Liberty Ashes Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1994

314 N.L.R.B. 277 (N.L.R.B. 1994)

277
314 NLRB No. 46
LIBERTY ASHES INC.
1 The Charging Party has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
The General Counsel filed a motion to issue a reprimand to the
Respondents’ attorney, Gary C. Cooke, and to bar him from further
proceedings in this case. The General Counsel contends that during
the judge’s examination of a witness Cooke sought permission to
‘‘jump in here’’ and ‘‘clear this up.’’ When the General Counsel ob-
jected and Cooke was advised to wait his turn, Cooke exclaimed,
‘‘I’m going to smack him [counsel for the General Counsel] in the
face.’’ We do not condone Cooke’s statements. The transcript, how-
ever, reveals that the judge, during the hearing, properly admonished
Cooke regarding his conduct and that Cooke apologized. In our
opinion, the judge fully dealt with the matter and no further action
is required; but, any future misconduct by Cooke would be consid-
ered in light of the admonition given by the judge in this case.
Therefore, we deny the General Counsel’s motion.
The judge, in his decision, states that the collective-bargaining
agreements between the Union and the Respondents expired on No-
vember 1, 1990. These agreements expired November 30, 1990. We
correct this error.
Liberty Ashes Inc. and Local 813, International
Brotherhood of Teamsters, AFL–CIO
Jamaica Recycling Inc. and Local 813, International
Brotherhood of Teamsters, AFL–CIO. Cases
29–CA–16852 and 29–CA–16856
July 11, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On December 3, 1993, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Charging Party filed exceptions and a brief, the Re-
spondents filed an answering brief, the General Coun-
sel filed a motion, and the Respondents filed a brief
in response to the motion.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record in light of the
exceptions and briefs and has decided to adopt the
judge’s rulings,1 findings, and conclusions and to
adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Jonathan Leiner, Esq., for the General Counsel.
Gary C. Cooke, Esq. (Horowitz & Pollack), for the Respond-
ents.
Joseph Scantlebury, Esq. (Eisner, Levy, Pollack & Ratner),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was heard by me in Brooklyn, New York, on June 29, July
1, and August 18 and 19, 1993.
The charge in Case 29–CA–16852 was filed on September
18, 1992, and the charge in Case 29–CA–16856 was filed on
September 21, 1992. A consolidated complaint was issued on
November 30, 1992, which after amendment, alleged as fol-
lows:
1. That, for many years, the Union has been the recog-
nized collective-bargaining representative of certain employ-
ees of the respective Employers in the following units:
(a) For Jamaica Recycling:
(1) All chauffeurs and helpers
(2) All bulldozer operators and utility men exclud-
ing pickers.
(b) For Liberty Ashes:
(1) All chauffeurs and helpers.
(2) All mechanics and welders.
2. That, on December 20, 1990, the Respondents and the
Union reached full and complete agreements to succeed
those collective-bargaining agreements that had expired on
November 30, 1990.
3. That, notwithstanding various requests by the Union,
made between April 3, 1991, and July 1992, the Respondents
have refused to execute the agreements referred to in para-
graph 2.
In addition to the allegations made in the complaint, the
Union alleged in its brief that the Respondents, after failing
to execute the agreed-upon contracts, have unilaterally sub-
contracted work thereby additionally violating Section 8(a)(1)
and (5) of the Act. In this regard, the Union seeks a remedy
which would, among other things, compel the Respondents
to reinstate with backpay any employees terminated due to
the alleged unilateral subcontracting.
Having signed the proffered contract on behalf of truck-
drivers and helpers, the Respondents assert that Liberty and
Jamaica should not be compelled to sign the same agreement
in relation to drivers and helpers because it does not now,
and has not for many years, employed any people within
those categories. They also take the position, vis-a-vis, that
Jamaica no longer has any employees in the bulldozer and
utility man categories and therefore that this unit no longer
exists. The Respondents take the position that Liberty should
not be compelled to execute any contract on behalf of me-
chanics and welders because it no longer employs people in
either classification and therefore such a unit no longer ex-
ists.
The Respondents took no position regarding the unilateral
change allegations asserted by the Union as these were not
alleged in the complaint and not raised until the Union filed
its brief. Because these allegations were not part of the com-
plaint and were not litigated, they shall not be considered by
me.
In addition, in their answer the Respondents asserted that
the complaint should be barred by Section 10(b) of the Act.
