Longview Terrace Co.

National Labor Relations Board - Board Decisions

Jan 25, 1974

208 N.L.R.B. 699 (N.L.R.B. 1974)

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