P.S. Elliott Services, 1161 (1990)

Docket Number:03-CA-14901
 
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P.S. Elliott Services, Inc. and Service Employees International Union, Local 200C, AFL-CIO.

Case 3-CA-14901

December 31, 1990

DECISION AND ORDER

BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT

On June 12, 1990, Administrative Law Judge D. Barry Morris issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order.

The judge found that the Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union. In this regard, the judge found that the Respondent was a successor employer to First Class Maintenance and that the employees located at the Brisbane Building constituted an appropriate unit for bargaining. The judge further found that the Respondent violated Section 8(a)(1) of the Act by stating to prospective employees that it was ''a non-union company.'' For the reasons set forth below, we find, contrary to the judge, that the employees employed at the Brisbane Building do not constitute an appropriate bargaining unit and that, therefore, the Respondent's refusal to bargain with the Union did not violate Section 8(a)(5). We further find that the Respondent's statement to prospective employees did not violate Section 8(a)(1).

In 1986 First Class Maintenance was awarded the contract for providing cleaning services at the Brisbane Building located in Buffalo, New York.1 The Union and First Class Maintenance entered into a collective-bargaining agreement effective January 1, 1987, to December 31, 1989.

In early January 1989,2 the Respondent successfully bid for the contract to perform cleaning services at the Brisbane Building.3 On January 27 First Class Maintenance informed its employees at the Brisbane Building that they would be terminated.

Charity Edmundson, leadperson for the employees at the Brisbane Building, contacted the Respondent's president, Phillip Elliott, and asked on behalf of herself and the other employees if he would hire them. Elliott offered Edmundson a job, and, based on her recommendation, met with the other First Class Maintenance employees employed at the Brisbane Building. During that meeting, the employees asked Elliott if it would be a ''union job,'' and he replied, ''we are a non-union company.'' Elliott subsequently hired seven of the eight former First Class Maintenance employees to continue performing cleaning services at the Brisbane Building.

The Respondent took over the cleaning services at the Brisbane Building on February 1. On March 10 the Union informed the Respondent that it had authorization cards from all of the Brisbane Building employees and demanded recognition. On March 13 the Respondent rejected the Union's demand, contending that the Brisbane Building employees did not constitute an appropriate unit for bargaining and that no collective-bargaining agreement was in effect for that unit.

The judge found that the employees at the Brisbane Building constituted an appropriate unit for bargaining. The judge concluded that the employees employed at the Brisbane Building by First Class Maintenance had always been treated as a separate bargaining unit, finding that a separate collective- bargaining agreement existed between First Class Maintenance and the Union for the employees at the Buffalo Evening News Building. In light of the fact that the Brisbane Building employees had been treated as a separate unit, that ''the bulk'' of the employees who were transferred from First Class Maintenance to the Respondent continued to work at the Brisbane Building, and that none of these employees had been transferred out of the Brisbane Building, the Respondent had failed to sustain its burden of overcoming the presumption of appropriateness of a single facility unit.

The Respondent excepts, inter alia, to the judge's finding that the employees at the Brisbane Building constitute an appropriate bargaining unit. It contends that the maintenance employees who work at the Brisbane Building share a community of interest with the Respondent's other maintenance employees. The Respondent asserts that there is no difference between the terms and conditions of employment of the employees at the Brisbane Building and those of the employees at any other building where the Respondent performs cleaning services; all employees are commonly supervised; there is frequent and regular interchange of employees; and that there is no history of site-by-site bargaining in the maintenance industry or at the Brisbane Building. We find merit in the Respondent's exceptions.

1 First Class Maintenance also provided cleaning services for the Buffalo Evening News...

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