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the Respondents admit, and I find
that each of them are employers engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act. The
Respondents also admit and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Both Liberty Ashes and Jamaica Recycling are owned by
Steven and Michael Bellino. Although having separate mail-
ing addresses, the two companies share a contiguous piece
of property owned by the Bellinos, which is bordered by
Merrick Boulevard and 165th Street in Jamaica, New York.
Indeed, as far as I can see they are operated as a single en-
terprise and would, in my opinion, comprise a single collec-
tive-bargaining unit if the Board were called on to determine
an appropriate unit in the first instance.
Notwithstanding the above, based on the history of bar-
gaining between the Companies and the Union, the General
Counsel has alleged that there exists four separate bargaining
units, two each for each company.
It is not clear from this record when or how the Union
was first recognized as the representative for employees of
either company.
In the case of Jamaica, it seems that this company had ex-
ecuted a collective-bargaining agreement covering drivers
and helpers from some period of time before 1986 inasmuch
as it also executed a letter agreement dated October 7, 1986,
which, by its terms, applied the terms of the driver’s contract
to a bulldozer operator and a utility man, but with differing
rates of pay. That letter agreement was then renewed on June
22, 1988, when Jamaica agreed to new pay rates for the bull-
dozer operator and utility man. This renewal agreement was
to run for the same period of time as the term of a separate
contract executed by Jamaica covering drivers and helpers.
Both agreements had a term from December 1, 1987, through
November 1, 1990. At the time that these agreements were
executed and during the period of time covered by the agree-
ments, it is clear that Jamaica did employ one bulldozer op-
erator and one utility man. On the other hand, the unrebutted
testimony of the Company’s witnesses was that Jamaica did
not employ any drivers or helpers during that period of time.
As to Liberty, it appears that this entity also executed a
driver’s contract covering the period from 1984 to 1987. In
this instance, however, it is agreed that Liberty had then and
does now employ a group of people who drive garbage
trucks. Additionally, the evidence shows that in June 1985
and July 1988, Liberty executed letter agreements applying
the terms and conditions of the driver’s contract to the classi-
fications of mechanic and welder. Accordingly, there was,
prior to the 1990–1991 negotiations, a contract between Lib-
erty and the Union covering chauffeurs and helpers for the
period from December 1, 1987, through November 1, 1990,
and a letter agreement covering one mechanic and one weld-
er for the same period of time.
Although I believe that the two companies operate in an
integrated fashion as a joint employer, one can make a dis-
tinction between the Companies by saying that Liberty oper-
ates the trucks and employs the drivers, whereas Jamaica op-
erates the yard where trash is separated and processed before
being sent on its way to landfills. In this respect, the bull-
dozer is used to tamp down the garbage so that it takes up
a smaller volume. There also was a payloader which was
used in the yard to load garbage onto trucks taking it to land-
fills. With respect to Jamaica, it is noted that this company
also employs a group of people called pickers who have been
represented by a different union.
On August 24, 1990, the Union sent letters to Liberty and
Jamaica advising them that the Union desired to amend and
modify the terms of the existing collective-bargaining agree-
ments, which were set to expire on Novemer 30, 1990.
By letter dated October 26, 1990, the law firm of Horo-
witz and Pollack advised the Union that they represented a
group of individual companies and would like to commence
negotiations on November 6, 1990. Among the companies
listed in the letter were Jamaica Recycling and Liberty
Ashes.
It should be noted that there is no contention here that a
multiemployer bargaining unit was created. Thus, notwith-
standing the fact that these various companies got together
and retained this law firm to represent them in negotiations,
it apparently was the intent of the respective employers to
maintain themselves as separate bargaining units.
After about a month of negotiations and a 4-day strike, a
document entitled ‘‘Settlement Agreement’’ was executed by
the Union and one of the law firm’s attorneys on December
20, 1990. Essentially, this agreement, which resolved the
terms and conditions for the chauffeurs and helpers, stated
inter alia:
It is hereby agreed that the Collective Bargaining
Agreement between Local 813, I.B.T. and the indi-
vidual Employers who are bound by the negotiations
conducted by Sanford Pollack, Esq. is hereby amended
as follows:
. . . .
7. To the extent that the Union presently represents
employees of the Employer in job functions outside of
the chauffeur and helper classification, the Employer
will execute a separate Collective Bargaining Agree-
ment, identical to the chauffeur and helper agreement
except for the appropriate indication of unit definition.
Employees in these separate contracts will receive the
same wage adjustments as are granted to the chauffeurs
and helpers. Subcontracting of such work will be per-
mitted for so long as employees are not adversely af-
fected; i.e. loss of employment.
