Imperial House Condominium, Inc.

National Labor Relations Board - Board Decisions

May 30, 1986

279 N.L.R.B. 1225 (N.L.R.B. 1986)

IMPERIAL HOUSE CONDOMINIUM 1225
Imperial House Condominium , Inc. and Hotel,
Motel , Restaurant & Hi-Rise , Employees &
Bartenders Union Local 355, AFL-CIO. Case
12-CA-9410
30 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS, JOHANSEN, BABSON, AND STEPHENS
On 28 December 1981 Administrative Law
Judge Howard I. Grossman issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief.
The Board has considered the decision and the
record in light of the exceptions and brief' and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order
as modified.3
Our dissenting colleagues, relying on the Board's
decision in Point East Condominium Owners Assn.,
193 NLRB 6 (1971), would reverse existing prece-
dent,4 and hold that it is inappropriate for the
Board to assert jurisdiction over residential condo-
miniums. -In our view, the Board's established prac-
tice of asserting jurisdiction over that class or cate-
gory of employers is entirely appropriate, and the
dissent's proffered reasons for reversing that prac-
tice are unpersuasive.
The Respondent is a more or less typical condo-
minium. It is a nonprofit association incorporated
under Florida law. The association consists of indi-
i The Respondent has requested oral argument . The request is denied
as the record, exceptions , and brief adequately present the issues and the
positions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We are also satisfied that the Respondent ' s contention that the judge
was biased is without merit In our opinion , there is nothing in the record
to suggest that his conduct at the hearing or his evidentiary and proce-
dural rulings were based on either bias or prejudice.
8 Because the provisions of employee benefit fund agreements are vari-
able and complex , the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfully
held fund payments . We leave to the compliance stage the question
whether the Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make -whole" remedy . These additional
amounts may be determined , depending on the circumstances of each
case , by reference to the provisions in the documents governing the funds
at issue and , when there are no governing provisions , by evidence of any
loss directly attributable to the unlawful withholding action , which might
include the loss of return on investment of the portion of funds withheld,
additional administrative costs, etc, but not collateral losses See
Merryweather Optical Co, 240 NLRB 1213 (1979) We shall modify the
judge's recommended order to fully conform with the Board 's traditional
remedy in cases of this sort.
30 Sutton Place, 240 NLRB 752 (1979)
vidual residential unit owners,5 each of whom
holds a unit in fee simple with an undivided inter-
est in the building's "common elements," such as
elevators, hallways, wiring, pipes, and the like.
There is no requirement that unit owners occupy
their apartments, and the bylaws specifically pro-
vide a procedure for owners to rent their units.
The association membership elects a board of di-
rectors, which is responsible for management and
has the authority to make necessary contracts, hire
employees, and assess fees on members for condo-
minium maintenance, taxes, insurance, and the like.
The board of directors has contracted with a man-
agement firm to manage the condominium's affairs.
During calendar year 1980, the Respondent re-
ceived gross annual income amounting to $800,386,
almost entirely from the assessment of fees, and
spent $882,751. The Respondent purchased utilities
from Peoples Gas System in the amount of $39,427;
Florida Power & Light, $189,790; and Southern
Bell Telephone Co., $10,476. The Respondent paid
$168,050 to companies for maintenance, repair, and
supplies, including $8480.62 to Otis Elevator. Of
$26,339 spent for insurance, Equitable Insurance
Co. received $2074.23. The parties stipulated that
Peoples Gas, Florida Power, Southern Bell, Otis
Elevator, and Equitable Insurance are engaged in
interstate commerce. The Respondent's payroll-re-
lated expenditures amounted to $345,982, including
salaries and wages, social security and unemploy-
ment taxes, health and welfare fund payment, and
workers' compensation insurance payments.
Before it converted to condominium status in
March 1973, the building was operated as an apart-
ment complex. Hotel Employees Local 255 won a
Board-conducted election in 1969 involving essen-
tially the same unit now at issue , and the Board
found that respondent's predecessor guilty of refus-
ing to bargain with the union in Imperial Apartment
Hotel, 181 NLRB 391 (1970). The condominium
developer, Imperial Management Corp., signed a 2-
year contract with Local 255 in June 1973.
Through a merger, Local 255 became Local 355 in
1974. The Respondent and Local 355 entered into
an "Amendment to Collective Bargaining Agree-
ment," effective April 1976 through June 1977, and
a similar document extending 1 July 1977 to 30
June 1979.
The Respondent has about 40 employees, and the
bargaining unit includes all employees except those
classified as "executives, department heads, mana-
gerial employees, guards and supervisors as defined
in the Act." The unit includes engineering employ-
5 There are 126 apartment units, 7 domestic units, 42 cabana units, and
10 boat slip units
279 NLRB No. 154
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees, housekeepers, elevator operators, doormen, car
runners, porters, the poolman, receiving employees,
and parking employees . Building Manager Carol
Evans testified that no change in services resulted
from the condominium conversion.
Section 10(a) of the Act charges the Board with
the authority "to prevent any person from engag-
ing in any unfair labor practice . . . affecting com-
merce." The Board retains substantial discretion,
however, in determining whether to assert jurisdic-
tion over specific classes or categories of employ-
ers. Thus, Section 14(c)(1) provides that:
The Board, in its discretion, may, by rule of
decision or by published rules adopted pursu-
ant to the Administrative Procedure Act, de-
cline to assert jurisdiction over any labor dis-
pute involving any class or category of em-
ployers, when, in the opinion of the Board, the
effect of such labor dispute on commerce is
not sufficiently substantial to warrant the exer-
cise of its jurisdiction: Provided, That the
Board shall not decline to assert jurisdiction
over any labor dispute over which it would
assert jurisdiction under the standards prevail-
ing upon August 1, 1959.
In 30 Sutton Place Corp., 240 NLRB 752 (1979),
the Board extended its jurisdictional reach to in-
clude residential condominiums and cooperatives.
In so doing, the Board reviewed "an exhaustive
collection of data and analysis" concerning condo-
miniums and cooperatives prepared by the Secre-
tary of Housing and Urban Development. Based on
that and other information, the Board concluded
that "cooperatives and condominiums are involved
in commercial activity on a large scale" and that
"condominiums and cooperatives . . . are engaged
in business having a significant impact on interstate
commerce." Id. at 753 (footnote omitted). The
Board also established a jurisdictional amount of
$500,000 per annum, analogizing to, inter alia, the
amounts established for the apartment house,
motel, and hotel industries.
There has been no intervening change in either
(1) the nature of condominiums and cooperatives
or (2) their unquestioned impact on interstate com-
merce that would warrant reversal of the Board's
7-year policy of asserting jurisdiction over such en-
terprises. Accordingly, we reaffirm the Board's de-
cision in 30 Sutton Place and will continue to assert
jurisdiction over residential condominiums and co-
operatives , such as the Respondent , that meet the
established jurisdictional amount.
As noted at the outset , our dissenting colleagues
seek a return to the "rule" of Point East Condomin-
ium Owners Assn., 193 NLRB 6 (1971).6 In so
doing, the dissent does not quarrel with the fact
that residential condominiums and cooperatives as
a class , and the Respondent in the instant case, are
substantially engaged in interstate commerce. Nor
do they claim that under Section 14(c)(1) the
impact of condominiums and cooperatives is insuf-
ficient to warrant the exercise of jurisdiction.7
Rather, it argues that condominiums "do not con-
stitute a `business enterprise' but are, instead, 'crea-
tures of unit owners' created to meet the expense
of private home ownership," and that condomin-
iums simply "are not businesses." The dissent fur-
ther asserts that condominium owners are the func-
tional equivalent of individual homeowners and
that Congress did not intend "to extend the Board's
authority to cover efforts, individual or collective,
to obtain private home maintenance, repair, or re-
lated services." We find these arguments unpersua-
sive.
We concede that condominiums are not "en-
gaged in business" in the same sense as is a retail
operation. Indeed, that fact provided the basis for
the Board's holding in Point East. See fn. 6, supra.
It is equally clear to us, however, that the Board
was correct in 30 Sutton Place when it stated that
"the basis for our jurisdiction here derives from the
general impact on interstate commerce of the en-
terprise . . . rather than involvement in traditional
commercial activity." 240 NLRB at 753 fn. 5.
Thus, the relationship of a condominium's individ-
ual unit owner to an employee of the condominium
6 Point East does not hold that the Board cannot properly assert Juris-
diction over residential condominiums and cooperatives Rather, it held
that the condominium there did not "satisfy any applicable jurisdictional
standard," 193 NLRB 6 The Board went on to explain why the Board's
retail standard was inappropriate for condominiums Of course, 30 Sutton
Place provided the requisite "jurisdictional standard" found lacking in
Point East
We also note that more than a decade before Point East, the Board had
exercised jurisdiction over residential apartment cooperatives and had re-
jected an argument that the nonprofit nature of the cooperative made it
inappropriate for Board jurisdiction Westchester Corp, 124 NLRB 194
(1959) It would be anomalous to assert jurisdiction over cooperatives
and withdraw it from condominiums, given that they differ essentially
only in legal form, not substance Thus, insofar as respect for precedent is
a concern, Point East itself could be faulted for failing to acknowledge
Westchester Corp and either expressly overrule it or provide some princi-
pled basis for distinguishing it
' We note also that the dissent does not question the appropriateness of
the Board's practice of asserting jurisdiction over residential apartments
While we recognize that a residential apartment is different from a resi-
dential condominium, the particular facts of the instant case demonstrate
that the difference centers more on the form of ownership rather than on
the real and potential impact on interstate commerce Thus, the Respond-
ent's enterprise was formerly a residential apartment at which the Board
certified the predecessor union as the representative of an appropriate
unit of employees In 1973 the building was converted to a condominium
It is undisputed , however, that this change in the ownership structure
worked no meaningful change in either the employee complement or the
services provided Accordingly , while titles were transferred and owner-
ship rights were modified in 1973, the impact of the operation on the em-
ployees and on interstate commerce remained unchanged
IMPERIAL HOUSE CONDOMINIUM
may not be the equivalent of a retailer to a pur-
chaser, but it is obvious that the relationship of the
condominium as a business enterprise to its employ-
ees, as well as to its various suppliers of goods and
services, is no different from that of any similar
business enterprise and is inextricably in interstate
commerce. 8
We also are unable to accept the dissent 's asser-
tion that there is meaningful equivalence between a
condominium and an individual homeowner simply
because in each instance the "owner" is purchasing
"personal services." First, such an argument ig-
nores the collective nature of a condominium
which serves to take the enterprise outside the
sphere of individual action.9 Second, the Board has
repeatedly asserted jurisdiction over enterprises
wherein a collection of individuals have banded to-
gether to purchase what can be characterized as
personal goods and services. These have included
private athletic clubs,10 nonprofit golf and country
clubs, t 1 electrical cooperatives, 12 and agricultural
cooperatives. 13 Third, the fact that condominium
unit owners are purchasing repair and related serv-
ices for their dwellings is no more reason to de-
cline to assert jurisdiction over condominiums than
the fact that a portion of apartment dwellers'
monthly rents are attributable to repair and mainte-
nance of their dwellings is a basis to decline to
assert jurisdiction over residential apartment
houses.14 In short, the dissent does not persuade us
that it is appropriate for the Board to withdraw its
jurisdictional authority from a substantial segment
of the national economy and thereby deny the
Act's protection to the significant number of em-
ployees employed in this industry.
