Hunts Point Recycling Corp.

National Labor Relations Board - Board Decisions

Feb 19, 1991

301 N.L.R.B. 751 (N.L.R.B. 1991)

751
301 NLRB No. 110
HUNTS POINT RECYCLING CORP.
1 The Respondent has requested oral argument. The request is denied as the
record, exceptions, and briefs adequately present the issues and the positions
of the parties.
2 The Mid Bronx secretary is referred to in the record and briefs as both
Robert Buchanan and Robert Buchman. We are satisfied that these references
are to the same individual.
3 The agreement does not identify the multiemployer group by name or con-
stituent members.
4 Unless otherwise noted all subsequent dates will be in 1988.
5 The judge found that some trash collectors like Mid Bronx and Victory
had historically begun to sort and compact refuse on their own premises, to
assign the work to unit employees, and to extend the Union contract to cover
the work. The judge made no findings, and the record is silent, on the practice
continued in the industry when, as here, two or more signatory employers
open a facility at a separate site.
Hunts Point Recycling Corp., a Joint Venture of
Mid Bronx Haulage, Inc. and Victory Sanita-
tion, Ltd. and Local 813, affiliated with Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL–CIO. Case 2–CA–23211
February 19, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 27, 1990, Administrative Law Judge El-
eanor McDonald issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,1 the
Charging Party filed a brief in response to the excep-
tions, and the General Counsel filed a brief in support
of the judge’s decision.
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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The complaint alleged, and the judge found, that
Mid Bronx Haulage, Inc. (Mid Bronx) and Victory
Sanitation Ltd. (Victory) commenced a new type of
work and different method of operation by opening a
waste recycling and transport center at Hunts Point and
that the Respondent violated Section 8(a)(5) and (1) by
refusing to recognize the Union and by failing to apply
the collective-bargaining agreement in effect at Mid
Bronx and Victory to the Hunts Point employees. We
disagree. For the reasons set forth below, we find that
the General Counsel has failed to demonstrate that the
Respondent has an obligation to recognize and bargain
with the Union absent a showing of majority support
among the employees at Hunts Point, and we dismiss
the complaint.
The facts, as found by the judge or undisputed in
the record, follow. Mid Bronx and Victory are com-
mercial refuse collectors occupying separate facilities
in Bronx, New York. Mid Bronx is owned in equal
shares by its president, Arnold Sirico, its treasurer,
Robert Sirico, and its secretary, Buchanan.2 Victory is
owned in equal shares by its president, Bizenza, and
its secretary-treasurer, Squillante. No party contends
that Mid Bronx and Victory are related entities.
Both Mid Bronx and Victory are signatories to sepa-
rately executed copies of an agreement with the Union
covering drivers and helpers. The agreement states that
it was ‘‘jointly negotiated by the Union with the Em-
ployers in the New York City area covered by this
Agreement,’’ and further provides that ‘‘an industry-
wide unit of all employees covered by this Agreement
. . . shall be appropriate [and] the parties concur that
the Employers signatory hereto constitute a multi-em-
ployer group subject to the jurisdiction of the National
Labor Relations Board.’’3 Section 24(e) of this agree-
ment provides as follows:
In the event new types of work or different meth-
ods of operation or new or other types of equip-
ment are used that are not otherwise covered here-
in, the Union and the Employer shall meet to take
up for settlement the wages to be paid for such
work, methods of operation, or equipment.
Both Mid Bronx and Victory are also signatories to
undated letters of agreement with the Union in which
each of them, as ‘‘individual Employer[s], upon a law-
ful showing of representation status, agrees to recog-
nize [the Union] for mechanics, mechanics’ helpers
and yardmen at all locations.’’
In June 1988,4 the Sirico brothers, Squillante, Bu-
chanan, and Bizenza (the partners) agreed to open a fa-
cility to sort and compact trash. The partners located
the operation at Hunts Point, a few blocks from the
Mid Bronx and Victory operations.5 On hearing of the
plans to open Hunts Point, the Union contacted both
Mid Bronx and Victory in June to negotiate a wage
rate for the not yet hired Hunts Point employees.
Bizenza and Robert Sirico attended two meetings that
summer with the Union, but no agreement was worked
out. No representative of Hunts Point attended any
other meetings, although the Union continued to re-
quest them.
The new facility commenced operations in October.
