Goodman Investment Co., Inc., Perman Con-Struction Co., Inc., P. I. Partnership, And Goodman Group, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1989

292 N.L.R.B. 340 (N.L.R.B. 1989)

340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Goodman Investment Company, Inc,, Perman Con-
struction Company, Inc., P . I. Partnership, and
Goodman Group , Inc. and Service Employees
Local No . 1, Service Employees International
Union , AFL-CIO. Cases 13-CA-25433, 13-
CA-25524, 13-CA-25580, and 13-RC-16747
January 17, 1989
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On July 31, 1986, Administrative Law Judge
Walter H. Maloney Jr. issued the attached decision.
The Respondents filed exceptions and a supporting
brief, and the General Counsel and the Charging
Party filed answering briefs.
The National Labor Relations Board has delegat-
ed 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, I and
conclusions and to adopt the recommended Order
as modified2 and set forth in full below.
1. In affirming the judge's finding that the Re-
spondents violated Section 8(a)(3) of the Act by
canceling a parking space used by Damian Schiop
because of his vote for the Union in the election,
we rely in particular on credited testimony that is
inconsistent with the Respondents' Wright Line3
defense that our dissenting colleague finds suffi-
cient. Owner Gary Goodman sought to suggest
that the parking space would have been canceled
regardless of Schiop's union activities, because a 4-
month lease expired in mid-December 1985, and
the person for whom the space had originally been
leased had ceased using it after July 1985, when the
Respondents moved their offices to a new location
about four blocks from the old one. Goodman testi-
fied that he did not know, until an invoice for a
new 4-month period arrived in December, that the
space was still being rented after the move and that
' Absent exceptions , we adopt pro forma the judge's finding that the
unlawful issuance of a warning letter, unaccompanied by any overt dis-
crimination in hire or tenure, does not constitute a violation of Sec.
8(a)(3) of the Act.
The judge referred to 730 N . Franklin Street , Graphic Arts Building,
and Central Arts Building interchangeably.
2 We shall modify the judge's recommended Order to conform with
standard remedial language.
In accordance with our decision in New Horizons for the Retarded, 283
NLRB 1173 ( 1987), interest on and after January 1, 1987, shall be com-
puted at the "short-term Federal rate" for the underpayment of taxes as
set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts
accrued prior to January 1, 1987 (the effective date of the 1986 amend-
ment to 26 U.S.C. § 6621), shall be computed in accordance with Florida
Steel Corp., 231 NLRB 651 (1977).
a Wright Line , 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cit.
1981), cert . denied 455 U.S. 989 ( 1982).
he decided against continuing to rent it because it
was a needless expense. This testimony is contra-
dicted by Damian Schiop's credited testimony that
on November 13, 2 days before the election, Good-
man explicitly threatened him with loss of continu-
ing use of the parking space if he voted for the
Union in the election. Having thus used the park-
ing space as an incentive for an antiunion vote,
Goodman can hardly be credited in his claim that
he would have discontinued renting the space re-
gardless of the election outcome.4
2. In accordance with the Board's broad discre-
tion to fashion appropriate remedies for violations
of the Act,5 we agree with the judge that the ap-
propriate remedy for the unlawful transfer of Peter
Schiop to Orleans Plaza is reinstatement to his
former job at 730 N. Franklin Street and backpay
with interest. As the judge stated, Schiop' s resigna-
tion from the position to which he was illegally
transferred is irrelevant for remedial purposes. In
affirming the judge, we find no merit in the Re-
spondents' contention that because of a stipulation
concerning Peter Schiop's post-transfer resignation
we are constrained to conclude that Schiop would
not have continued working for the Respondent at
the N. Franklin Street location. Peter Schiop's
credited testimony establishes that he resigned from
the job at Orleans Plaza because of working condi-
tions there (the necessity of working outside as
well as inside and the lack of heat in some parts of
the building after hours) and that he would gladly
return to his old job at 730 N. Franklin Street if it
were offered to him. This testimony is not contra-
dicted by the parties' stipulation that Schiop had
signed a resignation letter stating that his job con-
flicted with his school duties. Because the parties
did not stipulate that the letter reflected Schiop's
4 Member Cracraft would not find that discontinuing payments for the
parking space that Damian Schiop used violated Sec. 8(a)(3) and (1). The
parking space was originally leased on a quarterly basis for Property
Manager LeBrun and was used by Damian after LeBrun's mid-July de-
parture . In mid-December , when the lease on the space expired and the
Respondents stopped paying the rent, a secretary told Damian he could
no longer park there . Member Cracraft finds the apparent conflict in tes-
timony on which the majority relies to be insignificant. Even accepting
that Goodman's knowledge in November that Damian Schiop was using
the parking space conflicts with Goodman's claim that he did not know
until December that the space was still being rented , Member Cracraft
fails to see the relevance of this conflict to the ultimate issue : when the
lease expired in December, would the Respondents have continued to
cover payment for Damian's parking space even in the absence of his
union activities? The Respondents took no action with regard to Da-
mian's parking privileges upon learning the election results and allowed
Damian to continue using the parking space for the remainder of the
lease. It does not appear from the record that his use of the parking space
was anything other than a temporary privilege afforded him due to the
departure of the property manager . Thus, assuming that the General
Counsel has made a prima facie case, the Respondents have demonstrated
that they would have terminated the parking privilege without regard to
Damian's union activities.
5 Fibreboard Corp. v. NLRB, 379 U.S. 203, 215-216 (1964).
292 NLRB No. 45
GOODMAN INVESTMENT CO
real motive for quitting and because the judge
credited Schiop's testimony concerning his real
reasons, we find that the stipulation does not affect
Schiop s right to reinstatement to his former posi
tion
Additionally, we shall order that the after-hours
cleaning work at 730 N Franklin Street be re
turned to the bargaining unit As the judge found,
the Respondents manipulated the unit and its work
to avoid performing the after-hours work with
their own employees He implicitly found an un
lawful transfer of unit work as part of the unlawful
transfer of Peter Schiop The after hours work at
730 N Franklin Street was transferred to Business
Support Systems and its subcontractor when
Schiop was transferred in an attempt to ensure that
there would be no work at 730 N Franklin Street
for him to do Accordingly, we shall order the
work returned to the unit 6
ORDER
The National Labor Relations Board orders that
the Respondents, Goodman Investment Company,
Inc, Perman Construction Company, Inc, P I
Partnership, and Goodman Group, Inc, Chicago,
Illinois, their officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Coercively interrogating employees concern
ing their union sympathies and union activities
(b) Promising employees pay raises and improve
ments in benefits if they will abandon their support
for the Union
(c) Granting increases in pay in order to per
suade employees to abandon their support for the
Union, provided that nothing herein shall be con-
strued to require the Respondents to withdraw any
increase in pay or benefits that they have hereto
fore granted
(d) Instructing employees not to engage in union
activities
(e) Threatening employees with loss of benefits,
loss of employment, disciplinary actions, or any
other unspecified trouble in order to persuade them
to cease engaging in union activities
(f) Reprimanding or issuing written disciplinary
warnings to employees in reprisal for engaging in
union activities
(g) Discouraging membership in or activities on
behalf of Service Employees Local No 1, Service
Employees International Union, AFL-CIO, or any
6 We note that pars 6 and 8 of the December 5 1985 complaint in
Case 13-CA-25433 clearly allege that the Respondents violated Sec
8(a)(3) by transferring unit work belonging to employee Pet[er] Schiop
to a subcontractor In addition we find that this issue was actually liti
gated at the hearing
341
other labor organization, by transferring employees
out of a collective bargaining unit, withdrawing
benefits, transferring unit work, or otherwise dis
criminating against them in their hire or tenure
(h) In any other 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 neces-
sary to effectuate the policies of the Act
(a) Transfer back to the bargaining unit the after
hours cleaning work at 730 N Franklin Street
(b) Offer Peter Schiop immediate and full rein
statement to his former job at 730 N Franklin
Street or, if that job no longer exists, to a substan
tially equivalent position, without prejudice to his
seniority or any other rights or privileges previous
ly enjoyed, and make him and Damian Schiop
whole for any loss of earnings and other benefits
suffered as a result of the discrimination against
them, in the manner set forth in the remedy section
of the judge's decision
(c) Remove from their personnel records the dis-
ciplinary warning given to Damian Schiop on or
about December 23, 1985, and any reference to the
transfer of Peter Schiop to Orleans Plaza, refrain
from using the warning and the transfer as a basis
for future disciplinary action, and notify Damian
Schiop and Peter Schiop in writing of this action
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(e) Post at the Respondents' Chicago, Illinois
places of business, including their office building at
730 N Franklin Street, copies of the attached
notice marked Appendix 7 Copies of the notice,
on forms provided by the Regional Director for
Region 13, after being signed by the Respondents'
authorized representative, shall be posted by the
Respondents immediately upon receipt and main
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted Reasonable steps
shall be taken by the Respondents to ensure that
the notices are not altered, defaced, or covered by
any other material
7 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 Nation
al 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
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply.
DIRECTION
IT IS DIRECTED that the ballot of Petru (Peter)
Schiop be opened and counted and that a revised
tally of ballots be issued in Case 13-RC-16747.
IT IS FURTHER DIRECTED that, should the revised
tally of ballots show that a majority of the votes
have been cast for the Union , then the Regional
Director for Region 13 shall issue a certification of
representative.
IT IS FURTHER DIRECTED that , should the revised
tally of ballots show that a majority of the votes
have not been cast for the Union , then the election
shall be set aside and a rerun election shall be con-
ducted under the direction and supervision of the
Regional Director for Region 13.
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively interrogate you con-
cerning your union sympathies and activities.
WE WILL NOT promise you pay raises and im-
provements in benefits in order to persuade you to
abandon your support for the Union.
WE WILL NOT grant increases in pay in order to
persuade you to abandon your support for the
Union ; provided that nothing herein shall be con-
strued to require us to withdraw any increase in
pay or benefits that we have heretofore granted.
WE WILL NOT instruct you to refrain from en-
gaging in union activities.
WE WILL NOT threaten you with loss of benefits,
loss of employment, disciplinary action, or any
other unspecified trouble in order to persuade you
not to support the Union.
WE WILL NOT reprimand or issue written disci-
plinary warnings to you in reprisal for engaging in
union activities.
WE WILL NOT discourage membership in or ac-
tivities on behalf of Service Employees Local No.
1, Service Employees International Union, AFL-
CIO, or any other labor organization, by transfer-
ring you out of a collective-bargaining unit, with-
drawing benefits , transferring unit work , or other-
wise discriminating against you in your hire or
tenure.
WE WILL NOT in any other manner interfere
with, restrain , or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL transfer back to the bargaining unit the
after-hours cleaning work at 730 N. Franklin
Street.
WE WILL offer Peter Schiop immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him and Damian Schiop whole for any
loss of earnings and other benefits resulting from
the transfer and the loss of parking privileges, re-
spectively, less any net interim earnings, plus inter-
est.
WE WILL remove from our personnel records
the disciplinary warning given to Damian Schiop
on or about December 23, 1985 , and any reference
to the transfer of Peter Schiop to Orleans Plaza,
WE WILL refrain from using the warning and the
transfer as a basis for future disciplinary action, and
WE WILL notify Damian Schiop and Peter Schiop
in writing of this action.
GOODMAN INVESTMENT COMPANY,
INC., PERMAN CONSTRUCTION COM-
PANY , INC., P . I. PARTNERSHIP, AND
GOODMAN GROUP, INC.
Alan Hellman , Esq., for the General Counsel.
Stephen W. Schwab and Mark L. Shapiro, Esqs., of Chica-
go, Illinois , for the Respondent.
Paul R . Klenck, Esq., of Chicago, Illinois, for the Charg-
ing Party.
DECISION
1. FINDINGS OF FACT
A. Statement of the Case
WALTER H. MALONEY, JR., Administrative Law
Judge. This case was heard before me at Chicago, Illi-
nois, on three unfair labor practice complaints , consoli-
GOODMAN INVESTMENT CO
dated for hearing and then amended at the hearing i
which allege that Respondents Goodman Investment
Company, Inc (Goodman Investment), Perman Con
struction Company, Inc (Perman) P I Partnership, and
Goodman Group Inc, are a single integrated employer
who violated Section 8(a)(1) and (3) of the Act S Con
solidated with the three complaints is a representation
case 3 in which a challenge and objections to the conduct
of an election are pending Specifically the complaints
allege that the respondents threatened an employee with
loss of parking benefits if he did not stop supporting the
Union, warned an employee that his continued support
for the Union would cause him problems, coercively so
licited an employee to withdraw his support from the
Union, revoked an employees pre paid parking privilege
because he supported the Union, issued several warning
letters to an employee which were prompted by the em
ployee s union activities, promised an employee addition
al work and the use of an apartment to induce him to
reject the Union, solicited employee grievances with a
view toward adjusting them promised an employee addi
