Local 32B-32J, Service Employees

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 430 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 32B-32J, Service Employees International
Union, AFL-CIO and Allied Maintenance Cor-
poration. Case 2-CB-7915
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On October 20, 1980, Administrative Law Judge
Steven B. Fish issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a statement and brief in support of the Ad-
ministrative Law Judge's Decision and recom-
mended Order.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, as modified herein,2 and to adopt his recom-
mended Order.3
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
I The Administrative Law Judge found that Respondent violated Sec.
8(bX3) of the Act by insisting that the employees of Allied Maintenance
Corporation employed at the Dalton School are covered by the terms
and conditions of employment set forth in the 1978-81 Service Employ-
ers Association (SEA) agreement, and by its consequent refusal to bar-
gain further with Allied with respect to the terms and conditions of em-
ployment of said employees. We agree with this finding. In doing so,
however, we rely solely on his conclusion, and the reasons therefor, that
Respondent consented to bargain with Allied in a separate unit confined
to its Dalton employees. Thus, the Administrative Law Judge found,
inter alia, that Respondent bargained separately with Allied concerning
the Dalton employees; that it was not until 4 months after such bargain-
ing began that Respondent informed Allied that it considered Allied
bound to the SEA agreement, by which time that agreement already had
been in effect over I year, and Respondent had struck Allied in further-
ance of the separate bargaining demands concerning the Dalton employ-
ees, had reached an interim agreement covering said employees, and
Allied had instituted changes in conditions of employment pursuant to
that interim agreement. In these circumstances, we agree with the Ad-
ministrative Law Judge that Respondent's conduct in subsequently refus-
ing to bargain with Allied for a separate unit of the latter's Dalton em-
ployees was unlawful. In light of these findings, we find it unnecessary to
pass upon the Administrative Law Judge's alternative conclusion that the
SEA agreement was not applicable to Allied's Dalton employees, as a
basis for finding that Respondent violated the Act as alleged in the com-
plaint.
I We adopt the Administrative Law Judge's recommended Order re-
quiring Respondent to withdraw its arbitration demand seeking to include
the Dalton school in the unit covered by the SEA contract. Unlike our
dissenting colleague, we believe it would be futile to pursue an arbitra-
tion proceeding dealing with that issue when the Board has already de-
cided that the Dalton School is not included in the bargaining unit cov-
ered by the SEA contract.
258 NLRB No. 59
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Local 32B-32J,
Service Employees International Union, AFL-
CIO, New York, New York, its officers, agents,
and representatives, shall take the action set forth
in the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
MEMBER FANNING, dissenting in part:
I would not adopt that portion of the remedy or-
dering Respondent to cease and desist from pursu-
ing arbitration over the coverage of the SEA
agreement. It was neither alleged nor found that
Respondent's institution of and pursuit of arbitra-
tion constituted a violation of Section 8(b)(3). Fur-
ther, the decision herein is based solely on the find-
ing that Respondent consented to separate bargain-
ing for the Dalton School unit. Thus, there is no
reason to preclude Respondent from using the arbi-
tral forum to resolve the issue concerning the cov-
erage of the SEA agreement.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to bargain, upon re-
quest, with Allied Maintenance Corporation,
herein called Allied, with respect to the terms
and conditions of employment of Allied's em-
ployees in the following appropriate unit:
All full-time and regular part-time service
and maintenance employees employed at the
Dalton Schools, at 108 East 89th Street, 161
East 91st Street, and 215 East 94th Street,
New York, New York, including porters,
cleaners, and handymen, excluding guards
and supervisors as defined in the Act.
WE WILL NOT insist or demand that Allied
apply the terms and conditions of employment
set forth in the 1978-81 Service Employers
Association agreements, herein called the SEA
430
LOCAL 32B-32J, SERVICE EMPLOYEES
agreement, to its employees in the above-de-
scribed unit, and seek to enforce such insist-
ence or demands by instituting or proceeding
with the grievance and arbitration procedure
of the SEA agreement.
WE WILL bargain, upon request, with Allied
concerning the terms and conditions of em-
ployment of its employees in the above-de-
scribed unit, and, if an understanding is
reached, embody such understanding in a
signed agreement.
WE WILL withdraw our grievance and arbi-
tration demand filed, which seeks to compel
Allied to apply the terms and conditions of
employment of the SEA agreement to its em-
ployees in the above-described unit.
LOCAL 32B-32J, SERVICE EMPLOY-
EES INTERNATIONAL UNION, AFL-
CIO
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge: Pursuant
to a charge filed by Allied Maintenance Corporation,
herein called Allied or the Charging Party, the Regional
Director for Region 2, on October 9, 1979, issued a com-
plaint and notice of hearing, alleging that Local 32B-32J,
Service Employees International Union, AFL-CIO,
herein called Respondent, violated Section 8(b)(3) of the
National Labor Relations Act, as amended, herein called
the Act. On October 12, 1979, a corrected complaint and
notice of hearing was issued. Pursuant thereto, a hearing
was held before me in New York, New York, on March
3, 1980. Briefs have been received from all parties and
have been duly considered.
Upon the entire record, including my observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Allied, a New York corporation, with its principal
office located at Two Penn Plaza, New York, New
York, is engaged in providing maintenance and custodial
services to various commerical customers.
Annually, Allied performs services valued in excess of
$50,000 in States other than the State of New York. Re-
spondent admits and I find that Allied is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Respondent also admits, and I find, that it is a labor
organization within the meaning of Section 2(5) of the
Act.
II. THE FACTS
Since on or about 1954, Allied has contracted with
and provided cleaning and maintenance services for the
Dalton school, herein called Dalton. From 1954 until
November 1, 1978, Allied had been party to various col-
lective-bargaining agreements with Local 32B and Local
32J covering various employees of Allied working at the
Dalton school. The last of these agreements were both
effective from November 1, 1975, to November 1, 1978.
Since around 1956, the Service Employees Associ-
ation, herein called the SEA or the Association, and its
predecessor, the Building Service League, herein called
the BSL, were parties to collective-bargaining agree-
ments with Local 32J covering certain employees of the
SEA employer-members including certain employees of
Allied. Allied employees covered by these agreements
did not include Allied employees working at Dalton.
In October 1977, Local 32B and Local 32J merged
and formed Respondent. Thereafter Respondent and the
SEA entered into negotiations for a collective-bargaining
agreement to replace the old contract among the Associ-
ation, BSL, and Local 32J. On January 25, 1978, Re-
spondent and the Association entered into a collective-
bargaining agreement effective from January 25, 1978,
until February 28, 1981.
Although Allied has been a member of the BSL and
the SEA for many years, it has always bargained sepa-
rately with Respondent covering units of its service and
maintenance employees' employed at New York Univer-
sity, Lord and Taylor Department Store, and United
Airlines as well as at Dalton. Historically, employees of
the Association members employed at schools and educa-
tional facilities have not been covered by the Association
contracts.
The prior Association contract reads as follows with
respect to its coverage:
Employees of the Employer employed at hospitals
and schools (other than private schools) and after
May 1, 1965 those employed at charitable, educa-
tional and religious institutions are not covered
under this Agreement. This, however, does not pre-
clude the Union from entering into an individual
agreement with an employer covering such jobs.
The Fair Treatment Clause, Article V of this
Agreement, shall not be applicable to such jobs.
On October 4, 1978, Respondent, by letter, advised
Allied that their contract was expiring on November 1,
and that it desired to negotiate with Allied for a new
agreement, covering its Dalton employees.
Pursuant thereto negotiations commenced on October
17, 1978, and dealt with various terms and conditions of
employment of Allied's Dalton employees. No repre-
sentative of the SEA was present at any negotiations be-
tween Allied and Respondent concerning Dalton em-
ployees. The negotiations continued into November and
on November 16, 1978, Respondent commenced a strike
against Allied in support of its bargaining demands on
behalf of Allied's employees employed at Dalton.
The strike continued until November 17, when the
parties entered into an interim agreement concerning
wages, holidays, vacation, sick leave, pension, and wel-
' Allied employees covered by the Association's contracts are essential-
ly service and maintenance employees in commercial buildings.
431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fare for Allied's Dalton employees. The parties were,
however, unable to agree on other issues pertaining to
working conditions at Dalton, such as reduction in force
clause and overtime pay and these matters were left to
subsequent negotiations.'
Negotiations continued between the parties over the
terms of the separate agreement for Dalton employees
from November 1978 through February 1979. During
these negotiations Respondent's negotiators, Gus Bevona
and Vernon Sampson, maintained that it wanted in its in-
dividual agreement with Allied concerning Dalton em-
ployees the same language as appears in the SEA agree-
ment on reduction in force.3
Allied refused to accept this clause in its contract, and
insisted on maintaining the clause which appears in its
prior contract, which does not require such consent of
the Union before implementing such actions.
On January 26, 1979, an arbitration award was issued
involving Respondent and an employer, MacClean Serv-
ice Co., Inc., herein called MacClean. The award holds
that the SEA agreement is applicable to MacClean's em-
ployees employed at St. John's University. It is noted
however that neither Allied nor the SEA was a party to
this arbitration, and MacClean was not a member of the
SEA at that time. 4
Prior to the arbitration, MacClean had agreed in con-
nection with a state court proceeding that it was bound
to the SEA agreement.
Shortly after this arbitration award issued, sometime in
February, Respondent by its negotiators, particularly
Bevona, for the first time took the position that Allied
employees at Dalton were now part of the multiem-
ployer unit and that the entire SEA agreement was ap-
plicable to Allied's Dalton employees.
Bevona informed Allied's vice president, McIntyre,
that the MacClean arbitration award upheld Respond-
ent's position that Allied's Dalton employees are covered
by the SEA agreement, and that "the SEA contract had
to apply," "that's the way it's going to be." McIntyre
made two requests to Bevona in February to continue
negotiating over Dalton employees, but Bevona refused
to do so, and continued to insist that there was no sense
in bargaining since the SEA agreement prevails. At one
point Bevona told McIntyre that the Union might strike
again if Allied refused to live up to the SEA agreement
with respect to Dalton employees.
Negotiations then apparently broke off, and Allied
continued to apply the terms of the expired contract and
instituted the changes agreed to in the interim agreement
with respect to wages and other benefits for its Dalton
employees.
On July 13, 1979, Respondent issued a "Notice of In-
tention to Arbitrate" seeking an award compelling the
application of the SEA agreement to Allied's Dalton em-
ployees. On July 25, Allied brought an action in the
I The interim agreement states that "other problems shall be discussed
later, which shall include Elevator Operation, signatory questions and
contract language modification."
I This clause requires an employer to obtain the written consent of the
Union before implementing a decrease in the number of employees or in
the hourly work schedule.
' MacClean resigned from the SEA in September 1977.
United States District Court for the Southern District of
New York, seeking to enjoin the arbitration. On January
31, 1980, that court issued an order staying the arbitra-
tion, pending a determination of this matter by the Na-
tional Labor Relations Board.
Respondent bases its conduct and position on the fol-
lowing two clauses, which appear in the new SEA
agreement:
The language in Article , Section 2, in the current
SEA agreement is as follows:
The wages of employees employed in hospitals,
schools, charitable, educational and religious in-
stitutions are not included in this Agreement.
However, the Union and the Employer will enter
into individual agreements covering such jobs.
The fair treatment clause-Article IV of this
Agreement-shall not be applicable to such jobs.
Respondent also points to paragraph 2, general clauses,
section 50, which provides:
If there are outstanding agreements between the
Union and contractors that have not terminated,
they shall not be extended or renewed. The parties
thereto shall become parties to the Association
Agreement or an independent agreement drawn in
accordance with the provisions of this Agreement.
Should such outstanding agreements be limited in
their application to a specific building or buildings,
the Union shall obtain contracts covering all other
employees of the contractor within its jurisdiction
in accordance with the terms of this Section. 5
Although as noted the second clause relied on by Re-
spondent appears unchanged from prior contracts, the
first clause mentioned (art. I, sec. 2) is significantly dif-
ferent than the clause which appeared in the preceding
contracts between Respondent and the Association.
Most significantly, the current contract provides that
"the wages of employees employed in hospitals, schools,
educational and religious institutions are not included in
this Agreement," while the prior contracts specified that
"Employees" of employers at these institutions are not so
included. The only real factual dispute in the instant pro-
ceeding centers on how this contract clause came to be
changed in this fashion, and more particularly whether
this change was negotiated between the parties at the
collective-bargaining negotiations between the SEA and
Respondent.
In this connection, McIntyre, as well as Joseph Feir-
ing, Allied's executive vice president, who between them
were present at all negotiation sessions, insisted that no
negotiations were ever conducted with respect to such
changes in this clause, nor did Allied or the SEA ever
agree to such changes.
Henry Mayer, the chief negotiator for the SEA and its
attorney, corroborated McIntyre and Feiring that no
such changes were negotiated or agreed to by the SEA.
s This clause is identical to art. 53, sec. 3, of the prior contracts be.
tween Respondent and the Association.
432
LOCAL 32B-32J, SERVICE EMPLOYEES
Mayer admitted that he did inspect the proofs of the
agreement submitted to him by Respondent, prior to the
execution of the contract, and did note some changes,
but testified that he did not notice these changes in this
clause. On the third proof submitted by Respondent,
which contained all the changes in the clause, Mayer did
write next to the clause, the word "new." Mayer testified
that this was in reference to a rather insignificant change
in the clause, that he did notice regarding the negotiation
of individual agreements. The prior clause stated that
this does not preclude the Union from entering into an
individual agreement covering such jobs, while the new
agreement states the Union and the Employer shall enter
into individual agreements covering such jobs (referring
to the institutions excluded from coverage in whole or in
part by the agreement).
Mayer testified further that he first became aware of
such a change in the contract in August 1979, but that he
made no effort to communicate to Respondent, that this
had not been agreed upon, since the matter had already
been made a subject of controversy between Allied and
Respondent concerning Dalton school.6
Respondent's sole witness in this proceeding was
Kevin McCulloch, Respondent's assistant to the presi-
dent. He testified that he was present at the negotiations,
and that there were discussions about the disputed
changes in this clause, and that the Association agreed to
these changes. However, he based his testimony primar-
ily on his notes which set forth these changes, and yet he
admitted that these notes were made prior to the negotia-
tion sessions. McCulloch could not recall the dates of
any sessions, when the discussions over these changes
occurred, what the nature of these discussions were, ?
what the responses if any of any of the Association's or
Allied officials were to these proposals, or who, on
behalf of the Association or when, agreed to these
changes. In fact McCulloch admitted when pressed that
he "cannot recall anybody saying we agree to this
clause."
McCulloch also was asked about Respondent's individ-
ual negotiations with Allied over employees at New
York University.8
When asked about this apparently inconsistent position
taken by Respondent, McCulloch replied that it could
have compelled Allied's N.Y.U. employees to come
under the overall agreement but chose not to do so,
since the benefits are better under the N.Y.U. agreement.
He testified further that, "by mutual agreement," the in-
dividual contract can be and was negotiated with Allied
concerning its N.Y.U. employees.
' In addition Mayer testified that he had instructed an associate in his
office named Douglas to communicate the Association's position to Re-
spondent's attorney. Mayer did not ask Douglas if he ever spoke to Re-
spondent's attorney on this subject, and insofar as this record discloses
Douglas, who shortly thereafter left the employ of Mayer. did not do so.
7 McCulloch testified that Union President Sweeney did all of the ne-
gotiating for Respondent on this subject. Sweeney did not testify nor did
other Union Officials Bevona, Mumm, or Baumann who were present
during the negotiations.
' The evidence established that, although employees at N.Y.U. were
also allegedly subject to the same SEA agreement, Respondent negotiat-
ed with Allied from June 1978 to January 1979, over various subjects in
addition to wages, and entered into an individual contract with Allied
with respect to its N.Y.U. employees, on January 25. 1979.
With respect to Respondent having negotiated with
Allied concerning its Dalton employees for 4 months
while the SEA agreement allegedly covered those em-
ployees, McCulloch's explanation was that Bevona who
conducted these negotiations was unaware of the fact
that Allied's Dalton employees were now under the As-
sociation agreement. McCulloch claims that in Novem-
ber he instructed Bevona to confine his subsequent nego-
tiations to wages. As noted however, Bevona continued
to negotiate with Allied over many subjects other than
wages, concerning its Dalton employees until February
1979. 9
Based on the above-cited evidence of record, I con-
clude that the changes in article 1, section 2, were nei-
ther negotiated nor agreed to by the parties at the nego-
tiations. I credit the mutually corroborative and consist-
ent testimony of McIntyre, Feiring, and Mayer over the
confused, evasive, and uncertain testimony of McCulloch
on this subject. In addition, I rely on the failure of Re-
spondent to call Sweeney who allegedly negotiated the
changes or Bevona who negotiated with Allied and was
present at the SEA negotiations and other union officials
who were present at these negotiations. "Where relevant
evidence which would properly be part of a case is
within the control of a party, whose interest it would
naturally be to produce it, and he fails to do so, without
satisfactory explanation, the trier of fact may draw an in-
ference that such evidence would have been unfavorable
to him." 0
Accordingly, I conclude that the failure of Respondent
to produce these witnesses, particularly Sweeney and
Bevona, "irresistably"" calls for the application of this
rule, and permits me to draw the inference which I do,
that their testimony would be unfavorable to Respond-
ent's position that agreement was reached during negoti-
ations over these changes. 12
Respondent argues that the parol evidence rule pre-
cludes consideration of any evidence which would vary
or contradict the terms of the contract signed by the par-
ties. However, the Board has held that the "parol evi-
dence rule does not operate to exclude testimony offered
to establish that in fact no agreement was reached in the
first place." 13
In the instant case, the conduct of Respondent of bar-
gaining to agreement with Allied with respect to its
N.Y.U. employees, and bargaining with Allied over its
Dalton employees, all for many months after the agree-
ment was executed allegedly binding Allied to the SEA
agreement with respect to these employees, confirms the
existence of a mutual mistake. I find the changes in issue
to be so palpably at odds with the previous agreement
that Respondent was put on notice of such an error by
Allied and or the SEA. Thus it is clear that there was no
9 Bevona, a vice president of Respondent and an admitted agent, was
not called to testify to explain his conduct and or to corroborate McCul-
loch's alleged instructions to him.
'° Martin Luther King Sr.. Nursing Center, 231 NLRB 15 (1977).
" Gulf Wandes Corporation, 233 NLRB 772 (1977).
2 Pyro Mining Company Inc., 233 NLRB 233 (1977); Fred Stark and
Jamaica 201 Sr. Corp.. Inc.. 213 NLRB 209 (1974); Gulf Wandes. supra:
Martin Luther King, supra.
3 Apache Powder Company, 223 NLRB 191 (1976).
433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting of the minds on this provision or phrased an-
other way no mutual assent by the parties on this sub-
ject. 4
III. ANALYSIS
It is well settled that the integrity of a bargaining unit,
whether established by certification or by voluntary rec-
ognition, cannot be unilaterally attacked. In the absence
of an agreement, neither party may attempt to force
upon the other an enlargement, or alteration, or merger
of an existing established bargaining unit. 5
In the instant case, there is no question that the estab-
lished appropriate unit is a unit confined to Allied em-
ployees employed at Dalton school.'6
The issue to be determined is whether as Respondent
contends, that by virtue of the Association (of which
Allied is a member) having executed the 1978 SEA
agreement, the parties have voluntarily agreed to change
the existing unit to include Allied's Dalton employees in
the overall multiemployer unit.
In such circumstances, knowing and express consent to
a change in the unit is required. " The Board will not
infer the existence of an agreement to change an existing
unit, in the absence of unmistakeable evidence that the
parties agreed to extinguish the previously recognized
separate unit. t8
Since I have found above that neither the Association
nor Allied agreed during negotiations to the unit changes
set forth in the SEA agreement, Respondent has fallen
far short of its burden of establishing such knowing and
express consent by unmistakeable evidence that the par-
ties agreed to a change in the existing unit. Accordingly,
I find that Respondent by refusing to continue bargain-
ing upon request with Allied with respect to the terms
and conditions of employment of its employees employed
at Dalton, and by insisting that the terms of the Associ-
ation agreement applies to Allied's Dalton employees has
violated Section 8(b)(3) of the Act. '9
4 Id.; see also Printing Industries of Vorthern California, 204 NLRB 329
(1973).
I' Local Union No. 323, International Brotherhood of Electrical Workers
(Active Enterprises Inc.), 242 NLRB 305 (1979); International Brotherhood
of Electrical Workers Local 1049. AFL-CIO (Lewis Tree Services, Inc.), 244
NLRB 124 (1979); International Union of Operating Engineers. Locals 542,
542-A. 542-B (York County Bridge Inc.), 216 NLRB 408 (1975); Utility
Workers Union of America, AFL-CIO, and its Locals Nos. ll. 116, 138,
159. 264, 361, 426, 468, 478, and 492 (Ohio Power Company), 203 NLRB
230 (1973); Shell Oil Company, and its divisions Shell Chemical Company
and Shell Development Company, 194 NLRB 988 (1972); George M. Hart
d/b/a San Diego Cabinets, 183 NLRB 1014 (1970).
16 Evidence was presented at the hearing by the General Counsel
which establishes that Allied's employees at Dalton do share a sufficient
community of interest to justify a finding of an appropriate unit confined
to these employees. Respondent does not contest this finding but merely
contends that by virtue of the 1978 SEA agreement the parties have vol-
untarily agreed to a different appropriate unit.
"San Diego Cabinets, supra.
" Ohio Power, supra,' Remington Office Machines. Minneapolis Branch.
Division of Sperry Rand Corporation, 158 NLRB 994 (1966). See also Etna
Equipment and Supply Co., 236 NLRB 1578 (1978).
IO Active Enterprises, supra; York County, supra: Ohio Power, supra; Inter-
national Brotherhood of Electrical Wobrkers AFL-CIO, and Local 59, Inter-
national Brotherhood of Electrical Workers. AFL-CIO (Texlite Inc.). 119
NLRB 1792 (1958).
Respondent seeks to defend its actions primarily in re-
liance on its contention that the parol evidence rule pre-
vents examination of evidence which varies or contra-
dicts the terms of the contract executed by the SEA. 20
As noted above, I have rejected Respondent's assertion,
and have examined evidence outside the contract's terms,
and determined that in fact no such agreement was
reached on the disputed changes in the unit.2
However, even if I were to agree with Respondent's
argument with respect to the parol evidence rule, and
find that Allied through the SEA was bound to the
entire Association contract including the change in unit,
I would still conclude that Respondent has violated Sec-
tion 8(b)(3) of the Act, in the circumstances herein.
Respondent by agreeing to and meeting separately
with Allied and bargaining about terms and conditions of
employment in addition to wages of Allied's Dalton em-
ployees22 engaged in conduct evincing a willingness to
deal with Allied outside the multiemployer context. Re-
spondent did not inform Allied that it considered Allied
bound to the SEA agreement until 4 months after negoti-
ations began, after a strike, after an interim agreement
was reached, and after Respondent instituted certain
changes in conditions of employment pursuant to the in-
terim agreement reached during these separate negotia-
tions. In these circumstances Respondent has consented
to bargaining with Allied in a separate unit confined to
its Dalton employees. 23
Thus, even if the SEA agreement were found to have
been applicable to Allied's Dalton employees, Respond-
ent's conduct of insisting that Allied abide by the Associ-
ation agreement would still be violative of Section
8(b)(3) of the Act. 24
Respondent's explanation for engaging in the individu-
al bargaining with Allied, as testified to by its only wit-
ness McCulloch is quite revealing. McCulloch argues
quite correctly that the parties may mutually agree not
to be bound to the Association contract. Therefore
McCulloch contends that Respondent's individual bar-
gaining and reaching a contract with Allied with respect
to the N.Y.U. employees constituted no more than a
mutual agreement by the parties to ignore the terms of
the SEA agreement and bargain individually.
When asked about Allied's Dalton employees, his
rather feeble explanation for continuing bargaining with
them was that Bevona, Respondent's negotiator, was not
aware of the SEA agreement coverage of Allied's
"' Respondent's reliance on art. 50 of the contract is totally unwarrant-
ed. This clause which on its face prohibits the entering into of individual
contracts was included in prior contracts as well, and yet Allied and Re-
spondent continued to enter into individual contracts. Thus, this clause
was and is clearly subject to art. I and was meant to apply to other indi-
vidual agreements not permitted by the latter section.
2 Apache Powder, supra.
Z2 I note also that Respondent bargained with Allied with respect to its
N.Y.U. employees and executed a separate agreement with them cover-
ing these employees well after the Association contract became effective.
allegedly binding Allied's N.Y.U. employees to all terms other than
wages to the SEA agreement.
"2 Hotel and Restaurant Employees Local 2, AFL-CIO. Hotel and Res-
taurant Employees and Bartenders International Union, AFL-CIO (Zim s
Restaurant Inc.), 240 NLRB 751 (1979).
" Zim v, supra.
434
LOCAL 32B-32J, SERVICE EMPLOYEES
Dalton employees, and that he in November instructed
Bevona to discontinue bargaining with Allied on all mat-
ters other than wages with respect to its Dalton employ-
ees. Yet, notwithstanding these alleged instructions,
Bevona continued to bargain with Allied over its Dalton
employees on items other than wages until February
1979.25
It is therefore obvious that Respondent's position
herein is akin to "having its cake and eating it." Re-
spondent is willing to give up its right to insist upon
binding Allied to the SEA agreement concerning
schools, and to bargain an individual agreement with
them on all items, but only if Respondent is successful in
obtaining better terms in its individual negotiations.
Thus, Respondent seeks to be permitted to bargain indi-
vidually with Allied over its Dalton employees, and, if
Respondent is satisfied with the results of the negotia-
tions, it will sign a contract. If Respondent is not satis-
fied with the concessions exacted from Allied during
bargaining concerning Dalton employees, then Respond-
ent believes that it is free to then insist on application of
the SEA agreement in toto. This Respondent cannot do,
and be consistent with its obligations under the Act to
bargain in good faith with Allied.
I therefore reaffirm my conclusion that Respondent by
its conduct in the instant case has violated Section
8(b)(3) of the Act.26
CONCLUSIONS OF LAW
1. Allied Maintenance Corporation is an employer
within the meaning of Section 2(2) of the Act and is en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The following employees of Allied constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time service and main-
tenance employees employed at the Dalton Schools,
at 108 East 89th Street, 161 East 91st Street, and
215 East 94th Street, New York, New York, includ-
ing porters, cleaners, and handymen, excluding
guards and supervisors as defined in the Act.
4. At all times material herein, Respondent has been
the exclusive collective-bargaining representative of the
I note in this connection again that Bevona was not called as a wit-
ness by Respondent, which permits me to draw an adverse inference.
which I do, that Bevona's testimony would be adverse to Respondent's
position, and would not corroborate McCulloch with respect to his al-
leged instructions given to Bevona.
26 Respondent's reliance on MacClean arbitration award to justify its
actions is misplaced and unwarranted. Neither Allied nor the Association
were parties to the arbitration nor did they agree to be bound by the re-
sults. Moreover MacClean had agreed by stipulation that it was bound by
the SEA agreement. In addition the record does not establish whether
any evidence was presented to or considered by the arbitrator of the bar-
gaining history of MacClean or whether the clause in dispute was in fact
agreed to during negotiations. Accordingly, the award furnishes no basis
or justification for Respondent's conduct
employees in said unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(3) of the Act by in-
sisting that the employees of Allied in the above unit are
covered by the terms and conditions of employment set
forth in the 1978-81 SEA agreement and are part of the
multiemployer unit set forth in said agreement, and by its
consequent refusal to bargain further with Allied with
respect to the terms and conditions of employment of
said employees.
6. The aforesaid violations are unfair labor practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(3) of
the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to ef-
fectuate the policies of the Act.
The General Counsel and the Charging Party request
an affirmative order that Respondent withdraw its arbi-
tration proceeding, seeking to compel Allied to adhere to
the SEA agreement with respect to its Dalton employ-
ees. In order to properly evaluate this requested remedy,
I deem it necessary to consider such an order in light of
the Board's decision in Clyde Taylor, d/b/a Clyde Taylor
Company, 127 NLRB 103 (1960). In Clyde Taylor the
Board reversing prior precedent found that it was not an
unfair labor practice for an employer to file a court suit
to enjoin lawful picketing. The Board held that it should
accommodate its enforcement of the Act to the right of
all persons to litigate their claims in court, rather than
condemn the exercise of such right as an unfair labor
practice. 27
Although Clyde Taylor has been subsequently applied
and cited in numerous cases,"2 it is not entirely clear
whether the Board applies these principles to the mere
filing for arbitration, as opposed to the filing of a court
suit. Smith Steel Workers (A. O. Smith Corporation)29
seems to suggest that there is a distinction in applying
Clyde Taylor between the filing for arbitration and the in-
stitution of a court suit, even where the court suit is
seeking to enforce the very same arbitration award. The
27 Since the complaint does not allege Respondent's filing for arbitra-
tion to be an unfair labor practice, I have not and do not make a finding
that this conduct is an independent unfair labor practice in violation of
the Act. However, as Respondent recognizes in its brief, its refusal to
bargain with Allied and its insistence on applying the terms of the Asso-
ciation contract to Allied's Dalton employees cannot be separated from
its action in seeking to enforce its contract. Respondent in fact cites Clyde
Taylor as well as Bergman v. N.L.R.B., 577 F.2d 100 (9th Cir. 1978),
enfg. 228 NLRB 32 (1977). in arguing that the Board should not interfere
with Respondent's rights to enforce its contract by arbitration. In these
circumstances. I therefore deem it appropriate to consider the implica-
tions of Clyde Taylor upon my fashioning an appropriate remedy for the
violations which I have found.
2" Airport Limousine Service Inc., 231 NLRB 932 (1977); Retail Clerks
Union Local 770 Chartered by Retail Clerks International .4ssociation.
.4AL-CIO (Ilughes Markets, Inc.. and Suba Prescription Pharmacy), 218
NLRB 680 (1975); United Aircraft Corporation (Pratt and Whitney Divi-
sion). 192 NLRB 382 (1971).
29 174 NLRB 235 (1969)
435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Administrative Law Judge in A. O. Smith found the
union to have violated Section 8(b)(3) of the Act by in-
sisting that an employer bargain in an inappropriate
unit.30 He further found that respondent violated Section
8(b)(3) by filing a grievance and demanding the issue be
taken to arbitration. The Administrative Law Judge did
not appear to have considered Clyde Taylor's implications
to this finding, but applied Clyde Taylor, in dismissing a
further allegation in the complaint that the union violat-
ed the Act by bringing suit to compel the employer to
arbitrate the issue. The Board in affirming the Adminis-
trative Law Judge's opinion finding a violation, in a 3-2
opinion, inserted a footnote which states, "In finding a
violation in this proceeding, we consider that the mainte-
nance of the Section 301 suit is further evidence of the
Respondent's adamant insistence upon recognition as bar-
gaining representative for an appropriate unit."
The dissenters pointed out that since the Administra-
tive Law Judge found and the majority seemingly con-
ceded that Respondent was privileged to invoke the aid
of a court, via a Section 301 suit to compel arbitration of
its breach of contract claim, it was no less privileged to
lay the required procedural predicate for such a proceed-
ing. Thus the dissent argued in effect based on Clyde
Taylor that no violation should be found with respect to
the demand for arbitration.
The Board followed A. O. Smith in Retail Clerks Local
588, AFL-CIO (Raley's),31 and found an 8(b)(3) violation
in a union's seeking arbitration to compel an enlargement
of the bargaining unit, and ordered the union to cease
and desist from pursuing this arbitration. However the
possible conflict with Clyde Taylor was apparently not
considered, as neither the Board nor the Administrative
Law Judge discussed this issue. See also Sperry Systems
Management Division, Sperry Rand Corporation v.
N.L.R.B., supra.
On the other hand, in Brewery Delivery Employees
Local Union 46, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Gui-
ness-Harp Corporation, Metrobeer Division), 236 NLRB
157 (1978), the Administrative Law Judge citing A. O.
Smith, Raley's, and Sperry Systems, supra, found that a
union violated Section 8(b)(3) of the Act, by furthering
its unlawful demands for inclusion of certain employees
in a bargaining unit, by proceeding to arbitration to
compel the application of its contract to an expanded
unit of employees. The Board reversed the Administra-
tive Law Judge on this finding, although it agreed with
the Administrative Law Judge's conclusion that respond-
ent violated Section 8(b)(3) by unilaterally attempting to
change the agreement by modifying the longstanding
unit. The Board although not citing Clyde Taylor ap-
peared to apply its rationale when it rejected the Admin-
istrative Law Judge's holding that the Union committed
violations by using contractual grievance and arbitration
provisions to further its bargaining demands, although
these demands were later found to be violative of the
Act. The Board reasoned, "in our opinion, to so hold
30 The Board had previously found in a prior UC proceeding that the
employees involved did not belong in respondent union's unit.
3 224 Nl.RB 1638 (1976).
would constitute an unwarranted impairment of the par-
ties procedural rights."
The Board in Guiness-Harp made no effort to distin-
guish or reconcile its decision with the cases cited by the
Administrative Law Judge. Although the issue seems to
be uncertain, my own view is that Clyde Taylor and its
rationale can and should apply to the filing of arbitration
as well as to court suits filed to enforce or compel the
very same arbitration. It would be anomalous indeed to
premise such an important policy consideration upon
what procedural step the arbitration proceeding was in,
at the time the case is decided by the Board. Thus the
principles of accommodating the parties rights to pursue
other remedies to the Board processes seem equally ap-
plicable to arbitrations as well as to court suits to compel
arbitration or to enforce an arbitration award already
rendered.
It, therefore, in my judgment becomes necessary to ex-
amine the exceptions to Clyde Taylor, which the Board
has formulated, in order to determine whether it would
be appropriate to order Respondent to withdraw its arbi-
tration demand as requested by the General Counsel and
the Charging Party. In Power Systems Inc., supra, 239
NLRB 445 (1978), enforcement denied 101 LRRM 2978
(7th Cir. 1979), the Board reviewed a number of deci-
sions in which exceptions were found to Clyde Taylor,32
and concluded that the principles therein would not
apply where Respondent "had no reasonable basis" for
the institution of its suit, and that the suit had as its pur-
pose the pursuing of an "unlawful objective."
In applying the principles of Power Systems to the facts
at hand, I conclude that Respondent had no reasonable
basis for the institution of its arbitration proceeding and
that therefore its action had as its purpose the pursuing
of an unlawful objective, i.e., the compelling of Allied to
apply the Association contract to employees who are not
included in the Association unit. Respondent could not
have had a reasonable basis for filing for arbitration,
since as I have found the Association and Allied had not
agreed during negotiations to change the bargaining unit.
Thus, Respondent, aware that no such agreement had
been reached and after compounding and reinforcing
thus conclusion by bargaining individually with Allied
over its Dalton employees for 4 months, cannot be said
to have had a reasonable basis for refusing to continue
bargaining with Allied, and filing its arbitration demand
to compel Allied to apply the Association contract to its
Dalton employees. Accordingly, I find that Clyde Taylor
and its progeny do not preclude the ordering of Re-
spondent to cease and desist from pursuing its arbitration
proceeding. I note also in this connection Active Enter-
prises, supra, a case whose facts very closely parallel the
facts herein, and where as noted above the Board found
an 8(b)(3) violation by a union insisting on the merger of
separate units. The Board therein also found that re-
spondent union, by seeking to enforce its demands that
a3 United Stanford Employees Local 680. Service Employees International
Union. AFL-CIO (The Leland Stanford Junior University). 232 NLRB 326
(1977); Television Wisconsin Inc.. et al., 224 NLRB 772 (1976); Internation-
al Organization of Masters Mates and Pilots AFL-CIO (Cove Tankers Cor-
poralion), 224 NLRB 1626 (1976), affd. 575 F.2d 896 (D.C. Cir. 1978).
436
LOCAL 32B-32J, SERVICE EMPLOYEES
the units be merged by instituting its grievance proce-
dure, also violated Section 8(b)(3), and ordered respond-
ent to cease and desist from such conduct. The Board in
its decision did not refer to Clyde Taylor or its rationale,
and merely cited Raley's, supra, as authority for its find-
ing a violation by invoking the grievance and arbitration
machinery. In addition no finding was made as to wheth-
er respondent had a reasonable basis for proceeding to
arbitration. Whether these omissions were done inten-
tionally by the Board, or whether the issue of Clyde
Taylor was not raised by the parties or considered by the
Board is not clear from the decision. 33 In any event, I
find Active Enterprises to be additional support for my
conclusion that it is appropriate for me to enjoin the ar-
bitration proceeding instituted by Respondent.
I therefore shall recommend that Respondent cease
and desist from enforcing its demand that Allied's Dalton
employees be covered by the Association agreement, by
pursuing the arbitration proceeding that it has institut-
ed.3 I also deem that it will effectuate the purposes of
the Act to recommend that Respondent be ordered to
withdraw the arbitration proceeding that it has institut-
ed. 35
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding and
pursuant to Section 10(c) of the Act, I shall hereby issue
the following recommended:
ORDER 36
The Respondent, Local 32B-32J, Service Employees
International Union, AFL-CIO, New York, New York,
its officers, agents, and representatives, shall:
I. Cease and desist from:
(a) Refusing to bargain, upon request with Allied
Maintenance Corporation, herein called Allied, with re-
spect to the terms and conditions of employment of Al-
lied's employees in the following appropriate unit:
" I note in this regard that neither the Administrative Law Judge's de-
cision nor the dissent address themselves to this issue.
3' Active Enterprises supra; Power Systems, supra: Local 455. Internation-
al Union of Electrical. Radio and Machine Workers Union. AFL-CIO
(Sperry Systems Management Division. Sperry Rand Corp.), 216 NLRB 173
(1975).
'" Power Systems supra; George A. Angle, 242 NLRB 744 (1979).
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
All full-time and regular part-time service and main-
tenance employees employed at the Dalton Schools,
at 108 East 89th Street, 161 East 91st Street, and
215 East 94th Street, New York, New York, includ-
ing porters, cleaners, and handymen, excluding
guards and supervisors as defined in the Act.
(b) Insisting or demanding that Allied apply the terms
and conditions of employment set forth in the 1978-81
SEA agreements, herein called the SEA agreement, to
its employees in the above-described unit, and seeking to
enforce such insistence or demands by instituting or pro-
ceeding with the grievance and arbitration procedure of
the SEA agreement.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Bargain, upon request, with Allied concerning the
terms and conditions of employment of its employees in
the above-described unit, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Withdraw its grievance and arbitration demand
filed which seeks to compel Allied to apply the terms
and conditions of employment of the SEA agreement to
its employees in the above-described unit.
(c) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix."37 Copies of
said notice, on forms provided by the Regional Director
for Region 2, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Sign and return to said Regional Director sufficient
copies of the attached notice marked "Appendix" for
posting by Allied Maintenance Corporation, if willing, in
conspicuous places, including all places where notices to
employees are customarily posted.
(e) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
7 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
437