Fairfield Tower Condominium Assn.

National Labor Relations Board - Board Decisions

Dec 8, 2004

343 N.L.R.B. 923 (N.L.R.B. 2004)

FAIRFIELD TOWER CONDOMINIUM ASSN.
343 NLRB No. 101
923
Fairfield Tower Condominium Association & Fair-
field Presidential Management Corp., Joint Em-
ployers and Local 32B-32J, Service Employees
International Union, AFL–CIO. Case 29–CA–
24243
December 8, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND MEISBURG
On September 24, 2002, Administrative Law Judge
Howard Edelman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and a
reply brief in further support of its exceptions. The
Charging Party filed an exception, and an answering
brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified, and to adopt the recommended Order as modi-
fied and set forth in full below.
The judge found that the Respondent violated Sections
8(a)(1) and (3) by failing to reinstate striking employees
upon their unconditional offer to return to work. He also
found that the Respondent violated Section 8(a)(5) and (1)
by unilaterally entering into a subcontracting agreement
with another employer to provide services previously per-
formed by striking employees. The Respondent filed ex-
ceptions to these findings. We find no merit in the Re-

1 In its exceptions, the Respondent contends that the judge commit-
ted prejudicial error by issuing a decision containing verbatim portions
of the Charging Party’s and General Counsel’s posthearing briefs. The
Board has stressed that it does not condone a judge’s extensive use of
partisan briefs. Regency Electronics, 276 NLRB 4 fn. 2 (1985); Wash-
ington Beef Producers, Inc., 264 NLRB 1163 fn. 2 (1982), enfd. mem.
735 F.2d 1371 (9th Cir. 1984). However, the Board has repeatedly
found that where a judge has carefully reviewed the record and has
determined that one of the briefs submitted to the judge fully and accu-
rately discusses the case, it is permissible to rely on portions of that
brief in the judge’s decision; such reliance is not per se prejudicial and
does not otherwise constitute reversible error. Waterbury Hotel Man-
agement LLC, 333 NLRB 482 (2001), enfd. 314 F.3d 645, (D.C. Cir.
2003); Washington Beef Producers, Inc., supra, 264 at 1163 fn. 2, cit-
ing Shield-Pacific, Ltd. & West Hawaii Concrete, Ltd., 245 NLRB 409,
410 fn. 2 (1979), enfd. mem. 647 F.2d 172 (9th Cir. 1981). The record
in this case reveals that the judge relied on substantial portions of both
the Charging Party’s and General Counsel’s briefs, but did not rely
entirely on either. The judge’s decision is comprehensive in its consid-
eration of all of the relevant evidence and legal issues, and the Board
itself has independently reviewed the entire record in consideration of
the exceptions and briefs. Although we continue to discourage exten-
sive use of partisan briefs, we conclude that the judge’s reliance here on
the Charging Party’s and General Counsel’s briefs does not constitute
reversible error.
spondent’s exceptions, and adopt the judge’s findings and
conclusions for the reasons set forth in this decision.
I. FACTS
The Respondent and the Union have had a longstand-
ing bargaining relationship covering superintendents,
maintenance employees and porters working at the Re-
spondent’s apartment complex consisting of 19 build-
ings. The porters are the least skilled employees in the
unit; their duties include collecting garbage, cleaning
floors, washing windows, and shoveling snow. The par-
ties’ most recent collective-bargaining agreement was
effective from April 1997 to April 20, 2000.2 At the time
of the expiration of that contract, there were 2 superin-
tendents, 10 maintenance employees, and 19 porters, a
total of 31 unit members.
The parties began to bargain for a successor agreement
at the end of 2000. The Union submitted its bargaining
proposals to the Respondent at a bargaining session on
November 16, 2000. The Respondent submitted its
counterproposals, including a management-rights clause
containing a subcontracting provision, to the Union on
December 22, 2000. The Respondent’s subcontracting
proposal provided that Respondent had “the absolute
right to subcontract out to agencies or others any of its
work as it, in its sole discretion, deems necessary.” The
prior collective-bargaining agreement did not include this
language in its management-rights clause. The Union
proposed that there be no change in the existing man-
agement-rights provision.
After the December 22, 2000 bargaining session, the
Respondent began hearing rumors that the unit employ-
ees might go on strike. Between late December 2000,
and early January 2001,3 the Respondent contacted three
or four independent contractors to discuss coverage of
the porters’ work if they went on strike. According to
the Respondent, only one of the contractors, “Mr.
Klean,” expressed an interest in performing the work.
On January 10, the Respondent met with Mr. Klean to
discuss the potential job.
The Respondent and the Union engaged in a final bar-
gaining session on February 21. There was no discussion
of subcontracting at that session or any of the previous
bargaining sessions. Shortly after the beginning of the
February 21 meeting, the union representatives convened
separately, and returned to the meeting announcing that
they were calling a strike. The bargaining session imme-

2 We correct an inadvertent error in the judge’s decision stating that
the collective-bargaining agreement expired on April 20, 2001, instead
of April 20, 2000. The Charging Party submitted a technical exception
to this finding. The record evidence confirms that the agreement ex-
pired on April 20, 2000.
