The Green-Wood Cemetery

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1359 (N.L.R.B. 1986)

GREEN-WOOD CEMETERY
The Green-Wood Cemetery and Louis Gioffre, an
Individual Petitioner and Local 966, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America
The Green-Wood Cemetery , Employer-Petitioner
and Local 966, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Cases 29-
RD-525 and 29-UC-300
31 July 1986
DECISION ON REVIEW AND ORDER
REMANDING
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, AND STEPHENS
On 30 August 1985 the Regional Director for
Region 29 issued a Decision and Direction of Elec-
tion and Order in the above-entitled proceeding in
which he found appropriate a unit of all field em-
ployees and office clerical employees employed by
the Employer at its Brooklyn, New York location,
excluding all executives, confidential employees,
guards and supervisors as defined in the Act.' In
so doing , the Regional Director found that the pe-
titioned-for unit of office clerical employees was in-
appropriate for the decertification election on the
basis that a merger of units had occurred. The Re-
gional Director therefore also rejected the Employ-
er's petition for clarification of separate bargaining
units of office clerical employees and field employ-
ees.
In accordance with Section 102.67 of the Board's
Rules and Regulations, the Employer filed a timely
request for review of the Regional Director's deci-
sion . The Employer contended that substantial
questions of law and policy were raised because of
the absence of controlling Board precedent and be-
cause of a departure from officially reported Board
precedent. The Employer further contended that,
to the extent the Regional Director's decision was
consistent with Board policy, a reexamination of
such policy was warranted because of the asserted
adverse effect on the office clerical employees'
Section 7 rights.
By telegraphic order dated 5 November 1985 the
request for review was granted.
The Board has reviewed the entire record in this
case and has decided to affirm the Regional Direc-
tor's Decision and Direction of Election and
Order.
1 The Regional Director conditioned the direction of election on the
Petitioner's submission of an additional showing of interest because the
unit found appropriate by the Regional Director was broader than the
unit originally sought by the Petitioner The Board has been administra-
tively advised that no election has been conducted.
1359
In Gibbs & Cox, Inc.,2 the Board majority re-
cently reaffirmed the Board's "merger doctrine" in
an unfair labor practice case, finding that the re-
spondent employer unlawfully withdrew recogni-
tion from the union at one location of a multiloca-
tion bargaining unit. Specifically, the Board majori-
ty found that a merger of units at the employer's
Arlington, Virginia and New York City facilities
had occurred, despite the initial separate recogni-
tion at Arlington, as a result of a 4-year history of
bargaining on a multilocation basis and the parties'
application of two successive collective-bargaining
agreements to the Arlington employees. Rejecting
the dissenters' focus on the time of the creation of
the unit, the majority stated that the nature of the
established bargaining relationship must be recog-
nized in order to guarantee the Section 7 rights of
employees in the overall unit and to further the
statutory objective of maintaining industrial stabili-
ty.
Similarly, in the instant case, the parties' entire
course of conduct following recognition of the
office clerical unit in 1979 establishes an intent to
merge the office clerical unit with the field em-
ployees unit. The Union was certified on 25 May
1979 as the exclusive bargaining representative of
the Employer's 110 field employees. The parties
executed a 3-year collective-bargaining agreement
on 24 July 1979. The unit description in the con-
tract's recognition clause specifically excluded
office clerical employees, consistent with the certi-
fication.3 Later in 1979, following a card check,
the Employer voluntarily recognized the Union as
the representative of the office clerical employees.
On 10 December 1979 the parties executed a col-
lective-bargaining agreement which, in addition to
containing a number of provisions applicable to the
clericals only, incorporated the field employees'
agreement by deleting the exclusion of the office
clerical employees from the recognition clause.4
Rejecting the Employer's argument that the rec-
ognition clause was merged for convenience only,
the Regional Director noted that the contract itself
indicated no such intention and that the parties
elsewhere included separate clauses for the office
clerical employees. The Regional Director further
noted, however, that there was no discussion
2 280 NLRB 953 (1986) (Members Johansen , Babson, and Stephens,
Chairman Dotson and Member Dennis dissenting).
8 The unit description in the certification covered all employees em-
ployed by the Employer, excluding office clerical employees, guards and
supervisors as defined in the Act
4 Member Stephens notes that whether or not the clericals might be
properly certifiable as a separate unit they did not seek separate certifica-
tion at the time and were not expressly recognized as a separate unit for
bargaining purposes. Thus, in his view, this is not, strictly speaking, a
"metger doctrine" case.
280 NLRB No. 157
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the 1979 negotiations of merging the cleri-
cal employees with the field employees unit.5
The Regional Director found further support for
a finding of merger of units in the 1982 negotia-
tions. He noted that the Union had a single negoti-
ating committee for all employees , held a single
contract proposal meeting for all employees, and
held a single ratification vote. He further noted
that the parties entered into a single contract exten-
sion, that there were no separate sessions for pro-
posals related to the clericals, and, most important-
ly, that the parties retained the merged recognition
clause from the 1979 agreement."
The Regional Director also noted, inter alia, that
since 1979 the Union has had a single shop steward
for all employees. Finally, he noted the lack of any
written or oral statements by either party express-
ing an intention to maintain separate units . The Re-
gional Director therefore found that the parties in-
tended to merge the field employees and office
clerical employees into a single overall unit, as in
Scott Paper Co., 257 NLRB 699 (1981); Armstrong
Rubber Co., 208 NLRB 513 (1974); and W. T.
Grant Co., 179 NLRB 670 (1969).7 Accordingly,
applying the well-settled rule that the unit appro-
priate in a decertification election must be coexten-
sive with the certified or recognized unit," the Re-
gional Director concluded that only a merged unit
of field employees and office clerical employees is
appropriate in this case.
We conclude, essentially for the reasons stated
by the Regional Director, that the appropriate unit
in the decertification election here should encom-
pass the field employees as well as the office cleri-
cal employees. To return, as our dissenting col-
league would do, to the time of the creation of the
office clerical unit would ignore a 6-year history of
bargaining and bargaining agreements containing a
merged recognition clause and other manifestations
of an overall unit. This would "disturb the reasona-
ble balance the Board seeks to achieve between the
aims of assuring freedom of employees' choice and
fostering established bargaining relationships."9
a The clerical employees had been informed by the Union that an
agreement covering their terms and conditions of employment would be
amended into the field employees contract
a The Regional Director additionally noted that the parties had acted
to more closely align the welfare benefits of the field and clerical em-
ployees, as had been done in 1979 with respect to pension benefits
7 The Regional Director distinguished the instant case from the cases
relied on by the Employer based on the merged recognition clause and
unit description herein.
a Campbell Soup Co., 111 NLRB 234 (1955).
a Gibbs & Cox, above, at 954.
Accordingly, we affirm the Regional Director's
Decision and Direction of Election in an overall
unit,1 o and we affirm his dismissal of the Employ-
er's petition for unit clarification.
ORDER
It is ordered that Case 29-RD-525 is remanded
to the Regional Director for Region 29 for further
appropriate action.
IT IS FURTHER ORDERED that the petition in Case
29-UC-300 is dismissed.
CHAIRMAN DoTsoN, dissenting.
I would reverse the Regional Director and direct
him to hold the decertification election in the peti-
tioned-for office clerical unit. In 1979 the Board
certified Teamsters Local 966 as representative for
a 110-member service, labor , and maintenance
(field) unit. Later in 1979 the Employer, after an
authorization card check, recognized the Union for
a 5-member office clerical unit. Finding that the
parties subsequently had mutually agreed to merge
the clerical and field units, the Regional Director
directed an election in the merged unit, rather than
in the petitioned-for office clerical unit.
I do "not adhere to the merger doctrine in deter-
mining the appropriate unit in cases involving the
Section 7 right of employees to reject or change
their bargaining representative." See the dissent in
Gibbs & Cox, Inc., 280 NLRB 953, 957 (1986). I
would find:
Absent unusual circumstances, any unit that
was appropriate for the purpose of selecting a
bargaining representative remains appropriate
for the purpose of rejecting that representative
or obtaining a new one. The appropriateness
of that unit cannot be extinguished merely by
a mutual intent on the part of an employer and
a union to conduct collective bargaining on
the basis of some other unit. The unit alleged
to be appropriate at the present time, however,
must have been the one in which recognition
was originally granted, and not merely a frag-
ment of that unit, even if that fragment would
otherwise have been appropriate.
In my view, this formulation accommodates the
conflicting goals of employee free choice and bar-
gaining stability.
10 As the unit found appropriate is larger than that requested , the Peti-
tioner is accorded a period of 10 days in which to submit the requisite
showing of interest to support an election. In the event the Petitioner
does not wish to proceed to an election herein , it may withdraw its peti-
tion without prejudice by notice to the Regional Director within 10 days
from the date of this decision
GREEN-WOOD CEMETERY 1361
The 5-member office clerical unit was, when rec - find the petitioned-for office clerical unit appropri-
ognition was granted, separately appropriate from ate for conducting the decertification election.
the 110-member field unit. Accordingly, I would