Barrington Plaza and Tragniew, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1970

185 N.L.R.B. 962 (N.L.R.B. 1970)

962 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD
Barrington Plaza and Tragniew , Inc. and Service
and Maintenance Employees Union , Local 399,
affiliated with the Building Service Employees
International Union , AFL-CIO. Case 31-CA-730
October 12, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On June 11, 1969, Trial Examiner James R. Hem-
ingway issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices.
The Trial Examiner recommended that the Respond-
ent cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Examin-
er's Decision. Thereafter the Respondent and the
General Counsel filed exceptions to the Trial Examin-
er's Decision and briefs in support thereof. The
Respondent additionally filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs,
and the entire record' in the case, and hereby adopts,
subject to the modifications, below and only to the
extent consistent with such modifications, the find-
ings,' conclusions ,' and recommendations' of the Trial
Examiner.
We agree with the Trial Examiner's findings that
the Respondent engaged in unfair labor practices
As the record herein, including the exceptions and briefs, adequately
presents the positions of the parties , the Respondent 's request for oral
argument is hereby denied
' In reaching our decision herein, we do not rely upon contradicted
testimony any portion of which was not given before Trial Examiner
James R Hemingway Additionally, we do not rely upon certain Barrington
Plaza bank checks as evidence that Barrington Plaza is a d /b/a for
the Respondent
While in agreement with the basis upon which the Trial Examiner
predicated jurisdiction , we additionally find that jurisdiction lies herein
as the Respondent meets the Board 's jurisdictional standard for apartment
houses Parkview Gardens, 166 NLRB 1141 Cf Siemons Marling Service,
122 NLRB 81, 84, in l I
In the absence of evidence that the employees who did not reapply
for work after May 31, 1967, declined to do so because of futility
nurtured by Respondent's union animus or conduct, we adopt the Trial
Examiner's recommended preferential hiring list remedy as to such
employees
in violation of Section 8(a)(1) and (3). We do not
agree, however, with the Trial Examiner's recommend-
ed dismissal of the complaint's 8(a)(5) allegations,
assertedly for want of proof of the Union's majority,
and with the Trial Examiner's consequent failure
to recommend a remedial bargaining order.
The record clearly shows the following facts: Prior
to the Respondent's acquisition of Barrington Plaza
on June 1, 1967, the Union for many years had
been the established bargaining representative of the
unit of service and maintenance employees here
involved,' having continuously been recognized as
such since September 1963, regardless of the various
predecessor employers operating the Plaza. The
Union's first collective-bargaining agreement had been
entered into in 1963, another in 1965, and yet another
in 1967, the last with the Respondent's immediate
predecessor, Ben Hecht. During the period of its
incumbency, the Union policed its successive contracts
on behalf of the unit employees and also represented
them in other ways. No charge was ever filed challeng-
ing the validity of the Union's contracts or the legiti-
macy of its unit representation. Nor was any employer
or employee petition ever filed questioning the Union's
majority status.
After acquiring the Plaza on June 1, 1967, the
Respondent continued to operate the property in sub-
stantially the same manner as had its predecessors,
and with substantially the same job classifications.
At the time of its takeover the Respondent arranged
to have transferred to its employ virtually all of
its predecessor's unrepresented employees. But it took
an opposite course with respect to the maintenance
and service employees in the bargaining unit represent-
ed by the Union. The Respondent was aware when
it purchased the Plaza that the unit employees were
represented by the Union. However, as the record
makes clear, the Respondent was determined at any
cost not to become saddled as a successor employer
with an obligation to deal with a union at the Plaza.
To avoid such a result, the Respondent refused to
accept in its employ the former Hecht employees
in the bargaining unit, except for several of them
' The Trial Examiner found that the unit appropriate for the purposes
of collective bargaining consists of all apartment -hotel/ motel service
employees employed by the Employer at Barrington Plaza, including
maids, maintenance employees, utility men , gardeners , exterminators,
doormen, garagemen , and parking attendants , but excluding all other
employees , guards, and supervisors as defined in the Act Though we
do not adopt in all respects the Trial Examiner' s rationale for his unit
findings, particularly concerning the exclusion of lifeguards , we do note
that the unit found appropriate by the Trial Examiner conforms to
the scope of the unit previously subject to tl3e 1967 contract between
the Union and the predecessor employer, Ben Hecht On that basis,
and absent evidence which would indicate that such a unit is otherwise
inappropriate , we find that the unit described by the Trial Examiner
is appropriate under Sec 9 of the Act
185 NLRB No. 132
BARRINGTON PLAZA AND TRAGNIEW, INC
who, as a condition of hire, were required to, and
did, assure the Respondent that they were not mem-
bers of the Union." The Trial Examiner found, and
we agree, that the Respondent, in violation of Section
8(a)(1) and (3) of the Act, refused to hire the unit
employees solely "because they had been represented
by the Union" and "because of their supposed mem-
bership in the Union." It was in this context that
the Respondent refused to bargain with the Union.
The only reason given by the Respondent for rejecting
the Union's several requests for a meeting was that
the Respondent was nonunion in its operations and
therefore did not care to meet with the Union.'
We believe a finding of an 8(a)(5) violation is
clearly supported by the foregoing facts showing that
the Respondent engaged in discrimination against its
predecessor's unit employees for the purpose of evad-
ing a successorship bargaining relationship with the
Union. Authoritative precedent for this conclusion
is to be found in K. B. & J. Young's Super Markets,
157 NLRB 271, enfd. 377 F.2d 463 (C.A. 9), cert.
denied 389 U.S. 841, where the Board so held on
substantially similar facts, including the fact that the
union's representative status was established only by
its bargaining agreement with a predecessor employer.
The Trial Examiner arrived at a different conclusion
only because he found that the Union's majority
status in the appropriate unit as of June 1, 1967,
had not been proved. With respect to that finding,
however, we hold that the Trial Examiner was in
error-and this for the reasons that follow.
In the case of an incumbent union, majority union
support is not to be confused with majority union
membership. As was recently emphasized by the
Fourth Circuit Court of Appeals in Terrell Machine
Co. v. N.L.R.B.:8
A showing that less than a majority of the
employees in the bargaining unit were members
of the union or paid union dues [is] not the
equivalent of showing lack of union support.
Manifestly . . . many employees are content
neither to join the union nor to give it financial
Under now well-settled law, it is clear that if the Respondent had
hired a substantial number of Hecht's former employees in the bargaining
unit , while continuing as it did to operate the Plaza in substantially
the same manner as its predecessor , it would, as a successor employer,
have become subject to Hecht's statutory obligation to the Union-
unless, of course , it then had, and asserted , a good-faith and reasonably
grounded doubt of the Union's majority (See, e g , Overrate Transportation
Co, 157 NLRB 1185, enfd . 372 F 2d 765 (CA 4), cert denied 389
US 838; Valleydale Packers, Inc, 162 NLRB 1486) In the instant
case it is undisputed that the Respondent at no time questioned the
Union's majority , at least not until after this proceeding was begun
That reason was given on the occasion of the Union's initial request,
made orally to the Respondent 's Vice President Poag Subsequent requests
to Poag were simply ignored.
Terrell Machine Co , 173 NLRB No 230, fn 4, enfd Terrell Machine
Company v N..LR.B., 427 F 2d 1088 (C A 4)
963
support but to enjoy the benefits of its representa-
tion. Nonetheless, the union may enjoy their
support, and they may desire continued represen-
tation by it.'
Consistent with the foregoing, the principle has long
been settled that in an 8(a)(5) proceeding, involving
a refusal to bargain with a theretofore recognized
union, the requisite proof of majority status need
not take the form of a Board certification or card
showing. The existence of a prior contract, lawful
on its face, raises a dual presumption of majority-
a presumption that the union was the majority repre-
sentative at the time the contract was executed, and
a presumption that its majority continued at least
through the life of the contract.'°
Following expiration of the contract, this presump-
tion continues and is not dependent on independent
evidence that the bargaining relationship was original-
ly established by a certification or majority card show-
ing." The presumption applies not only to a situation
where the employer charged with a refusal to bargain
is itself a party to the preexisting contract, but also
to a successorship situation such as we have here.12
The burden of rebutting this presumption rests, of
course, on the party who would do so. It is true
that a labor organization's continuing majority may
not be questioned during the term of a contract.
On the other hand, upon expiration thereof, the pre-
sumption of majority arising from a history of collec-
tive bargaining may be overcome by "clear and con-
vincing proof"' that the union did not in fact enjoy
majority support at the time of the refusal to bargain."
At such time, it is also a valid defense for the employer
to "demonstrate by objective considerations that it
has some reasonable grounds for believing that the
union has lost its majority status. . . ."1'
Applying these principles to the case at hand, we
find that the General Counsel has demonstrated the
Union's majority by virtue of the successive contracts
negotiated by the Union with the various predecessor
employers who have operated the Plaza since the
Union was initially recognized in 1963. We note
° Accord, NLR B. v Gulfmont Hotel Co, 362 F 2d 588 (C A 5)
° Shamrock Dairy, Inc., 119 NLRB 998, 1002, and 124 NLRB 494,
495-496 , enfd 280 F.2d 665 (C A D C ), cert denied 364 U S 892,
Ref-Chem Company, 169 NLRB No 45, enforcement denied 418 F 2d
127 (CA 5)
" See, e g , Valleydale Packers, Inc, supra, K B & J Young 's Supermar-
kets, supra
Ibid.
" Ref-Chem Company, supra.
" Shamrock Dairy, Inc, supra. If the want of majority support is
shown to have existed at the time an exclusive bargaining contract
was entered into, this of course would also amount to a finding of
an unfair labor practice . See International Ladies' Garment Workers'
Union . AFL-CIO v NLRB. 366US 731
" United States Gypsum Company, 157 NLRB 656 , and cases cited
at fn 17 therein
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that each of these contracts is valid on its face,
and the record affirmatively establishes that within
the duration of the three contracts the Union actively
represented the unit employees and effectively policed
the various provisions in the agreements.
In reaching this conclusion we reject the Trial
Examiner's rationale that the events of 1963 could
properly be used by the Respondent as competent
evidence bearing on the validity of subsequent con-
tracts and the presumption of majority arising there-
from. By virtue of the limitations proviso of Section
10(b) of the Act, the legality of the Union's initial
recognition was no longer subject to direct attack
under Section 8 of the Act at the time of the Respond-
ent's refusal to bargain. We are unable to subscribe
to the Trial Examiner's view that the putative 1963
unfair labor practice, although time-barred from a
Section 8 challenge, was nevertheless available to
the Respondent as a defense to its refusal to bargain.
As the Supreme Court has noted, the 10(b) proviso
reflects, in part, the manifestation of a congressional
policy "to stabilize existing bargaining relationships"
by preventing the resurrection of legally defunct unfair
labor practices.16 That statutory policy is subverted
no less when a legally defunct unfair labor practice
is used as a shield than when it is used as a sword,
if the effect of its use is to disrupt an established
bargaining relationship. In comparable cases arising
under Section 8(b)(7)(A) of the Act, the Board has
refused to allow respondent unions charged with
unlawful picketing to invoke as a defense the invalidity
of the incumbent union's initial recognition, in circum-
stances where Section 10(b) would have precluded
a direct challenge to the legality of such recognition
in an unfair labor practice proceeding. Roman Stone
Co., 153 NLRB 659; Blue Diamond Coal Co., 166
NLRB 271, enfd. sub nom. N.L.R.B. v. District 30,
Mine Workers, 422 F.2d 115 (C.A. 6). We perceive
no valid reason in principle why a greater privilege
should be given an employer in a case such as this
than was given the respondent unions in the cited
cases.
At any rate, even if the 1963 events could now
properly be considered we find on the evidence pre-
sented that they are of insufficient probative force
to overcome the presumption of majority in this case."
