Stanford Realty Associates

National Labor Relations Board - Board Decisions

Mar 31, 1992

306 N.L.R.B. 1661 (N.L.R.B. 1992)

1061
306 NLRB No. 214
STANFORD REALTY ASSOCIATES
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We agree with the judge that the Respondent is obligated as a
successor to recognize and bargain with the Union on request and
we adopt his recommended Order. In adopting the Order, we find
it unnecessary to pass on the sufficiency of the Union’s request that
the Respondent bargain with it. We do agree, however, that the
Union’s requests to sign a contract subsumed a demand for recogni-
tion that was sufficient to trigger the Respondent’s obligation to rec-
ognize it, and that the Respondent violated Sec. 8(a)(5) and (1) by
failing to do so. Sterling Processing Corp., 291 NLRB 208, 217
(1988).
In adopting the judge’s conclusion that the Respondent violated
Sec. 8(a)(1) when Supervisor Cosovic threatened to kill former em-
ployee Sladek if Sladek came into the vicinity of the building again,
we note that Sladek had been near the building for the purpose of
picketing with the striking employees and that Cosovic made the
threat in the presence of employees and told employee Munoz to
transmit the threat to Sladek.
Stanford Realty Associates, Inc. and Local 32B-32J,
Service Employees International Union, AFL–
CIO. Case 2–CA–24237
March 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 16, 1991, Administrative Law Judge Steven
B. Fish issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel filed a brief in support of the judge’s decision.
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 de-
cided to affirm the judge’s rulings,1 findings, and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Stanford Realty Associates,
Inc., New York, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Margit Reiner, Esq., for the General Counsel.
Clifford S. Bart, Esq., Melville, New York, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges and amended charges filed by Local 32B-32J, Serv-
ice Employees International Union, AFL–CIO, the Regional
Director for Region 2 issued a complaint and notice of hear-
ing, on May 7, 1990, alleging that Stanford Realty Associ-
ates, Inc. (Respondent) has violated Section 8(a)(1) and (5)
of the Act by, in substance, refusing to recognize and bargain
with the Union as the exclusive representative of its employ-
ees, since January 1990, by bypassing the Union and dealing
directly with its employees, promising them benefits if they
abandon support for the Union, and threatening employees
with physical harm if employees continued to picket and/or
appear on the picket line in support of the Union.
The trial with respect to the allegations raised in the com-
plaint was held before me on October 30 and November 1
and 5, 1990, in New York, New York. A brief has been filed
by Respondent. The General Counsel submitted a memo-
randum in lieu of a brief. I have carefully considered each
of these documents, as well as the entire record. Based upon
said record, including my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a New York corporation, which has been
engaged in the management and operation of a residential
apartment located at 121 Madison Avenue, New York, New
York. Annually, in the course and conduct of its operations,
Respondent derived gross revenues in excess of $500,000,
and purchases and receives at its facility products, goods, and
materials valued in excess of $5000 from other enterprises
located within the State of New York, each of which other
enterprises receive the products, goods, and materials directly
from points outside the State of New York. It is admitted
and I so find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
It is also admitted and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. FACTS
Prior to April 1, 1989, the apartment building located at
121 Madison Avenue, New York, New York, was owned by
Crystal Management Corp. and operated and managed by
Millerton Management.
The Union had been the recognized collective-bargaining
representative for the service employees employed at the
building, since at least 1982, and for some prior period of
time not specifically enumerated in the record. The Union
and Millerton had been parties to a series of contracts incor-
porating this relationship, the last one running from April
1985 to April 20, 1988. The contract’s recognition clause
covers all service employees under the jurisdiction of the
Union. Further examination of the agreement reveals the var-
ious classifications covered, which includes handypersons,
doorpersons, porters, elevator operators, and superintendents.
It is undisputed that the contract covered, and that Millerton
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The record does not disclose whether the 1988 RAB contract
provided for increases in welfare and pensions contributions, or
whether Millerton paid such increased amounts, if such increases
were included there.
2 Millerton had been the managing agent for Crystal at what loca-
tion noted above, Millerton had not executed the agreement that the
Union had agreed to with the RAB.
3 As noted above, Millerton had not executed the agreement that
the Union had agreed to with the RAB. 4 I note that no officials from Millerton or Crystal testified.
recognized the Union as the collective-bargaining representa-
tive for the one superintendent that it employed, as well as
six other employees employed as doormen, handymen, and
porters. Immediately prior to April 1, the superintendent em-
ployed by Millerton was Irving Malkis. The other employees
were four doormen (Ed Sladek, Elridge Maynard, DaCosta
Drakes, and Robert Martinez, one porter (Mario Manoz), and
one handyman (Peter Portelli).
On April 20, 1988, the contract between Millerton and the
Union expired. Millerton was not a member of the Realty
Advisory Board (RAB) an association with whom the Union
bargains for many of the 40 apartment buildings in the area.
The Union’s practice is and was to reach agreement first
with the Association, and then after that contract is printed,
submit such agreement to the independent buildings such as
Millerton to sign. The contract is entitled, ‘‘Apartment House
Agreement.’’
While the Union reached agreement with the RAB at mid-
night on April 20, 1988, over the terms of a new contract,
the record does not disclose when the contract was eventu-
ally printed and/or sent out to independently, such as
Millerton to sign. In fact, the record also does not indicate
whether the union ever sent Millerton or Crystal a copy of
a proposed new agreement to execute, subsequent to April
20, 1988.
