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National Labor Relations Board v. Midtown Service Co.

decided: February 25, 1970.


Lumbard, Chief Judge, Friendly, Circuit Judge, and Mansfield, District Judge.*fn*

Author: Mansfield


The National Labor Relations Board, pursuant to § 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. §§ 151 et seq., seeks enforcement of its order issued against Respondents on June 13, 1968, reported at 171 NLRB No. 161.

Respondents (hereinafter collectively referred to as the "Employer") are a group of affiliated corporations owning or leasing office buildings in New York City. On September 14, 1966, a Board-conducted decertification election was held to determine whether or not the Employer's service and maintenance employees desired to continue to be represented by Local 670, Retail, Wholesale and Department Store Union, AFL-CIO (hereinafter referred to as "Local 670"), which had acted as the exclusive bargaining representative for such employees since its certification by the Board in 1960. The election, which Local 670 lost by a vote of 111-94, was set aside on October 10 for misconduct by the decertification petitioners*fn1 and because the Employer had failed to file with the Regional Director a list of its employees' names and addresses as required by the Board's recent decision in Excelsior Underwear, 156 NLRB 1236 (1966). A rerun election, originally scheduled for December 14, 1966, was postponed as a result of the Employer's continued refusal to supply an Excelsior list. More than three years later the election has still not been held, apparently for the reason that the Board has not invoked established judicial procedures for extracting such a list from the Employer.*fn2

On May 19, 1967, a consolidated complaint was filed charging the Employer with unfair labor practices based upon its efforts to defeat the decertification movement. There followed proceedings before the NLRB which led to the order before us. After taking extensive proof the Trial Examiner found that from the time the Employer had first become aware of the efforts to decertify Local 670 it had vigorously sought to defeat the decertification movement in order to protect and maintain Local 670 as the bargaining representative of its employees. The Employer's efforts in the pre-election period included supervisory solicitation of employees to sign petitions favoring Local 670 and numerous threats by supervisors that employees would lose their jobs if Local 670 lost the election.

The Trial Examiner further found that after Local 670 lost the election the Employer continued its campaign to return it and to defeat the efforts of the supporters of the decertification movement. Company supervisors assisted representatives of Local 670 in signing up building employees and themselves solicited employees to sign dues checkoff authorizations for Local 670. One supervisor even collected dues for the union for some time after the election. The threats of loss of jobs if Local 670 should be defeated continued, buttressed by a general tightening up of the employees' work rules. Josephine Massaro, one of the three principal promoters of the decertification movement, was summarily discharged one month after the election. In early 1967 the Employer negotiated a collective agreement with Local 670 that was later formalized into a contract succeeding to the one that had expired before the election of September 14.

With the foregoing findings of the Trial Examiner before it, the Board concluded that the Employer, in violation of § 8(a)(1) of the Act, had interfered with, restrained and coerced employees in the exercise of rights guaranteed by the National Labor Relations Act; that it had contributed support to Local 670 in violation of §§ 8(a)(2) and (1) of the Act; and that it had encouraged membership in Local 670 by discrimination in regard to tenure of employment in violation of §§ 8(a)(3) and (1) of the Act.

In view of the substantiality of the supporting evidence, the Employer understandably does not contest the Board's finding of § 8(a)(1) violations; its efforts to influence its employees in their choice of a bargaining representative were numerous and flagrant, and were amply supported by the proof before the Trial Examiner. It is equally clear that the Employer's threats of loss of jobs, its reprisals taken against opponents of Local 670, its solicitation -- and cooperation in the union's solicitation -- of memberships in Local 670, and its collection of dues for the union, constituted violations of § 8(a)(2). The Employer does challenge, however, the Board's conclusions that its negotiation of a successor contract with Local 670 after the decertification election had been set aside constituted a violation of § 8(a)(2) of the Act, and that Josephine Massaro was discriminatorily discharged in violation of § 8(a)(3). Its further objections to certain provisions of the Board's order will be discussed separately below.

The Negotiation of a Successor Contract

On August 30, 1966, prior to the holding of the decertification election, representatives of the Employer and of Local 670 met to discuss the negotiation of a new collective agreement to replace a three-year contract which had expired on July 31, 1966. No further bargaining sessions were held until January 23 and January 26, 1967, at which time an oral understanding was reached. Although no written agreement was thereupon executed, in the following months certain improvements in the employees' terms and conditions of employment were made by the Employer in accordance with the terms of the oral understanding.

On May 12, 1967, Local 670 requested the Employer to execute a stipulation embodying the earlier understanding. The Employer refused, explaining that in view of the results of the September decertification election it had serious doubts about the continuing majority status of the union.*fn3 On May 29 Local 670 renewed its request. After the union directed its attention to the recent Board decision in Decorel Corp., 163 NLRB 146 (1967), the Employer executed the requested stipulation, which provided for an extension of the expired contract with its union-security clause until July 31, 1969, with certain improvements and modifications.

In arguing that the negotiation of the collective bargaining contract with Local 670 and the grant of benefits pursuant thereto did not violate § 8(a)(2), the Employer places great stress upon the presumption of continued majority status enjoyed by a union which has been duly certified pursuant to a Board-conducted election. Brooks v. NLRB, 348 U.S. 96, 103, 99 L. Ed. 125, 75 S. Ct. 176 (1954); NLRB v. Frank Gallaro & Joseph Gallaro d/b/a Gallaro Bros., 419 F.2d 97 (2d Cir. 1969); NLRB v. Gulfmont Hotel Co., 362 F.2d 588, 589, 592 (5th Cir. 1966); NLRB v. Local 3, IBEW, 362 F.2d 232, 235 (2d Cir. 1966); NLRB v. Whittier Mills Co., 111 F.2d 474, 478 (5th Cir. 1940). It argues that since it had a duty under § 8(a)(5) to bargain with the incumbent union, it should not now be penalized for performance of that duty.

The presumption of continued majority status of a certified union, however, is rebuttable, NLRB v. Gulfmont Hotel Co., 362 F.2d 588, 589, 592 (5th Cir. 1966); NLRB v. Frank Gallaro & Joseph Gallaro d/b/a Gallaro Bros., 419 F.2d 97 (2d Cir. 1969), and where circumstances cast doubt upon such continued representation, the question of whether or not a refusal to bargain constitutes a violation of § 8(a)(5) depends upon whether the Employer has a reasonable basis for doubting in good faith that the union's majority representation continues. Celanese Corp. of America, 95 NLRB 664, 671 (1951). Here the circumstances found by the Trial Examiner demonstrate not only that a reasonable basis existed for the belief that Local 670 no longer represented a majority of the employees but that the Employer in fact doubted such representation.

The very fact that the Employer, even prior to the decertification election, engaged in such flagrant and continued misconduct directed toward maintenance of Local 670 as the employees' bargaining representative betrays the Employer's belief that a real question of representation existed. Otherwise there was little purpose behind the Employer's strenuous efforts in support of Local 670. Such misconduct, standing alone, might well be deemed to have the effect of destroying the presumption in favor of the union's continued majority status. Surely that presumption assumes that the Employer will not engage in activities having the effect of converting a freely-chosen majority representation into a coerced one, which would amount to a usurpation of the employees' right of free choice under the Act. Empire State ...

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