16 Local Lodge No 1424. 1AM [Bryan Mfg Co j v N L R B 362 U S
411,419,428
" Chairman Miller is of the view that the Trial Examiner correctly
admitted and considered the proffered evidence relating to the Union's
majority status at the time of its initial recognition in 1963. The record
shows that within the 10(b) period there were events, specifically solicita-
tion by supervisors of union authorization cards, which cast some doubt
on the Union 's majority status Under these circumstances , the Chairman
would construe Bryan Mfg Co, supra, to allow the consideration of
events outside the 10 (b) period which were relevant to the question
of the Union 's majority status.
To support his finding that the 1963 owner of the
Plaza "unlawfully recognized" the Union, the Trial
Examiner relied primarily on a card check made
in March 1963 which disclosed that the Union was
then one card short of a majority. But that card
check was made about 6 months before recognition
was first extended to the Union, and no evidence
was offered to show that in fact a majority of the
unit employees did not desire to be represented by
the Union on the date of the initial recognition. The
fact that a union was one card short of a majority
6 months earlier obviously does not establish that
it also lacked a majority on a subsequent date when
an employer voluntarily granted recognition. Further,
there is no basis whatever in this record for assuming
that any of the subsequent contracts with the Union
were entered into without majority status being pres-
ent.
Accordingly, we find, contrary to the Trial Examin-
er, that at the time of the Respondent's purchase
of the Plaza there was operative a valid presumption
of continuing majority arising from the Union's preex-
isting contract with Hecht. This presumption would
not have stopped the Respondent, if in good faith
it had reason for doubt, from questioning the Union's
continuing majority status as of that time." But the
fact is that the Respondent neither questioned the
Union's majority nor professed to act on any such
premise in refusing to recognize and deal with the
Union. The discriminatory action taken by the
Respondent to avoid a successorship bargaining rela-
tionship reflects, to the contrary, that the Respondent
acted on a belief, rather than a doubt, that the Union
was a majority representative entitled to recognition.
Had the Respondent genuinely doubted the Union's
majority and refrained from unlawful discrimination,
it would not have been without remedy to resolve
such doubt as it might have had. In that event,
it could itself have filed a representation petition
with the Board to ascertain through an election the
Union's right to continued representation. Or it could
have withheld recognition subject to resolution of
the representation question via a petition filed by
the Union. The Respondent, however, elected neither
of such courses. Instead it chose an unlawful course
of action which precluded any possibility of holding
a fair election. To deny a bargaining order in this
case would allow the Respondent to continue to enjoy
the very benefit its unfair labor practices were designed
to achieve. This in our judgment would serve to
subvert rather than effectuate statutory policy.
1t The Union 's contract with Hecht expired by its terms simultaneously
with the transfer of the Plaza to the Respondent Cf Ranch - Way, Inc,
183 NLRB No 116
BARRINGTON PLAZA AND TRAGNIEW, INC 965
We therefore conclude, and find, that by failing
and refusing, on and after June 1, 1967, to recognize
and bargain collectively with the Union as the statuto-
ry representative of the employees in the appropriate
unit, the Respondent has violated Section 8(a)(5) and
(1) of the Act.19 We further conclude, and find, that
the bargaining order directed below is required not
only to remedy the aforesaid violations, but also
to cure the Respondent's other unfair labor practices
herein found by restoring the situation as nearly
as possible to that which would have prevailed absent
such unfair labor practices.Z° Accordingly, we shall
modify the Conclusions of Law and Recommended
Order.
al Union , AFL-CIO, as the exclusive representative
of the employees in the appropriate unit with respect
to rates of pay , wages, hours of employment, and
other terms and conditions of employment, and
embody in a signed agreement any understanding
reached."
3. Substitute the attached Appendix for the Trial
Examiner 's Appendix.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
ADDITIONAL CONCLUSIONS OF LAW
Substitute the following for paragraphs 7 and 8
of the Conclusions of Law.
"7. The Union at all times material hereto has
represented a majority of employees in an appropriate
unit within the meaning of Section 9(a) of the Act."
"8. Respondent has, in violation of Section 8(a)(5)
and (1) of the Act, refused on and after June 1,
1967, to bargain collectively with the Union."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner and hereby orders that
the Respondent, Tragniew, Inc., and Consolidated
Hotels of California, both of Los Angeles, California,
their officers, agents successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as so modified:
1. Insert as paragraph 1(c) of the Recommended
Order the following:
"Refusing to bargain collectively with Service and
Maintenance Employees Union, Local 399, affiliated
with the Building Service Employees International
Union, AFL-CIO, as the exclusive collective-bargain-
ing representative of its employees in the appropriate
unit."
2. Insert the following as paragraph 2(a) of the
Recommended Order, and reletter the following para-
graphs accordingly:
"Upon request, bargain collectively with the Service
and Maintenance Employees Union, Local 399, affili-
ated with the Building Service Employees Internation-
" See K B. & J. Young's Supermarkets, supra and cf. Chemrock
Corp., 151 NLRB 1074
30 See Ptaseck, Aircraft Corp, 123 NLRB 348, enfd 280 F 2d 575
(C A. 3), cert denied 264 U.S 933
The National Labor Relations Board has found
that we have committed unfair labor practices by:
Failing and refusing in June 1967 to hire employ-
ees who had, before June 1, 1967, worked for
the Ben Hecht Co. at Barrington Plaza as door-
men, porters, maintenance men, gardeners, park-
ing attendants, or garagemen, if they weremem-
bers of Service and Maintenance Employees
Union, Local 399, affiliated with the Building
Service Employees International Union, AFL-
CIO, or if they were believed to be members
thereof.
Questioning employees about their union mem-
bership and informing such employees that they
would not be hired if they were members of
the Union.
Refusing to bargain, upon request, with Service
and Maintenance Employees Union, Local 399,
affiliated with the Building Service Employees
International Union, AFL-CIO, as the majority
representative of our employees in an appropriate
unit.
If, in the first 3 days in June 1967, you made
application for employment at Barrington Plaza
and if, at that time, there was a job unfilled
by any employee, in your classification of work,
who was transferred permanently from another
building managed by the undersigned Employers,
you are entitled to such job now at the current
rate of pay and conditions of employment, and
if you will, within 10 days from the date of
receipt hereof, apply in person at the maintenance
department of the Barrington Plaza we will hire
you, even if it is necessary to discharge employees
(other than persons who had been employed
in your classification by Hecht or by ourselves
before June 1, 1967) to make room for you.
Any employee presently serving in the Armed
Services of the United States shall have his rights
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to his job in accordance with the Selective Service
Act and the Universal Military Training and
Service Act, as amended. If you failed to apply
at the Barrington Plaza for work in the first
3 days of June 1967 because you believed that
employees of Hecht who had been represented
by the Union named above would not be hired
by us, we notify you that your present or past
membership in said Union, or in any other labor
organization, will not keep you from getting a
job at the Barrington Plaza, and if, within 10
days after receipt of this notice, you will come
to the Barrington Plaza and fill out and leave
with us an application for employment, we will
put your name on a preferential hiring list and
will employ you (in order of application) when
a vacancy occurs. Said 10 days shall be extended,
for those presently in the Armed Services of
the United States, to 60 days after discharge
from such service.
WE WILL NOT discourage membership in the
foregoing Union 'or any other labor organization
by discriminating in regard to the hire or tenure
of employment or any term or condition or
employment of any employee or applicant for
employment.
WE WILL NOT refuse to bargain, upon request,
with Service and Employees Maintenance Union,
Local 399, affiliated with the Building Service
Employees International Union, AFL-CIO, as
the majority representative of our employees in
the following appropriate unit:
All apartment-hotel/motel service
employees employed by the Employer at
Barrington Plaza, including maids, mainte-
nance employees, utility men, gardeners,
exterminators, doormen, garagemen, and
parking attendants, but excluding all other
employees, guards and supervisors as defined
in the Act.
WE WILL NOT in any manner interfere with,
restrain, or coerce employees in their exercise
of the right to self-organization, to form, join,
or assist Service and Maintenance Employees
Union, Local 399, affiliated with the Building
Service Employees International Union, AFL-
CIO, or any other labor organization, to bargain
collectively through representatives of their own
choosing, or to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from
any or all such activities, except to the extent
that such right may be affected by an agreement
requiring membership in a labor organization
as a condition of employment, as authorized
in Section 8(a)(3) of the Act.
Dated By
Dated By
TRAGNIEW, INC.
(Employer)
(Representative)
'(Title)
CONSOLIDATED HOTELS
OF CALIFORNIA
(Employer)
(Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 10th Floor, Bartlett Building, 215 West Seventh
Street, Los Angeles, California 90014, Telephone 688-
5850.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: Service and
Maintenance Employees Union, Local 399, affiliated with
the Building Service Employees, International Union, AFL-
CIO, herein called the Union, on June 6, 1967, filed a
charge against Barrington Plaza and Tragview (a misspelling
of Tragniew'), herein called the Respondent, alleging viola-
tions of Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended, 29 U.S.C., Sec. 151, et seq.,
herein called the Act. Upon this charge, a complaint issued
on August 18, 1967, alleging violations of the aforesaid
sections of the Act. The Respondent Tragniew is correctly
named in the complaint. The Respondent's answer was
filed on September 29, 1967. On October 24, 1967, an
amendment was served on the',Respondent.2
Pursuant to the aforesaid notice, a hearing was opened
in Los Angeles, California, on October 31, 1967, by Trial
Examiner Eugene K. Kennedy. That hearing ran for 3
days; then it was adjourned to a later date for the purpose
of giving the General Counsel an opportunity to enforce,
in the District Court, a subpoena duces tecum with which
the Respondent had refused to comply. The hearing was
postponed by subsequent continuances until December 5,
1968. Up to that time the subpenaed records had not
I Tragniew is a reverse spelling of Weingart, an owner therein
2 The Respondent did not have an opportunity to reply to the amendment
to the complaint before the hearing opened, so an opportunity was given to
the Respondent to state its answer to the amendment at the hearing
BARRINGTON PLAZA AND TRAGNIEW, INC
been produced, although the subpena was enforced by the
court, and an attorney, to whom the case had been assigned
to act for the General Counsel after Telanoff became unavail-
able, bad resigned from his position on the General Counsel's
staff. The case was assigned to Rothbloom shortly before
the date the hearing was to reconvene Upon representations
that the records were voluminous, Rothbloom elected to
inspect them at Respondent's office. It was therefore neces-
sary, on December 6, 1968, to continue the hearing to
January 14, 1969. At this point the hearing progressed
until January 22, 1969, when it was closed. Time was
given in which to file briefs. This time was extended several
times at the request of Respondent's attorney. Upon the
expiration of the final extension, briefs were received from
the General Counsel and from Respondents.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Barrington Plaza is the name of a complex of four
buildings, including 712 luxury residential apartments, locat-
ed at 11740 Wilshire Boulevard, Los Angeles, California.
The Barrington Plaza is not a legal entity ' Before the
events upon which this case is based occurred, Barrington
Plaza had been owned by a party not involved herein.
On June 1, 1966, the Federal Housing Administration,
herein called FHA, acquired Barrington Plaza by foreclosure
proceedings. On June 1, 1967, the FHA sold the Barrington
Plaza to Respondent Tragniew, Inc., hereinafter called Trag-
niew, and one Leonard Friedman, who hold title in equal
shares. The complaint alleges, and Respondent stipulated
thereto, that the sale was for the price of $21,200,000.
The sale's contract, itself, was not offered in evidence,
but some of the terms of that agreement are referred
to in a management contract, in evidence, which was entered
into between Tragniew and Consolidated Hotels of Califor-
nia. There it is stated that Tragniew (designated therein
as Owner) "has purchased said property from the Secretary
of Housing and Urban Development . . and has given
the Secretary its note secured by a deed of trust upon
said real property, and has entered into a certain agreement
dated June 1, 1967, with the Secretary (which agreement
is hereinafter referred to as the Regulatory Agreement);
and . . . as a condition of the sale, the Secretary required
that Agent [Consolidated Hotels of California] operate the
Project and guarantee for a period the operating expenses
thereof ...." The agreement between Tragniew and Consoli-
dated Hotels then provided that the latter, under the person-
al and direct supervision of one of its principal officers,
should, on the basis of an operating schedule, job standards,
and wage rates previously approved by Tragniew on the
recommendation of Consolidated or resulting from wage
negotiations, "investigate, hire, pay, supervise and discharge
' Hereinafter,'] find that it is a name under which Tragniew and its wholly
owned subsidiary Consolidated Hotels of California do business I use the
term, Respondent, in the singular throughout to cover both
967
the personnel necessary to be employed ...... This agreement
was signed by the same persons as officers for each corpora-
tion.
The Barrington Plaza is composed of four buildings
designated by letters A, B, C, D. The D building is composed
exclusively of stores and offices. In the A building there
are three stores, with the remaining rentable space being
apartments. Management offices are in the A building.
The whole of Buildings B and C (exclusive of management
or service areas) are apartments.
The annual rental of the stores and offices in Barrington
Plaza is in excess of $100,000, and the total annual rent
from the apartments exceeds $1 million. In excess of
$900,000 has been spent annually since June 1, 1967, by
Tragniew and Consolidated Hotels of California for mate-
rials, supplies, and labor in connection with the operation
and management of Barrington Plaza, of which at least
$50,000 is for materials and supplies which have been
purchased directly from sources outside the State of Califor-
nia.
Tragniew, having its principal office and place of business
in Los Angeles, California, is engaged in the business of
buying, selling, owning , leasing, and, through Consolidated
Hotels of California, operating both residential and nonresi-
dential hotels, motels, commercial stores, office and apart-
ment buildings, owned by Tragniew alone or with its presi-
dent, Ben Weingart, and other real property, most of which
is and has been managed by Consolidated Hotels of Califor-
nia for and on behalf of Tragniew.
In the course and conduct of such business operations,
Tragniew and Consolidated annually receive gross revenues
in excess of $2 million, of which more than $500,000
is received as revenue from their rental of rooms in nonresi-
dential hotels, at which less than 50 percent of the guests
stay for a month or longer. Consolidated manages 29 hotels,
of which 17 are wholly owned by Tragniew and the others
are owned in part by Tragniew. It also manages five motels.
Among the larger of the hotels owned in whole or part
by Tragniew and managed by Consolidated are three that
have in excess of 500 rooms each. The others range from
31 to 331 rooms. The motels range from 22 to 288 rooms.
Two of them including the largest, are wholly owned by
Tragniew.
Among the revenues received by Tragniew, through Con-
solidated, the income from rental of commercial properties
exceeds $100,000, of which at least $25,000 is received
from firms which annually purchase at least $50,000 worth
of goods and materials from points outside the state of
California. Among such commercial properties are the fol-
lowing. (1) An Atlantic & Pacific Tea Company store
in Lakewood, California, with an annual rental of approxi-
mately $49,094 plus 75 percent of the real estate tax in
excess of $7,500; (2) Broadway Hale Department Store in
the 400 block of South Hill Street in downtown Los
Angeles, owned exclusively by Tragniew, which property
has an annual rental of $50,000 plus real estate taxes
amounting to approximately $17,000 a year, which is paid
by Broadway Department Store to Tragniew; (3) Hartfield
Zody, a discount department store (whose location was not
known to counsel when they entered their stipulation, but
which they thought was in Lakewood or Long Beach,
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
California,*) owned jointly by Tragniew and its president,
Ben Weingart , Tragniew 's annual income therefrom being
$37,027; (4) and office building (acquired on December 31,
1966) called the Sixth and Western Building, which
contains 40 offices , 16 commercial stores, and 4
apartments . The rental income from the stores and offices
therein amounted to $71,681. 87 and miscellaneous income
from the building amounted to $8,671.15.
In excess of $250,000 is transferred interstate annually
to national insurance companies in mortgage money pay-
ments by Consolidated Hotels of California in connection
with Consolidated 's operation and management of hotels,
commercial stores , and office buildings for and on behalf
of Tragniew , Inc., Ben Weingart , and other clients of Consol-
idated Hotels of California. These monies were not paid
in connection with the Barrington Plaza.5
The stock of Tragniew is owned 50 percent by Ben
Weingart (hereinafter called Weingart), 25 percent by the
Ben Weingart Foundation , and 25 percent by a trust of
which Weingart is a trustee . 6 Tragniew owns 100 percent
of the stock of Consolidated Hotels of California, hereinafter
called Consolidated . Weingart is president of both Tragniew
and Consolidated . The vice president of each company
is John Poag , who, it was stipulated , is also assistant
secretary of Tragmew . v However , Poag also appears to
be, or to have been, on June 1 , 1967 , assistant secretary
of Consolidated , for I notice in one exhibit in evidence,
the management agreement referred to above , that Poag
signed as assistant secretary for Consolidated as well as
for Tragniew.
Applicants for employment at Barrington Plaza are by
supervisors on the premises of the Barrington Plaza, but
no one is hired until the application is approved by Consoli-
dated . Payroll information is prepared at the Barrington
Plaza . Then it is sent to the offices of Consolidated, which
causes paychecks to be prepared , signed, and returned
to the Barrington Plaza for distribution, in the same manner
used for other properties managed by Consolidated , which,
pursuant to its management agreement with Tragniew, is
charged with the hiring of managerial employees and with
investigation, hiring, paying , supervising, and discharging
all personnel . A bank account is maintained in the name
of Consolidated Hotels of California d/b/a Barrington Plaza
Apartments for certain operating expenses of Barrington
Plaza.
The Respondent contests jurisdiction on several grounds.
It contends , first , that the Barrington Plaza is essentially
a residential apartment building , that the Board did not
assert jurisdiction over apartment buildings until after the
4 The Los Angeles area telephone book lists Hartfield-Zody's Inc , in the
Century City area of Los Angeles on Avenue of the Stars There is a listing
for Hartfield Stores, Inc , in Lakewood and in Long Beach, and there is a
listing for Zody's Quality Discount Department Stores in Long Beach The
one on Avenue of the Stars is apparently the one referred to in the
stipulation
s The purchase money mortgage on the Barrington Plaza appears to have
run to FHA so payments of principal and interest would presumably be
made to that agency
8 No evidence or stipulation was offered regarding the existence or
nonexistence of other trustees There are at least two trusts involved in the
Weingart-Tragniew Interests
9 This is also the way Poag's titles were given in Respondent's answer
date of the alleged unfair labor practices in this case, 8
and that it should not assert jurisdiction retroactively. It
further contends that there is a fatal nonjoinder of parties
because no charge was filed against either Friedman, the
other half owner of Barrington Plaza , or Consolidated,
and that, in any event, the owners- of Barrington Plaza
were not employers and did not, themselves, operate the
project, did not hire or discharge employees, and could
not, therefore, be held responsible for the alleged unfair
labor practices.
The General Counsel, in rebuttal of the assertion that
jurisdiction is sought to be applied retroactively, argues
that, even disregarding the decision in Parkview Gardens
166 NLRB No. 80, (where the Board shortly after the
date of the alleged unfair labor practices in this case,
extended the scope of its optional jurisdiction to include
apartment buildings) jurisdiction can be asserted on the
grounds of the totality of Tragniew's business operations,
since , even if the Barrington Plaza were apartments, alone,
and not also stores and offices, there is precedent for
the assertion of jurisdiction on such totality of operations.9
I agree with the General Counsel's contention that, on
the basis of the totality of the business of the properties
of Tragniew, a sufficient impact on commerce appears
and a sufficient dollar amount is shown to satisfy the
Board 's jurisdictional standards.
With regard to Respondent' s argument that it is not
an employer because no hiring and firing is done by Trag-
mew but that Consolidated manages the properties and
generally supervises the operations of Barrington Plaza
and that Consolidated is not a party, the General Counsel
replies that Consolidated and Tragniew constitute a single-
integrated employer.
There is much to be said for the General Counsel's
contention .1° Not only is 'Consolidated wholly owned by
Tragniew, but it has the same primary figures as officers-
Weingart and Poag-who are president and vice president
respectively of each, while Poag is also assistant secretary
of at least Tragniew, but inferentially also for Consolidated.' I
Tragniew and Consolidated jointly occupy offices and office
space in the same building at 1301 Wilshire Boulevard
in Los Angeles, owned by Weingart, perhaps jointly with
a Weingart trust. Weingart, the president of both corpora-
tions, is vested with the prerogative of making final decisions
for each, and he exercises this prerogative. The manager
of Barrington Plaza reports to him -from time to time.
Consolidated manages the Barrington Plaza not only for
Tragniew but also for Friedman, the other half owner.12
Consolidated pays rent to Weingart for office space, accord-
ing to Vice President Poag, but Poag did not know whether
Park view Gardens, 66 NLRB No 80
White Oak Park,' 3 NLRB 376; Carol Management Corporation, 133
NLRB 1126, Pentagon Plaza, Inc, 143 NLRB 1280, Martemont Inn, 145
NLRB 79, Horizon House 1, Inc, 151 NLRB 766
10 He does not ar ue, as well he might, that a principal is bound by his
agent's acts , performed within the scope of the agency, with respect to rights
of third parties
" This inference is based on the fact that Poag signed as assistant
secretary for both Tragniew and Consolidated in the management agreement
they executed for Barrington Plaza at the instance of FHA Other assistant
secretaries apparently exist also for one or both corporations (1391-92)
12 No agency contract for Friedman was offered in evidence
BARRINGTON PLAZA AND TRAGNIEW, INC. 969
or not Tragniew also paid rent to Weingart Tragniew
and Consolidated have the same telephone number, the
same girl receives calls for each on the same switchboard,
and they share the same receptionist. They also share
the same lobby, which is used not only by these two
corporations but by other corporations owned by Tragniew,
which also share the same telephone number and office
space Consolidated maintains the payroll for the employees
of both Tragniew and Consolidated who work at their
joint offices.13 James Reid is the corporate secretary and
internal accountant of Tragniew. Consolidated has no corpo-
rate secretary. Reid testified that he is "primarily" employed
by Tragniew. However, he consults with Poag, vice president
of each of the two corporations, about both. The office
manager, who was hired by Reid, works mostly on the
books of Consolidated. Poag testified that Tragniew has
about 400 to 500 employees located at the joint offices
on Wilshire Boulevard as well as at hotels and apartment
buildings, all of whom were drawing their pay from Trag-
mew, but, he testified, "They are actually a part of Consoli-
dated Hotels as a management unit." Poag based his testimo-
ny not on his own knowledge but on what he testified
he had been told by Reid. Even conceding that Poag
might not have remembered accurately what Reid had
told him, I find that his testimony discloses the thinness
of the corporate veil between the two corporations, for
to Poag, I deduce, the separation was only for bookkeeping
purposes.
Disregarding the corporate veil, I conclude that Tragniew
and Consolidated are a single-integrated employer.14 Howev-
er, both are but corporate extensions of Weingart, who
controls both. Because Tragniew and Consolidated are a
single-integrated employer, whose policies are controlled
by the identical president of each, I find that failure to
include Consolidated in the charge filed herein against
Tragniew is not fatal. is
Although Weingart may own, in his own name, only
50 percent of the stock of Tragniew, it is evident that
he controls, in one capacity or another, a majority (and
likely 100 percent) of the stock of Tragniew and, through
Tragniew, that of Consolidated. Service of process upon
Tragniew and Barrington Plaza would necessarily come
to the attention of the officials of Consolidated, since they
are the same persons at the top level.is Upon the basis
of the Board's decisions in the Esgro and the Ref-Chem17
"It also keeps records of employees employed at Barrington Plaza
14 See Ref-Chem Company and El Paso Products Co, 169 NLRB No 45,
B & B Industries, inc , 162 NLRB 832, insulated Building Materials Co ,
162 NLRB 1105 US Mattress Corp and Restyme Products, Inc, 135
NLRB 1150
15 Fcgro, Inc and Esgro Valley, Inc, 135 NLRB 285, U S Mattress etc,
supra, au' Ref-Chem etc , supra
Is I notl._ that 'he return receipts for the service of the complaint by
registered mail were signed by M Wieting, an office employee at Barrington
Plaza She signed the receipt for Tragniew as well as for Barrington Plaza,
yet, to be technical, she is an employee of Consolidated Another employee
at Barrington Plaza on the payroll of Consolidated (Janet MacDonald)
signed the receipts for service of the notice of filing of the charge for both
Barrington Plaza and Tragniew Tragniew nevertheless appeared at the
hearing, thereby acknowledging service on itself
17 In Ref-Chem, after a charge was filed against Ref-Chem alone, an
amended charge was filed against both Ref-Chem and El Paso Products Co ,
(See fns. 14 and 15, supra), I conclude that failure specifically
to serve Consolidated as a party respondent is not prejudicial,
and I shall follow the precedent there set of applying
the remedy to both Tragniew and Consolidated to the
extent that unfair labor practices are found herein.