On January 23, 1991, the Union mailed a draft of a new
contract to Pollack, intended to incorporate all changes
agreed to in the ‘‘Settlement Agreement.’’ At some point
thereafter, the Union received from Liberty (and from other
companies that had retained Pollack’s law firm) an executed
collective-bargaining agreement with a term from December
1, 1990, through November 30, 1993. This agreement cov-
ered the drivers and helpers who were on Liberty’s payroll.
It should be noted that as of late 1990 and early 1991, Ja-
maica had lost its license to operate as a transfer station. Ac-
cordingly, the bulldozer, which had been operated by the
bulldozer operator or utility man, was not in operation. This
shutdown, however, was understood to be temporary by the
279LIBERTY ASHES INC.
owners, and operations were recommenced after a several-
month hiatus.
The evidence shows that at the time of the negotiations the
mechanic and the welder who had been on Liberty’s payroll
had either been discharged or laid off. Thus, at the time that
the ‘‘Settlement Agreement’’ was executed on December 20,
1990, the evidence shows that Liberty did not actually em-
ploy any persons in the welder or mechanic category. Addi-
tionally, the evidence shows that Jamaica had no current
chauffeurs and no employees in the utility man or bulldozer
operator category.
On March 8, 1991, Pollack wrote a letter to the Union
stating that he was awaiting the text of the addendum to the
contract covering units other than drivers and helpers. Here
again, he listed the names of those companies he represented
including Liberty and Jamaica.
According to Union Attorney Michael Lieber, he and Ber-
nard Adelstein met with Pollack either in late February or
early March 1991. He states that Pollack asked if the Union
would agree to exclude the bulldozer operator from the letter
agreement with Jamaica and indicated that the Company in-
tended to have a management person operate the bulldozer.
He states that when Adelstein asked why he should give up
a man, Pollack said that the Company had two or three posi-
tions that it intended to fill in the near future; these being
a utility man, a welder, and a mechanic. Lieber states that
after a caucus, Adelstein, on behalf of the Union, agreed to
allow the Company to exclude the bulldozer from Jamaica’s
unit but only if the job was done by a management person.
Lieber states that Pollack’s only response was ‘‘fine.’’ He
also states that there was no actual quid pro quo stated, ex-
cept that he and Adelstein relied on Pollack’s statement that
the Company would soon be filling the three positions that
were vacant at that time.
Pollack’s version of this meeting is somewhat different.
He agrees that he asked to have the bulldozer category ex-
empted from Jamaica’s letter agreement and indicated that
the Company intended to have a management person do this
job. Pollack states that he also told the Union that the Com-
pany would probably never rehire a utility man but that if
it did, he would be employed under the terms of the union
contract. Pollack states that he said that the Company wanted
the right to subcontract mechanic’s or welder’s work, but
that if the Company hired anyone in the mechanic or welder
classifications, those people would be covered by the letter
agreement between Liberty and the Union. (That is, he pro-
posed that the welder be moved from the Jamaica to the Lib-
erty payroll so that this job and the mechanic job would be
under one agreement.) Pollack asserts that all this was all
agreed to by the Union. Lieber, on the other hand, denies ei-
ther that there was any discussion at all regarding subcon-
tracting or that the Union agreed to anything other than the
bulldozer issue.
With respect to the above meeting, it appears from the tes-
timony of both sides that there was no mention of the fact
that Jamaica had not signed the driver’s agreement. This
might be explained by the evidence that Jamaica did not em-
ploy any drivers or helpers.
On March 22, 1991, Pollack sent a letter asking the Union
to forward a ‘‘set of documents establishing which compa-
nies would be expected to sign which of the unit contracts
together with the language which you proposed that would
be applicable to the non-chauffeurs unit.’’
On March 25, 1991, Martin Adelstein forwarded to Pol-
lack a set of proposed contracts which included the two pro-
posed letter agreements for Jamaica and Liberty. The prof-
fered letter agreement for Liberty proposed to cover a me-
chanic and a welder. The proffered letter agreement for Ja-
maica proposed to cover a utility man and a bulldozer oper-
ator with the proviso that the category of bulldozer operator
would be a nonbargaining unit job so long as it was per-
formed by management personnel.
On March 27, 1990, Pollack responded:
I have carefully read the proposed Letter Agreement
as it concerns the classifications other than chauffeurs
and helpers and believe that the first paragraph of your
proposal leads to more confusion than is necessary.