8 As 30 Sutton Place recognizes, the Board has long asserted jurisdic-
tion over enterprises not engaged in traditional commercial activities See
240 NLRB at 753 fn 5 and cases cited therein
9 The dissent's argument is akin to that rejected by the Ninth Circuit in
North Whittier Heights Citrus Assn P NLRB, 109 F 2d 76 (9th Cir 1940),
in which the issue was whether a nonprofit cooperative that received,
handled, packed, and shipped its members' fruit came within the Act's
agricultural worker exception The cooperative argued that if a grower
hired an individual to do the same work that the cooperative performed,
that individual would be an agricultural worker Because the cooperative
did the same work as that hypothetical individual, the cooperative
argued , it too should enjoy the exception The court disagreed, stating
(id at 80-81)
The conclusion does not follow The factual change in the manner of
accomplishing the same work is exactly what does change the status
of those doing it
Here is an admirable example of the nature of the work, modified by
the custom of doing it affecting the category into which it falls-
agricultural or industrial
10 Denver Athletic Club, 164 NLRB 677 (1967)
11 Woodland Hills Country Club, 146 NLRB 330 (1964)
is Central Electric Power Cooperative, 113 NLRB 1059 (1955)
13 Potato Growers Cooperative Co, 115 NLRB 1281 (1956)
11 Indeed , in this case, there is even less basis for such a distinction
because each unit owner is free to rent his or her unit to a nonowner
1227
Regarding the merits, we adopt the judge's con-
clusions, but note that in determining that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by unilaterally ceasing contributions to the employ-
ees' health benefit fund and unilaterally instituting a
new employee health benefit fund, the judge exam-
ined the Union's 14 August 1980 letter to the Re-
spondent . That letter states , inter alia , that benefit
plan contributions should be made to a fund other
than the one to which the Respondent had contrib-
uted previously. The letter explained the reasons
for this action and invited the Respondent to raise
any questions it might have concerning its contri-
butions. The judge found that the Union's letter
"constituted a written proposal for a change in
trust funds, with an invitation to call and discuss
the matter." The Respondent argues that the letter
was not an invitation to bargain but was instead a
unilateral modification of the plan by the Union.
In our view, the Union's letter contained ele-
ments of both a bargaining proposal and a direction
to the Respondent to change its contribution prac-
tice. However, the ultimate characterization of the
letter is not a dispositive factor, inasmuch as the
gravamen of the Respondent's unlawful act was its
cessation of contributions to the union benefit plan
without providing the Union with an opportunity
to bargain. The Respondent could have acted law-
fully, for example, by continuing its contributions
to the old fund by agreeing to contribute to the
new fund, or by negotiating with the Union re-
garding the proposed change. The Respondent
could not, however, cease its contributions and es-
tablish an entirely new plan without providing the
Union an opportunity to bargain over the modifica-
tion in employees' terms and conditions of employ-
ment. Clear Pine Mouldings, 238 NLRB 69, 79
(1978).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Imperial House Condominium, Inc.,
Coral Gables, Florida, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(b).
"(b) Make whole the employees in the unit de-
scribed above by paying all medical and dental
benefit contributions required by the contract
which expired 30 June 1979 to the extent that such
contributions have not been made or that the em-
ployees have not otherwise been made whole for
their ensuing medical and dental expenses ; and con-
tinue such payments until the Respondent negoti-
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ates in good faith with the Union to a new contract
or to an impasse. This shall include reimbursing
employees for contributions they themselves may
have made for the maintenance or similar insurance
coverage after the Respondent unlawfully ceased
contributing, for any premiums they may have paid
to third-party insurance companies for medical and
dental coverage, or for payroll deductions by the
Respondent for the purpose of paying such premi-
ums, and for any medical and dental bills employ-
ees have paid directly to health care providers that
the coverage provided for by the expired contract
would have paid. Nothing herein shall be con-
strued as requiring the Respondent to rescind any
benefits previously granted."
2. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON and MEMBER JOHANSON, dis-
senting.
Contrary to our colleagues, we would overrule
30 Sutton Place, 240 NLRB 752 (1979), and decline
to assert jurisdiction over residential condominiums
as was the Board's practice before 1979. See Point
East Condominum Owners Assn., 193 NLRB 6
(1971).
Prior to 1979 the Board maintained no jurisdic-
tional standards for residential condominums and,
in fact, had specifically declined to assert jurisdic-
tion over them. Point East, supra. The rationale for
declining to assert jurisdiction rested on the unique
nature of condominiums. Thus, a condominium is
composed of a group of individually owned dwell-
ings and jointly owned common areas. In such a
relationship, the owners do not provide a product
or services to persons other than themselves. In-
stead, th condominium is a "creature to unit
owners" serving only to allow individual home
owners "to share collectively in meeting the ex-
penses entailed in maintaining the upkeep and ap-
pearance of their property." Point East, supra. Ac-
cordingly, the Board deemed it inappropriate to
assert jurisdiction over such entities.
In 30 Sutton Place, supra, the Board overruled
Point East and extended its jurisdictional reach to
include condominiums with gross revenues in
excess of $500,000. In that decision the Board re-
jected Point East's characterization of the nature of
condominiums and held that condominiums are
"numerous owners acting in concert to manage and
maintain their collective properties" Id. at 753. Nor
was the Board troubled by the noncommercial
nature of condominiums, noting that the Board had
recently asserted jurisdiction over such nontradi-
tional business as day care centers, geriatric cen-
ters, and educational television stations. Id. at fn. 5.
Finally, the Board found irrelevant the Act's "do-
mestic employees" exclusion' citing a state court
decision to the effect that the domestic employee
exclusion cannot be read to include a maintenance
crew or clerical staff. Id. at fn. 6. In our view, the
better rule is that set forth in Point East.
The basic shortcoming of 30 Sutton Place is its
failure to appreciate the unique nature of condo-
miniums recognized in Point East. Condominiums
do not constitute "business enterprises" but are, in-
stead, "creature of unit owners" established to meet
the expenses of private home maintenance. 30
Sutton Place sought to avoid the implications such
as residential hotels and apartment houses. It
termed them businesses engaged in concerted home
management and maintenance and then reasoned
that, because the Board asserted jurisdiction over
certain "non-traditional" businesses, it should assert
jurisdiction over condominiums. Yet, the simple
fact is that condominiums are not in business; they
do not provide a product or service to persons
other than the residents themselves. Thus, the
reason they are fundamentally distinguishable from
other enterprises over which the Board asserts ju-
risdiction is not that they are "non-profit" or "non-
traditional." The reason is that they simply are not
"businesses," nontraditional or otherwise.2
Because condominiums represent a form of home
ownership, rather than a means of doing business,
we believe that in 30 Sutton Place the Board also
erred in rejecting any analogy between private
home owners and condominiums. The fact that
condominium owners act collectively does not
belie the central fact that their only collective
action is their purchase of maintenance and serv-
ices for their homes and dwellings. Thus, in terms
of the specific actions they undertake, condomin-
iums act no differently from individual homeown-
ers.
Because we find apt the analogy between indi-
vidual home owners and condominium owners, we
also find relevant the "domestic employee" exclu-
sion. In so doing, we do not argue that condomini-
um employees are "domestic employees." Rather,
' Sec 2(3) provides in pertinent part that the term employee "shall not
include any individual employed in the domestic service of any
family or person at his home "
2 Clearly, as the Board stated in 30 Sutton Place, the assertion of juris-
diction over such enterprises as geriatric centers, day care centers, and
educational television stations represented a broadening of the Board's ju-
risdictional reach into nontraditional areas Yet each of those enterprises
shares an important characteristic with traditionally covered enterprises,
namely, they offer a product or service to persons other than the persons
who own and make up the enterprises Thus, coverage of condominiums
entails first a step away from traditional businesses and an additional step
outside the "business" sphere altogether Chairman Dotson would not
necessarily assert jurisdiction over these enterprises See, e g , Volunteers
of America, Los Angeles, 272 NLRB 173 (1984) (dissenting opinion), Salva-
tion Army of Massachusetts, 271 NLRB 195 (dissenting opinion); Alan
Short Center, 267 NLRB 886 (1983) (dissenting opinion)
IMPERIAL HOUSE CONDOMINIUM
we find the exclusion important because it reflects
the desire of Congress to insulate private home
owners from the requirements and obligations of
the Act. In this regard, we simply do not believe
that Congress intended to extend the Board's au-
thority to cover efforts, individual or collective, to
obtain private home maintenance, repair, or related
services.
In conclusion , we wish to stress that our view is
not that the Act precludes assertion of jurisdiction
over condominiums . Rather, our experience and
our review of the Act's fundamental purposes and
objectives convince us that the Board's limited re-
sources will be better utilized by concentrating our
efforts on actual business enterprises rather than by
seeking to regulate the efforts of individual home-
owners to pool their resources in order to secure
home and property maintenance service for them-
selves. Because we believe the decision in Point
East better reflects these beliefs and objectives, we
would return to that rule.
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 refuse to recognize and bargain
collectively with Hotel, Motel, Restaurant & Hi-
Rise Employees & Bartenders Union Local 355,
AFL-CIO, concerning the wages, hours, medical
and dental benefit programs and other terms and
conditions of employment of our employees in the
following unit:
All employees of our highrise at Miami Beach,
Florida, excluding executives, department
heads, managerial employees, guards, and su-
pervisors as defined in the Act.
WE WILL NOT refuse to bargain with the Union
by withdrawing recognition from it, by unilaterally
discontinuing contributions to the health and wel-
1229
fare fund established by the last collective-bargain-
ing agreement , or by unilaterally establishing our
own medical and dental program for employees.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL bargain, on request , with the Union as
the representative of our employees in the unit de-
scribed above concerning wages , hours , medical
and dental benefits , and other terms and conditions
of employment and, if an understanding is reached,
embody it in a signed document.
WE WILL make whole the employees in do
above-described writ by paying all medical rd
dental benefit contribntiow as required by the con-
tract which expired 30 June 1979 to the extent that
such contributions have not been made or that our
employees have not otherwise been made whole
for their ensuing medical and dental expenses; and
continue such payments until we have negotiated
in good faith with the Union to a new contract or
to an impasse . This shall include reimbursing em-
ployees for contributions they themselves may
have made for the maintenance of similar insurance
coverage after we unlawfully ceased contributing,
for any premiums they have paid to third-party in-
surance companies for medical and dental cover-
age, or for payroll deductions for the purpose of
paying such premiums, and for any medical and
dental bills they may have paid directly to health
care provides that the coverage provided for by
the expired contract would have paid.
IMPERIAL HOUSE CONDOMINIUM,
INC.
Marvin P. Jackson, Esq., for the General Counsel
Richard L Manas, Esq., and Averill Marcus, Esq. (Manas
& Marcus), of Miami, Florida, for the Respondent.
Robert A. Sugarman, Esq. (Kaplan, Sicking, Hessen, Su-
garman, Rosenthal & De Castro, P.A.), of Miami, Flori-
da, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I . GROSSMAN, Administrative Law Judge.
The charge was filed on October 15, 1980, by Hotel,
Motel Restaurant and Hi-Rise Employees & Bartenders
Union Local 355, AFL-CIO (the Union). A complaint
issued on November 28, 1980 , alleging that Imperial
House Condominium, Inc. (Respondent) unilaterally al-
tered its employees' insurance and dental benefits, and
withdrew recognition from the Union, in violation of
Section 8(a)(5) and (1) of the National Labor Relations
Act. A hearing was held before me on these matters in
Coral Gables, Florida , on June 11 , 1981 On the entire
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record, including briefs filed by the General Counsel,
Respondent, and the Charging Party, and on my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
A. Background
Respondent's current premises were formerly operated
by Imperial Apartment Hotel, Inc. After the filing of a
representation petition in 1969 by Hi-Rise Division of the
Hotel Employees Union Local 255, and a Board election,
the Union was certified as the bargaining representative
of Imperial's employees in an appropriate unit. In 1970
Imperial was found to have violated Section 8(a)(5) and
(1) of the Act by refusing to bargain wtih Local 255. Im-
perial Apartment Hotel, 181 NLRB 391 (1970). Thereaf-
ter, Imperial and Local 255 entered into a collective-bar-
gaining agreement (G.C. Exh. 8).
According to the testimony of Respondent's building
manager , Carole Evans, the developer converted the
apartment building to a condominium in March 1973.
Thereafter, in June 1973, Imperial Management Corpora-
tion, identified by Respondent as the condominium de-
veloper's corporation', entered into a 2-year collective-
bargaining agreement with Local 255 (G.C. Exh. 9).
In 1974, Local 255 merged with two other locals and
became know as Local 355, as captioned above. Thereaf-
ter, Imperial House Condominium, Inc. and Local 355,
both as captioned above, signed an "Amendment to Col-
lective Bargaining Agreement" effective from April 1976
through June 1977 (G.C. Exh. 10). Another such amend-
ment by the same parties was made effective on July 1,
1977, and terminated on June 30, 1979 (G.C. Exh. 11).
B. The Pleading and Evidence
The complaint alleges that Respondent is engaged in
the operation of a "condominium complex" in Miami
Beach, Florida The answer admits that Respondent is a
"condominium association" engaged in providing certain
services, but otherwise denies the allegation. Respond-
ent's attorney contended at hearing that Respondent is
"not a business in the sense that the NLRB has any juris-
diction over it, but merely an association of individuals,
not unlike a municipality" engaged in self-government.
Respondent's articles of incorporation, bylaws, and
declaration of condominium show that it is a nonprofit
corporation organized under Florida law. Membership in
the corporation is established by recording an appropri-
ate instrument of title to a "condominium parcel" with
the public records of Dade County. There are 4 types of
condominium parcels or units-126 apartment units, 7
domestic units, 42 cabana units, and 10 boat slip units.
"Common elements" are portions of condominium prop-
erty used for maintenance and operation, such as wiring,
pipes, ducts, etc. Each of the condominium unit owners
has title to his unit and to an undivided interest in the
common elements.
The corporation is managed by a board of directors
elected by the members. The directors have a board
grant of managerial authority, including the right to levy
assessments on members for maintenance, care, and pres-
ervation of the condominium units, and to hire employ-
ees to accomplish such purposes. Assessments may be
utilized by the directors to pay taxes, to purchase insur-
ance, and to make contracts necessary to carry out their
management functions. The directors entered into a con-
tract with a management firm to fulfill their responsibil-
ities.
The directors and the management firm, by delegation,
may enter a condominium unit "when necessary and at
as little inconvenience to the owner as possible" (bylaws
at 2, G.C. Exh. 5). Various restrictions are placed on
apartment unit owners, prohibiting nuisances, unreason-
able noises, "immoral or illegal" acts, pay television, and
pets weighing over 20 pounds. There is a prohibition
against any member occupying the domestic unit, "it
being the expressed intention . . . to limit the occupancy
only to domestic employees of apartment unit owners."
The latter may use their own units as private dwellings
for themselves, family members, and social guests, "and
for no other purposes" (Declaration of Condominium,
13-14, G.C. Exh. 5)
The complaint also alleges that, during the 12-month
period preceding issuance of the complaint, Respondent
derived gross revenues in excess of $500,000 and pur-
chased goods and materials in excess of $10,000 from
other enterprises located within the State of Florida,
each of which enterprises received the goods and materi-
als from points located outside the State of Florida. The
answer denies this allegation. However, Respondent's fi-
nancial reports, prepared by its accountant, show that it
received total income of $800,386 for the year ending
December 31, 1980, most of it as a result of assessments
levied on members (G.C. Exh. 3).
Respondent's operating expenses for the same period
of time were $882,751 Of this amount, $253,470 was
paid to various utilities such as People Gas System, Flor-
ida Power & Light Co., and Southern Bell Telephone
Co., all of whom, the parties stipulated, are engaged in
interstate commerce and over whom the Board has as-
serted jurisdiction. Expenditures for maintenance, repairs,
and other supplies add up to $168,050, with payments to
companies such as the Johns Mansville Co. and Otis Ele-
vator Co, also stipulated to be in commerce Administra-
tive and general expenses included an item of $26,339 for
insurance, payable to companies such as Equitable Insur-
ance Company, or to their brokers. The largest expense
item, $345,982, was for payroll and related items, such as
social security and unemployment taxes, hospitalization,
and workmen's compensation payments. Building Man-
ager Evans testified that Respondent had about 40 em-
ployees, and the condominium's payroll reflects salaries
paid for services such as engineering, elevator operator,
doormen, car runners, porters, poolman, car washing, re-
ceiving, parking, and office and administrative (id.).
Evans testified that there was no change in these services
at the time the apartment was converted to a condomini-
r R Br at 2 um.
IMPERIAL HOUSE CONDOMINIUM 1231
C. Respondent's Position
Respondent contends that it is not engaged in com-
merce within the meaning of Section 2(6) of the Act and,
accordingly, that the Board does not have jurisdiction
over it. Respondent submits the following arguments.
1. It produces no articles or commodities, and the
maintenance of personal residences is not in the stream
of commerce nor does it affect commerce.
2. Respondent is a nonprofit corporation which derives
revenue from its residents to pay for "solely domestic
services."2 Section 2(3) of the Act, barring jurisdiction
over "any individual . .. in the domestic service of any
family or any person at his home," precludes jurisdiction
in this case Respondent's residents "are no different
from residents of a town or village or neighborhood who
collect and used funds for their own needs and serv-
ices."
3. Board assumption of jurisdiction would violate vari-
ous constitutional rights of the individual owners of the
units within the condominium, to wit, their right under
the fourth amendment to be secure against unreasonable
searches and seizures , their retention of rights under the
ninth amendment to their personal home life and right to
privacy, and their protection against "discriminatory
Federal action against homeowners who live in condo-
miniums," guaranteed by the equal protection clause of
the fourteenth amendment . Respondent also cites the
tenth amendment prohibition against Federal assumption
of powers not delegated to it by the Constitution.
4. Respondent cites prior Board law as supporting its
position . Thus, in Point East Condominium Owners Assn.,
193 NLRB 6 (1971), the Board refused jurisdiction under
allegedly identical facts-(a) the employer's function of
providing services to privately owned units , (b) the fact
that the employer is a creature of the individual owners,
(c) the employer's nonprofit nature , (d) the collective
sharing of expenses by the individual owners as the em-
ployer's reason for existence , and (e) the fact that the re-
lationship between employer and individual owner is not
one of "doing business." Respondent also cites Leisure
Village Assn., 236 NLRB 102 (1978).
Respondent acknowledges that the Board more recent-
ly reached a contrary conclusion in 30 Sutton Place
Corp., 240 NLRB 752 (1979). However, Respondent
argues, this decision should not constitute precedent be-
cause it "resulted from peculiar circumstances wherein
the employer the Union jointly sought Board jurisdiction
for their own convenience "*
5. The $500,000 gross revenue standard used to estab-
lish Board jurisdiction in hotel and apartment house
cases is "not relevant to a condominium association;" be-
cause (a) hotels are run for a business purpose, unlike
condominiums which are run for the basic needs of the
occupants, and (b) even in hotel cases the Board declines
jurisdiction if the hotel is permanent or residential, i.e.,
one in which 75 percent of the guests remain for a
month or more. Respondent cites Floridan Hotel of
Tampa, 124 NLRB 261 (1959).
2 R Br at 25
8 Id at 26
4 Id at 28
6. Even assuming the appropriateness of the $500,000
gross revenue standard, the evidence does not establish
that Respondent's business affects commerce, and, ac-
cordingly, the Board lacks jurisdiction Respondent
argues that the mere fact that Respondent may make
purchases from companies in commerce does not in itself
establish that Respondent's operations affect commerce,
citing NLRB v. First Termite Control Co., 646 F.2d 424,
(9th Cir. 1981), denying enf. 247 NLRB 684 (1980).
D. The General Counsel's and Charging Party's
Positions
Both the General Counsel and the Charging Party
argue that there has been no substantial change in Re-
spondent's operations since the time it was converted
from an apartment hotel to a condominium . Contending
that the $500,000 gross revenue standard has been met,
the General Counsel relies on 30 Sutton Place Corp.,
supra , as establishing Board jurisdiction herein. The
Charging Party notes that no claims of lack of jurisdic-
tion was asserted in the proceedings involving Imperial
Apartment Hotel, supra, and argues that this failure pre-
cludes Respondent from asserting such a claim herein.5
Respondent, on the other hand, contends that it is not
the same entity as Imperial Apartment Hotel.
E. Legal Analysis and Conclusions
The jurisdictional facts herein are indistinguishable
from those in 30 Sutton Place Corp., supra, and most of
Respondent's arguments have already been disposed of
by the Board 's decision in that case . 8 Thus, like the em-
ployer in 30 Sutton Place, Respondent has gross revenues
in excess of $500,000, and "[s]ubstantial portions of this
sum are used to cover energy costs , mortgage payments,
maintenance services and suppliers , and insurance-ex-
penditures largely involving entities in interstate com-
merce." Respondent is engaged "in the business of con-
certed home management and maintenance . Further-
more, this business impacts on interstate commerce, for it
is dependent upon the free flow of suppliers and labor
and in this sense necessarily involves other institutions
which operate in interstate commerce" (240 NLRB at
753-754).7
Respondent's argument that it does not produce any
articles or commodities, and is nonprofit in nature, is
similarly without merit. As the Board pointed out in 30
Sutton Place, jurisdiction "is warranted whether or not
condominium and cooperative enterprises are viewed as
commercial activity in the generally accepted sense."
Citing its assertion of jurisdiction over enterprises in the
5 In the representation proceeding involving imperial Apartment Hotel,
the Regional Director found that Imperial had amuai gross revenues in
excess of $500,000 and that it annually purcI d goods and materials
from suppliers within the State of Florida who in turn received them
from entities outside the State (G C Exh 7)
6 Respondent' s argument , that 30 Sutton Place does not constitute
precedent because both employer petitioner therein agreed that the Board
should assert jurisdiction, is without merit
7 See also Mandel Management Co, 229 NLRB 1121 (1977) NLRB v.
First Termite Control Co, supra, cited by Respondent, is entirely inappo-
site, as it holds merely that hearsay evidence (of exceptions to the hear-
say rule), is inadmissible
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
health care and educational fields, the Board noted that
the basis for jurisdiction "derives from the general
impact on interstate commerce of the enterprise .. .
rather than involvement in traditional commercial activi-
ty." [240 NLRB at 753 fn. 5.]
Respondent's reliance on the Act's jurisdictional exclu-
sion of domestic employees has also been considered by
the Board in 30 Sutton Place. As therein stated, "[t]here
is a substantial difference between employment by a
single homeowner and employment by a cooperative or
condominium entity. In the first instance, an individual
and personal relationship is created between the home-
owner and the employee; in the second instance, the em-
ployee's relationship with the employer, the cooperative
or condominium entity, is no different from that of an
employee performing similar work for an apartment
house or office building entrepreneur. `Domestic service
implies employment on an individual and personal basis
and cannot be enlarged to include a maintenance crew or
a clerical staff for a [47] unit housing complex."' (Id. at
fn. 6.)8
Respondent's contention that assertion of jurisdiction
will violate various constitutional rights of its members is
frivolous. Subjecting Respondent and its management
firm to Board processes will not give Board agents the
right to enter apartment units of individual members,
conduct "searches and seizures," and invade the privacy
and personal home life of members. Indeed, Respond-
ent's documents suggest that its members have voluntari-
ly surrendered many of those rights to Respondent's
management , which can enter an individual apartment
unit "when necessary."
The argument that assertion of jurisdiction would dis-
criminate against condominium owners is also devoid of
merit. Apparently in support of this argument, Respond-
ent cites Floridan Hotel, supra, wherin the Board de-
clined to assert jurisdiction over permanent or residential
hotels. However, the Board no longer makes any distinc-
tion between residential and transient hotels and has
overruled Floridan Hotel to the extent it is inconsistent
with the Board's revised jurisdictional standards for
hotels and motels. Penn-Keystone Realty Corp., 191
NLRB 800 (1971).
In sum, Respondent has advanced no substantial
reason to preclude assertion of jurisdiction under the
Board's established standards for condominiums. The
evidence clearly shows that Respondent meets those
standards. Accordingly, I find that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings established, and I find, that the Union is
a labor organization within the meaning of Section 2(5)
of the Act.
8 See also Ankh Services, 243 NLRB 478, 480 (1979)
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Bargaining History
On April 17, 1979, prior to expiration of the last col-
lective-bargaining agreement, Union Business Manager
Alvaro Gonzales sent a letter to Respondent requesting
negotiations for a new contract. Respondent Manager
Evans replied by letter a few days later, saying that she
would meet with the directors and be in touch with
Gonzales. Evans thereafter spoke with Roger Lee-
Benner, the Union's business agent at the condominium,
and requested a contract proposal. Gonzales mailed a list
of requested changes in the contract on July 24. A week
later, on July 31, Respondent's attorney, by letter, ac-
knowledged receipt of the proposal and said that he
would be in touch with Gonzales in August, when Re-
spondent's president would be available.
Building Manager Evans testified that the first negotia-
tion session took place on August 17, 1979. Respondent
submitted a letter on that date, briefly listing 13 proposed
changes in the contract. The union representatives re-
quested a dental plan for employees, which had been in-
cluded in its July 24 proposal, and Respondent suggested
private insurance coverage, in lieu of the existing health
benefit plan with payment to designated trustees. Gon-
zales asked Respondent to make more specific proposals
and, on August 30, Respondent's counsel did so by letter
to the Union's attorney at that time, William Coleman,
Esq.
Another session was scheduled for September 17, was
canceled, and rescheduled for September 25. The Union
was represented at this meeting by Attorney Coleman,
although the union officials were unable to attend. Cole-
man asked for a detailed wage proposal, and this was
given to him at the time of the meeting. The union attor-
ney also asked for information concerning Respondent's
health insurance proposals, and 2 days later Respondent's
attorney set an outline of coverage under two insurance
companies.
Roger Lee-Benner testified that after the August 1979
meeting he was replaced as business agent by Buck
Teimpero. Evans testified that Lee-Benner introduced
Teimpero, and that this was "about the only time tshel
saw him." Teimpero left his job with the Union early in
1980, however, at which time Lee-Benner resumed his
former position. Attorney Coleman stopped practicing
law in July 1980, according to the testimony of Gon-
zales, and was replaced around August by Charging
Party's present counsel. Neither Coleman nor Teimpero
appeared at the hearing.
Union Business Manager Gonzales testified that he had
a telephone conversation with Building Manager Evans
about the middle of October 1979 in which he asked for
another meeting. According to Gonzales, Evans replied
either that board members were not in, or that they were
on vacation. Thereafter, according to the union official,
either he or the business agent made similar attempts,
once or twice a month, to arrange a meeting, but re-
ceived similar responses. Evans denied receiving any
such calls. I credit Gonzales' testimony.
IMPERIAL HOUSE CONDOMINIUM
Gonzales also testified that Attorney Coleman attempt-
ed several times to arrange a meeting with Respondent's
Counsel. On cross-examination, Gonzales told the latter,
Attorney Manas, that Coleman had informed the business
agent that he was having trouble reaching Manas to ar-
range a meeting. I credit Gonzales' uncontradicted testi-
mony.
During the latter part of 1979 and the early part of
1980, Respondent complied with all the terms of the ex-
pired collective-bargaining agreement.
The first documentary evidence in 1980 is a letter from
Respondent's counsel to Coleman, dated May 15, refer-
ring to the latter's prior request for a meeting between
management and the Union . This letter contains a state-
ment about the Union 's alleged "virtual abandonment of
negotiation efforts for many months, " and suggests a
meeting on July 7 as the earliest possible date because
Respondent's new president would be out of the country
until that time.
Roger Lee-Benner , resuming his old job , testified that
he presented Building Manager Evans with a copy of a
proposed agreement, on May 30 (G.C. Exh. 21). He
asked for a meeting, but Evans replied that July 7 was
the earliest possible date because of the absence of board
members. Evans denied that she received a proposed
contract, but admitted the possibility that she saw Lee-
Benner . I credit Lee-Benner's testimony.
A letter dated July 7 from Manas to Coleman shows
that the "bargaining session" was rescheduled to July 11.
However, Building Manager Evans testified that Attor-
ney Coleman's son had been injured, and that the July 11
meeting was canceled because of the union attorney's in-
ability to attend.
B. The New Insurance Fund
The expired agreement between the parties required
Respondent to make contributions to an existing trust
fund for medical and hospital costs of employees. As
noted, Respondent continued to make payments pursuant
to the terms of the last contract.
Gonzales testified about "problems" with this trust
fund. The trustee resisted attempts to increase benefits to
reflect the increased cost of medical insurance, and, in
response to union efforts to get a dental plan, submitted
providers who did not qualify, or who were "indicted."
Thus, he contended that the trustees were part of an
"old" hotel association against whom the Union had con-
ducted a strike in 1977. Thereafter, the trustees would
vote one way, the Union another, and there was a
"standoff." According to Gonzales, some of the hotel
owners did not wish to be engaged in these "petty
fights," and joined with the Union in organizing a new
trust fund for employee medical and dental benefits. On
August 14, Gonzeles sent Respondent a letter reading in
relevant part as follows:
As you know, the present Management Trustees of
the Hotel Employees Union-Hotel Association In-
surance Fund . . . no longer represent any employ-
ers who have contracts with Local 355 requiring
them to make contributions to the Welfare Fund.
These Trustees have attempted to use the Fund as a
1233
pawn in negotiations with the Union without con-
cern for the welfare of the employees who need the
medical and dental benefits. Therefore, the Union
and most of the principal hotels and restaurants
have formed a new Trust Fund to provide medical
and dental benefits. This new Trust Fund known as
the SOUTH FLORIDA HOTEL & CULINARY
EMPLOYEES WELFARE FUND, will continue
to provide uninterrupted the present benefits that
your employees are now receiving.
Accordingly, pursuant to the provision of your Col-
lective Bargaining Agreement contributions for medi-
cal and dental benefits which are to be paid in
August for July work, should be made payable to:
SOUTH FLORIDA HOTEL & CULINARY
EMPLOYEES WELFARE FUND 211 23rd
Street, Miami Beach, Florida 33139
Do NOT make your checks payable to the Hotel
Employees Insurance Fund for medical or dental
benefits. The Pension payments should continue to
be made to the Hotel Industry Pension Fund.
If you have any questions, please do not hesitate to
call me [G.C. Exh. 18].
In reply, by letter dated August 29, Attorney Manas
responded in pertinent part as follows:
The Imperial House understands that the Union no
longer has any contractual relationship with the
"Hotel Employees Union-Hotel Association Insur-
ance Fund" and has requested that no further trust
contributions be made to that entity. The Union has
further unilaterally attempted to require that trust
contributions be made to a new entity identified as
the "South Florida Hotel & Culinary Employees
Welfare Fund".
In accordance with that request, the Imperial House
has ceased contributions to the former Trust. The
Imperial House is, however, unwilling to commence
contributions to the new trust. In the first place, the
employer is in a hiatus period and has no current
agreement so that even continued contributions to
the former Trust were arguably not required. Con-
tributions to the new trust are totally unauthorized
by any written agreement and based upon informa-
tion provided cannot lawfully be made.
In order to avoid any jeopardy to innocent employ-
ees who might suffer serious losses by the present
situation, the Imperial House has determined that
the only reasonable prudent course of action is to
implement the insurance package, through Equita-
ble Life Assurance, which has previously been pro-
posed by the Imperial House and as to which no
agreement could be reached. As your file reflects,
this insurance program assures substantially equiva-
lent, and possible slightly better, coverage to the
employees than they have under the Plan the Union
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has unilaterally discontinued without any discussion
with our client.
The Imperial House will discuss this matter further
upon request, but has determined that immediate
implementation of the insurance coverage as afore-
said is imperative and could not be delayed without
substantial risk to its employees . . . [G.C. Exh. 19].
Gonzales testified that he was a trustee simultaneously
for both funds at this time, and that both continued to
provide benefits for the employees of employers who
made contributions to either fund. Building Manager
Evans testified that Attorney Manas advised her that Re-
spondent could not contribute to the new fund because
of the absence of a bargaining agreement. Respondent
did not, however, continue contributions to the old
fund.9 Instead, Evans shopped for private coverage for
the employees, had them covered by "self-insurance" in
September, and, in October 1980, provided them with a
program through Equitable Life Assurance Company.
Gonzales averred that he did not meet with Respondent
prior to implementation of the program. Referring to ne-
gotiations in the prior year, Gonzales said that Evans
had claimed a better program could be otained through
private insurance, but denied that the Equitable program
had been discussed specifically, or that the parties had
reached impasse on the issue.
Evans testified that Respondent's new program includ-
ed dental benefits because this was what the employees
"had been receiving." However, Gonazales' proposed
contract changes in 1979 include a request for dental
benefits (G.C. Exh. 14), and he testified that the trustees
of the old fund would not improve employee benefits.
His August 14, 1980 letter shows that he had succeeded
in incorporating dental benefits into the coverage under
the new plan. I infer that the employees had not been re-
ceiving them under the old plan, and that Respondent in-
cluded them in its own program.
C. Respondent's Refusal to Bargain, and Its Stated
Reasons
1. The final meeting
The last session took place on October 10, 1980. It was
attended by Gonzales, Lee-Benner, and Attorney Sugar-
man for the Union, and by Building Manager Evans, sev-
eral directors, and Attorney Manas on behalf of Re-
spondent. Respondent refused to bargain with the Union,
stating that it doubted that the latter represented a ma-
jority of its employees. This ended the meeting.
Evans testified that there were three factors which
caused Respondent to doubt the Union's majority
status-(a) a "feeling of abandonment" during the period
from September 1979 until May 1980 when Respondent
did not hear from the Union, which was the "most im-
portant" factor, (b) the "very radical dropout from the
Union of the employees," and (c) the "discontent
through the grapevine." Evans said that she and board
members had thought about the issue of majority support
9 Although Evans is not clear, her testimony indicates that Respondent
stopped making contributions to the union fund in August 1980
"right prior to the [October 10] meeting ," and made the
decision "at the meeting , that morning."
2. Respondent's claim that the union "Abdicated Its
Representation of the Employees" 10
a. Summary of the evidence
As recounted above , Business Agent Roger Lee-
Benner was replaced by Teimpero in late 1979. Evans
said that she saw Teimpero only once , when he was in-
troduced . However , Gonzales testified that both he and
Teimpero made calls to Evans in an attempt to arrange a
meeting, but without success.
Lee-Benner resumed his post in early 1980. Evans was
asked on direct examination whether she had any contact
with Lee-Benner after September 25, 1979 . Her answer
was that she "would see Roger in the building and
would say hello ." On cross-examination , Evans testified
that she "saw Roger in the building at least once a week.
He'd sit down and he'd talk with the employees, see if
they had any problems or anything ." Evans testified that
Lee-Benner stopped servicing the building , but was un-
certain of the date . She did not recall seeing him in May,
and then said that he stopped coming in June.
Lee-Benner , however, testified that he returned to his
post in late March or early April 1980 and visited Impe-
rial House about twice a month. As recited above, the
business agent contends that he presented a copy of a
proposed agreement to Evans on May 30 , testimony
which I have credited . During this conversation, Lee-
Benner testified , he told Evans that he had to go into the
hospital . He therefore agreed with the postponement of
the scheduled meeting to July, a delay caused by the ab-
sence of Respondent's directors . Evans replied that she
was sorry about Lee-Benner's medical problem and
hoped that everything would be all right , according to
the business agent . As described above , Evans admitted a
possibility that she may have seen Lee -Benner at this
time.
The business agent was hospitalized on June 2 , recov-
ered and returned to his post . He testified that he visited
Imperial House "at least 3 times" in July , talked to em-
ployees and the bookkeeper , and had a conversation with
Evans on July 7. Lee-Benner also stated that he visited
the condominium in August and September. Evans
denied having any contact with the Union from July 11
until the Union 's August 14 letter about a new insurance
fund , but did not deny Lee-Benner 's testimony about a
July 7 conversation.
b. Factual analysis
Because of the absence of specific denials from Evans,
and because Lee-Benner impressed me as an honest wit-
ness, I credit his testimony concerning his visits to the
Imperial House beginning in March or April of 1980 and
extending through September, with the exception of June
when he was hospitalized. I also credit his testimony that
he had a conversation with Evans on July 7.
10 R Br at 9
IMPERIAL HOUSE CONDOMINIUM
3. The union 's alleged loss of employee support
a. Summary of the evidence
Respondent's records for October 1979 show 22 em-
ployees then on checkoff. (R. Exh. 5.)
Respondent introduced 12 documents purportedly
signed by employees stating that the (a) "do not wish to
belong" to the Union, (b) desire their names to be "delet-
ed from the membership roll" and (c) are withdrawing
authorization to have union dues deducted from their sal-
aries (R Exh. 6 and 7). The earliest such statement is
dated June 29, 1979, the next two on August 1, 1980, one
on September 24, six on October 1, one on October 2,
and one on October 11, the day after the last meeting."
Business Agent Lee-Benner testified, and Respondent
agreed, that there was 18 employees on checkoff as of
August 1980. Respondent's checkoff list for that month
contains 18 names. However, the names of two employ-
ers who signed withdrawal slips on August 1 (Angell
and Donlon) are scratched out and marked "Discontin-
ue" (R. Exh. 8)
Evans testified that only 9 employees out of 42 re-
mained on checkoff at the time the withdrawal slips
"became a part of her record."
Respondent's bookkeeper, St. Jean, who gave with-
drawal forms to employees on their request, testified that
some employees stated that they wanted to get out of the
Union. David Tygenhof said this "a long time ago." 12
One employee said that she wanted to get out when she
discovered that the Union was not giving her a pension.
