Standby One Associates Center For Housing Partnerships

National Labor Relations Board - Board Decisions

Mar 14, 1985

274 N.L.R.B. 952 (N.L.R.B. 1985)

952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Okie , Jr., William Hubbard , Center for
Housing Partnerships , and Morelite Construc-
tion Corporation d/b/a Standby One Associates
Center for Housing Partnerships and Service
Employees International Union , Local 32E,
AFL-CIO. Case 2-CA-20146
14 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union 20 January
1984, the General Counsel of the National Labor
Relations Board issued a complaint 2 March 1984
against the Company, the Respondent, alleging that
it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act by refusing to bargain
with the Union.
'On 21 May 1984 the Respondent filed a Motion
for Summary Judgment and for issuance of a
Board Decision and Order dismissing the complaint
and a supporting brief, with exhibits. The Respond-
ent contends that it has no legal duty to bargain
with the Union because the certification issued by
the New York State Labor Relations Board
(NYSLRB) is invalid and not entitled to comity.
On 6 July 1984 the Union filed a memorandum
in opposition to the Respondent's Motion for Sum-
mary Judgment and the General Counsel filed an
opposition to the Motion for Summary Judgment
and Cross-Motion for Summary Judgment and for
issuance of a Decision and Order. The Union and
the General Counsel contend that the NYSLRB
certification is valid and entitled to comity.
Ruling on Motions for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Proce-
dure provides that summary judgment shall be ren-
dered if the "pleadings, depositions, answers to in-
terrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving
party is entitled to judgment as a matter of law."'
We have reviewed this matter in light of this stand-
ard and conclude that the General Counsel's Cross-
Motion for Summary Judgment should be granted,
and the Respondent's Motion for Summary Judg-
ment should be denied.
The undisputed facts establish that the Union pe-
titioned the NYSLRB to represent a unit of the
Respondent's building service employees2 on 14
See Lake Charles Memorial Hospital , 240 NLRB 1330 (1979)
z The exact unit description is
April 1983.3 Pursuant to an Agreement for Con-
sent Election on 25 May, the NYSLRB conducted
a secret-ballot election on 16 June. The "Report
Upon Secret Ballot," issued on 16 June, shows
three for and one against the Union, with one non-
determinative challenged ballot. The Respondent,
on 22 June, filed timely objections to the election
and, on 27 June, filed an additional objection to the
election. The NYSLRB issued an "Amended
Report Upon Secret Ballot" on 25 July, showing
three for and one against the Union, with one non-
determinative challenged ballot and one void
ballot.
A hearing on the Respondent's objections to the
election was held before a NYSLRB administrative
law judge on 1 September. On 14 December the
NYSLRB overruled the Respondent's objections
and issued its "Decision, Order and Certification of
Representative." The Union sent a letter to the Re-
spondent on 16 December requesting bargaining.4
After the Respondent failed to reply to its request,
the Union filed the instant charge alleging that the
Respondent refused to meet and bargain with the
Union as the exclusive representative of the em-
ployees in the unit certified by the NYSLRB.
The Respondent asserts that the unit certified by
the NYSLRB contravenes the Act and established
Board policy because it specifically includes a su-
pervisor as defined by Section 2(11) of the Act.
The disputed position involves the working super-
intendent. Although the working superintendent
classification is included within the unit descrip-
tion, supervisory employees are specifically ex-
cluded.
Two working superintendents cast ballots in the
16 June election. The NYSLRB concluded that
only one of the two working superintendents was
eligible to vote as one no longer held the position
on the date of the election. The incumbent working
superintendent was permitted to cast a challenged
ballot. The NYSLRB found it unnecessary to rule
which of the two individuals was eligible to vote,
or to open the challenged ballot, because the Union
received a majority of the valid votes cast.
We find cases relied on by the Respondent in
support of its position distinguishable. In Oakland
Press Co., 266 NLRB 107 (1983), the Board refused
to recognize the validity of a state-conducted elec-
tion in which a unit of district managers was certi-
[A]II building service employees including the working superintend-
ent (excluding supervisory employees) employed by Standby One
Associates at 1403-25 Grand Concourse, Bronx, New York
All dates are in 1983 unless otherwise noted
4 Although the complaint alleges that the Union's letter was dated 29
December , and the answer admits that date as fact , the letter included as
an exhibit to the General Counsel's Cross-Motion for Summary Judgment
is dated 16 December
274 NLRB No. 140
STANDBY ONE ASSOCIATES 953
fled as an appropriate bargaining unit by a state
agency. Previously, the Board had determined that
carriers, who reported to the district managers,
were employees within the meaning of the Act,
and that the district managers were supervisors.
Had the Board in Oakland Press extended comity
to the state agency's determination, a unit com-
posed entirely of supervisors would have been cer-
tified, a result clearly contrary to the Act.
In Mental Health Center, 222 NLRB 901 (1976),
the state agency certified a unit comprised of pro-
fessional and nonprofessional employees. The
Board refused to recognize the state certification
because the professional employees were not of-
fered a separate vote in the state election as to their
inclusion in the same unit with nonprofessional em-
ployees, as required by Section 9(b)(1) of the Act.
Accordingly, the Board held the unit on its face
was at variance with the policies of the Act.
The infirmities to Board recognition of state-con-
ducted elections present in the above cases do not
stand as impediments in this case. Here, the
NYSLRB's certification expressly excludes supervi-
sors. Therefore, the only issue concerns the unit
placement of the working superintendent. The Re-
spondent does not contend that a working superin-
tendent impermissibly cast a ballot which affected
the election outcome, but that a unit was certified
which, by its terms, included statutory supervisors.
We need not resolve the status of the working su-
perintendent to determine that the NYSLRB con-
ducted a valid election in a unit that is not repug-
nant to the Act. Walla Walla Union-Bulletin v.
NLRB, 631 F.2d 609, 615 (9th Cir. 1980).
The NYSLRB election reflects the true desires
of the affected employees and it should be recog-
nized on that basis. As is the case with a Board-
conducted election under identical circumstances,
the Union and the Respondent are free to bargain
over the working superintendent's status and, if
that fails, either party may file a unit clarification
petition.
The Respondent further contends that the Board
should not recognize the NYSLRB's certification
because its conduct of the election substantially de-
viated from due-process requirements. Our policy
with regard to extending comity to state proceed-
ings is set forth in Allegheny General Hospital, 230
NLRB 954, 955 (1977), enf. denied on other
grounds 608 F.2d 965 (3d Cir. 1979), where the
Board stated:
Our established practice has been, and contin-
ues to be, to accord the same effect to the
elections and certifications of responsible state
government agencies as we attach to our own,
provided that the state proceedings reflect the
true desires of the affected employees, election
irregularities are not involved, and there has
been no substantial deviation from due process
requirements.
Initially, we observe that all the Respondent's ar-
guments in support of this contention were previ-
ously made to the NYSLRB as objections to the
election. In its Decision, Order and Certification of
Representative, the NYSLRB carefully discussed
and analyzed the objections before overruling
them. Only certain objections, therefore, merit ad-
ditional comment.
The NYSLRB agent allowed a nonemployee
union official and a supervisor to serve as election
observers for the Union and the Respondent, re-
spectively. The Respondent cites Performance
Measurements Co., 148 NLRB 1657 (1964), and
Worth Food Markets, 103 NLRB 259 (1953), for the
proposition that supervisors may not act as election
observers under Board practice. While it is correct
that the Board has set aside elections when supervi-
sory employees acted as observers, the Board has a
longstanding policy prohibiting an employer from
raising objections based on its own conduct during
the election. Skogrand-Buesing, Inc., 241 NLRB 292
fn. 3 (1979). Although it is preferable to avoid nor.-
employee union representatives acting as election
observers for the Union, it is not a sufficient basis
for refusing to recognize the validity of the
NYSLRB election.
Contrary to the Respondent, we agree with the
NYSLRB that the Union's representative did not
engage in electioneering interfering with the elec-
tion. The Union's observer remarked before the
voting started that the Union needed three votes to
win the election. Where, as here, there is no show-
ing that the Union's representative engaged in sus-
tained conversations with prospective voters, but
rather that he made a "chance, isolated, innocuous
comment," the Board will not set aside the elec-
tion. Milchem, Inc., 170 NLRB 362, 363 (1968).
Finally, the Respondent contests the validity of
the consent election agreement, contending that the
Respondent did not make a knowledgeable, mean-
ingful consent to the election. According to the
Respondent, the NYSLRB agent failed to explain
New York State and NLRB jurisdiction, to state or
explain the Board's requirements for voter eligibil-
ity, to investigate the supervisory status of superin-
tendents, and to prevent the terminated mainte-
nance superintendent from being placed on the list
5 We agree with the NYSLRB's determination that the NYSLRB
agent did not fail to conduct the election pursuant to the notice of elec-
tion, did not create an atmosphere of intimidation in which employees
were forced to cast a ballot, and did not impermissibly permit a supervi.
sor to cast a ballot
954 DECISIONS , OF -,NATIONAL, LABOR RELATIONS BOARD
of eligible voters. None of these objections raises.
issues which would require us to deny comity.
As there are no due-process. or other grounds for
refusing to extend comity to the, certification of -the
NYSLRB,.-we.shall accord-,.that,.certification.the,
same effect we would give to one .of our own:,
Therefore, we shall grant the General,.•Counsel's;
Cross-Motion for Summary Judgment and deny. ,the,;,
Respondent's Motion for Summary Judgment.
FINDINGS OF FACT
I. JURISDICTION
The Company, a New York partnership, A s en-,
gaged in the operation, management, and rental of
residential apartments at its facility in Bronx, Newt.
York, where it annually derives gross revenues in
excess of $500,000, and annually purchases and re
ceives products, goods, and materials valued in
excess of $50,000 directly from points outside the
State of New York. We find that the Company is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Unit and the Union's Representative
Status
The following employees of the Respondent con-
stitute a unit appropriate for the purpose of collec-
tive bargaining within the meaning of Section 9(b)
of the Act:
All building service employees including the
working superintendent (excluding supervisory
employees) employed by Standby One Associ-
ates at 1403-25 Grand Concourse, Bronx, New
York.
Since about 14 December 1983, the Union has
been the designated exclusive collective-bargaining
representative of the employees in the unit.
B. The 8(a)(5) and (1) Violation
Since about 16 December 1983, the Respondent
has failed to recognize and bargain with the Union
as the exclusive collective-bargaining representative
of employees in the unit, thereby violating Section ;
8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 16 December 1983 to
bargain with the Union as the exclusive collective-
bargaining representative of the employees in the
appropriate unit , the Respondent has engaged in
unfair labor practices affecting commerce within
the,•meaning, of Section, 8(a)(5) and (1) and Section
2(6) (andr(7) of the Act.
REMEDY
Having found, that the Respondent has violated
Section 8(a)(5,) and (1) of the Act, we shall order it
to cease and, desist, to bargain on request with the
Union, and, if an understanding is reached,, to
embody the understanding in a signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining representative
for the period provided. by law, we shall construe
the initial period of the certification as beginning
the date the Respondent begins to bargain in good
faith with the Union. Mar-Jac Poultry Co., 136
NLRB 785 (1962); Lamar Hotel, 140 NLRB 226,
229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that
the Respondent, William Okie, Jr., William Hub-
bard, Center for Housing Partnerships, and More-
lite Construction Corporation d/b/a Standby One
Associates Center for Housing Partnerships, Bronx,
New York, its officers, agents, successors, and as-
signs, shall
1. Cease,and desist from
(a) Refusing to bargain with Service Employees
International Union, Local 32E, AFL-CIO as the
exclusive bargaining representative of the employ-
ees in the bargaining unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with. the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All building service employees including the
working superintendent (excluding supervisory
employees) employed by Standby One Associ-
ates at 1403-25 Grand Concourse, Bronx, New
York.
(b) Post at its facility in Bronx, New York,
copies of the attached notice marked "Appendix."6
6 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
Continued
STANDBY ONE ASSOCIATES 955
Copies of the notice, on forms provided by;the Re-
gional Director for Region 2, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
tional Labor Relations Board" shall read "Posted Pursuant to a judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
CIO as the exclusive representative of,the employ-
ees in the bargaining unit .,
WE WILL NOT in any like or related manner
.interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL , on request , bargain with the Union
and put in writing . and sign any agreement reached
on terms and conditions of employment ' for our'*
employees in the bargaining unit:
All building service employees including the
working superintendent (excluding supervisory
employees) employed by, Standby One Associ-
ates at 1403 -25 Grand Concourse , Bronx, New
York.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Service
Employees International Union, Local 32E, AFL-
WILLIAM OKIE, JR., WILLIAM HUB-
BARD , CENTER FOR HOUSING PART-
NERSHIPS , AND MORELITE CONSTRU-
CITON CORPORATION D/B/A STAND-
BY ONE ASSOCIATES CENTER FOR
HOUSING PARTNERSHIPS