the people who were at
the hearing. Marsh replied that they had not informed
their supervisor and the Respondent Employer's work
was not covered. He further said he would call the su-
pervisor and investigate further. About a half hour later
Marsh returned and said the matter had been straight-
ened out. He had talked to Fuller and said that there had
been a misunderstanding and the employees were rein-
stated with no loss of pay.
Marsh himself testified that at the 1978 hearing he saw
a number of employees present. He had thought that
only two were to be at the hearing and, apparently an-
noyed, said in a loud voice to the employees and union
representatives there that because they were there with-
out permission he was going to take "disciplinary ac-
tions." He then made some telephone calls and found out
that the employees did have permission to be at the hear-
ing. He denied that he said the employees were fired or
that he was going to reinstate them.
On the basis of my observation of these two witnesses,
Donalds and Marsh, I found Marsh to be the more credi-
ble. Certainly, Marsh's description of Donald's reaction
to his announcement of possible disciplinary action as
consisting of "threats and sarcasm" accords with my ob-
servation of Donalds' demeanor. Therefore, I find that
this incident occurred as described by Marsh.
In the context of this case I cannot find that the Gen-
eral Counsel has established that the Respondent Em-
ployer evidenced hostility or animus toward District
1199. Fuller's statements to employees, as related by
Monday, that he had tried to help the employees get a
union is evidence of a lack of animus, and accords with
Adminstrative Law Judge Bisgyer's findings in Case 29-
CA-4631 on Fuller's attitude. Marsh's generalized state-
ment about disciplinary action, in a moment of anger, is
not indicative of any underlying hostility toward District
1199 or the employees.2 0
Therefore I view this as an isolated incident, of mo-
mentary significance only, which was almost immediate-
ly rectified, with no effect which can be discerned in the
record on these employees.
In the light of all the circumstances of this case, I find
that the General Counsel has not shown by a preponder-
ance of the credible evidence that Respondent Employer
has violated the law in these two incidents.
20 I specifically do not credit Donalds' testimony that, at the hearing
in June 1978, he heard Marsch mutter the word "Reds" apparently in ref-
erence to the union officials.
THE REMEDY
Having found that the Respondents employer and
union, have engaged in unfair labor practices in violation
of Section 8(a)(2) and (1) of the Act, I shall recommend
that they cease and desist therefrom. In my view no af-
firmative action, other than posting of notices and notifi-
cation to the Regional Director of compliance steps, is
necessary to effectuate the policies of the Act.
CONCLUSIONS OF LAW
I. First National Maintenance Corporation is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. District 1199, National Union of Hospital and
Health Care Employees, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO; and Local 796, Amalga-
mated Workers Union of America are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By recognizing and bargaining with Local 796, the
Respondent Employer has violated Section 8(a)(2) and
(1) of the Act.
4. By entering into a collective-bargaining agreement
with Local 796 on March 17, 1978, the Respondent Em-
ployer has violated Section 8(a)(2) and (1) of the Act.
5. By entering into a collective bargaining agreement
with the Respondent Employer on March 17, 1978, the
Respondent Union has violated Section 8(b)(1)(A) of the
Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent Employer did not violate the Act
in any other manner.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Secticn 10(c)
of the Act, I hereby issue the following recommended:
ORDER2 I
A. Respondent First National Maintenance Corpora-
tion, Ridgewood, New York, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Recognizing, or giving any form of assistance to
Local 796 or any successor thereto, or any other labor
organization, unless and until such labor organization is
certified as the collective-bargaining representative of
Respondent Employer's employees in an appropriate unit
by the National Labor Relations Board.
(b) Giving effect to a collective-bargaining agreement
with Local 796 dated March 17, 1978, except that the
wages and other benefits provided in that agreement
shall not be reduced during the term of that agreement,
that is, until May 1, 1981.
:1 In the event no exceptions are filed as provided in Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes.
295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is de-
signed to effectuate the policies of the Act:
(a) Post at its Far Rockaway, New York, location
copies of the attached notice marked "Appendix A."22
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by Re-
spondent employer's authorized representative, shall be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Respondent Employer
shall take reasonable steps to insure that said notices are
not altered, defaced or covered by any other material.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days of this Order, what steps the Re-
spondent Employer has taken to comply herewith.
B. Respondent Local 796, Amalgamated Workers
Union of America, Richmond Hill, New York, its offi-
cers, agents, and representatives, shall:
1. Cease and desist from:
(a) Purporting to represent employees employed by
the Respondent Employer at its Far Rockaway, New
York, location, unless and until certified as the collec-
tive-bargaining representative of these employees in an
appropriate unit by the National Labor Relations Board.
(b) Enforcing or attempting to enforce a collective-
bargaining agreement dated March 17, 1978.
(c) In any like or related manner interfering with, re-
straining, or coercing employees of Respondent Employ-
er in the exercise of their rights guaranteed them by Sec-
tion 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its offices copies of the attached notice
marked "Appendix B." 23 Copies of said notice, or forms
provided by the Regional Director for Region 29, after
being duly signed by Respondent Union's authorized rep-
resentative, shall be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
22 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted By
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
23 See fn. 22.
places where notices to members are customarily posted.
Respondent union shall take reasonable steps to insure
that said notices are not altered, defaced or covered by
any other material.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days of this Order, what steps Respon-
dent union has taken to comply herewith.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL NOT purport to represent employees of
First National Maintenance Corporation at its
Haven Manor location in Far Rockaway, New
York, unless and until we are certified as the collec-
tive-bargaining representative of these employees in
an appropriate unit by the National Labor Relations
Board.
WE WILL NOT enforce or attempt to enforce a
collective-bargaining agreement with First National
Maintenance Corporation dated March 17, 1978.
WE WILL NOT in any like or related manner re-
strain or coerce employees of First National Main-
tenance Corporation in the exercise of their rights
guaranteed them by Section 7 of the National Labor
Relations Act.
LOCAL 796, AMALGAMATED WORKERS
UNION OF AMERICA
296