3 All dates hereafter are 2001, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD924
diately concluded. The bargaining unit, including 19 por-
ters, began an economic strike that morning.
Later that day, the Respondent signed a contract with
Mr. Klean to provide 19 employees to perform unit work
at the Respondent’s facility.4 Under the terms of the
contract, Mr. Klean was to provide janitorial services for
a period of 1 year, renewable from year to year. The
Respondent had a right to cancel the contract only if Mr.
Klean’s services were unsatisfactory, and with a 90-day
notice. Mr. Klean drafted the contract, and the Respon-
dent signed it as written, without discussion. There is no
evidence that Mr. Klean insisted on the 1-year term or
any other provision of the contract. Pursuant to the
agreement, Mr. Klean began performing porter services
for the Respondent on February 21.
By letter dated February 27, the Respondent informed
the Union that it was “canceling” its previous collective-
bargaining agreement with the Union (which had expired
on April 20, 2000), and that its December 22, 2000 coun-
terproposal was its last and final offer.
On May 7, the Union made an unconditional offer to
return to work on behalf of the bargaining unit employ-
ees. In a May 8 letter to the Union, the Respondent ac-
knowledged receipt of the offer, but informed the Union
that all striking employees except one (a superintendent)
had been permanently replaced.
By letter dated February 14, 2002, the Respondent ad-
vised the Union that it was willing to accept the Union’s
previous unconditional offer to return to work, and to
reinstate striking porters effective February 21, 2002.5
The letter also asserted that the Respondent was accept-
ing the Union’s offer to return because its contract with
Mr. Klean was scheduled to expire on February 20, 2002.
Fifteen out of the 19 striking porters returned to work on
February 21, 2002.
II. ANALYSIS
The judge found that the Respondent violated Section
8(a)(1) and (3) by refusing to reinstate the striking em-
ployees who had unconditionally offered to return to
work, and that it “derivatively” violated Section 8(a)(5)
when it unilaterally implemented the subcontract with
Mr. Klean. In exceptions, the Respondent contends that:
(a) it had a legitimate and substantial business justifica-
tion for entering into the contract with Mr. Klean, i.e.,
the exigent need to collect trash and, thus, maintain
health and safety during the strike; (b) the contract was

4 Work to be performed under the contract included only the work
that had been performed by the porters, and not the work of the superin-
tendents or maintenance employees in the unit.
5 The letter specified that if any of the porters did not return to duty
on February 21, 2002, the Respondent would conclude that those indi-
viduals were declining to return to work.
effective for 1 year and, thus, it legitimately could not
offer to reinstate strikers during the contract term; and (c)
that it was privileged to subcontract the unit work, be-
cause the parties had bargained to impasse on that issue.
We reject the Respondent’s exceptions.
A. The 8(a)(1) and (3) Violation
An employer violates Section 8(a)(1) and (3) if it fails
to immediately reinstate striking workers on their uncon-
ditional offer to return to work, unless the employer can
establish a “legitimate and substantial business justifica-
tion” for its failure to do so.6 The employer bears the
burden of proving the existence of such a legitimate and
substantial business justification.7
An employer may take legitimate measures to maintain
operations during a strike—including hiring permanent
or temporary replacements, or temporarily subcontract-
ing out performance of unit work—without the necessity
of showing a business justification. However, before an
employer may lawfully enter into a permanent subcon-
tract to replace strikers, it must establish a valid business
justification.8
The judge found that the Respondent’s contract with
Mr. Klean was a permanent subcontract based on the
Respondent’s admission in a June 27, 2001 letter from its
counsel to the Board’s Region 29. The Respondent did
not file a specific exception to this finding. We adopt the
judge that this was a permanent subcontract, relying ad-
ditionally on the fact that the term of the contract was
unrelated to, and extended beyond, the duration of the
strike.9
We find, in agreement with the judge, that the Respon-
dent failed to establish a legitimate business justification
for entering into a permanent contract with Mr. Klean.
The judge found that the Respondent entered into the
contract as drafted by Mr. Klean without attempting to
negotiate terms consistent with the lawful measures
available for maintaining operations during the strike.
Accordingly, contrary to the Respondent’s claim, the
judge found no evidence that Mr. Klean “insisted” on the
contract’s terms. Further, the judge reasonably found it

6 NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967); Cape-
horn Industry, Inc., 336 NLRB 364, 365 (2001).
7 NLRB v. Great Dane Trailers, 388 U.S. 26, 34 (1967); Capehorn
Industry, 336 NLRB at 365.
8 Land-Air Delivery, 286 NLRB 1131 (1987), enfd. 862 F.2d 354
(D.C. Cir. 1988), cert. denied 493 U.S. 810 (1989); Capehorn Industry,
336 NLRB at 366–367. Compare Elliott River Tours, Inc., 246 NLRB
935 (1979) (2-year temporary contract to perform work of strikers
justified in view of contractor’s demand for contract term, highly
skilled, seasonal nature of work, and other unique aspects of em-
ployer’s business).
9 Land-Air Delivery, 286 NLRB at 1132 fn. 8; Capehorn Industry,
336 NLRB at 367.
FAIRFIELD TOWER CONDOMINIUM ASSN. 925
“incredible that Respondent would not have been [able]
to find, had it tried, a ready supply of temporary re-
placements,” as porters are “non-skilled, low-wage
workers.” Moreover, the Respondent failed to explain
why it did not use maintenance employees, “a supply of
which, [Respondent’s supervisor] Moerman admitted, he
had ready access to,” to remove refuse during the strike.
Because the Respondent has failed to come forward
with evidence of a legitimate motive for subcontracting
the work of the striking employees for a term extending
beyond the duration of the strike, we need not decide the
degree to which the subcontracting of unit work might
have affected employee rights. The Respondent simply
did not meet its burden to establish a legitimate business
justification. Accordingly, we do not rely on the judge’s
analysis and finding that the Respondent’s conduct was
“inherently destructive” of employee rights as described
in NLRB v. Great Dane Trailers.10
Consequently, we affirm the judge’s conclusion that
the Respondent violated Section 8(a)(3) and (1) by fail-
ing to immediately reinstate the striking employees on
their unconditional offer to return to work.11
B. The 8(a)(5) and (1) Violation
It is undisputed that the Respondent entered into, and
implemented, the contract with Mr. Klean without noti-
fying or bargaining with the Union.
In general, an employer may lawfully make unilateral
changes in terms and conditions of employment under
negotiation only if the parties have bargained to impasse
and the changes are reasonably comprehended within the
employer’s pre-impasse proposals.12 Otherwise, such
changes, if made without proper notification and bargain-
ing with the union, violate Section 8(a)(5) and (1).13
The Respondent contends that it was privileged to en-
ter into its subcontract with Mr. Klean because its pre-
impasse collective-bargaining proposals included a pro-
posal permitting it to unilaterally subcontract, and the
parties bargained to impasse. The judge did not decide
whether impasse was reached. Rather, he found that,
assuming impasse occurred, the subcontracting provision

10 388 U.S. at 26.
11 We shall not order the Respondent to offer reinstatement to the
strikers because, as stated above, the Respondent has already extended
offers of reinstatement.
12 NLRB v. Katz, 369 U.S. 736, 746–747 (1962); Taft Broadcasting
Co., 163 NLRB 475 (1964), rev. denied sub nom. Television Artists
AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968).
13 First National Maintenance Corp. v. NLRB, 452 U.S. 666, 687
(1981); Land-Air Delivery, supra, 286 NLRB at 1132; American Cy-
anamid Co., 235 NLRB 1316, 1323 (1978), enfd. 592 F.2d 356 (7th
Cir. 1979).
was unlawful under the standard set by the Board in
McClatchy Newspapers.14
We find, contrary to the Respondent’s contention, that
the parties had not reached an impasse in negotiations
and, thus, the Respondent was not privileged to contract
out the unit work. Accordingly, we need not reach the
issue whether, under McClatchy Newspapers, the Re-
spondent’s implementation of its management-rights/
subcontracting provision comes within an exception to
the Board’s implementation-on-impasse rule.
Neither do we believe this violation of 8(a)(5) and (1)
can be found “derivatively,” as did the judge of the
8(a)(3) violation. Rather, the 8(a)(5) violation can be
established independently because we cannot find the
existence of impasse on the basis of the evidence here.
The entire record of the parties’ negotiations consists of
the following: The Union submitted its initial bargaining
proposals (maintaining the existing management-rights
clause, which did not address subcontracting) in Novem-
ber 2000. The Respondent, in December 2000, submit-
ted its counterproposals adding a subcontracting provi-
sion to the management-rights clause. On February 21,
the parties met briefly, without engaging in extensive
negotiations, and ceased to meet when the Union an-
nounced the strike. The Respondent informed the Union
on February 27 that its December 2000 counterproposal
was its “last and final offer.” The parties stipulated that
they never discussed the Respondent’s subcontracting
proposal during their collective-bargaining negotiations.
And there is no evidence that either party expressed to
the other the opinion that they were at impasse.
Consequently, we find that the Respondent violated
Section 8(a)(5) and (1) of the Act.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s Conclusion
of Law 4.
“4. Since May 8, 2001, the Respondent has failed and
refused to reinstate the economic strikers of the porter
classification in the collective-bargaining unit because
they joined, supported or assisted the Union, and in order
to discourage them from engaging in such activities or
other concerted activities in violation of Section 8(a)(1)
and (3) of the Act.”