tional insurance benefits if he rejected the Union coer
cively interrogated employees concerning their union
sympathies and activities threatened to impose upon an
r The principal docket entries in the complaint cases are as follows
Charge filed against Respondents Goodman Investment and Perman by
Service Employees Local No I Service Employees International Union
AFL-CIO (the Union) in Case 13-CA-25433 on October 25 1985 com
plaint issued by Regional Director Region 13 against those Respondents
on December 5 1985 Respondent Goodman Investment and Perman s
answer and motion to dismiss the complaint filed on December 31 1985
order denying motion to dismiss issued by associate chief administrative
law judge on January 22 1986 amended answer filed by both Respond
ents on February 10 1986 charge filed against Respondents Goodman
Investment and Perman by Union in Case 13-CA-25524 on November
27 1985 complaint issued by Regional Director Region 13 against both
Respondents on December 27 1985 order consolidating Cases 13-CA-
25433 and 13-CA-25524 issued by Regional Director Region 13 on De
cember 30 1985 motion to dismiss complaint filed by Respondents on
January 9 1986 and dismissed by associate chief administrative law
judge on January 22 1986 charge filed against Respondents Goodman
Investment and Perman by the Union in Case 13-CA-25580 on Decent
her 19 1985 complaint issued against both Respondents by the Regional
Director Region 13 on January 14 1986 order further consolidating
cases issued by Regional Director Region 13 on January 17 1986 Re
spondent s answer filed on January 27 1986 hearing held on April 28
29 30 and May 1 1986 in Chicago Illinois and briefs filed with me by
the General Counsel the Charging Party and the Respondents on or
before June 17 1986
2 For reasons discussed more fully later on I find and conclude that
Respondents Goodman Investment Company Inc Perman Construction
Company Inc P I Partnership and Goodman Group Inc are a single
employer engaged in commerce within the meaning of Sec 2(2) (6) and
(7) of the Act The Union is a labor organization within the meaning of
Sec 2(5) of the Act
a The principal docket entries in the representation case are as follows
Petition filed by the Union on September 5 1985 in Case 13-RC-16747
seeking an election in a unit of all full time and regular part time janitori
al maintenance employees of Perman and Goodman Investment located
at 730 North Franklin Street Chicago Illinois with the usual exclusions
Representation case hearing held in Chicago Illinois on September 20
and 24 1985 Decision and Direction of Election issued by Regional Di
rector Region 13 on October 9 1985 Representation election conducted
on November 15 1985 resulting in a vote of I to 0 in favor of the Union
with one determinative challenged ballot Objections to the conduct of
the election filed by the Union on November 19 1985 Supplemental de
cision on challenged ballot and objections issued by Regional Director
Region 13 on December 11 1985 in which he referred the issues to
hearing and consolidated the representation case with the pending com
plaint cases
343
employee more onerous working conditions and assign
ments because of his union activities, granted an employ
ee a wage increase during the pendency of a representa
tion petition for the purpose of inducing him to abandon
his support for the Union and subcontracted out the
work regularly performed by an employee and transfer
ring him outside the bargaining unit in order to discour
age his union activities and to create a one man bargain
ing unit in which a representation election could not be
held Most of these allegations (t e , events taking place
between September 5 and November 15) were also liti
gated as objectionable conduct affecting the result of the
election The Respondents deny that they are a single in
tegrated employer, that the Board has any jurisdiction
over any of them because of the failure to establish that
individually they did sufficient business to fall within the
Board s commerce requirements, deny the commission of
any individual unfair labor practices alleged, and main
tarn that the Board had no right to conduct the Novem
ber 15 election because the unit in which it took place
was a one man unit On these contentions the issues
herein were joined 4
B The Unfair Labor Practices and Alleged
Objectionable Conduct
Gary D Goodman and his family are engaged in real
estate investment and related construction through a
myriad of corporations four of which are respondents in
this proceeding Goodman Investment and Perman are
wholly owned by Gary Goodman himself who is presi
dent and chairman of the board of both corporations P
I Partnership is owned by Gary Goodman, his father
and his brother in law Goodman Group Inc is a corpo
rate entity which performs certain administrative services
for the corporations which make up what might broadly
be called Goodman enterprises
Prominent in this case are two older loft buildings on
Chicago s near north side located respectively at 730
North Franklin Street and at 414 North Orleans The
former is referred to as the Graphic Arts Building and
the latter as Orleans Plaza The two buildings are about
four blocks apart Legal title to the North Franklin
Street Building is held by a bank under a peculiar Illinois
real property arrangement known as a land trust Benefi
cial interest in the trust lies in P I Partnership, in which
Gary Goodman has a minority interest P I Partnership
also owns a shopping center at Jacksonville Illinois, and
another shopping center at Albuquerque, New Mexico
Goodman Investment manages the North Franklin Street
property and up to July 1985 maintained its office on
the premises Goodman Investment receives a manage
ment fee from P I Partnership for services rendered in
the day to day management of the Graphic Arts Build
mg
The North Franklin Street Building, or Graphic Arts
Building is a seven story loft warehouse which Good
man Investment and P I Partnership have been trans
forming into a low rent office building specializing in
tenants who are in the advertising and graphic arts indus
4 Errors in the transcript have been noted and corrected
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tries It has about 86,000 square feet of rentable space
and by now is about 90 percent occupied To perform
the construction work necessary to convert this building
from warehouse and industrial use to office use Gary
Goodman and a carpenter named Murray Peretz formed
Perman , a corporation taking its name from the Good
man and Peretz surnames Beginning in April 1982
Perman began to remodel the entire building and has
nearly completed this task Having done so, Perman has
recently begun to remodel the Orleans Plaza Building,
where both Perman and Goodman Investment now make
their joint office Perman also does work for Goodman
Investment at two residential apartments managed by
Goodman Investment
All but the sixth floor of the Graphic Arts Building
are occupied by tenants who lease compartmentalized of
fices Tenants are individually billed for heat electricity,
and other utilities for the space they occupy and are re
sponsible for cleaning and maintaining their own prem
ises On the sixth floor , Goodman Investment maintains a
suite of small individual offices and some common space
for the tenants of those offices Beginning in 1983, it
leased space adjacent to those offices for a 3 year period
to a secretarial service called Business Support Systems
For a stipulated monthly rental Business Support Sys
tems was obligated to provide secretarial service to the
tenants of the sixth floor offices The kind of services to
be rendered as well as the charges for those services
was spelled out in the lease The lease also obligated
Business Support Systems to provide janitorial service to
the sixth floor office tenants and authorized a $75 per
month offset in rent for each office to which janitorial
services were provided By setting up this type of ar
rangement for a limited number of tenants Goodman In
vestment hoped to attract tenants of limited means who
would then move to larger quarters on other floors as
their operations expanded
Business Support Systems proved to be an unsatisfac
tory contractor but not so unsatisfactory that Goodman
would terminate its lease before the lease expired in Jan
uary 1986 5 Among other things, Business Support Sys
tems began to fail in its obligation to provide janitorial
services to sixth floor tenants From time to time it also
defaulted on its rental payments to Goodman Since the
Respondents themselves were directly obligated to sixth
floor tenants to provide janitorial services 6 they had to
step into the breach left by their contractors default and
they did so by providing this service with their own em
ployees
In the summer of 1984 Gary Goodman hired Adrian
Schiop to be the janitor at the Graphic Arts Building
He was hired upon the recommendation of Goodman s
mother who is engaged in another phase of Goodman s
5 Apparently two of the original three partners in this enterprise either
died or withdrew leaving one remaining partner who attempted to carry
on under the name of Hello Answering Service
6 The lease signed by Business Support Systems provided
In addition tenant will keep the conference room in clean orderly
condition at all times and provide basic janitorial services to the mdi
vidual offices including nightly emptying of wastebaskets vacuum
mg carpets once a week and dusting furniture twice a week Tenant
will be remunerated for basic services as provided in Exhibit A
business activities Adrian Schiop did not stay long so
Goodman then hired his younger brother, discriminatee
Damian Schiop to replace Adrian Damian began his
duties in August 1984 They included a variety of tasks
throughout the common areas of the building including
cleaning of the sixth floor tenant areas when Business
Support Systems defaulted and picking up trash and
debris left by Perman employees who were performing
construction and remodeling work throughout the build
ing Late in 1984 Gary Goodman hired Richard LeBrun
to be the building manager , both for the Central Arts
Building and three other properties which Goodman In
vestment managed Goodman delegated considerable au
thority to LeBrun because he was devoting much of his
time to other business activities In January 1985
Damian convinced LeBrun to hire a part time janitor to
work after 6 p in to perform various tasks on the sixth
floor to clean bathrooms, and to clean the Goodman In
vestment office which at that time was located on the
fifth floor of the building 7 Damian recommended his
sister in law Margaretta Jerkow to fill this job and she
was hired She worked only two or three months and
quit LeBrun then asked Damian to find a replacement
and Damian recommended a friend, Constantine Stoin
Stoin was hired but worked only a short while and quit
for medical reasons At this time, Damian recommended
his younger brother, Petru (or Peter) for the job Peter
was hired on May 14 1985 Peter was a high school stu
dent and worked about 15 hours a week starting at or
about 6 p in each weekday evening and working until
about 9 p m For the most part he was unsupervised in
his activities 8 If he had any questions about what he
should do he usually consulted Damian I credit Peter to
the effect that there was nothing said to him during or
after he was hired by any management official indicating
that he was being hired on a temporary basis 9 On occa
sion Damian s father and another friend of the family
were employed by Perman in 1985 on a casual basis
Goodman Investment and Perman moved their office
from the fifth floor of the Graphic Arts Building to One
ans Plaza in July 1985 For the next 2 months Gary
Goodman was away much of the time so he asked
Peretz who was supervising the construction work at
the Graphic Arts Building to oversee Damian s activi
ties Apparently Damian and Peretz did not get along
too well and this friction led to union activities on Da
mian s part
On September 4 Damian and Peter held a short meet
ing in the basement of the Graphic Arts Building
Damian had two union designation cards with him at the
r There is a Perman company record in evidence in the representation
case (of which I take official notice) that notwithstanding the employ
merit of an additional part time employee Damian worked 208 hours of
overtime between January 1 and August 27 1985
a Perman company records introduced by the Employer in the repre
sentation case indicated that between May 15 and August 27 1985 Peter
worked more than 15 hours a week on 5 occasions
9 Damian and the other members of his family are immigrants from
Romania and have been in this country for only a short period of time
Damian and Peter speak in broken English Their lack of fluency in the
English language complicated the presentation of evidence and the fact
finding process in this case
GOODMAN INVESTMENT CO
time He signed one and gave the other to Peter who
also signed the card and then returned it to Damian
Damian turned the cards into the Union immediately,
whereupon the representation petition at issue in this
case was filed
On September 10, Gary Goodman paged Damian from
the Orleans Plaza Building and asked him to report to
his office Goodman had just received in the mail a copy
of the petition from the Board and spoke with Damian at
some length about it He asked Damian if he had signed
a petition to join the Union At first Damian said that he
had not done so Damian then told Goodman that he had
signed a small card Goodman then asked Damian if he
had talked with anyone concerning the Union Damian
replied that he had talked with one of the tenants Good
man told Damian that he should never sign anything that
he had not read because it could get him and others into
trouble
A few days later, after speaking with the Board agent
who was assigned to the representation case, Goodman
ascertained that both Damian and his brother had signed
cards in the presence of Peretz He spoke with Damian
again and accused Damian of not telling him the truth
He showed Damian the papers he had received from the
Board and accused Damian of causing him a problem,
telling him to stop this kind of bullshit He reminded
Damian that a lot of union members did not have jobs
Peretz asked Damian if he had been aware when he took
the job that it was a nonunion job Damian replied that
he was aware of this fact Goodman asked Damian why
he joined the Union and Damian replied More money
and to protect his job Peretz then asserted, The Union
doesn t pay you The Company pays you and suggest
ed that the Company might even pay him more
Both Damian and Peter attended the representation
case hearings at the Board office and testified in that pro
ceeding On October 8, Goodman and Damian had a
third conversation in Goodman s Orleans Plaza office At
this time Goodman reminded Damian that he did not
need a union at the building On the following day the
Regional Director issued a Decision and Direction of
Election finding that there was in fact a two man unit of
janitorial and maintenance employees at the Graphic
Arts Building and directing that a representation election
be held A few days later Respondents new building
manager Robert Zacharias who professed ignorance of
the fact that Peter was working nights at the Franklin
Street location sent a letter to the Board office stating
that Damian Schiop was the only person employed in
this unit to
On October 18 Zacharias called Damian into his
office on the occasion when Damian had stopped by the
Orleans Street Building to pick up his paycheck I credit
Damian s statement that Zacharias (sometimes called Bob
10 Gary Goodman also professed ignorance of the fact that Peter
Schiop was on his payroll until the time of the hearing He maintained
this position until the General Counsel produced paychecks issued to
Peter in July 1985 which were signed by Goodman A Perman company
record introduced by Goodman in the representation case was a printout
showing the payroll histories of both Damian and Peter in the first 8
months of 1985 Damian was designated in this record as Perman em
ployee number 1801 and Peter was designated as Perman employee 1802
345
Zach) told Damian on this occasion that he was giving
him a pay increase from $7 25 to $8 an hour He told
Damian that he was a good worker and reminded
Damian that he (Zacharias) could give Damian more
money than the Union could 11
During this same period, the Respondents were pres
suring Business Support Services and its subsidiary
Hello Answering Service to begin to pick up their con
tractual obligation to clean the office suites and common
areas of the Franklin Street Building Zacharias and
Goodman contacted Jenny Barszcz the owner of J B
Maintenance J B Maintenance was doing the janitorial
work at Orleans Plaza and Zacharias and Goodman
asked Barszcz to contact Hello Answering Service and
try to work out an arrangement in which J B Mainte
nance, as a contractor of the answering service, would
perform the after hours janitorial and maintenance work
which Peter Schiop had been performing Barszcz did so
and entered into a contract with that organization to per
form 1 to 2 hours of janitorial and maintenance work
each night at $22 per hour J B Maintenance undertook
this contract at the end of October and continued to
work for the answering service until it left the premises
in February 1986, at the expiration of its contract with
Goodman Hello Answering Service and its parent corn
pany Business Support Services were no more attentive
to their contractual obligations to J B Maintenance than
they were to their commitments to Goodman To this
date, J B Maintenance has never been paid for services
rendered to the Hello Answering Service although the
