Longview Terrace Co.

LONGVIEW TERRACE CO. Kenneth and Harald Torsoe d/b/a Longview Terrace Co. and Richard Rosen, Esq., Petitioner and Building Service Employees International Union Local 32E, AFL-CIO. Case 2-RD-8 10 January 25, 1974 DECISION AND DIRECTION OF ELECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Clifford P. Chaiet. Following the close of the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, and by direction of the Regional Director for Region 2, this case was transferred to the National Labor Relations Board for decision. At the hearing, the parties waived their right to file briefs.' Pursuant to the provisions of Section 3(h) 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 reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. Building Service Employees International Un- ion Local 32E, AFL-CIO, herein called the Union, claims to represent certain employees of the Employ- er. The Petitioner, an attorney for six employees of the Employer, asserts that the Union, a labor organization which has been previously recognized by the Employer as the bargaining representative of the employees involved herein, is no longer such representative as defined in Section 9(a) of the Act. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act for the following reasons: The Employer purchased the business (apartment house) sometime about March 1973 and, on March ' The Petitioner has requested oral argument this request is hereby denied because the retort adequately presents the issues and the positions of the parties 2 The prior owner also earlier had entered into an agreement, as an independent, with Local 32E having the same expiration date. This 699 30, assumed, by letter to the prior owner, the contract then in effect between the prior owner, as a member of the Bronx Realty Advisory Board, and Local 32E, which contract was to expire on September 14, 1973.2 This contract was assumed unilaterally by the Employer and the assumption was never approved by the Union. The record shows, however, that the Union appeared to be willing to allow the Employer to assume the contract since the Union sent the Employer two letters, one dated April 11, 1973. and a second dated May 3, requesting that the Employer execute an assumption of the contract with the Union itself. No such assumption was ever executed. On May 21, 1973, the Employer became a member of the Builders Council of Suburban New York, Inc., and adopted an agreement in effect between that association and Local 32E which was to expire on August 31, 1973. This adoption, however, was also unilateral on the part of the Employer as it was never approved in writing by the Union. The Union relied exclusively on the signatures appearing in the master agreement, and on its practice of not requiring its own signature on such assumption agreements, as being sufficient for the purpose of assumption of the contract. The Union contends that this last contract is controlling and that it bars the RD petition filed on July 5, 1973.3 The Employer and the Petitioner contend that the contract assumed by the Employer on March 30 is controlling, and that therefore the July 5 petition was timely filed. They also contend that the Employer is not bound by its assumption of the Builders Council contract on May 21 since it was executed unilaterally by the Employer. Our contract-bar policies were formulated with the view towards striking a proper balance between legitimate, but conflicting, objectives. On the one hand, we believe it is desirable to foster successful collective bargaining by providing a degree of stability to the contractual agreements arrived at by the parties. On the other hand, it is our obligation under the Act to provide employees the opportunity to select, reject, or change their representative status at reasonable and predictable intervals. To accom- plish these dual objectives, we have permitted the filing of election petitions only at specified times during the life of the collective-bargaining agree- ment. Under such an approach, obviously, the designated filing period for a petition must be known or ascertainable by those seeking an election and, to achieve this purpose, we have tied the filing period to independent contract contains an unlawful union-security clause, and therefore is removed from consideration in the case. 3 The Union also claims that the first contract is not binding upon it because it was assumed unilaterally by the Employer 208 NLRB No. 78 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the duration dates set forth in the collective-bargain- ing agreement. Of course, the rights of parties not signatory to the agreement could be easily defeated, if we were to permit the signatories to vary the duration dates in an existing agreement or enter into multiple agreements which raise confusion as to the proper filing period. As a consequence, we have held that any such variation in the contract dates removes the agreement from consideration as a bar.4 With these concepts in mind, we turn to an analysis of the situation before us. From the record, it would appear that the initial agreement which was to expire on September 14, 1973, was properly executed and enforceable between Local 32E and the predecessor employer. When the Employer herein purchased the business in March 1973, and expressly and in writing agreed to assume the existing contract, he, in effect, "stepped into the shoes" of the predecessor, and legally obligated himself to be bound by the agreement.5 While it is true that this agreement was never formally executed by the Employer, his clear and express written assumption is sufficient, in the circumstances of this case, for us to conclude that this initially assumed agreement satisfied the require- ments of our contract-bar policy.6 However, it is clear that the instant petition was timely filed with respect to the dates set forth in the agreement initially assumed. The Union argues, however, that it is not this first agreement which is controlling, but rather that it is their agreement with the Association which the Employer subsequently assumed which serves as a bar to this petition. This latter agreement had a different expiration date from the one initially assumed by the Employer and, in the sense relevant here, constituted a premature curtailment of the expiration date of the contract initially assumed.? Such conduct obviously frustrates third parties in their attempt to ascertain the proper filing period and, consequently, it would not effectuate the policies of the Act to permit a petition to be barred under such circumstances. We find, therefore, that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. While the parties agree that the appropriate unit is the one specified in the contracts introduced into evidence, they disagree as to the placement of six individuals in the unit, the same six individuals who instituted the present petition, through their attorney. The Union contends that the unit consists of three or four employees, a superintendent, a handyman, and one or two porters, and that the six employees who instituted this petition were not performing what could be properly classified as unit work. The Petitioner and the Employer contend, however, that the unit consists of all nine men employed at the apartment house complex since they are all engaged in the same type of work; i.e., maintenance work. The record shows that prior to June 21, 1973, there were three unit men employed by the Employer at the apartment house complex. These three men were responsible for the maintenance of the two seven- story buildings on the premises. Between late May 1973 and June 28, 1973, the Employer added six additional employees to its payroll in order to "help get the premises in shape."8 The record shows that the Employer hired numerous subcontractors for the purpose of renovating the property. However, no evidence was presented to show that the six employ- ees engaged in or assisted with the work being done by the subcontractors. These six men were hired to supplement the old maintenance group, and they were generally engaged in apartment house mainte- nance which could properly be classified as unit work. Accordingly, we find that the following employees constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All superintendents, assistant superintendents, janitors, handymen, porters, firemen, doormen, elevator operators, and other maintenance em- ployees, excluding supervisors, guards, clerical employees, confidential employees, and all others excluded by the Act. [Direction of Election and Excelsior footnote omitted from publication.] 4 Deluxe Metal Furniture Company, 121 NLRB 995 8 The record shows that two of these employees had previously been 5 N L R B v Burns International Security Services, Inc, 406 U S 27? employed at another apartment complex owned by the Employer herein. In (1972) addition, two of the other employees were previously employed by Torsoe 6 Cf Grainger Brothers Co, 146 NLRB 609 Brothers Construction Co 7 Cf Deluxe Metal Furniture Company, supra