Triangle Maintenance Corp.

National Labor Relations Board - Board Decisions

Dec 8, 1971

194 N.L.R.B. 486 (N.L.R.B. 1971)

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Triangle Maintenance Corporation , Triangle Building
Cleaning Co. Inc., International Building Mainte-
nance Supply Co., Inc. and Transport Workers
Union of America , AFL-CIO and Local 504,
Transport Workers Union of America , AFL-CIO
and Local 732, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Party to the Contract . Case 29-CA-1792
Union (Triangle Maintenance Corp.), 186 NLRB No. 71, and
Kaynard v. Transport Workers Union, 306 F.Supp. 344
(S.D.N.Y., 1969).
Upon the entire record,' including my observation of the
witnesses, and after due consideration of the exceptionally
able briefs filed by Respondents and by General Counsel, I
make the following:
FINDINGS OF FACT
December 8, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 22, 1971, Trial Examiner Frederick U. Reel
issued the attached Decision in this proceeding.
Thereafter, the General Counsel filed exceptions and
a supporting brief, and the Respondents filed cross-
exceptions, a supporting brief, and a brief in answer to
the General Counsel's exceptions.
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 Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions 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 Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This proceeding,
heard at Brooklyn, New York, on April 21 and 22 and May
19, 1971, pursuant to a charge filed August 12, 1969, and a
complaint issued December 31, 1970, presents questions
whether Respondents (a) violated Section 8(a)(3) and (5) of
the Act when, in taking over certain building cleaning and
maintenance operations at J. F. Kennedy International
Airport (herein called the airport), they failed to hire the
employees who had performed the work under prior
contractors or to recognize their union as bargaining
representative; and (b) violated Section 8(a)(2) of the Act
by assisting another union in organizing the newly hired
employees. For related litigation, see Transport Workers
1 On my own motion , I hereby correct the transcript , p. 196, 1 8,
changing the word "on" to "no."
1. THE BUSINESS OF THE RESPONDENTS AND THE
LABOR ORGANIZATIONS INVOLVED
Respondents, hereinafter sometimes called Triangle, are
closely interrelated New York corporations which provide
building cleaning and maintenance services at various
places, including the airport where their contracts with
interstate and foreign air carriers establish that Respon-
dents are employers engaged in activities affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. The Charging Parties (herein called TWU), the
Party to the Contract (herein called the Teamsters), and
Local 32-B of the Service Employees International Union
(herein called Local 32-B) are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Discrimination and Refusal To Bargain
On August 1, 1969, Triangle took over the janitorial
servicing of the public areas in the International Arrivals
Building (IAB) at the airport, which function for many
years had been performed by a competitor of Triangle
known as Allied Aviation Service Company, herein called
Allied. The employees of Allied were represented by TWU.
Triangle, when it took over the operation, hired new
employees. General Counsel alleges that Triangle, by its
failure and refusal to hire the prior crew, discriminated
against those employees because of their membership in
TWU, that Triangle's motive in so doing was to avoid
having to deal with TWU, that the refusal to hire therefore
violated Section 8(a)(3) and (1) of the Act, and that but for
that allegedly unlawful conduct Triangle would have had to
deal with TWU, so that a refusal-to-bargain finding should
be made, or at the very least an order to recognize TWU
and bargain with it should be entered. For reasons outlined
below, I find that Triangle was under no duty to hire the
former crew, that its reasons for not doing so were not
discriminatory or unlawful, and that it therefore was and is
under no duty to recognize or bargain with TWU.
1. Background
Several cleaning firms, including Triangle, Allied, and
others, have been engaged for many years in cleaning
various buildings at the airport, under contracts awarded
by the Port of New York Authority pursuant to bids. In
general, each of those companies has been dealing with a
particular union as the representative of its employees.
Most of Triangle's employees were represented by Local
194 NLRB No. 85
TRIANGLE MAINTENANCE CORPORATION 487
32-B, although prior to the events here involved at least one
group of Triangle employees (ramp employees) was
represented by the Teamsters. Some of Allied's labor
contracts were with TWU, although it also had contracts
with Local 32-B. On several occasions when one employer
succeeded in ousting another-i.e., when a cleaning
contract with the Port Authority expired and a new
company obtained the next contract-the new employer
would bring in his own crew of workmen, and the men
previously employed would have to seek jobs elsewhere.
However, ever since the opening of the International
Arrivals Building, and up to the events here involved, TWU
had represented the employees doing janitorial service in
the "public area" there, although the contract from the Port
Authority for that cleaning had been held at one time by
American Building Maintenance Company and at other
times by Allied.
In 1959 a dispute arose between Local 32-B and a
corporation known as Eastern Maintenance Service, which
was a predecessor to Triangle with similar officers. At that
time Eastern Maintenance had a contract with Local 32-B
covering janitorial service for one building at the airport,
and the employer started work in a second building. The
dispute arose because Local 32-B claimed that the new
work was likewise subject to its contract. The union's
contention was sustained by an arbitrator whose award was
upheld by the courts. Since that time, and until the present
controversy arose in the summer of 1969, all Triangle's
janitorial contracts at the airport had been with Local 32-B.
Because of that history, when Triangle in 1969 submitted its
bid for the contract held by Allied covering the public areas
of the IAB, Triangle expected that, if it was awarded the
contract, it would be dealing with Local 32-B as
representative of the employees in that building. Indeed,
Triangle's contract with Local 32-B already encompassed
the cleaning ofprivate areas in the IAB.
2. The events of July and August 1969
As noted, Allied's contract with the Port Authority was
due to expire at midnight on July 31, 1969. This contract
covered janitorial services for the public areas of the IAB,
the control tower, and several outlying buildings. Allied
had contracts with TWU covering the IAB and control
tower and with Local 32-B covering the outlying buildings.
These contracts also expired at midnight on July 31, 1969.
Late in July all interested parties learned that Triangle had
been awarded the contract formerly held by Allied covering
these buildings. TWU had previously notified Triangle that
if Triangle obtained the contract "it must retain" the
employees then employed by Allied in the IAB, and, on
July 24, TWU sent a telegram to Triangle requesting 'a
meeting "to discuss transfer of present employees . . . from
Allied to Triangle ...." Triangle ignored these communi-
cations and commenced advertising for and hiring new
employees to whom it offered the wage rate set in Triangle's
2 General Counsel argues that the Board found in 186 NLRB No. 71
that Ralph Fine, president of Triangle, made no offer to employ TWU men
at this meeting. A fair reading of that decision indicates that the Board's
statement of "no offer to the former Allied employees" refers to the period
between the award of the contract and the meeting on July 31. In any
contract with Local 32-B, which was a lower rate than
TWU had in its contract with Allied.
On July 31, the day before Triangle took over the
janitorial services under the new contract, Local 32-B
officials invited Triangle officials to a meeting at the offices
of Local 32-B. Also present at the meeting were representa-
tives of TWU. At this meeting, to the surprise of Triangle,
Local 32-B took the position that it would not seek to
represent the employees of Triangle in the public areas of
the IAB and in the control tower and that Local 32-B would
respect "the jurisdiction of TWU" in those places. Triangle
took the position that it had made its bid on the assumption
that its Local 32-B contract would apply, that it was willing
to employ any people who were willing to work for
Triangle 2 but that the wages would be those in the Local
32-B contract, and that Triangle had no relationship with
TWU. The Triangle representatives then left the meeting;
the Local 32-B and TWU representatives remained but did
not communicate with Triangle again that day.
At midnight that night, Triangle took over the operations
formerly performed by Allied. Triangle transported a
number of men to the IAB to begin work there. A large
crowd collected outside, as the former employees (TWU
men) gathered there to picket the premises, and a number
of curious spectators augmented the throng. During the
commotion, a Triangle official made an announcement
over a bullhorn that anyone desiring to work for Triangle
should come in and fill out an application for employment.
His message was greeted with jeers, and apparently none of
the former work crew applied, but instead continued to
picket, claiming that Triangle was "unfair" in seeking to
enforce a substantial wage cut .3
Later that night (i.e., in the early hours of August 1),
Triangle learned that the Local 32-B men, who had been
working in the outlying areas under contract with Allied
and who Triangle had expected would continue to work
there, had not reported for work. Triangle dispatched some
of its new employees to service these areas. Some weeks
later Triangle concluded an agreement with Local 32-B
under which the men formerly employed at the outlying
areas returned to those jobs and were paid at a rate which
recognized their previous service rather than at the
"beginners" rate.
3. Conclusions as to the 8(a)(3) and (5)
allegations
As General Counsel apparently concedes, Triangle was
not a "successor" to Allied in the sense that any duty
devolved on Triangle to hire the Allied employees en masse.
It may well be that, ifTriangle had hired those employees, it
would have been a successor in the sense that it would have
been obligated to recognize and bargain with TWU. But,
unless and until Triangle hired them (or unlawfully refused
to hire them, so that they were by operation of law its
employees), it was not a "successor ." Lincoln Private Police,
Inc., 189 NLRB No. 103. See also Tri State Maintenance
event, the finding in this case rests on the evidence in this record.
3 I pretermit discussion of subsequent offers which Triangle made to
employ TWU men at rates acceptable to Triangle. As noted below I find
no violation in Triangle's conduct on July 31-August 1, and I therefore see
no need to discuss the later efforts to reach amicable adjustment.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corp. v. N.L.R.B., 408 F.2d 171, 173 (C.A.D.C., 1968). It
follows, as General Counsel conceded, that Triangle's only
statutory obligation to the TWU men employed by Allied
was not to discriminate against them because of their union
membership. On this record, I find that General Counsel
fell far short of sustaining his burden of proving that any
such discrimination occurred.
TWU made several demands on Triangle on and before
July 31, 1969, that Triangle retain all the TWU men then
employed in the IAB and the control tower. At the time of
these demands, Triangle had no relationship with, and no
obligation to, TWU or its members. It may well be that
TWU was the agent or representative of these men in
making application for future employment by Triangle.
But, as noted above, TWU erred in believing that Triangle
was obligated to hire the men en masse. So far as this record
shows, Triangle was willing and ready at all times to hire
any or all of the TWU men, but at wage rates lower than
those set in TWU's contract with Allied.4 This falls far
short of establishing a discriminatory refusal to hire,
particularly as Triangle's bid for the contract was premised
on its hypothesis that it would be paying wage rates based
on its contract with Local 32-B. Piasecki Aircraft Corp. v.
N.LR.B., 280 F.2d 575 (C.A. 3, 1960), cert. denied 364 U.S.
933, is distinguishable, for in that case the new employer
"locked out these applicants for employment . . . because
of their affiliation with the Union." 280 F.2d at 584.
Likewise distinguishable is Chemrock Corp., 151 NLRB
1074, where the Board found a successorship because the
new employer hired the production employees of the prior
employer and in other significant respects took over the
operation of the business it had purchased. In the instant
case, Triangle took over no employees and no equipment.
Moreover, Chemrock had a contractual relationship with
its "predecessor," whereas Triangle was a stranger to
Allied, acquiring the work not by purchase but by bid.
B. Support of the Teamsters
At 10 p.m. on the night of August 1, William Olsen, a
representative of the Teamsters, went to the Triangle office
and there presented Ralph Fine, president of Triangle, with
a demand for recognition supported by 50 to 60 authoriza-
tion cards signed by the newly hired Triangle employees.
Fine, after checking a few of the cards, signed the "Interim
Recognition Agreement" which Olsen presented and which
recited that Triangle recognized Teamsters as exclusive
bargaining agent for all Tnangle employees. Notwithstand-
ing the sweeping nature of the language, Fine testified that
he understood Olsen was claiming to represent the
employees at the airport in the areas lust acquired by
Triangle. This "Interim Recognition Agreement" contained
no substantive terms of employment. During the ensuing
weeks Triangle paid these employees at the rates set in its
old contract with Local 32-B. Eventually Triangle conclud-
ed a new formal contract with Teamsters. This contract,
however, covered only the IAB and the control tower.
Before its execution, Triangle had made its peace with
Local 32-B by reemploying at the outlying areas the Local
32-B men who had worked there for Allied and by signing a
new agreement with Local 32-B covering those employees
which recognized for wage rate purposes their prior
employment in those buildings.
General Counsel does not deny that, at the time Olsen
presented, and Fine signed, the Interim Recognition
Agreement, Teamsters had obtained applications for
membership from a majority of the Triangle employees in
the IAB and the control tower. General Counsel contends,
however, that Triangle unlawfully assisted Teamsters by
urging employees to sign Teamster cards and by permitting
Teamsters to conduct union business on Triangle premises
during working hours. I find on consideration of the record
evidence summarized below that General Counsel failed to
sustain his burden of proof. The cynical may suggest that
Triangle naturally abhorred the vacuum created by the
abdication of Local 32-B and hastened to fill it with the
Teamsters rather than risk the advent of some other union,5
but the question is whether the evidence actually adduced
fleshes out what is otherwise a mere skeleton of suspicion.
General Counsel called three employee witnesses to
testify concerning the circumstances under which employ-
ees signed Teamster cards. Employee Joseph Peyton
testified that on July 31 he answered an advertisement for
work and was given a slip of paper directing him to report
to Triangle's office on the morning of August 1. That
morning he and several other newly hired employees were
at the Triangle office when Olsen came up to them,
introduced himself as a delegate of the Teamsters, and gave
them cards to sign. It appears that at this time Olsen and
the other men were in the street outside the office. The
closest Peyton came to linking the Company to Olsen was
his statement that "a supervisor," who later worked with
the men washing planes, was in the group and later went
with them from the office to the hangar where they worked.
Peyton's testimony falls short of even establishing that the
man to whom he referred was in fact a "supervisor" within
the meaning of the Act, and a fortiori furnishes no support
for the allegations that Triangle by "persons acting on its
behalf urged and solicited its employees to sign [Teamster ]
cards" or permitted Teamster representatives "to conduct
union business on [Triangle] premises ...."
Employee William Bell was hired by Joe Magro,
operations manager of Triangle, a few days before August
1, 1969, and began work at the Eastern Air Lines building
at the airport. When he came to work on the night of July
31 after 11 p.m., he and several other employees were taken
to the Triangle office in a company truck and , then
transported to the IAB to work there. He signed a Teamster
card on the street in front of the office. Bell described what
transpired as follows:
Q. Tell us what happened when you got to the New
York Boulevard location.
4 General Counsel argues that Triangle's alleged concern over wage
rates was merely a mask for its determination to avoid dealing with TWU
and in support thereof points to the higher wages eventually paid by
Triangle when it reemployed the Local 32-B men at outlying areas and in
its ultimate contract with Teamsters. These economic concessions which
Tnangle made long after the events of July 31-August 1 do not, in my
judgment, establish any anti-TWU motivation at that time.
5 Triangle's relations with Teamsters began in 1964 when Olsen
organized certain ramp employees. At that time Olsen enforced his
bargaining demand with a strike, and he threatened similar action when he
demanded recognition on August 1, 1969.
TRIANGLE MAINTENANCE CORPORATION 489
A. Well, Mr. Olsen was there. He asked Mr.
Morgan,6 say, can I speak to the employees.
So he answered be my guest.
So he came over and he told us that we were going to
work for the Airport, and we had to be in the Union. So
he passed the cards out, and the guys start signing them.
So I walks over to Mr. Magro and I asked him, I says
should I sign this card, what do you think.
He says go ahead, because I want to know, you
know-he said he wanted no labor trouble.
And then I went ahead and I signed the card.
On cross-examination Bell modified his testimony to quote
Magro as telling him to sign the card, "If you want to,
because I want no labor problems." Later Bell testified that
he could not recall Magro's exact words, "but he didn't tell
me not to sign the card. He said, `I want no labor trouble
because,'as I told you, I wanted [you], you know, as a crew
chief.' " Bell also testified that he did not see any other
employee speak to Magro.
Considering Bell's testimony as a whole, I find it does not
contribute appreciably, if at all, to General Counsel's case.
The fact that Olsen requested and was given permission to
speak to the employees on the sidewalk in front of the
company office is insufficient to show unlawful company
assistance. Of course, if Magro told Bell to sign a card, this
would be evidence of assistance, but to tell Bell that he can
sign "if he wants to" is quite a different matter. As the
record stands, Bell's testimony is not sufficiently clear to
warrant a finding that Magro gave him any directive. To be
sure, Magro's statement that he did not want any labor
trouble might give rise to an inference that Magro wanted
Bell and the others to sign the cards. But Bell's later
testimony ties in the "labor trouble" observation with some
possible future supervisory status for Bell. Finally, Bell
testified that the reason he asked Magro at all was that "a
lot of companies doesn't want unions." As I read Bell's
testimony, he was ready to sign with Teamsters unless
Magro objected. I find that Magro did not give any
unlawful assistance to Teamsters.
Employee David Miles testified that, having heard that
Triangle was hiring at the airport, he went to the Eastern
building on the morning of August I and was transported
along with other applicants from there to the main Triangle
office about noon. Miles' testimony continues:
Q. What happened when you got there?
A. Well, when we went inside, one of the men
greeted us, and he asked us were you, you know,
looking for jobs, and we told him yes.
So he told us to fill out this Union card, the card that
was presented to me, and we all went outside, because
the office was sort of small for the crowd that was in
there, and we filled out the cards in front of the
building, and we gave the cards back to the man.
Q. (By Mr. Monat) Was there any time during the
day when you actually were told you were hired?
A. Yes.
Q. When was that?
A. When we were taken back to the Triangle
Maintenance building at the International Arrivals
Building, and there we met the supervisor, a Joe Magro,
and he asked us if we wanted to work that night.
But I couldn't, because I had to go and see my
mother, and my brother, Stephen Felton and I, he told
him he worked that night, and my friend Peter and I,
and we worked the following day, the following night.
Q. Now-
TRIAL EXAMINER: You say this was Magro at the
Terminal?
THE WITNESS: Right, at the International Arrivals
Building.
TRIAL EXAMINER: Who was the man who told
you to sign the cards?
THE WITNESS: I don't know his name. I've only
seen him once.
After I saw him just that one time when I signed the
card, I haven't seen him again.
TRIAL EXAMINER: Was it the man who told you
you were hired?
THE WITNESS: No. He just gave us the cards and
told us to go over to the International Arrivals Building.
TRIAL EXAMINER: All right. Let me back track.
The first time you saw this Union card was at the
Triangle office on New York Boulevard?
THE WITNESS: Right.
TRIAL EXAMINER: You don't know who it was
who gave you the Union card?
THE WITNESS: No.
TRIAL EXAMINER: What else did the man say?
THE WITNESS: No. He just said are we looking for
jobs. He said are you looking for jobs. He said here, sign
this card, and he told the other guy to take us over to the
International Arrivals Building at Kennedy Airport.
Later in his testimony Miles made it reasonably clear that
he had actually received his blank Teamster card after he
left the office from the driver who thereafter took him in a
Triangle-owned car to the IAB. According to Miles, this
driver received the cards from some person inside the office
who told the driver to distribute them to the men. Miles
signed the card after being reassured by some person he
asked (possibly Olsen, but Miles was not certain) that he
would owe no dues for 30 days.
Miles' identification of the people involved left a great
deal to be desired. If we can assume that the man who
drove Triangle's car was a Triangle agent for other
purposes, then it was a Triangle agent who distributed those
cards. Whether the man who told the driver to do so was a
Triangle supervisor, or whether it was Olsen giving a
directive to one of his members, is shrouded in mystery.
On this record I cannot find that Miles' testimony is
sufficient to sustain the General Counsel's burden of proof.
General Counsel argued that "there is some presumption
that the Company has knowledge of what transpires in its
offices," but the record does not contain proof of any
illegality at those offices. General Counsel also stated that
6 Bell stated that the Morgan to whom he referred was "a supervisor,"
and the record contains nothing further as to him.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not "plan on resting on [Miles'] testimony alone,
either," but even when that testimony is taken in
conjunction with that of Bell and Peyton, I find a failure of
proof.?
Upon the foregoing findings of fact, conclusion of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
CONCLUSION OF LAW
Respondent has not engaged in the unfair labor practices
alleged in the complaint.
The complaint is dismissed in its entirety.
7 There was no charge of violation of Section 8(a)(2). The complaint, period prescribed in Section 10(b) bars this issue, and I therefore do not
issued 17 months after the events, contains the first hint of unlawful pass on the point.
assistance. However, Respondent did not urge that the 6-month limitation