latter presumably started again to receive the $75 per
month per unit rental offset which its contract with
Goodman called for
On October 25 Peter was informed by Zacharias that
an independent cleaning service had been retained to
perform his job at the Central Arts Building and that he
was being transferred to Orleans Plaza Peter worked a
week at Orleans Plaza and then resigned He testified
credibly that he resigned because he did not like the
work at Orleans Plaza There was no heat in portions of
the building after hours and he was being required to
work both inside and outside whereas his work at Cen
tral Arts was inside work only He also testified that he
would be glad to go back to work at his old job at the
Central Arts Building if it was offered to him When
Peter told the Respondents that he was leaving he was
requested to sign a statement prepared by Zacharias
that his reason for leaving was that his job conflicted
with his school duties He signed the statement
On November 13 2 days before the election Damian
was asked to come to Goodman s office at Orleans Plaza
When he arrived, Goodman asked Damian how he was
going to vote in the election-yes or no Goodman also
stated that after the election he would talk to Damian
about the possibility of a transfer from the Central Arts
Building to the Waveland Building another Goodman
holding which had a janitorial position which carried
with it a rent free apartment for the janitors use Good
11 I discredit Zacharias testimony that he told Damian he was giving
him a pay raise on this occasion because he hoped it would improve Da
mian s job performance
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
man also promised to improve Damian s existing health
insurance plan, which had a $500 deductible provision,
by reducing the annual deductible amount to $100 How
ever, Goodman threatened Damian that if he voted for
the Union he would eliminate the free parking slot in a
gas station behind the Central Arts Building which had
been assigned to Damian when the Respondents moved
their offices in July
On November 15 the election was held The tally of
ballots showed a vote of 1 to 0 in favor of the Union
Peter appeared to vote but his vote was challenged by
the Board agent because his name did not appear on the
Excelsior list which the Respondents had provided the
Board Timely objections were filed by the Union and
were made a part of this case
On the following Monday or Tuesday, Zacharias
spoke with Damian in his office He asked Damian if he
had voted against the Union as he had promised to do
Since the answer to the question was obvious, Zacharias
went on to tell Damian that there would be problems
with the Union without indicating exactly what those
problems might be He told Damian that he could dis
charge him simply by issuing three written reprimands
and indicated that he would probably go about doing
so 12
In mid December Barbara Tracey, Zacharias assist
ant told Damian that Zacharias was canceling his park
ing space at the gas station behind the loading dock of
the Franklin Street Building Damian admits that he con
tinued to park there, probably as a trespasser, but ulti
mately had to find other accommodations for his car
Damian complained to Zacharias about the loss of a
parking space, but to no avail Zacharias told him that
the change was part of an economy move
On Sunday, December 22, Damian was paged at his
home and was asked to report to the Franklin Street
Building He arrived about mid afternoon A water pipe
which was a part of the sprinkler system had broken and
was spilling water into a rear stairwell Zacharias asked
Damian to isolate the flow of water in the sprinkler
system and to shut off the flow of water Damian was
unable to do so but others who had been summoned
stopped the water Damian was then requested to clean
up the water which had spilled
On the following day Zacharias and Goodman pre
pared and delivered to Damian a one page written repri
mand and asked him to sign it 13 The reprimand criti
cized Damian for a whole host of job deficiencies It
noted that a number of light bulbs on stairwells were
burned out, that the water from the broken pipe had not
been cleaned up and that there was debris in the stair
well which caused a hazard It faulted Damian for failing
to inspect the heaters during cold weather and suggested
12 In his testimony Zacharias referred to the memos he was threaten
mg to write (and ultimately did write) as cover your ass memos He
admits telling Damian that the Respondents would give Damian both
oral and written warnings because they wanted to be able to document
Damian s shortcomings Since Damian had never received any written
warnings before Zacharias said he wanted to inaugurate this new prac
tice following the election because he felt that unions require written
warnings
18 The memo to Damian indicated that a copy was being sent to the
Respondent s attorney
that the malfunctioning of the heater caused the pipe to
freeze thaw and then burst and that the fault lay ulti
mately with Damian for failing to note that the circuit
breaker for the heater had been removed In his testimo
ny Zacharias suggested that the heater had in fact been
sabotaged and stated that Damian was under suspicion of
having sabotaged it However he stopped short of ac
curing Damian of sabotage At first Damian refused to
sign the document Later, he wrote on it This is not
through [sic] and affixed his signature to it
When he gave the reprimand back to Goodman and
Zacharias Damian told them that what was written in
the document was not true and that the break in the
water pipe and the problem with the heater was not his
fault He said that he was not an emergency relief man,
was not supposed to touch any electrical equipment, and
had been instructed not to touch it Goodman told
Damian that it was his fault that the pipe had broken,
but added that the reprimand was being given to him be
cause Damian had joined the Union and had given the
Respondents a hard time He suggested that it was still
not too late for Damian to go to the Union and put an
end to the problem by telling the Union that he did
not need it any longer 14 On January 28 and 30, respec
tively the Respondents issued two additional warnings
to Damian One was for leaving work early and the
other was for responding to special but unnamed re
quests made by the tenants of the Central Arts Building
without getting special permission to do so from Good
man or Zacharias The General Counsel makes no con
tention concerning the legality of these warnings
II ANALYSIS AND CONCLUSIONS
A The Single Employer Status of the Respondents
In the record of the representation case, Goodman
agreed that Goodman Investment Company Inc and
Perman Construction Company Inc were point employ
ers of Petru (Peter) and Damian Schiop 15 On the basis
of that record admission the Regional Director made a
finding that Goodman and Perman were joint employers
and that the Schiop brothers were their employees Re
spondents take a different position in this case They
claim that none of the four Respondent corporate entities
are either joint or single employers and also maintain
that the Schiops were not employees of Goodman In
vestment or Perman but were employees of P I Part
nership Inc, one of the four Respondents herein and the
beneficial owner of the land trust which owns the Cen
tral Arts Building Goodman Investment acts as property
manager for P I Partnership
The courts and the Board have repeatedly set forth
the test for a single employer Radio Union v Broadcast
Service of Mobile 380 U S 255 (1965) Blumenfeld Theo
tres Circuit 240 NLRB 206 (1979), enfd 626 F 2d 865
14 According to Zacharias Damian said that he was going to the
Union to inform it that he did not want its services any longer It is ap
parent from the progress of this case that Damian did not abide by this
statement if in fact he ever made it
is Official notice of the representation case record is taken in this pro
ceeding Gulf Building Corp 159 NLRB 1621 (1966)
GOODMAN INVESTMENT CO
(9th Cir 1980), Samuel Kosoff & Sons Inc 269 NLRB
424 (1984), Watt Electric Co 273 NLRB 655 (1984)
There should exist an interrelation of operations,
common management centralized control of labor rela
tions, and common ownership Also relevant are such
factors as the use of common office facilities common
use of equipment and family connections between or
among the various enterprises Not all of these factors
must be found to establish the existence of a single em
ployer situation, and no one factor is controlling Single
employer status ultimately depends on all the circum
stances of the case and is characterized by an absence of
an arm s length relationship found among unintegrated
companies Local 627 Operating Engineers v NLRB, 518
F 2d 1040 (D C Cir 1975) affd 432 U S 800 (1976)
Regarding Goodman Investment and Perman, there is
in the record, in addition to an admission that they both