2. Add the following as Conclusion of Law 5.
“5. From February 21, 2001, through February 20,
2002, the Respondent has unilaterally contracted out the
work performed by unit employees in the porter classifi-
cation, without notifying or bargaining with the Union, in
violation of Section 8(a)(1) and (5) of the Act.”

14 321 NLRB 1386 (1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD926
ORDER
The National Labor Relations Board adopts orders that
the Respondent, Fairfield Tower Condominium Associa-
tion & Fairfield Presidential Corp., Joint Employers,
Brooklyn, New York, their officers, agents, successors,
assigns, shall
1. Cease and desist from
(a) Failing and refusing to reinstate employees in the
following unit who were engaged in a lawful economic
strike upon their unconditional offer to return to work:
All full-time and regular part-time superintendents,
maintenance employees and porters employed by Re-
spondent Fairfield at its 1019 Van Siclen Avenue,
Brooklyn, New York facility, but excluding all other
employees and supervisors as defined in Section 2(11)
of the Act.
(b) Unilaterally entering into an agreement to contract
out the work of the unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole, with interest, the striking employees
unlawfully refused reinstatement upon their uncondi-
tional offer to return to work for any loss of earnings and
other benefits suffered as a result of the discrimination
against them.
(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Within 14 days after service by the Region, post at
the facility set forth above copies of the attached notice
marked “Appendix.”15 Copies of the notice, on forms
provided by the Regional Director for Region 29, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees and members are customarily posted. Rea-

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at any time since February 22, 2001.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to reinstate unit employees who
were engaged in a lawful economic strike upon their un-
conditional offer to return to work.
WE WILL NOT fail and refuse to bargain collectively
with Local 32B-32J, Service Employees International
Union by unilaterally contracting out unit work, or oth-
erwise unilaterally changing wages, hours, and other
terms and conditions of employment of employees in the
following bargaining unit:
All full-time and regular part-time superintendents,
maintenance employees and porters employed by Re-
spondent Fairfield Tower Condominium Association at
its 1019 Van Siclen Avenue, Brooklyn, New York fa-
cility, but excluding all other employees and supervi-
sors as defined in Section 2(11) of the Act.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
FAIRFIELD TOWER CONDOMINIUM ASSN. 927
WE WILL make whole the striking employees we
unlawfully refused to reinstate upon their unconditional
offer to return to work for any loss of earnings and other
benefits suffered as a result of the discrimination against
them.
FAIRFIELD TOWER CONDOMINIUM ASSOCIA-
TION & FAIRFIELD PRESIDENTIAL MANAGE-
MENT CORP., JOINT EMPLOYERS
James P. Kearns, Esq., for the General Counsel.
David Lew Esq. (Peckar & Abramson, PC), for the Respondent.
Judith I. Padow, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on May 1, 2002, in Brooklyn, New York.
On May 14, 2001, Local 32B-32J, Service Employees Inter-
national Union, AFL–CIO (the Union), filed an unfair labor
practice charge in Case 29–CA–24243, which alleged Fairfield
Tower Condominium Association and Fairfield Presidential
Management Corp., as joint employers (Respondent), violated
Section 8(a)(1), (3), and (5) of the Act. The Union amended its
charge on May 24, 2001.
On November 27, 2001, the Regional Director issued a con-
solidated complaint and notice of hearing in Cases 29–CA–
24243, 29–CA–24327, and 29–CA–24561, alleging that Re-
spondent violated Section 8(a)(1), (3) and (5) of the Act. On
April 24, 2002, the Regional Director approved a settlement
agreement in Cases 29–CA–24327 and 29–CA–24561. On
April 23, 2002, the Regional Director issued an order severing
cases and amending complaint.
At the beginning of the trial all parties agreed that the allega-
tions of Cases 29–CA–24327 and 29–CA–24561 were settled.
Accordingly the complaint was amended to exclude these
charges and the complaint allegations relating thereto. There-
fore paragraphs 16 through 18 are deleted, paragraphs 19, 20,
and 21 were amended to become paragraphs 16, 17, and 18.
Lastly the complaint was amended to delete the reference to
paragraphs 16 through 18 in the new paragraph 17.
Based on the entire record herein, including my observation
and demeanor of the witnesses, the position papers submitted
by counsel for Respondent, and briefs submitted by counsel for
the General Counsel, counsel for the Union, and counsel for the
Respondent, I make the following findings of fact and conclu-
sions of law.
Respondent Fairfield and Respondent Presidential are do-
mestic corporations with offices and a place of business located
at 1019 Van Siclen Avenue, Brooklyn, New York. Respondent
Fairfield is engaged in the ownership of residential apartment
buildings. Respondent Presidential is engaged in providing
managing agent services for residential apartment buildings.
Annually, in the course and conduct of their business opera-
tions, Respondent Fairfield and Respondent Presidential each
individually derive gross revenues in excess of $500,000, and
purchase and receive at their Brooklyn facilities goods valued
in excess of $5000 directly from points located outside the
State of New York. Respondents are joint employers for the
employees of Respondent.
