Canterbury Gardens

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 864 (N.L.R.B. 1978)

D [)(ISIONS OF NATIONAL LABOR RE.A'I()IONS BOARI)
Canterbury Gardens and Manchester Gardens. Inc.
and Local 32E, Service Employees International
Union, AFL-CIO. Cases 3-CA 8092 and 3 -CA
8093
September 29, 1978
DECISION AND ORDER
BY CHIAIRMAN FANNIN(; ANI) MIFMB1tRS JENKINS
ANI) PI.FN o.(
On July 10, 1978, Administrative Law Judge
George F. Mclnerny issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of' the
National Labor Relations Act, as amended,. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings. findings, and
conclusions of the Administrative I.aw Judge only to
the extent consistent herewith.
As more fully set forth in the Administrative Law
Judge's Decision, the facts reveal that on March 17,
1977.1 the Union demanded that bargaining com-
mence for the appropriate certified unit and requested
Respondent 2 to contact it to arrange a mutually satis-
factory date to commence negotiations. As found by
the Administrative law Judge, Respondent ignored
the Union's demand and request, and also ignored a
number of telephone messages from the Union's ne-
gotiator. Jacques Buitenkant, to the same effect. Fi-
nally. after Buitenkant enlisted the aid oft' Edward
Schwartz. the attorney who represented Respondent
in the underlying representation case, and also threat-
ened the filing of unfair labor practice charges it' Re-
spondent continued to refuse to meet, a negotiation
session was scheduled for June 20 at Schwartz' New
Jersey office.
At the appointed time on June 20. Buitenkant and
another union representative, Howard Hundgen. ar-
rived at Schwartz' office, Buitenkant and Hundgen
waited for over an hour in Schwartz' office. but Re-
spondent's representative, Sol Lublin, failed to ap-
pear. Accordingly. no substantive discussions took
place, although Buitenkant raised the possibility that
the parties could agree to include superintendents in
the unit. According to the credited testimony of
Schwartz, Buitenkant stated that the 1Union "would
inless otherwise noted, all diltes herein are in 1977.
In iew ot Ihe idnmission hby (Canterhur3 (Galrdenls and 1Manchester (iar
dens, Inc.. that they constitute a single, inlegrated husiness enterprise, we
shall refer to them collectivelx: as "Responden ."
like to have superintendents to be included, similar to
what we had in Hampton Oaks which is another unit
and which the Union is the bargaining agent for."
Later, Schwartz testified to a different version of the
same conversation. asserting that the Union claimed
it had represented the superintendents in the past and
that it stated "we would like to see whether we can't
continue to represent the superintendents again."
Schwartz then referred to the unit certification which
excluded the superintendents, to which Buitenkant al-
legedly replied "So what? We can agree to it. That
doesn't mean we can't have it in." In another version
of the conversation, Schwartz claimed that the Union
stated: "We can agree to anything. They were a
member of the Union befotre and I don't see why the
C('ompnay objects not including them now,. particu-
larly since Louie the superintendent was a member of
the Union before, and how can 'iou now take away
his benefits." In yet another version, Buitenkant al-
legedly stated: "So that's fine, but vou know we al-
waIVS represented the superintendents and that there's
no prohibition merely because the Board has ex-
cluded them, that we couldn't agree to include them."
At the conclusion of' the meeting, Buitenkant and
Schwartz agreed they would be in touch with each
other to arrange another meeting.
Thereafter, on June 22, Buitenkant sent a letter to
Schwartz indicating the Union's displeasure with the
failure of Ilublin to appear at the June 20 meeting,
and requesting that an "earls appointment" be ar-
ranged "so that the matter at hand may be finalized."
Despite some vague testimony concerning telephone
calls back and forth, no meeting was arranged. On
August 2, Buitenkant addressed a letter to Respon-
dent, directed to the attention of' Iulblin. requesting a
meeting and stating that if' Lublin fatiled to contact
the Union within 2 weeks the Union would file an
unfair labor practice charge against Respondent, al-
leging that it refused to bargain collectively in good
faitith with the Union. On August 23, after no reply
had been received, the Union filed the instant
charges. Schwartz then wrote Buitenkant on Septem-
ber 9, indicating that Respondent was willing to meet.
Finally, a meeting vwas arranged f'or October 28 at
Schwartz' office, which commenced as scheduled.
In analyzing the above facts, the Administrative
Law Judge apparently applied an erroneous legal
standard in concluding that the lnion's request for
conducting negotiations in a broader unit than that
certified relieved Respondent of its bargaining obliga-
tion, even though the Union did not insist on its re-
quest to the point of impasse. It is well settled that the
parties to a bargaining relationship may voluntarily
agree to modil'y the scope of a Board-certified bar-
gaining unit. Natlional 'rc.'h Fruit & I'egetable ( 'oin-
pany, 227 NL RB 2014 (1977): 1isfc/llalnieous Scrvic'e
238 NL.RB No. 116
864
CANTERBURY GARDENS
Workers, Drivers and Helpers, Local 42 7, International
Brotherhood of Teatnsters. Chaufle'urs. Warehoulsemen
and Helpers of America (Edward D. Sultan Co.. Ltd.),
223 NLRB 1342 (1976).1 Thus, the scope of an estab-
lished bargaining unit is a nonmandatory subject of
bargaining, Delbi-Tavylor Refining Ditvision, Hess Oil
and Chemical Corporation, 167 NLRB 115 (1967),
which either part) may propose changing so long as it
does not insist on its proposal to the point of impasse.
National Fresh Fruit & Vegetable Company, supra;
Shell Oil Company, 194 NLRB 988 (1972). Similarly.
a party may not insist on such a proposal as a condi-
tion precedent to entering negotiations. N.L.R.B. v.
Retail Clerks-. International 4ssociation, A FL /Safi,'wa
Storevj. 203 F.2d 165 (C.A. 9, 1953).
In the instant case, we agree with the Administra-
tive Law Judge's finding that the Union did not insist
on its demand to include superintendents within the
certified unit to the point of impasse or to the point
where it became a condition precedent to entering
negotiations. Although Schwartz testified to several
versions of the Union's demand, we do not believe
that the brief exchange of remarks in any of the ver-
sions amount to an unlawful. persistent demand by
the Union to the point of impasse or to the point of
becoming a condition precedent to continuing nego-
tiations. Rather, this brief exchange of remarks, oc-
curring only once during the 7-month period between
March 17 and October 28, shows nothing more than a
lawful proposal of a nonmandatory subject of bar-
gaining.
Our conclusion is buttressed by the fact that Re-
spondent did not offer any explanation to the Union
for its failure to engage in substantive discussions
prior to October 28. The complaint, as amended, al-
leges that Respondent unlawfully refused to bargain
with the Union between March 17 and October 28.
Respondent, in its answer, denies the allegation, but
raises no affirmative defense and does not explain the
reasons for its denial. Thus, at no time prior to the
hearing did Respondent attribute its refusal to bar-
gain to the Union's demand for the inclusion of su-
perintendents within the unit. Under these circum-
stances, we conclude that the Union's request to
modify the certified unit was not the real reason for
Respondent's refusal to bargain but was merely a pre-
text.
In summary, Respondent's entire course of con-
duct, including ignoring the Union's repeated letters
and telephone calls prior to the June 20 meeting, the
failure of Respondent's chief negotiator. Lublin, to
appear for the June 20 meeting after agreeing to be
present, Respondent's disregard of the Union's Au-
'Also see V L.R B *. 1 * r Dltiswon ./ Brg- ii arner (;orp, 356 L .S 342
1958)
gust 2 correspondence, and Respondent's failure to
inform the Union that the reason Respondent refused
to meet with it was the Union's position concerning
the inclusion of superintendents within the unit, con-
vinces us that Respondent failed to meet and confer
in good faith with the Union between March 17 and
October 28, and thereby violated Section 8(a)(5) and
( I) of the Act.
CONC(L.USIONS OF LAW
1. The Respondent, Canterbury Gardens and
Manchester Gardens, Inc., is a single employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union, Local 32E, Service Employees In-
ternational Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By refusing to bargain in good faith with the
Union between March 17, 1977, and October 28.
1977, Respondent has violated Section 8(a)(5) and (I)
of the Act.
4. The aforesaid unfair labor practice affects com-
merce within the meaning of Section 2(6) and (7) of
the Act.
THE RE1MEDY
Hlaving found that Respondent engaged in an un-
fair labor practice in violation of Section 8(a)(5) and
(1) of the Act, we shall order that Respondent cease
and desist therefrom and take certain affirmative ac-
tions designed to effectuate the policies of the Act.
Accordingly, we shall order Respondent to bargain in
good faith with the Union and shall extend the
Union's certification year by that period of time
equivalent to the period it unlawfully refused to bar-
gain with the Union. See Mar-Jac Poullr' Company,
Inc.. 136 NLRB 785 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Can-
terbury Gardens and Manchester Gardens, Inc.,
Poughkeepsie, New York, its officers, agents, succes-
sors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively in good faith
concerning wages, hours, and other terms and condi-
tions of employment with Local 32E, Service Em-
ployees International Union. AFL-CIO, as the exclu-
sive representative of all porters and maintenance
employees employed at Manchester Gardens, Inc.,
and Canterbury Gardens in the town of Poughkeep-
865
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sie, New York; excluding all office clerical employees,
seasonal employees and/or temporary employees,
guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the purposes of the Act:
(a) Bargain collectively in good faith concerning
wages, hours, and other terms and conditions of em-
ployment with Local 32E, Service Employees Inter-
national Union, AFL-CIO, as the exclusive represent-
ative of all porters and maintenance employees
employed at Manchester Gardens, Inc. and Canter-
bury Gardens in the Town of Poughkeepsie, New
York; excluding all office clerical employees, seasonal
employees and/or temporary employees, guards, and
supervisors as defined in the Act.
(b) Post at its facilities in Poughkeepsie, New
York, copies of the attached notice marked "Appen-
dix."4 Copies of said notice, on forms provided by the
Regional Director for Region 3, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FUR THER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
specifically found herein.
I In the event that this Order is enforced hy a judgment of a United States
(ourt of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board' shall read P'iosted Pursuant to a Judgment
of the United States Court of Appeals Entorcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF [HE
NAI'IONAI LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any such ac-
tivities.
In recognition of these rights, we hereby notify
our employees that:
WE WILL NOT refuse to bargain collectively in
good faith concerning wages, hours, and other
terms and conditions of employment with Local
32E, Service Employees International Union,
AFL-CIO, as the exclusive representative of all
porters and maintenance employees employed at
Manchester Gardens, Inc. and Canterbury Gar-
dens in the Twon of Poughkeepsie, New York;
excluding all office clerical employees, seasonal
employees and/or temporary employees, guards,
and supervisors as defined in the Act.
WE. WilL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed under
Section 7 of the Act.
WE Wtl.l. bargain collectively in good faith
concerning wages, hours, and other terms and
conditions of employment with Local 32E, Ser-
vice Employees International Union, AFL-CIO,
as the exclusive representative of employees in
the above-described unit.
CANFTRBURY GARDENS AND MAN( HESTER
GARD)ENS, IN(.
DECISION
SIAIAILMINI 01O TiE CASE
GIOR(;i F. M( INERNY, Administrative Law Judge: Both
of these cases were instituted by identical charges' filed by
Local 32E. Service Employees International Union. AFL-
CIO. hereinafter referred to as the Union, against Canter-
bury Gardens, Inc.. in Case 3-CA-8092, and Manchester
Gardens, Inc.. in Case 3-CA-8093. These employers will be
referred to herein as Respondents or the Company.
The issue is whether by failing to meet with the Union for
a period of time between March 17, 1977. and October 28,
1977, the Respondents violated Section 8(a)(5) of the Act.
As a result of these charges an order consolidating cases,
complaint and notice of hearing was issued by the Regional
Director for the Third Region on October 11, 1977. The
hearing was held before me on May 8, 1978, at Poughkeep-
sie, New York, at which time all parties were given full
opportunity to participate, to introduce relevant evidence.
to examine and cross-examine witnesses, and to argue oral-
t Ihe charge in (Case 3 ('A 8092. while naming Canterbury Gardens. Inc.
as the employer, inadvertently relers to Manchester Gardens. Inc.. in the
body of the charge. Since the complaint alleges, and Respondents' answer
admits, that the two corporations are a single, integrated business enterprise
and in the light of' my disposition of the matter, I do not regard this error as
significant
866
CANTERBURY GARDENS
ly. Briefs were filed by counsel for the General Counsel and
Respondents, which have been carefully considered.
Upon the entire record, particularly upon my observa-
tion of the witnesses and their demeanor. I make the follow-
ing:
FINDIN(iS OF FA( I
I. JIURISDIC(rION
The Respondents herein are New York corporations en-
gaged in the business of operating two apartment com-
plexes in Poughkeepsie, New York. Jurisdiction is not at
issue. I therefore find and conclude that Respondents are
employers within the meaning of Section 2(6) and (7) of the
Act.
I further find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. liIe AI.IEGED) tUNFAIR I.ABOR PRA( TI(tS
A. Background
There are references in the record to the fact that the
Union had historically represented employees, including su-
perintendents, at these same apartment complexes under a
predecessor employer. However, in a representation case
culminating in a certification dated December 3, 1976. the
Union was certified as the representative of porters and
maintenance employees but excluding superintendents em-
ployed by Respondents.
Despite this limitation of the unit, the Union apparently
continued to insist on the inclusion of superintendents until
at least March 17, 1977.2 On that date the Union's lawyer
wrote to Respondents confirming a telephone conversation
between himself and Sol Lublin.' an official of Respon-
dents. In this letter the lawyer, Jacques Buitenkant, out-
lined the proper unit and requested a meeting. There is no
dispute that this letter along with a number of telephone
messages from Buitenkant and Union Representative How-
ard Hundgen were ignored by Respondents.
On May 5. Buitenkant telephoned Edward Schwartz. an
attorney who had represented the Company in the repre-
sentation case and requested his assistance in getting nego-
tiations moving. Schwartz then wrote to Lublin and, refer-
ring to the telephone conversation, indicated to Lublin that
Buitenkant had properly defined the unit and had men-
tioned the filing of unfair labor practice charges. This letter
concluded with a hopeful "If I can help, please advise,"
which apparently worked, because Schwartz, now repre-
senting the Company, and Buitenkant, after some calling
back and forth, set up a meeting for June 20, 1977, at
Schwartz' office in East Orange, New Jersey.
B. The June 20 MVeeting
This meeting was described in the testimony of Edward
Schwartz, the Company's attorney and its only witness: by
Howard Hundgen, a representative of the Union: and in an
2 All dates are in 1977 unless otherwise indicated.
I.ublin is also referred to as "Lubin" in the record.
affidavit given on September 19. 1977, by Union Attorney
Jacques Buitenkant, who died sometime after October 28,
1977. The affidavit was received into evidence upon identi-
fication of Buitenkant's initials and signature by his secre-
tary. Calandra Photo, Inc., 151 NLRB 660, 671, fn. 29.
(1965).
All of the participants agreed that the meeting was sched-
uled to begin at 10 a.m., that Buitenkant and Hundgen
waited in Schwartz' reception room for at least an hour
awaiting the arrival of Sol Lublin. and that Lublin never
arrived.
At this point, the testimony of the two living participants
diverged sharply. Hundgen stated that after he and Buiten-
kant had been waiting for an hour in the outer office,
Schwartz came out and offered them coffee. He spoke to
Buitenkant about "old cases and general conversation." At
I 1: 15, according to Hundgen, he and Buitenkant walked to
the door of Schwartz' private office, where the lawyers
agreed that Lublin was not going to show up and that they
would contact each other about another meeting.
Schwartz testified4 that Lublin could not be present be-
cause of "an emergency that he had." The Respondents'
lawyer further testified that while the parties were waiting
for Lublin. Buitenkant stated that "the Union would like to
have superintendents to be included, similar to what we had
in Hampton Oaks, which is another unit and which the
Union is bargaining agent for." Schwartz recalled that the
union representatives were in his office that morning for
about an hour or an hour and a half. Of that period, he
stated that they actually spent 20 or 25 minutes with him.
On cross-examination Schwartz mentioned the offer of cof-
fee and enlarged on the conversation with Buitenkant.
quoting him as saying, "Well, we might as well, in the
meanwhile while we're waiting for Sol-here's the contract.
We would want the same kind of terms and conditions that
we had at Hampton Oaks, and at Hampton Oaks we repre-
sent the superintendent and in the past we represented the
superintendents here, and we would like to see whether we
can't continue to represent the superintendents again."
Schwartz then alluded to the unit certification, but Buiten-
kant replied. "So what? We can agree to it. That doesn't
mean we can't have it in."
Later in his testimony, Schwartz gave additional versions
of these statements, quoting Buitenkant at one point as say-
ing "We can agree to anything. They were a member of the
Union before and I don't see why the Company objects-
not including them now, particularly since Louie the super-
intendent was a member of the Union before, and how you
can now take away his benefits"; and then, still later, "So
that's fine, but you know we always represented the super-
intendents and that there's no prohibition merely because
the Board has excluded them, that we couldn't agree to
include them."
4 General Counsel urges that any testimony by Schwartz concerning two
exhibits offered by the latter be disregarded since he did not make copies for
the exhibit file nor did he furnish copies to the other parties, all as directed
by the Administrative Law Judge. I have noted that copies of these exhibits
are attached to Respondents' brief' but not In the fashion which I ordered.
Thus. I disregard these exhibits, but the testimon) in the record will be
considered. even when referring to the exhibits. These were available at this
hearing, were used in cross-examination, and referral to testimony concern-
ing them is not prejudicial to the General Counsel.
867
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
It is thus apparent that there is a clear-cut question of
credibility here, and one which forms the central issue in
the case.
In order to aid in the resolution of this question, I must
consider General Counsel's argument that the affidavit of
Buitenkant "should be afforded great weight" in resolving
credibility issues. In accordance with applicable precedents,
I have carefully scrutinized Buitenkant's statement in order
to determine the weight it should be given. Baker Manufac-
turing Co., Inc., 218 NLRB 1295 (1975), affd. 564 F.2d 95,
97 (C.A. 5, 1977); Sunbeam Corporation, 184 NLRB 950,
956 (1970). 1 find in accordance with General Counsel's
able and well-documented argument that the statements in
the affidavit are positive, unequivocal, and, in certain re-
spects, substantially corroborated. American Guild of Vari-
ety Artists, AFL CIO, 163 NLRB 457, 464 (1967); West
Texas Utilities Company, Inc., 94 NLRB 1638, 1639 (1951);
The Linde Air Products Company, 86 NLRB 1333. 1336 37
(1949). The problem is that none of the instances of cor-
roboration cited by the General Counsel deal with the sub-
stance of the June 20 meeting. The following excerpt from
the affidavit is Buitenkant's description of the substance of
the meeting:
On June 20. 1977, Howard Hundgen, Business Respre-
sentative and I appeared at Schwartz's office at 10 a.m.
We were seated in an area outside Schwartz's office.
Schwartz said we'll wait until Lublin shows up. We
waited about an hour with no word from Lublin before
Schwartz began to try to reach Lublin by phone.
Schwartz was unsuccessful in trying reach Lublin or
find out where he was. We waited until 11:30 a.m.
Before we left Schwartz said he'd contact me after he
got ahold [sic] of Lublin.
Now certain features of this statement are corroborated.
All parties agreed that Hundgen and Buitenkant arrived at
Schwartz's office at 10 a.m., that the union representatives
waited in an outer office for an hour, and tat Lublin never
arrived. On other portions there are minor differences.