employed the Schiop brothers, a large number of other
factors which establish their commonality of interest and
operation Both have the same owner and the same press
dent It is he who ultimately controls labor policies and
all policies for both entities Perman is merely the con
struction arm of Gary Goodman Its function is to reha
bilitate or renovate buildings which Goodman s other
arm Goodman Investment, manages Perman construc
tion workers such as the one who cleaned the Central
Arts Building during Damian s absence at the time of the
hearing in this case, have been assigned to work for
Goodman Investment on a temporary basis Damian
cleaned up after Perman employees when they were
working at the Central Arts Building and rendered many
other services to Perman in the renovation of the build
ing on North Franklin Street Perman s vice president
Peretz was temporarily assigned by Gary Goodman to
supervise Damian while Goodman was absent Goodman
Investment and Perman maintain their offices together
and have done so since the formation of Perman both in
the Central Arts Building and now at Orleans Plaza
They receive payroll and accounting services from the
same division of the Goodman organization Damian and
Peter were both paid as Perman employees and were
named on a roster of Perman employees even though
their day to day direction was provided by a building
manager employed by Goodman Investment Co Inc 16
There is clearly an absence of an arm s length relation
ship between these two companies Accordingly they
are a single employer Since both Damian and Peter re
ceived their checks from Perman were supervised by a
Goodman Investment supervisor and performed services
which enured to the benefit both of Goodman Invest
ment and Perman they were and are employees of both
of these organizations, as Gary Goodman originally stip
ulated at the representation case hearing
P I Partnership is the beneficial owner of the building
in which the Schiop brothers worked Regardless of the
16 There is some disagreement in the record as to precisely who it is
that employs Zacharias He testified that he is director of property man
agement for Goodman Group Inc However Gary Goodman indicated
in his testimony that Zacharias is on the payroll of Goodman Investment
This disagreement in and of itself suggests that these corporate entities
are used interchangeably and are little more than separate bookkeeping
entries
347
financial transactions which take place within the frame
work of the overall Goodman organization, it is P I
Partnership which is entitled to the rental payments from
tenants at the Central Arts Building because it is the ben
eficial owner of the building Such payments are made
by tenants by checks sent to a lock box controlled by it
in the American Bank & Trust P I Partnership retained
Goodman Investment to manage the building and
through Goodman Investment has transferred funds
both to it and to Perman for the rehabilitation or renova
tion of the building P I Partnership is owned, in part,
by Gary Goodman The rest of its ownership is in two
other members of his family P I Partnership has other
holdings besides the Central Arts Building, just as Good
man Investment and Perman engage in business activities
other than managing or renovating that building There
is common management of the Central Arts Building,
and the labor relations policies of that building are com
monly exercised by Gary Goodman who owns and con
trots the enterprises to whom P I Partnership has en
trusted the management and control of its property
There is partial ownership in common between P I
Partnership and the other entities and a complete absence
of arm s length relationship between these corporate
shells Accordingly I conclude that the three of them
are a single employer with respect to the bargaining unit
here in question
Goodman Group, Inc is an accounting entity which
makes payments to or on behalf of Perman Goodman
Investment and other enterprises which are a part of the
Goodman family holdings Apparently some of the man
agerial personnel for Perman Goodman Investment P I
Partnership are actually on its payroll although they ex
ercise authority throughout other facets of Goodman en
terprises Accordingly it is part of the single integrated
operation made up of the other three entities discussed
above Accordingly, it is a single employer with them of
the employees employed in the Central Arts Building
unit at issue in this case
B Compliance with the Board's Commerce Standards
Although the Respondents made no such contention
during the representation case they now contend that
the Board may not assert jurisdiction over any of them
because their respective annual business activities are in
sufficient to meet the Board s jurisdictional standards
The Board asserts jurisdiction over real estate manage
ment companies which have an annual gross income of
$100 000 or more and which have direct inflow or out
flow across state lines in excess of $25 000 per year Mss
tletoe Operating Co 122 NLRB 1534 (1959) The Board
also asserts jurisdiction over non retail contractors which
have direct or indirect outflow or inflow across state
lines of at least $50 000 per year Siemons Mailing Service
122 NLRB 81 (1958) Better Electric Co 129 NLRB
1012 (1960) Where as here Respondents are separate
companies but are integral parts of a single enterprise
their dollar volumes may be combined for the purpose of
showing liability under the Board s jurisdictional stand
ards Orkin Exterminating Co, 115 NLRB 622 (1956)
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In 1985, P. I. Partnership derived annual revenues well
in excess of $100,000 at the Central Arts Building and
much more from other aspects of its business activities.
Many of its tenants are large national retail concerns. In
1985, Perman paid in excess of $100,000 directly to sup-
pliers of goods and services located outside the State of
Illinois. In 1985, Goodman Investment derived revenues
in excess of $100,000 from its activities and a manage-
ment fee of $25,000. Combining all of these figures
shows compliance with the Board's jurisdictional stand-
ards under either of the above-cited standards. More-
over, if one member of a single-employer group is indi-
vidually subject to the Board's jurisdiction, it follows
that the Board may assert jurisdiction over all of the
other members of that group, even if, as individual em-
ployers, one or more might fail to meet the Board's
standards. Accordingly, I find that the Board has juris-
diction over the four Respondents in this case.
C. Unfair Labor Practices in a Single-Member Unit
Even where the Board declines to run an election be-
cause a bargaining unit consists of only one member, it
does not follow that the employee in question is deprived
of the protection of the Act. Early on, the Board deter-
mined in Luckenbach Steamship Co., 2 NLRB 181 (1936),
that it would not run elections in single-member units. In
so holding, it made the following determination:
The Act therefore does not empower the Board to
certify where only one employee is involved . . . .
This conclusion in no way limits the protection
which the Act otherwise gives such an employee. [2
NLRB at 193.]
Accordingly, the Respondents' contention that the unfair
labor practices ascribed to its treatment of Damian
Schiop because he is and was the only employee in a
single-member unit must be dismissed, even if the factual
predicate for such a contention could be sustained."
D. The Existence Vel Non of a One-Man Bargaining
Unit
The Respondents' principal contention is that an elec-
tion should not have been either directed or held among
the janitorial and maintenance employees at the Central
Arts Building because that unit is a one-man unit, and it
is the established policy of the Board not to hold elec-
tions or certify representatives as bargaining agents for
one-man units. Luckenbach Steamship Co., supra. At the
representation case hearings on September 20 and 24,
Gary Goodman argued this point, stating that, even
though the unit contained two members as of that date,
it would soon be reduced to one member. Based upon
that expectation, he urged a dismissal of the petition.
At the time of the direction of the election, the unit
still contained both of the Schiop brothers. On or about
October 24, Peter was transferred to Orleans Plaza. He
" Respondents belatedly asserted the claim that Damian is a supervi-
sor and hence exempt from the protection of the Act . The contention is
frivolous and conflicts with the Respondent 's other contention that
Damian is employed in a one-man unit.
resigned a week later . On November 15, the election was
held. At that time, Damian was the only employee in the
unit . Peter attempted to vote at that election , but on that
date he was not an employee of the Respondents in any
unit, so his vote was challenged.