It is admitted, and I conclude that Respondents are joint em-
ployers, and employer within the meaning of Section 2(2), (6),
and (7) of the Act.
It is also admitted, and I conclude that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
The essential facts in this case are not in dispute. The Union
has had a series of collective-bargaining agreements with Re-
spondent covering a unit of superintendents, maintenance em-
ployees and porters, employed at Respondent’s apartment com-
plex consisting of 19 buildings. Respondent and the Union
engaged in collective-bargaining negotiations for a new con-
tract during the entire year, 2000 until about February 21, 2001.
When the contract expired on April 20, 2001, there were 19
porters, 10 maintenance persons, and 2 superintendents in the
unit for a total of 31 bargaining unit employees. Porters are the
least skilled of the classifications, and receive the lowest com-
pensation porters’ duties include collecting garbage, sweeping
and mopping floors, washing windows, and shoveling snow.
Fairfield’s attorney, David Lew, a highly skilled labor attor-
ney, especially in Board law, did not become involved in nego-
tiations until the fall of 2000, and was involved in only three
negotiating sessions, on November 16 and December 22, 2000,
and February 21, 2001. At the December 22 session, Attorney
Lew introduced a counterproposal to proposals the Union pro-
posed made on November 20. The counterproposal’s terms
would have afforded Respondent the right to set wage rates for
new hires, unilaterally increase wages, lay off employees at
will, modify or discontinue operations, determine the number
of employees necessary for operations, have supervisors and
nonunit employees perform bargaining unit work, summarily
discharge workers, inter alia, for incompetency, without re-
course to grievance or arbitration, and the “absolute right to
subcontract . . . any if its work, at it, in its sole discretion,
deem[ed] necessary.”
There was no discussion of Respondent’s counterproposal’s
including its management-rights clause, or of the subcontract-
ing provision within the management-rights clause, at any bar-
gaining session.
After introducing the counterproposal on December 22, Fair-
field Supervisor Samuel Moerman, concerned that a strike
about which there had been “rumblings” might occur and be-
cause Fairfield “definitely needed to be prepared for the possi-
bility of a strike,” began looking for replacement contractors
for the porters. According to Moerman, he spoke with only
three or four contractors. One of them, “Mr. Klean” was inter-
ested. Moerman met with Nat Brown of Mr. Klean on or about
January 10, 2001, and several days later took him on a tour of
Respondents’ housing complex. During the tour, Mr. Moerman
reiterated that a strike was possible, and obtained Mr. Brown's
assurance that Mr. Klean was interested in providing cleaning
service in the event of a strike.
On February 21, 2001, the Union commenced a lawful eco-
nomic strike of Respondents unit employees. The same day the
workers went on strike, Fairfield permanently subcontracted all
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD928
of its porter work to Mr. Klean. Replacement employees were
hired for the superintendents.
Respondent did not enter into a subcontract employees with
the maintenance employees.
That the subcontract for the parties was a permanent subcon-
tract is conclusively established by Respondent’s counsel’s
letter to Region 29 dated June 27, 2001, wherein he states “that
Fairfield’s decision to hire a permanent subcontractor did not
violate the Act because the parties bargained to impasse, and
the issues of hiring subcontractors was submitted in Fairfield’s
pre-impasse proposals.” The proposals referred to above were
the December 22 proposals, described above.
On August 1, Respondent counsel sent another letter to the
Regional Director consisting of four pages of legal argument
concluding in the final page that:
In light of the foregoing, as a result of the impasse, Fairfield
did not violate the Act when it permanently [hired] a sub-
contractor to perform some of the unit work because . . . the
decision was clearly within the ambit of its pre-impasse
proposals.
I conclude the subcontract was a permanent subcontract, as
distinguished from a temporary subcontract, based on the ad-
missions by Respondent attorney, notwithstanding a letter to
the Regional Director dated February 26, 2002 wherein Re-
spondent counsel asserted that the porter work had never been
removed, and that the subcontract entered into was a temporary
subcontract because its only from year to year.
The Board has consistently held that position papers submit-
ted an attorney for a party to the trial are admissible as admis-
sions against the party he represents. See Black Entertainment
Television, 325 NLRB 1161 (1997); Steve Aloi Ford, 179
NLRB 229 fn. 2 (1969); Albion Poultry & Egg Co., 134 NLRB
827 fn. 1 (1961), and often highly probative in assessing moti-
vation of parties and or the credibility of witnesses. Bond
Press, 234 NLRB 1227, 1231–1232 (1981); Operating Engi-
neers Local 150 (Willbros Energy Services), 307 NLRB 272,
275 (1992); Dimensions in Metal, 258 NLRB 563, 576–577
(1981).
On May 7, 2001, the Union, on behalf of the unit employees,
made an unconditional offer to return to work. By letter dated
May 8, 2001, Respondent advised the Union that, with the ex-
ception of one superintendent, all unit employees, including the
19 porters, had been “permanently replaced.” Shortly thereaf-
ter, the Union, having been advised by the Region that Respon-
dent had not hired permanent replacements for the porters, but
instead had contracted out their work, requested that Respon-
dent provide a copy of the subcontract. Respondent refused to
do so, claiming that the contract was proprietary and irrelevant
to the Union as collective-bargaining representative.
On November 27, 2001, the Board issued a complaint that
Respondent’s refusal to rehire the porter and its use of a perma-
nent subcontractor to replace them violated Section 8(a)(1), (3),
and (5) of the Act.
On February 14, 2002, Fairfield offered to reinstate the por-
ters, pursuant to their May 7, 2001 offer to return to work. On
February 22, 2002, 15 of the 19 porters returned to Fairfield.
Analysis and Conclusions
Respondent used the opportunity presented by the February
21 strike to attempt to eliminate the porters from the bargaining
unit. It did so by entering into a permanent subcontract of their
work, immediately upon the commencement of the strike. Its
position was that pursuant to its last contract proposals, it had a
legal right to take such action.
The right to strike is an essential component of the collec-
tive-bargaining system, and it is well established that employer
discouragement of participation in lawful strike activity violates
Section 8(a)(3). Capehorn Industry, 336 NLRB 364, 365
(2001).
While 8(a)(3) violations normally require proof of unlawful
motivation, where employer conduct is “so ‘inherently destruc-
tive of employee interests’ . . . it may be deemed proscribed
without need for proof of an underlying improper motive. . . .
That is, some conduct carries with it ‘unavoidable consequences
which the employer not only foresaw but which he must have
intended’ and thus bears its own indicia of intent.’” NLRB v.
Great Dane Trailers, Inc., 388 U.S. 26, 33, 87 (1967), and 388
U.S. 575 (1967) (internal citations omitted). See also NLRB v.
Erie Resistor Corp., 373 U.S. 221, 228 (1963).
Board precedent also supports the conclusion that an em-
ployer’s permanent removal of work from a bargaining unit in
response to a strike is so inherently destructive of the employ-
ees’ protected right to strike, that derogation of that right must
have been the intended consequence.
Thus, in International Paper Co., 319 NLRB 1253 (1995),
enfd. denied 115 F.3d 1045 (D.C. Cir. 1997), the Board found
that permanently subcontracting unit work during a lockout was
inherently destructive because, among other things, “it imposed
the most severe penalty . . . employees could have suffered:
permanent loss of employment and employee status,” reasoning
that “[t]here can be . . . no greater obstacle to the exercise of
employee rights than the permanent loss of employment and
employee status.” 319 NLRB at 1270.
Although the D.C. Circuit declined to enforce the Board’s
decision in International Paper, finding that the adverse effect
on employees of the unilateral permanent subcontract in the
circumstances of that case was “comparatively slight” as op-
posed to “inherently destructive,” International Paper is still
Board law.
I reject Respondent’s argument that International Paper is
not relevant in this case because that case involved a lockout
rather than an economic strike. In the instant case I conclude
that Respondent faced with a possible economic strike made a
premeditated decision to rid itself of the porters from the bar-
gaining unit by a permanent subcontract based upon its last
contract proposal. Therefore I find such action was similar to a
lockout.
See also Capehorn, 336 NLRB 364 (2001), where the Board
found that entering into a permanent subcontract of bargaining
unit work during a strike was inherently destructive of the right
to strike. The decision set forth that the permanent subcontract
negated the strikers’ rights to recall under Laidlaw Corp., 171
NLRB 1366 (1968), enfd. 414 F. 2d 99 (7th Cir. 1966), cert.
denied 397 U.S. 920 (1970), and “upset the historically set
balance between the rights of employees to engage in economic
FAIRFIELD TOWER CONDOMINIUM ASSN. 929
strikes without losing their jobs [and status as employees] as
opposed to the rights of employers to maintain their business
operations during the course of a strike.” Capehorn, supra at
370. The administrative law judge therefore concluded that
Where . . . subcontracting is undertaken solely for the purpose
of replacing strikers, and the employer thereafter refuses to re-
instate employees when they offer to return to work, the inevi-
table consequence of those actions, and therefore their intent,
is to deny employment . . . to employees because they en-
gaged in Section 7 protected activity.
International Paper, supra 319 NLRB at 1274 (permanently
replaced employees remain employees, are subject to recall,
and have voting rights in representation elections, as opposed to
workers displaced by a permanent subcontract who have none
of these rights).
In International Paper, 319 NLRB at 1269–1270, the Board
recognized four “guiding principles” in determining whether
conduct is inherently destructive of employee rights.