Both Mid Bronx and Victory deliver refuse to Hunts
Point for processing; so do other companies not al-
leged as related entities here. The partners hired a gen-
eral manager, Luongo, and an equipment manager,
Richards, for the Hunts Point facility. During the start-
up period the partners spent considerable time at Hunts
Point and were involved in all phases of its operation.
Subsequent to the end of the startup phase Bizenza,
Robert Sirico, and Buchanan were still involved to
varying degrees in managing Hunts Point. As of the
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The judge also found that business relations between Mid Bronx and Vic-
tory and Hunts Point were not at arm’s length. The judge examined dumping
vouchers to conclude that the partners had used the vouchers to transfer funds
to Hunts Point and that the amounts charged Mid Bronx and Victory to dump
at Hunts Point had no relation to actual services rendered. We reject these
findings. We note that no party advanced such an interpretation of the facts;
further, we do not find the judge’s inferences justified by the evidence.
At the hearing, the General Counsel argued that Hunts Point was a ‘‘joint
venture’’ of Mid Bronx and Victory and that Sirico and Bizenza held them-
selves out to the Union as joint employers with regard to Hunts Point. The
judge did not pass on these contentions. As the General Counsel has not ex-
cepted to the judge’s failure to pass on them, we limit our comments to noting
that, insofar as the General Counsel was arguing that principals of Mid Bronx
and Victory were joint employers of the employees at Hunts Point, single em-
ployer status and joint employer status are not interchangeable concepts. See,
e.g., NLRB v. Browning-Ferris Industries, 691 F.2d 1117, 1121–1123 (6th Cir.
1982); Aspen Leasing Systems, 271 NLRB 1536 fn. 1 (1984).
7 The Board will find that a new employee group has accreted to an existing
bargaining unit, obligating the employer to bargain with respect to the new
group without an election if the new group shares a sufficient community of
interest with the employees in the existing unit and if the new group does not
constitute a separate unit. Save Mart of Modesto, 293 NLRB 1190 (1989).
hearing date, about 11 employees were employed at
the Hunts Point facility. Some of these employees op-
erate machinery such as forklifts to unload and com-
pact trash; others hand-sort recyclable objects from
valueless refuse. Once the trash has been sorted and
compacted, it is transported to landfills by independent
truckers. One Mid Bronx employee went to work for
Hunts Point when the facility opened and on one occa-
sion a Hunts Point employee filled in for a Mid Bronx
employee.
The judge found that the partners set the terms and
conditions of employment for Hunts Point and hired its
employees, except for the pickers; that the operations
of Mid Bronx and Victory were functionally integrated
with those of Hunts Point; that Mid Bronx, Victory,
and Hunts Point were commonly owned and managed;
and that therefore Mid Bronx, Victory, and Hunts
Point constitute a single employer.6 Further, the judge
found that the Hunts Point employees have sufficient
contact and similarity of job skills and duties with em-
ployees of Mid Bronx and Victory to find a commu-
nity of interest among the employees at the three loca-
tions. Thus, the judge reasoned, the Hunts Point em-
ployees are an accretion to ‘‘the employees at Mid
Bronx and Victory,’’ and by extension to the industry-
wide bargaining unit, under the terms of the agreement
quoted above. Thus, having found accretion, the judge
concluded that the Respondent was obligated to apply
the agreement to Hunts Point and violated Section
8(a)(5) by failing to do so. We disagree that the Hunts
Point employees are an accretion to either an ‘‘indus-
try-wide’’ multiemployer unit or to a unit of Mid
Bronx and Victory employees.7
1. Accretion to the multiemployer unit. The Board
will find a multiemployer unit appropriate when the
employers involved have evinced a clear intent to par-
ticipate in multiemployer bargaining and to be bound
by the actions of the bargaining agent. Tampa Bay
Glazing Contractors Assn., 228 NLRB 360 (1977). On
careful review of the record, we do not adopt the
judge’s inferences that either Mid Bronx or Victory, or
a combination of the two, is a member of a multiem-
ployer bargaining group or that such a multiemployer
unit exists and would be appropriate. Other than the
conclusory testimony of Union Agent Lieber that Mid
Bronx and Victory were members of a multiemployer
group the name of which Lieber ‘‘believe[d]’’ was the
Queens Trade Waste Association and the signatures of
Robert Sirico and Bizenza on contracts and letters of
assent not naming that organization, the record con-
tains no actual evidence regarding the identity, history,
or status as a bargaining agent of such a group, or,
more importantly, of any explicit indication by either
Mid Bronx or Victory of an intent to be bound by that
group’s actions in negotiations. Such evidence falls
short of a demonstration of an unequivocal intent to be
bound by the actions of a bargaining agent which is
required by the Board to bind an employer to multiem-
ployer bargaining, and by extension, to find that the
employees of that employer belong to a multiemployer
unit. Phoenix Air Conditioning, 231 NLRB 341, 342
(1977); Greenhoot, Inc., 205 NLRB 250, 251 (1973).
