Ortiz Funeral Home Corp.

National Labor Relations Board - Board Decisions

Jul 18, 1980

250 N.L.R.B. 730 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ortiz Funeral Home Corp. and Local 1034, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
2-CA-15497 and 2-CA-15536
July 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MIEMHBIRS
PENEI1.O AND TRUESDAI.E
On December 26, 1979, Administrative Law
Judge Marvin Roth issued the attached Decision in
this proceeding. Thereafter, Respondent, the
Charging Party, and the General Counsel filed ex-
ceptions and supporting briefs.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to recognize and bargain
with the Union for a new contract beginning on
March 28, 1978, and by erroneously insisting that
the appropriate unit did not include a large number
of its employees.
The Administrative Law Judge further found
that Respondent failed to apply the contract which
expired on March 21, 1978, to the same group of
employees because of the same erroneous conten-
I The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge. 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 Prod-
ucts. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We
have carefully examined the record and find no basis for reversing his
findings.
2 The Administrative Law Judge refused to defer to the arbitration
award as vacated and set aside by Judge Schwartz of the Supreme Court
of New York County, entered March 28, 1979, and April 19. 1979. on the
grounds Judge Schwartz' decision is based on a premise which is con-
trary to Board law. Subsequently, the Appellate Division of the Supreme
Court for the First Judicial Department in the County of New York on
April 15, 1980, issued an order reversing the judgment and order of
Judge Schwartz and granting the Union's petition to confirm the arbitra-
tion award There is no indication as to whether that decision has been
appealed.
The Union in its exceptions states that, contrary to the assertion of the
Administrative Law Judge that none of the parties urged deferral. it has
always taken the position that the Board should defer to the arbitration
award, although it states that its position may have been e idenlt only
from off-the-record discussions. In any event. we decline to defer it the
arbitration award since the issue is one of representation and appropriate
unit. See William Transportouon Conpany, 233 NILRB 837. 838 (1977):
Marion Power Shovel Company. Inc., 230 NL RB 576. 577-578 (1977). IHr-
shey Foods Corporation. 208 NLRB 452. 457 (1974)
250 NLRB No. 100
tion. Nevertheless, because the complaint alleged
an unlawful refusal to bargain only since on or
about March 28, 1978, the Administrative Law
Judge did not find a violation or provide any
remedy for Respondent's failure to apply the terms
of the contract which expired on March 21, 1978.
The General Counsel contends that the matter of
Respondent's refusal to apply the contract to all
unit employees was fully litigated and urges the
Board to find the additional 8(a)(5) and (1) viola-
tions. We find merit in the General Counsel's con-
tention.
As fully set forth by the Administrative Law
Judge, the parties extensively litigated the question
of which employees were in, and which employees
were not in, the unit. Respondent conceded that,
since the contract was signed following litigation in
an earlier proceeding, 3 it has taken the position
that the appropriate unit did not include a large
proportion of its employees whom it claims are
office clerical employees. Respondent also ac-
knowledged that it did not apply the contract to
these employees. Consistent with this position, Re-
spondent refused to recognize and bargain with the
Union for a new contract which would cover these
employees-the action which the Administrative
Law Judge found unlawful.
Thus, Respondent's unlawful refusal to bargain
on a new contract covering certain unit employees
was but a continuation of Respondent's earlier un-
broken course of conduct in refusing to apply the
previous collective-bargaining agreement to those
same employees. The allegation that Respondent
unlawfully refused to apply the contract and the al-
legation that Respondent unlawfully refused to bar-
gain on a new collective-bargaining agreement
both turn on the same question-who is in the unit?
We find, therefore, that the issue of whether Re-
spondent violated Section 8(a)(5) and (1) by failing
to apply the provisions of the collective-bargaining
agreement before its expiration, and thereafter by
failing to continue to maintain the wages, hours,
and terms and conditions of employment estab-
lished pursuant to that agreement, was closely con-
nected to the subject matter of the complaint and
has been fully litigated.4
Accordingly, we find that Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by failing
to apply the contract to all unit employees between
September 23, 1977,5 and its expiration on March
' Ortiz F'unelral Ilomle Corp.. 225 NLRB 1342 (1976).
See lhe Il,iokin Company. 236 NLRB 757. 758 (1978)1 Meilmun iood
Indurtries Inc., 234 NL.RB 698, 699 (19781: Cro-n Zellerhbach Corporation.
225 NL RB 911, 912 11976). Rochoieitr Cadet Cleansrs. Inc . 205 NLRB
773 (1973)
' The charge alleging ain unllafu l refual to bargain was filed on
March 23, 1978 Thu, ,our finding and remedy with respclt to the failure
C(oniIttiued
730
()OR I/ FLUNERAI l()OE C()RI'
21, 1978, and by failing thereafter to continue to
maintain the wages, hours, and terms and condi-
tions of employment established pursuant to that
contract. 6
Amended Remedy
In addition to the remedy provided by the Ad-
ministrative Law Judge, we shall order Respondent
to take whatever actions are necessary to fulfill its
obligations under the collective-bargaining agree-
ment from September 23, 1977, until its expiration
on March 21, 1978, and to continue to maintain the
wages, hours, and terms and conditions of employ-
ment established pursuant to that agreement until
such time as the parties bargain to a new agree-
ment or reach a bona fide impasse in such contract
negotiations.
The evidence shows that, in particular, Respond-
ent failed to make payments to a welfare fund and
a severance and retirement fund on behalf of unit
employees and refused to check off union dues for
those employees. Therefore, we shall order Re-
spondent to make whole the unit employees and
the Union by paying into the aforesaid funds all
contributions which it has, since September 23,
1977, failed to deposit therein, and by reimbursing
employees for any medical or dental bills they have
paid to health care providers that the contractual
policies would have covered, as well as any premi-
ums they may have paid to third-party insurance
companies to continue medical and dental coverage
in the absence of Respondent's required contribu-
tions. Further, we shall order Respondent to reim-
burse any employees for contributions they them-
selves may have made for the maintenance of the
Union's welfare and severance and retirement
funds since September 23, 1977.'
to honor the contract is limited to Respondent's conduct occurring
within the 10(h) period Of course, this limitation has no effect on any
obligation Respondent has to comply with the arbitrator's award
I Although the provisions of a collective-bargaining agreement do not
survive beyond its expiration, it is well established that after the expira-
lion of such an agreement an employer may not unilaterally change the
terms and conditions of employment established pursuant to that agree-
ment until a new contract is negotiated or the parties reached an impasse
in bargaining This, of course, does not apply to a union's right to dues
checkoff. which is extinguished on expiration of the collective-bargaining
agreement creating that right Bethlehem Steel Company (Shipbuilding Di-
vision). 136 NLRB 1500. 1502 (1962).
7 Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfulls
withheld fund payments We leave to the compliance stage the question
whether Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy. These additional
amounts may be determined, depending upon the circumstances of each
case. by reference to provisions in the documents governing the funds at
issue and, where there are no governing provisions, to evidence of an,
loss directly attributable to the unlawful withholding action, which might
include the loss of return on investment of the portion of funds s' ithheld.
additional administrative costs. etc. but not collateral los,es
Merryweatorhr Optical Co. 240 NLRB 110 ( 1979).
Respondent also shall be required to reimburse
the Union for any dues which, pursuant to dues-
checkoff authorizations, it failed to deduct from the
employees' paychecks and transmit to the Union as
required by the contract between September 23,
1977, and its expiration on March 21, 1978, insofar
as the Union has not obtained such dues directly
from employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge. as modi-
fied below, and hereby orders that the Respondent.
Ortiz Funeral Home Corp., New York, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the following as paragraphs l(b) and
l(c), and redesignate present paragraph l(b) as
I(d):
"(b) Failing and refusing to apply the terms of
the collective-bargaining agreement with the
above-named Union which became effective on
March 22, 1975, for the period between September
23, 1977, and the expiration of that agreement on
March 21, 1978, and failing and refusing thereafter
to maintain the wages, hours, and other terms and
conditions of employment established pursuant to
that agreement until such time as the parties bar-
gain to a new agreement or reach a bona fide im-
passe in such contract negotiations, including fail-
ing and refusing to make contributions on behalf of
all unit employees to the Insurance Trust Fund
Local 1034 and to the Local 813 and Local 1034
Severance & Retirement Trust Fund, as established
pursuant to that agreement.
"(c) Failing and refusing to remit to the above-
named Union dues which Respondent is required
to check off for all unit employees pursuant to
dues-checkoff authorizations as provided for in the
aforesaid agreement for the period between Sep-
tember 23, 1977, and the expiration of that agree-
ment on March 21, 1978."
2. Insert the following as paragraphs 2(b) and
(c), and redesignate the subsequent paragraphs ac-
cordingly:
"(b) Apply the provisions of the collective-bar-
gaining agreement with the above-named Union
which became effective on March 22, 1975, for the
period between September 23, 1977, and its expira-
tion on March 21, 1978, and thereafter maintain the
wages, hours, and other terms and conditions of
employment established pursuant to that agree-
ment, in the manner set forth in the section of this
DI)FtCISI()NS ()O: NATI()NAI. I A()OR RELA'I INS H()ARI)
Decision titled, "Amended Remedy," including: (1)
making whole all unit employees for any loss of
wages and benefits they incurred because of Re-
spondent's failure to apply or thereafter maintain
the established terms and conditions of that agree-
ment;8 (2) transmitting the contributions owed to
the Insurance Trust Fund Local 1034 and to the
Local 813 and Local 1034 Severance & Retirement
Trust Fund since September 23, 1977, as estab-
lished pursuant to that agreement; and (3) reim-
bursing unit employees for any medical and dental
expense ensuing from Respondent's unlawful failure
to make such contributions since September 23,
1977. This shall include reimbursing employees for
contributions they themselves may have made for
the maintenance of the Union's welfare and sever-
ance and retirement funds after Respondent unlaw-
fully failed to contribute, for any premiums they
may have paid to third-party insurance companies
for medical and dental coverage, and for any medi-
cal or dental bills employees have paid directly to
health care providers that the contractual policies
would have covered.
"(c) Reimburse the above-named Union for any
loss of dues occasioned by Respondent's failure, be-
tween September 23, 1977, and March 21, 1978, to
deduct dues pursuant to checkoff authorizations
and to remit the same to the Union as required by
the collective-bargaining agreement which expired
March 21, 1978."
3. Substitute the attached notice for that of the
Administrative Law Judge.
s In the event that Respondent is required to pay employees backpay
or reimburse them for other losses pursuant to this Order, interest on all
such sums shall be paid in the manner prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977). See, generally, Isis Plumbing d Heating Co.,
138 NI.RB 716 (1962)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to recognize and bar-
gain collectively with Local 1034, Internation-
al Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of our em-
ployees in the following appropriate unit:
All employees at our main office and at our
branch locations, including receptionists, re-
ceptionist-porters, office clerks, office man-
agers and office clerk-drivers, but excluding
licensed funeral directors, secretary-book-
keepers and drivers normally and regularly
engaged in the performance of such func-
tions, and excluding supervisors as defined
in Section 2(11) of the Act.
WE Wll.l. NOT fail or refuse to apply the
terms of our collective-bargaining agreement
with the above-named Union for the period
between September 23,1977, and the expiration
of that agreement on March 21, 1978, and fail
and refuse thereafter to maintain the wages,
hours, and other terms and conditions of em-
ployment established pursuant to that agree-
ment until such time as we bargain to a new
agreement with the Union or reach a bona fide
impasse in such contract negotiations, includ-
ing refusing to make contributions on behalf of
unit employees to the Insurance Trust Fund
Local 1034 and to the Local 813 and Local
1034 Severance & Retirement Trust Fund, as
established pursuant to that agreement.
WE WILL NOT fail or refuse to remit to the
above-named Union dues which we are re-
quired to check off for all unit employees pur-
suant to dues-checkoff authorizations as pro-
vided for in the aforesaid agreement for the
period between September 23, 1977, and the
expiration of that agreement on March 21,
1978.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed in Sec-
tion 7 of the Act.
WE WIL L recognize and, upon request, bar-
gain collectively with the above-named Union
as the exclusive representative of all employees
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 agreement.
WE WILL apply the provisions of our collec-
tive-bargaining agreement with Local 1034 In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
for the period between September 23, 1977,
and the expiration of that agreement on March
21, 1978, and thereafter maintain the wages,
hours, and other terms and conditions of em-
ployment established pursuant to that agree-
ment until such time as we bargain to a new
732
ORTIZ ElUNERAI. HO()ME CORP
agreement with the Union or reach a bona fide
impasse in such contract negotiations. includ-
ing making whole all unit employees for any
loss of wages and benefits they incurred be-
cause of our failure to apply or thereafter
maintain, since September 23, 1977, the estab-
lished terms and conditions of that agreement.
WE witl. make whole our employees in the
appropriate unit by transmitting our contribu-
tions to the Insurance Trust Fund Local 1034
and to the Local 813 and Local 1034 Sever-
ance & Retirement Trust Fund due since Sep-
tember 23, 1977, as established pursuant to our
collective-bargaining agreement with the
above-named Union which expired on March
21, 1978, and by reimbursing unit employees
for any medical and dental expense ensuing
from our unlawful failure to make such contri-
butions since September 23, 1977. This shall
include reimbursing our employees for contri-
butions they themselves may have made for
the maintenance of the above-mentioned funds
after we unlawfully failed to contribute, for
any premiums our employees may have paid
to third-party insurance companies for medical
and dental coverage, and for any medical or
dental bills our employees have paid directly
to health care providers that the contractual
policies would have covered.
WE WILL reimburse the above-named Union
for any loss of dues occasioned by our failure,
between September 23, 1977, and March 21,
1978, to deduct and remit the same to the
Union pursuant to checkoff authorizations as
required by the collective-bargaining agree-
ment which expired March 21, 1978.
ORTIZ FUNERA. HOME CORP.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: These
consolidated cases were heard at New York, New York,
on October 23, 30, and 31 and November 1. 1978.1 The
charges were filed on March 23 and April 5, respective-
ly, by Local 1034, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (herein the Union). The consolidated complaints,
which issued on May 9 and (as to Case 2-CA-15536)
I All dates herein are in 1978 unless iothersise indicated As a result of
a series of events. including lengths delay in forwarding documentary
evidence which Wcas to he submitted by stipulation of the partnies a
motion by the General Counsel to reopen Ihe hearing and consolidate the
case with a new complaint, which liter case ",as suhsequentl1 settled; a
motion by the General Counsel to delay closing the record. pending fur-
ther investigationn and a moition b, the General Counsel to reopen the
hearing to adduce further esidence (none of vshich .would hase added io
the merits if the case); the record ", as not closed until August h. 1979
were amended at the hearing, allege that Ortiz Funeral
Home Corp. (herein Respondent or the Company), vio-
lated Section 8(a)(1), (3), and (5) of the National Labor
Relations act, as amended. The gravamen of the com-
plaint in Case 2-CA-15497 is that the Company unlaw-
fully failed and refused to recognize and bargain with the
Union as the exclusive collective-bargaining representa-
tive of its employees in the appropriate unit. The grava-
men of the complaint in Case 2-CA-15536 is that the
Company threatened its employees with reprisal if they
joined or assisted the Union, directed them to withdraw
membership in the Union, and engaged in several dis-
criminatory actions against employee Carlos Quintana
which culminated in his constructive discharge. The
Company's answer denies the commission of the alleged
unfair labor practices. All parties were afforded full op-
portunity to participate, to present relevant evidence, to
examine and cross-examine witnesses, to argue orally,
and to file briefs.
Upon the entire record in this case2 and from my ob-
servation of the demeanor of the witnesses, and having
considered the briefs submitted by the parties, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Company, a New York corporation with its prin-
cipal office and place of business in the Bronx, New
York, is engaged at various facilities in New York City
in the business of operating funeral homes and providing
burial and related services. In the operation of its busi-
ness, the Company annually receives gross revenues in
excess of $500,000 and annually purchases goods valued
in excess of $25,000 directly from firms located outside
the State of New York. I find, as the Company admits,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
1n. THE L.ABOR ORG;ANIZAON INVOI VF.t)
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Iti. THE ALLEGE(D UNFAIR I ABOR PRACTICES
A. Background. Nature of the Company's
Operations,and History of Litigation and Negotiations
Involving the Union s Representative Status
The Company maintains its main office and principal
place of business at 524 Southern Boulevard in the
Bronx. That facility consists of the main office, several
chapels, i.e., locations for the performance of funeral
services, and a garage. The Company also maintains
2 By a separate order annexed to this Decision. I hase directed that the
official transcript of proceedings be corrected in certain minor ior ohsl ,us
respects The record of the present case also includes an 8KX)-pagc traln-
script of proceeding hefore Arbitrator D)a id S l ande of Ihe Ne ' iork
Stale Nledialionll Board The arhilr;llion proceeding is inimnailc. inolx red
swith the present case and will he discussed in connecctioln .itih it At the
presenl hearing, I ruled thai the aihlriallll rc ord as uld he conisidered
inl lieCu of prescilation of eidencLc at the utfair labor pratisce hearinlg
concerrillng urni placcmenl oi( emplo, ccs
1)FtCISIt)NS ()F NA IONA I.ABO)R RELATIONS BO()ARI)
branch facilities at various locations in the Bronx, Man-
hattan, and Brooklyll. As of the spring of 1978, the Com-
panl had nine such facilities, referred to in the Compa-
ln's stationer> letterhead as "conveniently located chap-
els. " :' In fact. funeral services are conducted at all of the
facilities. As indicated, the Company is engaged in the
business of operating funeral homes and providing burial
and related services. The Company principally serves the
Hispanic community. Prior to December 1974, the Com-
pany usually had two employees working together at
each branch facility. In late 1974 the Union conducted
an organizational campaign among the Company's em-
ployees and in December 1974 commenced a strike
against the Company. As an outgrowth of these develop-
merits, the Union filed an unfair labor practice charge,
and on January 24, 1975, the General Counsel of the
Board, by the Regional Director issued a complaint
(Case 2-CA-13540) alleging that the Company was vio-
lating Section 8(a)(l) and (3) of the Act, and requesting a
remedial bargaining order. The complaint alleged, in
sum, that a majority of employees in an appropriate unit
designated the Union as the collective-bargaining repre-
sentative, that the Union requested but was refused rec-
ognition, that the Company engaged in unlawful threats
and interrogation, and discriminatorily discharged eight
employees, and that the strike was caused or prolonged
by the Company's unfair labor practices. On March 21,
1975, the Company and the Union entered into an infor-
mal settlement agreement which was subsequently ap-
proved by the Board's Regional Director. The Company
agreed in sum, to refrain from in any manner interfering
with, restraining, or coercing its employees in the exer-
cise of their Section 7 rights, to reimburse the alleged
discriminatees for their losses and to reinstate them
(except for one who waived reinstatement), and to rec-
ognize and bargain with the Union as the exclusive rep-
resentative of the employees in the following unit:
All attendants, floorpeople, receptionists, inter-
preters and porters, excluding all licensed embalm-
ers, undertakers, drivers, managers, official clerical
employees, bookkeepers, guards, watchmen and su-
pervisors as defined in Section 2(11) of the Act.
Eventually all of the reinstated employees left the
Company's employ. After the strike, the Company's
volume of business was lower than it had been prior to
the strike. The Company "streamlined" its personnel
complement. This change was principally effectuated by
having only one employee regularly on duty at a time at
each of the branch facilities. One employee worked a
day shift, normally from 8 a.m. to 4:30 p.m., and a
second worked an evening shift, normally from 4:30 p.m.
to midnight. Prior to the strike, the Company had a per-
sonnel complement which ranged from 30 to 35. As of
March 28, 1978, the Company had a personnel comple-
ment of 22, including its president, Michael Ortiz. Ortiz
testified in the arbitration proceeding (discussed infra),
that he eliminated the "receptionist" at the branch loca-
tions, as an unnecessary "luxury." Ortiz defined a recep-
:' A, will he discussed, olle of the facilities. the East New York chapel,
\s.s lnort acliv e: fulnctionling during most of this period.
tionist as a person or individual who opens the door for
people and is a greeter and would direct or show people
where different chapels are where bodies may be laying.
The Company contended in the arbitration proceeding
and contends in this proceeding that by reason of paper-
work and arrangements performed by the employees at
its branch facilities, they are "office clerks" and therefore
excluded from the recognized bargaining unit. The Com-
pany contends that with the exception of three employ-
ees, apparently working at the main facility, whom it
classified as "receptionist," the March 28 complement
consisted of "office clerks" or other personnel who fell
into job categories which were excluded from the unit.
Following the settlement agreement the parties bar-
gained over and negotiated a contract, but their efforts
resulted in further Board litigation. The Union filed a
charge, and on September 29, 1975, the General Counsel
issued a complaint alleging that the Company was violat-
ing Section 8(a)(5) and (1) of the Act by refusing to sign
a contract which had been agreed upon by the parties.
Following a hearing, Administrative Law Judge Benja-
min B. Lipton issued a Decision and recommended
order, which was substantially affirmed by the Board
(225 NLRB 1342, decided September 16, 1976), finding
that the Company violated the Act as alleged in the
complaint. Administrative Law Judge Lipton found, in
sum, that the parties negotiated a contract, but that a
question arose as to the number of employees in the unit.
The Union said that there were 18 to 21 employees, and
the company countered that there were only 3 or 4. The
Union proposed to submit the matter to arbitration but
the Company refused to sign the agreed-upon contract
only because the Union refused to specify the names of
the employees covered thereby. Administrative Law
Judge Lipton found that the Company thereby violated
Section 8(a)(5) of the Act. Specifically, Administrative
Law Judge Lipton found that: (I) the Company's
demand was an afterthought, in that the Company did
not request a list of names until after negotiations were
completed; (2) the demand was a delaying tactic; (3) the
bargaining unit is defined by classifications, not names;
(4) the Company knew from the classifications which
employees were included in the unit; and (5) assuming
that there was a genuine dispute, the contractual griev-
ance and arbitration machinery was designed to resolve
that dispute. The Board ordered the Company to sign
the agreed-upon contract covering the bargaining unit
employees, i.e., the same unit defined in the previous set-
tlement agreement, and to refrain from violating the Act
in any like or related manner. Neither the Administrative
Law Judge nor the Board discussed the relative merits of
the parties' positions as to the number of employees in
the unit. On June 6, 1977, following oral argument, the
United States Court of Appeals for the Second Circuit
enforced, without opinion, the Board's Order. The Com-
pany thereupon signed the agreed upon contract, which
was effective by its terms from March 22, 1975, through
March 21, 1978. 4
4 The Board's findings and conclusions in the unfair labor practice case
are ret judicata as to the matlers coN:ered therein. and cannot, be reliligat-
Continued
O)R1IZ : LINI RAI tLOMI() CO()RI'
Unfiortunlately, the protracted litigation failed to re-
solve the underlying controversy between the parties.