Some employees asked whether another employee had
signed to get out of the Union. St. Jean would say
"Yes," and the questioner would then say that he also
wanted to get out.
St. Jean testified that "a couple" employees said that
they did not want the Union to represent them, but
could only idenfity Frank Giordano as having said this.
Giordano actually said, according to St. Jean, that he did
not feel that the Union "represented him," that he
"didn't like it," and that he was "getting out." No one
else expressed sentiments similar to Giordano's, accord-
ing to St. Jean. Jerry Angell said that he thought the
Union was paying for his dental work and said that he
might as well drop out when he found that this was not
true.
Evans also testified that employees would get together
in little groups and express dissatisfaction with the
Union The plant manager averred that Frank Giordano
and Milton Arkin spoke to her about the Union. Gior-
dano, the shop steward, said that no one came by to see
him, that no one represented him, and that he was not
being assisted in any way by the Union. After the last
bargaining session, on October 10, Martin Donlon said
11 The employees ' names and dates of signature indicated on the with-
drawal slips are David Tygenhof-June 29, 1979, Jerome H Angell and
Martin Donlon-August 1 , 1980; Milton Arkin-September 24, 1980;
Paul H Schulz , Walter Crawford , Frank Giordano, Eartha M Gullett,
Queen F Miller, and Vestella Robinson-October 1, 1980, Rocco Greg-
ory-October 2, 1980, Margaret Crumiel-October 11, 1980 (R Exh 6
and 7).
12 Tygenho£s withdrawal form was signed June 29 , 1979 (Ibid).
1235
that the employees did not have to go along with the
Union any longer
Business Agent Roger Lee-Benner, however, testified
that there was almost no employee discontent with the
Union when he serviced the condominium from
March/April through September 1980. None of the em-
ployees expressed dissatisfaction except Tygenhof, who
resigned according to Lee-Benner, because he only
wanted the Union for insurance benefits and was getting
these from the Veterans Administration . No grievances
were presented to Lee-Benner . The employees were
"very friendly" and glad to see him back. The business
agent talked with Shop Steward Giordano at times and
told the employees that he had submitted a proposed
contract to Respondent. The employees expressed hope
that they could get a pay increase and improved benefits.
Lee-Benner further averred that he customarily
checked management before seeing employees and vis-
ited Evans or St. Jean when they were not busy. On
some occasions he did not see them. The business agent
testified that neither the building manager nor the book-
keeper told him that there was employee unrest or dissat-
isfaction with the Union, nor that "the grapevine" said
the Union was losing employee support, nor that man-
agement doubted the Union's representative status.
b. Factual analysis
Neither the General Counsel nor the Charging Party
challenged the authenticity of the withdrawal slips. The
latter show that 12 employees expressed a desire to dis-
continue union membership and dues payments. There is
little evidence, however, that they wished to discontinue
the Union's authority to represent them in negotiations
with Respondent. St. Jean could name only one employ-
ee (Giordano) who raised the issue of the Union's repre-
sentative status Other employees had different motives
for withdrawing financial support-Tygenhof because he
was getting insurance benefits from the Veterans Admin-
istration, Angell because he was getting dental benefits
elsewhere, one employee because she thought the Union
was paying her a pension, and several employees because
St. Jean told them that other employees had signed with-
drawal slips.
St. Jean's testimony on this issue is buttressed by Lee-
Benner 's averments that employees expressed hope to
him that the Union would be able to get a better con-
tract for them Whatever their reasons for withdrawal
from the Union, these expressions of hope to Lee-Benner
are consistent with continuing employee intent that the
Union represent them. I credit Lee-Benner's uncontra-
dicted testimony.
Evans' testimony about little groups of employees ex-
pressing dissatisfaction with the Union is too vague in
itself to have any probative weight and is contradicted
by Lee-Benner's more explicit testimony to the contrary.
Donlon's alleged statement after the last bargaining ses-
sion , that the employees did not have to go along with
the Union , could not have influenced Respondent's prior
refusal to bargain , and therefore is not relevant.
Two of the withdrawal slips were signed on dates in-
dicating that they had little or no effect on Respondent's
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
belief in the Union's representative status. Tygenhof's
was executed in June 1979, following which Respondent
tacitly recognized the Union's representative status by
bargaining with it. Crumiel's withdrawal slip was execut-
ed on October 11, the day after the last meeting, and is
therefore irrelevant for the same reason given in the case
of the statement attributed to Donlon.
Of the remaining 10 withdrawal slips, 8 were dated
September 24 or later, which is consistent with Lee-Ben-
ner's testimony that he heard nothing from the employ-
ees or management about dissatisfaction with the Union
through September 1980. These slips were therefore
signed subsequent to the time that Respondent stopped
making payments to a Union-designated fund for health
benefits, "self-insured" the employees in September 1980,
and started the Equitable progam in October. The Gen-
eral Counsel and the Charging Party argue that this
chronology eliminates the significance of the withdrawal
slips as evidence of any good-faith doubt of the Union's
representative status because they were signed after Re-
spondent had committed unfair labor practices.
D. Legal Analysis and Conclusions
1. The presumption of majority status
The General Counsel and the Charging Party contend
that the prior certification establishes a rebuttable pre-
sumption of the Union's majority status after the certifi-
cation year, and that Respondent has not rebutted that
presumption. Respondent argues that "the Certification
was directed at a prior employer, with a different kind of
operation,"' 3 and might well have argued that a differ-
ent union , Local 255, was certified, following which it
merged with two other labor organizations and became
know as the Charging Party herein.
I find it unnecessary to consider employer or union
successorship issues as Respondent and the Charging
Party in their present names entered into two successive
collective-bargaining agreements valid on their face,"
and the Board has applied the same presumption in such
situations with judicial approval. "Thus, it is clear," the
Board has stated, "that the existence of a prior contract,
lawful on its face, is sufficient to raise a dual presump-
tion of majority first that the Union had majority status
when the contract was executed and second that the ma-
jority continued at least through the life of the contract.
Following the expiration of the contract, the presump-
tion continues , and the burden of rebutting it rests, of
course, on the party who would do so." Pioneer Inn, 228
NLRB 1263, 1265 (1977), enfd. 573 F.2d 835 (9th Cir.
1978).
2. Respondent's rebuttal-alleged union
abandonment of the employees
As rebuttal of this presumption, Respondent relies ini-
tially on what Respondent's brief labels the Union's "ab-
dication" of its duty to represent employees,15 or what
13 R Br at 6
14 There has been no attack on the validity of any of the underlying
agreements in this proceeding
15 R Br at 9
Evans called a "feeling of abandonment." Evans limited
this to the period from September 1979 until May 1980.
Respondent's brief goes somewhat further, however, and
notes the fact that Lee-Benner did not service the con-
tract during his hospitalization in June 1980 .16 It is obvi-
ous, of course, that 1-month's absence of a business agent
because of illness cannot be equated with union abandon-
ment of the represented employees.
Concerning the September 1979 through May 1980
period, Respondent's brief asserts that the only time
Teimpero "came around was when Lee-Benner brought
him to the building and introduced him to Evans."' 7
This is not, however, the substance of Evans' testimony.
She stated that the occasion of the introduction was the
only time she saw Teimpero. This evidence does not es-
tablish that Teimpero did not see employees at Imperial
House during this period. The condominium is a large
establishment in Miami Beach with over 40 employees in
various areas, and it is entirely possible that Teimpero
visited employees without seeing Evans. Teimpero no
longer works for the Union and did not testify. Howev-
er, Lee-Benner stated without contradiction that he did
not see Evans on every occasion that he went to Imperi-
al House. Respondent did not present any employees to
affirm that Teimpero failed to see them during the period
in question . Moreover, the credited evidence shows that
Gonzales, Teimpero , and Attorney Coleman attempted
to arrange for a bargaining session during this period,
without success. During this time Respondent complied
with all the terms and conditions of the expired contract.
The burden of rebutting the presumption of majority
status rests with Respondent, and it has not met that
burden with this evidence, nor has it established that the
Union abandoned the employees.
Whatever doubts Respondent may have had about ma-
jority status, they came to an end in May 1980, when At-
torney Manas negotiated with Attorney Coleman for a
"meeting," and, on July 7, for a "bargaining session"
(G.C. Exhs. 15, 16, 17). Respondent could hardly have
proposed bargaining with the Union if, at that time, it
believed that the latter did not represent Respondent's
employees. As the Board has stated, "to preserve the via-
bility of its agreement for contract-bar purposes, a recog-
nized union need only show that it is willing and able to
represent the covered employees at the time its status is
called into question " Pioneer Inn, supra, 228 NLRB at
1264 (emphasis added). The first and only time that the
Union's status was called into question was, abruptly, on
October 10, 1980. Lee-Benner had regularly been servic-
ing the condominium since the spring of that year, the
Union had attempted to establish a welfare fund more re-
sponsive to its members' needs, had negotiated with Re-
spondent for a bargaining session, and was in fact at such
a meeting when Respondent's decision was first an-
nounced. The Union was clearly able to represent the
covered employees at this time, and Respondent's aban-
donment theory is therefore without merit.
15 Ibid
" Ibid
IMPERIAL HOUSE CONDOMINIUM
3. The Union's alleged loss of employee support
Respondent next advances alleged widespread employ-
ee disaffection with the Union and withdrawal of em-
ployee authorizations for dues deductions as objective
evidence justifying a good-faith doubt in the Union's ma-
jority status. It is established law that such doubt must be
based on objective considerations . Terrell Machine Co.,
173 NLRB 1480 (1969), enfd. 427 F.2d 1088 (4th Cir.
1970), cert. denied 398 U.S. 929 (1970). As an objective
consideration , unit employees in late 1979 to a minority
at the time of the refusal to bargain in October 1980.