Finally, even if Mid Bronx and Victory have in fact
consented to be bound by such bargaining, under the
circumstances here there is insufficient evidence to
find that an ‘‘industry-wide’’ unit actually exists and
functions, much less that the Mid Bronx and Victory
employees have merged into that unit. Cf. Etna Equip-
ment & Supply Co., 236 NLRB 1578 (1978).
Further, we do not find that the language of those
agreements establishes either the requisite intent to be
bound or a contractual obligation to recognize the
Union at Hunts Point absent a showing of majority
support at that facility. It is well settled that, taken
alone, an employer’s adoption of a multiemployer
agreement, even when the agreement contains a so-
called ‘‘one-unit’’ clause like that quoted above, is not
sufficient to establish that it has consented to become
a part of a multiemployer unit. See Schaetzel Trucking,
250 NLRB 321, 323 (1980), and cases cited therein.
Further, the language of the agreements themselves
does not, and lawfully cannot, require Mid Bronx or
Victory to recognize the Union as the representative of
employees at a separate location, absent accretion or
a showing of majority support. See Kroger Co., 219
NLRB 388 (1975). As noted above, the record contains
no evidence that the Union ever made such a showing
vis-a-vis the Hunts Point employees. Thus, we disagree
with the judge’s finding that an industrywide unit is
appropriate and that the Mid Bronx and Victory em-
ployees are a part of it.
2. Accretion to a unit of Mid Bronx and Victory em-
ployees. We also reject the judge’s findings that the
Hunts Point employees share a community of interest
with the Mid Bronx and Victory employees, sufficient
753HUNTS POINT RECYCLING CORP.
8 Cf. Graphic Services Corp., 224 NLRB 17, 23–24 (1976) (contention that
three entities are a single employer rejected where one entity is not related
to other two by common management, ownership, control, or operations).
9 Because of our disposition of the allegations here, we need not reach the
issues of joinder and service with respect to Mid Bronx and Victory raised
by the Respondent.
to establish that the Hunts Point employees are an ac-
cretion to a unit of Mid Bronx and Victory employees.
Rather, we find that regardless of any similarities or
differences between the job skills, duties, and terms
and conditions of employment of the Mid Bronx and
Victory employees, these two groups cannot and do
not constitute an appropriate unit for the simple reason
that they have different employers. As noted above,
there is no contention here that Mid Bronx and Victory
are related entities or that the two of them constitute
a single employer. Moreover, the record contains no
evidence that either Mid Bronx or Victory has con-
sented to be bound by multiemployer bargaining with
the other; absent such a showing, the Board will not
find a unit combining the employees of different em-
ployers appropriate. Greenhoot, supra.
This same consideration also precludes a finding
that a community of interest exists among the Hunts
Point, Mid Bronx, and Victory employees. Simply put,
the Hunts Point employees are employed by a different
entity than either the Mid Bronx or the Victory em-
ployees. Thus, in our view, the judge erred in finding
that the three entities constitute a single employer. The
Board finds single employer status when ‘‘two or more
nominally separate business entities may properly be
considered sufficiently integrated to warrant their uni-
tary treatment.’’ NLRB v. Browning-Ferris Industries,
supra, 691 F.2d 1117, 1121 (emphasis and footnote
omitted). In analyzing the degree of integration, the
Board looks at several factors: (1) functional integra-
tion of operations; (2) centralized control of labor rela-
tions; (3) common management; and (4) common own-
ership or financial control. Radio Union v. Broadcast
Service of Mobile, 380 U.S. 255, 256 (1965). The
judge found that each of these factors demonstrate that
Mid Bronx, Victory, and Hunts Point are a unitary em-
ployer. We reject the judge’s findings in view of the
lack of evidence that Mid Bronx and Victory are any-
thing but separate corporate entities with no common
ownership or management, no centralized control of
labor relations, and operations which are not inte-
grated. The mere fact that some of the principals of
two unrelated employers combine to open and operate
a third separately incorporated facility is insufficient
to, in effect, bootstrap a finding of single employer sta-
tus for the three entities.8 Therefore, we do not find
that the Hunts Point, Mid Bronx, and Victory employ-
ees have even the requisite community of interest for
a finding that they constitute an appropriate unit, much
less the stronger showing of common interests required
for a finding of accretion. Save Mart of Modesto,
supra, fn. 5. Further, as we have found that Mid
Bronx, Victory, and Hunts Point are not a single em-
ployer, we conclude that the bargaining obligations of
Mid Bronx and Victory have no application to Hunts
Point. Western Union Corp., 224 NLRB 274, 274
(1976), affd. 571 F.2d 665 (D.C. Cir. 1978). Thus, we
shall dismiss the complaint in its entirety.9
ORDER
The complaint is dismissed.
Judy Minette Sandler, Esq., for the General Counsel.
Sanford E. Pollack. Esq. and Steven B. Horowitz, Esq.
(Horowitz & Pollack. P.C.), of South Orange, New Jersey,
for Respondent.
Stuart Bochner, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in New York, New York, on June 26 and 27
and July 6, 1989. The complaint alleges that Respondent, in
violation of Section 8(a)(1) and (5) of the Act, refused to
bargain with the Union and refused to apply the collective-
bargaining agreement to the employees at Respondent’s
Hunts Point facility. Respondent denies that the agreement
was applicable to those employees.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent in Sep-
tember 1989, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Business of Respondents and Their Alleged Status
as a Single Integrated Enterprise
Respondent Hunts Point, a New York corporation with its
principal office in Bronx, New York, is engaged in recycling
and transporting refuse and annually purchases goods valued
in excess of $50,000 from outside the State of New York.
Mid Bronx Hauling, Inc. is a domestic corporation with an
office in Bronx, New York, where it is engaged in collecting
refuse from commercial customers. Victory Sanitation, Ltd.
is also a domestic corporation with an office in Bronx, New
York, where it is engaged in collecting refuse from commer-
cial customers. The complaint alleges that Mid Bronx and
Victory jointly established Hunts Point to provide recycling
and transportation of refuse collected by both Mid Bronx and
Victory and that Hunts Point is an affiliated enterprise of
Mid Bronx and Victory. The complaint alleges that Mid
Bronx and Victory jointly own, manage, and supervise Hunts
Point, jointly formulate and administer labor policy for Hunts
Point employees, jointly interchange personnel, and jointly
hold themselves out as a single enterprise. The complaint
concludes that Hunts Point, Mid Bronx, and Victory are a
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Mid Bronx and Victory were not separately served here.
2 Mid Bronx was incorporated in 1971. Victory was incorporated in 1980.
Hunts Point was incorporated on July 1, 1988.
3 Robert and Arnold Sirico are brothers. Buchanan is their brother-in-law.
4 Robert Sirico testified about his part in the operations of Mid Bronx and
Hunts Point. His answers tended to be evasive and often did not make sense.
He could not recall many facts which a businessman would normally know
concerning his business dealings. I shall not rely on his testimony when it is
contradicted by other more reliable evidence. Richard Bizenza testified about
his part in the operations of Victory and Hunts Point. I observed that he was
evasive and uncooperative in responding to questions and that he could not
recall many things that reasonably he would be expected to remember. I shall
not rely on his testimony where it is contradicted by other more reliable evi-
dence. I find that the other witnesses were generally credible.
5 The record does not disclose the number of employees in the multiem-
ployer unit. Mid Bronx employs 12 to 14 unit members; Victory employs
about 8 unit members.
6 Other unions represent employees of other commercial garbage companies
and other transfer stations.
7 Certain transfer stations are referred to as recycling facilities because they
handle garbage that is more valuable than the usual mix of commercial refuse.
8 The machine operators would operate a payloader, a baler, and a forklift.
The pickers and sorters, unskilled workers, would sort through the garbage be-
fore it was compacted in order to remove resaleable material.
single integrated employer engaged in commerce. Respond-
ent Hunts Point denies the allegations relating to joint estab-
lishment and joint control of Hunts Point.1
The relationships among the individuals who own and di-
rect the affairs of Hunts Point, Mid Bronx, and Victory are
most easily set forth in table form:2
Owners/Officers
Mid Bronx Robert Sirico—Treasurer
Arnold Sirico—President
Robert Buchanan—Secretary3
Victory Richard Bizenza—President
Nunzio Squillante—Secretary-
Treasurer
Hunts Point Robert Sirico—Treasurer
Arnold Sirico—President
Robert Buchanan—Vice
President
Richard Bizenza—Secretary
Nunzio Squillante—Vice
President
The testimony of all the witnesses taken together and eval-
uated for reliability shows the following facts.4 All three cor-
porations involved in this proceeding are located in the
Hunts Point section of Bronx, New York. They are within
walking distance of each other. Both Mid Bronx and Victory
belong to an employer association called the Queens County
Trade Waste Association.5 The Association has negotiated
for many years with the Union, and Mid Bronx and Victory
have signed the contracts negotiated by the Association. In
addition to representing employees employed by commercial
refuse collectors, the Union represents employees at 25 trans-
fer stations.6 A transfer station is a place where refuse col-
lectors dump their garbage in order to sort out and remove
any valuable waste, such as paper or certain metals, for re-
sale and in order to compact the rest of the garbage for re-
moval to a dump. Historically, transfer stations arose when
garbage companies began emptying their trucks on their own
property in order to sort and compact it.7 This was economi-
cally advantageous because at a garbage dump the charge for
dumping is computed not by weight but by the cubic yard.
Usually, an employee of the garbage company represented by
Local 813 was assigned to run the bulldozer used to handle
the garbage at the transfer station and the collective-bar-
gaining agreement was applied to him.
In June 1988 Bernard Adelstein, secretary-treasurer of the
Union wrote to Bizenza at Victory and to Robert Sirico at
Mid Bronx stating the Union’s understanding that ‘‘your
company is ready to implement a new operation, i.e., a trans-
fer station’’ and requesting a meeting to negotiate a wage
rate for the work. Both Bizenza and Robert Sirico attended
meetings at the Union’s offices on June 22 and September
27, 1988. The Union was represented by various individuals
including Adelstein and Michael Lieber, an attorney who is
a legal and administrative coordinator for the Union. Sirico
and Bizenza confirmed that they were joining forces to open
a transfer station to reduce their costs of dumping. They stat-
ed their intention to use employees of Mid Bronx and Vic-
tory at the new transfer station. The men present at the meet-
ings negotiated extensively concerning rates of pay and bene-
fits to be offered to the prospective employees. Specific rates
were discussed for the machine operators and for the pickers
and sorters.8 A third meeting was agreed on but Bizenza and
Sirico did not attend. Several further meetings were sched-
uled only to be canceled by Bizenza and Sirico. By Decem-
ber 1988, Hunts Point was open for business. It was clear
by mid-December that Bizenza and Sirico refused to bargain
with the Union concerning the Hunts Point employees.
The evidence shows that Robert Sirico runs the operations
at Mid Bronx. He oversees the work of the office manager
and the general manager. He runs the financial affairs of the
corporation. His brother, Arnold Sirico, takes care of the me-
chanical equipment of Mid Bronx, and his brother-in-law,
Robert Buchanan, is in charge of customer relations and rev-
enue collections. The three partners hired the general man-
ager at Mid Bronx, and they set the Company’s labor poli-
cies. Richard Bizenza runs the operations of Victory and the
other companies in which he has an interest from his office
at the Victory location. Bizenza hired all the employees at
Victory. He and his partner, Nunzio Squillante, make all de-
cisions relating to Victory and these decisions are carried out
by the general manager.
Both Mid Bronx and Victory collect garbage in trucks
manned by a driver and a helper; these employees are all
represented by Local 813.
The record establishes that the five owners of Hunts Point
make all the decisions relating to that Company including the
setting of its labor policy. They jointly determine what the
dumping charges shall be, they interviewed and hired all the
employees except for the unskilled, high turnover pickers and
sorters, and they set all the wages and benefits. Decisions
whether to discharge an employee are cleared by the five
owners. When Hunts Point was being put into operation and
the facility was being operated on a trial basis, all five own-
ers were present for lengthy periods of time, learning the op-
eration and actually working the equipment. Bizenza in-
structed the pickers in their duties to reinforce the instruc-
tions given by Operations Manager John Luongo. According
to Robert Sirico, Bizenza makes sure that Hunts Point is run-
ning properly. Robert Sirico does the paperwork and book-
keeping for Hunts Point every week. In addition, Buchanan
755HUNTS POINT RECYCLING CORP.
9 Sirico testified that all the paperwork is done at home. Because both Sirico
and Buchanan have an office at Mid Bronx, I view this testimony as incredible
and I find that the Hunts Point paperwork is done at Mid Bronx.
10 The record does not disclose the duration of the disability leave nor any
arrangements made in Arnold Sirico’s absence.