The contract, which the Company signed only because it
was ordered to do so, contained provisions for a unlion
shop, checkoff of union dues, and employer payments to
welfare and to severance and retirement funds. The
Company applied these provisions only on behalf of
those employees whom it considered to he in the bar-
gaining unit, i.e., the relatively small number of employ-
ees whom it classified as "receptionists." The contract
also provided for resolution of disputes or differences be-
tween the parties, initially through discussion, but, failing
such efforts, through binding arbitration by an arbitrator
designated by the New York State Mediation Board. The
contract further provided, in sum, that the arbitrator
could interpret, but not change, add to, or subtract from,
the terms of the contract. In August 1977, the Union re-
quested and was granted permission to make an audit of
the company payroll records for all of its employees
since March 1975. As a result of the audit, the Union
concluded that the Company was failing to make contri-
butions and to check off dues as provided in the con-
tract. Union Auditor Stanley Weinblatt testified in the
arbitration proceeding that he included in the Union's
claim all personnel listed on the Company's payroll rec-
ords for the contract period, because he had no way of
knowing the category of each individual. Discussion be-
tween the parties proved fruitless, and the Union in-
voked the contractual arbitration process. Whether or
not the Company furnished Weinblatt with records
which clearly indicated the job categories of each em-
ployee (and the arbitration transcript is not conclusive in
this regard), it is evident that the Union and the Compa-
ny were talking on different levels. The Union was con-
cerned with the nature of the work performed by the
employees, whereas the Company viewed the job titles
which it assigned to the employees as being dispositive
of their status vis-a-vis the unit. Specifically, the Compa-
ny regarded most of the employees at the branch facili-
ties as "office clerks" who were excluded from the bar-
gaining unit, and the Union did not accept this definition.
During the course of discussions between the Compa-
ny and the Union in the late summer and early fall of
1977, Company President Ortiz received a letter from
Union Auditor Weinblatt, dated October 14, 1977, the
text of which stated as follows:
RE: FUND CONTRIBUTIONS, ETC.
Dear Mr. Ortiz:
This will confirm our receipt of your letter dated
October 3, 1977, and our subsequent telephone con-
versation during which you advised me that the
reason for your position was that you were advised
that you should see the check-off cards first for
those employees whom you agreed you were liable
for. Accordingly, I am enclosing copy of such
check-off cards and a list of signatories. Please note
ed in the present cae Luabrcr, Ilteornaru onl :ni,. ln, ol No. 282 t/fill
tone Conistruction, ( C nmpunm ). 2h Nt RB h21. t23 (1978 I herefore, I
have not taken intol conns.iderlation testimonn b5. Companl, I'rredlentl ()rtiz
in the arhbtratloni proceeding concerning hi , ierimll of the 1975 negonla-
tions
that there are four additional emplohces s. ho e.-
ecuted such cards. A supplementary bill is thereforce
also included for the amiunts due li'r those four
employees. I'll assume that , ou xx ill likes wise agree
that contributions are duC on their behalf as you
agreed they were due for the others. Accordingls. I
would appreciate receipt of your check by return
mail on behalf of the enmployees whose checlk-off
card copies have now been furnished to you
The letter was accompanied hb five purported copies of
membership applications and checkoff authorizations for
five employees, together with a statement of dues and
initiation fees owed for four of those employees. None of
the five individuals were still employed by the Company
as of March 28, 1978. Company President Ortiz testified
that upon receiving the letter, he called Union President
Bernard Adelstein and told him that the fi' e indixiduals
were office clerks who were not in the bargaining unit.
The context and correct significance of Weinblatt's letter
is not entirely clear. Ortiz' October 3 letter, referred to
by Weinblatt, was not presented in evidence in this case
Weinblatt was not presented as a witness in the present
unfair labor practice proceeding, and he did not testify
about the letter at the arbitration hearing. Bernard Adel-
stein testified that he was not familiar with the letter.
However, in light of subsequent discussions between the
parties (which will be discussed, infra), it is evident that
the October 14 letter was the only occasion on which
the Union furnished membership applications or checkoff
authorizations on behalf of employees who the Company
contended were outside of the recognized bargaining
unit.
On December 15, 1977. the Union sent a letter to the
Company requesting negotiation of a contract to replace
the existing contract which was scheduled to expire on
March 21, 1978. On March 6, union secretary-treasurer
Martin Adelstein (Bernard Adelstein's son) sent a letter
to the Company, enclosing the Union's contract propos-
als, and requesting that they meet on March 10 at II
a.m. at the Union's office. Martin Adelstein testified that
the date reflected confirmation of an agreement between
Company President Ortiz and Union Business Agent
James Leahy. In the meantime, on February 3, the arbi-
tration hearing opened before Arbitrator David S.
Lande. Arguments were presented and testimony of one
witness was taken on that date, but the arbitrator sug-
gested that the parties make a further effort to resolve
the dispute. On March 10, Michael Ortiz came to the
union office, accompanied by his attorney, Jacob Ra-
binowitz. It immediately developed that there was a mis-
understanding as to the purpose of the meeting. Ortiz
found only Martin Adelstein and Union Attorney Rich-
ard Weinmann. Ortiz asked about Bernard Adelstein and
was told that he was in California. Martin Adelstein
stated that he was prepared to meet and discuss a con-
tract and any other matters. Ortiz answ ered that he w as
not there to negotiate a contract, but to meet with Ber-
nard Adelstein to try to settle the arbitration matter
()rtiz added that if he knew a contract (N.ould be dis-
cussed, he would have brought Attorney George Tur-
chin (Turchin represented the Company in the arhitra-
DECISIONS OF NAIO()NAL L.ABOR RELATI()NS O()ARI)
tion proceeding and represents the Company in the pres-
ent proceeding). Ortiz did make a monetary proposal for
settlement of the arbitration, but Martin Adelstein subse-
quently informed his father that the amount was too
low. 5
After Bernard Adelstein returned to New York, the
parties scheduled another meeting for March 28. In the
meantime, the arbitration proceeding went through 2 ad-
ditional days of hearing (March 6 and 22), the Union
filed its charge alleging a refusal to bargain, and events
occurred as a result of which General Counsel now al-
leges that the Company threatened and harassed Carlos
Quintana because he applied for union membership. The
arbitration matter was not discussed at the March 28
meeting, and both parties understood (Michael Ortiz so
testifying) that they were there to discuss a contract.
Bernard Adelstein and Attorney Weinmann were present
for the Union and Michael Ortiz and Attorney Turchin
for the Union. Adelstein asked Ortiz if he was ready to
negotiate a contract, and Attorney Turchin answered
that he wanted to see the Union's cards. Adelstein asked
if they were "playing games again," asserted that they
were there to negotiate a contract, and refused to show
any signed cards. Adelstein asserted that Carlos Quintana
was penalized for signing a card and that other members
had been fired. Turchin asked to see the results of the
Union's "survey," but Adelstein replied that they had
nothing. 6 Adelstein said that the Union was only seeking
to represent the employees in the "unit," and Turchin as-
serted that the Company would recognize the Union for
the people in the "unit." However, as always, they could
not agree on who was in the "unit." The attorneys dis-
cussed possible means of resolving the question. The
Company agreed to supply a current list of employees
and their job titles, and the meeting essentially ended on
this note. There was no discussion of contract terms. Im-
mediately following the meeting, the Company furnished
the Union with a purported list of current employees and
their job classifications. The list was prepared by the
Company's secretary-bookkeeper, Edna Mattei. There is
no dispute as to the number or identity of the employees,
but their classifications or the accuracy of such classifica-
tions were and still are very much in dispute. The list
(with corrections of obvious misspellings or other errors)
is as follows:
I. Arthur Puerta
2. Anna McKeacham
3. Carlos Cruz
4. Pedro Castro
Receptionist
Secretary
Office Clerk-Driver
Office Clerk
s The foregoing account of the March 13 meeting is hased on a corm-
posite of the testimony of Martin Adelstein and Michael Ortiz In view of
Ortiz' testimony that he stated that he was nriot here to negotiate a con-
tract, I do not credit his assertion. in a subsequent letter to the Union,
that he came both to resolve the arbitration and to open contract negolia-
tions As the complaint alleges an unlawful refusal to hargain "since on
or about March 28. 1978" (the date of the next meeting between the par-
ties), it is unnecessary for me to decide whether Ortiz acted unlawfully
by refusing to discuss co.itract terms on March 13
{ Michael Ortiz testified that in September 1977. he understood frorm
one of the Adelstteils that the ULnioti inlended to send out letters to each
of the employee,. requestilg their jobh itles and job descripti on iBernlard
Adelstle i testfied that the niion tried to take such a sur\ey, hut did nrot
get responses from all iof the emploees
5. Anna Loperina
6. Cruz Melendez
7. Michael C. Ortiz
8. Richard Ortiz
9. Nancy M. Ortiz
10. James Sibley
11. Ignacio Otin
12. Antonio Quiros
13. Gilberto Taveras
14. Carlos Vazquez
15. Harvey Williams
16. Roger Rojas
17. Barbara Ortiz
18. Alfredo Serrana
19. Edna Mattei
20. Iris Velez
21. Carlos Quintana
22. Blanche Rivera
Secretary
Office Manager
President
Office Clerk-Office Manager
Sec retary- Book keeper
Funeral Director
Office Clerk
Office Manager
Office Clerk
Office Clerk
Funeral Director
Office Clerk
Receptionist
Office Clerk
Secretary-Bookkeeper
Secretary
Office Clerk
Receptionist
The parties next met on April 7 with the same individ-
uals present as were at the March 28 meeting. Adelstein
asked if the Company was ready to negotiate. Attorney
Turchin asserted that there were only three unit employ-
ees on the list (the three identified as receptionists) and
asked if the Union wanted to negotiate for them. Adel-
stein asserted that the Union represented about 20 of the
22 individuals on the March 28 list. In fact, as a result of
stipulations between the parties in the ongoing arbitra-
tion proceeding, the parties knew as of March 6 which
individuals were in dispute. As a result of personnel turn-
over during the 3-year contract period, the status of
some 135 individuals was ostensibly in dispute, including
those whose names appeared on the Company's March
28 list. As a result of stipulations, the number in dispute
was slightly reduced. With respect to the company per-
sonnel as of March 28, the Union conceded that Michael
Ortiz, Harvey Williams, and Edna Mattei were outside
the unit, and the Company conceded that "receptionists"
Arthur Puerta, Barbara Ortiz, and Blanche Rivera were
in the unit.
At the April 7 meeting, the parties discussed means
whereby the unit composition problem could be re-
solved. They agreed in principle on joint interviews with
the employees. Attorneys Weinmann and Turchin were
to work out the details. Eventually they failed to reach
agreement. Neither testified as a witness, and there was
no stipulation as to the reasons why no agreement was
reached. However, the tenor of their correspondence in-
dicates that Turchin wanted job titles to be decisive,
whereas Weinmann considered the nature of work per-
formed to be decisive. Bernard Adelstein testified that at
both the March 28 and April 7 meetings, Turchin assert-
ed that the Company had a good-faith doubt of the
Union's majority status. However, Adelstein's testimony
was inconsistent with a letter which he sent to Michael
Ortiz on April 14, in which he purported to summarize
both meetings. According to Adelstein's letter, Turchin
stated at the March 28 meeting that the Company recog-
nized the Union but that the unit had to be clarified; and
stated at the April 7 meeting that the Company would
not bargain unless the Union showed proof of majority
and that the Company would recognize the Union "for
73h
()ORI'IZ F 'Nt:RAI. HO()ME CO()RP'
whatever number we had a majority of." Actually, by
subsequent correspondence from the attorneys. the par-
ties made clear their respective positions. By letter dated
April 18, Turchin informed Adelstein that "In view of
your claim to represent virtually all of the employees of
the Employer, the Employer has a good-faith question as
to the majority status of the Union." Turchin added that
the Company would recognize the union as representa-
tive of any employee who signed a union card indicating
that the employee was a "receptionist" or in any other
unit category. By letter dated April 21, Attorney Wein-
mann responded to Turchin's letter. Weinmann asserted
that the Union sought to represent only the unit employ-
ees, and that the nature of the work done by the employ-
ees was decisive. Weinmann further asserted that the
Company had a main office and nine branches, with one
employee at each branch on days and one on nights, and
that all of them functioned as "receptionists." Weinmann
further asserted that Edna Mattei was the only office
clerical. Weinmann conceded that Harvey Williams was
a licensed funeral director who was excluded from the
unit. However, he asserted that James Sibley, although
licensed as a funeral director, performed no embalming
or undertaking work, but actually worked as a reception-
ist, and therefore was in the unit. Weinmann also assert-
ed that the fact that some receptionists might drive on
occasion did not operate to exclude them from the unit.
Weinmann demanded that the Company meet and bar-
gain with the Union. These letters constituted the final
discussions between the parties and there were no further
negotiations. At the present hearing company counsel as-
serted, in sum, that the Company had a good-faith doubt
of the Union's majority status because the Union sought
a contract covering employees who were outside the
bargaining unit.
The arbitration hearing resumed on April 24, contin-
ued on May 5 and 18 and June 26, and concluded on
June 27. Carlos Quintana testified for the Union at the
April 24 session. On November 10 (after testimony was
completed in the present unfair labor practice hearing),
Arbitrator Lande issued his "Opinion and Award." The
ultimate questions presented in the proceeding were
whether the Company violated the contract by failing to
contribute moneys to the insurance and severance funds
and to the Union on behalf of employees, and, if so,
what remedy was appropriate. However, the fact of non-
payment and the Union's mathematical calculations were
not in dispute. Rather, as recognized by the arbitrator,
the arbitration called for a determination as to which em-
ployees, both past and present, were in the unit. The
principal question as presented by the parties was wheth-
er the employees at the branch facilities were reception-
ists, as contended by the Union, or office clerks (or oth-
erwise in an excluded category) as contended by the
Company. However, the arbitrator concluded that the
issue was not whether the employees were receptionists
or office clerks, but whether they were properly includ-
ed in the unit. After reviewing the evidence, the arbitra-
tor found that in some respects the employees fell into
both job categories. He found "most significant" the tes-
timony by Michael Ortiz to the effect that the employees
at the branch facilities performed the functions of both
receptionists and office clerks because they greeted cus-
tomers and showed them the chapels, as well as filling
out forms and doing paper work. He further found that
they performed other functions, the extent of which will
be discussed under the next heading of this Decision.
The arbitrator found that the employees at issue could
not be categorized exclusively as receptionists or office
clerks. Rather, he applied what he considered to be fun-
damental principles of labor relations, namely. that an
employee who is sequestered by the employer from the
unit cannot be assigned to perform unit work unless the
employer complies with unit obligations, i.e., the con-
tract, and that an employee who performs most of his
job doing unit work is properly included in the unit,
even though he may be assigned additional, nonunit
work. The arbitrator further held that those employees
at issue who regularly performed substantial bargaining
unit work were properly included in the unit. Applying
these principles to the evidence, the arbitrator held that
the Company was obligated under the contract to make
payments on behalf of some 100 of the employees at
issue, including all of the disputed employees listed on
the Company's payroll as of March 28 except "secretary-
bookkeeper" Nancy Ortiz.
The Union filed a petition in the New York State Su-
preme Court to confirm the arbitrator's award, and the
Company filed a cross-petition to vacate and set aside
the award. On February 20, 1979, Judge Schwartz of the
Supreme Court issued a Decision vacating and setting
aside the award. Judge Schwartz noted that paragraph
7(h) of the collective-bargaining contract provided that
the Company shall notify the Union of the "classifica-
tion" of each newly hired employee. He held that the ar-
bitrator "did not merely interpret the language of the
agreement but actually reclassified employees in order to
render his award." Judge Schwartz held that this "re-
classification" was in direct violation of the Company's
right under the contract to classify its employees, and
that therefore the arbitrator exceeded his power in
making the award, in that the arbitrator had no authority
to alter the contract. I have not been informed that the
Union has filed any appeal from the Decision of Judge
Schwartz. Therefore, it may be presumed that his Deci-
sion constitutes the final disposition of the arbitration
proceeding.
B. Findings With Respect to the Bargaining Unit, and
Concluding Findings With Respect to the Alleged
Unlawful Refusal To Recognize and Bargain With the
Union
The threshhold question posed by the foregoing facts
concerns the weight which should be accorded to the
disposition of the arbitration proceeding. As a matter of
law, the Board is not bound by an arbitration award.
Spielberg Manufacturing Company, 112 NLRB 1080, 1081
(1955). Rather, the Board may at any time invoke its "su-
perior authority to pass upon and if necessary remedy al-
leged unfair labor practices," including questions, e.g., of
whether "employees involved in the controversy are
members of one bargaining unit or another, which have
been or are the subject of contractual arbitration pro-
737
I)C.ISI()NS ()OF NA'II()NALI .At()R REI.ATI()NS B()ARD
ceedinigs." Carey X. Westinghou'se Corp., 375 U.S. 261, 272
(1964). However, as a matter of policy, the Board will
normally defer to an arbitration award if "the proceed-
ings appear to have been fair and regular, all parties had
agreed to be bound, and the decision of the arbitration
panel is not clearly repugnant to the purposes and poli-
cies of the Act." Spielberg, supra, 112 NLRB at 1082.
Interestingly, none of the parties in the present case
has argued that there should be a deferral to the arbitra-
tion proceeding. The present case is somewhat unusual in
that the arbitrator's award was judicially set aside.
Therefore, the final disposition of the arbitration pro-
ceedirig consists not of the arbitrator's opinion and
award, but. rather, of the Decision of Judge Schwartz
vacating and setting aside that award. Insofar as Judge
Schwartz' Decision may be deemed as an affirmative dis-
position of the arbitration proceeding in favor of the
Company, deferral is not appropriate, because Judge
Schwartz based his decision on a premise which is con-
trary to Board law. Judge Schwartz held, in essence,
that the employer's own classification of the employees
whose status is in dispute must be deemed conclusive on
the question of whether they are included in the bargain-
ing unit. This is not the standard which is followed by
the Board. Rather, in making this determination the
Board will determine "whether in reality they constitute
a functionally distinct group and whether as a group
they do have overriding special interests; and . . . this
determirratrion must be based upon the JAictual situation ex-
isting in each case and not upon title, tradition or practice."
Kalamazoo Paper Box Corporation, 136 NLRB 134, 138-
139 (1962) (emphasis supplied). Moreover, "dual-function
employees," i.e., those who perform both unit and non-
unit work, are included in the unit if they are regularly
employed at unit work for sufficient period of time to
demonstrate that they have a substantial community of
interest in the unit's wages, hours and conditions of em-
ployment, even though such work may occupy less than
one-half of their working time. Bereax Publishing Compa-
ry. 140 NLRB 516, 518-519 (1963). In the present case,
the Board's standards are particularly important, because
the unit was formulated through the processes of Board
litigation. Although the Company and the Union were
involved in negotiating the settlement of the first unfair
labor practice case, the unit was formulated as part of a
Board settlement of that case. Moreover, the unit was
subsequently found appropriate and confirmed by the
Board in the later unfair labor practice case. Therefore,
at least for the purpose of determining the composition
of the bargaining unit, the Board settlement and the sub-
sequent Board Decision and Order in the litigated unfair
labor practice case are the equivalent of a certification
following a Board-conducted election.
I do not agree with the General Counsel's assertion at
the hearing that in deciding this case I need not consider
the composition of the unit. It is evident from the history
of litigation between the parties that much time, expense,
and effort have been expended, precisely because that
question has not been resolved. In effect, the General
Counsel would have me resolve this case in the same
mlanner that the previous unfair labor case was decided.
If so, thenl this case would better have been brought by
way of contempt proceedings in the court of appeals. In
retrospect, it is evident that the previous case failed to
resolve the underlying dispute between the parties, and
thereby simply became the prelude to further litigation.
Moreover, the factors on which the Administrative Law
Judge relied are either not now present or are distin-
guishable. The Company raised the matter of unit com-
position in a timely fashion; i.e., at the outset of negotia-
tions. Indeed there was a pending arbitration proceeding
involving that question. Although a bargaining unit is de-
fined by classifications rather than names, there was and
still is a serious question as to the meaning and scope of
those classifications, involving most of the Company's
employees. In light of the Decision of Judge Schwartz,
the Company's position can hardly be characterized as
frivolous. Moreover, the grievance and arbitration ma-
chinery which the Administrative Law Judge anticipated
would resolve the dispute has failed to resolve that dis-
pute in a manner which is consistent with the purposes
and policies of the Act. Therefore, I find that it would
effectuate the purposes of the Act to resolve the unit
composition matter.
The next question concerns the weight, if any, to be
accorded to the arbitrator's opinion and award, which
now' stands nullified by judicial decision. In arriving at
his Decision, the arbitrator utilized principles which, al-
though not wholly identical with those followed by the
Board, were not as clearly in conflict with Board law as
that relied upon by Judge Schwartz. However, the arbi-
trator, as well as the parties to this case, seem to have
fallen into a misconception of the term "office clerical
employees," although the arbitrator found it unnecessary
to decide whether any employees were properly so cate-
gorized. For many years, since its Decision in D. M. Ste-
ward Manufacturing Company, 102 NLRB 461, 462
(1953), the Board has used the two distinct terms, "office
clerical employees," and "plant clerical employees" to
define categories of employees performing clerical work.
Normally, in an industrial setting, plant clericals are pre-
sumed to have a community of interest with the produc-
tion and maintenance employees, and therefore will be
included in the production and maintenance unit unless
the parties have agreed basically to exclude all plant
clericals as a class. Raybestos Manhattan, Inc., 115 NLRB
1036, 1038 (1956). Conversely, office clericals, who often
work in close proximity and association with manage-
ment, are usually excluded from a production and main-
tenance unit.
The Company's branch chapels, like the chapels which
are located at the Company's main facility, are the equiv-
alent, in industrial terms, to the "plant," i.e., the locus
where the employer's business, whether it be production,
distribution, sales, service or what have you, is actually
performed. The Company's branch facilities are not of-
fices; rather, as correctly indentified on the Company's
letterhead, they are "chapels," where part of the Compa-
ny's normal operation, i.e., the performance of funeral
and related services, is performed. The presence of a
desk, typewriter, or forms does not operate to convert
these facilities into offices, any more than the presence of
such equipment in a workshop or warehouse operates to
OR- l/ IZ LN R-XAIl H()OM1: CORI'
convert those premises into offices. Indeed. some of the
branch facilities do not even have typewriters. Even the
use of the telephone, normally an important factor in any
"office." is limited The branch employees are permitted
to use the Company's telephones only to receive incom-
ing calls. To make outgoing calls, they must use a coin-
operated public phone on the premises (for which they
are reimbursed for business calls), and the employees are
normally expected to use those phones only for the pur-
pose of reporting information to the main office. The
main office is in fact the Company's only "office," inso-
far as the Board normally uses that term. The main office
is the location where management functions, operations
are directed and coordinated, bookkeeping is performed.
bills are processed, payments made and received, and
where personnel and most other records are kept. To the
extent that paperwork is performed at the branch loca-
tions, i.e., the preparation of simple forms and applica-
tions for customers, such work is incidental to the princi-
pal function of performing funeral and burial services. In
sum, it is the equivalent of "plant clerical" work which
is incidental to and performed in close proximity to the
employer's normal operations.
Although the Board has not expressly made an equa-
tion between the operation of funeral homes and industri-
al plants, the Board has in essence applied the foregoing
principles in representation proceedings involving funeral
homes. Thus, in D. W. Newcomer's Sons, 117 NLRB 565,
566 (1957), the Board found appropriate a unit of funeral
home employees which included "clerical-receptionists."
These employees spent 25 percent of their time at the
switchboard, located in the auditing department. The re-
mainder of their time they acted as receptionists and
hairdressers. Their duties as receptionists required them,
along with the assistant funeral director, to meet people
at the door of the funeral home at the time of the serv-
ice, escort them to the proper chapel, and take them to
the reposing room. The Board found that notwithstand-
ing their substantial office functions, they performed
work "closely allied with that performed" by other fu-
neral home workers, and therefore included them in the
unit. In contrast, the branch employees in the present
case perform all of their normal functions, clerical or
otherwise, away from the main office. Conversely, in
Riverside Memorial Chapels, Inc., 226 NLRB 2, 3 (1976),
the Board excluded from an appropriate unit of funeral
home employees, administrative personnel, and switch-
board operators whose "duties are primary clerical and do
not substantially contribute to the rendition of the funeral
service or arrangements." (Emphasis supplied.)7
In the arbitration proceeding, the Company adduced
the testimony of one Franklin Brescia, an alleged expert
witness with respect to the funeral home industry. Bre-
cia's qualifications consist, in sum, of the fact that he is a
licensed funeral director who operates a funeral home
7 In the arbitration proceeding. the Union submitted to the arbitrator
an unreported representation case decision in Jeffers Funeral Homnes. Inc..
Case 29-RC-2143. which apparently discussed the duties or "floormen"
No party has submitned that Decision to me, and I have not taken admin-
istrative notice of it Such decisions are res judicata only "uith respect to
related cases involving ihe same employer. and do not conslitute auhori-
tative Board precedent
business (essentially catering to the same potential market
as the Company) and that he previously worked for
other funeral home firms, but not the Company. Brescia
testified that a "receptionist" is an employee whose only
functions consist of greeting people as they come to the
home, and directing them to the chapel, and that an
"office clerical" assists the funeral director in preparing
papers. However, it is evident that Brescia's knowledge
was based on funeral homes where there were two or
more personnel on duty, and that he had no familiarity
with the type of operation conducted by the Company.
Brecia testified that, in his experience, a licensed funeral
director was always on the premises, that a trainee assist-
ed the director in moving the body within the chapel,
that most homes supplied their own "extra man," that
the receptionist was the "man at the door," and that the
receptionist never filled out forms or assisted in moving
the body. Brecia further testified, in essence, that in his
view the Company's modus operandi at its branch facili-
ties was at least in part unlawful. Brecia testified that by
reason of Department of Health regulations (which he
did not cite, and which were not otherwise cited), only a
licensed funeral director can discuss prices, give substan-
tive information. or even take information from custom-
ers or prospective customers. According to Brecia, the
unlicensed "receptionist" can only put the customer in
contact with a licensed funeral director. However, wit-
nesses for the Union, as well as witnesses for the Compa-
ny (Edna Mattei and James Sibley) testified that the
branch employees give information, including prices, to
prospective customers. Absent authority to the contrary
(and none has been shown) I must assume that the Com-
pany is operating in a lawful manner. In sum, I find that
Brecia's definition of job categories bears no meaningful
relation to the Company's type of operation. I further
find that the evidence adduced at the arbitration hearing
fails to indicate that there is any commonly understood
definition of the term "office clerk" which is unique to
the funeral home industry and which would be applica-
ble to the Company's operations. Therefore, it is appro-
priate to apply the Board's own application of that term,
particularly where as here, the unit was formulated
through the processes of Board litigation, and not simply
as a result of collective bargaining between private par-
ties.
The evidence adduced at the arbitration hearing indi-
cates that as of March 28, the Company had only two
office clerical employees, as that term is utilized under
Board law. The status of secretary-bookkeeper Edna
Mattei is not disputed. Mattei testified that Nancy Ortiz
(denominated "secretary-bookkeeper" on the Company's
list) was actually an assistant bookkeeper who helped
Mattei with the Company's books. The evidence does
not indicate that Nancy Ortiz worked at any branch lo-
cation, or performed anything other than clerical work.
Therefore Nancy Ortiz, like Mattei, was an office em-
ployee, and not in the bargaining unit. The remaining
employees as of March 28, whose status is in dispute,
were identified as working regularly at the branch loca-
tions. Therefore, they were not office clerical employees,
regardless of the fact that they performed paperwork
I)1ECISI()NS ()01 NA I ()NAl I A()R RELATI(ONS BO)ARD
which was incidental to the "funeral service or arrange-
ments." Riverside Memorial Chapelc. supra.
If the branch employees are not office clerks, then
what are they? The branch employees perform a variety
of functions. They answer telephone calls from the main
office and from customers and the bereaved family.
When prospective customers come in, they will take
down information, answer their inquiries, give them per-
tinent information, including estimated costs, and place
them in contact with the main office for the purpose of
making definite arrangements. The branch chapels have
catalogues with pictures of different types of caskets, and
in some locations there are showrooms with caskets on
display. The branch employee shows these to prospec-
tive customers and indicates prices. Once an agreement is
consummated, the branch employee assists in coordinat-
ing and making arrangements for the funeral service and
burial, e.g., by arranging for a Mass or any other type of
religious service, flowers, prayer cards, or airline tickets
if the body is to be shipped overseas. The branch em-
ployee acts as an agent for the sale of flowers and airline
tickets, and receives a commission for such transactions.
The branch employee assists in moving the body within
the branch premises. At the funeral service, the branch
employee greets people and directs them to the chapel (it
is undisputed that such work, at least, constitutes work
traditionally performed by a "receptionist"). The branch
employee is also responsible for keeping the branch
premises in a clean and orderly condition. The branch
employees pick up burial permits, complete certain types
of forms, such as social security forms, applications for
transcripts, and applications for insurance or welfare
fund benefits, and they check with insurance companies
and union welfare funds concerning such benefits. Union
witness Jose Martin, a former employee who worked at
various branch facilities, testified that it took him about
20 minutes to perform paperwork in connection with
each funeral. Company witness Edna Mattei testified that
it normally takes about 2 hours for a branch employee to
perform the clerical work in connection with a funeral.
Company President Ortiz initially testified that all of the
paperwork relating to the customer is performed at the
branch chapels. (He conceded that paperwork pertaining
to the Company's general operations, e.g., maintenance
and personnel matters, is performed at the main office).
However, Ortiz' assertion was contradicted both by his
own testimony and by that of Edna Mattei. Ortiz ad-
mitted that the branch employees can only prepare
"simple forms," such as those described above, and that
more difficult forms, such as property forms and those
requiring notarization, must be prepared at the main
office. Mattei also testified that the branch employee
cannot fill out all of the forms and that much of the pa-
perwork must be done at the main office. It is evident
from the nature and variety of functions performed by
the branch employees that they cannot effectively per-
form their functions unless they are bilingual in English
and Spanish. Edna Mattei testified that the Company re-
quires its employees to be bilingual, and Union Business
Agent James Leahy testified that the branch employees
whom he observed were bilingual, although their native
language was usually Spanish. For this reason, and for
others which will be discussed in the next section of this
Decision, I do not credit the testimony of Carlos Quin-
tana that he cannot communicate in the English lan-
guage. (Quintana testified in Spanish, through an inter-
preter, in both the arbitration and the present proceed-
ing).
The Company conducts approximately 800 funerals an-
nually, or an average of about 15 per week. As indicated,
the Company has several chapels at its main location, in
addition to the nine branch chapels. Some branch loca-
tions, such as the Westchester Avenue Chapel in the
Bronx, are busier than others. Edna Mattei testified that
some chapels might go for 4 or 5 weeks without a funer-
al. It is evident from these figures that a typical branch
chapel might have an average of one or occasionally two
funerals per week. It is also evident that a major function
of the branch employees, although not referred to in tes-
timony, is simply that of waiting for customers, and that
the branch employees probably spend most of their time
in this manner. By maintaining the branch facilities, and
by stationing knowledgeable, albeit unlicensed, personnel
at each location throughout the day and evening hours,
the Company has made itself accessible to the Hispanic
community in New York City in a manner which it
could not reasonably expect to achieve if it confined
itself to premises where a licensed funeral director was
regularly on duty. Thereby the Company has expanded
or seeks to expand its volume of business, and the branch
employees serve an important function, even during the
lengthy periods of time when they have little or nothing
to do.
To the extent that the branch employees greet people
who come to the branch facilities, and direct them to the
chapel, the branch employees perform work which even
under the Company's narrow definition would constitute
that of receptionists. To the extent that they perform
routine cleaning and maintenance, their work is that of
porters, which is also bargaining unit work. As indicated,
none of the branch employees perform office clerical
work, as distinct from clerical functions which are inci-
dental to the Company's normal operations. With the ar-
guable exception of James Sibley, which will be dis-
cussed, none of the branch employees in dispute regular-
ly performed functions which would place them in any
other excluded category. 8 The Union, through the testi-
a The Company's March 28 list designated Carlos Cruz as an "office
clerk-driver" Union witness Conrado Hernandez, a former employee.
testified in the arbitration proceeding that Carlos Cruz was a reception-
ist-driver who worked at the Hasemeyer Street chapel Cruz normally
worked on the second shift, Carlos Quintana being the first-shift employ-
ee at Havemeyer. Cruz sometimes drove for the Company before reliev-
ing Quintana. Cruz. who was a company witness in the present case, tes-
tified that he was an office clerk and a "manager." However, he admitted
that, like the other branch employees, he worked alone, and did not
"manage" anyone but himself In sum, his work was substantially the
same as that of the other branch employees The Company's list designat-
ed Cruz Melendez. who worked at the 72d Street chapel. as an "office
manager." However, Edna Matnei testified that he was given this title be-
cause of his length of service At one time Melendez coordinated activi-
ties from the main office; however. as of March 28 he was a branch em-
ployee The Company's list variously designated some of the employees
in dispute as "manager" or "secretary " However. all of them were iden-
tified as working at the branch chapels Indeed. Edna Mantei conceded in
Continued
740
ORTIZ FLNI RAI HO)ME CORI'
mony of Business Agent James Leahy, argued that the
functions of a receptionist are more extensive than those
conceded by the Company. Leahy testified in sum that
receptionists performed additional functions including
those performed by the branch employees, e.g.; answer-
ing the telephone, picking up permits, moving the body
within the branch facility, and filling out simple forms.
The Union contends that the terms "attendants" and
"floorpeople" contained in the unit description are syn-
onymous with its concept of "receptionists." The Diction-
ary of Occupational Titles, U.S. Department of Labor,
(4th Ed., 1977), classifies a "funeral attendant" as a
person who performs a variety of tasks during a funeral,
including some performed by the Company's branch em-
ployees, i.e., placing the casket in the chapel prior to the
wake or funeral service, and directing or escorting
mourners to the parlor or chapel in which the wake or
funeral is held. The Dictionary of Occupational Titles does
not contain any definition of the terms "receptionist,"
"floor person," or "office clerk" which is pertinent to
the work normally performed by the branch employees.
The definition of "funeral director" does not encompass
the functions of the branch employees, and specifically
makes no reference to paperwork. In sum, the evidence
fails to indicate that the crucial classifications contained
in the unit description have any special, commonly un-
derstood significance in the funeral home industry which
is pertinent to the Company's unique method of oper-
ation. In these circumstances, it is appropriate to look to
the generally understood meaning of those classifications.