The General Counsel cites Bartenders Assn. of Pocatel-
lo, 213 NLRB 651 (1974), in support of the general prop-
osition that "a showing of actual financial support of an
incumbent union , at least where such support is made
voluntary, is not the equivalent of establishing the
number of employees who continue to desire representa-
tion by that union" (id., 652).18 There is other authority
expressing the same view.19
Respondent's argument, however, is based on the 1-
year decline in authorizations as much as it is on the mi-
nority percentage of authorizations at the time of the re-
fusal to bargain. This theory has had a 7-year checkered
history in the Peoples Gas System litigation . In its original
decision, the Board held that a "dramatic reduction in
dues-checkoff authorizations" reflected a "trend with re-
spect to employee support" and, as such, was "at least
one indicator of objective considerations .. ." Peoples
Gas System, 214 NLRB 944, 946-947 (1974). The Board
deemed this conclusion to be valid regardless of whether
the percentage decline was that of all unit employees
from 76 percent to 39 percent, or permanent employees
only, from 90 percent to 51 percent.
The Court of Appeals for the District of Columbia
Circuit held that this answer did not resolve the matter,
that other factors had not been fully considered, and re-
manded the case to the Board.20
In its supplemental decision, the Board reversed its
prior findings. It concluded that the decline in authoriza-
tions did not go below 51 percent of the employees, and
that this fact, together with the absence of "any employ-
ee renunciation of, or opposition to, the Union" showed
that there was insufficient evidence to support a reasona-
ble doubt of majority status. The Board also reconsid-
ered its prior reliance on two other aspects of the bar-
gaining history as indicators of loss of majority status,
and concluded that none of these matters, "taken singly
or together," warranted Respondent's withdrawal of rec-
ognition Peoples Gas System, 238 NLRB 1008, 1010
(1978).
The Court of Appeals expressed disagreement with the
good-faith doubt test utilized by the Board, but, in the
end, supported the Board's revised conclusion that the
18 The Board's decision cites judicial approval of this principle, 213
NLRB at 652
19 Terrell Machine Co supra, NLRB v Gulfmont Hotel Co, 362 F 2d
588 (5th Cir 1966), Harpeth Steel, 208 NLRB 545 (1974), Barrington Plaza
& Tragniew, 188 NLRB 962 (1970), enf denied in part 470 F 2d 669 (9th
Cir 1972)
20 Teamsters Local 769 v NLRB, 532 F 2d 1385 (D C Cir 1976), re-
manded 214 NLRB 944 (1974)
1237
employer did not have such doubt. On the issue relevant
herein, the court stated:
A decline in Union dues checkoff authorizations in
a right-to-work state seems to lend very little af-
firmative support to a doubt of majority status.
While such decline is consistent with a correspond-
ing decline in support there are too many other pos-
sible explanations for a worker who does not have
to pay dues preferring not to, even if the worker
still favored Union representation. Such a decline is
therefore not a reliable indicator of Union support.
[Peoples Gas System, Inc. v. NLRB, 629 F.2d 35,
(D.C. Cir. 1980), enfd. as mod. 238 NLRB 1008
(1978).] 21
The court's reservations are illustrated by the various
reasons for withdrawal given by the employees in this
case . Respondent cites opinion of bookkeeper St. Jean,
that employee withdrawal from the Union meant the
same thing as a desire that the Union no longer represent
such employees, and argues that "this record offers no
basis for any other interpretation." Respondent refers to
Lee-Benner's testimony that he talked to Tygenhof al-
though the latter had withdrawn his checkoff authoriza-
tion , and argues that "it is easy to see how employees
would believe that the Union represents those on the list
and accordingly, if you don't want to be represented you
get off the list."22
This argument presents a non sequitur . In the first
place, Lee-Benner testified that he spoke to all the em-
ployees except two or three, not just to Tygenhof. In
other words, he visited with about 40 employees, ap-
proximately half of whom had not authorized dues
checkoff in early 1980. Contrary to Respondent 's argu-
ment , this would not indicate to employees that the way
to stop union representation was to "get off the list,"
since Lee-Benner by his visiting with almost all unit em-
ployees demonstrated adherence to the Union's obliga-
tion to represent all employees without regard for their
membership status. Quite to the contrary to Respondent's
argument , this showed each employee that he could still
get the benefit of union representation even if he stopped
paying dues, and that such representation would not stop
even if he did terminate his membership.
This inference is buttressed by the actual reasons ex-
pressed by the employees. As summarized above, only
one employee mentioned a desire to discontinue union
representation. The others were concerned with financial
matters, or signed withdrawal forms simply because
some of their fellow employees had done so. In its first
decision in the Peoples Gas System case , the court said
that "[d]ecisions to submit or not withdraw authoriza-
tions may be attributable to confusion, ignorance, peer
pressure, and, in cases of failure to withdraw, to procras-
21 Like the instant proceeding, the Peoples Gas System case originated
in Florida, a right-to-work state The court did not agree with the
Board's conclusion that a bargaining order was an appropriate remedy
There ws an intervening election during this 7-year litigation , which the
Union lost
22 R br at 15
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tination or inertia." Teamsters Local 769 v. NLRB, supra.
This is equally applicable to the withdrawals herein.
Finally, in further support of this inference, the em-
ployees told Lee-Benner that they hoped the Union
could get a better contract for them, and thereby gave a
positive and unambiguous expression of their intention
that the Union continue to represent them. Although this
is certainly insufficient to justify an initial grant of recog-
nition , it is sufficient to negate the ambiguous evidence
advanced to support a withdrawal of .recognition.
4. Respondent's alleged unilateral insurance change
The General Counsel and the Charging Party further
contend that Respondent may not rely on the withdraw-
al slips because they were secured after Respondent vio-
lated Section 8(a)(5) and (1) by unilaterally instituting its
own medical and dental insurance plan. In order to es-
tablish a good-faith doubt of a union's majority status, an
employer must not only rely on objective considerations,
but the assertion of doubt must not have been advanced
for the purpose of gaining time to defeat the union, i.e.,
it must be advanced "in a context free of unfair labor
practices." Bartenders Bargaining Association of Pocatello,
supra, 173 NLRB at 1480-1481.
Respondent answers this contention with a series of ar-
guments, the principal one being that it was the Union
and not Respondent that unilaterally changed the exist-
ing plan . Thus, Respondent argues that Gonzales' letter
of August 14 specifically instructed Respondent not to
make further payments into the old insurance fund. Al-
though Gonzales testified that Respondent was given a
choice, the letter itself did not say this. According to Re-
spondent, it was left in the position of making payments
into one of two funds, either of which was of "question-
able legality," because there was no underlying written
agreement, and such payment would therefore be viola-
tive of Section 302(a) of the Act.
Respondent had one other alternative, the argument
continues, which was to protect the employees with an-
other insurance system. This plan was announced to the
Union in Respondent's letter dated August 29, and Re-
spondent was prepared to discuss it at the October 10
meeting, except that it was then precluded from any ne-
gotiation by its good-faith doubt of the Union's majority
status.2 3
This entire argument is circular and begs the question.
Respondent, in essence, contends that it was precluded
from bargaining over the change in insurance benefits be-
cause of its good-faith doubt. However, under estab-
lished law, it is precluded from advancing a good-faith
doubt because of its unilateral change in insurance bene-
fits, a conclusion which Respondent rejects and which is
in issue.
It is clear that such benefits are terms of wages and
conditions of employment which survived the expired
contract. Henhouse Market No. 3, 175 NLRB 596, enfd.
428 F.2d 133 (8th Cir. 1970). They may not be changed
unilaterally unless (a) the changes were made subsequent
to impasse and the Union rejected such changes prior to
impasse , (b) Respondent demonstrated at the time the
23 R. Br at 17-23
changes were made that the Union did not represent a ma-
jority of the unit employees or that Respondent had a
good-faith doubt based on objective considerations of the
Union's continuing majority status, or, (c) the Union
waived its right to bargain concerning the changes.
Cauthorne Trucking, 256 NLRB 721 (1981).24
None of these conditions took place. There was no im-
passe over the Respondent's insurance proposals, and the
Union never rejected them. The insurance changes were
made on September 1, 1980, prior to the time, on Octo-
ber 10, that Respondent even arrived at its alleged good-
faith doubt (testimony of Evans).
Although the Union did write a letter to Respondent
on August 14, this did not constitute a waiver of the
Union's right to bargain over a change in insurance bene-
fits. Respondent's argument distorts the plain meaning of
this letter by selecting one paragraph stop paying into
the old fund, but that it simultaneously start paying into
the new fund. The Union did not "unilaterally discontin-
ue" the old fund, as Respondent argues. Rather, it pro-
posed a change in funds for medical and dental benefits.
Nowhere does the Union's letter state that the old
fund is being discontinued. On the contrary, it explicitly
instructs Respondent to continue pension payments into
the old fund, but to make medical and dental payments
into the new fund. As Gonzales testified, both funds con-
tinued in existence simultaneously, and payments were
received for both funds. The Union's letter did not state
that medical benefits would be terminated if Respondent
failed to comply with the request, and invited a tele-
phone call if there were any questions. This is not a "un-
literal change" by the Union. Rather, it constituted a
written proposal for a change in trust funds, with an in-
vitation to call and discuss the matter.
Respondent chose not to make such call. Instead, seiz-
ing upon the opportunity given it by the Union's letter, it
stopped benefit payments in August and sent a reply on
Friday, August 29, 1980, with a contradiction in terms-
the Union had "unilaterally attempted to require" a
change in trust funds. The following Monday, September
1, Respondent's new plan was in effect through "self-in-
surance." That plan included dental benefits, which the
Union had requested the prior year and which it had
succeeded in corporating in the benefits given by the
new trust fund.
