Petition for enforcement of an order of the National Labor Relations Board finding respondent Ortiz Funeral Home Corp. guilty of certain unfair labor practices. Petition granted.
Before Van Graafeiland and Kearse, Circuit Judges, and Bramwell, District Judge.*fn*
This is a petition to enforce an order of the NLRB which held that respondent, Ortiz Funeral Home Corp., had violated section 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1), by:
(1) refusing on and after March 28, 1978 to recognize and bargain with Local 1034, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), for a new contract covering all unit employees;
(2) failing to apply the previous contract to all unit employees between September 23, 1977 and its expiration on March 21, 1978, and by failing thereafter to continue to maintain the wages, hours, terms and conditions of employment established pursuant to that contract.
For reasons hereafter discussed, the petition for enforcement is granted.
Respondent operates a funeral business with ten chapels in the New York City metropolitan area. In 1975, following an organizational strike and unfair labor practice charges, an informal settlement agreement was reached between respondent and the Union and approved by the Board's Regional Director. Pursuant to this agreement, respondent agreed to recognize and bargain with the Union as the exclusive representative of the employees in the following unit:
Attendants, floorpeople, receptionists, interpreters and porters but excluding licensed embalmers, undertakers, drivers, managers, office clerical employees, bookkeepers, guards, watchmen and supervisors as defined in the Act.
Thereafter, respondent and the Union could not agree whether employees whose duties included clerical work, driving, or guarding, in addition to receiving visitors, were properly included as "receptionists" in the bargaining unit. Because of this dispute, respondent refused to sign a collective bargaining contract incorporating the unit definition contained in the settlement agreement until ordered to do so by the Board. See 225 NLRB 1342 (1976). The Board found that "the parties reached an oral binding agreement on all material aspects of a collective-bargaining contract" and that the arbitration clause of the agreement was designed to resolve any uncertainty as to membership in the bargaining unit. Id. at 1345. The Board concluded that the unit, described as above quoted, was an appropriate unit for the purpose of collective bargaining, and held that respondent was guilty of an unfair labor practice for refusing to sign it. Id. This Court enforced the order without opinion on May 6, 1977, see 559 F.2d 1204 (2d Cir. 1977), following which a written contract, effective for a three-year period ending on March 21, 1978 was signed.*fn1
The contract contained provisions for a union shop, checkoff of union dues, and employer payments to welfare, severance and retirement funds. Respondent applied these provisions only on behalf of the small number of employees whom it considered to be in the bargaining unit. In August 1977, after conducting an audit of respondent's payroll records, the Union concluded that respondent was failing to make contributions as provided in the contract. Discussion on the issue proved fruitless, and the Union invoked the contractual arbitration process.
The arbitrator was asked to determine whether respondent had violated the contract by failing to maintain a checkoff of union dues and to make payments to welfare, severance and retirement funds on behalf of the employees whose membership in the Union was disputed. On November 10, 1978 the arbitrator ruled that the contract required respondent to make contributions on behalf of all the disputed employees except one "secretary-bookkeeper". On April 19, 1979 the New York State Supreme Court vacated the arbitrator's award on the ground that the arbitrator had exceeded his powers by reclassifying employees. The Appellate Division, First Department, reversed and reinstated the award. See Adelstein v. Ortiz Funeral Home Corp., 75 App.Div.2d 529, 426 N.Y.S.2d 768 (1980). On February 17, 1981 the Court of Appeals affirmed without opinion. Adelstein v. Ortiz Funeral Home Corp., 52 N.Y.2d 997, 438 N.Y.S.2d 80, 419 N.E.2d 1079 (N.Y.1981).
While the arbitration under the old contract was pending, the parties met in March 1978 to discuss a new one. However, their continuing disagreement regarding the composition of the bargaining unit precluded any progress toward consummation of a contract. Respondent submitted a list of its employees with their purported job classifications, asserting that only three of them were unit employees. The Union stated that it represented approximately twenty employees on the list.
On March 23, 1978, the Union filed an unfair labor practice charge alleging that respondent refused to bargain for a new contract. The complaint issued by the Board on May 9, 1978 described the bargaining unit as it was described in the expired contract and in the Board's 1976 order. It alleged that respondent had failed and refused to negotiate with the unit thus described for the new three-year contract until the Union produced proof that it was the majority representative of the employees in the unit.
Not content with the unit description contained in the contract, the Administrative Law Judge redefined the unit and ordered respondent to cease and desist from refusing to recognize and bargain with ...