It is clear, however, that Millerton never executed a new
agreement with the Union. Nonetheless, Millerton continued
to apply the terms of the old agreement, and continued to
submit to the union welfare and pension payments on behalf
of its employees, as well as checkoff of dues and submit
same to the Union.1
Respondent was incorporated in November 1988. At that
time, its president, David Magier, began negotiations with of-
ficials from Crystal Management with respect to Respondent
purchasing a long-term lease on the property at 121 Madison
Avenue.2 These negotiations culminated in Respondent’s
agreement to purchase the long-term lease, held by Crystal
for the property, as of April 1, 1989.
During the course of the negotiations between Magier and
the officials of Crystal, Magier was never told by these offi-
cials that the Union had been or was the collective-bar-
gaining representative of the employees at the building, or
that there was a contract in existence which covered these
employees.3 Magier credibly testified that he did not know
at the time that there was a union representing the employ-
ees, and that based on his experience in the industry, a pro-
spective seller normally notifies the buyer that the Union is
there and that a contract is in existence which covers the em-
ployees. Magier has been involved in the real estate industry
for 16 years and has purchased between 20 to 30 buildings.
Some of the buildings had union contracts covering their em-
ployees, and some did not. According to Magier’s
uncontradicted testimony, normally the seller notifies the
buyer of the existence of the union contract, particularly
since the standard contract with Local 32B-J requires such
notification. In fact, article VI of the Apartment House con-
tract with Millerton, obligated an employer in the event of
sale or transfer, to notify the Union 2 weeks before the effec-
tive date, and to require the transferee to agree in writing to
adopt the contract. Furthermore, the contract provided that
the Employer pay 6 months’ pay for the benefit of employ-
ees as liquidated damages for any breach of these provisions.
Thus, based on his knowledge of this clause and his expe-
rience in the industry, Magier asserts that he did not ask
about a Union, and did not believe that the Union rep-
resented employees in the building. While I am somewhat
skeptical, as the General Counsel suggests, that someone as
experienced as Magier was in the industry, would purchase
a building without knowing whether the Union was there or
not, I am constrained to credit Magier in this regard.
Magier’s explanation for not inquiring about the Union’s sta-
tus is quite plausible, and in the absence of any contradictory
evidence,4 I credit Magier that he did not know on April 1,
1989, when Respondent commenced operation of the build-
ing, that Crystal or Millerton had previously recognized or
had a contract with the Union covering the employees at 121
Madison Avenue. On April 1, 1989, Respondent began its
operation and control of the building, without any hiatus. Re-
spondent hired the entire complement of seven employees
previously employed by Millerton, and continued to perform
the same services without any change in the jobs and job
functions of these employees. Respondent employed Joan
Brooks, its executive vice president, as its representative in
direct charge of the day-to-day managing of the building.
Brooks was present at the building 5 days a week, and an-
swered the telephone herself.
In late May 1989, Eddie Sladek, a porter-doorman em-
ployed by Respondent, upon attempting to enter the hospital,
was informed that he no longer had Blue Cross coverage.
Sladek complained first to Brooks about the problem, who
told Sladek that she would check with David Magier about
the matter.
Sladek then visited the Union and spoke to Robert
Moxheim, the business agent assigned to service the building
at the time. Sladek registered his complaint about lack of
medical coverage. Moxheim informed Sladek that he was
aware that the building had been sold, and added that he was
going to try to get the new company to sign a contract with
the Union, and to provide the employees with medical bene-
fits. Moxheim, in Sladek’s presence, called Respondent and
spoke with Joan Brooks. Moxheim identified himself as a
business agent for Local 32-B and said that he wanted Re-
spondent to sign a contract with the Union and to provide
the employer with medical benefits. Brooks responded that
she didn’t know anything about any contract. Moxheim re-
plied that he would deliver a copy of the contract to her
along with an explanatory letter. The conversation concluded
on that note.
My findings with respect to this conversation are based on
a compilation of the credited testimony of Brooks, Moxheim,
and Sladek. I note that Sladek, the General Counsel’s wit-
ness, who overheard Moxheim’s portion of the conversation,
1063STANFORD REALTY ASSOCIATES
5 However, Portelli, the handyman, left Respondent’s employ on
May 24, 1989. He was replaced by C. Camilleri, on May 27, 1989.
6 Magier had received similar advice from his attorney in May
1989, when Brooks reported to him her conversation with Moxheim.
7 I note that according to Moxheim, in addition to the standard
apartment house agreement, the Union is also a party to at least two
other standard contracts with employers, a working superintendent
agreement and a resident manager agreement.
8 I would note that the Apartment House Agreement executed by
Millerton did not contain an automatic renewal clause.
corroborated Brooks’ testimony that Moxheim did not make
the assertion that the Union represented the employees.
During May and June, Respondent continued to employ
the same seven former Millerton employees, although these
were temporary employees hired on various weeks to replace
employees out on vacation or on sick leave.5
Moxheim did not send Respondent a copy of the contract
nor an explanatory letter as he had promised. Moxheim as-
serts that he made numerous attempts to contact Brooks by
phone, and left messages for her with the doormen, but she
did not return his calls. Brooks denied receiving any such
messages and I credit her denials. I note the failure of the
General Counsel to produce any of the doormen to confirm
Moxheim’s testimony that he left messages with them for
Brooks. Indeed, the General Counsel did call two doormen
as witnesses, Drakes and Maynard, and Sladek who fills in
as a doorman at times, but failed to ask any of these wit-
nesses questions about such messages. Moreover, as I noted
above, Sladek’s testimony substantially corroborated Brooks
as to her version of their conversation, to the effect that
Moxheim had promised to deliver to Brooks a copy of the
contract, which was not done even under Moxheim’s version.