An employer is permitted to modify a condition of em-
ployment provided that it gives timely notice thereof and
the union fails to timely request bargaining. Bay Area
Sealers, supra Respondent protests that the Union made
no reply to Respondent's letter of Friday, August 29.25
What time did Respondent allow for a reply, since the
plan was implemented 48 hours later? Respondent's
weekend notice of the new plan was hardly "timely"
under any standard of bargaining. Its unilateral granting
of dental benefits-after the Union had previously re-
quested same, had incorporated them into new fund, and
after Respondent had refused to make payments into the
new fund-tended to denigrate the Union in the eyes of
24 See also Bay Area Sealers, 251 NLRB 89 (1980), Farmingdale Iron
Works, 249 NLRB 98 (1980), B N Beard Co, 248 NLRB 198 (1980)
11 R Br at 22
IMPERIAL HOUSE CONDOMINIUM
its members. Angell withdrew from the Union because it
did not pay dental benefits. I find that Respondent, utiliz-
ing a distortion of the Union's August 14 proposal as its
justification, unilaterally teminated benefit payments in
August 1980, and instituted its own plan in September.
5. Respondent's Section 302(a) defense
Respondent further argues that any contribution by it
to either fund would have been unlawful because Section
302(a) of the Act prohibits such contributions with the
exception, in Section 302(c)(5)(B), that they may be
made into an employee benefits trust fund, provided that
the detailed basis on which such payments are to be
made is specified in a "written agreement" with the em-
ployer. Respondent notes that the collective-bargaining
agreement had expired.
The Board has previously rejected this argument on
the ground that the expired contract meets the "written
agreement" requirement of the statute. A contrary con-
clusion would ignore the policy considerations underly-
ing enactment of Sections 302 and 8(a)(5), and would
deter rather than enhance the bargaining process.
Wayne's Dairy, 223 NLRB 260, 264-265 (1976).26 Re-
spondent argues that Wayne's Dairy is not dispositive, but
its argument depends on acceptance of Respondent's
view of the underlying facts, a view which I have reject-
ed.
Respondent cites Local 15 v. Stuart Plastering Co., 512
F.2d 1017 (5th Cir. 1975), in support of its argument that
payments to either fund would be illegal. In that case a
collective-bargaining agreement between an employers'
association and a union, signed in December 1968, re-
quired employer contributions into a health and welfare
fund which was anticipated to be created in the future.
The employers' representative, the union' s business
agent , and an insurance broker organized a corporation
into which the employers' representative made payments,
and same were misused by the principals for their per-
sonal benefits. A health and welfare trust agreement was
dated in February 1969.
In a Section 301 suit by alleged trustees of the fund for
recovery of additional moneys from the employers' rep-
resentative, the Court held that the collective-bargaining
agreement was not the kind of "writing" contemplated
by Section 302(c)(5)(B), and, indeed, that the case was an
example of the evils Congress sought to avoid. The pur-
poses of the statute "cannot be accomplished if an em-
ployer's duty to make payments apses in anticipation of
the creation of a trust fund that, as here, may never be
created in fact" (id., 89 LRRM at 2397). The collective-
bargaining agreement could not incorporate by reference
other documents to satisfy Section 302(c)(5)(B) as those
documents were not in existence at the time the agree-
ment was executed. Accordingly, for these and other
reasons, the Court sustained a lower court's denial of re-
covery. It should also be noted that Stuart Plastering,
unlike Wayne's Diary and the instant case, did not in-
volve an accomodation of Sections 8(a)(5) and 302.
26 See also Acme Wire Workers, 251 NLRB 1567 fn 10 (1980), Crest
Beverage Co, 231 NLRB 116 (1977), and authorities cited therein.
1239
By contrast, the contract herein, executed in June 1973
by Respondent' s management corporation and thereafter
amended by Respondent itself, specifies that "there is
presently in operation an insurance fund" for life, acci-
dent, health, and hospitalization protection. (G.C. Exh.
10, art. VII; G.C. Exh. 11). This fund and the new fund
had actual trustees, and they were named in the Union's
August 14 letter to Respondent (G.C. Exh. 14). Re-
spondent had previously made payments into the old
fund, and there is no hint of impropriety in the manage-
ment of either fund. Staurt Plastering is therefore inappo-
site, as are other cases cited by Respondent27
6. Legal conclusion
The law, as enunciated by the Board and the courts, is
clear that an employer's unilateral discontinuance of an
employee health and welfare plan and institution of a
new plan are violative of Section 8(a)(5) and (1) of the
Act,28 and I find that Respondent in such manner has
violated the Act.
In accordance with my findings above, and on consid-
eration of the entire record, I make the following
CONCLUSIONS OF LAW
1. Imperial House Condominium, Inc. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Hotel, Motel, Respondent & Hi-Rise Employees and
Bartenders Union Local 355, AFL-CIO is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. The following unit is now, and has been at all time
material, an appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All employees of the highrise operated by Respond-
ent at Miami Beach, Florida, excluding executives,
department heads, managerial employees, guards
and supervisors ad defined in the Act.29
4. The Union has been the exclusive collective-bar-
gaining representative of Respondent's employees in the
above-described bargaining unit at all times material
herein, and continues to remain such representative for
the purpose of collective-bargaining with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment.
29 Respondent also cites Moglia Y. Geoghegen, 403 F.2d 110 (2d Cir.
1968), for reasons which are invalid as already elucidated in Wayne's
Dairy, supra , 223 NLRB at 264 fn II Respondent also mentions NLRB v.
Amax Coal Co, 101 S Ct 2789 (1981), rev 614 F 2d 872 (3d Cir 1980).
Although the Court sets forth the provisions of Sec 302(a) and its excep-
tion, the issue in the case was whether an employer-appointed trustee of
an employee benefit plan was a "representative" of the employer within
the meaning of Sec 8(b)(i(B)
29 Wayne's Dairy, supra, Pioneer Inn, supra, Clear Pine Mouldings, 238
NLRB 69, 79-80 (1978), enfd 632 F 2d 721 (9th Cir 1980)
29 The complaint alleges and the answer denies the appropriateness of
this unit However, Respondent admitted at the hearing that this was the
same unit which it had recognized as appropriate in prior collective-bar-
gaining agreements and that there had been no change in the unit. With
some change of language, it is the same unit as the one found appropriate
in the 1969 representation proceeding (G C. Exh 7)
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Respondent violated Section 8(a)(5) and (1) of the
Act by the following acts:
(a) Unilaterally discontinuing contributions to the em-
ployees' health benefit fund in August 1980.
(b) Unilaterally instituting its own employee health
benefit program in September 1980.
(c) Withdrawing recognition of the Union on October
10, 1980, and thereafter refusing to bargain with the
Union.
6. The foregoing unfair labor practices constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondet has engaged in certain
unfair labor practices, I recommend that it be ordered to
cease and desist and take certain affirmative action de-
signed to effectuate the policies of the Act. Concerning
the latter, it is recommended that Respondent be re-
quired to bargain on request with the Union, and to
make whole employees in the appropriate unit by paying
all medical and dental benefit contributions required by
the contract which expired on June 30, 1979, to the
extent that such contributions have not been made or
that the employees have not otherwise been made whole
for their ensuing medical and dental expenses: and con-
tinue such payments until Respondent negotiates in good
faith with the Union to a new contract or to an impasse.
This shall include reimbursing employees for contribu-
tions they themselves may have made for the mainte-
nance of similar insurance coverage after Respondent un-
lawfully ceased contribution, for any premiums they may
have paid to third-party insurance companies for medical
and dental coverage, or for payroll deductions by Re-
spondent for the purpose of paying such premiums, and
for any medical and dental bills employees have paid di-
rectly to health providers that the coverage provided for
by the expired contract would have paid.30 Nothing
herein shall be construed to require Respondent to
revoke any insurance plan or other benefits which have
previously been put into effect.31
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed32
ORDER
The Respondent , Imperial House Condominium, Inc.,
Coral Gables, Florida, its officers , agents, successors, and
assigns, shall
1. Cease and desist from
(a) Unilaterally discontinuing contributions to the em-
ployees' health benefit fund established by its last collec-
tive-bargaining agreement with Hotel , Motel , Restaurant
& Hi-Rise Employees & Bartenders Union Local 355,
AFL-CIO, which expired June 30, 1979.
11 Saloon, Inc., 247 NLRB 1105 (1980)
31 Pioneer Inn, 228 NLRB at 1267 supra
32 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(b) Unilaterally instituting its own employee health
benefit program;
(c) Withdrawing recognition from or refusing to bar-
gain in good faith with the above-stated Union concern-
ing wages and other terms and conditions of employment
of employees in the following appropriate unit.
All employees of the highrise operated by Respond-
ent at Miami Beach, Florida, excluding executives,
department heads, managerial employees, guards
and superviors as defined in the Act.
(d) 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) On request, bargain in good faith with Hotel,
Motel, Restaurant & Hi-Rise Employees & Bartenders
Union Local 355, AFL-CIO, concerning the wages,
hours, medical and dental benefit programs, and other
terms and conditions of employment of its employees in
the unit described above; and, if an agreement is reached,
embody it in a written, signed document.
(b) Make whole the employees in the unit described
above by paying all medical and dental benefit contribu-
tions required by the contract which expired on June 30,
1979, to the extent that such contributions have not been
made or that the employees have not otherwise been
made whole for their ensuing medical and dental ex-
penses; and continue such payments until Respondent ne-
gotiates in good-faith with the Union to a new contract
or to an impasse. This shall include reimbursing employ-
ees for contributions they themselves may have made for
the maintenance of similar insurance coverage after Re-
spondent unlawfully ceased contributing, for any premi-
ums they may have paid to third-party insurance compa-
nies for medical and dental coverage, or for payroll de-
ductions by Respondent for the purpose of paying such
premiums, and for any medical and dental bills employ-
ees have paid directly to health providers that the cover-
age provided for by the expired contract would have
paid. Nothing herein shall be construed to require Re-
spondent to revoke any insurance plan or benefits which
have been put into effect prior to this Order.
(c) Post at its place of business in Miami Beach, Flori-
da, copies of the attached notice marked "Appendix." 33
Copies of the notice, on forms provided by the Regional
Director for Region 12, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately on receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
33 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 "
IMPERIAL HOUSE CONDOMINIUM 1241
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply.