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12/16/88 Property Resources v. National Labor

December 16, 1988

CORPORATION, PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD 1988.CDC.458 DATE DECIDED: DECEMBER 16, 1988



Wald, Chief Judge, and Mikva and Sentelle, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

PROPERTY RESOURCES CORPORATION AND TRIBORO MAINTENANCE

Petition for Review of an Order of the National Labor Relations Board.

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA

Property Resources Corporation ("Property Resources") and its division, Triboro Maintenance Corporation ("Triboro"), dispute a determination by the National Labor Relations Board ("the Board") that the company had agreed orally to a collective bargaining agreement and then refused to execute it in writing and that it had discharged six painters in order to discourage union activity. The Board has filed a cross-application for enforcement of its order. Because we find that there was substantial evidence on the record as a whole in support of the Board's findings, we deny the petition and enforce the Board's order in full. I. BACKGROUND

Local 32-E of the Service Employees International Union represents the mechanics, maintenance workers, painters and utility employees working for Triboro in approximately 55 low-income buildings in the New York area developed and managed by Property Resources. The collective bargaining agreements for these employees and employees of another division, PRC Management Corporation , expired in the fall of 1985 and negotiations toward new agreements took place on three occasions in September between three Triboro and PRC executives, for the employer, and a union committee. Property Resources concedes that, on September 11, agreement on the remaining issue, wages, was reached as to PRC employees and that a parallel wage offer was made by the senior vice president of both Triboro and PRC to Triboro employees but contends that no wage agreement was reached. The company suggests two alternate grounds for its contention: that the senior vice president lacked actual or apparent authority to make the offer for Triboro and that the union failed to accept the offer before it was withdrawn a few days later. The Board found that the senior vice president had actual or apparent authority to negotiate and contract with the union and that the offer was accepted the same day it was made and therefore Triboro's repudiation of the agreement and refusal to execute a collective bargaining agreement violated sections 8(a)(1), 8(a)(5) and 8(d) of the National Labor Relations Act. No alternative was negotiated or implemented.

In March 1986, six painters represented by Triboro were laid off. Triboro claims that the layoffs were entirely due to economic necessity and in no way were intended to frighten employees into renegotiating wage increases. The Board found that the layoffs were motivated in part by anti-union animus and in part by economic necessity but that, if the employees had agreed to renegotiate wage increases, the layoffs would not have occurred. The layoffs, therefore, were found to be violations of sections 8(a)(3), 8(a)(5) and 8(d) of the Act.

The Board ordered Property Resources and Triboro to cease and desist from such violations, to execute the negotiated agreement, to make the employees whole for losses caused by failure of the company to adhere to the agreement plus interest, to reinstate and make whole the six painters who were laid off and to post a remedial notice. II. ARGUMENT

There is no disagreement between Triboro and the Board as to the applicable law or its import. The challenge is limited to findings of fact and, therefore, we must uphold the Board if its findings are supported by substantial evidence on the record as a whole, even if there are two fairly conflicting views and even if this court would make a different choice if its review were de novo. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 95 L. Ed. 456, 71 S. Ct. 456 (1951). We conclude that the Board's findings are supported by substantial evidence.

A. Existence of Oral Agreement

The Board's decision that an agreement between Triboro and Local 32-E had been reached is supported by testimony by two of the union negotiators and contradicted by no eye witnesses. We are not persuaded by Property Resources' argument that the two witnesses are not credible, because of inconsistencies in their statements, for two reasons: (1) the Administrative Law Judge found their testimony credible and credibility determinations are particularly inappropriate for appellate review, and (2) the record demonstrates that the inconsistencies were both trivial and collateral. The evidence proffered by the company does not cast doubt on the union negotiators' testimony as it consisted solely of testimony by Jerome Chatzky, chairman of the board of Property Resources, who, by his own admission, was not involved until several days after the union claims that agreement was reached. Moreover, we find reasonable the Board's inference, from the company's failure to call any of the executives who were directly involved in the negotiation, that the testimony would most likely have been detrimental to the company's position.

The Board's decision that the senior vice president had actual or apparent authority to commit the company to a collective bargaining agreement is supported by evidence that he had negotiated and signed an agreement with the union concerning employees at a different building six months before; that the company's announcement of his appointment described him as responsible for PRC and Triboro and charged with the task of integrating the two divisions for greater efficiency and growth; and that his predecessor had negotiated and signed previous collective bargaining agreements with the union. Again, the only evidence to the contrary was testimony by Chatzky which did not cite any action that effected a reduction in the senior vice ...


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