11 Casucci has been a member of Local 813 for 9 years.
12 The baled garbage from Hunts Point is taken to dumps by outside trailers
which are not owned or operated by Hunts Point.
has been doing some paperwork.9 If Luongo has a problem
at Hunts Point that he cannot handle, for instance with a
landfill, then Bizenza will make a telephone call from his of-
fice at Victory in order to solve the problem. Before he was
placed on disability, Arnold Sirico worked half a day at
Hunts Point and half a day at Mid Bronx taking care of
maintenance and supplies.10 The five owners of Hunts Point
meet weekly to make determinations concerning the business,
including matters relating to labor relations.
A former employee of Mid Bronx is now employed by
Hunts Point. Joseph Casucci testified that Robert Sirico hired
him to work at Mid Bronx as a garbage truck helper.11
Casucci needed a job, but he did not want to remain on a
garbage truck. Sirico told him that in a few weeks, a new
recycling business would be opening and that there would be
a job for Joseph Casucci and his brother, Frankie. Sirico also
told him that when he went to the new job at Hunts Point
his membership in Local 813 would cease. Sirico said they
were having trouble with Local 813 and they were trying to
bring in a different union. On the first day that Casucci
began working at Hunts Point, Robert Sirico instructed him
to go over to the transfer station with a truckload of garbage.
He dumped the garbage at Hunts Point and then Joseph
Casucci, his brother Frankie, and Arnold Sirico ran the
equipment at Hunts Point. At the time he gave his testimony,
Joseph Casucci stated that he was loading dock manager at
Hunts Point. He runs a forklift that takes baled cubes of gar-
bage from the baling machine and he stacks the cubes and
later loads them on a trailer which takes them to a dumping
site.12 Joseph Casucci also tells the pickers to keep the floors
and ramps clear of garbage; when he is not driving the fork-
lift, he, himself, is helping to clean the ramps and the floors.
Casucci signed a management contract with Hunts Point, but
there is no credible evidence that he has ever exercised any
supervisory authority at Hunts Point.
The credible evidence shows that no one works in the
Hunts Point office. John Luongo, the operations manager,
spends his time on the plant floor, helping and directing the
men. About eight or nine employees work at Hunts Point. On
one occasion, when Mid Bronx was short a man for the
night, the supervisor from Mid Bronx borrowed a man from
Hunts Point to work at Mid Bronx.
Joseph Casucci testified that about 34 or 36 truckloads of
garbage are dumped each day at Hunts Point. Of these, 20
are from Mid Bronx and Victory. Mid Bronx dumps all of
its garbage at Hunts Point; of the $245,000 monthly dumping
fees typically received by Hunts Point, $100,000 is paid by
Mid Bronx. Victory also dumps all of its garbage at Hunts
Point; in a typical month, Victory pays approximately
$40,000 in dumping fees to Hunts Point.
The evidence shows that the five owners of Hunts Point
invested some unspecified sums of money to begin the oper-
ation. In addition, when Hunts Point was in its first few
months of operation, money was transferred from Mid Bronx
and Victory to Hunts Point through the device of prepaid
dump tickets. Each week, both Mid Bronx and Victory paid
identical sums to Hunts Point and they were given dump
tickets which purportedly permitted the two companies to
dump certain amounts of garbage at Hunts Point. From the
financial records introduced here, it seems that the amounts
paid for the dump tickets had no relation to the garbage actu-
ally dumped. Indeed, Robert Sirico testified that the device
was a way of producing capital for Hunts Point; the owners
did not have enough money for the ‘‘enormous’’ costs of
starting Hunts Point and capital was thus transferred to Hunts
Point from Mid Bronx and Victory.
The Board considers nominally separate business entities
to be a single employer where four criteria are present: (1)
interrelation of operations, (2) common management, (3)
centralized control of labor relations, and (4) common own-
ership. Radio Union Local 1264 v. Broadcast Service, 380
U.S. 255 (1965). The facts in the instant case show interrela-
tion of operations among Hunts Point, Mid Bronx, and Vic-
tory: Garbage is picked up by the trucks owned by Mid
Bronx and Victory and taken to Hunts Point where it is sort-
ed and baled. The testimony shows that this method is eco-
nomically advantageous to both Mid Bronx and Victory in
that it enables them to cut the costs of dumping in other lo-
cations. Most of the garbage handled by Hunts Point is
picked up by Mid Bronx and Victory. The same individuals
who process paperwork at Mid Bronx, Robert Sirico and Bu-
chanan, do the paperwork for Hunts Point. An employee of
Mid Bronx was brought over at the startup of Hunts Point,
and an employee of Hunts Point was borrowed to help out
at Mid Bronx. The same person, Arnold Sirico, takes care of
the mechanical and supply operations at Hunts Point and
Mid Bronx. The facts show that there is centralized control
of labor relations: The two owners of Victory and the three
owners of Mid Bronx make all decisions about hiring, firing,
wages, and labor policy for their respective companies.
These same five owners make all similar decisions con-
cerning hiring, firing, wages, and labor policy for Hunts
Point. Robert Sirico from Mid Bronx and Richard Bizenza
from Victory met with the Union twice to negotiate con-
cerning wages and other conditions. The facts show common
management: The same five individuals who run Mid Bronx
and Victory, making all decisions regarding the financial and
day-to-day operations of their respective companies, are the
five owners who meet together once a week in order to make
all decisions relating to Hunts Point. Finally, the facts show
common ownership: The three owners of Mid Bronx and the
two owners of Victory are the five owners of Hunts Point.
Both Mid Bronx and Victory contributed large sums of cap-
ital to the startup costs of Hunts Point. See also Savage
Gateway Supermarket, 286 NLRB 180 (1987); Soule Glass
Co., 246 NLRB 792 (1979).
I find that Hunts Point Recycling Corp., Mid Bronx Haul-
age, Inc., and Victory Sanitation, Ltd. constitute a single em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
There is no dispute that, and I find, the Union is now and
has been at all times material a labor organization within the
meaning of Section 2(5) of the Act.
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. ALLEGED UNFAIR LABOR PRACTICES
General Counsel contends that the employees of Hunts
Point constitute an accretion to the unit. In determining
whether accretion is appropriate, the Board considers the
community of interests of the employees. Where there is
‘‘more than one operation of a single employer, the follow-
ing factors are particularly relevant; the bargaining history;
the functional integration of operations; the differences in the
types of work and the skills of employees; the extent of cen-
tralization of management and supervision, particularly in re-
gard to labor relations, hiring, discipline, and control of day-
to-day operations; and the extent of interchange and contact
between the groups of employees.’’ Peter Kiewit Sons’ Co.,
231 NLRB 76 (1977), affd. 595 F.2d 844 (D.C. Cir. 1979).
As stated above, the history of the transfer stations shows
that when they were established by refuse collection compa-
nies, the Local 813 contract was extended to cover the trans-
fer station employees. The locations of Mid Bronx, Victory,
and Hunts Point are all within walking distance of each
other. Both Mid Bronx and Victory dump all of their garbage
at Hunts Point and there is an integrated processing of gar-
bage from pickup by Mid Bronx and Victory through dump-
ing, sorting, and baling at Hunts Point. As shown above,
there is centralized control of operations, finances, and labor
relations as it relates to Hunts Point; the managers and own-
ers of the single employer control hiring, firing, wages, and
benefits, make operational decisions, and direct the finances
of Hunts Point. The employees of Hunts Point have daily
contact with the employees of Mid Bronx and Victory when
the drivers and helpers of the last two companies deliver gar-
bage to Hunts Point for sorting and processing. The employ-
ees of Mid Bronx and Victory present their dumping tickets
to the employees of Hunts Point. An employee of Mid Bronx
was hired to work at Hunts Point, and a Hunts Point em-
ployee was borrowed to fill in for an absent employee of
Mid Bronx.
The last determination to be made relates to the types of
work and the skills of employees of the single employer. As
stated above, both Mid Bronx and Victory employ drivers
and helpers. The record shows that drivers drive garbage
trucks; the trucks require either manual loading of garbage
into the rear of the truck, or a lever on the truck activates
a mechanism which lifts a container of garbage, dumps the
garbage into the truck, and then replaces the empty container
on the ground. Helpers assist the drivers in loading the gar-
bage by either method. The eight or nine employees of Hunts
Point consist of machine operators and a number of pickers
and sorters who go through the garbage to extract recyclable
materials. There is one payloader operator who works the
machine that lifts the garbage off the ground with a bucket
and dumps the garbage into the baling machine. During the
testing period for Hunts Point, Richard Bizenza worked the
payloader; he testified that he had driven a garbage truck for
13 years and this was apparently his background for learning
to operate the payloader. There was no evidence as to the ex-
perience of the man who is currently running the payloader
at Hunts Point. The record shows that Hunts Point employs
one worker to run the baling machine; this machine receives
loose garbage and then puts it out in the form of a compact
cube. The worker running this machine controls it by means
of button controls. Finally, Hunts Point employs two forklift
operators; these men operate the forklifts that take baled gar-
bage from the payloader, store it for pickup, and then load
it onto the trailer trucks that come to remove it. The record
shows that forklift operators assist pickers and loaders on oc-
casion at Hunts Point. It takes about 1 day to learn to operate
a forklift if one has the ability to drive. The employees of
the three companies all operate machines that handle, or they
handle directly, garbage from commercial customers. They
are able to fill in for each other when required and, in some
cases, to learn each others’ jobs in a short time. On the basis
of the foregoing summary, I find that there is a sufficient
similarity of skills and types of work among the employees
of the single employer such that, in addition to the consider-
ations enumerated above, the employees of Hunts Point con-
stitute an accretion to the existing unit.
The collective-bargaining agreement contains a recognition
clause that provides:
The Employers recognize the Union as the sole and ex-
clusive bargaining representative of all Chauffeurs and
Helpers at all locations of the Employer . . . with re-
spect to wages, hours and other working conditions.
The area of work includes, but not by way of limita-
tion, loading and/or removing garbage, rubbish, cinders,
ashes, waste materials, building debris and similar prod-
ucts. The Employers agree that for the purpose of any
proceeding before any Labor Relations Board and in
order to effectuate the provisions of this Agreement, an
industry-wide unit of all employees covered by this
Agreement rather than an individual Employer unit
shall be appropriate. This Agreement having, as in the
past, been jointly negotiated by the Union with Em-
ployers in the New York City area covered by this
Agreement, the parties concur that the Employers signa-
tory hereto constitute a multi-employer group subject to
the jurisdiction of the National labor Relations Board.
Section 24(e) of the collective-bargaining agreement pro-
vides:
In the event new types of work or different methods of
operation or new or other types of equipment are re-
quired or used that are not otherwise covered herein,
the Union and the Employer shall meet to take up for
settlement the wages to be paid for such work, methods
of operation, or equipment. Upon agreement of said
rates, such rates shall be retroactive to the date of noti-
fication by the Union regarding the new type of work
begun or the new type of equipment installed. In no
event shall such rates be below the minimum of the
rates set forth herein.
Having found that Hunts Point constitutes a single em-
ployer with Mid Bronx and Victory and having found that
the employees of Hunts Point are properly accreted to the
employees of Mid Bronx and Victory, I further find, in ac-
cordance with the collective-bargaining agreement, that the
employees of Hunts Point are an accretion to the industry-
wide bargaining unit.
I find that the appropriate collective-bargaining unit is:
All chauffeurs and helpers at all locations of members
of the Queens County Trade Waste Association and of
the employers who have authorized the Association to
757HUNTS POINT RECYCLING CORP.
13 I have read the arbitration award cited by Respondent: it is irrelevant for
many reasons, among them the fact that the arbitrator viewed the case as a
jurisdictional dispute between two competing unions which he lacked the au-
thority to decide.
bargain on their behalf, including chauffeurs, helpers,
machine operators, pickers and sorters of Hunts Point,
Mid Bronx and Victory, but excluding office clerical
employees, guards and supervisors as defined in the
Act.
Hunts Point has refused to meet with the Union since De-
cember 1988, to discuss wages and benefits as requested by
the Union pursuant to section 24(e) of the collective-bar-
gaining agreement. Since the Hunts Point employees are part
of the unit represented by the Union, the refusal to recognize
the Union and apply the terms of the collective-bargaining
agreement violated Section 8(a)(5) and (1) of the Act. Hahn
Motors, 283 NLRB 901 (1987).13
CONCLUSIONS OF LAW
1. The following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All chauffeurs and helpers at all locations of members
of the Queens County Trade Waste Association and of
the employers who have authorized the Association to
bargain on their behalf, including chauffeurs, helpers,
machine operators, pickers and sorters of Hunts Point
Recycling Corp., Mid Bronx Haulage, Inc. and Victory
Sanitation, Ltd., but excluding office clerical employ-
ees, guards and supervisors as defined in the Act.
2. At all times material, the Union has been the exclusive
representative of all employees within the appropriate unit
described above for purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
3. By refusing to recognize the Union and refusing to
apply the collective-bargaining agreement to its Hunts Point
employees, Respondent Hunts Point Recycling Corp. violated
Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
[Recommended Order omitted from publication.]