This set of facts gives rise to several legal questions re-
lating to one-man units which the Board has addressed
on other occasions . The fact that a unit has changed
from two or more members to one member between the
time of the petition and the time of the election-or even
later-does not prevent the invocation of the one-man
unit policy . Denver-Colorado Springs Pueblo Motor Way,
129 NLRB 1184 ( 1961). If the unit has in fact decreased
during the processing of the petition , the existence of the
single-member unit will prevent the holding of an elec-
tion . A change taking place thereafter will prevent the
certification of the bargaining representative or the issu-
ance of a bargaining order based upon a previously valid
certification . Crescendo Broadcasting , 217 NLRB 697
(1975); Virginia - Carolina Chemical Corp., 104 NLRB 69
(1953). However , in applying the one-man unit rule, it is
the permanent size of the unit, not the number of actual
incumbents employed at any given point in time, which
is controlling . Mount St. Joseph 's for Girls, 229 NLRB
251 (1977). To defeat a bargaining order based upon a
contention that a multimember unit has been reduced to
a single-employee unit, the burden of proof is on an em-
ployer to demonstrate that the reduction in size is a per-
manent reduction , not merely a temporary happenstance
occasioned by personnel shifts or employee turnover.
Borden Co., 127 NLRB 304 (1960); Crispo Cake Cone
Co., 190 NLRB 352 (1971), enfd . 464 F.2d 233 (8th Cir.
1972). These considerations govern the disposition of a
single-employee unit question only where changes in the
size of the unit are unsullied by the commission of unfair
labor practices . If the unit has been reduced in size be-
cause of discharges or transfers which amount to unfair
labor practices , the Board will conduct an election , certi-
fy the bargaining agent where appropriate , or issue a bar-
gaining order as if the reduction had not taken place and
the unit still contained more than one member. Grand
Auto, Inc., 236 NLRB 877 (1968 ); The Kroger Co., 228
NLRB 149 (1977); Doug Neal Management Co., 226
NLRB 985 (1976).
E. The Commission of Acts Which Constitute
Violations of Section 8(a)(1) of the Act and
Objectionable Conduct Affecting the Outcome of an
Election
a. On September 10, Gary Goodman spoke with
Damian in his office about the representation petition
which Goodman had just received in the mail. When he
asked Damian if he had signed a petition, Damian gave
evasive and contradictory replies. Goodman also asked
Damian if the latter had spoken with anyone concerning
unionization. The reply given was a false one. Goodman
then told Damian that he should never sign anything he
had not read since such actions might get him and others
into trouble. These questions, coupled with the sugges-
tion that Damian might get himself into trouble, consti-
GOODMAN INVESTMENT CO 349
tuted coercive interrogation and are a violation of Sec
tion 8(a)(1) of the Act
b A few days later, Goodman and Peretz went at it
again with Damian in Goodman s office When Good
man accused Damian of not telling him the truth about
his involvement with the union the Respondents violat
ed Section 8(a)(1) of the Act Goodman s directive to
Damian to stop this kind of bullshit is a further viola
tion of Section 8(a)(1) of the Act His reminder to
Damian that a lot of union members did not have jobs
constituted a threat of discharge which violates Section
8(a)(1) of the Act Peretz inquiry to Damian on this oc
casion as to why he had engaged in union activities was
coercive interrogation which violated Section 8(a)(1) of
the Act Peretz suggestion that it was the Company who
paid his wages and the Company might pay him even
more is a promise of benefit for abstaining from union
activities and violated Section 8(a)(1) of the Act
c On October 18, the Respondents acting through
Zacharias, gave Damian a 75 cent an hour pay increase
On that occasion he told Damian that he could give him
more money than the Union could This statement was a
reiteration of what Peretz had said a few weeks earlier
In light of Zacharias statement, the Respondents de
fense-that it was giving Damian a raise as a result of a
company policy of making yearly salary adjustments for
its employees-is wholly without merit There is no
reason to believe that the Respondents did in fact, have
or follow such a policy No evidence was presented sub
stantiating the naked assertion that such a policy existed
Moreover the increase was given to Damian not on the
anniversary of his hire but about 14 months thereafter
Since the increase was given during the pendency of a
representation petition and for admittedly antiunion rea
sons it constituted a violation of Section 8(a)(1) of the
Act
d Goodman s question to Damian 2 days before the
election of how he was going to vote was coercive inter
rogation and a violation of Section 8(a)(1) of the Act
His suggestion to Damian that he would talk to him after
the election about a transfer to an apartment building
which provided living quarters for a resident janitor con
stituted a promise of benefit and a violation of Section
8(a)(1) of the Act The same finding holds true for
Goodman s promise to reduce the deductible feature of
Damian s health insurance from $500 to $100
e Goodman s threat on the occasion of the above
mentioned interview to discontinue Damian s parking
privilege if he voted for the Union was a violation of
Section 8(a)(1) of the Act
f The unfair labor practices recited above in subpara
graphs a through e took place between the filing of a
representation petition and the holding of a representa
tion election As such they constitute objectionable con
duct which warrants the setting aside of the November
15 election
g Just before the election Goodman threatened to dis
continue Damian s parking privilege in space which the
Respondents rented at a gas station just behind the Cen
tral Arts Building In mid December they stopped
paying the rent on this space and told Damian that he
could no longer park there The discontinuance of this
parking privilege constitutes a violation of Section
8(a)(1) of the Act and is also a violation of Section
8(a)(3) of the Act
h A few days after the election Zacharias asked
Damian if he had voted against the Union as he had
promised This reprimand, couched in the form of a
question violated Section 8(a)(1) of the Act By threat
ening Damian that unspecified problems would arise be
cause of Darman s vote and by suggesting that he could
discharge Damian by issuing a series of reprimands the
Respondents violated Section 8(a)(1) of the Act
i On December 23 the Respondents gave Damian the
first written reprimand that he had ever received in 16
months as a company employee Damian challenged the
truth of the allegations found in the document The
effort to pin on him the responsibility for the break in
the water line of the sprinkler system was farfetched,
speculative, and unsubstantiated However, without get
tang into the truth or falsity of the charges contained
therein it is clear that the reprimand was intended prin
cipally as a punishment for Damian s union activities
which resulted in a vote for unionization of 1 to 0 As
Damian was the only voter in that election his senti
ments were clear for all to see Zacharias had previously
threatened to issue written reprimands in order to lay a
paper trail leading to Damian s discharge Respondents
were also trying to soften him up by using the reprimand
as a last ditch effort to thwart unionization telling
Damian as they handed him the memo that it was still
not too late for him to pull out of the Union By giving
Damian a written reprimand on December 23 to dissuade
him from supporting the Union and in reprisal for previ
ous union activities the Respondents violated Section
8(a)(1) of the Act Unlike the General Counsel I do not
believe that the unlawful issuance of a warning letter
unaccompanied by any overt discrimination in hire or
tenure constitutes a violation of Section 8(a)(3) of the
Act I would dismiss so much of the consolidated com
plaints which make this latter allegation
F The Discriminatory Transfer of Peter Schiop
Since January 1985 if not before there was sufficient
work for at least 1 position in the janitorial and mainte
nance unit at the Central Arts Building The slot for a
part time evening employee was created long before
Peter Schiop came to work in May Indeed two individ
uals had held that position before he was hired During
the summer of 1985 Peter worked overtime from time to
time to perform the work which was assigned to him
while Damian , the full time janitor worked overtime on
a more or less regular basis When in July , some of
Peters duties declined because he no longer cleaned Re
spondents former office on the fifth floor Peter did
other work during the evening hours which had the
effect of lightening Darman s workload during the day
Notwithstanding the office relocation which took place
in July, there was no suggestion of eliminating Peter s
position until a representation petition was filed 3 months
later At that time the Respondents not only advanced
the idea that its office relocation no longer justified the
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employment of a part-time evening janitor. It went about
taking other steps seeking to reinforce this position.18
Because of the unsatisfactory nature of the perform-
ance of Business Support Systems after the death or
withdrawal of two of its partners, Respondents picked
up the janitorial work which Business Support Systems
was contractually obligated to do. Among these tasks
was the cleaning of individual offices on the sixth floor.
For this service the Respondents were entitled to receive
rental payments from Business Support Systems over and
above what they would have received had their contrac-
tor performed its janitorial obligations. Respondents
were in a position in which they had to perform these
services for their tenants upon default by Business Sup-
port Systems and, in fact, had been providing such serv-
ices to their sixth-floor tenants for a matter of years. It
was in large measure because this work was there to be
done and because the Respondents were doing it with
their own employees that they hired not only Peter but
his predecessors. We are now asked to believe that it
was for business reasons only that, in September and Oc-
tober 1985, when the Business Support Systems contract
was coming to an end and the Respondent was casting
about for a replacement, Respondents decided that they
would try to reimpose contractual janitorial responsibil-
ities once again on a derelict contractor and revive a
practice, long since abandoned, of giving it a $75 month-
ly credit on its rent for each office cleaned. This was a
credit on rental payments which were not always forth-
coming in any amounts, with or without room cleaning
credits.
Once Peter was transferred to Orleans Plaza and sixth
floor offices and other locations remained to be cleaned
by someone other than an employee of the Respondents,
it was the Respondents who foisted upon Business Sup-
port Systems or its successor a cleaning contractor of
Respondents' selection, a contractor who was in fact
never paid by the secretarial service to whom it was rec-
ommended. Now that the defaulting secretarial service
has been replaced by Hall Answering Service (Hall) and
Hall is taking care of these responsibilities, it is Damian
Schiop who is actually performing these cleaning duties
at night, not as an employee of the Respondents but as
an employee of Hall. Accordingly, it is clear that
evening janitorial work is still there to be done. It was
by manipulating the bargaining unit and shifting the per-
formance of this work that the Respondents were able to
avoid performing it with their own employees.
The animus exhibited by the Respondents toward
unionization, and toward the Schiops for bringing about
unionization was repeatedly demonstrated by acts and
statements of their supervisors which are discussed
above. The timing of Peter's transfer, taking place as it
did between the issuance of the Decision and Direction
of Election and the holding of the election, indicates
clearly that the transfer was accomplished for the pur-
pose of destroying the viability of the bargaining unit
18 Respondents seem to suggest that the end of renovation activities at
the Central Arts Building has brought about a decrease in Damian's
workload when, in fact, he now has additional daily responsibilities in the
common areas of floors which were formerly undergoing reconstruction.
and preventing the certification of the Union rather than
for anything remotely connected to the exercise of busi-
ness judgment. Accordingly, I conclude that, by transfer-
ring Peter Schiop out of the Central Arts Building bar-
gaining unit, the Respondents violated Section 8(a)(1)
and (3) of the Act. Therefore, the challenge to Peter's
ballot should be overruled, the ballot should be opened
and counted, and the Regional Director should proceed
with the processing of the representation case as he
would in any multiemployee bargaining unit. Doug Neal
Management Co., supra; Selecto Flash, Inc., 176 NLRB
170 (1969).
On the foregoing findings of fact and on the entire
record herein considered as a whole, I make the follow-
ing
CONCLUSIONS OF LAW
1. Respondents Goodman Investment Company, Inc.,
Perman Construction Company, Inc., P. I. Partnership,
and Goodman Group, Inc., are a single employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Service Employees Local No. 1, Service Employees
International Union, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. By transferring Peter Schiop out of the Central Arts
Building bargaining unit for the purpose of reducing the
unit to a one-man unit and prohibiting the certification of
the Union, and by discontinuing parking benefits which
had been given to Damian Schiop, the Respondents vio-
lated Section 8(a)(3) of the Act.
4. By the acts and conduct set forth above in para-
graph 3; by coercively interrogating employees concern-
ing their union sympathies and activities; by promising
employees raises, transfers, and other benefits if they
reject unionization; by threatening to discontinue benefits
if employees continue to support the Union; by granting
a pay raise in order to dissuade an employee from sup-
porting the Union; by threatening employees with repri-
mands, discharge, and unspecified trouble if they support
the Union; by instructing employees to stop engaging in
union activities; and by threatening to issue reprimands
and issuing reprimands in reprisal for union activities, the
Respondents violated Section 8(a)(1) of the Act. Such
conduct committed between the filing of the representa-
tion petition and the holding of the representation elec-
tion constitutes objectionable conduct affecting the re-
sults of the election conducted on November 15, 1985:
5. The unfair labor practices and objectionable con-
duct set forth above in paragraphs 3 and 4 have a close,
intimate, and adverse effect on the free flow of com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, I will recommend that it be
required to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes
and policies of the Act. Having found a continuing dis-
position on the part of the Respondents to violate the
GOODMAN INVESTMENT CO 351
Act repeatedly and in serious ways, I will recommend to
the Board a broad 8(a)(1) order designed to suppress any
and all violations of that Section of the Act Hickmott
Foods, 242 NLRB 1357 (1979) I will recommend that
the Respondent be required to reinstate Peter Schiop to
the position he held before he was transferred from the
Central Arts Building bargaining unit The fact that
Schiop resigned in the interim is irrelevant Grand Auto
Inc, supra I will recommend that he be made whole for
any loss of pay or benefits he may have suffered by
reason of the discriminatory transfer, in accordance with
the formula set forth in the Woolworth case,19 with inter
19 F W Woolworth Co 90 NLRB 289 (1950)
est at the adjusted prime rate used by the Internal Reve
nue Service for the computation of tax payments Olym
pic Medical Corp, 250 NLRB 146 (1980), Isis Plumbing
138 NLRB 716 (1962) I will also recommend that park
ing privileges, or the monetary equivalent, be reinstated
to Damian Schiop and that he be compensated for any
losses sustained by reason of the discontinuance of park
ing privileges in December 1985 I will recommend that
the reprimand of December 23, 1985, be removed from
the personnel records of Damian Schiop, and that no
future disciplinary action be taken against him based on
that reprimand I will also recommend that the Respond
ents post the usual notice, advising their employees of
their rights and of the results in this case
[Recommended Order omitted from publication ]