Market Place

National Labor Relations Board - Board Decisions

Sep 16, 1991

304 N.L.R.B. 995 (N.L.R.B. 1991)

995
304 NLRB No. 127
MARKET PLACE
1 The General Counsel has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they 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.
The Market Place, Inc., Alter Ego to The Market
Place, Inc. and Joseph Cingrani, a Partnership
d/b/a The Market Place, Inc. and United Food
and Commercial Workers Union Local 546,
Chartered by the United Food and Commercial
Workers International Union, AFL–CIO, CLC.
Case 13–CA–29557
September 16, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On April 10, 1991, Administrative Law Judge Rob-
ert A. Giannasi issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering 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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Cheryl Sternberg, Esq., for the General Counsel.
John P. Morrison, Esq., of Chicago, Illinois, for the Re-
spondent.
Charles Orlove, Esq., of Chicago, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This
case was tried on December 10, 11, and 12, 1990, in Chi-
cago, Illinois. The complaint alleges that Respondent, The
Market Place, Inc., was and is the alter ego of, or in the al-
ternative, the successor to a partnership between it and one
Joseph Cingrani with respect to a bargaining obligation cov-
ering meat department employees at its supermarket. The
complaint alleges that, as an alter ego, Respondent was obli-
gated under a collective-bargaining agreement with the
Charging Party (the Union), which renewed itself by its
terms yearly in the absence of notice of termination, and, as
a successor, was at least obligated to continue bargaining
with the Union as the exclusive bargaining representative of
all the meat department employees because it represented a
majority of those employees. The complaint also alleges that
Respondent violated Section 8(a)(5) and (1) of the Act by re-
fusing to recognize and bargain with the Union as exclusive
bargaining representative ‘‘since on or about December 27,
1989,’’ by thereafter withdrawing recognition from the Union
on May 15, 1990, and by unlawfully polling its employees
as to their union preferences on July 12, 1990. The complaint
further alleges that Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to apply and abide by the terms
of a collective-bargaining agreement between the Union and
the partnership since on or about December 27, 1989, by uni-
laterally changing working conditions since on or about July
1, 1990, and by issuing written warnings to employees in
connection with these changed working conditions. The Re-
spondent filed an answer contesting the essential allegations
in the complaint. Briefs have been filed by the General
Counsel and the Respondent which I have read and consid-
ered. Based on the briefs, the testimony of the witnesses, and
my observation of their demeanor, as well as the documen-
tary evidence, and the entire record, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, The Market Place, Inc. (Market Place) is a
corporation which operates a retail grocery store or super-
market at 521 West Diversey Parkway in Chicago, Illinois.
During a representative 12-month period, Respondent Market
Place derived gross revenues in excess of $1 million and pur-
chased and received, at its Chicago facility, products, goods,
and materials valued in excess of $50,000 directly from
points outside Illinois. Accordingly, I find, as Market Place
admits, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background: the operation of the meat department
Market Place is the present name of the full-service retail
supermarket owned and operated by the Stellas family for
many years at the Diversey location in Chicago. The super-
market operated under the name Shop and Save until 1986.
The president of Market Place is George Stellas Sr. His son,
Peter Stellas, is the meat and produce manager. For many
years the meat market or department of the supermarket at
Shop and Save or Market Place was owned and operated by
a separate entity, a partnership between the supermarket and
Joe Cingrani. Cingrani had a one-third ownership interest and
two-thirds was owned by Market Place or, before 1986, Shop
and Save, in both cases, the corporate entity of the Stellas
family. The partnership was also known and referred to as
S & S Meat Market or S & S Meats. The parties signed and
observed a partnership agreement formalizing their relation-
ship.
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The parties stipulated that there were only five bargaining unit employees
prior to the takeover. This does not include part-owner and Manager Joe
Cingrani who, of course, retired on June 30, 1988. Four of the five employees,
all except Ravers, were retained by Market Place.
2 The parties stipulated that the following was and is an appropriate unit
within the meaning of Sec. 9(b) of the Act:
All employees in the meat department who process, pack, wrap, handle,
price, and sell frozen and fresh meats on Respondent’s premises.
3 The parties litigated the supervisory status of Spielman, the incumbent
head of the meat department at the time of the withdrawal of recognition.
Peter Stellas and several employees testified about Spielman’s duties. Signifi-
cantly, Spielman, who was still employed at the time of the hearing, was not
called by the Respondent as a witness. However, the testimony in the record
establishes that Spielman has significant supervisory authority within the
meaning of Sec. 2(11) of the Act.
Spielman runs the meat department on a day-to-day basis. He schedules
meat department employees and assigns them their work. He grants them time
off, authorizes overtimen and handles employee problems. Peter Stellas, who
carries the title of meat and produce manager and has ultimate authority over
the meat department, is not in the department ‘‘very often,’’ according to an
employee witness. Another employee testified that Spielman hired him. Unlike
the rest of the meat department employees, Spielman does not punch a time
clock and is not paid time-and-one-half for working overtime. With the pos-
sible exception of employee Vito Proce, who may also have served as assistant
manager after he was hired in February 1989, Spielman was the only person
in the meat department who was salaried. Spielman alone among meat depart-
ment personnel attended periodic management meetings called by the
Stellases. In addition, he has been provided by Respondent with business cards
and has attended trade shows on behalf of Respondent. To the extent that Peter
Stellas’s testimony on this issue conflicts with that of employee witnesses, I
reject it as self-serving and not as candid and forthright as that of the employ-
ees who dealt with Spielman every day. Accordingly, I find that Spielman is
a statutory supervisor and, as such, is excluded from the unit. See Liberty
Markets, 236 NLRB 1486, 1495 (1978); Butera Finer Foods, 296 NLRB 950,
954 (1989).
