T J MacDermott Corp.

National Labor Relations Board - Board Decisions

Dec 5, 1972

200 N.L.R.B. 738 (N.L.R.B. 1972)

738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crotona Service Corp, a subsidiary of T J MacDer-
mott Corp and Local 377, United Service Employ-
ees Union, R W D S U, AFL-CIO and Local 302,
Cafeteria Employees Union , Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO Case 29-CA-2428
December 5, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, ANT
PENELLO
On August 1, 1972, Administrative Law Judge'
Thomas F Maher issued the attached Decision in
this proceeding Thereafter, the Charging Party filed
exceptions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety
r The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
We correct the Administrative Law Judge s inadvertent reference to
December 14 1971 in the second paragraph of the section entitled The
Facts of his Decision as the date the Faculty Student Association of the
College executed a contract with Respondent It is clear from the record
that the correct date is December 17 1970 In addition the Administrative
Law Judge s reference to Local 309 immediately before In I I is incorrect
and is hereby changed to Local 302
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
against Crotona Service Corp, a subsidiary of T J
MacDermott Corp, Respondent herein, alleging violations
of Section 8(a)(1), (2), (3), and (5) of the National Labor
Relations Act, as amended (29 U S C, Sec 151, et seq ),
herein called the Act In its duly filed answer, Respondent,
while admitting certain allegations of the complaint,
denied the commission of any unfair labor practice
Pursuant to notice a trial was held before me in
Brooklyn, New York, where all parties were present,
represented, and provided full opportunity to call, exam-
ine, and cross-examine witnesses, present oral argument,
and to file briefs Briefs were filed by the parties on May 8,
1972 Upon the entire record herein, including the briefs
filed by the parties, and particularly upon my observation
of each witness appearing before me,' I make the
following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE BUSINESS OF THE RESPONDENT
T J MacDermott Corp and Crotona Service Corp,
Respondent herein, are New York corporations maintain-
ing their principal office and place of business in New
York, New York, and at various other places of business in
the State of New York where they are engaged in providing
food service management of cafeterias and related services
During the past year MacDermott, in the course and
conduct of its business operations, performed services
valued in excess of $5,000,000 under contracts with various
educational and business institutions, including among
others, New York City Community College During the
same period MacDermott, in the course and conduct of its
business, purchased and caused to be transported and
delivered to its various places of business within the State
of New York, foodstuffs, supplies, and other goods and
materials valued in excess of $50,000 of which foodstuffs,
supplies, goods, and materials valued in excess of $50,000
were transported and delivered to its places of business in
interstate commerce directly from States of the United
States other than the State of New York Both corporations
have at all times material herein been affiliated businesses
with common officers, ownership, directors, and operators
and constitute a single integrated business enterprise, with
said directors and operators formulating and administering
the common labor policy for the aforementioned compa-
nies with respect to employees of said companies Upon
the foregoing admitted facts, I conclude and find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
THOMAS F MAHER, Trial Examiner Upon a charge filed
on June 15, 1971, by Local 377, United Service Employees
Union, R W D S U, AFL-CIO, the Regional Director of
Region 29 of the National Labor Relations Board , herein
called the Board, issued a complaint on behalf of the
General Counsel of the Board on September 30, 1971,
i Bishop and Malco Inc 159 NLRB 1159
II THE LABOR ORGANIZATIONS INVOLVED
It is admitted and I accordingly conclude and find that
Local 377, United Service Employees Union, R W D S U,
AFL-CIO, and Local 302, Cafeteria Employees Union,
Hotel and Restaurant Employees and Bartenders Interna-
200 NLRB No 97
CROTONA SERVICE CORP 739
tional Union, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A The Facts
For some time prior to December 1970 cafeteria and
related food services were provided at various locations of
New York Community College, herein referred to as the
College, by ABC Consolidated Corp , a subsidiary of
Ogden Corporation, herein called Ogden, pursuant to
contractual arrangements between the Faculty Student
Association of the College and Ogden, which contract was