In the context of the employment relationship, an attend-
ant is normally regarded as an employee who waits on
customers. See Websters Third New International Dic-
tionary, (1971 edition). Essentially such work compro-
mises the largest part of the work normally performed
by the branch employees. In sum, whether they be desig-
nated as receptionists, receptionist-porters, or, more ac-
curately, as attendants, and regardless of whether the
Company has incorrectly classified them as office clerks,
the employees at the branch locations perform unit work
and are members of the bargaining unit. With respect to
James Sibley, designated on the Company's March 28
list, he is in fact licensed as a funeral director, and there-
fore authorized by law to perform the functions of that
position, including removal of the body from hospitals or
homes, arranging with the families for funerals, obtaining
burial permits, and embalming if necessary. In fact,
Sibley did not work for the Company in the capacity of
a funeral director. Rather, he worked the night shift at
various branch chapels, performing the same work as the
other branch employees. Sibley usually worked at the
Fourth Avenue chapel, which averaged one funeral a
week. Therefore, I find that he was a branch employee
who was, at the times material, included in the bargain-
ing unit.9
her testimony that some of them should have been designated as off:e
clerks, i.e . the Company's term for hranch employees
' In making the foregoing findings, I have taken into consideralionl the
opinion and award of the arbitraltor Hmowever. I hase made an independ-
ent esaluafioin of the evidence As indicated. I have arrived at the same
ulhimate findings concerning unit pla.-emenl of the emplo)ecs, as of
March 28 Hlloseer. I have arrived at Ihose findings for different re;la.ns
than those advanced hy the arbitraltor The Hroard hal held that xshere
It follows from the foregoing findings that, on and
after March 28, the Company failed and refused to rec-
ognize and bargain with the Union as the representative
all of the employees in the Board-designated unit, and in-
stead erroneously insisted that the Union had no standing
to represent more than a small fraction of those employ-
ees. The Company's asserted "good-faith question" as to
the Union's majority status was based on the erroneous
premise that by requesting bargaining for a contract
%which would cover the branch employees, the Union
,was claiming recognition for a neyw or different bargain-
ing unit, and therefore the Company could demand proof
of majority status. However, it was the Company, and
not the Union, which was seeking to alter the bargaining
unit. The Company's erroneous position, whether or not
asserted in good faith, does not constitute a valid defense
to a refusal-to-bargain charge. Moreover, in the context
of the present case, the Company had no standing to
question the Union's majority status. An employer may,
with certain other qualifications, withdraw recognition
from an incumbent union if the employer's refusal to bar-
gain is based on a reasonably grounded doubt as to the
Union's majority status, asserted in good faith, based on
objective considerations, and raised in a context free of
employer unfair labor practices. The Company had no
standing to question the Union's majority status, because
its asserted doubt was raised in the context of unreme-
died employer unfair labor practices. As a result of
Board litigation, the Company entered into a settlement
agreement whereby it agreed, inter alia, to recognize and
bargain with the Union as the representative of the em-
ployees in the appropriate unit. In subsequent litigation,
the Board found that the Company w\as violating that
obligation, and ordered the Company to fulfill its bar-
gaining obligations. In fact, the Company never recog-
nized the Union as the bargaining representative of more
than a small fraction of the unit employees. The Compa-
ny signed a negotiated contract with the Union, only be-
cause it was ordered to do so, but the Company refused
to apply that contract to most of its unit employees.
Indeed, the arbitrator's award indicates that the Compa-
ny did not even make welfare and severance fund pay-
ments for those employees whom it conceded to be in
the bargaining unit. Therefore, the Company's unfair
labor practices have never been remedied, and the Union
is entitled to a continuing presumption of majority status.
See Electralab Electronics Corporation, 146 NLRB 328,
330 (1964); Hermet. Inc., 207 NLRB 671 (1973).
Furthermore, the Company's asserted doubt was based
on the premise that the Union was required to prove
union membership for those employees whom it sought
to represent. However, with respect to an incumbent
union, it is the employer who must affirmatively show
that a majority of the employees no longer desire union
representation, and, as indicated, that recognition was
withdrawn in a context free of unfair labor practices
the result of an arhilratioll prosceding does ,,ot iarranl deferral hbe. aii s
it is repugnant to the Acl. thie better prosedure is for the Admnii.Iri.,te
l .i Judge to make inidepenideit findings .f lifact. rather th.ain to defer tu
the arhitratr',r findingis ot fait : P i.w Br th/ers l '-.iuf.,,ll. 237
NI RB 10(6t. ItWiti liQ78)
741
DELCISIONS OF NATI()NAL LABOR RI LATI(ONS BOARD
The Company failed to do this. Indeed, the Company
did not even agree to recognize the Union upon a show-
ing of majority status. Rather, the Company simply indi-
cated that it would recognize the Union on a members-
only basis for those employees whom the employer in-
correctly claimed to be outside the bargaining unit. In
sum, I find that the Company failed and refused to rec-
ognize and bargain with the Union as the exclusive rep-
resentative of its employees in the appropriate unit, and
thereby violated Section 8(a)(5) and (1) of the Act.' °
C. The Alleged 8(a)(l) and (3) Violations Involving
Carlos Quintana
The alleged violations of Section 8(a)(l) and (3) all in-
volve Carlos Quintana. They substantially turn on the
credibility of Quintana, and to a lesser extent on that of
two corroborative witnesses; namely, Union Business
Agent James Leahy and Quintana's daughter, Pilar Maz-
zaferro. As will be discussed, I have not found Quin-
tana's version of the events in question to be credible,
and I am recommending that the complaint be dismissed
as to these allegations.
Quintana worked for the Company in 1972, left, re-
turned in June 1975, and continued to work for the Com-
pany until his separation (which the Company contends
was voluntary) on Saturday, May 20, or Sunday, May
21, 1978 (the date being in dispute). During most of his
employment Quintana worked at the Havemeyer Street,
Brooklyn chapel, located about 5 minutes' walking dis-
tance from his home. In early 1978 Quintana was the
day-shift employee at Havemeyer, and Carlos Cruz
worked the evening shift. In late February, shortly after
the arbitration hearing began, and shortly before the
aborted contract negotiations, Union Business Agent
Leahy came to the Havemeyer chapel to ask Quintana
and Cruz to join the Union. Initially the employees were
noncommittal. However, within a few days, on February
28, Quintana in Leahy's presence signed a union mem-
bership application and checkoff authorization, indicating
that he was a "receptionist." In the meantime, Cruz de-
clined to join the Union. Quintana and Cruz talked about
the matter. According to Quintana, Cruz initially pre-
tended that he signed for the Union, but when Quintana
disclosed that he favored the Union, Cruz admitted that
he did not join the Union.
Quintana testified that on March 5 Michael Ortiz came
to the Havemeyer chapel, accused Quintana of signing
for the Union without telling him, and called Quintana a
traitor. According to Quintana, Ortiz was holding a
union card in his hand. Quintana testified that he then
admitted that he signed a union card because he felt he
deserved a better salary. Ortiz asked whether he believed
he would remain after all he did, and advised Quintana
to withdraw his card on the ground that he couldn't
speak English and didn't know what he was signing.
Quintana testified that the next day he went to the union
office, but that the Adelsteins told him that, if he with-
"' In view of the foregoing lindiigs, I find it unllnccsar.r to pass on
the General C(unsel's contention, essentially based on the alleged viola-
lions of Section Xa)(l I and (3) of the Act irvisolig Carlos Quiltana. Ihat
the Company acted in had faith in refusing ti bargain tilh the Ullnton As
will he discussed. I am recommending thal those allegatilll be dismissed
drew his signature, Ortiz would fire him and he would
have no union protection. Martin Adelstein suggested
that he pretend to Ortiz that he withdrew his signature.
Quintana testified that on March 7 Ortiz called to ask if
he had withdrawn his signature. Quintana answered that
he had conveyed such a message to Business Agent
Leahy. Ortiz told Quintana to speak directly to Leahy.
Instead, Quintana spoke to one "Tony," who was in
charge of the Union's Spanish-speaking department, and
she advised him to tell Ortiz that he was no longer a
union member.
On Friday, March 10, a payday, Quintana did not re-
ceive a paycheck, although Carlos Cruz received a pay-
check. Quintana testified that he telephoned Michael
Ortiz, who told him that his check belonged to the
Union, and hung up. Quintana complained to James
Leahy, who came to Havemeyer. Leahy testified that he
telephoned Ortiz, who told him that the check might be
in the mail. Quintana testified that while Leahy was on
the public phone, Ortiz had him summoned to the office
phone, and asked him whether he was still involved with
"these people." Quintana testified that the next morning
Ortiz came to Havemeyer, examined papers, took away
forms, and threatened to break Quintana's personal table.
According to Quintana, Ortiz said that Quintana was
now his enemy, that he would make Quintana's life im-
possible, that he would just be a porter, and that he
would not work more than 5 days per week. (At the
time, Quintana was working a 6-day week). However,
according to Quintana, Ortiz told him that if he with-
drew his signature, he would receive "$140 for the 5
days," plus overtime pay, and commissions on sales of
flowers and airline tickets. (In fact, Quintana was already
receiving such commissions.) Quintana further testified
that Ortiz told him that he had not received his pay-
check because Ortiz needed written authorization from
the Union. It is undisputed that Ortiz gave Quintana $60
in order to tide him over until he received his paycheck.
On Monday, March 13, Quintana, Leahy, and a Spanish-
speaking union delegate went to the Company's main
office, where Ortiz gave Quintana his paycheck. Leahy
testified that Ortiz gave no reason why Quintana did not
receive his check on time. However, according to Quin-
tana, Ortiz said that he thought he had to make deduc-
tions "for the book." In his investigatory affidavit to the
Board, Quintana stated that the purpose of the March 13
meeting was to receive his check, because he had not au-
thorized the Company to deduct union dues.
Quintana testified that on March 13, the day he re-
ceived his check, he was told to turn over the keys to
Carlos Cruz, and that he would be assigned to a different
chapel. Quintana testified that on March 15 Michael
Ortiz assigned him to the Willis Avenue chapel in the
Bronx, told him he was now a porter, and instructed him
to clean the sidewalks, walls, windows, and floors. Ac-
cording to Quintana, travel from his home to the Willis
chapel entailed a subway ride of about I hour and a 9- to
10-block walk. Quintana testified that he worked at
Willis Avenue for about 5 days, then was assigned to the
main office, then reassigned to Willis Avenue, and re-
turned to the Havemeyer chapel about the time of a
742
ORTIZ FUNERAL tHOME CORP.
threatened subway strike which did not materialize. The
parties could not agree as to such time, although General
Counsel asserted that the strike was announced and an-
ticipated during the period from March 31 through April
4. Beginning with the week of March 13, Quintana
worked a 5-day week for which he received $135.20.
Previously he had worked a 6-day week for which he re-
ceived $150.00.
Michael Ortiz, the Company's principal witness, testi-
fied that in early March Quintana telephoned him and
told him that the Union had fooled him by persuading
him to sign a union card which indicated that he was a
receptionist-porter. According to Ortiz, he told Quintana
that he did not know what Quintana could do, and that
if Quintana signed a union card, the Company would
have to deduct initiation fees, dues, and assessments from
his paycheck. Ortiz testified that he asked if Quintana ex-
plained that he was hired as an office clerk. Ortiz testi-
fied that Quintana's call was the only notice that he re-
ceived that Quintana had joined the Union, and specifi-
cally, that the Union never forwarded to him any notifi-
cation that Quintana had joined the Union or authorized
checkoff. No evidence was presented that the Union no-
tified the Company that Quintana joined the Union.
Therefore Ortiz' testimony stands uncontradicted in this
regard. Assuming that I were to credit Quintana's testi-
mony that Ortiz called him, it would be necessary for me
to infer that Carlos Cruz informed Ortiz that Quintana
joined the Union, as this was the only other possible
source of information in this regard. Cruz, who was pre-
sented as a company witness, testified that a few days
after Leahy solicited their membership, he and Quintana
talked about the Union. Quintana asked if he had joined,
and Cruz said he had not. Quintana explained the union
benefits, and Cruz responded that if they joined the
Union they would lose their sales commissions. (Cruz
testified that no one told him this, but that he knew it to
be true.) Quintana was persuaded that he had made a
mistake. According to Cruz, Quintana telephoned Mi-
chael Ortiz, said that he signed with the Union and was
now sorry, and wanted his card back. Quintana reported
to Cruz that Ortiz advised him that the only thing Quin-
tana could do would be to demand his card back from
the Union. Cruz testified that he previously told Ortiz
that the Union was trying to get him to join, but that
Ortiz never questioned him about the Union.
I have no reason to question the credibility of Cruz,
whose testimony substantially corroborates that of Mi-
chael Ortiz. In contrast, as has been and will be dis-
cussed, I have considerable reason to question Quintana's
credibility. I credit Cruz. After talking with his fellow
employee, Quintana was persuaded that he had made a
mistake in joining the Union, and thereupon called Ortiz
in an effort to revoke his action. I find that in their ensu-
ing conversation, Ortiz neither threatened Quintana nor
ordered him to withdraw his membership. Rather, at
most Ortiz simply advised Quintana, in response to Quin-
tana's inquiry, that if he wished to avoid checkoff he
would have to obtain his signature back from the Union.
Therefore, the Company did not violate Section 8(a)(l)
of the Act, "on or about March 5." as alleged in para-
graphs 6 and 7 of the complaint.
Ortiz testified that the next time he spoke to Quintana
was on Friday, March 10,. when Quintana came to the
main office to get his paycheck. According to Ortiz, he
asked whether Quintana got the matter straightened out
with the Union. Quintana answered that they told him he
was no longer a member. Ortiz responded that he needed
some proof, that he had to talk to the Union, and that
otherwise he could not release any funds to Quintana.
Quintana went on to say that he was tired of working 6
days a week, and wanted more pay and less work. Ortiz
said he would give Quintana a raise. Quintana said that
he wanted $150 for a 5-day week. Ortiz said that he
would pay $135 for a 5-day week. They agreed on this
and Ortiz also agreed to pay Quintana overtime in cash.
Quintana asked Ortiz for a loan of $60 and Ortiz gave
him the money. However, Ortiz told him not to tell any
other employee. (Ortiz testified that he said this because
he did not normally loan money to employees.) The next
day Leahy called and asked about Quintana's check.
Ortiz asked if Quintana was in the Union. Leahy told
Ortiz not to worry about it, and that he and Quintana
would come to the Company's office. They did so on
Monday, March 13. Leahy assured Ortiz that Quintana
was not a union member. Ortiz said that since he was not
responsible for making any deductions, he would give
Quintana his paycheck, and he did so. Ortiz testified that
he had no conversation with Quintana other than as indi-
cated in Ortiz' testimony.
I credit Ortiz, who had legitimate reasons for ascer-
taining whether or not Quintana was a union member
and had authorized checkoff. Indeed, the complaint does
not even allege that Ortiz either unlawfully interrogated
Quintana or withheld his paycheck. The Company was
involved in litigating the arbitration proceeding. If Ortiz
had issued a paycheck without deductions for an em-
ployee who had joined the union, identified himself as a
receptionist, and authorized checkoff, such action might
be considered as evidencing bad faith. Conversely, if
Ortiz had issued a check, with deductions, for an em-
ployee who had not joined the Union, or had withdrawn
membership, such action might be considered as an ad-
mission that the alleged "office clerks" were in the bar-
gaining unit. Quintana's own admissions in his testimony
indicate that both he and the Union understood the
reason for the problem. In these circumstances, Ortiz
acted properly in ascertaining Quintana's status before
releasing his paycheck. If Ortiz were intent on punishing
Quintana, then it is unlikely that Ortiz would have unhe-
sitatingly, and contrary to his usual policy, loaned Quin-
tana money to tide him over until the matter was adjust-
ed. I further credit Ortiz' explanation that Quintana
asked that his workweek be reduced from 6 to 5 days.
Quintana's testimony, that Ortiz promised him "$140 for
the five days" if Quintana withdrew his signature, im-
pliedly indicates that they had already agreed that Quin-
tana's workweek would be reduced. Moreover, if Ortiz
were intent on punishing Quintana, then it is improbable
that Ortiz would have continued him at a higher rate of
pay. (The complaint does not allege that the Company
promised or granted him benefits if he withdrew his
union membership). Prior to March 13. according to
743
DFI)CISIO)NS ()F NATIONAl LAB(OR RLI.ATIONS O()ARD
Quintana's own testimony, he received $25 per day for a
total of $150 for a 6-day week. Thereafter, Ortiz paid
Quintana $135.20 for a 5-day week, plus overtime paid in
cash. Ortiz testified without contradiction that, at the
time of Quintana's separation, he gave Quintana an extra
$30 because he worked an extra day the previous week.
This indicated that, contrary to the complaint, Quintana
sometimes worked a 6-day week after March 13, and
also that Quintana received $165.20 when he worked a 6-
day week, instead of the $150 which he received prior to
March 13. Moreover, as Quintana received $135.20 for a
5-day week after March 13, although he revoked his
union membership, it is unlikely that, as testified by
Quintana, Ortiz promised him $140 for a 5-day week if
he withdrew his signature. Rather, as indicated by Ortiz,
they discussed and agreed upon a pay raise. "
With respect to Quintana's transfer, Ortiz testified that
after February Quintana worked at Willis Avenue for a
maximum of 10 days and also worked at the main loca-
tion for a couple of days. The Company does not main-
tain records with respect to locations of employee work
assignment. The complaint, in apparent contradiction of
Quintana, alleges that Quintana was transferred to Willis
Avenue "for a period of 4 days in the last week of
March 1978." The complaint, coupled with the General
Counsel's assertion concerning the period of the threat-
ened subway strike, may be considered as admissions
against interest. In view of the fact that Quintana had re-
voked his union membership, it is difficult to see why the
Company would be bent on punishing Quintana at this
period of time. In fact, temporary transfers of employees,
including Quintana, were quite frequent. Such transfers
are understandable if the Company were to maintain its
policy of keeping its branch chapels open day and eve-
ning for 7 days a week, if possible, while having only
one employee on duty at a time at each location. In the
present hearing, Quintana testified that he worked for 2
weeks at the First Avenue chapel in Manhattan in De-
cember 1976. However, at the arbitration hearing, Quin-
tana testified (on April 24) that on several occasions he
worked as a vacation replacement at First Avenue, the
most recent occasion being "almost a month ago," i.e., at
the time he was supposedly working at Willis Avenue.
Carlos Cruz testified that he, Quintana, and other em-
ployees routinely worked at different locations and that
he (Cruz) also worked at Willis Avenue and the main
office, although he lived almost next door to the Have-
meyer chapel. In the arbitration proceeding, union wit-
nesses testified almost uniformly as to having worked at
various chapels in the three boroughs where the Compa-
ny operates. I find that Quintana was briefly transferred
to Willis Avenue in the course of the Company's normal
operations. I further find that the Company did not
threaten Quintana, or discriminatorily reduce his work-
'' The complaint doe's not allege that the Company unlawfully de-
prived Quintana of any contract right, beyond the general allegatii, Ihat
the Company failed and refused to recognize and bargain ,with the Union
as the representalive of its employees. The increase vwhich Ortiz ga';le io
Quintana was conlsistent with the contract rate for receptionist s (which
did not provside for sales commissions) Quil ana's own overall course of
conduct indicales that he waa quite willing Io use the dispule hetween the
Company and the Union as a vehile for negotiatling the best po,,siblc
deal for himself and his family
ing hours, or discriminatorily transfer him to Willis
Avenue, as alleged in the complaint.
On April 24, Carlos Quintana testified as a witness for
the Union in the arbitration hearing. The complaint al-
leges that "on or about May 1," the Company discrimin-
atorily transferred Quintana to its East New York
Avenue facility in Brooklyn, because he joined or assist-
ed the Union. Business Agent Leahy testified that in
April he received a call from Quintana, who was at East
New York. Quintana complained that there was no heat
or sanitary facilities, and that he was freezing. (As with
their previous conversations, Leahy did not indicate that
they spoke in Spanish.) Leahy testified that he went to
East New York Avenue and found the chapel in a state
of disrepair, without plumbing, heat, or sanitary facilities,
and in no condition to be used for funerals. Leahy testi-
fied that there was no repair work in progress, but that
he heard that the premises were repaired a few days
after his visit. In fact, as testified by both Quintana and
Michael Ortiz, Quintana was assigned to work at East
New York during the week of May 15 (probably on
Tuesday, May 16 or Wednesday, May 17), worked
through Friday, and returned to Havemeyer on Satur-
day, May 20. Quintana testified that there was accumu-
lated dust, broken windows, no heat, no water on the
first floor, and no public telephone in the building. Ac-
cording to Quintana, Ortiz told him that he was a porter,
and should clean all three floors, adding that he should
stop being used by the Union. In fact, the East New
York facility had been closed for several months and had
undergone extensive renovation and repair. However,
the records of such work indicate that the bulk of the
work was performed in February, March, and April, that
a steam boiler, toilets, and basins were installed in April,
and that the last plumbing and heating work was per-
formed on May 12. The records do not indicate that any
construction or repair work was performed after that
date. However, the first funeral at East New York, after
the renovation, was conducted on June 16. Michael Ortiz
testified that he assigned Quintana to East New York for
4 or 5 days, until he could get a crew in there. It is pos-
sible that Ortiz assigned Quintana to clean the premises,
preliminary to the resumption of normal operations.
However, such work was one of the normal functions of
a branch employee. It is also probable that the heat was
not turned on, and that Quintana was consequently un-
comfortable because the weather was unseasonably cool
and damp for mid-May. (National Weather Service rec-
ords indicate that for most of the week of May 14 the
temperature ranged from 51 to 67 degrees, and that there
was some precipitation almost every day.) However, by
May 19 the temperature rose to a seasonable 80 degrees.
It is also possible that Ortiz was conveying an implied
message to Quintana that if he preferred being a "recep-
tionist" instead of an "office clerk," Ortiz would accom-
modate him with appropriate work. However, the credi-
ble evidence in this case does not support more than a
suspicion in this regard. Specifically, in light of Quin-
tana's demonstrated tendency to exaggerate or falsify the
facts, I do not, unless otherwise indicated, credit his tes-
timony as to any disputed conversation. In the overall
744
()RIIZ FUNLRAI HO(NE CORI'
context of this assignment. including its brief duration,
the fact that renovation was completed and the East
New York premises had to be prepared for the resump-
tion of normal operations, and the generally favorable
way in which Ortiz treated Quintana, I find that the
credible evidence fails to demonstrate that Ortiz discri-
minatorily assigned Quintana to East New York. There-
fore, the Company did not violate the Act by temporar-
ily assigning him to that facility,
The present complaints issued on May' 9, and the hear-
ing was scheduled for October 23. Pilar Mazzaferro,
Quintana's daughter, who was presented as a witness for
the General Counsel, testified that on Saturday, May 20,
she telephoned Ortiz and asked why her father had not
received his weekly paycheck. Ortiz said that he would
bring the check to the Havemeyer chapel the next day.
Mazzaferro further testified that the next day (Sunday)
she went with her father and her future husband to Ha-
vemeyer, where they met with Ortiz. Ortiz and Mazza-
ferro spoke in English, and Mazzaferro translated when
necessary. According to Mazzaferro, Ortiz said that the
check was probably lost in the mail. However, he then
added that Quintana had asked him for $5,000 in return
for dropping the Union, that this was extortion, and that
he could destroy Quintana with such a charge. Mazza-
ferro initially testified that both Quintana and Ortiz re-
ferred to "dropping the Union." However, she subse-
quently admitted that Quintana told her that he had
asked Ortiz for $5,000 so that he could "drop the
charges and forget about the whole thing." Quintana, in
his testimony, was noticeably evasive about the matter of
the $5,000. Quintana testified that in early May he said,
"something" to Ortiz about $5,000 for Ortiz to let him
alone, or for Quintana to "leave the Union." According
to Mazzaferro, Quintana said that he was afraid that
Ortiz was right, and she suggested that her father consult
a lawyer. At this point Ortiz opened his coat and Mazza-
ferro observed what appeared to be a tape recorder in
his pocket. She pointed it out to her father, who said
that Ortiz "got me." They agreed that Quintana should
sign a letter resigning his job, and that they would meet
at the Company's main office in an hour. Quintana testi-
fied that Ortiz told him that if he resigned or quit he
could return to work again in 2 months for $150 per
week plus overtime, sales commissions, and vacation,
that in the intervening 2 months he could work on week-
ends; and that if Quintana could not find a job, Ortiz
would see that he got unemployment compensation.
Mazzaferro testified that she, her father, and her future
husband proceeded to the Bronx. However, instead of
going to the main office, they went to a nearby cafeteria,
because they did not wish any conversation to be record-
ed. Mazzaferro telephoned Ortiz and they arranged to
meet at the cafeteria. After about an hour, Ortiz arrived
with two documents for Quintana to sign. Mazzaferro
testified that she asked her father to consult a lawyer but
that he said he couldn't take it any longer, and Ortiz re-
fused to give him any more time. However, Quintana
testified that Ortiz told him that if he wanted to change
the language of the second document (statement), he
could come back the next day. Quintana signed the two
documents. He testified that he did so because Ortiz
threatened to destroy him by accusing him of extortion.
and to denounce him to the Federal Government be-
cause he was claiming too many dependents. Quintana
testified that after he signed the documents Ortiz assured
him that he should have no problem wsith the Union., and
that there would not be any Labor Board hearing. It is
undisputed that Ortiz gave Quintana four checks for 4
weeks' accumulated vacation pa', plus cash for overtime
work. Ortiz kept the original signed documents, and
Quintana kept the unsigned copies. Quintana testified that
after he left he went to Carlos Cruz' home and gaxe him
the keys to the Havemeyer chapel.
The documents signed by Quintana were presented in
evidence. Both are signed by Quintana, and by Mazza-
ferro as witness, and by a notary public. Both are dated
and notarized as of May 20. One consists of a brief state-
ment of resignation, stating in pertinent part that "as of
May 20, 1978 I am resigning my position as office clerk
with the Ortiz Funeral Home Corp." The second pur-
ports to be an affidavit. The text, including misspelling
and grammatical errors, is as follows:
1, Carlos Quintana do hereby declare and state that
I was approached by Mr. James Leahy and Mr.
Gus Davila business agents of Local 1034, they
asked me to sign a union card as a reciptionist [sic]
working for Ortiz Funeral Home Corp. They prom-
ised to get me more money and more benefits and
that I would never lose my job. I then signed the
card they gave me. I then asked my employer mr.
Michael Ortiz about this, he explained to me as I
have always known that my job was that as an
office clerk, I would fill out many forms relating to
funerals and do other functions as an office clerk.
When I asked Michael Ortiz what I should do he
told me to get back the card I signed and explain to
them the kind of work that I have always per-
formed. I spoke to them but they would not listen
to me and would not give me back the card that I
signed. They told me they would get back pay and
benefits for my wife Violet Quintana who was also
an office clerk working for Ortiz Funeral Home
Corp. I have worked for the Ortiz Funeral Home
Corp. for many years and I don't want to be dis-
honest.
Mazzaferro and Quintana testified that there was no
notary public present when they signed the documents.
Mazzaferro testified that she did not recall if the docu-
ments were dated. Both Mazzaffero and Quintana testi-
fied that neither of them had anything to do with the
preparation of the documents. However, at one point in
his testimony Quintana asserted that Mazzaferro pre-
pared the affidavit. Quintana admitted that he is able to
type in English, and that he has typed various kinds of
forms, including affidavits.
Michael Ortiz testified that when Quintana was work-
ing at East New York he told Ortiz that he was tired of
being used by the Union, that if Ortiz gave him $5,000
he would disappear, and go back to South America with
his wife, would not cause any trouble with the Union.
and would forget the whole thing. Ortiz refused, saying
DE-CISItONS OF NATIONAl L.AHOR REI.ATIONS O()ARD
that he did not need Quintana to lie for him. However,
on Friday. May 19, Quintana complained that he was
dissatisfied, and again asked for $5,000. Ortiz consulted
his attorney, who advised him to get a tape recorder.
The next day (Saturday, May 20), Mazzaferro called
Ortiz and they arranged to meet at the Havemeyer
chapel with Quintana to discuss his situation. Before
going to the meeting, Ortiz purchased a tape recorder
and placed it in his jacket pocket. At Havemeyer, Maz-
zaferro asked about her father's "situation." Ortiz asked
if she knew that Quintana had tried to extort $5,000.
Mazzaferro said that she knew something about it, and
that he would take a little less. At this point Ortiz dis-
played his recorder. Quintana told his daughter to shut
up, and Ortiz said that he recorded the whole conversa-
tion. Ortiz also intimated that he had recorded the prior
conversations. Mazzaferro then asked what they should
do. Quintana asked if Ortiz would give him 4 weeks' ac-
cumulated vacation pay. Ortiz said that he owed only 2
weeks' vacation pay, that he would give him 4 weeks'
pay anyway, but that he wanted a letter of resignation.
Quintana and Mazzaferro agreed. Ortiz said he would
meet them at this office, and that the checks would be
ready. When Ortiz returned to his office that afternoon,
he ascertained that the recorder was not operating prop-
erly and did not record the conversation. About 45 min-
utes later, Mazzaferro telephoned, saying that they were
across the street at a donut shop and did not want to
come to the office. Ortiz went to the donut shop, told
them that Quintana had to sign a letter of resignation,
and that the checks would be ready. Mazzaferro and her
husband remained at the donut shop while Ortiz and
Quintana went to the office. At the office, Ortiz asked
Quintana to give a statement telling the truth about the
arbitration matter, and Quintana agreed. Quintana first
wrote down the statement, and then typed both his resig-
nation and affidavit. They returned to the donut shop,
where Mazzaferro read the affidavit and told her father
that it was up to him. They proceeded to a nearby travel
agency where Mazzaferro signed as witness and the
statements were notarized. Carlos Cruz testified that he
was certain that Quintana came to his home on a Satur-
day to return the Havemeyer keys, because Saturday
was Cruz' day off. Ortiz further testified that in October,
shortly before this hearing commenced, Quintana asked
for his job back, but Ortiz refused.
I credit the testimony of Ortiz. As indicated, I have
considerable reason to question the credibility of Quin-
tana and Mazzaferro concerning their versions of these
events. I have no comparable reservations with respect
to the testimony of Ortiz and Cruz concerning these
events. I agree with the Company's contention that the
reference in Quintana's affidavit to his wife tends to indi-
cate that Quintana prepared the statement. Violet Quin-
tana was a former employee who left the Company in
December 1977 and thereupon went to South America.
The Company contends that she voluntarily quit. The
Union instituted an arbitration proceeding, alleging that
she was improperly terminated. She was also named as
one of the employees in dispute in the proceeding before
Arbitrator Lande. If the Union promised backpay and
benefits when it refused to accept Quintana's resignation,
then Ortiz could have obtained such information only
from Quintana, and there is no evidence that Ortiz ob-
tained such information (or assertion) other than through
Quintana's statement at the time of his resignation. More-
over, in order to credit the testimony of Quintana and
Mazzaferro I would have to find that an identified
notary public attached her signature and seal to a misdat-
ed document and falsely indicated that she had been
present at its execution. I am not inclined to do so on the
basis of the questionable testimony of Quintana and Maz-
zaferro. In sum, I find that Quintana voluntarily quit his
employment because he feared that Ortiz had trapped
him in the act of attempting to extort money, that he ex-
ecuted a written resignation in order to get 4 weeks' va-
cation pay instead of the 2 weeks which Ortiz believed
was owed, and that he signed a statement in the hope of
getting a better deal from Ortiz in the future. It is unnec-
essary to decide whether Quintana's affidavit was true.
As indicated, Quintana tended to shift from one side to
the other, all in order to get the most possible for himself
and his family, and his statements at each stage tended to
be colored by his immediate interests. Assuming, ar-
guendo that Ortiz coerced Quintana into resigning or of
executing his statement, I find that such action would
not be unlawful, because it was caused by activity which
was not protected by the Act; namely, Quintana's
demand for $5,000 in return for making himself unavail-
able in the pending unfair labor practice litigation. See 18
U.S.C. §873. I find that the Company did not construc-
tively discharge Carlos Quintana, or otherwise violate
the Act as alleged in paragraphs 7(a) and 8(d) of the
complaint in Case 2-CA-15536.
CONCI USIONS OF LAW
I. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All employees at the Company's main office and fa-
cility and at its branch locations, including receptionists,
receptionist-porters, office clerks, office managers and
office clerk-drivers, but excluding licensed funeral direc-
tors, secretary-bookkeepers and drivers normally and
regularly engaged in the performance of such functions,
and excluding supervisors as defined in Section 2(11) of
the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b)
of the Act.
4. At all times material, the Union has been and is the
exclusive collective-bargaining representative of the em-
ployees of the Company in the unit described above.
5. The Company has engaged, and is engaging, in
unfair labor practices within the meaning of Section
8(a)(l) and (5) of the Act, by failing and refusing to rec-
ognize and bargain in good faith with the Union as the
representative of the employees in the appropriate unit.
6. The Company has not engaged in the unfair labor
practices alleged in the complaint in Case 2-CA-15536.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
746
RTIZ7 FUNERAl. HOME CO()RP
T HI RiMi DI)N
Having found that the Company has committed viola-
tions of Section 8(a)(I) and (5) of the Act, I shall recom-
mend that it be required to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act. I shall recommend that the Com-
pany be ordered to recognize and upon request, bargain
with the Union as the bargaining representative of the
employees in the appropriate unit, and to post appropri-
ate notices. As indicated, the definition of the unit has
been revised to reflect the Company's most recent job
classifications. (The Company has not employed guards
or watchmen since the 1974 strike. The former classifica-
tions of licensed embalmer and undertaker no longer
exist, as persons performing such work are now licensed
as funeral directors.) As the complaint alleges an unlaw-
ful refusal to bargain only since on or about March 28,
1978, I have not provided any remedy for the Compa-
ny's failure to apply the terms of the expired contract to
the unit employees.
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER' 2
The Respondent, Ortiz Funeral Home Corp., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Local 1034, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive bargaining representative of its employees
in the following appropriate unit:
All employees at Respondent's main office and fa-
cility and at its branch locations, including recep-
' In the event no exceptions are filed as provided by Section 102 46
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herin shall. as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board
and become its findings, conclusions, and order, and all objections thereto
shall be deemed waived for all purposes.
tionists, receptionist-porters, office clerks, office
managers and office clerk-drivers, but excluding li-
censed funeral directors, secretary-bookkeepers and
drivers normally and regularly engaged in the per-
formance of such functions, and excluding supervi-
sors as defined in Section 2(11 ) of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with the above-named Union as the exclusive representa-
tive of all employees 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 agreement.
(b) Post at its main office and facility and at each of its
branch facilities copies of the attached notice marked
"Appendix, " 13 Copies of said notice in English and
Spanish, on forms provided by the Regional Director for
Region 2 after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
3. The complaint in Case 2-CA-15536 is dismissed in
its entirety.
11 In the event that the Board's Order is enforced by a Judgment of a
United Stales Court of Appeals. ihe wsords in the norice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment OF the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
747