May I suggest a deletion of that paragraph and this sub-
stitution thereof:
The parties agree that the Union represents a sepa-
rate unit comprised of the classifications listed below
and has represented said unit in the past and further,
All terms and conditions of the collective bargaining
agreement covering chauffeurs and helpers for the pe-
riod December 1, 1990 through November 30, 1993
(except in the case of the debris haulers which shall be
December 20, 1993) shall apply except as to the min-
imum wage which is set forth below.
Obviously if this is in accordance with your desires,
please feel free to prepare the appropriate letters for
signature, failing which, please contact me for discus-
sion.
It is noted that there is nothing in the March 27 letter
which indicates that Pollack was objecting to the execution
of any of the proffered agreements because they did not re-
flect a separate understanding about subcontracting. That is,
the initial ‘‘Settlement Agreement’’ which was signed on
December 20, 1990, explicitly stated that subcontracting
would be permitted for the nonchauffeur units unless it ad-
versely affected employment. If, as Pollack asserts, he got
the Union to agree to a further concession on subcontracting
on behalf of Jamaica and Liberty, he did not say so in this
letter of March 27, 1991.
On April 3, 1991, the Union sent another set of documents
to Pollack including a redraft of the letter agreements for Ja-
maica and Liberty. These redrafts incorporated the changes
suggested by Pollack in his letter of March 27, 1991.
Pollack testified that he verbally told Adelstein in March
or April 1991 that the Company would not sign the unsigned
proffered agreements for Liberty and Jamaica. But he could
not recall exactly when or under what circumstances such a
communication was made. There is nothing in writing to this
effect and I conclude that the Respondents have not shown
that there was a clear and unambiguous refusal which would
have served to trigger the 10(b) statute of limitations. A &
L Underground, 302 NLRB 467, 469 (1991).
A little more than 1 year later, on May 12, 1992, the
Union sent a letter to Pollack which, inter alia, reminded him
that although it had received the signed chauffeur’s agree-
ment from Liberty it had not received any of the other agree-
ments from Liberty and Jamaica.
280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Martin Adelstein testified that on or about July 13, 1992,
he spoke to Pollack and pointed out that the Union had not
received the contracts from Liberty or Jamaica. According to
Adelstein, Pollack said that he had sent the documents to the
Company and couldn’t understand why they weren’t signed.
In the meantime, at some point during 1991, Jamaica ob-
tained a license to reopen its transfer station and began oper-
ating the bulldozer again. Initially, the bulldozer was oper-
ated by a man named Matty Silaco who the Company
claimed was a manager. Later, however, Bellino testified that
the bulldozer was operated by a person who was a manager
but whose name he could not recall. Based on this testimony,
it is my opinion that there came a time when Jamaica hired
someone to operate the bulldozer and that this person was a
nonmanagerial or nonsupervisory employee. However, from
this record, I cannot ascertain who that person was or when
he began operating the bulldozer.
In addition, Union Business Agent Jerry Jackson testified
that he visited the jobsite on various occasions in 1991,
1992, and 1993 and observed activity there for about 5, 10,
or 15 minutes at a time. Jackson testified that occasionally
he observed utility work being done at the yard; such work
defined by him as being anything that needed to be done
such as sweeping, painting, etc. Although he testified that he
observed that a person named Kevin Armstrong was em-
ployed to drive a flatbed truck and do some utility work until
replaced in 1993 by a short white man with a pony tail,
Jackson’s testimony was too vague on this point as it is obvi-
ous that he simply was not in a position to competently tes-
tify about the types of jobs and work that was done in the
yard at any time after 1990. Jackson could not testify that
either Armstrong or anyone else was regularly assigned to be
a utility man. As there was no other evidence to show that
Jamaica hired or employed any individual to be a utility man
at any time after 1990, it seems to me that the evidence
shows that in relation to the bulldozer operator/utility man
unit, this consisted at most of one man.
Jackson testified that he observed that Kevin Armstrong,
in addition to performing utility functions, drive a flatbed
truck for Jamaica which was used to carry dumpsters to and
from the yard to commercial customers. (He states, however,
that he observed this on at most 10 occasions.) According to
Bellino, Armstrong worked for Jamaica during the years
1991 and 1992 as a supervisor. As noted above, Armstrong
left the Company in 1993 and may have been replaced by
the unnamed man who wore a pony tail.
In addition to the flatbed truck, Jackson testified that he
has observed a payloader being used in the yard and as-
sumes, without any supporting evidence, that it was operated
by someone on Jamaica’s payroll. A payloader is a machine
which is operated exclusively in the yard to load garbage
onto container trucks for shipment to landfills. There was no
competent evidence to show who did this work, or that the
operation of this machine was covered by any of the con-
tracts that either Liberty or Jamaica had with Local 813.
Clearly, that job would not be covered by the chauffeur’s
contract, which I construe as being applicable to over-the-
road drivers and not to vehicles which are operated exclu-
sively in an employer’s yard. This is evident from the fact
that the Union felt it was necessary to have a separate con-
tract covering the bulldozer, which like the payloader, is a
vehicle used exclusively in the yard.
Additionally, Jackson testified that he has observed people
working at the premises doing welder’s and mechanic’s
work. The problem is, however, that Jackson was not in a
position to testify that any of these people were employees
of either Jamaica or Liberty and it may be that they were
simply employees of subcontractors who, as in the past, have
done this type of work for the Respondents.
Apart from examining Bellino, pursuant to the Fed.R.Evid.
611(c), the General Counsel only presented Jackson to testify
regarding who was employed by these companies after the
old contract had expired. Although, I believe that Jackson
testified truthfully, the fact is that he simply was not in a po-
sition to give meaningful evidence on these questions. It may
be that neither the General Counsel nor the Charging Party
could obtain the cooperation of the employees who worked
at the Respondents, but their testimony would have shed a
good deal more light on these issues than was presented
through either Jackson or Bellino. (While I conclude that
Jackson was not in a position to have sufficient knowledge,
I also note that Bellino’s testimony was marked by evasive-
ness.)
Moreover, the General Counsel subpoenaed and the Re-
spondents turned over the payroll records of both companies.
As these records were examined, but not offered into evi-
dence, I can only assume that they did not support the Gen-
eral Counsel’s assertions as to what employees were hired by
which company.
To date, although having executed the chauffeur’s con-
tract, Liberty has not executed the proffered letter agreement
in relation to mechanics and welders.
To date, Jamaica has not executed the proffered chauf-
feur’s agreement and has not signed the proffered letter
agreement covering the bulldozer operator and utility man.
Analysis
There is no doubt that on December 20, 1991, a collective-
bargaining agreement was consummated between Liberty
Ashes and Local 813 covering chauffeurs and helpers. (In
this case, the employees of Liberty who drove garbage
trucks.) In fact, Liberty executed that agreement and there is
no contention by the General Counsel or the Charging Party
that Liberty has failed to fulfill the terms and conditions of
that contract
By the same token, there is no doubt that on December
20, 1990, a chauffeur’s agreement was reached on behalf of
Jamaica and Local 813. The question is, did there exist a
bargaining unit to which this contract could attach.
The evidence demonstrates to me that during the term of
the 1987 to 1990 contract Jamaica did not employ any driv-
ers and therefore there were no bargaining unit people em-
ployed by Jamaica to be covered by that contract. Moreover,
the evidence shows that at the time that the new contract was
reached (December 20, 1990) Jamaica did not employ any
persons within the driver or helper category. From that day
to the present, the evidence shows that, at most, there was
one person at any given time (Kevin Armstrong or his re-
placement) who may have occasionally driven a flatbed truck
in addition to doing other work at the yard. While the Gen-
eral Counsel asserts that the testimony of Jerry Jackson
shows that another employee operated a payloader at the
yard, thus yielding a unit of two drivers, it is evident that
Jackson’s testimony was insufficient to establish who oper-
281LIBERTY ASHES INC.
1 In my opinion, the cases cited by the General Counsel are inap-
posite. In Steiner Trucraft, 237 NLRB 1079 (1978), the employer re-
fused to execute an agreed-upon contract after it closed a plant for
economic reasons. The Board found that the employer violated Sec.
8(a)(5) by refusing to execute the contract and by not applying such
provisions as severance pay, etc., to the employees who were af-
fected by the plant closing. The present case is distinguishable in
that at the time that Liberty and Jamaica allegedly entered into the
agreements there were no employees employed in the categories
covered by the contracts. Benchmark Industries, 269 NLRB 1096
(1984), is also distinguishable. In that case, the company was found
to have violated the Act by refusing to bargain about its decision
to close a plant which had been destroyed by a fire. In concluding
that a bargaining order would be warranted despite the plant closing,
the administrative law judge concluded that there was no evidence
to show that the company had completely gone out of business or
that it might not resume operations in the future. In W-1 Forest
Products Co., 304 NLRB 957 fn. 1 (1991), the issue was not wheth-
er the unit had ceased to exist or had turned into a one-man unit
at the time that an agreement was reached or thereafter when a com-
pany was asked to sign it. In that case, the violation had already oc-
curred and had affected a defined valid unit of employees prior to
a plant closing. The issue in W-1 Forest Products Co. was not
whether a violation of the Act had occurred, but whether the case
should be dismissed for being moot. Finally, in Walter Pape, Inc.,
205 NLRB 719 (1973), the issue was whether the employer violated
the Act by unilaterally disposing of its routes and thereby causing
an existing represented unit of employees to lose their jobs. Thus,
unlike the present case, the violation in Walter Pape occurred at a
time when there was an existing unit of employees who were ad-
versely affected by the employer’s conduct.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ated the payloader, what company he worked for, or how
much of his time was spent in such work. Moreover, for the
reasons stated above, I don’t believe that the chauffeur’s
agreement was intended to cover employees who operated
vehicles, such as bulldozers or payloaders, which are oper-
ated exclusively in the yard.
As I conclude that the Jamaica chauffeur’s unit either did
not exist or at most had one employee during any relevant
period of time, I find that the Respondents did not violate
the Act insofar as the complaint alleges that Jamaica refused
to execute a collective-bargaining agreement with Local 813
covering chauffeurs and helpers. See Rice Growers Assn.,
312 NLRB 837 (1993), where the Board held that an em-
ployer which had lawfully closed did not violate the Act
when it refused to furnish certain information because, inter
alia, ‘‘there were no unit employees who could generate a
bargaining obligation.’’ See also Crescendo Broadcasting,
217 NLRB 697 (1975); Crispo Cake Cone Co., 190 NLRB
352 (1971); and Westinghouse Electric Corp., 179 NLRB
289 (1969), where the Board held that even with a Board
certification having issued within 12 months, a respondent
can lawfully refuse to bargain if the bargaining unit has been
reduced to a permanent one-man unit.1
With respect to the other two units set forth in the com-
plaint, I will state at the outset that I believe the testimony
of Lieber. That is, I credit his version of the meeting that
was held probably in early March 1991. Therefore, the only
issue raised by Pollack on behalf of Liberty and Jamaica was
the desire to have the bulldozer operator not covered by the
contract because that job was being performed by a manage-
rial or supervisory person. When Pollack stated that the
Companies expected to hire, in the future, a mechanic, a
welder, and possibly a utility man, Adelstein agreed to Pol-
lack’s position, vis-a-vis the bulldozer operator, and told him
so. In response, Pollack said ‘‘fine,’’ but he did not specifi-
cally guarantee that the Companies would hire three people
for these positions or state when they would be hired.
It is noted that as of December 20, 1991, when the ‘‘Set-
tlement Agreement’’ was executed and as of March 1991 at
the time of the above-noted meeting, Liberty did not employ
either a welder or a mechanic, as both of the people who had
done that work during the 1987–1990 contract period had left
the Company for nondiscriminatory reasons.
It is also noted that, as of both dates described above, Ja-
maica did not employ a utility man and employed a bull-
dozer operator who the Union agreed to exclude from the
unit per the March 1991 discussion.
With respect to the Liberty mechanic and welder unit, the
Company denies that it has, at any time since the expiration
of the 1987–1990 contract, directly employed any persons in
those categories. It asserts that to the extent that such work
has been done for it, that work has been contracted out in
the same fashion as it had been done during the term of the
previous collective-bargaining agreement. As the testimony
of Jerry Jackson is not, in my opinion, sufficient to show that
any individuals doing mechanic and/or welding work are em-
ployees of Liberty or Jamaica, I feel compelled to dismiss
that allegation of the complaint which alleges that Liberty re-
fused to execute the letter agreement covering these cat-
egories of employees.
Finally, with respect to the Jamaica bulldozer
operator/utility man unit, I think that the evidence shows
that, at most, there was only one employee in this unit; that
person being a nonsupervisory bulldozer operator. (The per-
son who replaced Silaco.) The Company denies that it has
employed any person as a utility man and the General Coun-
sel has not produced evidence which, in my opinion, is suffi-
cient to rebut that assertion. As the evidence shows that after
the expiration of the 1987–1990 contract, this unit had been
reduced either to a zero or one-person unit, I shall rec-
ommend that the complaint be dismissed insofar as it alleges
that Jamaica has refused to execute a collective-bargaining
agreement covering this unit.
CONCLUSIONS OF LAW
1. The Respondents are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondents have not violated the Act as alleged
in the consolidated complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
Order
It is ordered that the complaint be dismissed in its entirety.