Ortiz Funeral Home Corp.

National Labor Relations Board - Board Decisions

Sep 16, 1976

225 N.L.R.B. 1342 (N.L.R.B. 1976)

1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ortiz Funeral Home Corp . and Local 1034, Interna- "b. In any like or related manner interfering with,
tional Brotherhood of Teamsters , Chauffeurs , restraining, or coercing employees in the exercise of
Warehousemen and Helpers of America . Case 2- their rights under Section 7 of the Act."
CA-13804 2. Substitute the attached notice for that of the
September 16, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On May 19, 1976, Administrative Law Judge Ben-
jamin B. Lipton issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief and the Union filed an
answering brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge 2 and
to adopt his recommended Order as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Ortiz
Funeral Home Corp., New York, New York, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order as so
modified :
1. Insert the following as paragraph 1(b):
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 The Respondent has excepted to the Administrative Law Judge's con-
duct of the hearing, alleging restrictions on its right to examine and cross-
examine witnesses, bias, prejudice, and predetermination of the issues, and
a denial of due process After a careful examination of the entire record we
are satisfied that these allegations are without merit We think the Adminis-
trative Law Judge, in accordance with the Board's Rules and Regulations
(Sec 102 35), attempted to inquire fully into the facts and at the same time
limit or exclude irrelevant or immaterial or unduly repetitious evidence The
Cavern Supply Company, Inc, 187 NLRB 160 (1970)
3In his recommended Order and notice the Administrative Law Judge
inadvertently failed to provide that Respondent would not in any like or
related manner interfere with the exercise of its employees' rights under Sec
7 of the Act The recommended Order has been modified accordingly
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice. We intend to
carry out the Order of the Board and abide by the
following:
WE WILL, upon request by Local 1034, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, sign a
contract containing the terms of our agreement
reached with such Union on April 28, 1975, cov-
ering the employees in the following bargaining
unit:
All attendants, floorpeople, receptionists, in-
terpreters and porters, excluding licensed em-
balmers, undertakers, drivers, managers, of-
fice clerical employees, bookkeepers, guards,
watchmen and supervisors as defined in the
National Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights under the Act.
ORTIZ FUNERAL HOME CORP.
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge: This
case was heard in New York, New York, on January 28
and 29, 1976, upon a complaint by the General Counsel I
alleging that the above-captioned Respondent violated
Section 8(a)(5) and (1) of the Act. Posthearing briefs filed
by each of the parties have been duly considered.
Upon the entire record, and from my observation of the
demeanor of the witnesses, I make the following:
1 The charge was filed and served by registered mail on July 7, 1975 The
complaint thereon issued on September 29, 1975 Hereinafter all dates are in
1975 except as specifically noted
225 NLRB No. 197
ORTIZ FUNERAL HOME CORP. 1343
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
Respondent operates funeral homes and provides burial
arrangements and related services at its various places of
business in the city of New York, New York. Its principal
business location and office are in the Bronx, New York.
During the year preceding the issuance of the complaint,
Respondent had gross revenues in excess of $500,000 and
had a direct inflow in interstate commerce of goods and
materials valued in excess of $25,000. Respondent admits,
and I find, that it is engaged in commerce, and that Local
1034, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein the Union,
is a labor oragnization, within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Issues
Respondent is alleged to have violated Section 8(a)(5) by
refusing to sign a collective-bargaining contract following
negotiations in which the parties had orally reached essen-
tial agreement. An underlying question is whether
Respondent's insistence that the contract specify the
names of the employees covered in the appropriate unit
was imposed as an improper condition to its signing the
contract.
B. Background and Introductory Factors
On January 24, a complaint in Case 2-CA-13540 was
issued against Respondent alleging violations of Section
8(a)(1), (3), and (5) of the Act. On March 21, the Union
and Respondent entered into a written agreement to re-
solve the issues in that complaint proceeding and to settle a
related strike pending for about 3 months. The agreement,
approved by the Regional Director on April 7, provides,
inter aka, that Respondent reinstate eight named employ-
ees with backpay, recognize and bargain collectively with
the Union in the appropriate unit, and execute a written
contract incorporating any agreement reached. The settle-
ment agreement described the appropriate unit, viz.
. . . the employees in the unit including attendants,
floorpeople, receptionists, interpreters and porters but
excluding licensed embalmers, undertakers, drivers,
managers, office clerical employees, bookkeepers,
guards, watchmen and supervisors as defined in the
Act.. .
It appears that Respondent immediately undertook to car-
ry out the terms of the settlement agreement. At a meeting
on or about March 24, Respondent granted recognition to
the Union as the exclusive representative of the employees
in the above-described unit.2 On April 4, Respondent met
with employees and a union agent to determine job assign-
ments for reinstatement of the strikers. Thereafter, contract
negotiations were conducted, principally on April 10 and
2 Undenied in Respondent's answer to the complaint
28, at the Union's offices. In attendance for the Union
were Michael Fleischer and Martin Edelstein, union offi-
cials; Attorney Weinmann, Domingo Vargas and one Ser-
rano, employees.3 At all meetings and other discussions,
Michael Ortiz was the sole representative for Respondent.'
In opening statements at the hearing, the parties de-
scribed the essential issues in the case. Attorney Turchin
asserted that, during the negotiations, a dispute existed as
to the number of employees to be included in the unit, with
Respondent taking the position that only four employees
were covered. Turchin was questioned whether the Compa-
ny "agreed to everything that was negotiated, all the terms,
conditions of the contract [and whether] the only dispute
involved the unit." He stated that "the rules and regula-
tions and small issues that were not completed, could have
been completed . . . The only material issue was the num-
ber of people included in this particular unit." Respondent
had declined the Union's proposal that it sign the contract
and, if there was any question concerning the unit cover-
age, it could be resolved by aribitration.5 And the final
position of Respondent was a refusal to sign anything until
such question was determined.
C Evidence
At the April 10 meeting the parties reviewed in detail a
full contract proposal presented by the Union. Ortiz raised
questions as to specific provisions, and certain changes
were agreed upon. At the April 28 meeting, further discus-
sion resulted in additional changes to the proposed con-
tract. Employee Vargas credibly testified that, "after nego-
tiations had ceased . . . we were all in agreement." 6 On
May 1, the Union sent Ortiz two copies of a revised con-
tract incorporating the agreed changes The covering letter
requested Ortiz to sign and return both copies to the Union
following which the Union would send him a fully signed
copy. As I find, Ortiz did not respond to this letter. Fleisch-
er testified that, in mid-May, he delivered to Ortiz at
Respondent's main office another set of contracts, after
Ortiz had advised the Union that his car had been stolen
containing the copies of the contract he had earlier re-
ceived' About the third week in May, Fleischer again vis-
ited Ortiz, principally concerning a matter not material
herein. Fleischer testified in substance that, at both these
meetings in May, Ortiz indicated that he wanted to show
the contract to his father "out of respect," and there was
"no problem" as to the signing of the contract as soon as
his father comes back.' Respondent stipulated at the hear-
3 Variations not deemed material are shown in the testimony of witnesses,
eg, the presence of Bernard Edelstein, president of the Union, and the
absence of Wemmann
Respondent had no legal counsel in the negotiations
5 Merely as background narrative, it is noted that, on July 16, the Union
filed with the Supreme Court of New York a "Notice of Intention to Con-
duct an Arbitration," and that the court on September 26 granted the
Company's application to stay arbitration on the ultimate basis that the
Union "may not enforce the alleged agreement until the National Labor
Relations Board makes a determination and directs execution of an agree-
ment "
6 Corroborated by Martin Edelstein
r Ortiz testified that his car was stolen about June 16, and that he called
Fleischer in latter June and was then brought the replacement copies
8 The denials of Ortiz are not credited
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, for the purpose of delineating the dispute regarding the
Union 's "final proposed contract ," that the "major issue"
was Respondent 's request that the contract specify the
names of the employees included in the unit , and that fur-
ther issues were "extra pay for group leaders, severance,
holidays and rules and regulations ." It was then ruled that
only these enumerated subjects of the contract negotiations
need be litigated .' Vargas gave credible testimony regard-
ing the negotiations in April . On April 10 , the Union ini-
tially proposed 15 holidays and 3 days of bereavement
leave . Ortiz offered 12 holidays , to be enumerated. The
parties finally agreed to delete the bereavement clause and
provide 15 holidays unnamed . Concerning the "general
leader" clause , Ortiz wanted to know the name of such
leader-who was to be the same as the shop steward. Var-
gas did not recall the further discussion on the subject.
Ortiz requested that the recognition clause describe the ap-
propriate unit as set forth in the settlement agreement. This
was agreed . At the April 10 and 28 meetings , Ortiz raised
no questions as to the naming of employees covered in the
unit.
Martin Edelstein credibly testified that, at the April 10
meeting, after he explained the method of contributions to
be made into the trust fund under the severance plan, Ortiz
had no further questions on this clause . The Union had
received from Respondent a list of rules and regulations,
and at a later date it proposed certain changes in lan-
guage.10 It was ultimately agreed that Ortiz would send the
Union, on his stationery , a revised copy of the rules and
regulations
In broad terms, Ortiz testified in contradiction of the
General Counsel 's witnesses . The substance is as follows:
On April 10, he asked the Union for a list of employees
who had signed authorization cards, and Fleischer prom-
ised such a list. On April 28, the questions he had raised
regarding the proposed contract on April 10 remained un-
answered . At the April 28 meeting , he requested a list of
employees covered in the unit. And he had not agreed to
sign the contract After he received the Union 's final pro-
posed contract (cover letter dated May 1), he telephoned
Bernard Edelstein . He complained that the contract did
not reflect the changes he indicated , and that he wanted
the names of the unit employees . Edelstein suggested that
he come to his office and talk about it On May 27, Ortiz
appeared at Edelstein 's office. He was asked to sign now,
and the matters he raised concerning holidays, bereave-
ment pay, and the severance plan would be worked out
later . He refused . He said he had to know the number of
employees in the unit in order to determine his costs. Edel-
stein requested , and he agreed , that the Union be allowed
to examine his payroll book . Thereafter, Fleischer came to
his office , looked at the payroll records, and left without
comment . About June 3, he had another meeting at the
union office during which Bernard and Martin Edelstein
and Attorney Weinmann were present.) t The Union indi-
cated it had 18 to 21 people in the shop , while he insisted
there were only 3 or 4 employees in the unit . 12 He refused
to sign a contract without identification of the employees
covered . He offered to bring his books, and the Union
agreed. On July 10, he brought the payroll book at a
"scheduled" meeting with Bernard and Martin Edelstein.
He claimed that the Union 's contract with Ponce , his "big-
gest competitor ," contains the names of the unit employ-
ees,13 and that the Union had previously promised him a
contract "similar" to that of Ponce. Again he refused to
sign unless the included and excluded employees were
named in the contract . And he declined the Union 's offer
to settle the matter in arbitration.
Martin Edelstein testified that , at a meeting on July 10,
Ortiz was reminded to supply the Union with the revised
copy of the rules and regulations. And, as a result of this
meeting, Ortiz agreed to return to the union office on July
I I to sign the contract . He failed to appear , and Edelstein
was unable to reach him by telephone . On July 15, Edel-
stein received a telephone message from Ortiz indicating
the names of three employees-as Respondent 's position
on the limited coverage of the contract . The message also
stated : "Rules and Regs will be mailed to you." On July
16, Edelstein called Ortiz and advised him that the Union
was not accepting his list of names and that the contract
must be resolved by the end of the week . Ortiz promised to
come to the union office and sign on July 17 or 18. He did
not appear
To the extent of material conflict with the testimony of
General Counsel ' s witness described above, Ortiz is not
credited.
D Conclusions
As conceded by Respondent' s counsel in opening re-
marks at the hearing-the only material issue in the refusal
of Ortiz to sign the contract was the failure of the Union to
specify in the contract the names of employees to be in-
cluded in the appropriate unit. This posture of the case
comports with the entire record. Indeed , I find that Ortiz
did not demand the names of the unit employees until after
negotiations had been completed on all matters of sub-
stance and subsequent to his receipt of the final revised
contract for execution . It is my opinion that Ortiz raised
such issue on his own misconception of the legal purport of
9 In his testimony , Ortiz listed as the areas of the contract which had not
been fully agreed upon (I) Respondent's offer of only nine holidays, to be
specified (2) Respondent's counteroffer of certain sums in successive years
to be paid into a "Severance and Retirement Trust Fund " The Union said
it would get back to him, but it never did (3) Respondent 's rejection of the
entire clause providing for extra pay for the "general leader " (4) The Union
was presented a list of rules and regulations to be included in the contract
Ortiz was told the Union would get back to him with changes in language,
but it never did (5) The naming of all the employees included in and ex-
cluded from the contract
10 Respondent 's list, with certain limited alterations noted thereon by the
Union , was received in evidence
" Martin Edelstein could not recall such a meeting Bernard Edelstein
and Weinmann did not testify
i2 It is noted that eight employees had earlier been reinstated under the
terms of the settlement agreement
i' The Union 's proposed contract provides for each employee classifica-
tion the amounts of "across - the-board wage increases" and "minimum wag-
es" effective on March 22 in 1975 , 1976, and 1977 Similar clauses are in the
Ponce contract Ortiz had reference to an additional "Wage Schedule" in an
appendix to Ponce's contract which lists the name of the employees and his
particular wage It is plain that the purpose of such an appendix pertains to
wages and does not circumscribe the coverage of the appropriate unit,
which is set forth in the recognition clause of the contract
ORTIZ FUNERAL HOME CORP 1345
the Ponce contract and as a belated tactic to delay the
signing of an agreement with the Union.
Respondent's position on the unit question is utterly
without merit. For purposes of the Act, it is traditional that
the appropriate unit is defined in terms of job classifica-
tions or categories of employees. Bargaining units, pre-
sumptively subject to employment fluctuation, cannot be
limited to named employees. Such units would obviously
conflict with the Act's principles of majority representation
and stability of industrial relations. Respondent argues
that it is entitled to know which employees would receive
the increased wages and benefits negotiated in the con-
tract. However, such knowledge is particularly within the
competence of management, ascertainable from the classi-
fications embraced in the unit. The naming of the unit em-
ployees in the contract can only provide temporary and
negligible utility, if any at all. It cannot serve to redefine
the unit or fix the number of employees contractually cov-
ered. This was Ortiz' essential purpose. Even assuming the
existence of a genuine dispute as to which of the employees
are currently in the unit, any such uncertainty presents a
type of matter for which the contract's grievance-arbitra-
tion machinery is designed to resolve.
I find that, at the conclusion of the negotiations on April
28, the parties reached an oral binding agreement on all
material aspects of a collective-bargaining contract.14 All
that remained was the ministerial function of memorializ-
ing such agreement in a written document for execution by
the parties.15 The task was promptly undertaken by the
Union and a contract draft was presented to Respondent."
Respondent had an equal obligation with the Union to act
affirmatively, without undue delay, in finalizing the prod-
uct of their negotiations. Instead, for an invalid reason Re-
spondent refused to sign the contract submitted by the
Union. And, by purposefully creating delays, it further act-
ed in bad faith in failing to fulfill the bargaining obligation
to which it was committed under the settlement agreement
of March 21. Accordingly, I concude that, by its refusal on
or about May 2 and thereafter to execute the negotiated
contract, Respondent violated Section 8(a)(5) and (1), as
alleged.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that Respondent
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
As part of the remedy, General Counsel requests that
Respondent be ordered to make whole all employees for
any loss suffered by reason of its failure to sign and comply
with the contract it reached with the Union. Respondent's
liability to the employees is a contractual matter The par-
ties have agreed to specific terms of a 3-year contract made
retroactive to March 22, 1975 Respondent will be ordered
to execute such agreement , and its compliance with this
Order will appropriately serve to compensate the employ-
ees retroactively for all wage and fringe benefits under the
terms of the contract.
CONCLUSIONS OF LAW
I Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All attendants, floorpeople, receptionists, interpreters,
and porters employed by Respondent, excluding licensed
embalmers, undertakers, drivers, managers, office clerical
employees, bookkeepers, guards, watchmen and supervi-
sors as defined in the Act, constitute an appropriate unit
within the meaning of Section 9(b) of the Act.
4 The Union has been, and is now, the exclusive repre-
sentative of the employees in the appropriate unit for the
purpose of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By failing and refusing to execute the contract to
which the parties orally agreed on April 28, 1975, Respon-
dent has engaged in and is engaging in unfair labor practic-
es within the meaning of Section 8(a)(5) of the Act.
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record in the case and pursuant to Section 10(c)
of the Act, I hereby recommend the following:
14 E g, Local Union Nos 938 et al, of the International Brotherhood of
Electrical Workers, AFL-CIO (Appalachian Power Company), 200 NLRB
850, 852 (1972), Ariel Offset Co, Inc, 149 NLRB 1145, 1152 (1964)
15 E g, Teamsters Union Local No 85, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America (Tyler Bros Drayage
Co), 206 NLRB 500, 505 (1973), Chauffeurs, Teamsters and Helpers Union,
Local 186, affiliated with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America (Max Rudolph Trucking Compa-
ny), 172 NLRB 788, 790 (1968)
16 Respondent's counsel adverted to "small matters" which were not com-
pleted and could have been completed As to certain provisions enumerated
by Respondent, the parties had in fact reached agreement, as described
infra Whatever other minor issues remained, they were not obstacles to the
signing of the contract on the Union's request
ORDER 17
The Respondent, Ortiz Funeral Home Corp., New York,
New York, its officers , agents, successors , and assigns,
shall:
17 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Refusing to execute, upon request, the collective-bar-
gaining agreement which it reached on April 28, 1975, with
the Union.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act-
(a) Upon request, execute the collective-bargaining
agreement which it reached on April 28, 1975, with the
Union.
(b) Post at all its offices and facilities in the city of New
York, New York, copies of the attached notice marked
"Appendix." 18 Copies of said notice on forms provided by
18 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
the Regional Director for Region 2, after being duly signed
by Respondent, shall be posted immediately upon receipt
thereof, in conspicuous places, and be maintained for 60
consecutive days. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "