T J MacDermott Corp.

738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crotona Service Corp, a subsidiary of T J MacDer- mott Corp and Local 377, United Service Employ- ees Union, R W D S U, AFL-CIO and Local 302, Cafeteria Employees Union, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO Case 29-CA-2428 December 5, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, ANT PENELLO On August 1, 1972, Administrative Law Judge' Thomas F Maher issued the attached Decision in this proceeding Thereafter, the Charging Party filed exceptions and a supporting brief 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 attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety r The title of Trial Examiner was changed to Administrative Law Judge effective August 19 1972 We correct the Administrative Law Judge s inadvertent reference to December 14 1971 in the second paragraph of the section entitled The Facts of his Decision as the date the Faculty Student Association of the College executed a contract with Respondent It is clear from the record that the correct date is December 17 1970 In addition the Administrative Law Judge s reference to Local 309 immediately before In I I is incorrect and is hereby changed to Local 302 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE against Crotona Service Corp, a subsidiary of T J MacDermott Corp, Respondent herein, alleging violations of Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act, as amended (29 U S C, Sec 151, et seq ), herein called the Act In its duly filed answer, Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice Pursuant to notice a trial was held before me in Brooklyn, New York, where all parties were present, represented, and provided full opportunity to call, exam- ine, and cross-examine witnesses, present oral argument, and to file briefs Briefs were filed by the parties on May 8, 1972 Upon the entire record herein, including the briefs filed by the parties, and particularly upon my observation of each witness appearing before me,' I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I THE BUSINESS OF THE RESPONDENT T J MacDermott Corp and Crotona Service Corp, Respondent herein, are New York corporations maintain- ing their principal office and place of business in New York, New York, and at various other places of business in the State of New York where they are engaged in providing food service management of cafeterias and related services During the past year MacDermott, in the course and conduct of its business operations, performed services valued in excess of $5,000,000 under contracts with various educational and business institutions, including among others, New York City Community College During the same period MacDermott, in the course and conduct of its business, purchased and caused to be transported and delivered to its various places of business within the State of New York, foodstuffs, supplies, and other goods and materials valued in excess of $50,000 of which foodstuffs, supplies, goods, and materials valued in excess of $50,000 were transported and delivered to its places of business in interstate commerce directly from States of the United States other than the State of New York Both corporations have at all times material herein been affiliated businesses with common officers, ownership, directors, and operators and constitute a single integrated business enterprise, with said directors and operators formulating and administering the common labor policy for the aforementioned compa- nies with respect to employees of said companies Upon the foregoing admitted facts, I conclude and find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act THOMAS F MAHER, Trial Examiner Upon a charge filed on June 15, 1971, by Local 377, United Service Employees Union, R W D S U, AFL-CIO, the Regional Director of Region 29 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on September 30, 1971, i Bishop and Malco Inc 159 NLRB 1159 II THE LABOR ORGANIZATIONS INVOLVED It is admitted and I accordingly conclude and find that Local 377, United Service Employees Union, R W D S U, AFL-CIO, and Local 302, Cafeteria Employees Union, Hotel and Restaurant Employees and Bartenders Interna- 200 NLRB No 97 CROTONA SERVICE CORP 739 tional Union, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A The Facts For some time prior to December 1970 cafeteria and related food services were provided at various locations of New York Community College, herein referred to as the College, by ABC Consolidated Corp , a subsidiary of Ogden Corporation, herein called Ogden, pursuant to contractual arrangements between the Faculty Student Association of the College and Ogden, which contract was the consequence of a successful bid for the job, in competition with other food service operators, including Respondent The specific facilities of the College served by the arrangement were a student cafeteria and a faculty dining room in Namm Hall at the Jay Street location of the College, a cafeteria-lounge and a faculty dining room at 250 Livingston Street, and vending machine facilities at Namm Hall, Livingston cafeteria-lounge area, Concord Hall, and the Pearl Street building of the College In August 1970 Ogden notified the college authorities of its decision to give up the operation pursuant to the cancellation clause of its agreement, effective at the end of the fall semester Accordingly, the college authorities initiated procedures to replace Ogden This it did by reactivating the bids that had been submitted in 1969 and notifying the top two bidders, one of which was Respon- dent, of its plan to replace Ogden with one of them, requesting that they submit updated information rather than go through the lengthy procedure of requiring new bids Based upon information supplied to the college authorities by the bidders, Respondent was selected to operate the food services, effective January 4, 1971 Ogden's contract was terminated as of December 23, 1970 Meanwhile on December 14, 1971, the Faculty Student Association of the College executed a contract with Respondent for the provision of food services at the facilities listed above Respondent forthwith dispatched a staff of supervisors and a food service consultant to the College to take inventory and oversee the rearrangements of the facilities preparatory to opening on January 4 Both before and after Respondent took over on December 14, inquiries were made of it concerning the staffing of its operations Thus Miss Ruth Stern, Director of the Faculty Association, inquired of Respondent's President T J MacDermott what would happen to Ogden's employees, and MacDermott replied that he had his own employees but that once the cafeteria was functioning, by the end of January, he would probably hire some of the former employees, and he asked that they be informed to file applications at the Respondent's office And he so informed Ogden's manager, asking him to tell the employees 2 MacDermott's credited testimony corro- borates this, stating that on the takeover they "changed the entire crew " And it is stipulated by the parties that, in fact, no former Ogden employees were hired by Respondent By December 27 Respondent had a crew of employees on the premises engaged in setting up the facilities for the January 4 opening And by December 30 everyone had been given his specific work assignment A cadre of experienced workers assembled by Respondent to com- mence its operations consisted of six employees from the cafeteria operated by Respondent at nearby Lehman College, two from its installation at Lowenstein Center, and two others from its facility at Fordham University Two of these transfers were permanent, and eight others were on a temporary basis, the employees being scheduled to return to their permanent location when the new operation had settled down The remainder of the staff was obtained by Respondent's regular recruiting methods, through advertisements in the papers, applications at the central office, and through the facilities of the state and private employment agencies All of this was accomplished during the week prior to the January 4 opening During the period of transition and even before the arrival of Respondent there was considerable speculation on the part of the Ogden employees concerning their future employment Thus, for example, Frank Montgomery, an Ogden employee, testified to having sought out Respon- dent's supervisors, and MacDermott himself, to inquire about future employment with Respondent He was given noncommittal answers and was told to file an application 3 Respondent's facility manager, Lucius Fletcher, testified to conversations with employees on the subject and likewise testified that he gave them no final answer, suggesting that they file applications MacDermott's testimony, which I credit, was more specific He admitted to having observed and talked with Montgomery and being dissatisfied with what he saw and heard He then described in some detail his general dissatisfaction with the Ogden employees, which resulted in his decision not to hire the Ogden crew, excepting "some good workers whom they would be willing to take over under ordinary circumstances " The Ogden employees were represented by Local 377 as a consequence of an election held under the Board's auspices and a certification by the Regional Director dated June 1, 1970 Thereafter, on October 5, Local 377 and Ogden executed a collective agreement on behalf of the Ogden employees employed at the college facility When Local 377's president, then financial secretary-treasurer, Napoleon Massa, learned of Ogden's abandonment of its contract with the College and of Respondent's designation as the new contractor he immediately wrote Respondent as follows We recently have been informed that your Company has acquired the catering of the New York Community College Cafeteria, 300 Jay Street, Brooklyn, New York The employees at the Cafeteria are under contract and members of United Service Employees Union Local 377, R W D S U, AFL-CIO Therefore I would like to meet with you at your earliest possible convenience to discuss this situation Please call, write or telegraph 2 The credited testimony of Ruth Stem Moreover my observation of him as a witness further persuades me to this 3 The testimony of Montgomery I do not however rely generally upon conclusion his testimony conflicting as it does with the testimony of credited witnesses 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Receiving no reply Massa thereafter telephoned Respon- dent's personnel manager, Vance Cheatem,4 reminding him of his letter to Respondent and of the growing concern on the part of Ogden's employees, whom he identified to Cheatem as members of Local 377 Massa reminded Cheatem that Local 377 had a collective agreement covering these employees and asked that Respondent "pick up the contract " A week thereafter Massa made a second call to Cheatem in substantially the same vein Cheatem's only reply to Massa on each occasion was that the matter was in the hands of Respondent's attorney Cheatem appraised MacDermott of each of these calls and MacDer- mott fixes their time as sometime between December 15 and 20 5 MacDermott credibly testified at the hearing that on at least three occasions prior to January 4 he and Fletcher told Ogden employees that they could file applications for employment with Respondent He further testified he never had any intention of assuming Ogden's contract with Local 377 or any of Ogden's other obliga- tions On January 4, 1971, as previously noted, Respondent had set up the facility to its satisfaction,6 with the newly transferred or hired employees, each of whom had been given a job assignment Each employee was instructed to report to his assigned work station on the morning of January 4 This they did at 6 30 am Shortly after the employees reported for work at the Jay Street cafeteria, at about 7 a in, the former Ogden employees appeared on the scene, having been instructed to do so earlier by Local 377's president, Massa 7 These people went immediately to the locker room, changed into their work clothes, and went to the work stations which they had occupied during the Ogden regime There they joined Respondent's employees already at work and a general atmosphere of confusion followed Within a short period of time Graves, the manager of the facility, sent for the security guard who appeared and escorted the Ogden employees out of the kitchen and work areas They gathered at several tables in the dining room where Massa joined them Meanwhile, Grimes telephoned MacDermott who immediately left his home for the College He arrived at the cafeteria at 8 30 am and immediately met with Massa and the Ogden employees This meeting consisted of a prolonged discus- sion between Massa and MacDermott of the rights of the Ogden employees, all members of Local 377, to jobs with Respondent, it being Respondent's position that it was not obligated to employ these people and that, in fact, its own employees were members of Local 302 Massa insisted that his contract with Ogden obligated Respondent to continue the former employees in their jobs and MacDermott was equally insistent that he had no obligation to Local 377 under that contract, or Otherwise, and that, in fact, he had already recognized Local 302 as the representative of those 4 Erroneously referred to at several points in the record as Mr Vance 5 Massa testified at some length in explanation of his contacts with Respondents officials both Cheatem and MacDermott Upon my observation of Massa s demeanor as a witness and upon my study of his testimony in which I find a considerable number of inconsistencies I have determined not to credit his testimony except where it constitutes matters within his peculiar knowledge or which have been corroborated by the testimony of credible witnesses 6 For reasons that will become apparent hereafter I find it unnecessary whom he had recently employed for the Jobs at the facility The meeting eventually broke up, Respondent's employees continued in their jobs , and the former Ogden employees left the premises During the next few days considerable agitation appears to have been generated among the students over the plight of the displaced Ogden employees and it finally became evident that a full dress meeting of all the parties should be held Accordingly, on January 7 a meeting was convened, present at which were the Ogden employees , representa- tives of Local 377, including Massa, representatives of Local 302, the College, and Respondent, together with members of the faculty and student body At this meeting Massa again voiced his claim that Local 377's contract with Ogden was controlling and that the former employees of Ogden, all members of his union, had been discrimtna- tonly deprived of their jobs under the new arrangement MacDermott countered with his contention that his operation was an entirely different one from Ogden's, that it was a matter of policy that it operate with its own employees and not those of someone else, and that anyone wishing employment should feel free to file an application with Respondent He concluded by stating that upon a showing of evidence of his employees' membership in Local 302 he recognized Local 302 as their bargaining agent Upon this note the meeting ended to the apparent satisfaction of those protesting the situation The employ- ees hired by Respondent have since continued in its employ at the college facilities MacDermott's consistent position taken at both meet- ings, that Respondent had recognized Local 302 , leads to collateral considerations of conflicting union claims The facts are these When, in November 1970, it became likely that Respondent would be selected to operate the food service facilities at New York Community College, President MacDermott, as previously found, decided, in accordance with usual company policy to build his working crew upon a cadre of his own employees then working at other institutions To do this would require the approval of the bargaining representatives of the chosen employees Thus he communicated with Local 719 of the Teamsters to secure its permission for him to transfer two employees working at Respondent's Fordham University installation He also communicated with Emeho Rodn- guez, financial secretary-treasurer of Local 302 , to obtain permission to transfer personnel in Respondent's employ at Lehman College, one of the several facilities represented by Local 302 in separate bargaining units 8 Rodriguez, having then or shortly thereafter learned that Respondent had obtained the Community College con- tract, instructed Local 302's Business Agent Williams to organize the employees at this installation Whereupon, from that time until December 30, Williams visited with to detail the structural organizational and operational changes in the several cafeteria and vending facility areas at the College as set forth in the record These changes I find to be substantial implemented by Respondent as an integral element of its provision of food service at the level of quality and efficiency guaranteed by it in its contract with the College Y The testimony of Frank Montgomery and Massa corroborated by MacDermott s testimony in which he relates reports given to him by his supervisors 8 The credited testimony of MacDermott and Rodriguez CROTONA SERVICE CORP 741 the newly hired employees and transferees and secured memberships and authorization cards which were then presented to MacDermott 9 On December 30, Williams presented MacDermott 19 or 20 cards signed by Respon- dent's employees at the college facility authorizing Local 302 to represent them The accuracy of these cards was verified by MacDermott and counsel and he accepted the cards to establish a clear majority of the employees then working at the installation 10 Whereupon Respondent, on December 30, upon Business Representative Williams' request, granted recognition to Local 302 as the employees' bargaining representative at the facility, and on January 4 executed a written stipulation to that effect Based upon the credited testimony of MacDermott and Rodriguez, I accordingly conclude and find Local 302 to be the bargaining representative of Respondent's employ- ees at the college facility on and after December 30, 1970 B Analysis and Conclusions Basic to any determination here are Respondent's obligations, if any, under the October 1970 collective- bargaining agreement between Local 377 and Ogden These obligations have been clarified by the United States Supreme Court in N L R B v Burns International Security Services, Inc, 406 U S 272, decided May 15, 1972 Therein the Court specifically commented upon the type of "successorship" situation illustrated by New York Com- munity College's substitution of Respondent's food service for Ogden's The Court emphasized the nature of the operations of the new contractor, Burns, describing the bargaining unit of employees as being a majority of those who originally voted for their representative when they were employed by the former contractor Accordingly, the Court concluded, "Burns' (the new contractor) obligation to bargain with the union over terms and conditions of employment stems from its hiring of Wackenhut's (the former contractor) employees " In conclusion, the Court held that where the bargaining unit remains unchanged and a majority of the employees hired by the new employer are represented by a recently certified bargaining agent there is little basis for faulting the Board's implementa- tion of the express mandates of Sections 8(a)(5) and Section 9(a) by ordering the employer to bargain with the incumbent Union Thus, the basic criterion established by the Supreme Court for fixing contractual obligation in a successorship situa- tion is that the same employees, or at least a majority of them, be hired by the new employer Here this criterion has not been met On the contrary it has been stipulated into the record that none of the employees of the old employer were hired by the new Accordingly, then, unless it can be established that those hired by Ogden remained Respon- dent's employees for some reason not otherwise apparent, it necessarily follows that the Court's established rules regarding the establishment of successorship do not apply to the situation here As General Counsel points out in his brief, however, the foregoing does not, in and of itself , dispose of the argument respecting Respondent's contractual obligation For it is alleged in the pleadings and contended throughout the trial of the matter that Ogden's employees were discriminatorily precluded from hire by Respondent at the time of its takeover of the facility because of their membership in Local 377 and their failure to seek or have membership in Local 30911 So, were General Counsel to prevail in his allegation and establish such discrimination in violation of Section 8(a)(1) and 8(a)(3) of the Act, the usual remedy to such conduct would instate the former Ogden employees into Respondent's employ and thereby divest it of any contractual immunity otherwise derived from the Burns decision A consideration of the allegation of dlscrmma- tion is therefore properly in order at this point of the decision A deternunation of the discriminatory aspects of this case rests upon an evaluation of the testimony of several witnesses appearing before me , in particular, former Ogden employee Montgomery and Local 377's president, Massa, neither of whom I credit (supra, fns 3 and 5) The testimony of other witnesses called by the General Counsel provides no support for the allegation of discrimination Myrtle Jordan's testimony was confined to her employ- ment at one of Ogden's other facilities and is of dubious relevance to issues presented in this case Angie Hannon testified only to events occurring after January 4, by which time Respondent had already recognized Local 302 In the course of her testimony Miss Hannon quotes MacDermott as making two statements relating to membership in Local 377 or Local 302 Thus she testified that at the first meeting with the Ogden employees on January 4 MacDermott said "that he didn't want any helpers, anybody to work that was a member of 377 " And she quotes MacDermott as stating at the January 7 meeting that "he didn't want any help from 377, and if we belonged to 302 he didn't want to be bothered with none of us, that is as far as I can remember " Quite apart from the fact that MacDermott credibly denied these statements attributed to him , and discounting Miss Hannon's confused and uncertain second quote of MacDermott, it is to be further noted that even the testimony of Local 302's President Massa, whom I do not credit generally, does not support Hannon's quote of MacDermott's postrecognition remarks In fact Massa quoted MacDermott as saying on January 4, "We are not hiring any workers at 377 We have our own people here " And he quoted MacDermott as stating several times at the January 7 meeting that they had a contract with Local 302 and not with Local 377 Nor is there anything in the testimony of Local 302's financial secretary-treasurer Rodriguez to suggest that employment had been withheld from anyone because of Local 377 membership Indeed he specifically testified that Local 302 memberships were solicited from the new employees only after they had been hired However, in all fairness to all of the witnesses testifying on this subject, including Montgomery whose testimony I do not credit, this is an area in which nomenclature tends to become confused Thus throughout 9 The credited testimony of Rodriguez employees for membership or authorization although both organizations 10 It is to be noted that during this period no representative of either were admittedly aware of Respondent s contract with the College Local 377 or of the Teamsters Local 719 ever solicited the newly hired 11 See Phelps Dodge Corp v N L KB 313 U S 177 186 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the transcript of the hearing Ogden employees were frequently and interchangeably referred to as "377 peo- ple," and Respondent's employees were referred to as "302 people," albeit two of this latter group were members of Teamsters Local 719 Because of a confusion of nomencla- ture which can easily blend identification with motivation, I am not constrained to find herein any substantial evidence, overall, that Respondent withheld the employ- ment of any individual because of his and her membership in Local 377 or failure to join Local 302, or both, or that employment was granted only upon condition that membership in Local 302 would be acquired or that membership in Local 377 would be forsaken, or both I accordingly conclude and find that Respondent has not discriminated against any former employee of Ogden and would recommend that so much of the complaint as alleges this as in violation of Section 8(a)(1) and (3) be dismissed Having found and concluded that Respondent has not discriminated against any of the former Ogden employees, it necessarily follows that unless compelled to do so by contractual obligation Respondent had no obligation to instate them to employee status At this point, then, the holding of the Supreme Court in Burns 12 becomes operative Respondent not having acquired the employees of the former employer, it is not obligated under the Court's holding to abide by the recogmtional terms of the agreement Being not obliged to recognize the representa- tive of Ogden employees, Local 377, Respondent, a fortiori, has no obligations with respect to any other portion of Local 377's contract with Ogden I accordingly conclude and find that Respondent has not unlawfully refused to bargain with Local 377 and will recommend that so much of the complaint as alleges this as a violation of Section 8(a)(5) be dismissed. One further element requires consideration-the allega- tion of Respondent's unlawful assistance and support to Local 302 Upon the credited testimony of Local 302 Financial Secretary-Treasurer Emeho Rodriguez, a witness called by the General Counsel, it appears that he was asked by Respondent, as was Teamsters Local 719, to grant the permission necessary to transfer to the new facility certain named employees in bargaining units which their respec- tive unions represented This is most certainly a usual and proper procedure where an outside bargaining unit is already covered by a collective agreement, and there was no claim that it was improper here Armed with such information as Respondent's request for permission pro- vided it was perfectly normal for an astute union organizer to take the next obvious step without employer urging-to organize the employees in the new operation This Local 302 did by sending Business Representative Williams to the college cafeteria during the last week of December When, then, Local 302 procured by December 30 the signatures of new and transferred employees at Respon- dent's facility sufficient to establish its majority status it did so by its own efforts, without the assistance or support of Respondent or anyone else Nor can it be said that by recognizing Local 302 Respondent has breached the strict neutrality required of it when presented with conflicting claims for recognition 13 The claims in conflict here are not those of two labor organizations for the employees of an employer in a given bargaining unit On the contrary, Respondent is faced with the claim of another employer's employees for the jobs of the employees whom he has properly hired As there has never been any dispute that each labor organization represents its own members, and neither makes any claim to represent its opposite's members the breach of neutrali- ty, if such there were, would be between two different groups of employees claiming the samejobs, not two labor organizations seeking to represent the same employees Midwest Piping (supra) applies only to the latter situation, not present here, while other provisions of the Act, including Section 8(b)(4)(D), might well apply to the dispute at hand in a proper proceeding Upon the foregoing, therefore, I conclude and find that Respondent has not contributed aid or support to Local 302 and I will recommend that so much of the complaint as alleges this to be a violation of Section 8(a)(2) of the Act be dismissed RECOMMENDED ORDER 14 It is recommended that the complaint in this matter be dismissed in its entirety 12 Burns Security Services supra conclusions, and this recommended Order shall, as provided in Sec 102 48 13 Midwest Piping and Supply Co 63 NLRB 1060 of the Rules and Regulations be adopted by the Board and become its 14 In the event no exceptions are filed as provided by Sec 102 46 of the findings conclusions, and Order and all objections thereto shall be deemed Rules and Regulations of the National Labor Relations Board the findings, waived for all purposes