Schwartz and Buitenkant agreed that they were there for an
hour and a half; or until 11:30 a.m. Hundgen recalled that
they left at 11:15. Hundgen and Schwartz remembered the
offer of coffee. Buitenkant did not mention it. Buitenkant
stated that Schwartz made telephone calls trying to locate
Lublin. Neither of the others mentioned the calls. On the
most significant issue of all, the question of the contract.
and particularly the unit problem, Schwartz said it was dis-
cussed: Hundgen denied that it was discussed: and Buiten-
kant said nothing. Indeed, he said nothing about Hundgen's
comment that the two lawyers talked about "old cases and
general conversation." The fact that Buitenkant said noth-
ing in the affidavit either confirming or denying the alleged
comments concerning the unit placement of the superinten-
dents, coupled with the fact that both Schwartz and Hund-
gen agreed that there was some conversation between Bui-
tenkant and Schwartz, neither helps nor hinders either
party and leaves me with the task of determining the issue
based on the relative credibility of the two witnesses who
did testify concerning the issue.
The term relative credibility is used purposely since I had
problems with the credibility of both Schwartz and Hund-
gen. Both are interested witnesses with professional assets
or liabilities dependent on the outcome of this litigation. To
be sure, this case may not be critical in the professional
careers of either. Presumabl\y Schwartz has other clients
and Hundgen has other units to serve, but they are inter-
ested nonetheless.
Schwartz' testimony tended to be meandering and some-
what disjointed, delivered in narrative form since he was.
while testifying, both witness and attorney. His memory,
particularly with respect to dates and telephone conversa-
tions dealing with meetings, was wanting. But he did testify
concerning the two meetings on June 20 and October 28 in
a manner that impressed me as candid and forthright, hazy
in details but consistent with respect to substance. For ex-
ample, his recollection of Buitenkant's remarks at the June
20 meeting concerning the unit is slightly different in each
recounting. but it is clear that Buitenkant. an experienced
labor lawyer, was aware of the Board's certification and its
limits, and also aware that the parties can modify the
Board's decisions by their own agreement. I hese discrepan-
cies do not persuade me that Schwartz is not truthfully re-
porting the substance of what was said.
Hundgen, on the other hand, did not impress me as a
credible witness with respect to this critical area for the
following reasons:
(1) His demeanor was defensive and evasive, particularly
on cross-examination.
(2) His testimony on the reasons for his walkout from the
October 28 meeting was shifting and unreliable as well as
inherently incredible. He testified on direct examination
that he became "annoyed" because Lublin denied his re-
quest for foul weather gear for the employees. On cross-
examination he denied having been angry and stated that
the reason he left was that he "just felt bad." His testimony
in this regard is shifting and evasive. Further, when asked
on cross-examination whether he had discussed his actions
with Buitenkant afterwards, he said "no." This last is pa-
tently incredible. In addition, this whole incident regarding
the foul-weather gear seems to me to be outside the range of
probability. On October 28 the parties had finallys met after
long delays and were going over the contract item by item.
Buitenkant's notes on a printed contract form are in evi-
dence, and Hundgen admits that the parties were going
over the form item by item on that date. Hundgen further
admitted that the contract says nothing about rain gear.
Thus, Hundgen's statement that he walked out of this pre-
liminary meeting. where the parties were dealing broadly
with items in the printed form, in annoyance over an item
which was not even on the form strains my credulity to the
breaking point.'
(3) His testimony concerning the conversations at the
June 20 meeting were evasive and not in accord with the
inherent probabilities of the situation. When questioned
about what Buitenkant and Schwartz said to each other,
Hundgen mentioned "old cases and general conversation"
and, in response to General Counsel's question, further
' I decline to draw any adverse inferences against Respondents Irom the
fact that Lublin did not testify. Schwartz testified that L.ublin was in his
office at the Company's location in Poughkeepsie at the time of the meeting
Iloweser he was just as available to the (General Counsel as he was to Re-
spondents If the parties were willing to leave the record in this condition. I
am willing to decide the case on the record before me.
868
CANTERBURY GARDENS
stated that there was no discussion of substantive matters of
contract negotiations. Later, however. Hundgen admitted
that he did not recall whether Buitenkant handed Schwartz
a copy of the contract.
This version of what transpired, even apart from my find-
ing as to Hundgen's credibility, exceeds the bounds of logic
and probability. Here was a situation where after many
delays the parties were finally meeting. The lawyers were
experienced labor lawyers as well as long-time friends. Bui-
tenkant had suffered from stomach trouble for a long time
and "bad arthritis" during this period. He had undertaken a
trip from his office in the Bronx, New York, to East Orange,
New Jersey. to keep this appointment. He then waited for
an hour or more for the Company's representative to show
up. His affidavit shows that he and Hundgen waited for
"about an hour," then Schwartz tried to contact Lublin.
The union representatives left at 11:30 a.m. In all these
circumstances it is improbable and illogical that Buitenkant
did not give Schwartz a copy of the form contract at that
time and, further, that they did not discuss the unit question
which, by admission of the General Counsel, existed at least
up to March 17, 1977. The recognition clause is the first
clause of the printed contract. As printed, it does not specif-
ically define any unit, and the unit question, not concerned
with wages, hours, or working conditions, is one which
Schwartz. as legal counsel, could discuss with the Union's
lawyer even in the absence of the former's client.
For these reasons, therefore, I have discredited Hund-
gen's testimony concerning the June 20 meeting (as well as
the October 28 meeting). and I credit the substance of
Schwartz' testimony concerning the June 20 meeting. Ac-
cordingly, I find that at the June 20 meeting Buitenkant
gave Schwartz a copy of the printed contract and that he
had a conversation with Schwartz wherein he reiterated
that the Union wanted the superintendents in the unit de-
spite the Board's determination to the contrary.
C. The Events Between June 20 and October 28
At the conclusion of the June 20 meeting the lawyers
agreed that they would be in touch with each other to ar-
range another meeting. Buitenkant, however, documented
his view of the situation by sending a letter to Schwartz
citing the failure of Lublin to attend the June 20 meeting
and requesting an early appointment. There was testimony
that there were telephone calls and telephone messages
back and forth, but no meeting was arranged up to August
2, 1977. On that date Buitenkant addressed a letter to the
Company requesting a meeting and advising the Company
that if a meeting was not arranged within two weeks, unfair
labor practice charges would be filed against the Company.6
No reply to this letter was forthcoming, and on August
23, 1977. the charges in the instant case were filed. The
matter apparently was turned over to Schwartz by the
Company, and on September 9 he wrote to Buitenkant ex-
pressing the willingness of the Company to meet and re-
quested that Buitenkant contact him to set up a meeting.
After another series of telephone calls and messages, a
meeting was set up in Schwartz' office on October 28. 1977.
6 For some reason. Schwartz was not advised of this transmittal.
D. The October 28 Meeting
While the complaint in this matter alleges that Respon-
dent unlawfully refused to bargain from March 17, 1977, to
the present time, General Counsel at the hearing modified
this allegation by admitting that from October 28, 1977,
onward, the Company had been bargaining. and from that
date forward Respondents [have] indicated a willingness to
meet and negotiate with the Union." It would appear from
this that the events of October 28, at which time the Com-
pany was admittedly bargaining with the Union, are not
really relevant to the allegations of the complaint.
General Counsel maintains that evidence of what oc-
curred at this meeting will serve to illuminate Buitenkant's
state of mind, not only on October 28 but from March 17
forward, respecting the composition of the unit in this case.
I do not agree with this contention if only because the testi-
mony on the October 28 meeting reveals nothing concern-
ing Buitenkant's attitude about anything or any time prior
to the meeting itself.
Therefore, since there is no real allegation that the Octo-
ber 28 meeting was a part of a continuing violation of Sec-
tion 8(a)(5), I do not regard the meeting as relevant to the
allegations of the complaint, except insofar as I have con-
sidered the events of that meeting in arriving at the credibil-
ity resolutions in paragraph B, above.'
E. Conclusions
Since I have found that the Union at the June 20. 1977,
meeting reiterated its prior demand for bargaining in a unit
broader than that certified by the Board on December 3.
1976, 1 find that the Union was demanding the inclusion
within a collective-bargaining agreement of an item which
is a nonmandatory subject of bargaining. While there is no
evidence in this case that the Union insisted on this demand
to the point of impasse,' I conclude that because the Union
I General (Counsel urges that Buitenkant's letters of March 17 and August
12, wherein he describes the bargaining unit in conformity with the Board's
certification, show that he was "seeking bargaining for the proper unit." I
disagree. What these letters show me is that Buitenkant. a careful and expe-
nenced lawyer. is putting nothing in writing which would later redound to
his client's disadvantage in the event litigation on the matter should be nec-
essary. This same prudence is shown in his letter of June 22, 1977, document-
ing Lublin's failure to appear at the June 20 meeting. Buitenkant's true
attitude is demonstrated in Schwartz' credited testimony describing the June
20 meeting
Further. General Counsel points to Buitenkant's annotations on his copy
of the contract made at the October 28 meeting as indicating the Lnion's
position at that meeting. On the contrary, it appears to me that the annota-
tions made by Buitenkant at the October 28 meeting reflect the responses of
Respondents to the proposals made on the printed form For example it
would be illogical for Buitenkant to note an "OK" or "NG" next to propos-
als made by himself if. in fact he were not noting the response of the Com-
pany to those proposals. It would be absurd to siew as the Urnon's proposal
an annotation which reads "right to reject employees we sent w/o going to
arbitration" opposite paragraphs (e) and (f) of the contract. Thus the anno-
tation "as per certification" opposite paragraph (a) of the contract would
indicate that that position was being taken by Respondent. and, as such.
would justify the inference, which I draw. that even on October 28 the U:nion
was still insisting on inclusion of the superintendents in the bargaining unit.
and the annotation refers to the Compan)'s answer to that demand
N. L R. B v. W'ster Division of Borg- irner Corp, 356 .S. 342 ( 1958)
Steere Brnadcasting Corporartion 158 NLt RB 487. 506 (1966h)
869
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insisted on conducting negotiations on a basis broader than
the certified bargaining unit, the employer had no statutory
obligation to bargain in the face of such a demand.' The
fact that the Union's attorney wrote two letters. on March
17 and August 2. 1977. describing the unit correctly does
not dissuade me from this conclusion, nor does this circum-
stance impel me to a different conclusion. The letters them-
selves do not demand bargaining in the appropriate unit
but merely include references to the Board's certification in
order to introduce the subject matter of the letters to the
addressees. Thus, the Employer did not violate the Act by
its failure to meet with the Union in the periods from
March 17 to June 20 and from June 20 to October 28. Nor
did it violate the law by its failure to send a representative
to the June 20 meeting.
9 Charles T Douds. Reg. Div. int Iernational Longshoremen's Avsociation
INew York Shipping Assn.l, 241 F.2d 278 (C.A. 2, 1957): N L.R.B. v. Retail
Clerks International Association, AFL C10, and Retail Clerks Union l.ocal
CON(I USIONS oi. LAW
I. At all times relevant hereto, the Companies were em-
ployers engaged in commerce in a business effecting com-
merce, and the Union was a labor organization, all within
the meaning of Section 2(2), (5), (6), and (7) of the Act.
2. The actions of the Companies alleged in the complaint
affected interstate commerce within the meaning of the Act.
3. The Companies did not violate Section 8(a)(l) and (5)
of the Act by failing to meet with the Union in the period
from March 17. 1977, to October 28, 1977. and by failing to
have their authorized representative attend the meeting on
June 20, 1977.
[Recommended Order for dismissal ommitted from pub-
lication.]
648, /Sajewayv Stores], 203 F.2d 165 (C .A. 9, 1953); 1. ('10 Joint Vegott-
ating ('ommitteejor Phelps Dodge and its agents, etal (Phelps Dodge Corpora-
tion), 184 NLRB 976 (1970)1.
870