At all times until the dissolution of the partnership on June
30, 1988, S & S Meats operated separately and at arms
length from the corporate entity owned by the Stellas family
which I will refer to as Market Place, even though for part
of the time it was known as Shop and Save. S & S Meats
sublet the meat department section of the supermarket from
Market Place pursuant to a written lease. S & S Meats and
Market Place maintained separate accounting books and
records as well as bank accounts at separate banks with dif-
ferent authorized signatories. They maintained separate finan-
cial statements, filed separate income tax returns under dif-
ferent employer identification numbers and used different at-
torneys. S & S Meats owned and paid for its own equipment
and meat products although sometimes Market Place
intitially purchased the products for reasons of convenience;
S & S Meats reimbursed Market Place for these initial pur-
chases. S & S Meats also paid for its share of unemployment
compensation and liability insurance policies which covered
the employees of both entities. It paid the wages and salaries
of its own employees who were represented separately, and
in a separate unit, by the Union. The supermarket employees
of Market Place—a much larger employee complement—
were, until some time in 1988, represented by another union.
The management and supervision of S & S Meats and
Market Place were separate and distinct. S & S Meats was
run by Joe Cingrani. Market Place was run by the Stellas
family. Cingrani made all employee relations decisions for
S & S Meats. No one from Market Place had any authority
or in fact exercised authority over these matters for S & S
Meats. Cingrani had no such authority over the employee re-
lations decisions of Market Place. The Union dealt only with
Cingrani with respect to contracts or labor relations matters
for S & S Meats. No one from Market Place supervised the
employees of S & S Meats. Cingrani drew a salary from
S & S Meats, but the Stellas family, notably George Stellas,
did not receive a draw from the partnership.
On June 30, 1988, S & S Meats was dissolved and Market
Place purchased Cingrani’s interest in the partnership. Market
Place thereafter wholly owned the meat department and oper-
ated it as part of its overall store through Peter Stellas.
Cingrani retired and has no relationship with Market Place
or the meat department. The partnership dissolution was me-
morialized by an agreement negotiated through separate at-
torneys.
When Market Place took over the meat department, it re-
tained the entire work force except for Dean Ravers, a butch-
er.1 Market Place immediately hired a new meat director
with responsibilities over the meat department; he was the
only new person hired for the meat department when Market
Place took it over. Of the four employees retained—Joe
Downing, Emery Edenhofer, Betty Conner, and Hiroshi
Kuwashima (Hiro)—three, all but Hiro, were members of the
Union. Thus, it is clear that, as of July 1, 1988, the employ-
ees of Market Place’s meat department included a majority
of the S & S employees in an appropriate unit.2 It is also
clear that a majority of the meat department’s employees at
the time of the takeover were union members. The Union
thus represented a majority of the employees in the unit at
the time of the takeover. I do not include in this total Meat
Director Greg Kane or his successor, DeWayne Spielman,
who were supervisors.3
After the takeover, Market Place serviced the same meat
department customers at the same location as had S & S
Meats. It also utilized essentially the same suppliers. It con-
tinued selling meat and fish as had S & S Meats under the
ultimate authority of Peter Stellas and the day-to-day author-
ity and supervision of Greg Kane and later DeWayne
Spielman. Over time Market Place sought to upgrade the
equipment of the meat department and changed its direction
toward prepared foods and assisted rather than self service.
Although the meat department was eventually given a ‘‘new
look,’’ its basic operation and purpose did not change. And,
although the employees were later required to wear uniforms
like the rest of the store employees and to service customers
to a greater degree than before, their basic jobs did not
change.
2. The bargaining relationships of the parties
As stated above, S & S Meats had a bargaining relation-
ship with the Union. The record contains several agreements
purportedly covering the employees of S & S Meats, some
signed by Joe Cingrani and officials of the Union. The latest
of these was a master agreement in printed booklet form en-
titled 1985–1988 Independent Retail Meat Cutters Contract;
it was executed on September 9, 1986. The circumstances of
its execution are as follows. Union Business Agent Richard
LeMonier serviced the S & S Meats facility, collecting union
dues and handling any problems the employees might have
on behalf of the Union. He visited the facility about once
every 3 months. Despite LeMonier’s jurisdiction over S & S
Meats, Union Business Agents Harold Haas and George
Spears, who had no direct responsibility for this unit, visited
Joe Cingrani at the facility on September 9, 1986, to obtain
his signature on the master agreement. Haas apparently knew
997MARKET PLACE
4 The record is silent as to whether employee Ravers was a union member
or whether he had union fringe benefit contributions paid on his behalf.
Cingrani from past dealings. Haas and Spears testified that
they observed Cingrani sign the 1985–1988 contract in their
presence. They took one copy of the executed contract back
to the Union’s office and Cingrani retained one copy.
Cingrani did not testify in this proceeding.
The record also contains two letters from LeMonier to
George Stellas in April and May 1987, stating that the Union
had been unsuccessful in getting the ‘‘current agreement’’
signed. This was a reference to the S & S Meats employees
even though the letters were addressed to Stellas as a prin-
cipal of ‘‘The Marketplace.’’ Shortly after the receipt of
these letters to Stellas, Respondent’s attorney, Matthew Phil-
lips, wrote a letter to the Union requesting a copy of the cur-
rent agreement. Union President Fred Clavio responded and
enclosed a blank copy of the 1982–1985 agreement which he
said was due to expire on July 20, 1987. LeMonier later
called Phillips at Clavio’s request. Phillips told LeMonier
that he wanted to see a signed copy of an agreement cover-
ing the meat department employees. LeMonier said that he
was ‘‘a bit embarassed, but that there was no executed con-
tract.’’
Here I must digress. The above raises a credibility issue
about the existence of an executed agreement as of Septem-
ber 1986, less than a year before LeMonier’s representation
that there was no such agreement. Respondent vigorously
contests the existence of such an agreement. I must say that
LeMonier’s 1987 attempt to get an agreement signed is hard
to reconcile with the testimony by other union officials that
one was signed, placed in the Union’s files, and uncovered
much later, indeed, after the withdrawal of recognition, and
presented to the Respondent at that point. Respondent’s posi-
tion would require me to find that the 1985–1988 agreement
was a fraud. I cannot make such a finding. I prefer to view
the evidence as a bumbling example of a representative effort
by an organization which had no real involvement in the
meat department and could care less until something dra-
matic happened. I am unprepared to discredit the essentially
mutually corroborative testimony of Spears and Haas, par-
ticularly in view of the failure of anyone to call Cingrani as
a witness, thus rendering the testimony uncontradicted. I
view as pathetic but plausible that LeMonier did not know
or remember that an executed contract had been secured cov-
ering a facility within his jurisdiction by two colleagues. For
some reason—and this was before the takeover of the meat
department by Market Place—LeMonier sought out Stellas,
with whom he had never dealt, rather than Joe Cingrani, with
whom he always dealt, in order to obtain a signed contract.
This was done when one apparently already existed deep in
the Union’s archives. In any event, and ironically, this find-
ing, as difficult as it is to make on a hotly contested issue,
is not crucial to the case. Whatever presumption of majority
the General Counsel sought to secure by virtue of the exe-
cuted 1985–1988 contract was established by virtue of the
evidence of actual majority as of the date of the takeover
based on union membership. And, insofar as the General
Counsel seeks to have the contract applied to Market Place,
the validity of the 1985–1988 contract has little significance
in view of my findings with respect to alter ego and the fail-
ure of Market Place to adopt the contract. These findings are
discussed in greater detail later in the analysis section of this
decision.
Returning to the story, apart from whatever agreement ex-
isted between the parties, S & S Meats made health and wel-
fare and pension payments for only three—or at most four—
of its five rank-and-file employees.4 It did not make these
payments on behalf of Hiro even though the 1985–1988
agreement referred to above clearly covered employees like
him who worked primarily with fish. Nor did the Union col-
lect dues from Hiro or require him to be a union member.
The other employees were members and had their dues pay-
ments collected in person periodically by LeMonier upon his
quarterly visits to the facility. The 1985–1988 agreement re-
quired fringe benefit payments for all covered employees and
required union membership after 30 days.
Prior to some point in 1988, the nonmeat department em-
ployees in the grocery sections of the supermarket—those
employed by Market Place—were represented by another
union. In 1988 (the date does not appear in the record), these
grocery employees of Market Place voted to decertify their
bargaining representative. Thereafter they participated in
Market Place’s profit sharing plan and its hospitalization and
health insurance plan.
After Market Place took over the meat department, it con-
tinued to pay the union health and welfare and pension con-
tributions on behalf of the three acknowledged members of
the Union. But it did not make such payments on behalf of
the nonmembers in the meat department. There is no evi-
dence that, in making the union fringe benefit contributions,
Market Place followed any particular bargaining agreement;
it simply paid whatever amounts the union fringe benefit
funds said it owed. Hiro, who had a Keogh retirement plan
prior to the takeover, rolled this plan over into Market
Place’s profit-sharing plan. Presumably, Hiro also partici-
pated in Market Place’s hospitalization and health insurance
plan.
When Market Place hired new meat department employees
it treated them as nonunion employees and did not make
union health and welfare or pension contributions on their
behalf. It carried them under the profit sharing and hos-
pitalization and health insurance plan utilized for the rest of
its employees.
Market Place hired two new rank-and-file meat department
employees after the takeover. The first was Vito Proce, hired
in February 1989, and the second was John Maggio, hired
in February 1990. Both had formerly been members of the
Union when they worked for other employers, but insisted,
when they were hired by Market Place, that they wanted
nothing to do with the Union or a union shop. They declined
to become union members and had no union health and wel-
fare or pension contributions paid on their behalf.
Shortly after the Market Place takeover of the meat depart-
ment, in July or August 1988, Union Business Agents
LeMonier and Spears went to the supermarket and met with
Peter Stellas. They asked Stellas to sign a union contract. Al-
though there was some general discussion about a contract,
Stellas agreed only to continue to pay the health and welfare
and pension contributions in the same manner as S & S
Meats. The union business agents left a blank copy of the
preprinted 1985–1988 industrywide master agreement with
Stellas. At no time between this meeting and May 15, 1990,
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 This is based not only on his periodic visits to the facility, but also im-
puted knowledge from the absence of union fringe benefit contributions on be-
half of Hiro and Proce.
when Respondent withdrew recognition, did the Union ever
follow up and ask that Respondent sign a contract or bargain
with it. Indeed, between August 1988 and his retirement in
late 1989, LeMonier did not even speak to Peter Stellas, ex-
cept for small talk, even though he continued visiting the
meat department about every 3 months to talk to employees
and collect union dues. He did not file grievances, either
written or oral, on behalf of the employees because, as he
testified, there were none. There is no doubt, and I specifi-
cally find, that he knew Hiro and Proce worked in the meat
department and that he also knew they were not union mem-
bers.5
After LeMonier’s retirement in late 1989, Union Business
Agent James Walsh was assigned to service the Market Place
meat department. Walsh continued making periodic visits to
the meat department much as LeMonier had done before his
retirement. Like LeMonier, Walsh knew who was and who
was not a union member; actually, he tried unsuccessfully to
sign up those employees who were not members, particularly
Maggio who was hired during Walsh’s tenure. Walsh also
spoke to Peter Stellas on several occasions in the first few
months he was assigned to the facility, but, according to his
own testimony, their conversations were brief and unevent-
ful.
In the spring of 1990, Walsh started dealing with Stellas
over the discharge of employee Joe Downing, a union mem-
ber. In the course of their discussions over the Downing dis-
charge, Stellas and Walsh also discussed generally the exist-
ence of a contract covering the meat department employees.
Apparently in response to Stellas’s query, Walsh said he did
not know if such a contract existed. He did tell Stellas that
it was ‘‘crazy’’ for some of the meat department employees
to be in the Union and others not. Walsh said, again accord-
ing to his own testimony, that ‘‘we should have all or none.’’
At this point, however, Walsh was not concerned about con-
tractual issues, but rather with getting Downing his job back.
Nevertheless, Walsh did provide Respondent with an adden-
dum to a master agreement signed by Joe Cingrani on May
4, 1979, in apparent support of the Union’s view that there
was a contractual arrangement covering the meat department
employees. At this point, Respondent’s attorney, Matthew
Phillips, became involved in the discussions and asked Walsh
to provide a copy of the master agreement to which the ad-
dendum referred and a signed copy of that agreement. Walsh
met with Phillips and another attorney for Respondent on
April 26, 1990, in Phillips’ office. Walsh provided the attor-
neys with a copy of the signed addendum as well as other
blank master agreements, the latest of which expired in 1991.
In this or another meeting at about the same time, Respond-
ent’s attorneys expressed the desire to ‘‘sit down and talk
about contracts,’’ according to Walsh. But Walsh told them,
again according to his own testimony, that he was ‘‘not here
to discuss anything contractual’’; he wanted only to discuss
the Downing grievance. The Downing matter was resolved
shortly thereafter, in late April or early May 1990; Downing
was reinstated with backpay.
3. The withdrawal of recognition and its aftermath
On May 15, 1990, the Respondent withdrew recognition
from the Union in a letter to the Union written by Phillips.
The letter stated that Respondent did not believe that there
was a valid agreement in existence between it and the Union,
and, in the alternative, Respondent had a ‘‘good faith doubt
of majority status of the union.’’
On May 30, 1990, the Union’s counsel responded to the
May 15 letter stating, inter alia, that the earlier agreement
provided to the Respondent had ‘‘been renewed yearly fol-
lowing its scheduled termination and by the employer’s gen-
eral compliance with its various updated terms and condi-
tions.’’ He also pointed out what he asserted were contrac-
tual violations and he requested bargaining to conclude a
successor agreement.
On June 22, 1990, the Union filed an unfair labor practice
charge alleging that Respondent had violated the Act by em-
barking on a ‘‘program of harrassment [sic] and intimidation
in order to undermine the Union’s position . . . and erode
the Union’s majority status’’ by terminating employee
Downing, ‘‘telling employees they could receive other and
better benefits if they abandoned the Union,’’ engaging in in-
dividual bargaining and withdrawing recognition.
On July 1, 1990, Respondent issued warnings to employ-
ees Joe Downing and Emery Edenhofer for refusing to work
on a Sunday which they were scheduled to work. The assign-
ment of these employees to perform Sunday work was alleg-
edly contrary to the existing master agreement and a change
in existing conditions of employment. This was done without
advance notice to the Union.
On or about July 12, 1990, Respondent’s attorney spoke
to some employees in response to the Union’s unfair labor
practice charge. The General Counsel alleges that this was a
poll of employees and was undertaken without prior notice
to the Union and in the absence of a good-faith doubt of the
Union’s majority status.
On July 16, 1990, the Union’s counsel wrote another letter
to Respondent informing it of the recent discovery by the
Union of a copy of the 1985–1988 master agreement signed
by Cingrani on September 9, 1986. Enclosed was a copy of
this agreement.
On August 22, 1990, the Regional Director for Region 13
wrote a letter to the Union’s attorney notifying him that she
was dismissing part of the charge filed by the Union. She
stated that her investigation found the evidence ‘‘insufficient
to show that the Employer engaged in a pattern of harass-
ment and intimidation of its employees in an effort to under-
mine the union’s majority status or that the Employer en-
gaged in individual bargaining with its employees.’’ She also
found that, contrary to the charge, certain statements alleg-
edly made to employee Downing were ‘‘vague’’ and unre-
lated to union activities and that the evidence ‘‘was insuffi-
cient to show that his discharge was because he engaged in
union or protected concerted activities.’’ She continued,
‘‘[a]ssuming arguendo that he was, the evidence shows that
he was reinstated and made whole without loss of seniority.
Therefore, in these circumstances, it would not effectuate the
Act to issue complaint herein.’’ The Union did not appeal
this dismissal to the General Counsel in Washington.
On August 31, 1990, the Regional Director, on behalf of
the General Counsel, issued the complaint in this case.
999MARKET PLACE
B. Discussion and Analysis
The General Counsel’s first theory of violation is that S &
S Meats had an existing contractual relationship with the
Union which bound Market Place when it took over the meat
department because Market Place was the alter ego of S &
S Meats. I find that the General Counsel has failed to prove
an alter ego relationship. Alternatively, the General Counsel
contends that when Market Place took over the meat depart-
ment it was the legal successor to S & S Meats. There ap-
pear to be two branches to this contention: first, that Market
Place affirmatively adopted the existing contract, and, sec-
ondly, assuming no adoption, that there was a bargaining ob-
ligation which flowed from the successorship itself. I find no
adoption of a contract, but I do find that there was an obliga-
tion to bargain at the time of the takeover because Market
Place was the legal successor to S & S Meats and the Union
perfected the obligation by making a bargaining request. Be-
cause I find no alter ego and no contract adoption I shall dis-
miss the complaint allegation relating to the failure to apply
the terms of a collective-bargaining agreement. Contrary to
the General Counsel’s contention, I am unable to find any
evidence on this record that Respondent refused to bargain
with the Union from December 27, 1989, until May 15,
1990, when Respondent withdrew recognition from the
Union. Finally, I find, again contrary to the General Coun-
sel’s contention, that Respondent did have a good-faith doubt
of the Union’s majority status on May 15, 1990, when it
withdrew recognition. This finding results in the dismissal of
the remaining allegations in the complaint.
1. The bargaining relationship allegations
In order to prove alter ego, the General Counsel must
show that Market Place is a ‘‘disguised continuance’’ of S &
S Meats. Such cases ‘‘involve a mere technical change in the
structure or identity of the employing entity, frequently to
avoid the effect of the labor laws, without any substantial
change in its ownership or management.’’ Howard Johnson
Co. v. Detroit Joint Board, 417 U.S. 249, 259 fn. 5 (1974).
Some of the factors which support an alter ego finding are
essentially the same as those which would support a single
employer finding: substantially identical management, busi-
ness purpose, operation, equipment, customers, supervision,
including common or centralized control of labor relations,
and ownership. In addition, although apparently not essential
to an alter ego finding, a significant factor is whether there
was unlawful motivation in the creation of the new entity or
in the transfer of ownership or operation. See Hiysota Fuel
Co., 280 NLRB 763 fn. 2 (1986); Mar-Kay Cartage, 277
NLRB 1335, 1340 (1985).
On this record the General Counsel has failed to prove that
Market Place is the alter ego of S & S Meats. Prior to Mar-
ket Place’s complete takeover of the meat department, it had
a two-thirds interest in S & S Meats, but none of its officials
or managers had anything to do with the operation of S &
S Meats or, more significantly, its labor relations. Joe
Cingrani alone ran the meat department and supervised its
employees. He dealt with the Union and signed any contracts
between S & S Meats and the Union. S & S Meats and Mar-
ket Place had separate financial statements and treated them-
selves as separate entities. There was no interchange of em-
ployees and each entity had its own bank account, banks, and
attorneys. Once Market Place purchased Cingrani’s interest
in the partnership, he no longer had any interest in the meat
department and the Stellas family began operating the meat
department as an arm of its general supermarket business.
Thus, there was a substantial change, after the takeover, in
the ownership and management of the meat department.
More specifically, there was a substantial change in the labor
relations spokesman for the employing entity. After the take-
over the Union dealt with Peter Stellas who had nothing to
do with S & S Meats. Finally, and of crucial importance
here, there is no evidence that the buyout of Cingrani had
anything to do with avoiding union representation. The pur-
pose of the buyout was to make arrangements upon
Cingrani’s retirement. Moreover, despite the Union’s rather
passive involvement in representing the employees both be-
fore and after the takeover, Market Place took pains to con-
tinue paying union benefits as had S & S Meats. It agreed
to continue paying contributions to the Union’s health and
welfare and pension plans on behalf of union members. It
continued to permit union business agents to enter the meat
department to talk to employees and to collect union dues.
And, despite some confusion as to the existence of any
agreement between S & S Meats and the Union, Market
Place did not actually withdraw recognition from the Union
until almost 2 years after the takeover of the meat depart-
ment. There was thus no unlawful motivation in the take-
over. In these circumstances, I find that the General Counsel
has not proved by a preponderance of the evidence that Mar-
ket Place is the alter ego of S & S Meats.
Alternatively, the General Counsel asserts that Market
Place is the successor of S & S Meats with respect to the
meat department. Under the Board’s successorship doctrine,
an employer who takes over the operations of another em-
ployer also takes over the predecessor’s bargaining obligation
if the predecessor’s employees are represented by a union,
and ‘‘the new employer makes a conscious decision to main-
tain generally the same business and to hire a majority of its
employees from the predecessor.’’ Fall River Dyeing Corp.
v. NLRB, 482 U.S. 27, 41 (1987). The Board looks to ‘‘sub-
stantial continuity’’ between the old and the new employer,
with particular emphasis on the employees’ perspective. See
Williams Enterprises, 301 NLRB 167 fn. 1, 170–171 (1991).
The General Counsel has proved successorship in this
case. When Market Place took over the meat department on
June 30, 1988, it continued operating the meat department
essentially as it had been run before the takeover, with the
exception of new supervision. The same products were
worked on and sold, the same customers were serviced and
the meat department employees performed the same work in
the same jobs as they had the day before the takeover in the
same location and with the same equipment. The employees
also worked under essentially the same conditions. The fact
that Peter Stellas and a new supervisor called the shots after
the takeover did not appreciably alter the way the meat de-
partment employees performed their work; there was cer-
tainly no appreciable change from their perspective which
would bear on union representation. Any changes in the meat
department—they were implemented over time, not imme-
diately—did not change the essential nature of the meat de-
partment as an employing entity or, more importantly, the
jobs of the employees.
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 There was considerable argument over whether S & S Meats and the
Union were operating under a collective-bargaining agreement at the time of
the takeover. As I indicated earlier in this decision, I find that there was such
a signed agreement. However, the Union’s majority status at the time of the
takeover does not depend solely on the existence of an agreement from which
majority status is presumed. See Barrington Plaza & Tragniew, Inc., 185
NLRB 962, 963 (1970), enf. denied 470 F.2d 669 (9th Cir. 1972). Here, the
record shows, and no one disputes, that, after the takeover, three out of the
four unit employees (excluding Kane who, like his successor, was a super-
visor) were members of the union. Before the takeover, at least three of the
five unit employees were members of the union. Although an absence of union
membership does not mean that employees do not want the union to represent
them, it is permissible to infer from the affirmative action of union member-
ship that union members do desire union representation. Therefore, here, the
Union did retain majority status even apart from the existence of a contract.
The most important factor in support of a successorship
finding is whether a majority of the employees hired by the
new employer had been employed by the predecessor. This
was so in this case. The parties stipulated that the meat de-
partment was an appropriate unit. In that unit Market Place
hired four of the five rank-and-file S & S Meats employees;
three of them were members of the Union. It hired no new
employees immediately, only a new supervisor who in effect
replaced Joe Cingrani. Thus, at the time of the takeover, 80
percent of the employee complement of the predecessor
made up the entire employee complement of the successor;
and the Union’s majority in the predecessor carried over to
the successor. I cannot imagine a stronger case of ‘‘substan-
tial continuity.’’ In these circumstances, I find that Market
Place was and is the successor employer to S & S Meats,
and that, as of July 1, 1988, when it took over the meat de-
partment, Market Place was obligated to bargain with the
Union which represented a clear majority of the employees
both before and after the takeover. See Butera Finer Foods,
supra.6
The finding of successorship does not end the inquiry on
this issue. The General Counsel asserts that the 1985–1988
contract signed by Cingrani on behalf of S & S Meats con-
tinued to apply even after the takeover. However, a successor
is not automatically obligated under the contract of a prede-
cessor. See NLRB v. Burns Security Services, 406 U.S. 272,
291 (1972). The General Counsel must affirmatively show
that the successor adopted the contract of the predecessor.
See White-Westinghouse Corp., 229 NLRB 667, 669, 672
(1977), enfd. 604 F.2d 689 (D.C. Cir. 1979). Indeed, even
the bargaining obligation of the predecessor does not attach
to the successor unless and until the union perfects or trig-
gers it by making a bargaining demand on the successor. See
Royal Midtown Chrysler Plymouth, 296 NLRB 1039, 1040
(1989).
In this case, the General Counsel has failed to prove that
Market Place adopted the S & S Meats or any other Union
contract, but has proved that the Union perfected Market
Place’s bargaining obligation by virtue of a bargaining de-
mand made after the takeover.
I find that the evidence shows that the Union made a bar-
gaining demand on Market Place when its representatives
met with Peter Stellas in July or August 1988. At that time
the union representatives presented Stellas with a blank copy
of a master agreement and left it with him. It is clear from
the testimony of all witnesses to this meeting that the Union
wanted Stellas to sign the master agreement on behalf of
Market Place. A request to sign a particular contract is obvi-
ously a request to bargain. This satisfies the requirement that
the Union make a demand for recognition or bargaining in
order to perfect the successorship bargaining obligation.
On the other hand, Stellas’s failure to sign the profferred
contract highlights the finding, which I make, that Market
Place did not adopt the 1985–1988 contract or any other
union contract. Indeed, the Union failed to follow up its re-
quest for a signed contract. It was satisfied with the payment
by Respondent of fringe benefit contributions on behalf of
union members. But it did not seek to impose on Market
Place or, indeed, enforce any other provisions of the master
agreement or any other agreement with respect to the meat
department employees. It permitted nonmembers to remain
employed despite a union-security provision in the master
agreement and it permitted Market Place to refrain from
making fringe benefit contributions on behalf of nonunion
employees. There is absolutely no evidence that Respondent
intended to adopt or actually adopted any collective-bargain-
ing agreement with respect to the meat department employ-
ees. Its payment of fringe benefit contributions on behalf of
union members is not sufficient to establish adoption of the
predecessor’s contract. See New England Mechanical v. La-
borers Local Union 294, 909 F.2d 1339, 1343–1344 (9th Cir.
1990).
In view of the findings I have made above that there was
no contractual relationship between Market Place and the
Union after July 1, 1988, I must dismiss the allegation in the
complaint relating to such a contractual relationship, that is,
paragraph VIII(a). I must also dismiss paragraph VII(a) of
the complaint which alleges that Respondent failed and re-
fused to bargain with the Union since on or about December
27, 1989, to the extent that this allegation is meant to cover
the period prior to the withdrawal of recognition on May 15,
1990. The Union made no request to bargain after its rep-
resentatives presented Peter Stellas with a copy of a proposed
contract in July or August 1988. The failure or refusal to
sign a proposed contract is not a refusal to bargain. Nor is
there any evidence in the record of a particular refusal to
bargain on the part of Market Place. As I have said before,
the Union was perfectly satisfied with a continuation of the
status quo, payment of fringe benefits on behalf of union
members and an opportunity to visit the meat department to
communicate with the employees and collect dues. In his
brief, the General Counsel states that, after July 1, 1988, Re-
spondent made changes in the terms and conditions of em-
ployment of the meat department employees without prior
notification to the Union (Br. 29). However, there was no al-
legation in the complaint about specific unilateral changes
during this period of time and the record contains no evi-
dence of specific changes to which the Union objected. In-
deed, the Union can be viewed as having waived any such
objections by knowingly permitting Market Place to operate
unilaterally during the period from July 1, 1988, to May 15,
1990. See Citizens National Bank of Wilmar, 245 NLRB 389
(1979).
2. The withdrawal of recognition allegations
This brings me to the withdrawal of recognition on May
15, 1990. It is, of course, well settled that an incumbent
union carries certain presumptions of majority status from
recognition, contractual relations, and certification. However,
after the expiration of an agreement or at the end of the cer-
tification year, an employer may withdraw recognition from
1001MARKET PLACE
an incumbent union if it can prove that the incumbent has
lost majority status or that it has a reasonable and good-faith
doubt of the union’s majority based on objective consider-
ations. See Robinson Bus Service, 292 NLRB 70, 76 (1988).
On this record the Respondent has proved that it had a
good-faith doubt of the Union’s majority status at the time
it withdrew recognition from the Union on May 15, 1990.
For the purpose of this analysis, I shall assume that the em-
ployee complement in the meat department numbered six
employees: Downing, Edenhofer, Conner, Proce, Hiro, and
Maggio. Spielman was, as I have found, a supervisor and
outside the unit.
Peter and George Stellas testified generally about con-
versations they had had with Hiro, Proce, and Maggio where-
in these employees told them that they did not want to be
‘‘in’’ the Union or be union members. At least some, if not
most, of these conversations took place before the with-
drawal of recognition on May 15, 1990. None of these em-
ployees were ever union members while they were employed
in the meat department even though they had been members
of the Union for some time when they were employed else-
where. Indeed, union representatives unsuccessfully sought to
get them to join the Union while they worked at Market
Place.
Employee Hiro had worked in the meat department since
1985. He worked for S & S Meats for 3 years before the
takeover by Market Place. Under the contract which covered
the meat department at this time, he was included in the unit
described as extending to employees who worked with fish,
as he did some 85 percent of the time. Indeed, the parties
stipulated to his inclusion in the unit. However, Hiro opted
against union membership and participation in the union
fringe benefit plans. Neither the Union nor S & S Meats ob-
jected to this arrangement. The point here is that even though
the S & S Meats contract required Hiro to become a union
member and required fringe benefit payments to be made to
union sponsored plans for all employees, these provisions
were not enforced as to Hiro. Nothing changed in this re-
spect after the takeover by Market Place. This arrangement,
voluntarily chosen by Hiro and acquiesced in by the Union
and the employer, supports the inference that Hiro did not
want either union membership or representation. In addition,
Hiro testified in this proceeding that he expressed to Peter
or George Stellas ‘‘in some forms [sic]’’ that, as of May 15,
1990, he did not want the Union to represent him. He also
testified that the Union has never represented him when he
worked in the meat department.
The General Counsel points out that in his direct testi-
mony—he was called as a rebuttal witness by the General
Counsel—Hiro acknowledged that, in a pretrial affidavit
given to a Board agent, he said, ‘‘I have never told any man-
agement person that I do not wish to join the union. I never
talk about the union with management, including
DeWayne.’’ When asked if this was true, he responded,
‘‘[w]hen she [referring to the Board agent] said that—Yes,
I didn’t talk to nobody about that, yes.’’ Earlier, Hiro had
testified that he thought he did have a conversation with
Peter or George Stellas about joining the Union. In showing
Hiro his affidavit, counsel for General Counsel was attempt-
ing to impeach that testimony. Hiro had also testified on di-
rect that he ‘‘wasn’t in the union to begin with.’’
I am not sure that Hiro’s testimony is inconsistent with his
affidavit. He seemed to have a language problem, but it was
clear to me that Hiro never believed he was ‘‘in’’ the Union.
This is a broad description which in Hiro’s mind no doubt
encompassed union representation as well as union member-
ship. His testimony on cross-examination confirms this. Even
assuming some inconsistency on whether he mentioned these
views to the Stellases, I believe that he did, both because he
testified he did in his more detailed testimony on cross-ex-
amination and because it comports with their testimony that
he did. Moreover, it comports with common sense. His feel-
ings were so strong and so widely known that I find it plau-
sible that he told the Stellases in some form about his desire
not to be represented by the Union. They could certainly
have inferred as much from the objective circumstances.
Employee Proce, who had been employed in the meat de-
partment since February 1989, was not a union member and
did not have union fringe benefit payments made on his be-
half. He testified that, shortly after the beginning of his em-
ployment, he told Peter Stellas that union representatives
were ‘‘bloodsuckers. They want everything and they don’t do
nothing for you. I don’t want to have nothing to do with the
union anymore after what they did to me.’’ Proce was refer-
ring to the Union’s failure to save his job when it rep-
resented him at a previous employer despite his seniority of
20 years. Stellas essentially confirmed this conversation; he
testified that Proce had made it clear to him many times that
he did ‘‘not want to be represented by the Union and that
he [would] never be in the Union again.’’ There is no doubt
that this view was expressed to management prior to the
withdrawal of recognition and it could only be interpreted as
a desire not to be represented by the Union.
Employee Maggio was hired in February 1990, and he too
refrained from joining the Union and did not have union
fringe benefit payments made on his behalf. Indeed, there is
uncontradicted testimony that Union Representative Walsh
repeatedly but unsuccessfully sought to have Maggio join the
Union. Like Proce, Maggio testified that he had had prob-
lems with a previously unionized employer and was ‘‘bitter’’
at the Union for not resolving them. Like Hiro, Maggio was
called as a rebuttal witness by counsel for the General Coun-
sel. On direct she asked Maggio only whether had had any
conversations with management officials about the Union or
about joining the Union. He said he had not. On cross-exam-
ination, he testified he asked Peter Stellas whether there was
a union at the facility. He also testified that he told his su-
pervisor, DeWayne Spielman, that he did not want to join the
Union, that he had mentioned this also to Peter Stellas prior
to May 15, 1990, and that he made his position that he did
not want the Union to represent him clear to one of the
Stellases. Peter Stellas testified that when he was hired,
Maggio told him that he did not want to work for another
union shop.
It appeared to me that Maggio was more forthcoming and
detailed on cross-examination than he was on direct. Here,
as in the case of Hiro, I find more credible the employee’s
testimony on cross-examination than that on direct or the
pretrial affidavit. Actually, Maggio’s affidavit, which was ad-
mitted in evidence, confirmed much of his testimony on
cross-examination. He did state in his affidavit that when he
was hired he ‘‘asked Peter [Stellas] or Vito [Proce] if there
was a union and they told me it was up to me if I wanted
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The parties engaged in a posttrial skirmish over whether Maggio responded
affirmatively to a question on cross-examination asking if he wanted the Union
to be his bargaining representative as of May 15, 1990. The transcript does
not reflect an answer to the question. Respondent moved to correct the tran-
script to reflect a ‘‘no’’ answer to the question and submitted an affidavit by
Maggio in support thereof. The General Counsel filed an opposition to the mo-
tion. I have no independent recollection of whether an answer was given or
what it was. I shall therefore let the transcript stand. I note that Maggio’s sub-
jective views at the hearing about union representation are not terribly relevant
or reliable. What is important is what he told management about his views,
which was the focus of counsel for Respondent’s follow-up question. On this
point, the record reflects that Maggio was asked if he made his ‘‘position to
Mr. Stellas clear that you didn’t want the union to represent you’’ and he re-
sponded, ‘‘yes, I did.’’
8 There was considerable testimony about employee Betty Conner’s contin-
ued adherence to the Union even though she remained a union member. In
view of my disposition of this issue based on the expressed and known views
of three other employees, I do not reach or resolve the issue of whether Re-
spondent could rely on its assessment of Conner’s desire for union representa-
tion. There is apparently no doubt that the two other employees, Downing and
Edenhofer, retained their allegiance to the Union.
to join the union. I told them I did not want to join, but I
did not tell them why.’’ Whatever the differences between
Maggio’s testimony on cross-examination and that on direct
or his pretrial affidavit, I do not think they justify rejecting
his testimony altogether. On balance, I believe that his testi-
mony was generally truthful, particularly that part of his tes-
timony where he stated that he made clear to his employer
his desire not to be represented by the Union. I make this
finding based not only on his demeanor and the totality of
his testimony, but also the testimony of Peter Stellas con-
cerning his conversation with Maggio at the time of his
hire.7
Based on my assessment of the evidence and my credibil-
ity determinations, I have concluded that three of the six em-
ployees in the meat department made clear to Respondent’s
management that they did not want the Union to represent
them as of May 15, 1990, when Respondent withdrew rec-
ognition from the Union. Accordingly, this evidence provides
a legally sufficient basis for Respondent’s good-faith doubt,
based on objective considerations, of the Union’s continued
majority status. See AMBAC International, 299 NLRB 505,
507 (1990).8
In addition to the antiunion views expressed to manage-
ment officials by three of the six bargaining unit employees,
Respondent’s good-faith doubt of majority was also sup-
ported by its assessment of the Union’s representative role in
the meat department from July 1, 1988, when Market Place
took it over, until May 15, 1990, the date of the withdrawal
of recognition. The Union’s representative role was minimal
at best. Shortly after the takeover, the Union asked Respond-
ent to sign a preprinted master agreement. It never followed
up on that request or asked to bargain about wages, hours
and terms and conditions of employment at least through the
tenure of Business Agent LeMonier who retired in late De-
cember 1989. LeMonier simply collected dues from union
members and tolerated the employment of nonunion mem-
bers whose fringe benefits were different from those of union
employees. Nor did Business Agent Walsh attempt to engage
in any bargaining during his 5-month tenure until the with-
drawal of recognition. He likewise collected dues and toler-
ated the half union half nonunion labor relations policy in ef-
fect in the meat department. He did deal with Respondent
with respect to the discharge and reemployment of Union
member Joe Downing. However, even though he spoke gen-
erally about a contract with representatives of Respondent, he
refused to talk specifically about contractual issues prior to
May 15, 1990. He did not even know whether there was a
contract which covered the meat department. It is also un-
clear whether his predecessor LeMonier knew of the exist-
ence of such a contract. There was at least some doubt both
on the part of the Respondent and the Union about the exist-
ence of a contract or indeed of an exclusive bargaining rela-
tionship covering all the meat department employees. Thus,
it could be inferred that the Union tolerated a members only
bargaining relationship. See Ace-Doran Hauling & Rigging
Co., 171 NLRB 645 (1968). At the very least, the Union’s
relative inactivity and mixed signals provided a basis for Re-
spondent to conclude, in good faith, that the Union was not
acting as an exclusive bargaining representative. This relative
inactivity is another factor, taken together with the known
antiunion views of half of the bargaining unit, which sup-
ports Respondent’s withdrawal of recognition. See Glosser
Bros., 271 NLRB 710, 717–718 (1984).
In these circumstances, I find that Respondent did not vio-
late Section 8(a)(5) and (1) of the Act when it withdrew rec-
ognition from the Union on May 15, 1990. It had a good-
faith doubt, based on objective considerations, of the Union’s
continued majority status in the meat department.
One other point deserves discussion. The record in this
case contains evidence with respect to the discharge and rein-
statement of union member Joe Downing and also statements
by Respondent’s officials to employees that they could not
belong to its admittedly attractive profit sharing plan if they
were members of the Union. This evidence could be viewed
as supporting findings that the discharge was unlawful or
that statements about Downing’s job future were coercive.
The evidence also could be viewed as supporting findings
that Respondent’s repeated statements to employees about its
restricted profit sharing plan constituted unlawful and dis-
criminatory action. See Melville Confections v. NLRB, 327
F.2d 689, 691 (7th Cir. 1964), cert. denied 377 U.S. 933
(1964) (employer’s position that union representation is a
disqualification for eligibility in a profit sharing plan is per
se unlawful under the Act). Compare KEZI, Inc., 300 NLRB
594, 595–596 (1990). Such evidence, if shown to have sup-
ported findings of illegality, could, in turn, have been found
to taint the withdrawal of recognition. For it is well settled
that an employer may not withdraw recognition—whatever
its objective evidence of union strength—in the context of its
own unfair labor practices which may have caused the union
defections it relies on. See Process Supply, 300 NLRB 756,
762 (1990).
The General Counsel seeks to rely, to some extent, on this
evidence in alleging that Respondent’s withdrawal of rec-
ognition was not made in good faith. For example, in a
lengthy footnote to his brief, he states that the May 15, 1990
withdrawal of recognition ‘‘did not occur in an atmosphere
free of unfair labor practices’’ (Br. 32). To the extent that
this was meant to refer to an alleged unlawful refusal to bar-
gain before May 15, 1990, I have, of course, rejected the un-
derlying allegation and the argument thus has no validity.
However, the footnote goes on to discuss other pieces of evi-
dence, such as ‘‘hiding’’ new hires, informing meat depart-
ment employees that the profit sharing program was not open
to them, and attempting to get Downing to resign. This evi-
1003MARKET PLACE
9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
dence does not relate to any independently alleged illegality
and cannot form the basis of unfair labor practice findings.
More importantly, most of this evidence—notably that
concerning Downing and the failure to permit union mem-
bers to join the profit-sharing plan—relates to portions of the
unfair labor practice charge which were dismissed by the Re-
gional Director, the General Counsel’s agent in this regard.
The General Counsel decided not to go to trial or complaint
on these matters. He dismissed allegations that Respondent
violated the Act with respect to Downing’s discharge or
statements that he resign, promised benefits to employees
based on union considerations, or, indeed, that Respondent
‘‘engaged in a pattern of harassment and intimidation of its
employees in an effort to undermine the union’s majority sta-
tus.’’ The General Counsel did not thereafter seek to amend
the complaint to resuscitate these allegations as was done, for
example, in Sonicraft, Inc., 295 NLRB 766 (1989), enfd. 905
F.2d 146 (7th Cir. 1990), cert. denied 111 S.Ct. 671 (1991),
a case arising out of this same Regional Office. Thus, in the
litigation posture of this case, the evidence elicited by the
General Counsel and mentioned in his brief as bearing on
Respondent’s good faith may not be used to argue that the
withdrawal of recognition was tainted by misconduct. I am
not permitted to make inferences of illegality based on such
evidence. To do so at such a late stage of the proceedings,
without appropriate notice to Respondent, would violate im-
portant due process rights.
In view of my findings concerning the Respondent’s law-
ful withdrawal of recognition, I further find that there was
no bargaining obligation on and after May 15, 1990. I shall
therefore dismiss those portions of the complaint—para-
graphs VII(b), (c), and (d) and VIII(b) and (c)—which allege
bargaining violations on May 15, 1990, and thereafter.
CONCLUSION OF LAW
The General Counsel has not proved by a preponderance
of the evidence that Respondent violated Section 8(a)(5) and
(1) of the Act as alleged in this complaint.
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended9
ORDER
The complaint is dismissed in its entirety.