Brooks, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1977

228 N.L.R.B. 1365 (N.L.R.B. 1977)

BROOKS , INC. 1365
Albion Corporation d/b/a Brooks , Inc. and Local No.
1, International Union of Operating Engineers,
AFL-CIO and Charles Hoffman . Cases 27-CA-
4557 and 27-CA-4562
April 12, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On May 28, 1976, Administrative Law Judge
Martin S. Bennett issued the attached Decision in
this proceeding. Thereafter, Respondent Company
filed exceptions and a supporting brief, and the
Charging Parties filed a brief in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions' and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
There is no doubt in our minds but that Respon-
dent violated the Act in each and every respect found
by the Administrative Law Judge, and his Decision
requires no supporting rationale or elaboration from
us. Nevertheless, in light of our colleague's dissenting
opinion, we find it advisable to point out the more
untenable aspects of his positions taken therein.
We find that the facts, summarized as follows,
present an open-and-shut case for results reached by
the Administrative Law Judge. The Union has
represented in separate units the maintenance and
janitorial employees in the apartment-office building
here involved for several years and has had contracts
covering each unit. In June 1974, Respondent was
assigned a sublease for the building, and Gary
I Respondent has moved for reconsideration and reopening of the record
for purposes of a hearing de novo before a different Administrative Law
Judge upon the ground that the Administrative Law Judge who decided this
case exhibited bias and prejudice against Respondent, or in the alternative
that the record be reopened to admit newly discovered evidence . In support
of its alternative motion, Respondent argues that bargaining negotiations
conducted with its janitorial employees subsequent to the close of the unfair
labor practice hearing demonstrate that it acted in perfect good faith when
bargaining with its maintenance employees . It argues that the record should
be reopened to admit evidence of these subsequent negotiations
We detect no prejudice on the part of the Administrative Law Judge Nor
do we find that Respondent 's conduct at bargaining negotiations with its
janitorial employees , negotiations which occurred several months after the
maintenance employee negotiations that are the subject of the current unfair
labor practice charge, has any bearing on its good faith at the negotiations
with its maintenance employees.
Accordingly, Respondent 's motion for reconsideration and for reopening
the record is hereby denied.
228 NLRB No. 154
Thomas, the previous sublessee's manager of the
building, was engaged by Respondent to manage the
building. There is no question but that Respondent is
the successor of the previous sublessee , and the
Administrative Law Judge so found.
Also in June 1974, Thomas signed a new labor
agreement on behalf of the previous sublessee for the
maintenance employees and in October signed on
behalf of Respondent a new agreement covering the
janitorial employees. Both of these contracts were
fully honored by Respondent throughout their
respective 1-year terms. On April 10, 1975, Union
Manager Crouch sent Thomas a timely notice to
reopen the maintenance contract. He received no
reply. Thereafter, on several occasions in May he
attempted to get in touch with Thomas, finally to be
told by Thomas that someone else would handle the
negotiations. On June 7, Crouch learned this some-
one else was Howard Torgove, Respondent's vice
president, whom he contacted on June 9. Torgove
referred Crouch to Attorney Weinshienk and a
meeting was arranged for June 11. However, at that
meeting Weinshienk said he was only after informa-
tion and that no bargaining would occur until
Respondent's obligation to bargain was established.
He was referred to Union Attorney Simons. On June
12 and 13, Simons talked on the telephone with
Weinshienk, who reiterated that Respondent would
not be ready to bargain until certain legal questions
concerning Respondent's bargaining obligation were
resolved.
Meanwhile, on June 12, the maintenance employ-
ees voted to strike on June 16, after their contract
ended.4 Respondent was informed 2 days later of the
impending strike, and on June 16 the maintenance
employees walked out, with the janitorial employees
respecting their picket line. Respondent contracted
with two independent contractors to perform, tempo-
rarily, janitorial and maintenance services.
Immediately after the strike began, Weinshienk
telephoned Simons, stating that Respondent was
willing to bargain but that he was preparing a
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951) We have
carefully examined the record and find no basis for reversing his findings.
3 In par . 1(e) of his recommended Order, the Administrative Law Judge
inadvertently used the phrase "m any manner" rather than the broad
injunctive language "in any other manner," which the Board traditionally
provides in cases involving serious 8(a)(3) conduct See N L.R B v. Entwistle
Mfg Co., 120 F.2d 532, 536 (C.A. 4, 1941) Accordingly, we shall modify the
recommended Order to require Respondent to cease and desist from in any
other manner infringing upon employee rights , and we shall also issue a new
notice to employees which reflects this modification.
4 The contract expired on June 14, a Friday, and the strike was set for
June 16, the following Monday.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition to determine majority representation. Si-
mons rejected the offer to bargain as ambiguous, but
then on June 20 telephoned Weinshienk and meet-
ings were arranged for June 26 and 27. In that
conversation, Simons unconditionally offered to
return both the maintenance and janitorial workers
to work, and the same day sent Weinshienk a letter
to that effect. Respondent failed to reply to the offer
until its meeting with the Union on June 27, when its
lawyer, Gorsuch, stated that the maintenance em-
ployees would not be returned to work until certain
legal matters were cleared up. Thereafter, Respon-
dent conditioned the return of these employees upon
their accepting wages less than those prevailing at the
time of the strike. As for the janitorial employees,
Respondent indicated a willingness to reinstate them,
but on July 2 conditioned such reinstatement upon a
guarantee that the janitors would stay on the job for
30 to 60 days, a condition later extended to a flat 60
days. The maintenance employees have never been
reinstated; the janitors were unconditionally taken
back in October 1975.
The Administrative Law Judge found that before
and after June 11, 1975, Respondent unlawfully
failed to bargain with the Union; that the June 16
strike was an unfair labor practice strike; and that
the conditions Respondent attached to reinstating
the strikers were unlawful. Our dissenting colleague
disputes all these findings. We are of the opinion he
is wrong on all points.
The 8(a)(5) Violation
The salient feature with respect to the 8(a)(5)
allegation is that the Union was the established
bargaining representative of the employees. Conse-
S Komatz Construction, Inc v N LR.B, 458 F.2d 317, 326 (C.A. 8, 1972);
N L R B v Frick Company, 423 F 2d 1327 (C.A 3, 1970), N LR B v
Master Touch Dental Laboratories , Inc, 405 F 2d 80, 82-83 (C A. 2, 1968).
6 At most it asserted that one employee had indicated he was dissatisfied
with the Union. Such a statement was not a clear rejection of support for the
Union, and being limited to one employee obviously was no indication that
the Union did not enjoy majority status Furthermore, that all or most all of
the maintenance employees attended the strike vote meeting on June 12 and
on June 16 all of them went out on strike is, in the circumstances , conclusive
evidence of the Union 's continuing majority support . See N L. R.B v. Master
Touch Dental Laboratories, supra at 83.
7 The dissent takes the position that we cannot properly consider events
occurring before June 11, the date the complaint alleges Respondent refused
to bargain , in our consideration of the issues here before us No persuasive
reasons why we cannot or should not are advanced and we find no merit in
this position Further, the dissent would not hold Respondent liable for the
conduct of its building manager in failing to respond to the Union's notices
seeking modification of the contract because the manager never informed
top management of the notices, or even that there was a union in the picture.
It was all nothing more, the dissent argues, than an innocent case of a failure
in intracompany communication . We find the dissent's position to amount
to little more than a sub silentio finding that a principal is not responsible for
the actions of its agent , a wholly untenable position
B On June 16, Respondent was taking the conflicting positions that it
would bargain , which it could do only if the Union represented a majority,
while at the same time contending it doubted the Union 's majority status
which, if true, would preclude Respondent 's bargaining with the Union Our
quently, Respondent could not, under well-settled
law, refuse to recognize or to bargain in good faith
with the Union, absent the existence of objective
evidence warranting a reasonable belief that the
Union had lost its majority status .5 But here there
was no such objective evidence, and in fact Respon-
dent never claimed that there was 6 Nevertheless, as
indicated above, for some 2 months' time, it failed to
respond to the Union's notice to negotiate on
contract modifications 7 and then on June 11, as a
practical matter, withdrew recognition pending
resolution of, to use the dissent's terminology,
"certain legal issues ." The result was that Respon-
dent's conduct precluded any negotiations on con-
tract modifications prior to expiration of the agree-
ment. We can conceive of no clearer refusal to
bargain in good faith than the foregoing, and our
dissenting colleague does concede that Respondent's
conduct between June 11 and 16 was a "technical"
violation, but it seems to us that it was rather
obviously a flat refusal to bargain at all and thus a
very substantial violation. Furthermore, Respon-
dent's June 16 offer to meet and negotiate, coupled
as it was with a statement that it intended to file a
petition challenging the Union's majority status, did
not extend to the Union the full recognition to which
it was entitled. At most, it was a conditional offer to
bargain, and fell far short of the good-faith offer to
which the Union was entitled and which, the dissent
claims, the offer was.8 In fact, it is pertinent to
observe here that, insofar as the record indicates,
Respondent never did notify the Union that it had
dissenting colleague contends , nevertheless , that not only was it proper for
Respondent to file a petition challenging the Union 's majority status but
also that filing such a petition is the prescribed course of conduct "if an
employer is unclear as to whether it has sufficient grounds under Board law
to support a reasonably based doubt as to the union's majority status. . "
Such observations may have some truth with respect to an initial organizing
situation , but, where an incumbent with a recently expired contract is
involved, there is, as we have pointed out above , a prima facie presumption
of continuing majority status which an employer cannot challenge even
through the filing of a petition with the Board if it hasn't sufficient
information (i.e., objective evidence) to support a reasonably based doubt as
to the union's majority status. See cases cited in fn . 4 above , and Suburban
Homes Corporation, 173 NLRB 497 ( 1968). Of course, here Respondent
never did file a petition and its threat to do so really amounts to nothing
more than a ploy in its dealings with the Union Nevertheless , our dissenting
colleague finds our conclusion here that "an employer 's agreement to
bargain can be fatally prejudiced by a statement of its intention to file an
election petition" is in its "full implications" - whatever they may be, and
he does not tell us-"disturbing" and, he claims, "cannot seriously be
entertained," which seems to imply that anything disturbing cannot be
taken seriously, a doubtful proposition in itself. In any event , contrary to
what he says, our position has nothing to do with hmiting-either in its
restricted or "full implications"-a party's access to this Board and we can
add that the only case cited by the dissent in support of its position involved
a situation where the employer withdrew recognition before filing its
petition It did not claim to recognize the union and challenge its majority
status at the same time
BROOKS, INC.
resolved its alleged misgivings concerning its obliga-
tion to bargain,9 and thus there is no basis on this
record for concluding it ever properly recognized the
Union fully as the employees' bargaining representa-
tive.
Surely, Respondent's bargaining conduct after
June 27 would not, as the dissent claims, support a
contrary result. Thus, one of Respondent's primary
aims was to effectuate a wage cut and, indeed, it
made several proposals to that end to the Union.
However, it did so only after unlawfully conditioning
the reinstatement of the striking maintenance em-
ployees upon the acceptance of such a cut. In short,
its bargaining table conduct on the important issue
of wages came down to a demand that the Union
ratify the unlawful condition it had placed on
employee reinstatement. 10 How our dissenting col-
league can find good-faith bargaining in such
conduct wholly escapes us. In any event, we find that
the Administrative Law Judge's conclusion that
Respondent violated Section 8(a)(5) and (1) of the
Act is fully supported by the record and that our
dissenting colleague's criticism of that conclusion is
without support in fact or law.
The Unfair Labor Practice Strike
As the facts show, the Union called the mainte-
nance employees together for a strike vote on June
9 The dissent makes the statement to the effect that though Respondent
refused to bargain on June 11, within 5 days it had resolved its legal
objections and had agreed to bargain This statement is obviously
unwarranted in view of Respondent 's never-resolved or continued question-
ing of the Union's majority status.
10 As did Respondent 's conditioning reinstatement on June 27 upon
"certain legal questions" being answered , to wit, whether the Union
represented a majority of the maintenance employees, a condition which, we
have found , it never withdrew
11 Also at this time, Torgove told the steward that anyone who picketed
would never work for Respondent again The Administrative Law Judge
found this to be a threat unlawful under Sec . 8(a)(1) Our dissenting
colleague would find no violation here because Respondent 's subsequent
offers of reinstatement to picketing employees "effectively rebutted that
import of the threat." We fail to understand the logic of his position , but at a
minimum it seems to imply that an unlawful threat is not unlawful if it is not
carried out . This simply just is not the law and with respect to the present
matter completely obscures the difference between an unlawful threat not to
reinstate and an actual unlawful refusal to reinstate . See, e g , American
Commercial Bank, 226 NLRB 1130 (1976)
12 More precisely , the position of our dissenting colleague is that the
employees voted to strike solely because there would be no contract after
expiration of the then present agreement and, thus, it is contended , the strike
was not in response to Respondent 's unfair labor practices . This view
involves a rather mistaken idea of the law and a misapprehension of the
facts First , as pointed out above , it was the Union that called the strike and
it, indeed, did so in response to Respondent 's unfair labor practices-the
refusal to meet and bargain But even were the employees' motivation here
the decisive matter, it appears that in the meeting leading to the strike vote
they were not only told there was no new contract forthcoming but that
there were not even any discussions taking place with respect to one.
Consequently , Respondent 's unlawful refusal to deal with the Union was
directly involved in the matters considered by the employees Furthermore,
even if the sole reason for the employees' voting to strike was that there
would be no new contract , still Respondent 's unlawful conduct was at least
in part a cause of the strike for it was that conduct that precluded a new
1367
12, that is, the day after Respondent categorically
refused to bargain with the Union until such time, it
claimed, as its obligation to do so was resolved. The
employees, as noted, voted to strike when their
contract expired. However, several days later the
Union's shop steward told Torgove, Respondent's
vice president, the strike would be called off if
Respondent would meet and bargain with the Union.
That offer was categorically rejected by Torgove.11
Then, on June 16, the Union called the maintenance
employees out on strike, but on June 20, after
arrangements had been made for the parties to meet
and negotiate, it unconditionally offered to send the
employees back to work, an offer never accepted in a
lawful manner by Respondent. These facts inescapa-
bly show that the cause of the strike was Respon-
dent's unlawful failure to fully recognize and meet
with the Union. Clearly, and contrary to the dissent's
position, there is no plausible basis for assuming that
the strike just happened coincidentally at the same
time Respondent was refusing to meet and bargain
or that it was caused solely by the fact there was no
contract after June 14 between the parties, where, as
here, the Union offered to call off the strike not when
a contract was reached but when bargaining sessions
were agreed upon,12 and the strike then would have
been terminated but for Respondent's placing
unlawful conditions on the strikers' return. Conse-
quently, we affirm the Administrative Law Judge's
agreement's being reached prior to expiration of the old . If our dissenting
colleague's position is, however, that for a strike to be an unfair labor
practice strike the employees in voting to strike , or the Union in calling a
strike, must do so consciously and specifically in response to specific unfair
labor practices then he misconceives the law in this area What is important
is what in fact caused the strike in whole or in part, and not, as our
dissenting colleague claims, the "employees ' conscious reasons for going on
strike," though these reasons may correspond with the incidents or conduct
that in actuality caused a particular walkout. To be sure, the dissent cites
several cases which it apparently believes support its position , but these
cases, rather than being in conflict with, generally support, what we have
said (See cases cited in dissent at fn. 27.) Certainly, those cases lend no
support to the dissent's claim that this Board must necessarily accept the
employees' conscious reasons for striking as the effective cause of a strike
Rather, each case involves a search to detemmne the actual cause of a strike;
and, indeed, in some instances the employees ' reasons are good evidence of
that cause . See I.T.T Henze Valve Service and Filler Products Inc. v.
N L. R B, both cited by the dissent in fn . 27, and both involving not union-
called but spontaneous employee walkouts However, in Typoservice
Corporation, another of the cases cited by the dissent, the union did call the
strike, and this Board , in search of the cause , was concerned not at all with
the employees ' reasons for striking but rather with the "impetus for the
Union's decision to strike." The other cases cited by the dissent on the point
here under discussion add nothing to its position and subtract nothing from
ours.
Whether or not ascertaining the cause of a strike in the way indicated
above will, as the dissent believes, involve us in something akin to crystal
ball gazing is a matter about which we find it rather pointless to speculate,
for however one wishes to describe the criteria and approach outlined above
they are those applied by the Board since its inception without undue
difficulty and apparently with practical realistic results . But perhaps this
whole discussion is tittle more than a tempest in a teapot for, even assuming,
as the dissent so vigorously contends, that the employees' reasons for voting
to strike are here "determinative," the strike was, for the reasons we have
pointed out above , nonetheless an unfair labor practice strike.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion that the strike was an unfair labor
practice strike and again find that our dissenting
colleague's position is wholly misconceived.
The 8(a)(3) and (1) Violation
As described above, the employees struck on June
16 and on June 20 the Union unconditionally
requested their reinstatement. Consequently, on that
date, the employees were, either as unfair labor
practice strikers or unreplaced economic strikers,
entitled to immediate and full reinstatement to their
former jobs. However, Respondent never did offer
the employees unconditional reinstatement. 13 As for
the janitors, it conditioned their return on not
engaging in a strike again for 60 days. With respect
to maintenance men, it offered to take them back but
only at wages below the then existing level.
The Administrative Law Judge found these condi-
tions upon reinstatement to be unlawful and that
Respondent by failing to offer the employees
immediate, full, unconditional reinstatement violated
Section 8(a)(3) and (1). The dissent, however, takes a
contrary view. It contends in essence that the 60-day
no-strike guarantee was justified as a proper condi-
tion to protect Respondent against recurring strikes,
at least for a reasonable period, by the janitors.
However, as indicated, the Union's offer to call off
the strike was unconditional and neither the offer
itself nor any of the Union's actions carried any
threat of subsequent strike action. Furthermore, it
was Respondent's unlawful conduct which had
evoked strike action in the first place. Consequently,
what Respondent required to insure continued labor
peace was not a guarantee by the janitors not to
strike but rather good-faith compliance by itself with
the bargaining requirements of the Act. Consequent-
ly, the rationalization of Respondent's action pro-
posed by the dissent is without substance. In any
event, as the Board has previously held, a no-strike
13 With the exception noted above that in October, at a time subsequent
to the events involved in this proceeding, the janitorial employees were
finally offered such reinstatement
14 Roadhome Construction Corp, 170 NLRB 668, 676 (1968) The dissent
cites Indiana Ready Mix Corporation, 141 NLRB 651 (1963), in support of its
position That case is clearly not on point. There the company, in response
to the union 's offer to call off a strike, stated it could not start up its business
without a 60- to 90-day no-strike guarantee The legality of that condition
on reinstatement was not, however, before or passed on by the Board,
rather, at issue was whether the union had unconditionally sought
reinstatement for the strikers when in reply to the company 's proposal the
union offered only a no-strike guarantee for a 30-day period of negotiations.
The Board construed the union 's position as being one offering only a 30-
day respite in the strike and not an unconditional request for reinstatement
and thus concluded the company had no obligation to take the strikers back
There is nothing in the Board's decision indicating what its position would
have been in that case if the union had rejected the company's no-stake
proposal and simply countered with an unconditional request for reinstate-
ment Consequently, the issue before the Board in the present case
concerning an employer' s conditioning reinstatement on a no-strike
guarantee attached to an offer of reinstatement is an
unlawful condition.14
As for conditioning the maintenance employees'
reinstatement on their accepting a wage cut, the
dissent argues this was proper in view of the serious
financial difficulties Respondent suffered in its
operations of the building involved in this case.
There is obviously no validity to this argument.
Conduct which is unlawful is not excused upon a
showing that it was motivated by business exigen-
cies.15 And here, as we have pointed out above,
Respondent's action amounted to little more than an
unlawful unilateral change in wages for the mainte-
nance employees and an unlawful attempt to force
them to accept as the price of reinstatement wage
cuts which, as subsequent events revealed, it wished
to have the Union in effect ratify at the bargaining
table.16 Consequently, the offer of reinstatement at
reduced wages did not embrace that full reinstate-
ment to which the employees were entitled 17 and
was, therefore, clearly unlawful, irrespective of what
financial problems Respondent may have been
suffering at the time.'s
In view of all the foregoing, we find no merit in our
dissenting colleague's various arguments and, as
indicated above, affirm the Administrative Law
Judge's disposition of the issues in this case.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dent, Albion Corporation d/b/a Brooks, Inc., Den-
ver, Colorado, its officers, agents, successors, and
assigns , shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute in paragraph 1(e) the phrase "In any
other manner" for "In any manner."
guarantee was not before the Board and thus obviously not resolved by the
Board in its Indiana Ready Mix decision.
15 See N L R.B. v. Erie Resistor Corp., 373 U.S 221, 229 ( 1963).
18 Respondent's recourse was, of course , to attempt to get the Union, at
the bargaining table , to agree to reduced wages for unit employees and,
failing that , to bargain in good faith to impasse at which point it could
lawfully institute those wage rates last offered the Union as a good-faith
basis for settlement
17 See Terry Industries of Virginia, Inc, 188 NLRB 745, 749 (1971), Padre
Dodge, 189 NLRB 378, 387-88 (1971).
18 The dissent cites N.LR.B. v. Fleetwood Trailer Co, Inc, 389 U S. 375
(1967), in support of its position That case is clearly not on point as it dealt
solely with the rights of an employer not to reinstate economic strikers where
for various legitimate reasons, such as their being replaced , no jobs exist for
them It did not deal at all with the reinstatement rights of unfair labor
practice strikers nor did it suggest that even where economic strikers are
involved and entitled to reinstatement an employer can legitimately
condition reinstatement upon the strikers' accepting terms of employment
other than those lawfully in effect at the time of the request for
reinstatement.
BROOKS, INC.
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER WALTHER, dissenting:
I believe my colleagues have erred by their decision
to find Respondent in violation of Section 8(a)(5),
(3), and (1) of the Act. In my view, their decision is in
several critical respects not supported by the facts of
the record and suffers in other respects from an
unwillingness to view the facts in terms of the total
context of events.
Since the Administrative Law Judge failed to fully
explicate many of the pertinent factual details, a
comprehensive reiteration of the facts is warranted
here.
Brooks Towers is a 42-story apartment and office
complex located in downtown Denver. In 1968,
Magna Associates acquired Brooks Towers under a
sale and leaseback arrangement from Transcontinen-
tal Investing Corporation. Under the sale and
leaseback arrangement, Magna was to take no active
role in the operation of the building. However, in
1971, Transcontinental began experiencing financial
difficulties and by 1973 had merged into a company
called Omega Alpha. Omega Alpha's subsidiary,
Arapahoe Leasing Company, became the tenant of
the building. After further financial deterioration,
Omega Alpha declared bankruptcy and Magna
Associates, which had never before operated Brooks
Towers, was forced to take over. Accordingly, in
June 1974, Magna formed Albion Corporation for
the purpose of operating Brooks Towers. On June 12,
1974, Respondent Albion was assigned the lease to
the building by Arapahoe Leasing Company and all
the maintenance and janitorial personnel on Arapa-
hoe's payroll were transferred to Respondent's
payroll. Gary Thomas, the manager of the building
for Arapahoe, was made manager of the building for
Respondent and was given sole responsibility for
firing, hiring, and establishing wage rates at Brooks
Towers. It is undisputed on the basis of these and
other facts that Respondent is a successor employer
to Arapahoe and the Administrative Law Judge so
found.
The Union, prior to June 1974, represented
Arapahoe's maintenance and janitorial employees in
separate units and under separate collective-bargain-
ing contracts. After the acquisition by Respondent,
this bargaining pattern continued. Accordingly, on
June 14, 1974, shortly after the transition, Manager
Thomas signed a collective-bargaining agreement
with the Union for a unit of maintenance employees.
Although the agreement was signed on behalf of
Arapahoe, Respondent (represented by its agent,
Thomas) honored the agreement throughout the
contract year. On October 22, 1974, Thomas, this
1369
time on behalf of Respondent, signed a collective-
bargaining contract with the Union for the janitorial
employees. It is notable, however, that Respondent's
vice president, Torgove, the top official assigned to
the daily management of Respondent's affairs, did
not know of the existence of either of these contracts.
On April 10, 1975, the Union sent Thomas the
normal contract reopener notices for the mainte-
nance employees' contract due to expire June 15,
1975. Failing to hear from Thomas, Union Business
Manager Crouch called Thomas several times in
May. Thomas, upon being reached, told Crouch that
someone else would be handling negotiations. (Tho-
mas' secretary revealed on June 7 that Vice President
Torgove was the proper person to contact.) On June
9, 1975, Crouch contacted Torgove and was referred
to Hubert Weinshienk, Respondent's attorney. Nei-
ther Torgove nor Weinshienk had, to that date,
known of the existence of the Union's contract. A
meeting between Crouch and Weinshienk was
promptly set up for June 11.
Union Manager Crouch, Shop Steward Hoffman,
and Attorney Weinshienk did thereafter meet on
June 11. At the outset of the meeting Weinshienk
apologized for having called the union representa-
tives together for a meeting. Weinshienk, who was
not conversant with labor law, explained that he was
not ready to negotiate but was only seeking informa-
tion regarding Respondent's legal obligation to
bargain. Weinshienk informed Hoffman and Crouch
that negotiations could not proceed until the legal
question concerning Respondent's obligation to
bargain was cleared up. Accordingly, Weinshienk
was referred to the Union's attorney, Mark Simons.
The following day, June 12, Weinshienk and
Simons discussed by telephone the prospect of
commencing negotiations. In that conversation,
Weinshienk expressed doubt as to Respondent's
bargaining obligation. Simons, in response, gave
Weinshienk citations to two Supreme Court cases
which he believed established Respondent's duty to
bargain.
Also on June 12, the maintenance employees held a
meeting at Brooks Towers and voted to strike on
June 16.
On June 13, Weinshienk again spoke with Simons
by telephone and was asked by Simons whether he
had read the cases Simons had cited for him.
Weinshienk responded that he was not ready to
bargain until the legal questions were resolved.
Simons then told Weinshienk of the strike set for
June 16.
No further communication between the parties'
respective attorneys occurred until June 16. On
Sunday, June 15, however, Vice President Torgove
called Shop Steward Hoffman about a leak at Brooks
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Towers that needed to be fixed. Hoffman (whose
testimony the Administrative Law Judge credited)
testified that Torgove asked him to delay the strike
for 2 weeks, but refused to meet with Union Manager
Crouch as a condition to getting the strike post-
poned.19 Later, upon being informed that the strike
was still on, Torgove told Hoffman that anyone who
picketed Respondent's premises would never work
for Respondent again.
The strike began on the morning of June 16 as
scheduled. The janitorial employees struck in sympa-
thy with the maintenance employees. Respondent, in
order to protect itself, hired independent firms to
temporarily perform the janitorial and maintenance
services.
Immediately after the beginning of the strike,
Weinshienk called Simons and stated that he was
willing to sit down and bargain with the Union, but
was preparing a petition to determine the Union's
majority status. Simons replied that he did not think
Weinshienk could on the one hand sit down and
bargain and on the other hand entertain doubts as to
the Union's majority status. Weinshienk nevertheless
followed up his telephone call with a June 16 letter
reiterating Respondent's willingness to bargain.
No further oral communication occurred between
the parties until June 20. On that day, Simons
telephoned Weinshienk and set up a bargaining
session scheduled for June 26 or 27. In the telephone
conversation, Simons offered to return both groups
of striking employees to work. And, in a letter of
June 20, Simons reminded Weinshienk of his offer to
return to work all employees represented by the
Union.
At the June 27 meeting, negotiations actually got
underway. Various topics were discussed and the
offer to return both groups of employees was
broached. Respondent took the position that the
maintenance employees could not return to work
until certain legal questions were answered. Suggest-
ing acquiescence as to the return of the janitorial
employees, however, Respondent asked the Union to
ascertain how many janitorial employees wanted to
return to work.
In apparent response to Respondent's offer, several
of the janitors on June 30 did in fact report to work
but were advised that work schedules had to be
established for them.
At the next negotiating session on July 2, Respon-
dent, concerned that the janitors, if brought back to
work, could immediately return to the picket line,
asked for a guarantee that the janitors would stay on
the job for 30 to 60 days. In addition, arrangements
is Torgove, on the other hand, testified that Hoffman agreed to delay the
strike only if Torgove acceded to the Union's contract demands Torgove
stated that he expressed a willingness to meet with the Union and its agents
were made to have the janitors who desired to return
to work contact Respondent by telephone. Accord-
ingly, on July 2 and 3, 6 of the 10 janitors telephoned
Respondent that they desired to return to work.
Union Manager Crouch wrote Respondent on July 3
reaffirming the fact that the janitors desired to return
to work. He incorrectly stated, however, that all 10
janitors had called Respondent as arranged.
Respondent, in a reply letter dated July 9, balked
at the fact that only 6 of the 10 janitors had called up
expressing a desire to return to work and repeated its
insistence on a 60-day no-strike guarantee.
On July 11, 7 of the 10 janitors wrote Respondent,
again expressing their desire to return to work. This
was followed by a July 23 letter from Respondent
which restated its demand for a 60-day no-strike
guarantee.
Although there is nothing further in the record
concerning the negotiations surrounding the return
of the janitorial employees, it is acknowledged that
eventually, in mid-October, the janitorial employees
were given an unconditional offer of reinstatement
and were returned to work.
Negotiations concerning the maintenance employ-
ees proceeded alongside the above-mentioned dis-
pute concerning the janitorial employees and occu-
pied the center of the parties' attention. The
bargaining sessions were conducted on June 27, July
2, July 8, and August 1, with Union Manager Crouch
and Vice President Torgove in attendance. On July 2,
it was agreed that the attorneys for both parties need
not be present because the substantive economic
issues would be the focus of the discussion.
Throughout the economic discussions, Respondent
took the position that it could not afford to return the
maintenance employees to work at their former wage
rates. In support of its position, Respondent pleaded
its obvious financial plight and offered to document
its financial condition by showing the Union its
books, but the Union declined. Respondent also
relied on the fact (established in a survey of local
buildings) that its maintenance employees were paid
higher wage rates than the prevailing local rates, and
on the fact that the replacement maintenance
employees cost Respondent less than the original
maintenance employees.
The Union, on the other hand, insisted that the
maintenance employees would not return to work at
less than their former wages. Thus, at the July 8
bargaining session, Union Manager Crouch said that
he would recommend that the employees return to
work at their old salaries but would not recommend
but refused to agree to sign the Union's proposed contract as a condition to
getting the strike delayed.
BROOKS, INC.
that they return at wages less than they had been
receiving.
Respondent's first wage offer came on July 18.
Although the offer called for lower wages and
benefits than those under the old contract, it
nevertheless promised rates substantially higher than
those the replacement maintenance employees were
getting and higher than prevailing local rates.
The Union rejected Respondent's offer and on
August 1 countered with an offer to return at the old
contract rates. Respondent replied with an August 8
"final offer" which, while higher than its original
offer, still called for less than the rates under the old
contract. This offer also was rejected by the Union.
It appears that to date no maintenance employees
have been returned to work.
The above facts show that Respondent was forced
to take over operation of a financially pressed
enterprise; that, unbeknown to its highest manage-
ment officials, contracts were signed with the Union
for separate units of maintenance and janitorial
employees; that these same officials were, through
their legal representative, confronted with a union
demand for bargaining on June 11; and that, after
some initial hesitation , Respondent agreed to bargain
and did bargain with the Union on and after June 16.
In consideration of these facts, I cannot join my
colleagues in their conclusion that Respondent
refused to bargain in violation of Section 8(a)(5) of
the Act. An examination of the overall picture
reveals that Respondent's conduct amounted at
worst to a trivial delay in bargaining which had no
impact either in causing the strike or in impeding
subsequent negotiations.
The complaint alleges a refusal to bargain com-
mencing June 11, the date Respondent's attorney
20 The fact that Respondent 's attorney stated that he was preparing to
file a petition questioning the Union's majority status does not, in my
opinion, subtract at all from the genuineness of Respondent's offer to
bargain There is nothing in the Act which prevents an employer from
simultaneously bargaining with a union and filing a petition which questions
the union's majority status . On the contrary, if an employer is unclear as to
whether it has sufficient grounds under Board law to support a reasonably
based doubt as to the union 's majority status, but nevertheless wants to
question the union 's majority, filing a petition is the prescribed course of
conduct. (If the employer cannot, in support of its petition, demonstrate by
objective considerations that the union has lost its majority status, then the
petition will be dismissed United States Gypsum Company, 157 NLRB 652
(1966))
My colleagues ' assertion that an employer' s agreement to bargain can be
fatally prejudiced by a statement of its intention to file an election petition
raises serious questions concerning parties' right to resort to the Board's
processes . Their conclusion, if taken in its full implications , is disturbing and
cannot seriously be entertained Since my colleagues declare their helpless-
ness in perceiving these implications , I shall set them forth plainly.
Certainly, the Employer here had the right to file a petition -whatever
the Board's eventual disposition of that petition. The mere act of filing or
declaration of an intent to file should not therefore be attended by punitive
consequences . Yet, my colleagues in essence state that the act of filing (or
statement of an intent to exercise that right) is so inconsistent with good-
faith bargaining that it constitutes , by itself, an unfair labor practice. This I
find impossible to square with the Act or rational Board policy. Acceptance
1371
communicated to the union agents his doubts about
Respondent's duty to bargain. Within 5 days,
however, Respondent had resolved its legal objec-
tions and had agreed to bargain.20 Since the Board is
not empowered to look behind the complaint and
find violative of the Act conduct not specifically
mentioned therein, any refusal to bargain must be
predicated on Respondent's conduct during the June
11-16 period and the eventual consequences of this
conduct. I cannot accept the proposition that this 5-
day delay in bargaining, unaccompanied as it was by
any detrimental effect on the future course of good-
faith negotiations, can be said to constitute a
violation of Section 8(a)(5) of the Act.21
Although it is perhaps true that Respondent was
guilty of a technical violation for refusing to bargain
during this 5-day period, there is no showing that this
technical violation either played a part in causing the
strike (to be discussed herein) or adversely affected
the actual conduct of bargaining negotiations, once
commenced.22 Nor is there any showing that the 5-
day delay constituted an exercise in bad faith. To the
contrary, the refusal to bargain appears to have been
largely the product of bungled communications
within Respondent's enterprise and Respondent's
lack of sophistication with labor law.
The one strikingly relevant fact is that Respondent
recognized its bargaining obligation, agreed on June
16 to bargain, and did thereafter on June 27
commence bargaining. This later participation by
Respondent in good-faith bargaining effectively
cured any brief delay in the commencement of
negotiations.
As for the further suggestion that the bargaining
negotiations, once begun, were tainted or otherwise
not conducted in good faith, even a cursory perusal
of my colleagues' position would tend to erase the one route by which an
employer can question an incumbent union 's majority status without
completely disrupting the bargaining relationship . Heretofore , an employer
could either (1) refuse to bargain with the incumbent union (at the risk of
committing an unfair labor practice in the evnt no objective considerations
of loss of majority status could be shown), or (2) continue to bargain with
the union but file an election petition (with no risk of committing an unfair
labor practice). My colleagues , however, appear to be saying that an
employer who chooses alternative (2) commits an unfair labor practice If
this is what my colleagues intend , and the penalties for pursuing routes (1)
and (2) are from now on to be the same , then an employer may as well elect
to pursue route (1) as route (2) This, I should think , is hardly a result which
the Board wants to encourage.
My colleagues' further assertion that "there is no basis on this record for
concluding [the Employer I ever properly recognized the Union fully as the
[maintenance I employees' bargaining representative" completely ignores the
fact that the Union and Respondent bargained at length over a new contract
for the maintenance employees . Would my colleagues have such recognition
made in blood)
21 M R & R Trucking Company v. NLRB, 434 F 2d 689 (C A. 5,
1970); see also Chairman Murphy's dissenting opinion in Carpenters'
District Council of Jacksonville, Florida and Vicinity, et at., 221 NLRB 876
(1975).
22 It is worth noting, in this regard , that the Union showed itself to be in
no great hurry to commence bargaining when on June 16 it unreasonably
disregarded Respondent's offer to bargain.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the facts shows that this was not the case.
Respondent's bargaining behavior carried with it all
the earmarks of good-faith bargaining. For example,
Respondent readily assented to meeting on dates
proposed by the Union, freely discussed matters with
the Union during negotiations, offered to document
its position by opening its books, made a wage offer,
and, when that offer was rejected, make a second
offer at wage rates higher than those originally
proposed.
The fact that Respondent refused to reinstate the
maintenance employees at the rates they had been
earning before the strike or reach a new contract
proposal calling for prestrike wage rates cannot be
cited as evidence of a bad-faith bargaining posture.
The mere offer of less desirable working conditions is
not by itself sufficient to show bad faith. At best,
such an offer, if left unexplained, can help support a
finding of bad-faith bargaining.23 Respondent ex-
plained that it could not afford to return the
maintenance employees at the old rates and offered
to show the Union its books in documentation of its
financial plight. This fact tends to demonstrate its
good faith.24 Moreover, Respondent made the Union
an initial offer which called for wages substantially
above those that were earned by the replacement
maintenance employees and substantially above
those prevailing in the area. After the Union rejected
this original proposal, Respondent countered with
yet a higher offer. Surely this flies in the face of any
claim that Respondent undertook negotiations with
an intent to avoid agreement. Rather, it was the
Union which adamantly insisted on the prior wage
rate and which refused to retreat from its original
proposal.25 In view of these facts, I cannot find that
Respondent attempted to shirk its bargaining duty.26
In addition I would not find that Vice President
Torgove's alleged refusal to meet with Union
Manager Crouch violated Section 8(a)(5) of the Act.
Within I day after Torgove remarked to Shop
Steward Hoffman that he would not meet with
Crouch, Respondent had agreed to set up bargaining
negotiations with the Union. Beginning on June 27,
Torgove did several times willingly meet with
Crouch. Consequently, any attempt to base an
23 McCulloch Corporation, 132 NLRB 201 (1961), Cranston Print Works
Company, 115 NLRB 537 (1956)
24 Southern Wipers, Inc, 192 NLRB 816 (1971)
25 See Southern Wipers, supra, and Memorial Consultants, Inc, 153 NLRB
1 (1965)
26 As will be discussed at length herein , Respondent had no duty to
reinstate the maintenance employees at their old wage rates
27 By sleight of hand, or perhaps by thimble and fork, the majority will
now have it that the cause of a strike will be known, not to the sinkers, but
to crystal ball gazers and this Board, with I think an equal degree of probity
Contrary to what the majority asserts, it has long been recognized that the
striking employees ' motivation for striking determines whether a strike is an
unfair labor practice strike or an economic strike If employees strike in
whole or in part in protest of an employer's unfair labor practices, the strike
8(a)(5) violation on Torgove's remarks to Hoffman
ignores the fact that subsequent events constitute a
vivid refutation of those remarks.
I must also dissent from my colleagues' conclusion
that the June 16 strike was an unfair labor practice
strike, a conclusion I find to be completely unwar-
ranted by the facts. The sole evidence of the
maintenance employees' motivation for striking
consists of statements by Shop Steward Hoffman and
employee Larry Mitchell. Hoffman testified that the
maintenance employees voted on June 12 that "if
[the maintenance employees] didn't have a contract
when the collective-bargaining agreement expired
[they] would go out on strike." Mitchell's statement
describing what happened at the strike vote meeting
is as follows:
Sam [Crouch] was our Union man. He met us
there, and informed us that as of that date, we
had a contract that would expire Saturday night
at midnight, and we had no new contract and
none had been discussed, and it was up to the
men in the maintenance myself to decide whether
we would strike or not.
This relatively sparse evidence concerning the
maintenance and janitorial employees' motivation
for striking belies any inference that the strike was
provoked or caused by Respondent's alleged refusal
to bargain. There is absolutely no evidence that the
union membership were even made aware of Attor-
ney Weinshienk's June 11 postponement, much less
that this factor played a part in motivating the strike
vote. Rather, the facts clearly establish that the union
membership voted to strike for a reason which
customarily impels unions to strike-that is, because
they had no contract-not because Respondent had
not yet commenced bargaining.
An unfair labor practice strike is one which is
caused in whole or in part by an unfair labor
practice. Mere coincidence in time between an
employer's unfair labor practice and an employee
strike does not supply the requisite causal connec-
tion.27 Accordingly, in the absence of any evidence
establishing that the June 16 strike was in response to
is an unfair labor practice strike . If employees strike to secure wholly
economic objectives the strike is an economic strike
A strike is the direct and immediate product of a decision to strike on the
part of the employees. Rather than embark on an expedition in an attempt
to discover unseen factors, the Board , when it is called upon to determine
the cause of a strike, looks solely to what consciously impels the employees
to strike The employees' conscious reasons for going on strike are, for the
Board , the effective "cause" of the strike. Any further inquiry would involve
the Board in a meaningless and futile guessing game
Similarly (and this is the point my colleagues appear to be making), if the
union hierarchy calls a strike without consulting the employees, and the
employees blindly subscribe to the union hierarchy's decision , then the
union hierarchy's conscious reasons for going on strike are for the Board the
effective "cause" of the strike
BROOKS, INC.
Respondent's delay in commencing negotiations, I
would not find the strike to be an unfair labor
practice strike.
I would also not find that Respondent violated
Section 8(a)(3) by refusing to reinstate the janitorial
employees except upon a guarantee by them that
they would not walk off the job immediately after
returning to work. This case is on all fours with, and
is controlled by, the Board's decision in Indiana
Ready Mix Corporation. 28 1n that case, as in this one,
the employer took over the business of a predecessor
company and recognized the union. After a strike
which followed unsuccessful bargaining negotiations,
the union made a purportedly unconditional offer to
return to work. The employer responded with a
demand for a 60- or 90-day no-strike guarantee. In
return, the union counteroffered agreement to a 30-
day no-strike period. The Board found no 8(a)(3)
violation, concluding that the union's reinstatement
offer was not unconditional since it simply amounted
to an offer of a 30-day respite from the strike. Thus,
the Board recognized that an unconditional applica-
tion to return to work necessarily carries with it the
inference that the returning workers will not shortly
thereafter return to the picket lines . Moreover, the
employer can insist that this inference be made
explicit by exacting from the workers an agreement
that they will stay at work for a reasonable period of
time.
Respondent here was understandably concerned
that the janitorial employees would return to the
picket lines shortly after coming back to work,
thereby jeopardizing its ability to secure new replace-
ment employees. Following the Board's reasoning in
Indiana Ready Mix Corporation, I would permit
Respondent to insist on a reasonable no-strike
guarantee. Accordingly, I would find no violation of
the Act in Respondent's insistence on a 60-day no-
strike guarantee as a condition to the reinstatement
of the janitorial employees.
Nor would I find Respondent in violation of
Section 8(a)(3) of the Act for failing to reinstate the
maintenance employees at their former wage rates.
Although Respondent undoubtedly had an obliga-
tion to reinstate the maintenance employees upon
receipt of an unconditional offer to return to work,
this reinstatement obligation did not, in my opinion,
force Respondent to hire back the striking employees
at wage rates greater than those then prevailing
among the replacement employees.
Here, of course, the employees were consulted by the Union and did,
through a vote, make the final decision to go on strike The employees'
reasons for striking are thus determinative See Typoservice Corporation, 203
NLRB 1180 (1973), ITT. Henze Valve Service, Controls and Instruments
Division, International Telephone and Telegraph Corporation, 170 NLRB 1320
(1968); Chatham Manufacturing Company, 172 NLRB 1948 (1968), The
1373
Violations of Section 8(a)(3) for refusal to reinstate
striking employees are founded on the notion that an
employer's refusal to reinstate constitutes discrimina-
tion which necessarily has a discouraging effect on
the employees' exercise of their rights to organize and
to strike guaranteed by Section 7 and 13 of the Act.
An employer can, however, avoid a conclusive
inference of discriminatory motivation if he shows
that his refusal to reinstate strikers was due to
"legitimate and substantial business justifications." 29
It follows, a fortiori, that an employer who merely
refuses to reinstate striking employees at their former
wage rates (as opposed to one who refuses to
reinstate striking employees at all) can defeat a
finding of 8(a)(3) discrimination by showing that his
offer of reinstatement at less than the old wage rates
was dictated by legitimate and substantial business
justifications.
Respondent has here supplied legitimate and
substantial business justifications which clearly rebut
the inference of any improper discriminatory pur-
pose. Respondent has shown that it was engaged in
the precarious task of restoring the financial affairs
of a previously bankrupt enterprise, that consequent-
ly it was unable to pay what it formerly paid the
maintenance employees, that it determined through a
survey that the maintenance employees were earning
considerably more than the prevailing area wage
rates, and that it nevertheless offered its maintenance
employees reinstatement at wages substantially
above the local area wage rates and substantially
above the wages which the replacement employees
had been earning. Surely, Respondent's financial
distress constitutes a compelling and legitimate
justification for its refusal to reinstate the mainte-
nance employees except at less than their former
wage rates.
The fact that Respondent failed to make an offer of
reinstatement to the maintenance employees between
June 20, the date of the Union's offer to return, and
July 18, the date of Respondent's first wage offer, is
immaterial. It is uncontroverted that Union Manager
Crouch stated at the July 8 negotiating session that
the striking employees would not return to work at
wages less than they had been earning. Consequent-
ly, any offer of reinstatement at lower than the
prestrike wages during the period June 20 through
July 18 would have proved to be a futile gesture.
Accordingly, I would not find that Respondent's
conduct with regard to the reinstatement of the
Rangaire Corporation 157 NLRB 682 (1966); Filler Products, Inc v.
N L R B., 376 F.2d 369 (C.A 4, 1967), N.L R B v. West Coast Casket
Company, Inc, 205 F 2d 902 (C.A. 9, 1953); N L R B v. Mackay Radio and
Telegraph Co., 304 U.S. 333 (1938)
28 141 NLRB 651 (1963).
29 NLR.B v Fleetwood Trailer Co, Inc., 389 U.S 375 (1967).
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance employees violated Section 8(a)(3) of
the Act.
Finally, I cannot agree with my colleagues that
Torgove's statement to Hoffman that "anyone who
picketed would never work for Respondent again"
violated Section 8(a)(1) of the Act. Although such a
statement would ordinarily constitute a violation of
Section 8(a)(1), Respondent's subsequent conduct in
offering to reinstate both janitorial and maintenance
employees effectively rebutted the import of the
threat. As with Respondent's other conduct dis-
cussed above, I would not divorce this single element
of behavior from that which eventually transpired.
In sum, for the foregoing reasons, I would not find
Respondent to be in violation of Section 8(a)(5), (3),
and (1) of the Act and would dismiss the complaint
in its entirety.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees who go on
strike that they will not be permitted to return to
work.
WE WILL NOT refuse to bargain with the
business manager of Local No. 1, International
Union of Operating Engineers, AFL-CIO.
WE WILL NOT refuse to employ striking mainte-
nance employees on the basis that they agree to
return to work at a rate of pay below that they
enjoyed at the time of their strike.
WE WILL NOT refuse to reemploy janitorial
strikers unless they agree to forgo their right to
strike for a period of at least 60 days after their
return to work.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them under
Section 7 of the National Labor Relations Act.
WE WILL offer to our maintenance employees
who went on strike on June 16, 1975, immediate
and full reinstatement to their former positions or,
if such positions no longer exist, to substantially
equivalent positions, without prejudice to seniori-
ty or other rights and privileges and WE WILL
make them whole for any loss of pay suffered by
reason of our discrimination against them, with
interest.
WE WILL make whole our janitorial employees
for any loss of earnings caused by our refusal to
accept their unconditional offer to return to work
on June 20, 1975, until such date when they did
receive an unconditional offer to reinstate them,
with interest.
WE WILL, upon request, bargain collectively
with Local No. 1, International Union of Operat-
ing Engineers, AFL-CIO, as the exclusive repre-
sentative of our mechanical-maintenance and
building repair employees and stationary engi-
neers employed at our Denver, Colorado, place of
business, excluding office clerical employees,
guards, professional employees, and supervisors,
and, if a contract is reached, sign same.
All our employees are free to become or refrain
from becoming members of the above-named or any
other labor organization, except to the extent a
union-security clause is permitted under Section
8(a)(3) of the National Labor Relations Act.
ALBION CORPORATION
D/B/A BROOKS, INC.
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This
matter was heard at Denver , Colorado, on January 20 and
21, 1976 . The complaint based upon charges filed June 16,
1975, in Case 27-CA--4557, by Local No. 1, International
Union of Operating Engineers , AFL-CIO, herein the
Union, and a charge filed June 20, 1975, in Case 27-CA-
4562, by Charles Hoffman , an individual, issued August 8,
1975, alleges that Respondent, Albion Corporation d/b/a
Brooks , Inc., herein Brooks, has engaged in unfair labor
practices within the meaning of Section 8(a)(5), (3), and (1)
of the Act. Briefs have been submitted by the parties.
Upon the entire record in the case , and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Albion Corporation d/b/a Brooks, Inc., is a Colorado
corporation which is engaged in the operation and rental of
space in a 42-story apartment and office complex in
Denver. This operation is conducted under a lease from the
equity owner, a limited partnership known as Magna
Associates, which in fact formed Brooks. Respondent
annually purchases and receives goods and materials
valued in excess of $10,000 directly from points outside the
State of Colorado and it enjoys annual gross revenues in
excess of $500,000. I find that the operations of Respon-
dent affect commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 1, International Union of Operating Engi-
neers , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
BROOKS, INC. 1375
III. THE UNFAIR LABOR PRACTICES
A. Introduction• The Issues
For several years prior to June 1974, Arapahoe Leasing
Corporation, herein Arapahoe, operated these premises for
Magna Associates. The Union represented the mainte-
nance and janitorial employees of Arapahoe in separate
units and under separate contracts. Because of certain
financial problems of Arapahoe, Magna Associates formed
Albion Corporation. Its articles of incorporation were
executed and a certificate of incorporation was issued by
the State of Colorado on June 7, 1974. And, on June 12,
1974, Arapahoe assigned its sublease of the building, as
well as its leases with tenants of the building, to Albion
Corporation, viz, Brooks.
On the latter date, Respondent transferred all mainte-
nance and janitorial personnel on the payroll of Arapahoe
to its own payroll. It also appointed Gary Thomas,
manager of the building for Arapahoe, as manager for
Respondent and he was perforce given sole authority to
hire and fire employees and to set salaries. As of June 14,
1974, there were 8 employees in a maintenance classifica-
tion and 11 classified as janitorial.
At issue herein are (1) whether Vice President Howard
Torgove of Albion told an employee on or about June 15,
1975, that he would not negotiate with Business Manager
Sam Crouch of the Union or meet with him; (2) whether
Torgove told an employee or employees on or about June
15, 1975, that any employees who struck or observed a
picket line would not work again for Respondent; (3)
whether, on and after June 11, 1975, Respondent refused
and failed to bargain with the Union as the representative
of its mechanical-maintenance and building repair employ-
ees and stationary engineers at its Denver facility;' (4)
whether, on or about June 16, 1975, the maintenance
employees of Respondent in the above-described appropri-
ate unit struck in protest of prior unfair labor practices and
became unfair labor practice strikers, or, in any event, were
protected economic strikers; (5) whether, on the above
date, Respondent's janitorial employees respected or
honored said picket line and therefore were entitled to the
same protection under the Act as the maintenance
employees; (6) whether both groups unconditionally
offered to return to work on June 20, 1975; (7) whether, on
and after June 20, 1975, Respondent refused to reinstate its
maintenance employees unless they accepted lower wages
and economic benefits; and (8) whether Respondent
unlawfully conditioned any return of janitors upon their
commitment that they would thereafter forgo the right to
strike for a period of 30 to 60 days.
B. Sequence of Events
Vice President Torgove of Respondent was the top
official assigned to the daily management of its affairs. He
conceded, as noted, that Gary Thomas perforce carried out
sole responsibility for hiring, firing, and establishing the
rates of pay at Respondent, as he had at Arapahoe.
In June 1974, on behalf of Arapahoe, Thomas signed a
collective-bargaining agreement covering the maintenance
employees. And, on July 1, 1974, he signed an agreement in
behalf of Respondent Albion to make health and welfare
payments to welfare funds and Respondent did so. Still
later, on or about October 22, 1974, Thomas, on behalf of
Albion, signed a collective-bargaining agreement covering
the various working conditions of the janitorial employees.
It has been noted that the last contract covering the
maintenance employees was executed in June 1974 at or
about the time Respondent assumed operations of the
building from Arapahoe. And this was executed by
Thomas on behalf of Arapahoe. But it is undisputed that
Respondent, through Thomas, honored and applied the
terms and provisions of this agreement from June 1974 to
June 1975.
Timely notice, on April 10, 1975, to reopen the contract
was given to Thomas by the Union with proposed contract
changes. Thomas did not respond to calls and Business
Manager Sam Crouch of the Union was told by Thomas
that he, Thomas, would not be handling the negotiations
and that someone from New York would be so engaged.
Crouch attempted to contact Torgove early in June,
pursuant to ostensible advice from the secretary of Thomas
that Torgove would be conducting negotiations. Torgove
ultimately referred Crouch to one Weinshienk, a general
attorney for Respondent. Contact was made and a meeting
was set up for June 11. Crouch was accompanied by
Steward Chuck Hoffman of Respondent. At this meeting,
Weinshienk stated that he regretted the appearance of the
union representatives as all he wanted to ascertain was the
legal responsibilities of Albion to the Union. Also, during
this meeting, Crouch referred Wemshienk to Mark Simons,
attorney for the Union. Weinshienk did call Simons on
June 11, and Simons was not in. They ultimately did have a
telephone conversation on June 12.
According to Simons, Weinshienk raised a question of
Respondent's bargaining obligations, and Simons, later
that day, telephoned two case citations to Weinshienk,
including that of N.L.R.B. v. Burns International Security
Services, Inc., 406 U.S. 272 (1972). They spoke again on
June 13 and Weinshienk, on being asked if he had received
the case citations, responded that he was not ready to
bargain until "these questions" were resolved. Simons
reminded Weinshienk that the maintenance unit had set a
strike for June 16, and the Union so struck.
Immediately after the onset of the strike, Weinshienk
called Simons to obtain the building keys ostensibly held
by the maintenance employees. Simons agreed to take care
of the matter and asked if Weinshienk was prepared to sit
down and bargain. Weinshienk responded that he was
preparing a petition to determine majority representation
but was willing to sit down and bargain. Simons pointed
out that the question of majority status could be readily
ascertained from the presence of all the maintenance
employees on the picket line. The janitorial employees
uniformly respected this picket line from the onset of the
strike.
1 But excluding office clerical and professional employees, guards, and find that, at all times material herein , the Union was such a representative of
supervisors. I find that this is a unit appropriate for the purposes of
collective bargaining within the meaning of Sec. 9(b) of the Act I further
these employees within the meaning of Sec. 9 (a) of the Act
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weinshienk did deny stating that he was preparing a
petition for an election, but admitted that he told Simons
that he had learned that one employee had informed
Torgove on Friday, June 13, that he was dissatisfied with
union representation. Simons asked if this meant a good-
faith doubt as to majority status. Weinshienk denied this,
but admittedly stated that Respondent had a doubt due to
the remarks of the one employee. I credit Simons here, as
elsewhere, in view of the patent inconsistency in Wein-
shienk's position, noting further, as he admitted, that he
was not conversant with labor law.
On June 16, Simons received an undated letter from
Weinshienk who contended, inter alia, that the Union had
erroneously concluded that Respondent was refusing to
bargain. A lengthy response from Simons on June 19
referred to the prior contracts as reflected above.
On Saturday, June 15, Torgove became aware of a leak
on the premises. He had two telephone talks that afternoon
with maintenance-mechanic and Shop Steward Charles
Hoffman. Torgove, according to Hoffman, made reference
to the strike scheduled for June 16 and asked that it be
postponed for 2 weeks. Torgove said he did not want to
talk with the Union, that Business Manager Sam Crouch,
of the Union, never worked for Respondent and that
Crouch could not fix the leak.
Hoffman called Crouch, called Torgove back, and said
that the strike was still on. Torgove responded that anyone
who picketed would never work for Respondent again, and
that if they lacked loyalty they would not work for him
again. Torgove admitted saying that Crouch was not his
employee and could not fix a leak. Torgove, as well, was
inexperienced in labor relations and his animosity toward
Crouch supports Hoffman's version. I so find.
It is noteworthy that these employees were initially not
replaced. Respondent hired an independent firm, Driver
Engineers, to perform the maintenance work, and an
independent janitorial firm was hired to do such work.
Simons telephoned Weinshienk on June 20 and a meeting
was set for June 26 and 27. In the telephone conversation,
Simons offered unconditionally to return both groups to
work. And, in a letter of June 20, Simons reminded
Weinshienk of his offer and referred to "an unconditional
offer to return to work" on behalf of all employees
represented by the Union.
There was no response to this, but it was discussed at the
June 27 meeting which was attended by Torgove for
Respondent. Attorney David Gorsuch also attended for
Respondent and said, according to Torgove, that the
maintenance employees would not be returned to work
until certain legal questions were answered. At a later
meeting on July 2, Torgove asked for a guarantee that the
returning janitors would stay on the job for 30 to 60 days.
On June 30, several of the janitors reported for work and
were advised that work schedules had to be established for
them; likewise, six of the janitors did call in on July 2 and
3. Crouch wrote to Torgove on July 3 to the effect that the
janitors had voted in favor of an immediate return to work
and on July 9 Torgove wrote Crouch seeking assurance
2 Manifestly, this is less than an unconditional offer to return strikers to
work
3 In at least one instance , Thomas, with the approval of Crouch, did
that the janitors would not walk off the job if they were
permitted to return to work. Later, on July 23, Torgove
wrote to the seven janitors and Crouch and stated that the
janitors could return to work if they would guarantee not
to walk off for 60 days.2
Respondent allegedly ascertained that its maintenance
employees were paid a higher scale than the prevailing
local rates and it never agreed to allow them to return to
work at the same wages and conditions of employment
prevailing at the start of the strike. Indeed, Torgove
admitted herein that he could not "afford" to rehire the
maintenance employees at their former wage rates.
Meetings for a new contract were held on June 27, July 2
and 8, and on August 1. On July 18, Respondent presented
an offer, and on August 8 it offered to return the strikers to
work if they accepted Respondent's "final offer." Both
offers contained provisions concerning benefits below
those in the contract which expired June 14 and the Union
rejected them. An offer by the Union on August 1 to
extend the expired contract for 1 year was rejected by
Respondent. It appears that approximately in mid-October
the janitors were given an unconditional offer of reinstate-
ment.
C. Analysis and Conclusions
As found, Respondent assumed the operation of the
building in June 1974 and, effective June 14, 1974,
transferred all maintenance and janitorial employees to its
payroll from that of Arapahoe. It continued precisely the
same business operation as Arapahoe and also transferred
Building Manager Gary Thomas to its payroll to function
as he had theretofore, viz, in charge of hiring, discharging,
and setting pay scales for the employees.
It is readily apparent, and I find, that Respondent was a
successor to Arapahoe, N.L.R.B. v. Burns, supra. See, also,
Pacific Hide & Fur Depot, Inc., 223 NLRB 1029 (1976), and
Miami Industrial Trucks, Inc. and Bobcat of Dayton, Inc.,
221 NLRB 1223 (1975), demonstrating that Respondent
had an obligation to recognize and bargain with the Union.
Moreover, Thomas, as the agent of Respondent, adopted
and continued the contract which he had negotiated for
Arapahoe with the Union covering the maintenance
employees from June 14, 1974, through June 14, 1975, the
full term of the contract. Respondent presented testimony
by Torgove that for this entire year he was unaware of the
existence of such a contract. Be that as it may, its duly
designated agent honored and applied same.3
The Union, in behalf of the maintenance employees,
gave Thomas timely notice of its desire to terminate the
contract and negotiate a new one . Crouch finally obtained
a meeting with Respondent's attorney, Weinshienk, on
June 11 when the latter took the position that he wanted
time to ascertain whether Respondent had any obligation
to bargain with the Union. Again, on June 12, Weinshienk
queued Attorney Simons as to what its obligations were in
the area of collective bargaining.
On or about June 15, Torgove came into the picture,
asked that strike action be delayed for 2 weeks and refused
work out a more favorable wage rate for an employee because of extra
services performed . In my judgment this does not detract from the fact that
the contract was honored and applied in every respect
BROOKS , INC. 1377
to discuss the matter with Businss Manager Crouch. It was
then that Torgove told Hoffman , in the unit , that striking
employees would not work again for Respondent. On June
16, after the onset of the strike , Weinshienk, as he
admitted , told Simons that because one employee had
expressed dissatisfaction with the Union, Respondent was
exploring the possibility of filing a petition for an election.
I find, in view of all of the foregoing, that at all times
prior to June 16, as well as thereafter, Respondent evaded
its obligations to deal with the Union and Crouch as the
representative of its employees in an appropriate unit and
this colored the strike of June 16. And, in any event, even
were this an economic strike, the record fully discloses that
the strikers were not replaced by permanent replacements.
Similarly, the sympathetic janitorial strikers enjoyed the
same status and , moreover, they too were not replaced by
permanent replacements.
On June 20, Simons, on behalf of the Union, made an
unconditional offer to return all strikers and sympathizers
to work and this was later documented. Respondent
thereafter evaded this, when Gorsuch, on June 27, replied
only that Respondent would like to have the janitors return
but that the maintenance workers would not return until
certain questions were resolved. More specifically, the
maintenance workers were not given an offer to return to
work except at a substantially lower rate of pay.
In fact, Respondent refused to take back the mainte-
nance workers while it subcontracted their work to an
independent third party. It further follows that the various
bargaining sessions were thereafter tainted because of
Respondent 's insistence that the maintenance workers
could return only at a lower rate of pay and that, contrary
to Respondent , there was not an impasse as of August 8.
As for the janitorial employees, Respondent refused to
take them back absent an unlawful commitment by them
that they would not strike for 60 days and, furthermore,
subcontracted their work to a third party. The latter as well
were not permanently replaced. I find that by the foregoing
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5), (3), and (1) of the Act. See
N.L.R.B. v. Band-Age, Inc., 534 F.2d 701 (C.A. 1, 1976). I
further find that, by stating that strikers would not be
permitted to return to work and that it would not negotiate
with Business Manager Crouch of the Union, Respondent
has engaged in conduct violative of Section 8(a)(1) of the
Act.
CONCLUSIONS OF LAW
1. Albion Corporation d/b/a Brooks, Inc., is an
employer within the meaning of Section 2(2) of the Act.
2. Local No. 1, International Union of Operating
Engineers , AFL-CIO , is a labor organization within the
meaning of Section 2 (5) of the Act.
3. All mechamcal-maintenance and building repair
employees and stationary engineers of Respondent's place
of business at Denver, but excluding office clerical
employees, guards, professional employees, and supervi-
sors, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times material herein , the Union was and now
is the majority representative of the employees in the
aforesaid bargaining unit within the meaning of Section
9(a) of the Act.
5. By refusing to recognize and bargain with the Union
as the representative of the employees in the above-
described appropriate unit , Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
6. By refusing to reemploy its striking maintenance
employees at the rate of pay they enjoyed prior to their
strike and its striking janitorial employees without a
commitment by them not to strike for 60 days, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
7. By the foregoing, by refusing to negotiate with the
business manager of the Union, and by stating that
employees who went on strike and/or honored the picket
line would not work for Respondent again, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
I shall recommend that Respondent offer its mainte-
nance employees who went on strike on June 16, 1975,
immediate and full reinstatement to their former positions
or, if these positions no longer exist , to substantially
equivalent positions , without prejudice to seniority or other
rights and privileges . See The Chase National Bank of the
City ofNew York, San Juan, Puerto Rico, Branch, 65 NLRB
827 (1946).
I shall further recommend that Respondent make its
maintenance employees whole for any loss of pay and
other benefits occasioned by Respondent 's unlawful refusal
to accept their unconditional offer to return to work on
June 20. In addition, I shall recommend that the janitorial
employees be made whole for any loss of earnings caused
by Respondent's unlawful refusal to accept their uncondi-
tional offer to return to work on June 20 until about the
middle of October 1975 , when they were given an
unconditional offer to return to work . Backpay and interest
are to be computed in the manner prescribed by the Board
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).4
Upon the basis of the foregoing findings of fact,
conclusions of law , and the entire record, and pursuant to
Section 10(c) of the Act , I hereby issue the following
recommended:
4 There is some evidence , not specific , that janitorial employee Earline probably late in June I deem this a matter to be worked out at the
Fletcher quit the employ of Respondent during the course of the strike and compliance stage of the case
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDERS
Respondent, Albion Corporation d/b/a Brooks, Inc.,
Denver, Colorado, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees that it will not permit
employees who go on strike to return to work.
(b) Announcing that it would not bargain with the
business manager of Local No. 1, International Union of
Operating Engineers, AFL-CIO.
(c) Refusing to reemploy its striking maintenance
employees unless they agreed to return to work at a rate of
pay below that they enjoyed at the time of their strike.
(d) Refusing to reemploy janitorial strikers unless they
agreed to forgo their right to strike for a period of at least
60 days after their return to work.
(e) In any manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
under Section 7 of the National Labor Relations Act,
except to the extent that a union-security clause is
permitted under Section 8(a)(3) thereof.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to the maintenance employees who went on
strike on June 16, 1975, immediate and full reinstatement
to their former positions or, if such positions no longer
exist, to substantially equivalent positions, without preju-
dice to seniority or other rights and privileges, and make
them whole for any loss of pay suffered by reason of the
discrimination against them in the manner provided above
in the section entitled "The Remedy" and make whole its
janitorial employees, as provided above, for any loss of
5 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herem shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.
earnings occasioned by Respondent's unlawful refusal to
accept their unconditional offer to return to work on June
20 until such date in October 1975 when they received such
an unconditional offer.
(b) Upon request, bargain collectively with Local No. 1,
International Union of Operating Engineers, AFL-CIO, as
the representative of its mechanical-maintenance and
building repair employees and stationary engineers em-
ployed at its Denver, Colorado, place of business, but
excluding office clerical employees, guards, professional
employees, and supervisors, and, if a contract is reached,
sign same.
(c) Preserve and, upon request, make available to the
Board and its agents for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to determine the amounts of backpay due under
the terms of this Order.
(d) Post at its place of business in Denver, Colorado,
copies of the notice attached hereto and marked "Appen-
dix" 6 Copies of said notice, on forms provided by the
Regional Director for Region 27, after being duly signed by
Respondent, shall be posted by it immediately upon receipt
thereof, and be maintained for a period of 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps it is taking to comply herewith.
6 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."