MRA Associates, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD MRA Associates, Inc. and Allied International Union of Security Guards and Special Police. Case 2 CA 15650 September 28, 1979 DECISION AND ORDER BY MEMBERS PENEI.I.O, MURPHY AND TRUESDAII On July 19, 1979, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions, and the General Counsel filed a brief in support of the Administrative Law Judge. 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 brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that Respondent, MRA Associates, Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. I Respondent has excepted to certain factual findings made by the Admin- istrative Law Judge. These findings are based on uncontroverted testimony in the record herein. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NL.RB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. The Administrative Law Judge found that, in its answer, Respondent did not respond to the complaint's allegation concerning the Union's status as a labor organization under the Act. He thus further found that allegation to be deemed admitted under Sec. 102.20 of the Board's Rules and Regulations. Respondent excepts to these findings. Although, in fact, Respondent did deny this allegation in its answer to the complaint, the issue was fully liti- gated at the hearing, and it is clear from the record that the Union is a labor organization within the meaning of Sec. 2(5) of the Act. 2 We agree with the Administrative Law Judge's conclusion that any affili- ation between the Union and APPLE had ended well before January 1978 and cannot be asserted in the instant case as a defense to Respondent's refusal to bargain. Accordingly, we find it unnecessary to pass upon the Administrative Law Judge's discussion of whether, if the affiliation existed at the time of the alleged unfair labor practices, Respondent could lawfully have refused to bargain based on that affiliation. DECISION S I A I MFNI O() I 1H CASE PLIIKR E. DNNI.l.Y, Administrative Law Judge: The charge herein was filed by the Allied International Union of Security Guards and Special Police, herein called the Charging Party or the Union. on May 22. 1978. A com- plaint thereon was issued on July 21, 1978 alleging that MRA Associates, Inc., herein called Respondent or the Employer violated Section 8(a)(5) and (1) of the Act by failing and refusing to meet and bargain with the Union and withdrawing recognition from the Union. An answer thereto was timely filed by Respondent. Pursuant to notice, a hearing was held before me on January 11 and 22. 1979. Briefs have been duly filed by Respondent and the General Counsel which had been duly considered. FINDINGS OF FA(T I. FIMPI.(OYER S BUSINISS The Employer is a New York corporation maintaining corporate headquarters in New York City where it is en- gaged in providing security guard and related services to commercial customers. During the course and conduct of these operations the Employer furnished and performed services valued in excess of $50.000 to its customers located outside the State of New York. The Employer is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Since the Employer. in its answer, did not respond to these jurisdictional allegations. they are deemed admit- ted under Section 102.20 of the Board's Rules and Regula- tions. 11. L.ABOR() OR(;ANIZAIION The complaint alleges that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. Since Respondent in its answer did not respond to this allegation, it is deemed admitted under Section 102.20 of the Board's Rules and Regulations. Ill. A lEl(I)D t INFAIR L.ABOR PRA(I I( S A. Faclv The Union has represented the guard employees of' the Employer since 1966 under a series of contracts. the most recent being a 3-year contract expiring on December 31, 1976.' Thereafter the contract was automatically extended by its terms for I year until December 31, 1977.2 Patrick Sottile was president of the Union from 1969 until about January 16. 1975, and was a party to this contract He became director of labor relations or Respondent n Januar 3 1977. 2 The unit description of the complaint as amended at the hearing to exclude regular part-time employees. While it appears that the contract de- scribes an all guard unit. including regular part-time employees, the histor) of bargaining between the parties discloses that prior negotiations had been limited to full-time guards. This practice was confirmed by letter agreement between Sottile as union president, and Michael Aulicino, president of Re- spondent on December 21, 1973. 245 NLRB No. 83 676 MRA ASSOCIATES. IN(C. On September 26, 1977, Michael Aulicino wrote to the Union notifying it of Respondent's intention to terminate the contract when it expired on December 31, 1977. By letter dated September 28, 1977, Daniel Cunningham, pres- ident of the Union, wrote to Aulicino requesting negotia- tions on a new contract. On November 29, 1977, a negotiating session was held at Respondent's offices, attended by Cunningham. Sottile. and two other representatives of Respondent. At this meeting Cunningham, on behalf of the Union, presented Sottile with a written union contract proposal. Sottile accepted it and told Cunningham that he would speak to Aulicino about it and that he was not prepared to submit a written employer proposal. He represented to Cunningham that he would have one drafted for the Union to review. Several days later Cunningham called Sottile to ask if the Employ- er's proposals were available and attempted to set up an- other meeting. By letter from Cunningham to Sottile dated December 2, 1977, another meeting was confirmed for De- cember 15, 1977. This meeting was again held at Respon- dent's offices. The same parties were in attendance as at the November 29, 1977, meeting. Cunningham began by ob- serving that he had received no employer contract propos- als. Sottile responded that he did not have them because he had not spoken to Aulicino. Sottile also remarked that Aulicino would consent to a contract if it was easier and if Sottile had a hand in dictating some of the terms, especially wages. Some days later Cunningham called Sottile again and inquired about the Employer's proposal. Again Sottile said that he had not spoken to Aulicino. Cunningham suggested another meeting. By letter of December 29, 1977, Cunning- ham wrote to Sottile observing that no written counterpro- posals had yet been submitted and asked for a written con- tract proposal covering both full- and part-time employees.' The next and final meeting was on January 9. 1978, at Respondent's offices. Only Cunningham and Sottile were in attendance. Sottile told him that they could have an agree- ment if Sottile were allowed to write it, and if Cunningham continued in the present fashion, he would never get a con- tract. They discussed the scope of the unit, as the inclusion of part-time employees. Sottile offered a 5-cent-per-hour raise for all employees, both full time and part time. Cun- ningham rejected this proposal. Sottile offered 10 cents an hour, limited to full-time employees, which Cunningham also rejected. According to Cunningham, Sottile proposed taking away some holidays from the recently expired con- tract. It was decided that Sottile would try again to talk to Aulicino and that Cunningham would contact Sottile again to set up another meeting. Thereafter Cunningham called Sottile several times in January and February of 1978. He accused him of stalling the negotiations and threatened him with unfair labor prac- tice charges if he did not meet. By letters dated January 23, February 13, and March 23, 1978, Cunningham wrote to Sottile attempting to arrange another negotiating session.' On March 30, 1978, Aulicino wrote to Cunningham as follows: Cunningham felt that part-time as well as full-time employees should he in the unit despite the bargaining history limited to full-timers. 4 Sottile denied receiving these two letters, but his receipt of these letters is not significant in my disposition of the allegations. Replying to your letter dated March 21, 1978 which requests certain information, you are advised that your Union is no longer the majoritx representative of our employees. accordingly there is no requirement that the requested information be furnished. Several days later Cunningham called Sottile and told him that, despite the letter, the Union still represented a major- ity of the employees, and he again requested bargaining. Sottile refused, and Cunningham told him that he intended to file unfair labor practice charges. Sottile remarked that a decision could take 1-2 years and that Cunningham should do what he had to do. On April 10. 1978, Cunningham again wrote to Sottile and thereafter made several tele- phone calls: however. Sottile maintained that there was no reason to meet since the Union no longer represented a majority of the employees. Sottile testified, concerning Respondent's good-faith doubt about the Union's majority status. that beginning in 1977 he had conversations with various guard employees who expressed their dissatisfaction with the Union to him and inquired about how they could disaffiliate from the Union. Sottile testified that he spoke "along these lines" to "just about the entire compan." Sottile also testified that sometime after September 1977 nonemployee pickets ap- peared at various of Respondent's jobsites and that, despite such picketing. Respondent's employees continued to work without interference. As to the matter of the Union's affiliation with a non- guard union, it appears that beginning in January 1977. for some 4 or 6 months until they withdrew on the advice of counsel. Cunningham and Herman Jaffe. secretary of the Union, helped to establish a labor organization called the Association of Public and Private Employees (APPLE).' Cunningham was president of APPLE. and Jaffe was a trustee. APPLE appears to have been singularly unsuccess- ful in its organizing efforts and never represented any em- ployees. at least while Cunningham and Jaffe were associ- ated with it. Both of these labor organizations had offices in the same building. but the!: did not share offices. B. Discussion and A nahll sis The record herein discloses that beginning in September 1977 the Union sought to negotiate a contract with Respon- dent and submitted written contract proposals. Despite the fact that three bargaining sessions were held over a 5-week period, Respondent never submitted any written proposal. At the last meeting, on January 9. 1978. while a wage pro- posal was made, Sottile also sought to eliminate some holi- days from the expiring contract. Thereafter, other unsuc- cessful attempts, by letter and telephone. as set out above. were made to induce Respondent to negotiate. In my opin- ion the entire record herein discloses a basic intransigence on the part of Respondent calculated to undermine the Union's efforts to negotiate a contract, all in derogation of Respondent's duty to bargain. The reason for Respondent's reluctance to negotiate manifested itself on March 30. 1978. ' The testimony on this issue taken at another unfair labor practice hear- ing involving the same unions (John Chiolis d'ba 'Worlduide Deiecive u- reau, 245 NLRB No. 113 (1979)) was Incorporated hb stipulation In the instant record. 677 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when Respondent notified the Union by letter that it no longer represented the majority of Respondent's employees. Sottile thereafter refused to negotiate on the grounds that the Union no longer represented a majority of Respon- dent's employees. Thus, it is clear that Respondent with- drew recognition from the Union based on an asserted lack of majority status and is presently refusing to bargain in good faith with the Union for that reason. However, lack of majority status is an affirmative de- fense, and the evidence adduced by Respondent at this hearing to support this contention is not persuasive. The law is clear that a union enjoys a presumption of majority status during the life of a contract and that this presumption does not expire with the contract. However, this presumption may be rebutted where an employer can show, by objective considerations, a basis for entertaining a good-faith doubt of majority status. However the evidence adduced by Respondent at this hearing-the general, un- specific testimony of Sottile, uncorroborated by any man- agement or employee witnesses, to the effect that most of the employees spoke to him about dissatisfaction with and disaffiliation from the Union during 1977-is patently inad- equate to support its defense. Nor does Sottile's testimony that nonemployee pickets at various job locations failed to disrupt Respondent's operation support its good-faith doubt of the Union's majority. In short, the evidence of- fered by Respondent falls short of being the sort of clear and convincing evidence required to show that the Union lost its majority status. Respondent also contends that the Board must establish that the bargaining unit is appropriate under customary Board criteria in order to require that Respondent bargain with the Union. In the instant case it is undisputed that despite language in the contract which appears to cover part-time employees, those employees have never been in- cluded in the contract unit and in fact were specifically excluded by letter agreement dated December 21, 1973, be- tween the Union and Respondent. Moreover, Respondent never contested the propriety of this unit. In these circum- stances I conclude that the unit described in the complaint, as amended, is appropriate. A substantial part of the hearing was devoted to the issue of whether or not Respondent was privileged to refuse to bargain with the Union on the ground that the Union. through certain of its officers, i.e., President Cunningham and Vice President Jaffe, was affiliated with a Union (AP- PLE) which admits to membership employees other than guards, in violation of Section 9(b)(3) of the Act. It is undis- puted that for some 5 months, beginning in January 1977, Cunningham and Jaffe were involved in the formation of APPLE, as president and trustee, respectively. While it ap- pears that APPLE would have admitted to membership employees other than guards, it is undisputed that, in fact, it never represented any employees at all. Further, it is clear that any affiliation between the Union and APPLE had ended well before January 1978 and accordingly cannot be asserted in the instant case as the defense to Respondent's refusal to bargain with the Union. Moreover, even if the affiliation existed at the time of the alleged refusal to bargain herein in January 1978 and there- after, I would not conclude that Section 9(b)(3) privileged Respondent to refuse to bargain with and to withdraw rec- ognition from the Union. The second part of Section 9(b)(3) reads, in pertinent part, ". .. but no labor organization shall be certified as the representative of the employees in a bar- gaining unit of guards if such organization admits to mem- bership, or is affiliated directly or indirectly with an organi- zation which admits to membership, employees other than guards." Obviously, this provision was enacted to prevent the Board from certifying a labor organization where that labor organization is affiliated with a labor organization which admits to membership employees other than guards. However, this legislation has never been interpreted to deny validity to bargaining units where the parties have volun- tarily agreed to representation in such units. William J. Burns International Detective Agency, Inc.. 134 NLRB 451, 453 (1961). To allow Respondent to avoid its bargaining obligation with the Union in this case simply because the Union is affiliated with APPLE, a nonguard union, would be an unduly mechanistic application of the law, particu- larly where, as here, APPLE does not represent any of the Respondent's employees. Congress was concerned when it enacted the second part of Section 9(b)(3) with the problem of divided loyalties within the guard unit toward an em- ployer on the one hand and their union on the other hand. The possible problems created by such conflicting loyalties do not exist here, particularly since the Union does not represent any other of Respondent's employees. See Amoco Oil Company. 221 NLRB 1104(1975). IV. THE EFFECT OF HE U'NFAIR ABOR PRAC(II ES PON (OMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section 1., above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. V. I HF REMEDY Having found that Respondent has engaged in unfair la- bor practices within the meaning of Section 8(a)(5) and ( 1 ) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It has been found that Respondent has unlawfully with- drawn recognition from the Union and failed and refused, despite valid demands, to bargain collectively with the Union as the exclusive representative of the employees in an appropriate bargaining unit. It will therefore be recom- mended that Respondent be required to recognize and. upon request, bargain with the Union as the exclusive rep- resentative of the employees in an appropriate bargaining unit. On the basis of the foregoing findings of fact, and upon the entire record in this case. I hereby make the following: CON(CLUSIONS OF LAW 1. MRA Associates, Inc., is, and at all times material herein has been, an employer within the meaning of Section 678 MRA ASSOCIATES, INC. 2(2) of the Act engaged in commerce and in a business effecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Allied International Union and Security Guards and Special Police is, and at all times material herein has been. a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein the following unit has been an appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All full time guards employed by Respondent within the United States and its possessions, excluding execu- tives, professional, confidential, clerical, and nonguard employees, and all supervisors as defined in Section 2(11 ) of the Act. 4. At all times material herein the Union has been and now is the exclusive representative of the employees in the above-described bargaining unit for the purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing since January 1978 to bargain with the Union with respect to wages, hours, and terms and conditions of employment, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By withdrawing recognition from the Union on or about March 30, 1978, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By virtue of the conduct aforesaid, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(aX)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(2), (6). and (7) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 6 The Respondent, MRA Associates. Inc., New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to recognize and bargain collec- tively with the Union as the exclusive bargaining represent- ative of all the employees in the appropriate bargaining unit, as described hereinabove, with regard to rates of pay. wages, hours of employment, and other terms and condi- tions of employment. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their I 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 b the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. rights to self-organization, to form labor organizations. to form or assist the Union or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other protected-concerted activity for the purpose of mutual aid or protection, or to refrain from any or all such activities as guaranteed in Section 7 of the Act. as amended. 2. Take the following affirmative action. which it is found will effectuate the policies of the Act: (a) Recognize and, upon request. bargain collectively with Allied International Union of Security Guards and Special Police as the exclusive representative of all emplo' - ees in the appropriate unit described above with regard to rates of pay. hours of employment. and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its principal place of business in New York. New York, copies of the attached notice marked "Appen- dix."' Copies of said notice, on forms provided by the Re- gional Director for Region 2. after being duly signed by a representative of Respondent, shall be posted by it immedi- ately upon receipt thereof, and be maintained by Respon- dent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall he taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notit;: the Regional Director for Region 2, in writing. within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. In the event that this Order is enforced b) a Judgment of a United States Court of Appeals. the words in the notice reading "Posted b Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILl NOT refuse to recognize and, upon request, bargain with the Allied International Union of Security Guards and Special Police as the exclusive representative of our employees in the appropriate unit described below. WE WIL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form a labor organization, to join or assist the Allied International Union of Security Guards and Special Police or any other labor organiza- tion, to bargain collectively with representatives of their own choosing, or to engage in other pro- tected concerted activity for the purposes of mu- tual aid or protection. or to refrain from any or 679 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all such activities, as guaranteed by Section 7 of the Act. WE WILI. recognize and, upon request, bargain collectively with the Allied International Union of Security Guards and Special Police, as the ex- clusive representative of all our employees in the appropriate unit described below, in regard to rates of pay, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such an un- derstanding in a signed agreement. The appro- priate unit is: All full time guards employed by Respondent within the United States and its possessions, excluding executives, professional, confiden- tial, clerical, and nonguard employees, and all supervisors as defined in Section 2(1 ) of the Act. MRA Asso'1A'IES, IN(. 680