Thus, I find Brooks to he more credible in this instance.
Between late May and October 1989, neither Moxheim,
nor anyone from the Union, contacted Respondent. In Sep-
tember 1989, Robert Flores took over from Moxheim as
business agent for the building. Moxheim turned over the file
on the property to Flores, but they had no discussion about
the status of the contract.
According to Flores, he received a call from Malkis, the
superintendent at the building in October, and was told that
the employees still did not have medical coverage. Flores re-
plied that he would check with Moxheim on what was hap-
pening. Flores spoke to Moxheim and asked for an update
on the building. Moxheim informed Flores that he had deliv-
ered a contract to Respondent, but that it still had not been
signed.
Subsequently, in October, Flores visited Joan Brooks at
the building. He identified himself as a business agent for the
Union, and gave her a copy of the proposed union contract.
Flores told Brooks that he wanted Respondent to sign the
contract. Brooks replied that she knew nothing about it, and
that as far as she knew Respondent did not have a contract
with the Union. Brooks added that she was not in a position
to sign, and she would forward it to Magier. Brooks imme-
diately forwarded the contract to Magier. Magier called his
attorney who instructed him that if the employees wanted a
union, they could file a petition with the National Labor Re-
lations Board.6
In January 1990, Flores spoke to Magier on the telephone.
Flores identified himself and asked Magier if he had a
chance to look over ‘‘our contract.’’ Magier replied that his
lawyers were still looking it over. Shortly thereafter, Flores
spoke to Brooks, also by phone. Flores told Brooks that he
was calling in reference to the contract. Brooks informed
Flores that Magier had said that Flores had given Respondent
the ‘‘wrong contract.’’ Flores replied that he had given Re-
spondent the standard apartment house contract.7 Brooks
continued to insist it was the ‘‘wrong contract.’’ Flores
began to get upset and told Brooks that ‘‘we have a problem
here,’’ the men are complaining about lack of medical cov-
erage. Flores added that unless Respondent signed the con-
tract the Union might have to take action against the build-
ing. Flores also told Brooks that the Union had a prior con-
tract ‘‘with the building,’’ and this contract is a continuation
of this process. Brooks responded that the Union could do
whatever it wanted to do, but Respondent had no problem
and Respondent had no contract with the Union. Flores con-
cluded that Brooks should have Magier contact him.
Shortly thereafter, Flores spoke to Magier and asked if he
had made a decision about signing the contract. Magier re-
plied that it was the ‘‘wrong contract.’’ Flores explained that
Respondent was given the standard agreement and added that
the Union had a prior contract with ‘‘the building’’ and this
apartment house agreement contract was a continuation of
this process. Flores asked what Magier meant by the ‘‘wrong
contract.’’ Magier simply repeated it was the ‘‘wrong con-
tract.’’ The conversation concluded.
In this instance, I credit Flores as to the existence of these
January conversations over the denials of Magier and Brooks
that these discussions ever occurred. I find it likely that Flo-
res would have followed up the delivery of the contracts to
Respondent, and that he would not have requested a strike
authorization without a definitive refusal to execute the
agreement, which did not take place until January.
During January 1990, Respondent’s work force had
changed. Sladek and Martinez were no longer employed,
having been replaced by other doormen, and Malkis was re-
placed by Cosovic as superintendent. Thus, of the seven
former Millerton employees originally employed by Re-
spondent, only three (Maynard, Drakes, and Munoz) were
still employed by it in January 1990.
Subsequently, Flores spoke to Kevin McCullough, his su-
perior in the Union, to obtain strike authorization. Flores ex-
plained to McCullough that he had delivered the contract to
Respondent and that the contract had not been signed, de-
spite his numerous attempts to persuade it to do so.
McCullough gave Flores the authorization to strike. During
this discussion, Flores contends that McCullough told him
that Stanford and Millerton were ‘‘the same Company.’’ Flo-
res also asserts that McCullough told him that the Union had
an ‘‘Evergreen clause,’’ in its previous contract with
Millerton. According to Flores an ‘‘Evergreen’’ clause is in
effect on automatic renewal clauses.8
On March 19, 1990, Flores on behalf of the Union called
a strike at the building. Flores told the employees that the
employees would have to go on strike because Respondent
had not signed the contract with the Union, which resulted
in employees not having any medical coverage. Employees
Drakes, Maynard, and Munoz participated in the strike and
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Employee Camilleri participated in the strike for 1 day and then
went back to work.
10 Apparently, it was required that superintendents have such a li-
cense.
11 The above findings are based on the undenied and mutually cor-
roborative testimony of Drakes, Munoz, and Sladek. Cosovoc did not
testify.
12 Magier is also the president and sole shareholder of Harlington.
He is the owner of 50 percent of the stock of Respondent.
picketed outside the building.9 On March 21, 1990, Magier
approached Maynard while he was picketing and asked why
the employees were on strike. Maynard answered that the
employees have no coverage. Magier replied that Respondent
had a new health plan for the employees and asked Maynard
to come into the office with the other employees, but without
the union delegate to discuss it. Magier asked to meet the
next day at 9:30 a.m. Maynard replied that he would check
with the other employees.
Maynard discussed Magier’s offer with Drakes, who told
Maynard that if Magier did not want the union delegate to
come, he would not go to a meeting.
The next day, March 22, Munoz and Drakes were pick-
eting when Magier approached them. He asked if they had
gotten his message. Drakes and Munoz replied that they did
get the message, but the employees had a representative to
speak for them, and they would not meet with him. Magier
responded that he would speak to the employees anyway. He
told them that he had a health plan proposal that was better
than or at least competitive with the union contract, and that
it included Blue Shield and Blue Cross, and putting money
aside for employees’ retirement. Munoz then asked Magier
why did he wait for a year to offer this to the employees,
and allow them to have no insurance during that time.
Magier did not respond. Drakes informed Magier that he
should talk with ‘‘our’’ union representative about the mat-
ter. Munoz agreed with Drakes.
The above findings with respect to these incidents is based
primarily on the testimony of Drakes, Munoz, and Maynard.
While Magier admitted to having the conversations with the
employees and suggesting a meeting, he did not mention the
specific discussions about the medical plan. However, I note
that he did not deny that he discussed the specifics of the
proposed new medical plan, nor that he compared it favor-
ably to the plan in the union contract. I credit the mutually
corroborative testimony of the employees, particularly since
they were all still employed by Respondent at the time of the
hearing, and are not discriminatees with a direct financial in-
terest in the outcome of the proceedings. Molded Acoustical
Products, 280 NLRB 1394, 1398 (1986); K-Mart Corp., 268
NLRB 246, 250 (1983); Georgia Rug Mill, 131 NLRB 1304,
1305 fn. 2 (1961), enfd. as modified 308 F.2d 89 (5th Cir.
1962).
Although as noted above, employee Eddie Sladek left Re-
spondent’s employ in January 1990, he was and continued to
be a roommate of employee Mario Munoz. Consequently,
after the strike began, Munoz told Sladek that the employees
were on strike. Sladek told Munoz that he intended to go to
the picket line and stayed and supported the employees in
their strike.
On or about March 22, Sladek went to the picket line and
walked up and down with the employees. Later on that day,
while Sladek was still at the picket line, but by himself, he
was approached by Superintendent Ibish Cosovic. Cosovic
had a wrench in his hand, and was pointing the wrench to-
ward Sladek’s face, when he told Sladek that he was warning
him that he didn’t belong there. Sladek felt threatened by this
action and left. Sladek then filed a criminal complaint against
Cosovic, which was subsequently withdrawn. Then Sladek
returned home that evening, he called the fire department and
reported that Cosovic did not have a number six boiler li-
cense.10
On March 23, the fire department came to the building
and spent time in the basement. After the fire department
left, Cosovic came out to the picket line and spoke to
Munoz, in the presence of Drakes. He told Munoz that
Sladek had called the fire department, that he didn’t work at
Respondent, and he had no right to be close to the building.
He instructed Munoz to tell Sladek that if Sladek came
around the building again, Cosovic would kill him.11
The Union filed its initial charge on March 26, 1990,
against Harlington Realty Corp. alleging a violation of Sec-
tion 8(a)(1) and (5) of the Act by bypassing the Union and
dealing with employees directly.12
On April 12, 1990, the Union filed a first amended charge
against Stanford Realty Associates, with the same allega-
tions. A second amended charge was filed on April 24, 1990,
against Respondent, which added additional allegations of
threatening individuals with physical harm and/or death to
discourage support for the Union or picketing on behalf of
the Union. The instant complaint issued on May 7, 1990.
III. ANALYSIS
A. The 10(b) and Laches Defenses
Respondent contends that the instant complaint is barred
by Section 10(b) of the Act, and alternatively that dismissal
is warranted based on laches. Respondent asserts initially that
it did not receive proper notice of its alleged refusal to rec-
ognize and bargain with the Union until May 7, 1990, when
the instant complaint was issued. I do not agree. While the
charges and amended charges filed in March and April 1990
allege only direct bargaining with employees and bypassing
the Union, this allegation is closely related in time and na-
ture to the alleged refusal to recognize and bargain, and are
both directed at circumvention of the collective-bargaining
process. Long Island Day Care Services, 303 NLRB 112
(1991); Roslyn Gardens Tenants Corp., 294 NLRB 506
(1989). Thus, the charges provide sufficient notice to Re-
spondent of the alleged allegations and are closely related to
the allegations in the complaint. Long Island Day Care,
supra; Nickels Bakery of Indiana, 296 NLRB 927 (1989).
Respondent also argues, citing Chambersburg County
Market, 293 NLRB 654 (1989), that the complaint is barred
by Section 10(b) of the Act, since the refusal to recognize
and bargain first occurred in May 1989, after the Union’s
initial demand was not complied with by Respondent, and
that the subsequent refusals in January 1990 by Respondent
were only reiterations of its initial refusal in May 1989.
The General Counsel disagrees, citing Christopher Street
Owners Corp., 286 NLRB 253 (1987), for the proposition
that the 10(b) period does not begin to run until it became
clear that Respondent was refusing to recognize to bargain
and with the Union. Respondent acknowledges the existence
1065STANFORD REALTY ASSOCIATES
13 I would note that in Christopher Street, the employer never re-
sponded to any of the union’s demands. The Board reasoned, how-
ever, that the 10(b) period began to run only after the second de-
mand was refused, since the union could reasonably believe that the
employer was considering whether to sign the agreement. Here, such
an inference is even stronger, since in October, within 6 months
from the initial demand, the Union gave a copy of the contract to
Brooks, who promised to forward it to Magier for his review. Thus,
the Union was clearly entitled to assume Respondent was consid-
ering its offer until January 1990.