H. THE LABOR ORGANIZATION
The Union is a labor organization admitting to member-
ship employees employed at the Barrington Plaza.
III. THE UNFAIR LABOR PRACTICES
A. Refusal To Bargain
1. The appropriate unit
The complaint alleges that all apartment-hotel/motel serv-
ice employees of Barrington Plaza, including maids, mainte-
nance employees, utility men, gardeners, exterminators,
doormen, bellmen, garagemen , and parking attendants,
excluding all other employees, guards, and supervisors as
defined in the Act, constitute an appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act. The Respondent's answer denies
this allegation.
The Respondent did not expressly object to the inclusion
of certain classifications of employees not presently
employed at the Barrington Plaza, but I note that the
Union, in its request to bargain, did not ask to represent
bellmen. Since the Respondent had no such employees
and probably would not have any, I see no reason why
they should be included in the description of the appropriate
unit as alleged in the complaint. The Respondent did con-
tend, at the hearing, that the lifeguards should be included
in the appropriate unit, but the function of lifeguards is
to enforce rules for the protection of the safety of the
persons on the employer's premises. I find that these guards,
along with the security guards who are there for the protec-
tion of the property of persons on the employer's premises,
must be excluded from the unit, inasmuch as Section 9(b)
of the Act prohibits the inclusion of such guards in a
unit composed of other employees. At the present time,
the Respondent does not, itself, employ maids or cleaning
women, preferring to hire them through an outside contrac-
tor. However, the employment of this classification of
employees is not uncommon in the case of large apartment
buildings, and the Respondent could, in the future, merely
by changing its practice of hiring such employees through
outside contracts, employ them itself The inclusion of
the appropriate unit of that classification could very well
avoid a future argument I shall, therefore, include that
classification.
Although the Respondent did not raise the matter at
the hearing, it does, in its brief, argue that the clerical
but this charge was filed more than 6 months after the occurrence of the
unfair labor practices, and objection was raised on the ground that Sec
10(b) of the Act barred any complaint against El Paso Finding that the
respondents were joint employers, the Board disregarded that objection and
found both responsible for remedying the unfair labor practices
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
help, receptionists, and rental agents should be included
in the appropriate unit . In support of this contention,
the Respondent cites The Mensch Corporation, 159 NLRB
156, where such employees were included in the unit by
the Board. However, not only is the Mensch case distinguish-
able on its facts, but, since that decision, the Board has
modified its policy to permit less than hotelwide units1e
I find, therefore, that the unit proposed by the General
Counsel is not inappropriate for failure to include the
office clerical help, receptionists, and rental agents. There
were one or two clerical employees in the maintenance
department, however, who might conceivably have been
included, but the Respondent at the hearing made no
contention regarding the inclusion of such employee or
employees and so no evidence was taken to determine
whether or not a sufficient community of interest existed
to warrant inclusion of such employees. Failure to raise
a question about these employees until the filing of the
brief by Respondent may well have prevented the General
Counsel or the Union from adducing available pertinent
evidence to show that, in this case, they should be excluded
At this point, therefore, I will refrain from including them.
I find, in summary, therefore, that an appropriate unit
for the purpose of collective bargaining within the meaning
of Section 9(b) of the Act, is composed of all apartment-
hotel/m'otel service employees of Barrington Plaza, including
maids, maintenance employees, utility men, gardeners,
exterminators, doormen , garagemen , and parking
attendants, excluding all other employees, guards, and
supervisors as defined in the Act.
2. The Union's majority
As proof of majority, the General Counsel relies primarily
on the existence of a collective-bargaining agreement entered
into by and between the Union and the Respondent's prede-
cessor, FHA, acting through Ben Hecht Company, which
contract contained a modified union-shop and a checkoff
clause. The Respondent does not seriously dispute the fact
that the FHA had executed a contract shortly before the
transfer of title, but it attacks that contract as proof of
a majority, contending that the Union had never established
its majority, and that the contract was "a pre-hire contract,"
imposed upon the employees at the Barrington Plaza without
their assent.
There is no evidence to refute the fact that the FHA's
management agent , the Ben Hecht Company, hereinafter
called Hecht, began in January 1967 to negotiate a collective-
bargaining agreement with the Union. Vincent Shaw, manag-
er of the Barrington Plaza for Hecht, testified that he
assumed that the contract of the predecessor to FHA
was binding on the successor (FHA) because of the clause
in the earlier agreement between the Union and Barrington
Plaza Enterprises, predecessor to FHA, making the agree-
ment binding on the employer's successors and assigns.19
Shannon & Luchs, 162 NLRB 1381, 7' Operating Company, d/h/a
Holiday Inn Restaurant , 160 NLRB 927
19 The Barrington Plaza was managed by another agent for FHA for
about a month before Hecht was appointed as agent as of July 1, 1966 Shaw
did not become the manager of Barrington Plaza for Hecht until August 17,
He was shown no authorization cards, but he did not
question the Union's claim to majority representation When
an agreement was finally reached between Hecht and the
Union, a written copy was submitted to the FHA for
approval. The latter required changes therein by deletion
of the clause making the contract binding on successors
and assigns and by inserting a provision that the contract
would terminate in the event of a sale of the Barrington
Plaza. The Union consented to these changes, and the
agreement was finally executed on May 19, 1967, a week
and a half before the date when the sale of the Barrington
Plaza to the Respondent was effective, but it was made
retroactive to January 1, 1967.
The recognition of the Union by Hecht and the agreement
resulting from their negotiations create a prima facie pre-
sumption of majority for the Union.20 The Respondent,
however, undertakes to rebut this presumption by proving
that the Union had, from the outset of its series of agree-
ments with the several owners of the Barrington Plaza,
never been authorized by a majority of employees to repre-
sent them.
The Respondent established the following facts: The Bar-
rington Plaza was completed in 1962. The first owner
was Barrington Plaza Corp., in which Louis Lesser was
a principal. Melvin Malat was vice president thereof On
August 29, 1962, the Union sent a letter to Barrington
Plaza to the attention of Lesser, stating that the Union
had been granted exclusive jurisdiction over apartment house
employees by the Building Service Employees International
Union, and that it was requesting a meeting for the purpose
of discussing the terms and provisions of a collective-
bargaining bargaining agreement covering such employees.
Presumably this letter went unanswered, because it was
followed up by Tom Grecola, a representative of the Union,
by another letter and a telephone call to Malat. Malat
told Grecola that the Barrington Plaza Corp. had no evi-
dence that the Union was authorized by its employees
to negotiate on their behalf. About a week later, that
corporation was invited to attend a meeting with the Union
at the Los Angeles County Federation of Labor. Such
meeting took place in September 1962. Malat attended
and again made his statement that the employer had no
proof that the Union had any authority to represent the
employees. The Union then agreed that it would attempt
to obtain authorization cards from a majority of the employ-
ees and to have an independent person check the cards
Malat agreed to this for the employer. Subsequently, on
March 21, 1963, the Union and the Barrington Plaza Corp.
entered into a Cross-Check Election Agreement under the
auspices of the Conciliation Service, Department of Industri-
al Relations for the State of California. In the Cross Check
which followed the Conciliator found that the Union did
1966 He knew the file contained the Union' s agreement with Barrington
Plaza Enterprises , but he had no firsthand knowledge of any action or
position taken by the Hecht manager who preceded him with respect to
recognition of the Union or compliance -ith the terms of the formerlowner's
contract with the Union
20 Burlington Roadbuilders. Inc, 149 NLRB 791 The General Counsel
cites Ref-Chem Company, 169 NLRB No 45, Ramada Inns , Inc, 171
NLRB No 115 See also Overnight Transportation Company, Inc , 157
NLRB 1185, enfd 372 F 2d 765
BARRINGTON PLAZA AND TRAGNIEW, INC. 971
not represent a majority of the eligible employees of the
Barrington Plaza Corporation.2i
A provision in the Cross-Check Election Agreement pro-
vided that "in the event the Union loses the election it
agrees to refrain from raising the question of representation
for a period of one year from the date of issuance of
the Report on Cross-Check Election." Nevertheless, the
Union, shortly after this, began picketing the Barrington
Plaza. The Barrington Plaza Corp. filed suit against the
Union and others in the Superior Court for Los Angeles
County and, in early April 1963, obtained a temporary
restraining order, restraining the picketing.
Immediately following the issuance of the restraining
order, the Union requested the Barrington Plaza Corp.
(the name was changed to Lesser Development Corporation
during this period of time) to work out something with
the Union so that it could represent the employees. Several
meetings ensued between Malat and representatives of the
Union over a period of several months. The Barrington
Plaza Corp. (or Lesser Development) was unwilling to
enter into an agreement with the Union which called for
higher wage rates than they were paying or wished to
pay, and the Union was unwilling to enter into an agreement
for a lesser rate because it has recently negotiated, with
another company, an apartment-house agreement which
called for higher rates, and because that company might
react unfavorably if the Union should reach agreement
with someone else thereafter with lower rates of pay. Howev-
er, the Union had an existing agreement with Security
Maintenance Services, Inc., herein called Security, and Less-
er Development Corporation, hereinafter called Lesser
Development, had a newly executed contract with Security
for maintenance services at an office building it owned
in Los Angeles. This suggested a device to satisfy each
party, for the Union and Lesser Development reached
agreement under which Security, whose employees were
represented by the Union, but who had no employees
at the Barrington Plaza, would enter into an agreement
with the Union extending its representation to employees
employed at Barrington Plaza. Security agreed to enter
into such agreement if Lesser Development would indemnify
it against liability thereunder. Pursuant to this arrangement,
Security, on September 24, 1963, entered into an agreement
with Lesser Development for a present assignment of the
agreement which Lesser Development had asked Security
to execute with the Union, and, in the same agreement,
Lesser Development assumed the obligations of the contract
between Security Maintenance and the Union and agreed
to indemnify Security Maintenance for any losses it might
incur as a result of its signing the agreement. The Union
consented to the assignment. The term of the agreement
being assigned was from January 1, 1964, to December
31, 1966, although that agreement was executed on Septem-
ber 30, 1963P The assigned agreement contained a modified
21 The Report on Cross-Check Election showed that the Union tendered
I I membership or authorization cards, that 8 signatures of the I I were
verified, that 3 were rejected, and that there were 17 eligible employees
22 It will be observed that the agreement being assigned was not
extant at the time of the purported assignment , although this would
not be fatal to the arrangement , because the so-called assignment could
union-shop clause and a dues-checkoff clause. Only employ-
ees hired after January 1, 1964, were required to join
the Union as a condition of employment, although those
who were already members were obliged to maintain their
memberships. Following the conclusion of this "by-pass"
arrangement, the restraining order was dissolved.
Ownership of the Barrington Plaza complex changed
hands in June 1965, and on June 9, 1965, the Union
entered into an agreement with the new owner, Barrington
Plaza Enterprises, identical with the agreement in effect
with Lesser, even being limited to the balance of the term
of the Lesser contract This new owner went into bankruptcy
about a year later, and FHA foreclosed on its mortgage
and became the owner of the Barrington Plaza complex.
The evidence is not altogether clear as to whether or
not Hecht, as agent for FHA, continued in effect any
of the contract terms included in the contract of FHA's
predecessor Former Manager Shaw (of Hecht) testified
that it did, but there is some reason to doubt this because
the evidence shows that no dues were deducted from employ-
ees' pay," no deduction appears to have been made for
the Union's Health and Welfare Fund, and vacation benefits
were apparently not recognized until after Hecht had made
its own agreement with the Union in May 1967. Such
vacation benefits were computed on employment accumulat-
ing only from July 1, 1966, the date when Hecht became
manager and employer rather than from the date the employ-
ee began working at Barrington Plaza or the date of FHA's
acquisition. Shaw at one point testified that Hecht continued
in effect the rates of pay under the former owner's contract
with the Union, but he was apparently mistaken, as he
was obliged to concede.24 Although the terms of the Union's
contract with Barrington Plaza Enterprises were not given
full effect by Hecht, the evidence does indicate that Shaw
be regarded as a contract to assign which would operate to preclude
an attack upon the assignee 's rights or liabilities
21 The Union's records of dues payments for certain employees shows
dues paid through October 1966, but it does not appear that these
were paid by the Hecht Company There is a notation on one of the
dues records (that of Esteban De Leon) that the May 1966, dues had
been "deducted from Co Federal Case" in bankruptcy In the margin
of the dues record card of one employee (that of Arellano), there is
the notation , "Pd, self." It is not clear whether he paid all dues from
May to October or just the one nearest the marginal notation The
notation falls opposite a line between the entry for the August dues
and the entry for the September dues . One employee , Sam Davis, asked
the Union 's representative if he should continue to pay dues after October
1966 He was told to wait until a contract was negotiated
2" The former owner's contract called for a rate of $1 75 an hour
on the basis of a 48 -hour week Shaw testified that when he came
on the job on August 17, 1966, the rate was $ 1.90 on a 48-hour basis
I infer that Hecht would , under the Service Contract Act of 1965,
have been obliged to pay the prevailing rate of pay as determined by
the Department of Labor, if this exceeded the rate fixed in the contract,
as it apparently did, and Hecht paid $190 until it executed a new
agreement in May 1967, when a new rate became effective retroactively
to January 1967, at $2 10. With regard to the provision of the Union's
contract with the prior owners establishing a 48-hour week , Hecht contin-
ued this schedule for a while, but it learned that FHA would not permit
a 48-hour week, that it required a 40-hour week, and Shaw so informed
the Union's representative , Patrick McDonough The Union preferred
the 48-hour week because no overtime work was assured, and the reduction
to 40 hours meant a reduction in take-home pay (at least, it would
at the same rate of pay), but the hours were reduced , despite the Union's
objection
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assumed that the Union represented the employees and
permitted the Union to meet with employees. He also
discussed problems with McDonough. One grievance con-
cerning holiday pay was settled according to the contract
terms. Shaw testified that his assumption that the Union
was the employees' representative was based on the fact
that the contract between the Union and Barrington Plaza
Enterprises was, by its terms, made binding on successors
and assigns. After the beginning of 1967, as previously
stated, Shaw commenced negotiations for a new agreement.
The General Counsel argues that, because the Union
had been "recognized as the exclusive collective-bargaining
agent of the unit employees and had been a party to
a series of contracts covering these employees" since 1963,
the Union should be presumed to be the majority representa-
tive of the employees in the unit when Respondent succeeded
to ownership However, as previously stated, the presump-
tion is a rebuttable one. As to the first employer (Barrington
Plaza Corp. and Lesser Development Corporation), the
Respondent has shown that the Union was unlawfully
recognized, and there is no showing that, even on the
effective date of the original contract, January 1, 1964,
it, in fact, represented a majority of the employees in
the appropriate unit.
The General Counsel does not defend this obvious unfair
labor practice The only question even suggested seems
to be whether or not this defect was cured when Barrington
Plaza Enterprises, and later Hecht, recognized the Union
and contracted with it upon the assumption that the Union
was the lawful collective-bargaining representative of the
employees in the unit. Does the fact that those two employers
failed to question the Union's majority estop the Respondent
from questioning that majority? I conclude that it does
not If we were concerned only with rights as between
the Union and the employer, it might be said that the
employer could waive the right to question the Union's
majority and that he might then be estopped to repudiate
a contract he had made with the Union. But we are
not concerned merely with the rights of the two signatories
to the contract. The Union purports to be acting as an
agent for the employees, and if those employees did not
authorize the Union to represent them, the Union is not
their agent, and it acquired no authority to represent them
as a result of the failure of the employer to raise the
question of the purported agent's authority 25 Unless and
until the Union proves that a majority of the employees
in the unit have voluntarily designated it as their agent,
the employer has no justification for binding the employees
to terms they have not consented to. By virtue of the
union-shop clause in its contract with each of the several
employers, the Union might , eventually, have acquired,
as members, a majority of the employees in the unit,
but such majority would not be an uncoerced majority.
As stated by the United States Supreme Court in Internation-
alAssociation of Machinists v. N.L.R.B., 311 U.S. 72:
The existence of unfair labor practices throughout this
whole period permits the inference that the employees
" Garment Workers' Union v NLR B, 366 U.S. 731, Bryan Manufac-
turing Company, 119 NLRB 502, reversed only as to the effect of
the 10(b) limitation 363 U S. 411
did not have that freedom of choice which is the
essence of collective bargaining. And the finding of
the Board that petitioner did not represent an uncoerced
majonty ... when the closed-shop contract was execut-
ed is adequate to support the conclusion that the
maintenance as well as the acquisition of the alleged
majority was contaminated by the employer's aid
Although not abandoning his argument that the existence
of a contract gives rise to a presumption of majority,
and although not conceding that the presumption has been
rebutted, the General Counsel has offered in evidence,
as proof of a majority in May, 1967, when Hecht reached
agreement with the Union, a number of applications for
membership in the Union, evidence of payment of dues
to the Union, and testimony by two employees (for whom
no cards were produced) that they had signed applications
for membership.26 Even though the General Counsel has
shown applications by a majority of the employees in the
unit, such proof does not overcome the inference that
such applications were tainted by coercion. In some instances
it is quite apparent that they were tainted Among the
applications offered in evidence were seven that had dates
of May 25, 1967, 6 days after the effective date of the
Union's union-shop agreement with Hecht. Perhaps some
of those employees would have signed anyway, but in
view of the manner in which the Union acquired its status
as collective-bargaining representative in the first instance,
the inference must be that the Union, in May 1967, intended
to get the union-shop agreement first and then use it
to require the employees to sign applications for member-
ship. Employee Guadalupe Escobido, who was hired early
in February, 1966, testified that the Union was "already
in" when he was hired and that, at a meeting, McDonough
(the Union's representative) told him and other employees
that the contract said that they had to be members. Accord-
ing to two employees, Andrew Coffee and Louis Abbott,
a supervisor was present when the cards were signed on
May 25, and he urged the employees to sign.27 One employee,
Rudolph Hemza, testified that, when he was hired on
April 24, 1967, the supervisor who hired him gave him
many forms to sign, that one was an application for member-
ship in the Union, and that the supervisor had told him
he must be a member of the Union.28 There is evidence
indicating that Hemza was not the only one required by
a supervisor to sign an application for membership in
the Union.29 Although the General Counsel introduced
in evidence 15 applications for membership (plus testimony
" The General Counsel states that he adduced this evidence at the
urgency of Trial Examiner Kennedy, not abandoning his position that
the presumption of majori ty was sufficient but only to bolster that presump-
tion
" Coffee was confused about the date he signed an application card,
but he testified that it was in late May 1967
i" Apparently this application for membership and the one for Andrew
Coffee were not delivered to the Union, as the Union did not produce
them at the hearing
" For example , Mario Garcia signed an application for membership
in the Union on Janaury 26, 1964 , when he was hired He testified
that it was given to him by the man who hired him Louis Abbott
testified that he was advised by a supervisor to sign his card Some
of the employees did not speak or read English well enough , so they
were assisted in signing their cards by a supervisor One of those who
BARRINGTON PLAZA AND TRAGNIEW, INC. 973
of two more employees, each of whom testified that he
had signed an application and given it to the supervisor
or left it on his desk30) out of a unit of 28 employees,31
I find that these 15 applications fail to prove an uncoerced
majority. Most of them were signed in prior years, and
must be presumed to have been signed under the prior
union-shop contracts.
The same fault lies in attempting to prove membership
by evidence of dues payments Insofar as dues were required
to be paid by the unauthorized contract, they would not
be proof of voluntary membership I note also that the
Union showed no initiation dates or (with one possible
exception) any membership fees paid just dues-and, with
the exception of one employee, who paid dues through
to the end of 1966, no others had paid dues for any
month after October, 1966, One paid no dues after May,
1966. No dues were shown to have been paid for any
month prior to January 1, 1964, the date when the Union's
first illegal contract became effective. It is not clear whether
any of the more recent dues were paid voluntarily or
were paid by deduction from pay under the provisions
of the contract. Those credited after the date of the bankrupt-
cy, in May 1966, of Barrington Plaza Enterprises, could
have been deducted from wages recovered in the bankruptcy
proceeding. Since the records show , in some cases, credit
for 4 and sometimes 5 months' dues paid all on one
date in October 1966, there is reason to infer that the
dues were deducted from the wages recovered in the bank-
ruptcy proceedings.
The General Counsel argues that, in refusing to bargain,
the Respondent never questioned the Union's majority.
Questioning or failing to question a union's majority may
be an element to consider in a refusal-to-bargain case where
a question of good-faith doubt of majonty is raised as
a defense and the request to bargain is made by a union
which has an actual, although unproved (or not recently
proved) majonty.32 But an employer's good-faith doubt
of a union's majority is not a required element of a defense
to a refusal to bargain if the claiming union has no majority
in fact.33
The General Counsel further argues that "while the
evidence indicates that the Union lost a card-check election
6 months prior to the Union's recognition [which I read
to mean Barrington Plaza Corp.'s recognition of the Union']
as the majority representative of the unit employees, there
is no evidence adduced to establish that a majority of
was assisted was Francisco Blanco, who was hired on September 10,
1965 He testified that a secretary handed him a card and told him
it was a form to become a member of the Union, and that he had
to fill it out Blanco handed the card to Assistant Engineer Pedro Sotoyo
to fill out for him because he could not write English His card was
dated October 28, 1965
10 Since the Union did not produce these cards , it must be presumed
that they were not delivered
" In his brief, the General Counsel alleges that there are 27 employees
in the unit I count 28 on G C Exh 2 He might have omitted one
employee who was part-time and who worked only when called The
exact number is not important in view of my conclusions herein reached
" Terrell Machine Company, 173 NLRB 230, John P Serpa, Inc.,
155 NLRB 99, Mitchell Standard Corporation, 140 NLRB 496
33 Tennsco Corp, 141 NLRB 296, H W Elson Bottling Company,
155 NLRB 714
the unit employees did not desire union representation
on the date of the initial recognition or for that matter
at any time during the approximately 4 years the Union
acted as the bargaining representative of the unit employees
and negotiated three succeeding contracts." By this argu-
ment, the General Counsel seeks to reverse the burden
of proof and to place upon the Respondent the burden
of proving the subjective state of mind of the employees.
Where a union's majority is once established, no doubt
the argument of the General Counsel could be used against
a contention that new proof of majority should be offered
after expiration of the certification year or at the expiration
of a contract,34 but Sections 7 and 9(a) of the Act would
not be served by substituting the requirement of a possibility
of majority (as it would be in this case if the General
Counsel's argument were to prevail) for proof of majority.
I likewise find no merit in the General Counsel's
argument that the Respondent is precluded by the Section
10(b) limitation from adducing evidence of events in 1962
and 1963.35 Section 10(b) precludes the issuance of a
complaint "based on any unfair labor practice occuring
more than six months prior to the filing of the charge with
the Board and the service of a copy thereof upon the person
against whom such charge is made . ." It does not
preclude a defense based upon evidence of events occurring
more than 6 months before the charge is filed. In his
brief, in support of his argument, the General Counsel
cites the Roman Stone case36 and other cases of alleged
violation of Section 8(b)(7)(A) of the Act, where the Board
precludes the respondent union from attacking collaterally
an existing agreement between the employer and another
union,37 although the respondent union admittedly would
be free to raise the issue in a representation case if an
existing contract is asserted as a bar The union in an
8(b)(7)(A) case is precluded from picketing for recognition
There is good reason for the adoption of a policy of
precluding a collateral attack on the contract in such cases,
including the reason that it reduces industrial strife and
compels the claimant union to resort to orderly statutory
procedures rather than to self-help in the form of picketing,
which Section 8(b)(7) of the Act was designed to discourage.
But such considerations are not present when an employer
is charged with refusal to bargain with a union which
has never legitimately established its right to represent
employees in the unit claimed to be appropriate. The majori-
ty in this case is attacked directly rather than collaterally.
Hence, I find no analogy between the cases relied on
by the General Counsel and the case at hand.
14 See Ref-Chem Company, 169 NLRB No 45 Terre!! Machine
Company , 173 NLRB No 230
" At the hearing, the General Counsel cited Local Lodge 1424 [Bryan
Mfg Co ] v NL RB 362 US 411, but in that case the Board was
held barred by Sec. 10(b) from proving an unfair labor practice based
in part on acts occurring more than 6 months before the filing of
the charge . He does not cite this case in his brief, and I conclude
that he has conceded its inappositeness
14 International Hod Carriers, etc., Local 1298 (Roman Stone Construc-
tion Company, 153 NLRB 659, fn 3.
1' Ex gr N.L.R.B. v Local 3, IBEW, 362 F 2d 232, 236 (C A 2),
enfg 153 NLRB 717, 724-725, District 19, United Mine Workers, 160
NLRB 1582, 1587
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In conclusion, I find that the Union was not, on May
19, 1967, the majority representative of Hecht's employees
in the appropriate unit and was not on or after June
1, 1967, the statutory representative of Respondent's employ-
ees, despite the unfair labor practices of Respondent herein
found, because those unfair labor practices did not contribute
to a loss of proved majority
In view of my conclusion regarding the Union's lack
of majority, I find it unnecessary to relate the facts concern-
ing the request and refusal to bargain.
B Discrimination
1. Respondent's opposition to unions
Three or four times before the sale of the Barrington
Plaza by FHA to Tragniew and Friedman was completed
on June 1, 1967, Weingart visited the premises and looked
through some of the apartments Harold Liebes, a doorman
and the Union's steward, testified that on a Sunday, May
28, 1967, Weingart appeared at the Barrington Plaza office,
where Liebes was at the time, introduced himself as the
new owner, introduced a person who was with him, and
asked to be shown around. Liebes testified that he introduced
himself and showed Weingart around According to Liebes,
he was with Weingart for about 45 minutes. He testified
that, after visiting other parts of the buildings, they all
wound up in an apartment on the twenty-fourth floor
of the A building, sat down, and talked for a while.
Liebes testified early in the hearing before Trial Examiner
Kennedy, and about a year later before me, as to the
conversation which took place in that apartment at that
time In his original testimony, Liebes quoted Weingart
as saying that he had several properties in Los Angeles,
like the Clark Hotel, and that all who worked for him
enjoyed having him as an employer He further quoted
Weingart as saying that he did not like unions and asked
if they had a union at the Barrington Plaza, and testified
that, when Liebes had answered affirmatively, Weingart
had said, "We don't have unions where I operate my
buildings. We don't have any unions at all, and the reason
I don't is I don't want anybody telling me how to run
my business." Liebes quoted Weingart further as saying,
"I am sure you are not going to be harmed by not being
a member of the union, because I took over the Clark
Hotel . . . We got rid of the union, and the boys
are much happier." Liebes' testimony of a year later was
similar but more specifically directed toward the Barrington
Plaza when he quoted Weingart as saying, "Well, we won't
have any unions while I am running the building " Weingart,
whose testimony was given only before Trial Examiner
Kennedy, and that prior to Liebes' testimony, denied saying,
"I don't want any unions," but did not recall making
other remarks asked about which, in some form, were
later quoted by Liebes38 He conceded that he might have
" Since counsel for the General Counsel questioned Weingart about
supposed remarks which the General Counsel expected Liebes to testify
to and since Liebes' testimony differed in some respects from what
the General Counsel asked Wemgart about, Wemgart's testimony cannot be
taken literally as admissions of what Liebes testified to Of course, the
Respondent could have called Wemgart as its own witness to make denials,
but it never did
made some of the remarks attributed to him-such as,
"I don't want anyone telling me how to run my business "
He denied saying that he "threw the union out" of the
Clark Hotel (as counsel for the General Counsel put it)
but testified that "If I said anything, I said that they
struck and picketed, and we had to put in our own people."
The person who had been with Weingart that day was
not called as a witness I find that Liebes' earlier testimony
was more nearly accurate than his later testimony, but
I find even that to be faulty in some details although
it was essentially credible. I find, then, that Weingart,
in his conversation with Liebes, at the least, disclosed
that he did not have a favorable opinion of unions and
that he liked operating his properties without a union.
I find that Weingart made no prediction regarding the
operation of the Barrington.
2. Respondent's knowledge of identity
of union-represented employees
Joyce Friedman, prior to June 1967, the manager of
Wyvernwood Apartments, one of the Consolidated-managed
properties, was chosen by Weingart to manage the Barring-
ton Plaza as soon as FHA should transfer title. About
May 29 of that year, she visited the Barrington Plaza
and met Shaw, the Hecht manager for the property, convers-
ing with him for about half an hour. Two days later
she returned and asked Shaw for a list of the employees
at Barrington Plaza Shaw produced such a list and gave
Friedman a copy. They sat by his desk and he went
over the list with Friedman, telling her of the qualifications
of the supervisory employees, the rental agents, and the
office staff. He did not discuss the qualifications of the
maintenance employees and porters because of lack of famil-
iarity with them but told Friedman that she could get
such information from his supervisors. As he went over
the list of employees, Friedman made marks next to the
names-check marks or naughts. She asked Shaw which
employees were "union," and Shaw went down the list
and identified each of the employees in the contract unit.
He observed Friedman put a mark by their names, testifying
that he thought the mark was a "U " He told her that
the lifeguards and security guards were not covered by
the union contract. He testified that he told Friedman
that he considered Luis Bonachea, the head porter, to
be covered by the union contract but said that he did
not consider him union as he was "in the area of a supervi-
sor." Shaw identified the chief engineer and his assistant
as members of the Operating Engineers. Friedman denied
that Shaw had named each union member, testifying that
he had merely told her the classifications of employees
covered by the union contract. I find portions of Freedman's
testimony to be not credible, but even if she were to
be believed as to this testimony, identification of union
employees was possible by classification, since she was
given both names and classifications.
Before Friedman's arrival that day, Shaw had already
prepared a letter of termination to be handed to the Hecht
employees with their final paychecks. He showed a copy
of this to Friedman and asked her if he could help her
in the mechanics of rehiring these employees. He reminded
BARRINGTON PLAZA AND TRAGNIEW, INC 975
her that he was terminating all the employees as of midnight
that night, that some security guards were supposed to
work until 1 or 2 a.m., but they would be eliminated
unless she took steps to rehire them. Friedman gave Shaw
the names of 20 employees that she wished to employ,
and, at Shaw's request, she initialed a memorandum direct-
ing him to attach a note to the letters of termination
of those employees to show up for work at their regularly
scheduled hours This list of 20 names included all the
rental agents and office staff, all the lifeguards and security
guards, Bonachea, the head porter, and Sotoyo, the assistant
engineer. None of the employees covered by the union
contract (with the possible exception of the head porter,
Bonachea, whom Shaw had said he thought was covered
by the union contract but whom he considered not to
be a union member) was on the list. Thus, no doormen,
no porters, no maintenance men, no parking attendants,
and no gardeners39 were on Friedman's list. Shaw added
the following requested note to the termination letters:
Please fill out the attached application and W-4 form
for
Project Director
Barrington Plaza
Tragniew Inc
Report for work as usual at your regularly scheduled
time.
He had Friedman sign her name on the blank line.40 All
termination letters were delivered that day to the Hecht
employees, including those with the addendum, which were
accompanied by applications for employment and W-4
forms.
3. Failure and refusal to rehire
Friedman testified that she brought with her to Barrington
Plaza from the Wyvernwood Apartments, where she had
been the manager, Harry King, her head of maintenance,
who became chief engineer at Barrington Plaza, and five
other employees: Ray Simpkins, head of housekeeping;
James Murphy, Sr., maintenance porter; George Carpenter,
maintenance, trash chutes, and bailer; Larry Guetterez,
bailer; and James Murphy, Jr., cleanup man. However,
the Respondent's records show that James Murphy, Jr.,
did not appear on the Barrington Plaza payroll until June
17, 1967, and Guetterez was not shown on the payroll
record at all. I notice that the Respondent's payroll record
for June 1, 1967, does show the names of Graeme Carr
and Clarence Ramos, as maintenance men. They had not
been employed by Hecht. It is possible that Friedman
Hecht employed no maids
Friedman denied that she had requested Shaw to add the language
at the bottom of the form letter bearing her signature, but she did
not deny that she signed it. The General Counsel argues that the statement
signed by Friedman is evidence that Tragniew is, in fact, the employer,
while the Respondent argues that Friedman did not intend such connota-
had one of them confused with Guetterez Carr was termi-
nated on July 31, 1967, and Ramos on July 5, 1967.
On May 31, 1967, Hecht had on its payroll 16 porters,
2 maintenance men, 7 doormen, 1 gardener, and 2 parking
attendants, all hourly rated employees On the day of
its takeover, the Respondent had two maintenance men
(Carr and Ramos), and two doormen, but no other hourly
rated employees with the exception of those on the list
for retention which Friedman had given Shaw. No reason
was given by the Respondent for not retaining Hecht's
gardener (whom Shaw praised highly). It did not hire
one of its own until June 23, 1967, following advertising
for one. The evidence shows no one identified as a parking
attendant or garage man to have been employed, in June
and July 1967. Presumably that function was performed
by doormen. On June 7 and 8, 1967, advertisements for
doormen, housemen, and parking attendants appeared in
a local paper. The advertisement was run in the name
of Barrington Plaza, and Mrs. Friedman and Poag signed
the checks in payment therefor. Further advertisements
appeared between June 9 and July 11, 1967, for a gardener
and housemen.
The record shows a high rate of turnover of employees
who were hired in the first part of June 1967 In the
first 2 months after taking over the property, the Respondent
hired 32 maintenance men, plus one part-time maintenance
man and, of these, 22 full-time maintenance men were
terminated within the next 3 or 4 months. In the same
period, the Respondent hired nine doormen, of whom three
were terminated within the succeeding few months.
On June 1, 1967, the day after receipt of their termination
notices, many of the maintenance employees and doormen
reported for work anyway. Some of them had worked
at the Barrington Plaza at the time of prior changes in
ownership and had been reemployed after notice of termina-
tion When they found no timecards in the rack, they
stood around awaiting instructions. Harold Liebes, a door-
man at the Barrington Plaza since January 1963, and the
the union steward for the year before May 31, 1967, went
to Pete Sotoyo, a supervisory employee who had been
reemployed by the Respondent, on June 1, 1967, when
he found no card for himself, to see about getting work.
Sotoyo said that he had no information as to whether
or not the men would get their jobs back, but he introduced
Liebes to Harry King, the new head of maintenance at
Barrington Plaza. When Liebes asked King what the story
was about going back to work, King replied that he did
not know-that they were trying to check it out with
the office and would let Liebes know, that he and the
other men should wait around for a while 41 After waiting
for nearly an hour, Liebes returned to King. This time,
King told him that the men should all go to the model
apartment on the 24th floor of the A building, and that
applications would be furnished for them to fill out. They
went up-about 15 to 20 of them-and filled out applica-
tions. No one told them what to do with the applications
'i King did not testify The findings herein are based on Liebes'
testimony Respondent , in its brief, states that King was not available
tion by signing a statement prepared by Shaw I do not place any as a witness , but the record does not show why he was unavailable
special significance on the description of Friedman as an agent of Tragniew It merely shows that King was no longer employed by Respondent
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when they had filled them out, and, after waiting for
some time, Lieber returned and spoke to King. I deduce
that King suggested that Liebes take the applications to
the main office, for Liebes went there and spoke with
Judy Mayer, who had been Shaw' s assistant and who had
been rehired, to see if she had learned anything about
the reemployment of the maintenance men, doormen, and
parking attendants. She said that she had heard nothing
but to tell the men to leave their applications with her.
Liebes reported this to the men who were still waiting
on the 24th floor, and they went down, left their applications,
and went home.
On June 2, 1967, Leibes telephoned King to see if he
knew anything further about his reemployment King replied
that he had not yet received word-that it was in the
hands of the legal department.
On the following day, Saturday, June 3, 1967, Louis
Abbott, a doorman employed by Hecht until May 31,
1967, telephoned Liebes, and about 10 a.m., he and Liebes
went to see King at the Barrington Plaza. King, who
had the applications for employment on his desk, told
them that he would like to have the men back because
of the difficulty in breaking in new employees, but he
told them that if they belonged to a union , to forget
it. Abbott said "Well, if that is the case, let's forget about
the Union; I'll go back to work " King said that he would
check it out with the legal department, that they could
call him back the following week and he would then have
a definite answer from the legal department then. On Tues-
day, June 6, Liebes telephoned King. King told him that
the legal department had advised him that they could
not hire Liebes back if he belonged to a union . Liebes
has never been reemployed by Respondent. However, Abbott
was reemployed on June 7, 1967.
Samuel Davis, a parking attendant under Hecht, tele-
phoned the office of the Barrington Plaza about June 2
to ask what he should do if he wanted to get his job
back. The girl in the office told him he should come
back and fill out an application The next morning between
10 and 12 o'clock, Davis went to the Barrington Plaza
and spoke with Louis Bonachea, who had been head porter
for Hecht, and who had been employed by the Respondent
in the same capacity Bonachea procured an application
for Davis to fill out and told him to write in the left-
hand corner of the application that he was not a member
of any union . When Davis had filled out his application,
he gave it back to Bonachea, who turned it over to one
of the girls in the office. On the following Monday, Davis
called the Barrington Plaza, and asked if any action had
been taken on his application. The receptionist told him
that she would transfer the call to Mr. King, who was
then in charge of hiring new employees. She did so, and
Davis spoke with King on the telephone. Davis told King
that Bonachea had told him to put in the left-hand corner
of the application that he was not a member of the Union,
and he said since he had not heard from the Barrington
Plaza since he left the application, if there was any problem
regarding the Union, he had spoken with his union represent-
ative in the interim and had told his union representative
that he did not consider himself to be a member of the
union any more. He said he would like to get his job
back and did not care under what conditions. King told
him that he (King) would have to speak with Mrs Friedman
(the manager) and that he would call Davis back. That
afternoon King called Davis and told him that he could
come in that same day regarding his job. Davis went
back to the Barrington Plaza between 4:30 and 5 o'clock
Monday afternoon, and King told him that he thought
the Respondent could hire him-that he had talked with
Mrs. Friedman. Davis told King that he could get a written
release from the Union if he needed it, but he said that,
as he had told King on the telephone, he had already
spoken with the representative and told him that he did
not consider himself to be a member of the Union. Davis
quoted King as saying, "That is good On that basis we
can rehire you because Mr Weingart does not want to
have anything to do with the Union" King told Davis
to make out another application for employment, a bonding
application, and a W-4 form. King told him, "Be sure
on this new application that you do not put the Barrington
Plaza as a previous work reference. Make out everything
else the same. . ." Davis filled out the application and
went to work the following Wednesday afternoon, classified
as a doorman. At the time of the continued hearing before
the undersigned, Davis was in the armed services in Vietnam
and could not be recalled as a witness I base my findings
herein on his testimony before Trial Examiner Kennedy.
As previously stated, King did not testify before Kennedy
or before me.
Rudolph Hemza was hired as a doorman on April 24,
1967, and when filling out the initial forms, he had been
requested by the supervisor, Giltner, to fill in an application
for membership to the Union. Hemza was employed by
Hecht only as a substitute doorman, and he was not present
on the day when the notices of termination were given
out. Not having been notified of his termination, Hemza
testified, he telephoned the Barrington Plaza on about June
2, 1967, asking if any of the doormen were sick. At that
time he learned that there was a new supervisor by the
name of King. He spoke with King, who asked if he
was a member of the Union. Hemza said that he was
not. King told him to show up and go to work. Hemza
went to the Barrington Plaza and filled out an application
for work. King again asked if Hemza was a member of
the Union, and Hemza said, "No." King asked Hemza
to write on the bottom of his application that he was
not a member of the Union, saying that otherwise he
would not be hired. Hemza did so. On his application,
Hemza did not mention the last period of employment
at the Barrington Plaza by the Hecht Company, although
he showed employment at the Barrington Plaza from Janu-
ary 15, 1966, to October 15, 1966 Hemza was hired and
started work the next day.42
Anthony Peppercorn, testified that he was a doorman
under Hecht from October 11, 1966, to May 31, 1967.43
" According to Hemza's testimony that would be June 3 Respondent's
payroll record shows Hemza as having worked 8 hours on June 1,
1967
' On Hecht's list prepared to show vacation pay, Peppercorn was
described as a porter , but on his application card for the Union signed
on May 25, 1967, he wrote in his position as "doorman " Since other
(cont'd)
BARRINGTON PLAZA AND TRAGNIEW, INC
He testified that he filled out an application for employment
at the Barrington Plaza on June 1, 1967, and, after leaving
it with a girl in the main office, he encountered a doorman
he knew by the name of Rudy (likely Rudolph Hemza)
and asked him where they were doing the hiring. He
was told to see King in the maintenance office in the
C building. Peppercorn went there and introduced himself
to King, saying that he had made an application for work
as a doorman. King asked Peppercorn if he belonged to
the Union. Peppercorn replied that he did not as far as
he knew-that he had paid no dues although he had
signed a card that was handed him a couple of days
before he was terminated. King said that he did not want
anything to do with the Union. Peppercorn asked if there
was a chance of employment but did not recall the reply.
Peppercorn testified that he returned several weeks later
and asked if King could use a doorman. He did not
mention his prior application. King told Peppercorn that
his staff was filled" Peppercorn again returned on August
5, 1967, and spoke with John Parker, who was hired,
on July 16, 1967, as the replacement for King, 45 saying
that he would like to make application as a doorman.
He quoted Parker as asking if he had made application
earlier. Peppercorn said that he had. Parker went to the
file but could not find it and told Peppercorn to make
out a new one. While Peppercorn was filling it out, Parker
asked if he belonged to the Union. Peppercorn said, "No."
He quoted Parker (who did not testify) as commenting,
"They are giving us enough trouble right now." When
he had completed his application, Peppercorn handed it
to Parker, who said, "I may call you sooner than you
think." Peppercorn was called and returned to work, this
time as a doorman, on the following Tuesday, August
8, 1967.46
Other Hecht employees who were hired by Parker include
Jose Escobido, a maintenance man (hired on October 14,
1968) and Arnett Williams, a doorman (hired in October
1967). Neither was, however, recalled to work by the
Respondent. They had heard of an opening and had applied.
On the foregoing facts, I find it clear that Respondent
failed and refused to hire employees who had been in
the union-represented unit under Hecht unless those employ-
records were not introduced in evidence, it is impossible to ascertain
if a mistake was made on the vacation-pay list in describing him as
a porter
" The records show no doorman hired between June 15 and July
31, 1967 Seven doormen had been hired by June 15 . The one new
doorman to be hired on June 1, James Sexton , was terminated on
June 30 , 1967. Harvey Tannin, a new doorman (not employed by Hecht),
who appears on Respondent 's payroll on June 15, 1967, was terminated
on July 31, 1967 Another doorman , Kenneth Trapp, hired on June
7, was terminated on July 31 . A Clarence Foster , shown on the June
15, 1967 , payroll as a doorman as of June 7, does not appear on
any payroll in evidence thereafter His name is not included at all
on the exhibit supposed to show all hires in June and July 1967 He
could have been transferred from another of Consolidated 's properties
temporarily . The largest number of doormen employed at one time by
Respondent in June and July would therefore appear to be seven That
is the number employed also by Hecht.
16 King was shown as on the payroll until August 15 , 1967, but
this could have included vacation time.
" Peppercorn did not testify before the undersigned . These findings
are made on the undenied testimony of Peppercorn at the hearing before
Trial Examiner Kennedy
977
ees first disavowed union membership. Respondent revealed
its union animus, not only by the expressions of Weingart
to Liebes in May 1967, but also by the questioning of
employee-applicants about their membership by King and
Parker. The intent of Respondent not to employ those
Hecht employees who had been represented by the Union
is further revealed by the failure of Manager Friedman
to include any names of such employees in her arrangements
with Shaw for retention of Hecht employees although she
included the names of all nonunion employees. Her attempt
to explain this disparity on the ground that King was
to do the hiring of the maintenance people, that she was
uncertain of the number that he would need, that King
was bringing men with him from other Consolidated opera-
tions, is unconvincing in view of her testimony that she
had not even spoken to King about the number of men
he would need at the time when she was making arrange-
ments with Shaw47; in view of the fact that she- did not
likewise reserve for King the hiring of the security guards,
lifeguards, or maintenance office secretarial help; in view
of the fact that King, when interviewing former Hecht
employees for employment, first inquired about their union
membership, and then said that the legal staff or Manager
Friedman had to pass on their employment, indicating
that he was not permitted by Respondent to exercise his
own judgment if a Hecht employee had supposedly been
a member of the Union; in view of the fact that, without
even interviewing many of the former Hecht staff who
had filed applications for employment in the early days
of June 1967, the Respondent ran newspaper advertisements
for employees in the same classifications as those of former
Hecht employees who had filed applications; and in view
of the fact that Respondent operated the Barrington Plaza
understaffed as to maintenance employees for 2 weeks or
longer in June 1967 when it could have had a full staff
to start with by hiring former Hecht employees. The
Respondent made no attempt to conceal the amount of
confusion that existed in the early days of its operation
of the Barrington Plaza. The Respondent 's unwillingness
to take over the entire staff of Hecht employees appears
to have been the greatest contributing factor therein.
The Respondent, in an attempt to counteract the inferenc-
es to be drawn from the foregoing evidence, points to
evidence of certain maintenance problems that had existed
under Hecht contending that Respondent wished to avoid
such problems by importing "many of their own experienced
people," and that on June 1, 1967, it was impossible to
know how many employees would be needed and how
many would be coming from other projects. Such argument
I find insubstantial in the light of all the evidence indicating
that, except for the supervisors and a very small number
of nonsupervisory employees who came from other Consoli-
dated operations, the Respondent transferred no mainte-
nance employees, porters, parking attendants, or doormen.
In any event, if there had been doubt as to the number
that might be transferred, the Respondent could have avoid-
ed confusion by hiring the former Hecht employees and
" It had been Shaw's practice to take over all employees on the payroll of
the former employer and make such adjustments as were needed after
beginning operations
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then later replacing certain of them with employees of
its own when and if the latter were transferred. If the
two non-Hecht hourly paid maintenance men hired by
Respondent on June 1, 1967, had, in fact, been transferred
employees, Respondent never so indicated Furthermore,
had such employees been experienced and trusted employees
at other Consolidated-operated properties, one would expect
that they would have lasted longer in their employment
by Respondent at the Barrington Plaza, yet one lasted
only for 5 weeks and the other only for 2 months.
The Respondent gives special argument for not hiring
Doorman Harold Liebes. Shaw testified at the continued
hearing to certain factors that made him dissatisfied with
Liebes' services-that he was too effervescent, too friendly
for a doorman image, and that he had had complaints
that Liebes had a too-familiar approach. He testified that
Liebes was one of the oldest ( in terms of service) at the
Barrington Plaza and that he had taken this into account
in retaining him. There is no convincing evidence, however,
that, on June 1, 1967, the Respondent had had any knowl-
edge of Liebes' shortcomings. Shaw testified that he and
Friedman had a discussion of the qualifications of the
various employees. He at first testified: "This was with
particular reference to the supervisors and office staff. We
didn't go into any details on the janitors, porters or doormen
. 11 Later he testified that he had discussed each
individual on the list, including the doormen. However,
in going down the list of employees at the hearing, he
passed by many with the remark that there was nothing
derogatory about the "janitors and porters in general."
Without suggestion, he testified that he had told Friedman
that "Liebes was a doorman in the main lobby of the
A building and was quite a good doorman. I had some
reservations about the way he handled tenants, but he
seemed to get along with them well." When specifically
asked if he had told Friedman that he had had "reserva-
tions," Shaw testified: "Yes. I said that he had given
tion to tenants on several occasions that I didn't feel
was any of their concern; that he passed this information
along because he was in the position, right at the front
desk, to pick up information by overhearing it, and passing
along rumors. And outside of this, that he was a good
doorman." After testifying that he had discharged one
office girl for spreading too many rumors among the tenants
about operation of the building, he testified that he had
spoken to Liebes at least twice and if he (Shaw) had
continued at Barrington Plaza, he probably would have
terminated Liebes within a short period of time, although
he had not made a decision about it. However, he did
not testify that he had told Friedman this.48 Although
" In view of Shaw's testimony that he did not go into detail as to janitors,
porters, or doormen, I have mental reservations about Shaw's testimony of
what he told Friedman about Liebes individually Friedman testified that she
did not believe she had asked Shaw about any of the employees individually
She did testify that Shaw had stated that he thought Respondent would be
better off without the head of Hecht's auditing department, Eli Merken, but
she hired him nevertheless Friedman further testified she did not express any
concern to Shaw about the fact that she would not have any doormen and
maintenance people working for her "because I was bringing some of my
own people with me " I deduce that Friedman would have
remembered if Shaw had given her reason not to employ anyone else and I
Friedman, in general terms, testified that she had discussed
employees with Shaw, she testified that she had not discussed
with King what Shaw had told her about Hecht employees,
and since she left the hiring of doormen and maintenance
men to King, nothing that Shaw might have said about
Liebes could have affected King's decision not to employ
him. This leaves the only plausible explanation for Respond-
ent's failure to hire Liebes as Liebes' union membership
or supposed union membership 49 Whatever applies to Liebes
also applies to the other terminated Hecht employees who
applied for work with Respondent. King had no reason
for not hiring any of those who filed applications other
than their supposed union membership.
At the hearing, counsel for the General Counsel adduced
testimony to the effect that one or more or the employees
had been questioned about their membership in the Union
when called to Mrs. Friedman's office in the presence
of a lawyer in late September 1967. It was later revealed
that the questioning was done by Attorney Cooper in
his preparation of this case for hearing. Because the com-
plaint does not allege this to be a violation of the Act,
and because the General Counsel, in his brief, does not
argue any impropriety in the questioning, I refrain from
making any finding thereon.
In conclusion, I find that by King's and Parker's question-
ing of applicants for employment as to their union member-
ship and by King's statements that no applicant would
be hired if he belonged to a union, in addition to Respond-
ent's actually refraining from, and refusing to, employ
former Hecht employees because they had been represented
by the Union, Respondent has interfered with, restrained,
and coerced employees in the exercise of their rights guaran-
teed in Section 7 of the Act. By failing and refusing to
employ former Hecht employees because of their supposed
membership in the Union, the Respondent has also discour-
aged union membership by discriminating in regard to
the hire of employees in violation of Section 8(a)(3) of
the Act.
THE REMEDY
Having found that the Respondent has committed certain
unfair labor practices, I shall recommend an order that
it cease and desist therefrom and that it take certain affirma-
tive action to restore the situation as nearly as possible
to that which would have existed absent the unfair labor
practices. Although I have found that Tragniew, Inc., and
Consolidated Hotels of California (doing business as Barring-
ton Plaza) constitute a single-integrated employer within
the meaning of the Act in the instant case, they are,
in corporate form, capable of separate liabilities. I shall
therefore recommend that each be made responsible jointly
and severally for rectifying the unfair labor practices.eo
believe Shaw's testimony about what he told Friedman concerning Liebes
was based on a rationalization rather than a clear memory
" Liebes was probably a voluntary member of the Union Some of the
other employees may or may not have been, but the Respondent apparently
took all unit employees to be members unless they personally disavowed
membership
"'A M Andrews Co v NLRB, 236F2d44(CA 9), NLRB v
Concrete Haulers, Inc, 212 F 2d 477 (C A 5)
BARRINGTON PLAZA AND TRAGNIEW, INC.
In the absence of a discriminatory motive, Respondent,
I have found, would have hired most, if not all, of the
former employees of Hecht at the Barrington Plaza. I
shall therefore recommend that Respondent offer, in wnt-
ing,51 immediate employment to each of the employees
who were employed by Hecht prior to June 1, 1967, who
made application for employment with Respondent in the
first 3 days of June 1967, and for whom Respondent
then had vacancies and whom it could have, but declined
for discriminatory reasons to employ, replacing, if necessary,
employees who had not been in the employ of Hecht
or of Respondent on May 31, 1967, but who were hired
on or after June 1, 1967, such employment to be offered
to such former Hecht employees in their former classifica-
tions at rates and conditions currently prevailing.
I shall also recommend that Respondent make whole
such employees for any loss they may have suffered as
a result of the discrimination against them, by paying
to each an amount of money equal to that which he
would have earned (or been provided or paid) in Respond-
ent's employ at Barrington Plaza, absent the discrimination,
from -the date or dates of their respective applications
to a date 5 days after receipt of the offer of employment
or to the date they accept or reject the offer of employment
if done before the expiration of said 5 days, less their
respective net earnings elsewhere during the backpay period,
computed in the manner set forth in F W. Woolworth
Company, 90 NLRB 289, and N. L.. R.B. v. Seven-Up Bottling
Company of Miami, Inc., 344 U.S. 344, together with
interest at the rate of 6 percent per annum on the resultant
back pay, as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
In the event that any such employee be in the Armed
Services of the United States at the time of the Respondent's
offer of employment, the time for his acceptance shall
be extended in accordance with the provisions of the Selec-
tive Service Act and the Universal Military Training and
Service Act, as amended.
Some of the Hecht employees terminated on May 31,
1967, did not apply for employment with Respondent on
or after June 1, 1967. Because the antiunion utterances
of Respondent would naturally tend to discourage union
members from applying for employment, such utterances
may be presumed to have discouraged and deterred such
employees from making application for employment with
Respondent. Without having made an actual application
and been denied employment, however, such employees
are not entitled to backpay; but the Respondent should
be required to dissipate the effects of its expressed antiunion
attitude. To that end, I recommend an order that 'Respond-
ent mail to each of the former Hecht employees who
were in the unit covered by the union contract, and who
did not make application for employment with Respondent,
a copy of the attached notice, marked "Appendix," notifying
said employees, that, if they make application for employ-
ment at Barrington Plaza in their former positions, within
10 days after receipt of such notice, they will be placed
upon a preferential hiring list and will be offered employment
5' This may be done by sending a copy of the attached notice hereto and
marked "Appendix "
979
as soon as there is a vacancy . I shall 'further recommend
that Respondent prepare such a preferential list and make
use of it when vacancies occur , by employing the requisite
number from among those on said list.
Since the Respondent 's acts display a disposition to flout
the spirit and fundamental objectives of the Act, I shall
recommend a broad cease and desist order 52
CONCLUSIONS OF LAW
1. Respondent (Tragniew, Inc., and Consolidated Hotels
of California) is, and at all times material hereto has been,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Service and Maintenance Employees Union, Local
399 affiliated with the Building Service Employees Interna-
tional Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By failing and refusing to employ employee applicants
who had been in the bargaining unit as Hecht employees
unless they would disclaim membership in the Union,
Respondent has discriminated in regard to their hire or
tenure of employment and thereby discouraged membership
in a labor organization within the meaning of Section
8(a)(3) of the Act.
4. By the foregoing conduct and by independently interfer-
ing with, restraining, and coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent
has committed unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. All apartment-hotel/motel service employees at Bar-
rington Plaza, including maids, maintenance employees,
porters, utility men, gardeners, exterminators, doormen,
garagemen, and parking attendants, excluding all other
employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
7. The Union at no time material hereto represented
an uncoerced majority in the appropriate unit within the
meaning of Section 9(a) of the Act.
8. Respondent has not, in violation of Section 8(a)(5)
of the Act, refused to bargain collectively with the Union.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the
case, I recommend an order that Respondent, Tragniew,
Inc., and Consolidated Hotels of California, its (or their)
officers, agents, successors, and assigns, jointly and severally,
shall:
1. Cease and desist from:
(a) Discouraging membership in a labor organization,
by discriminating in regard to the hire or tenure of employ-
ment of any employee or applicant for employment.
11 G H Reed and G A Reed d/b/a Wind River Logging Company, 175
NLRB No 133
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Questioning applicants for employment concerning
their union membership or preference or in any other
manner interfering with, restraining, or coercing employees
in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, or to engage
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that
such right so to refrain may be affected by an agreement
requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a)(3) of the
Act.
2. Take the following affirmative action, designed to
effectuate the policies of the Act:
(a) Offer immediate employment to each of the former
Hecht employees who made application for employment
in the first 3 days of June 1967, for whom it had vacancies,
and whom it could have employed, but so declined, for
discriminatory reasons, in the manner set forth in the
section entitled "The Remedy" above.
(b) Make whole each of said employees in the manner
set forth in the section entitled "The Remedy" above.
(c) Invite applications for employment by employees who
were in the bargaining unit under Hecht. (on and before
May 31, 1967) but who failed to make 'application for
employment with Respondent in the first 3 days of June
1967, and place those who apply on a preferential employ-
ment list, all in the manner set forth in the section entitled
"The Remedy" above, as qualified by the next paragraph
below.
(d) Notify each employee entitled to employment pursuant
to paragraph 2(a) hereof, if presently serving in the Armed
Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
as amended, and notify each employee who is entitled
hereunder to be placed on a preferential hiring list and
who is presently serving in the Armed Forces of the United
States that he will be placed on such preferential list if
application be made within 60 days from the date of his
discharge from the Armed Services.
(e) Preserve and, upon request, make available to author-
ized agents of the Board, for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
of Barrington Plaza personnel necessary or useful in comput-
ing the amount of back pay due or in determining compliance
with any provision hereof.
(f) When and if a vacancy occurs (other than in giving
effect to the provisions of Section 2(a) hereof) offer immedi-
ate employment to such employees as make application
in accordance with the provisions of paragraph 2(c) of
this recommended order and give such employees a reason-
able time, but not less than 48 hours, in which to report
for duty.
(g) Post in the maintenance room at the Barrington
Plaza, and mail to each of the former Hecht employees
who were in the bargaining unit on and before May 31,
1967, copies of the attached notice marked "Appendix. 1153
Copies of said notice, on forms provided by the Regional
Director for Region 31 of the Board, Los Angeles, California,
shall, after being duly signed by an authorized representative,
be mailed to the latest available address of such employees
and be posted immediately upon receipt by Respondent,
such posting to be made in conspicuous places, including
all places where notices to employees are customarily posted
and such notices shall be maintained, as posted, for 60
consecutive days thereafter, reasonable steps being taken
to insure that said notices are not altered, defaced, or
covered by any other materials.
(h) Notify said Regional Director, in writing, within
20 days from the date of receipt of this Decision, what
steps Respondent has taken to comply herewith. 54
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges a refusal to bargain in violation
of Section 8(a)(5) of the Act.
" In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further event
that the Board's Order is enforced by a decree of a United States Court of
Appeals, the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and
Order "
54 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 31, in writing, within 10 days from the date of this Order, what steps
it has taken to comply herewith "