Jackson Terrace Associates

National Labor Relations Board - Board Decisions

Dec 30, 2005

346 N.L.R.B. 180 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 18
180
Jackson Terrace Associates and Delano Thompson
and National Organization of Industrial Trade
Unions (NOITU) and Industrial Production
Employees Union, Local 72, affiliated with
NOITU. Case 29–RD–1037
December 30, 2005
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On March 24, 2005, the Regional Director for Region
29 issued a Decision and Direction of Election in the
above-entitled proceeding in which he found that a col-
lective-bargaining agreement between Jackson Terrace
Associates (Employer) and National Organization of
Industrial Trade Unions (NOITU) and Industrial Produc-
tion Employees Union, Local 72, affiliated with NOITU
(Intervenors), does not bar the instant decertification pe-
tition because it is not clear that the agreement was
signed before the petition was filed. Thereafter, pursu-
ant to Section 102.67 of the National Labor Relations
Board’s Rules and Regulations, the Employer and the
Intervenors filed timely requests for review in which they
contend that the agreement was signed on December 31,
2004, before the petition was filed on January 18, 2005.
The Petitioner filed a brief in opposition.
On April 19, 2005, the Board granted the requests for
review.
Having carefully considered the entire record in this
proceeding, we find, contrary to the Regional Director,
that the Employer and the Intervenors signed the agree-
ment before the Petitioner filed his decertification peti-
tion, and that the agreement is a bar to the petition.
I.
The Employer operates a residential apartment com-
plex in Hempstead, New York. The Intervenors, who
jointly represent the Employer’s building services em-
ployees, and the Employer are parties to a 3-year collec-
tive-bargaining agreement that expired on December 31,
2004.1 Peter Pacheco, then Local 72’s vice president,
testified that, on December 30, the Employer and the
Intervenors agreed to the terms of a successor contract,
except for wage and pension issues which they agreed to
send to interest arbitration. Pacheco further testified that
he told the unit employees that an agreement had been
reached, but that wage and pension issues would be sent
to interest arbitration. Pacheco stated that, on December
30, he phoned his office and spoke with a secretary

1 All subsequent dates are in 2004 unless otherwise indicated.
named Janet.2 Pacheco told Janet the terms of the
agreement and directed that she prepare a document in-
corporating those terms for signature by the parties and
send it to the Employer by fax or overnight mail.
Pacheco testified that Janet has been with the Intervenors
for approximately 15 years and that she has experience in
preparing documents in this fashion.
The agreement is a 2-page document containing an ef-
fective date and a termination date. The agreement spe-
cifically states that the terms of the agreement are those
of the predecessor contract that expired December 31,
with several modifications. The agreement further states
that the parties agree to submit wage and pension issues
to interest arbitration before a specifically-named arbitra-
tor. The agreement contains the signatures of Local 72’s
president at the time, Helen Lasky; National NOITU
President Gerard Jones; and Peter Florey, the Employer’s
representative. The date “12/31/04” is handwritten on
the document.
Jones testified that the clerical employee assigned to
prepare the agreement gave it to him to sign “towards the
end of the year.” Jones signed the agreement and testi-
fied that he witnessed Helen Lasky sign the agreement.
Although neither Jones nor Lasky dated the agreement
when they signed it, Jones testified that the Employer’s
signature and a date were not on the agreement when he
and Lasky signed it. Jones asked the clerical employee
to send the agreement to the Employer for signature.
Florey, the Employer’s property manager, testified that
after Richard Smith, the Employer’s negotiator, gave him
the agreement and told him that it was accurate, he
signed the agreement on December 31, and wrote
“12/31/04” on the agreement. Florey further testified
that the signatures of Jones and Lasky were already on
the agreement when he signed and dated it.
Pacheco testified that he next saw the agreement dur-
ing the first week of January 2005, when he returned to
his office from vacation, and that the agreement had been
signed by Florey, