William Moses

National Labor Relations Board - Board Decisions

Jan 7, 1980

247 N.L.R.B. 144 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Moses, Robert Moses and Eugene Moses,
Individually and as Trustees for the Estate of Bella
Moses and Local 32B-32J, Service Employees
International Union, AFL-CIO, Petitioner. Case
2-RC-18388
January 7, 1980
DECISION ON REVIEW AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On July 25, 1979, the Regional Director for Region
2 issued a Decision and Direction of Election in the
above-entitled proceeding in which she found, inter
alia, that the Intervenor' had effectively disclaimed
interest in continuing to represent the employees in
the bargaining unit, and that a unit limited to the
employees of this single Employer was appropriate.
Thereafter, pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Employer filed a timely request for
review of the Regional Director's decision, partly on
the ground that in giving effect to the disclaimer the
Regional Director departed from established Board
policy. The Petitioner filed an opposition. By tele-
graphic order dated August 21, 1979, the National
Labor Relations Board granted the request for review
with respect to the Intervenor's disclaimer, and stayed
the election pending decision on review.
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 Employer owns and operates a residential
apartment building in New York City called the
Meurice, which was operated as a permanent hotel
prior to 1973 and then converted, during the period
from 1973 to 1976, into an apartment house. For more
than 30 years, the Employer has been a member of
Associated Hotels & Motels, Inc., a multiemployer
bargaining association which has had successive col-
lective-bargaining agreements with the Intervenor
throughout this period. The unit of the Meurice
employees sought by the Petitioner has been covered
by those contracts, the most recent of which expired
on May 31, 1979.
In January 1977, with the conversion of the building
from hotel to apartment completed, the Intervenor
suggested to the Employer that their relationship be
severed since the Intervenor traditionally has not
represented apartment house employees. This change
did not occur, however, and the Intervenor continued
' Local 144. Hotel, Hospital. Nursing Home & Allied Health Services
Union, SEIU, AFL-CIO. intervened in the proceeding.
247 NLRB No. 20
to represent the Meurice employees, including taking
active part in the most recent contract negotiations,
from January 1979 until the first day of the hearing in
the instant case, June 21. At that time, the contract
negotiations between the Intervenor and the associa-
tion had resulted in agreement on 37 of the Interve-
nor's 39 contract demands.
On June 7, the instant petition was filed by Local
32B-32J, Service Employees International Union,
AFL-CIO. When the hearing was convened the
Intervenor announced that it wished to disclaim any
interest in representing the employees in the unit
petitioned for by Local 32B-32J. The Employer
contested the validity of the disclaimer on the
grounds, inter alia, that it was not timely.
As the Regional Director noted in her decision,
there is no question that the Intervenor in the instant
case could not have withdrawn from the multiemploy-
er bargaining unit and sought to bargain on an
individual basis at the time that it made its disclaimer.
A withdrawal at that point would have been untimely.
Nevertheless, the Regional Director gave effect to the
disclaimer and directed an election. The Employer has
urged in its request for review that to allow the
Intervenor to disclaim in these circumstances would
be tantamount to allowing an untimely withdrawal
from a multiemployer bargaining relationship. We
find merit in the Employer's contentions.
The Board has consistently sought, in its decisions,
to ensure the stability of multiemployer bargaining
arrangements. As the Board stated in Retail Asso-
ciates, Inc., 120 NLRB 388, 393 (1958):
The right of withdrawal by either a union or
employer from a multiemployer unit has never
been held, for Board purposes, to be free and
uninhibited, or exercisable at will or whim. For
the Board to tolerate such inconstancy and
uncertainty in the scope of collective-bargaining
units would be to neglect its function in delineat-
ing appropriate units under Section 9, and to
ignore the fundamental purpose of the Act of
fostering and maintaining stability in bargaining
relationships.
The Intervenor has been the bargaining representa-
tive for the employees in question for many years. It
has continued to represent those employees for ap-
proximately 3 years since the conversion of the
building to an apartment house. Indeed, it participated
in the recent contract negotiations for about 6 months
before announcing its disclaimer at a time when
agreement had been reached on virtually all issues.
The incumbent is not defunct, and its history clearly
demonstrates its ability to administer a contract on
144
ESTATE OF BELLA MOSES
behalf of these employees. In these circumstances, to
give effect to the disclaimer would in essence allow the
Intervenor to withdraw untimely from the multiem-
ployer bargaining unit, a result which we decline to
sanction.
We are mindful of the distinction, urged by the
Intervenor, between a union's withdrawing from a
multiemployer bargaining relationship while remain-
ing the bargaining representative of each individual
employer's employees, and a union's disclaiming
interest in representing those employees. The former
action raises the possibility of a "whipsawing" strategy
by the union. Whipsawing, however, is not the only
peril to be avoided. As the basic rationale of Retail
Associates makes clear, it is the need for stability in
multiemployer bargaining relationships which is of
concern to the Board.' That concern is not diminished
here merely because the attempted disclaimer would
remove the Intervenor from further bargaining with
this Employer.' The multiemployer association recent-
: The Board has recently made clear its continuing adherence to that
rationale; see Charles D. Bonanno Linen Service. Inc., 243 NLRB 1093 (1979).
The Board has recently considered the propriety of disclaimers in other
factual settings. See East Manufacturing Corporation. 242 NLRB 5 (1979);
and American Sunroof Corporation-West Coast. Inc.. d/b/a American Sun-
roof/Customcraft. Inc. 243 NLRB 1128 (1979).
After the close of the hearing the Employer requested that the record be
ly engaged in extensive negotiations with the Interve-
nor, and had reason to believe those negotiations
would reach fruition and the existing bargaining
relationship would endure. If the disclaimer were
allowed, the Intervenor would be reshaping the
composition of the bargaining unit at a time when it
otherwise could not do so. We view such action as
disruptive of a stable bargaining relationship and
therefore unwarranted at this time. Accordingly, we
find the Intervenor's disclaimer untimely and there-
fore ineffective. The Regional Director's Decision and
Direction of Election is hereby vacated and we shall
order that the petition be dismissed,' as no question
concerning representation can be raised at this time.
ORDER
It is hereby ordered that the petition be, and it
hereby is, dismissed.
reopened to allow it to submit canceled checks as evidence in support of its
contention that the Intervenor was acting inconsistently with its disclaimer.
The Board granted this request. The Intervenor subsequently requested that
the hearing be reopened to allow it to present evidence on this issue. Inasmuch
as the Board does not rely on any alleged inconsistent action by the Intervenor
in deciding the case, the Intervenor's request is hereby denied.
145