14 Preston Haskell Co., 238 NLRB 943 (1978); Columbia Broad-
casting System, 214 NLRB 637, 642 (1974).
of Christopher Street, supra, but argues in effect that Re-
spondent’s position in May 1989 was no different from its
position in January 1990, i.e., it would not sign the industry-
wide contract offered by the Union. Thus, Respondent asserts
that the Union was on notice of Respondent’s refusal to rec-
ognize and bargain with it, by virtue of the May refusal to
sign the contract, as well as Respondent’s failure to adhere
to the terms of employment of the predecessor, plus the fail-
ure to continue to check off dues.
I am in agreement with the General Counsel’s assessment
of the facts and the view that Christopher Street rather than
Chambersburg is dispositive. Thus, it is the refusal to recog-
nize and bargain with the Union that is critical for 10(b) pur-
poses, not the date that Respondent commenced operations as
an alleged successor. Goldin-Feldman, Inc., 295 NLRB 359
fn. 3 (1989). Moreover, it is well established that notice of
the unfair labor practice, whether actual or constructive, must
be clear and unequivocal, and the burden of showing such
notice is on the party raising the affirmative defense. Strick
Corp., 241 NLRB 210 fn. 1 (1979).
Therefore, while Respondent admittedly did not adhere to
the terms of Millerton’s contract or continue to check off
dues, this conduct is ambiguous as to Respondent’s inten-
tions, for as Respondent itself asserts, the obligation to rec-
ognize and bargain on the part of a successor-employer is
triggered only when a union makes a demand. Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27 (1987).
When the Union made its first demand that Respondent
sign a contract in May 1989, its obligations were at that
point tested for the first time. However, while it did not
agree to sign the contract or recognize the Union at that
time, it clearly did not unequivocally refuse to do so. The
response of Brooks was merely that Respondent as far as she
knew did not have a contract, and she would await the Union
sending a copy of the contract and an explanatory letter.
Thus, Respondent’s position here was essentially no different
from the position of the employer in Christopher Street, who
simply ignored the union’s written request to sign a contract
or alternatively to negotiate a new agreement. Thus, as in
Christopher Street, it was not clear in May 1989 that Re-
spondent was refusing to bargain with the Union, and the
Union could reasonably believe that Respondent needed time
to consider whether to sign the industrywide contract. Id. at
253.
Subsequently, the Union made three additional demands
that Respondent sign the contract in October 1989 and Janu-
ary 1990, and it was only in January 1990 when Brooks and
Magier told the Union that it would not sign the contract
submitted by the Union, did the 10(b) period begin to run.
Therefore, I reject Respondent’s 10(b) defense. Christopher
Street,13 supra, Goldin-Feldman, supra.
Respondent argues further that the instant complaint
should be dismissed based on the doctrine of laches. Zelazny
v. Lyng, 853 F.2d 540 (7th Cir. 1988). While the Board has
applied the doctrine of laches and estoppel to the parties in
unfair labor practice proceedings,14 I am not persuaded that
Respondent has demonstrated an unreasonable lack of dili-
gence by the Union in the assertion of its rights, nor that Re-
spondent has suffered any prejudice from any lack of dili-
gence that has been demonstrated.
Respondent initially faults the Union for failing to obtain
from Millerton a new collective-bargaining agreement from
April 1988 to April 1989, when Respondent commenced op-
erating the building. However, such failure cannot constitute
a waiver or abandonment of the Union’s rights. I note that
the Union did continue to represent employees of Millerton
during that time period, and in fact, processed a grievance
during that period concerning the termination of the super-
intendent. Moreover, Millerton continued to make payments
into the Union’s funds and checked off dues during this 1-
year span. See Imperial House Condominium, 279 NLRB
1225, 1236 (1986); Pioneer Inn Associates, 228 NLRB 1263,
1264 (1977). Thus, I conclude that the Union’s failure to ob-
tain a new signed agreement from Millerton does not con-
stitute an abandonment of its representative status of the em-
ployees, and cannot form the basis for an assertion that it
was guilty of laches vis a vis its relationship with Respond-
ent, which had not as yet arisen.
Once Respondent began managing the building on April 1,
1989, the Union acted promptly by demanding in late May
that Respondent sign a contract and pay medical benefits,
immediately after it was told by an employee that such med-
ical benefits were no longer being provided by Respondent.
While the Union might have been well advised to have
followed up sooner on its initial request, and certainly should
have sent Respondent a copy of the contract as promised, I
cannot find its failure to do so to be an unreasonable failure
of due diligence. See Christopher Street, supra, where the
Board excused a delay of over 7 months between the two de-
mands. See also Westvaco Corp., 289 NLRB 301 (1988);
Columbia Typographical Union 101 (Washington Post Co.),
220 NLRB 1173 (1975). (Failure to act for 10 months does
not amount to laches.) More importantly, Respondent has
presented no evidence showing that it suffered any meaning-
ful or real detriment, or any prejudice whatsoever from the
Union’s failure to make another request until October, some
5 months after the original demand. Columbia Typo-
graphical, supra at 1173. Thereafter, the Union gave Re-
spondent a reasonable opportunity to decide whether to sign
the contract or recognize the Union, and as I have noted
above, it was not until January 1990 did Respondent indicate
that it would not agree to the Union’s demand. The Union
then picketed Respondent in March and filed its charges and
amended charges at that time. Thus, I conclude that based on
the foregoing, Respondent has failed to establish either that
the Union acted with an unreasonable lack of diligence in the
assertion of its bargaining rights with Respondent, or that
Respondent suffered any demonstrable prejudice from the
Union’s failure to pursue its rights in a more timely fashion.
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Respondent’s reliance on Tennsco Corp., 141 NLRB 296, 298
(1963), in support of its assertion in this regard is misplaced. There,
the complaint was dismissed on the grounds that no successorship
relationship had been established, and the discussion of the union’s
failure to make a prompt recognition request related only to the
question of the Board’s rejecting the judge’s incorrect finding in that
case of presumption of majority status.
16 It is also worthy to note that the unit alleged as appropriate in
the complaint does not include the category of superintendents.
17 As the charges do not specifically allege a refusal to recognize
or bargain, they do allege violations of Sec. 8(a)(5) of the Act by
bypassing the Union and bargaining directly with employees. Such
allegations clearly presuppose and contemplate an obligation to rec-
ognize and bargain with the Union.
Accordingly, I reject Respondent’s assertion that laches of
the Union warrants dismissal of the complaint.15
B. The Alleged Refusal to Recognize and Bargain
The Board’s traditional test for successorship status, as af-
firmed by the Supreme Court in NLRB v. Burns Security
Services, 406 U.S. 272 (1972), and most recently in Fall
River, supra, is whether there is a continuity in the employ-
ing enterprise. Petoskey Geriatric Village, 295 NLRB 800,
801 (1989); Goldin-Feldman, supra at 373. Here, Respondent
has hired the entire work force previously employed by
Millerton in the unit, has continued managing the building,
with no hiatus in operations, in virtually the same fashion,
as Millerton had operated. Thus, it is not disputed by Re-
spondent that there was a ‘‘continuity in the employing enti-
ty,’’ when it took over the operation of the building from
Millerton.
However, Respondent has raised a number of defenses to
a finding that it is the ‘‘successor’’ to Millerton, and whether
it has lawfully refused to recognize or bargain with the
Union. Respondent argues that assuming that the Union
made an appropriate demand for recognition, the unit pre-
viously represented by the Union, was inappropriate due to
the inclusion of a supervisor in the unit, namely, the super-
intendent. Therefore, Respondent argues that because the de-
mand requested bargaining in an inappropriate unit it was not
obligated to bargain with the Union. Renaissance West Com-
munity Health Center, 276 NLRB 441, 444 (1983).
The General Counsel does not dispute the supervisory sta-
tus of the superintendents. Indeed, the General Counsel has
alleged Respondent’s superintendent, Cosovic, to be a super-
visor and agent of Respondent in connection with certain
8(a)(1) allegations. However, the General Counsel contends,
and I agree, that the inclusion of one supervisor in a unit of
seven employees does not render the unit inappropriate.
Puerto Rico Hotel Assn., 259 NLRB 429, 447 (1981), revd.
on other grounds 690 F.2d 318 (2d Cir. 1982).
While a unit consisting entirely of supervisors is inappro-
priate, Grand RX Drug Stores, 193 NLRB 525, 527 (1971),
the mere presence of one or more supervisors in the unit
does not render the entire unit inappropriate. Puerto Rico
Hotel, supra. The issue is really one of unit placement, and
Respondent would be justified in excluding the super-
intendent from the unit when and if it commences bar-
gaining. Arizona Electric Power, 250 NLRB 1132, 1134 fn.
20 (1980). Because the exclusion of the one supervisor from
the unit does not destroy the Union’s majority status, cf. Bur-
lington Food Store, 172 NLRB 781 (1968), the Union’s
successorship status is unaffected by the fact that the unit in-
cluded a supervisor.16
Moreover, it is also significant that Respondent at no time
premised its refusal to bargain with the Union on the basis
of the inclusion of the superintendent in the unit. David Wol-
cott Kendall Memorial School, 866 F.2d 157, 161, 162 (6th
Cir. 1989).
Accordingly, I reject Respondent’s assertion that the pres-
ence of the one supervisor in the unit rendered the unit inap-
propriate, or otherwise justified its refusal to bargain. I con-
clude therefore that the Respondent was and is at all times
material the successor-employer to Millerton with an obliga-
tion to recognize and bargain with the Union in an appro-
priate unit.
The next and more serious question involves whether in
fact Respondent refused to recognize and bargain with the
Union. In this connection, Respondent asserts correctly that
a successor’s duty to bargain is triggered only when the
Union has made a bargaining demand. Fall River, supra.
Thus, Respondent cannot be found to have violated its bar-
gaining obligation as a successor, unless the Union makes an
appropriate demand for recognition and bargaining. Miles &
Sons Trucking Service, 269 NLRB 7 (1984).
Respondent contends therefore that here the Union’s sole
demand upon Respondent was a request that it sign the in-
dustrywide contract, and that at no time did the Union re-
quest that Respondent recognize it or bargain with it con-
cerning the terms and conditions of Respondent’s employees.
Thus, since under Burns, supra, Respondent as the supervisor
is not obligated to sign the contract previously executed by
the predecessor employer, Respondent contends that the
Union has not made an appropriate demand for recognition
or bargaining, and Respondent has not unlawfully refused to
do so.
However, it is has been repeatedly held ‘‘that a valid re-
quest to bargain need not be made in any particular form,
or in haec verba, so long as the request clearly indicates a
desire to negotiate and bargain on behalf of the employees
in the appropriate unit concerning wages, hours, and other
terms and conditions of employment.’’ Marysville
Travelodge, 233 NLRB 527, 532 (1977). Here, the Union
made four demands on Respondent to execute the contract,
accompanying some of them with a request to provide med-
ical benefits. Thus, the Union’s demands here, in my view,
contemplate and subsume a demand for recognition and sets
forth a bargaining proposal on behalf of the employees. Yolo
Transport, 286 NLRB 1087 (1987); See also Sterling Proc-
essing Corp., 291 NLRB 208, 216 (1988).
Moreover, the Union subsequently filed charges and
amended charges against Respondent, which further dem-
onstrates and clarifies its request for recognition and bargain-
ing. Williams Enterprises, 301 NLRB 167, 174 (1991); Fall
River, supra; IMS Mfg. Co., 278 NLRB 538, 541 (1986).17
Finally, I would note that Respondent clearly treated the
Union’s demands as tantamount to requests to recognize and
bargain. Thus, when Respondent received notice of these de-
mands, Magier spoke with his attorney who advised him that
if the employees wanted a union a petition should be filed
with the Board for an election. Accordingly, based on the
foregoing, I conclude that the Union has demanded that Re-
spondent recognize and bargain with it as the collective-bar-
gaining representative of its employees.
1067STANFORD REALTY ASSOCIATES
18 Indeed, Respondent’s answer admits that it has not recognized
or bargained with the Union.
19 Note that there is no evidence that Sladek was on Respondent’s
property.
The next question to be answered is whether Respondent
has in fact refused to recognize or bargain with the Union.
It could be argued that it has not, because its response to the
Union’s demands was that the Union had presented the
‘‘wrong contract.’’ Thus, one could conclude that Respond-
ent has merely refused to sign the contract submitted by the
Union, which it is lawfully entitled to do. Moreover, by re-
sponding that the Union submitted the ‘‘wrong’’ contract, it
could be interpreted as an implicit assertion that it might sign
the ‘‘right’’ contract, or agree to bargain with the Union over
terms of the contract.
However, although I conclude that the Union was less than
diligent in testing Respondent’s intentions in this regard, by
striking without even making a specific request to meet and
bargain, or at least to clarify Respondent’s position, I con-
clude that based on the circumstances, Respondent has in
fact refused to recognize and bargain with the Union.
I note particularly Respondent’s conduct, as found below,
of bypassing the Union, requesting that employees meet with
it without the presence of the union representative, and
promising them benefits to induce them to abandon the
Union. This conduct clearly demonstrates a refusal to recog-
nize and bargain with the Union, and negates any inference
that could be drawn from its statements about the ‘‘wrong
contract,’’ that it would have been willing to recognize or
bargain with the Union. I would also note in this connection
the advice from Respondent’s attorney as related above as
well as its silence subsequent to the filing of the instant
charges to further demonstrate that it was refusing to recog-
nize and bargain with the Union.18
Finally, I would also note my finding above that Respond-
ent did not know when it purchased the lease for the building
that the Union was the collective-bargaining representative
for Millerton’s employees. However, as that fact may be sig-
nificant in the case of imposing liability on a successor-em-
ployer to remedy the unfair labor practices of its predecessor,
c.f. Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973),
I do not believe that it is relevant to a determination of
successorship status under Burns supra. The obligation under
Burns arises by operation of law, and is not affected by
whether or not Respondent knew at the time of the purchase
that the predecessor had a bargaining relationship with the
Union.
Similarly, this conclusion is not changed by the fact that
at the time of the refusal to recognize and bargain Respond-
ent no longer employed a majority of employees formerly
employed by Millerton. Thus, when the Union first requested
recognition and bargaining in May 1989, Respondent was the
successor-employer, and obligated at the time to comply with
the Union’s requests. That status continued to be in force,
and Respondent is obligated to establish that the Union no
longer enjoyed majority support or it had a reasonably based
doubt of majority status, based on objective considerations,
in order to justify a refusal to recognize. Terrell Machine
Co., 173 NLRB 1480, 1481 (1969), enfd. 427 F.2d 1088 (4th
Cir. 1970). See also Martin of Mississippi. 283 NLRB 258,
259 (1987). Respondent adduced no evidence to meet its bur-
den in that regard, and the turnover of employees is insuffi-
cient to do so, since the Board presumes that new employees
support the Union in the same ratio as those they replace
Petoskey Geriatric, supra at 802; Christopher Street, supra at
256; Alexander Linn Hospital Assn., 288 NLRB 103, 108,
(1988).
Accordingly, based on the foregoing, I conclude that Re-
spondent has violated Section 8(a)(1) and (5) by refusing on
and after January 1990 to recognize and bargain with the
Union.
C. The Alleged Direct Bargaining, Promise of
Benefits, and Threats
I have found that Respondent by Magier requested that
employees speak with him about a new health plan without
the presence of the union representative, and then subse-
quently discussed with employees the implementation of a
new health plan that was better or as good as the union plan.
Magier also detailed the specifics of his plan, which included
Blue Cross and Blue Shield and putting money aside for
early retirement.
Because the Union was the exclusive collective-bargaining
representative of Respondent’s employees at the time, Re-
spondent was not free to discuss these matters directly with
employees. By such conduct, Respondent engaged in unlaw-
ful direct dealing and bypassing the Union in violation of
Section 8(a)(1) and (5) of the Act. Kirby’s Restaurant, 295
NLRB 897, 901 (1989); Fabric Warehouse, 294 NLRB 189,
193 (1989); and Bay Area-Los Angeles Express, 277 NLRB
1063, 1081 (1985).
Additionally, by promising the employees the same or a
better health plan without the Union, Respondent has vio-
lated Section 8(a)(a) of the Act. Bay Area, supra; K & K
Transportation Co., 254 NLRB 722 (1981).
I have also found that former employee Sladek, while at
the picket line in support of the employees’ strike against
Respondent, was threatened by Cosovic with a wrench, and
told that he didn’t belong there. Because Sladek was a
former employee, he is still considered an employee under
Section 2(3) of the Act, and Cosovic’s threat, clearly in re-
prisal for Sladek’s protected concerted activity, is violative of
Section 8(a) (1) of the Act. Redwood Empire, Inc., 296
NLRB 396 (1989); Little Rock Crate & Basket Co., 227
NLRB 1406 (1977).
Angered by this threat, Sladek called the fire department
and reported that Cosovic did not have a proper boiler li-
cense. After the fire department came to Respondent’s prem-
ises on March 23, Cosovic told Munoz (Sladek’s roommate)
that Sladek had no right to be close to the building and that
he would kill Sladek if Sladek came again.
Respondent contends that Cosovic’s remarks are not un-
lawful because Sladek in fact did not belong there, and they
were motivated solely by Sladek’s call to the fire department,
which is not protected conduct.
However, Respondent is incorrect, because, as I have
noted, Sladek was a former employee and had a right to be
outside the building supporting the employees, and Respond-
ent had no right to tell him to leave.19 Moreover, while it
is true the threat was made in part because of Sladek’s call
to the fire department, I conclude it was at least in part moti-
vated by Sladek’s protected activity of supporting the em-
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
21 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ployees, and is therefor unlawful. Additionally, I note that
the call to the fire department was provoked by and an out-
growth of Sladek’s protected conduct and Cosovic’s prior
unlawful threat.
Accordingly, I conclude that Cosovic’s threat to Munoz, to
be transmitted to Sladek, which also tends to discourage pro-
tected conduct by Munoz, as well as Sladek, is violative of
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Stanford Realty Associates, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local 32B-32J, Service Employees International Union,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for collective bargaining within the meaning
of Section 9(b) of the Act:
All building service employees employed at 121 Madi-
son Avenue, New York, New York, excluding all office
clerical employees, guards, professional employees and
supervisors as defined in the Act.
4. At all times material Union has been the exclusive col-
lective-bargaining representative of the employees in the unit
described alone.
5. Since on or about April 1, 1989, Respondent has been
a successor-employer to Millerton Management Co. in the
operation of the apartment building at 121 Madison Avenue,
New York.
6. Since on or about January 1990, and continuing to date,
Respondent has failed and refused to recognize and bargain
collectively with the Union as the exclusive representative of
the Respondent’s employees in the unit described above, and
therefor has engaged in and is engaging in unfair labor prac-
tices in violation of Section 8(a)(1) and (5) of the Act.
7. By bypassing the Union and dealing directly with em-
ployees in the unit concerning matters over which it was ob-
ligated to bargain with the Union, Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) and (5)
of the Act.
8. By promising employees better or equal health benefits
if they abandon union representation, Respondent has en-
gaged in unfair labor practices in violation of Section 8(a)(1)
of the Act.
9. By threatening employees or former employees with
physical harm and/or death if they engage in protected con-
certed activities, Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
10. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) and (5) of the Act,
I shall recommend that it cease and desist therefrom and, on
request, bargain collectively with the Union as the exclusive
representative of employees in the appropriate unit.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, Stanford Realty Associates, Inc., New
York, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and, on request, bargain collec-
tively with Local 32B-32J, Service Employees International
Union, AFL–CIO, in the following appropriate bargaining
unit:
All building service employees at 121 Madison Avenue,
New York, New York, excluding all office clerical em-
ployees, guards, professional employees and supervisors
as defined in the Act.
(b) Bypassing the Union and dealing directly with employ-
ees in the unit concerning matters over which it was obli-
gated to bargain with the Union.
(c) Promising employees better or equal health benefits if
they abandon union representation.
(d) Threatening employees or former employees with
physical harm and/or death if they engage in protected con-
certed activities.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith with
the Union as the exclusive bargaining representative of its
employees in the unit found appropriate respecting rates of
pay, hours of work, or other terms and conditions of employ-
ment and, if an agreement is reached, embody it in a written
and signed agreement.
(b) Profit at its facility in New York, New York, copies
of the attached notice marked ‘‘Appendix.’’21 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
1069STANFORD REALTY ASSOCIATES
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to meet and bargain collectively with
Local 32B-32J, Service Employees International Union,
AFL–CIO, as the exclusive bargaining representative of our
employees in the following appropriate unit:
All building service employees employed by us at 121
Madison Avenue, New York, New York, excluding all
office clerical employees, guards, professional employ-
ees and supervisors as defined in the Act.
WE WILL NOT bypass the Union and deal directly with our
employees in the unit concerning matters over which we are
obligated to bargain with the Union.
WE WILL NOT promise our employees better or equal
health benefits if they abandon union representation.
WE WILL NOT threaten our employees or former employ-
ees with physical harm and/or death if they engage in pro-
tected concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL recognize and, on request, bargain in good faith
with the Union as the exclusive bargaining representative of
our employees in the unit found appropriate respecting rates
of pay, hours of work, or other terms and conditions of em-
ployment and, if an agreement is reached, embody it in a
written and signed agreement.
STANFORD REALTY ASSOCIATES, INC.