the consequence of a successful bid for the job, in
competition with other food service operators, including
Respondent The specific facilities of the College served by
the arrangement were a student cafeteria and a faculty
dining room in Namm Hall at the Jay Street location of the
College, a cafeteria-lounge and a faculty dining room at
250 Livingston Street, and vending machine facilities at
Namm Hall, Livingston cafeteria-lounge area, Concord
Hall, and the Pearl Street building of the College
In August 1970 Ogden notified the college authorities of
its decision to give up the operation pursuant to the
cancellation clause of its agreement, effective at the end of
the fall semester Accordingly, the college authorities
initiated procedures to replace Ogden This it did by
reactivating the bids that had been submitted in 1969 and
notifying the top two bidders, one of which was Respon-
dent, of its plan to replace Ogden with one of them,
requesting that they submit updated information rather
than go through the lengthy procedure of requiring new
bids Based upon information supplied to the college
authorities by the bidders, Respondent was selected to
operate the food services, effective January 4, 1971
Ogden's contract was terminated as of December 23, 1970
Meanwhile on December 14, 1971, the Faculty Student
Association of the College executed a contract with
Respondent for the provision of food services at the
facilities listed above Respondent forthwith dispatched a
staff of supervisors and a food service consultant to the
College to take inventory and oversee the rearrangements
of the facilities preparatory to opening on January 4
Both before and after Respondent took over on
December 14, inquiries were made of it concerning the
staffing of its operations Thus Miss Ruth Stern, Director
of the Faculty Association, inquired of Respondent's
President T J MacDermott what would happen to
Ogden's employees, and MacDermott replied that he had
his own employees but that once the cafeteria was
functioning, by the end of January, he would probably hire
some of the former employees, and he asked that they be
informed to file applications at the Respondent's office
And he so informed Ogden's manager, asking him to tell
the employees 2 MacDermott's credited testimony corro-
borates this, stating that on the takeover they "changed the
entire crew " And it is stipulated by the parties that, in fact,
no former Ogden employees were hired by Respondent
By December 27 Respondent had a crew of employees
on the premises engaged in setting up the facilities for the
January 4 opening And by December 30 everyone had
been given his specific work assignment A cadre of
experienced workers assembled by Respondent to com-
mence its operations consisted of six employees from the
cafeteria operated by Respondent at nearby Lehman
College, two from its installation at Lowenstein Center,
and two others from its facility at Fordham University
Two of these transfers were permanent, and eight others
were on a temporary basis, the employees being scheduled
to return to their permanent location when the new
operation had settled down The remainder of the staff was
obtained by Respondent's regular recruiting methods,
through advertisements in the papers, applications at the
central office, and through the facilities of the state and
private employment agencies All of this was accomplished
during the week prior to the January 4 opening
During the period of transition and even before the
arrival of Respondent there was considerable speculation
on the part of the Ogden employees concerning their future
employment Thus, for example, Frank Montgomery, an
Ogden employee, testified to having sought out Respon-
dent's supervisors, and MacDermott himself, to inquire
about future employment with Respondent He was given
noncommittal answers and was told to file an application 3
Respondent's facility manager, Lucius Fletcher, testified to
conversations with employees on the subject and likewise
testified that he gave them no final answer, suggesting that
they file applications MacDermott's testimony, which I
credit, was more specific He admitted to having observed
and talked with Montgomery and being dissatisfied with
what he saw and heard He then described in some detail
his general dissatisfaction with the Ogden employees,
which resulted in his decision not to hire the Ogden crew,
excepting "some good workers whom they would be willing
to take over under ordinary circumstances "
The Ogden employees were represented by Local 377 as
a consequence of an election held under the Board's
auspices and a certification by the Regional Director dated
June 1, 1970 Thereafter, on October 5, Local 377 and
Ogden executed a collective agreement on behalf of the
Ogden employees employed at the college facility When
Local 377's president, then financial secretary-treasurer,
Napoleon Massa, learned of Ogden's abandonment of its
contract with the College and of Respondent's designation
as the new contractor he immediately wrote Respondent as
follows
We recently have been informed that your Company
has acquired the catering of the New York Community
College Cafeteria, 300 Jay Street, Brooklyn, New York
The employees at the Cafeteria are under contract and
members of United Service Employees Union Local
377, R W D S U, AFL-CIO
Therefore I would like to meet with you at your earliest
possible convenience to discuss this situation
Please call, write or telegraph
2 The credited testimony of Ruth Stem Moreover my observation of him as a witness further persuades me to this
3 The testimony of Montgomery I do not however rely generally upon conclusion
his testimony conflicting as it does with the testimony of credited witnesses
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Receiving no reply Massa thereafter telephoned Respon-
dent's personnel manager, Vance Cheatem,4 reminding
him of his letter to Respondent and of the growing concern
on the part of Ogden's employees, whom he identified to
Cheatem as members of Local 377 Massa reminded
Cheatem that Local 377 had a collective agreement
covering these employees and asked that Respondent "pick
up the contract " A week thereafter Massa made a second
call to Cheatem in substantially the same vein Cheatem's
only reply to Massa on each occasion was that the matter
was in the hands of Respondent's attorney Cheatem
appraised MacDermott of each of these calls and MacDer-
mott fixes their time as sometime between December 15
and 20 5 MacDermott credibly testified at the hearing that
on at least three occasions prior to January 4 he and
Fletcher told Ogden employees that they could file
applications for employment with Respondent He further
testified he never had any intention of assuming Ogden's
contract with Local 377 or any of Ogden's other obliga-
tions
On January 4, 1971, as previously noted, Respondent
had set up the facility to its satisfaction,6 with the newly
transferred or hired employees, each of whom had been
given a job assignment Each employee was instructed to
report to his assigned work station on the morning of
January 4 This they did at 6 30 am Shortly after the
employees reported for work at the Jay Street cafeteria, at
about 7 a in, the former Ogden employees appeared on the
scene, having been instructed to do so earlier by Local
377's president, Massa 7 These people went immediately to
the locker room, changed into their work clothes, and went
to the work stations which they had occupied during the
Ogden regime There they joined Respondent's employees
already at work and a general atmosphere of confusion
followed Within a short period of time Graves, the
manager of the facility, sent for the security guard who
appeared and escorted the Ogden employees out of the
kitchen and work areas They gathered at several tables in
the dining room where Massa joined them Meanwhile,
Grimes telephoned MacDermott who immediately left his
home for the College He arrived at the cafeteria at 8 30
am and immediately met with Massa and the Ogden
employees This meeting consisted of a prolonged discus-
sion between Massa and MacDermott of the rights of the
Ogden employees, all members of Local 377, to jobs with
Respondent, it being Respondent's position that it was not
obligated to employ these people and that, in fact, its own
employees were members of Local 302 Massa insisted that
his contract with Ogden obligated Respondent to continue
the former employees in their jobs and MacDermott was
equally insistent that he had no obligation to Local 377
under that contract, or Otherwise, and that, in fact, he had
already recognized Local 302 as the representative of those
4 Erroneously referred to at several points in the record as Mr Vance
5 Massa testified at some length in explanation of his contacts with
Respondents officials both Cheatem and MacDermott Upon my
observation of Massa s demeanor as a witness and upon my study of his
testimony in which I find a considerable number of inconsistencies I have
determined not to credit his testimony except where it constitutes matters
within his peculiar knowledge or which have been corroborated by the
testimony of credible witnesses
6 For reasons that will become apparent hereafter I find it unnecessary
whom he had recently employed for the Jobs at the facility
The meeting eventually broke up , Respondent's employees
continued in their jobs , and the former Ogden employees
left the premises
During the next few days considerable agitation appears
to have been generated among the students over the plight
of the displaced Ogden employees and it finally became
evident that a full dress meeting of all the parties should be