The Board examines (1) “the severity of the harm suffered
by the employees for exercising their rights as well as the se-
verity of the impact on the statutory right being exercised,” and
whether the conduct (2) “is potentially disruptive of the oppor-
tunity for future employee organization and concerted activity,”
(3) “exhibits hostility to the process of collective bargaining,”
and (4) “discourages collective-bargaining in the sense of mak-
ing it seem . . . futile . . . in the eyes of the employees.” Id. at
1269–1270 (internal quotations omitted). While all four
“guideposts” are not required for conduct to be inherently de-
structive, all are present in this case. Id. at 1270
fn. 37.
By exercising their statutory right to strike, the porters suf-
fered the ultimate in industrial capital punishment—permanent
loss of employment. As the Board in International Paper and
the administrative law judge in Capehorn Industry recognized,
nothing could be more destructive of employee rights or send a
more effective message about the dangers and ultimate futility
of engaging in lawful concerted activity in furtherance of col-
lective-bargaining. See also International Paper, supra at
1270.
With respect to the other factors, the Board found that the
employer’s act of engaging in a permanent subcontract would
significantly adversely impact the rights of the employees who
did not lose their jobs and would serve to chill their future ex-
ercise of Section 7 rights. Likewise, the superintendents and
maintenance employees of Respondent would certainly be hesi-
tant to engage in another strike after being witness to the con-
sequences of the first strike suffered by the porters. Finally, the
Board also noted that the employer’s action would be destruc-
tive of the ongoing bargaining process and would hinder future
collective bargaining. Id. at 1269–1273.
Respondent contends that pursuant to his last management
rights provisions, described above he was entitled to permanently
subcontract out work. Thus, in addition to permanently subcon-
tracting the porter positions, under Respondent’s reasoning, it
could act further and eliminate the entire unit at any time. The
Board has found that this type of clause that permits an employer
to make repeated changes without the Union’s consent is unlaw-
ful. In McClatchy Newspapers, 321 NLRB 1386 (1996), enfd.
131 F.3d 1026 (D.C. Cir. 1997), the employer implemented its
proposed merit increase system that granted the employer abso-
lute discretion over wage increase. The Board found this type of
proposal was inherently destructive of the principles of collective
bargaining. The Board found this type of proposal to be an ex-
ception to the rule that an employer may implement its proposals
after impasse. It reasoned that permitting an employer to repeat-
edly act unilaterally would disparage the collective-bargaining
process. Id at 1390–1391. In comparison to unilateral wage
increases, the Board would certainly find that the unilateral
elimination of the unit is destructive to employees Section 7
rights.
The Board has also found the permanent subcontract of unit
work during a strike to be unlawful without reaching the con-
clusion that it was “inherently destructive.” In Land Air Deliv-
ery, 286 NLRB 1131 (1987), the Board stated that when faced
with a strike, an employer can replace strikers with permanent
replacements or contract out the work temporarily. The Board
found that the employer’s unilateral permanent subcontract
after a strike commenced was not permissible under the act
absent proof that the two options, permanent replacement and
temporary contract, were not available. Id. at 1131–1132). As
set forth below, Respondent failed to demonstrate that other
options were unavailable before resorting to a permanent sub-
contract at the commencement of the strike.
It is well established, that because the right to strike is so
fundamental, an employer must reinstate economic strikers who
make an unconditional offer to return to work, unless it can
establish a “legitimate and substantial business justification” for
refusing to do so. NLRB v. Fleetwood Trailer Co., 389 U.S.
375, 378 (1967); Capehorn, supra at 367 (“employer must es-
tablish a legitimate and substantial business reason for imple-
menting [a] permanent subcontract during a strike”).
Where, however, an employer’s conduct in refusing to rein-
state strikers is found to be inherently destructive, an even
stricter standard applies, and “the Board may find an unfair
labor practice notwithstanding that the employee . . . was moti-
vated by business considerations.” Great Dane, supra, 388
U.S. at 34.
Respondent has offered no business justification for unilater-
ally entering into a permanent subcontract of porters work. All
of its defenses apply only to temporary subcontracts. As set
forth above, I have concluded Respondents’ subcontract with
Mr. Klean was a permanent subcontract, on a yearly basis. The
subcontract was not for a substantial or legitimate business
reason.
At the trial, Respondent by its counsel’s statements and
through the testimony of Moerman, attempted to justify its
conduct on the basis that Respondent Fairfield had no notice of
the strike, that health issues allegedly required precipitous ac-
tion, and that Mr. Klean had insisted upon a 1-year contract.
As for the lack of notice of the strike, the record evidence es-
tablishes that, after Respondent submitted its counterproposals
on December 22, 2001, Respondent was well aware a strike
was real possibility, and took measures to ensure continued
operations during such strike. In the connection, Moerman
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD930
testified that he contacted Mr. Klean because Respondent “defi-
nitely needed to be prepared for the possibility of a strike.
As to the alleged health issues, that garbage might pile up for a
day or so, or that floors might not be mopped or windows
washed, I find that these are not justifications for entering into a
permanent subcontract, or any subcontract. If that were so, any
strike at a residential housing complex would justify permanent
subcontracting of janitorial work, effectively removing from the
ambit of permissible economic weapons the strike at residential
apartment buildings, because any such strike would involve the
very same “health” issues upon which Fairfield purports to rely
to justify its subcontract.
While the Union does not deny that garbage would have to be
removed, supervisors can remove garbage and so can other non-
unit employees. So can maintenance workers, a supply of which,
Moerman admitted, he had ready access to. Respondent could
have used temporary or even permanent replacements, or the
employees of temporary contractors. However, as set forth in
Land Air Delivery, 286 NLRB at 1132, what the law does not
permit Respondent to do is to insure the removal of garbage dur-
ing a strike, is to unilaterally permanently subcontract that work,
absent proof that none of these other options were available.
The evidence clearly establishes Respondent never explored
any other possibility other than the permanent subcontract.
Moreover, since porters are non-skilled, low-wage workers, it is
incredible that Respondent would not have been above to find,
had it tried, a ready supply of temporary replacements.
As to the defense that Mr. Klean insisted on a 1-year subcon-
tract, in view of my conclusion that the subcontract was a perma-
nent subcontract, as intended by Respondent by its attorney, I
reject this defense.
Both because the unilateral permanent subcontract was inher-
ently destructive of employees’ protected right to strike, and
because Respondent had no legitimate business justification for
entering into it, I find Respondent violated Section 8(a)(1) and
(3) when it refused to reinstate the striking porters who uncondi-
tionally offered to return to work, and also derivatively violated
8(a)(5) when it unilaterally implemented the subcontract. Inter-
national Paper, 319 NLRB at 1276.
Respondent contends the fact of the case are similar to Elliot
River Tours, 246 NLRB 935 (1979). Even if one were to assume
that Mr. Klean subcontract was a temporary subcontract as in
Elliot River, supra, the facts of this case are clearly distinguish-
able from Elliot River.
Elliot River involved a nonrenewable subcontract of 2 years’
duration entered into by a wilderness travel company that organ-
ized commercial river trips for tourists in remote areas of Oregon.
The employees were professional river guides who led the river
trips during the tourist season. When the guides threatened to
strike 2 weeks before trips were scheduled to begin, the employer
made arrangements to subcontract their work. The Board found
that that particular subcontract was an economic and business
necessity because (1) absent the contract, vacationers who had
“made arrangements to travel long distances to . . . Oregon”
would have had to “abruptly [cancel]” their plans, and because
(2) “the outfitter who agreed to undertake the . . . commercial
river trips for the 1978 season did so only on the condition that he
also receive the 1979 trips.” 246 NLRB 935.
Respondent contends that the unique circumstances of Elliot
River are “remarkably similar” to its situation. That is patently
untrue. As discussed, there is no evidence that Mr. Klean insisted
on a one-year contract. Moreover, even if it had, given the spe-
cialized nature of the services involved in Elliot River, it is clear
that the travel company in Elliott River, as opposed to Respon-
dent, would have had no way of conducting business without the
subcontractor’s employees. River guides in Oregon simply do
not compare to the removal of garbage by an unskilled labor
force in a city like New York with a vast pool of unemployed
workers. Nor is a temporary decrease in the extent of custodial
services in an apartment building comparable, as a business mat-
ter, to a company’s cancellation of a season of river tours in the
Oregon wilderness.
To say that Elliot River is applicable is to say that all an em-
ployer need do is contract a few cleaning contractors who alleg-
edly state that they won’t provide services during a strike enter
into a contract with the first one who says that it will, on what-
ever terms that contractor proposes, and blame the union for not
giving adequate notice of the strike. With these few steps, says
Respondent an employer may walk away from the bargaining
unit, with impunity, for a year or two.
CONCLUSIONS
1. Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent and the Union are parties to a collective-
bargaining agreement covering a unit of:
All full-time and regular part-time superintendents, mainte-
nance employees and porters employed by Respondent Fair-
field at its 1019 Van Siclen Avenue, Brooklyn, New York
facility, but excluding all other employees and supervisors
as defined in Section 2(11) of the Act.
4. Since May 8, 2000, Respondent has failed to re-employ the
economic strikers of the porter classification in the unit described
above because its employees joined, supported, or assisted the
Union, and in order to discourage its employees from engaging in
such activities, or other concerted activities in violation of Sec-
tion 8(a)(1), (3), and (5) of the Act.
REMEDY
Having found that Respondent Fairfield has engaged in the un-
fair labor practices described above, I find Respondent must be
ordered to cease and desist and take certain action designed to
effectuate the policies of the Act.
Accordingly, I shall issue a recommended order requiring Re-
spondent to cease and desist from unilaterally subcontracting unit
work, to make the parties whole in losses they sustained, and to
post appropriate notices customarily required.
Backpay shall be computed with interest on a quarterly basis
in the manner prescribed by the Board in F. W. Woolworth Co.,
90 NLRB 289 (1950), and with interest in the manner and
amount prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
[Recommended Order omitted from publication.]