held Accordingly , on January 7 a meeting was convened,
present at which were the Ogden employees , representa-
tives of Local 377, including Massa , representatives of
Local 302 , the College , and Respondent , together with
members of the faculty and student body At this meeting
Massa again voiced his claim that Local 377' s contract
with Ogden was controlling and that the former employees
of Ogden , all members of his union , had been discrimtna-
tonly deprived of their jobs under the new arrangement
MacDermott countered with his contention that his
operation was an entirely different one from Ogden's, that
it was a matter of policy that it operate with its own
employees and not those of someone else, and that anyone
wishing employment should feel free to file an application
with Respondent He concluded by stating that upon a
showing of evidence of his employees' membership in
Local 302 he recognized Local 302 as their bargaining
agent Upon this note the meeting ended to the apparent
satisfaction of those protesting the situation The employ-
ees hired by Respondent have since continued in its
employ at the college facilities
MacDermott 's consistent position taken at both meet-
ings, that Respondent had recognized Local 302 , leads to
collateral considerations of conflicting union claims The
facts are these When , in November 1970, it became likely
that Respondent would be selected to operate the food
service facilities at New York Community College,
President MacDermott , as previously found, decided, in
accordance with usual company policy to build his
working crew upon a cadre of his own employees then
working at other institutions To do this would require the
approval of the bargaining representatives of the chosen
employees Thus he communicated with Local 719 of the
Teamsters to secure its permission for him to transfer two
employees working at Respondent's Fordham University
installation He also communicated with Emeho Rodn-
guez, financial secretary-treasurer of Local 302 , to obtain
permission to transfer personnel in Respondent's employ
at Lehman College, one of the several facilities represented
by Local 302 in separate bargaining units 8
Rodriguez, having then or shortly thereafter learned that
Respondent had obtained the Community College con-
tract, instructed Local 302's Business Agent Williams to
organize the employees at this installation Whereupon,
from that time until December 30, Williams visited with
to detail the structural organizational and operational changes in the
several cafeteria and vending facility areas at the College as set forth in the
record These changes I find to be substantial implemented by Respondent
as an integral element of its provision of food service at the level of quality
and efficiency guaranteed by it in its contract with the College
Y The testimony of Frank Montgomery and Massa corroborated by
MacDermott s testimony in which he relates reports given to him by his
supervisors
8 The credited testimony of MacDermott and Rodriguez
CROTONA SERVICE CORP 741
the newly hired employees and transferees and secured
memberships and authorization cards which were then
presented to MacDermott 9 On December 30, Williams
presented MacDermott 19 or 20 cards signed by Respon-
dent's employees at the college facility authorizing Local
302 to represent them The accuracy of these cards was
verified by MacDermott and counsel and he accepted the
cards to establish a clear majority of the employees then
working at the installation 10 Whereupon Respondent, on
December 30, upon Business Representative Williams'
request, granted recognition to Local 302 as the employees'
bargaining representative at the facility, and on January 4
executed a written stipulation to that effect
Based upon the credited testimony of MacDermott and
Rodriguez, I accordingly conclude and find Local 302 to
be the bargaining representative of Respondent's employ-
ees at the college facility on and after December 30, 1970
B Analysis and Conclusions
Basic to any determination here are Respondent's
obligations, if any, under the October 1970 collective-
bargaining agreement between Local 377 and Ogden
These obligations have been clarified by the United States
Supreme Court in N L R B v Burns International Security
Services, Inc, 406 U S 272, decided May 15, 1972 Therein
the Court specifically commented upon the type of
"successorship" situation illustrated by New York Com-
munity College's substitution of Respondent's food service
for Ogden's The Court emphasized the nature of the
operations of the new contractor, Burns, describing the
bargaining unit of employees as being a majority of those
who originally voted for their representative when they
were employed by the former contractor Accordingly, the
Court concluded, "Burns' (the new contractor) obligation
to bargain with the union over terms and conditions of
employment stems from its hiring of Wackenhut's (the
former contractor) employees " In conclusion, the Court
held that
where the bargaining unit remains unchanged and a
majority of the employees hired by the new employer
are represented by a recently certified bargaining agent
there is little basis for faulting the Board's implementa-
tion of the express mandates of Sections 8(a)(5) and
Section 9(a) by ordering the employer to bargain with
the incumbent Union
Thus, the basic criterion established by the Supreme Court
for fixing contractual obligation in a successorship situa-
tion is that the same employees, or at least a majority of
them, be hired by the new employer Here this criterion has
not been met On the contrary it has been stipulated into
the record that none of the employees of the old employer
were hired by the new Accordingly, then, unless it can be
established that those hired by Ogden remained Respon-
dent's employees for some reason not otherwise apparent,
it necessarily follows that the Court's established rules
regarding the establishment of successorship do not apply
to the situation here
As General Counsel points out in his brief, however, the
foregoing does not, in and of itself , dispose of the argument
respecting Respondent 's contractual obligation For it is
alleged in the pleadings and contended throughout the trial
of the matter that Ogden's employees were discriminatorily
precluded from hire by Respondent at the time of its
takeover of the facility because of their membership in
Local 377 and their failure to seek or have membership in
Local 30911 So, were General Counsel to prevail in his
allegation and establish such discrimination in violation of
Section 8(a)(1) and 8 (a)(3) of the Act, the usual remedy to
such conduct would instate the former Ogden employees
into Respondent's employ and thereby divest it of any
contractual immunity otherwise derived from the Burns
decision A consideration of the allegation of dlscrmma-
tion is therefore properly in order at this point of the
decision
A deternunation of the discriminatory aspects of this
case rests upon an evaluation of the testimony of several
witnesses appearing before me , in particular , former
Ogden employee Montgomery and Local 377's president,
Massa, neither of whom I credit (supra, fns 3 and 5) The
testimony of other witnesses called by the General Counsel
provides no support for the allegation of discrimination
Myrtle Jordan's testimony was confined to her employ-
ment at one of Ogden's other facilities and is of dubious
relevance to issues presented in this case Angie Hannon
testified only to events occurring after January 4, by which
time Respondent had already recognized Local 302 In the
course of her testimony Miss Hannon quotes MacDermott
as making two statements relating to membership in Local
377 or Local 302 Thus she testified that at the first meeting
with the Ogden employees on January 4 MacDermott said
"that he didn't want any helpers, anybody to work that was
a member of 377 " And she quotes MacDermott as stating
at the January 7 meeting that "he didn't want any help
from 377, and if we belonged to 302 he didn't want to be
bothered with none of us, that is as far as I can remember "
Quite apart from the fact that MacDermott credibly
denied these statements attributed to him , and discounting
Miss Hannon 's confused and uncertain second quote of
MacDermott, it is to be further noted that even the
testimony of Local 302 's President Massa , whom I do not
credit generally, does not support Hannon's quote of
MacDermott's postrecognition remarks In fact Massa
quoted MacDermott as saying on January 4, "We are not
hiring any workers at 377 We have our own people here "
And he quoted MacDermott as stating several times at the
January 7 meeting that they had a contract with Local 302
and not with Local 377 Nor is there anything in the
testimony of Local 302's financial secretary-treasurer
Rodriguez to suggest that employment had been withheld
from anyone because of Local 377 membership Indeed he
specifically testified that Local 302 memberships were
solicited from the new employees only after they had been
hired However, in all fairness to all of the witnesses
testifying on this subject, including Montgomery whose
testimony I do not credit, this is an area in which
nomenclature tends to become confused Thus throughout
9 The credited testimony of Rodriguez employees for membership or authorization although both organizations
10 It is to be noted that during this period no representative of either were admittedly aware of Respondent s contract with the College
Local 377 or of the Teamsters Local 719 ever solicited the newly hired 11 See Phelps Dodge Corp v N L KB 313 U S 177 186
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the transcript of the hearing Ogden employees were
frequently and interchangeably referred to as "377 peo-
ple," and Respondent's employees were referred to as "302
people," albeit two of this latter group were members of
Teamsters Local 719 Because of a confusion of nomencla-
ture which can easily blend identification with motivation,
I am not constrained to find herein any substantial
evidence, overall, that Respondent withheld the employ-
ment of any individual because of his and her membership
in Local 377 or failure to join Local 302, or both, or that
employment was granted only upon condition that
membership in Local 302 would be acquired or that
membership in Local 377 would be forsaken, or both I
accordingly conclude and find that Respondent has not
discriminated against any former employee of Ogden and
would recommend that so much of the complaint as alleges
this as in violation of Section 8(a)(1) and (3) be dismissed
Having found and concluded that Respondent has not
discriminated against any of the former Ogden employees,
it necessarily follows that unless compelled to do so by
contractual obligation Respondent had no obligation to
instate them to employee status At this point, then, the
holding of the Supreme Court in Burns 12 becomes
operative Respondent not having acquired the employees
of the former employer, it is not obligated under the
Court's holding to abide by the recogmtional terms of the
agreement Being not obliged to recognize the representa-
tive of Ogden employees, Local 377, Respondent, a fortiori,
has no obligations with respect to any other portion of
Local 377's contract with Ogden I accordingly conclude
and find that Respondent has not unlawfully refused to
bargain with Local 377 and will recommend that so much
of the complaint as alleges this as a violation of Section
8(a)(5) be dismissed.
One further element requires consideration-the allega-
tion of Respondent's unlawful assistance and support to
Local 302 Upon the credited testimony of Local 302
Financial Secretary-Treasurer Emeho Rodriguez, a witness
called by the General Counsel, it appears that he was asked
by Respondent, as was Teamsters Local 719, to grant the
permission necessary to transfer to the new facility certain
named employees in bargaining units which their respec-
tive unions represented This is most certainly a usual and
proper procedure where an outside bargaining unit is
already covered by a collective agreement, and there was
no claim that it was improper here Armed with such
information as Respondent's request for permission pro-
vided it was perfectly normal for an astute union organizer
to take the next obvious step without employer urging-to
organize the employees in the new operation This Local
302 did by sending Business Representative Williams to
the college cafeteria during the last week of December
When, then, Local 302 procured by December 30 the
signatures of new and transferred employees at Respon-
dent's facility sufficient to establish its majority status it
did so by its own efforts, without the assistance or support
of Respondent or anyone else
Nor can it be said that by recognizing Local 302
Respondent has breached the strict neutrality required of it
when presented with conflicting claims for recognition 13
The claims in conflict here are not those of two labor
organizations for the employees of an employer in a given
bargaining unit On the contrary, Respondent is faced with
the claim of another employer's employees for the jobs of
the employees whom he has properly hired As there has
never been any dispute that each labor organization
represents its own members, and neither makes any claim
to represent its opposite's members the breach of neutrali-
ty, if such there were, would be between two different
groups of employees claiming the samejobs, not two labor
organizations seeking to represent the same employees
Midwest Piping (supra) applies only to the latter situation,
not present here, while other provisions of the Act,
including Section 8(b)(4)(D), might well apply to the
dispute at hand in a proper proceeding
Upon the foregoing, therefore, I conclude and find that
Respondent has not contributed aid or support to Local
302 and I will recommend that so much of the complaint as
alleges this to be a violation of Section 8(a)(2) of the Act be
dismissed
RECOMMENDED ORDER 14
It is recommended that the complaint in this matter be
dismissed in its entirety
12 Burns Security Services supra conclusions, and this recommended Order shall, as provided in Sec 102 48
13 Midwest Piping and Supply Co 63 NLRB 1060 of the Rules and Regulations be adopted by the Board and become its
14 In the event no exceptions are filed as provided by Sec 102 46 of the findings conclusions, and Order and all objections thereto shall be deemed
Rules and Regulations of the National Labor Relations Board the findings, waived for all purposes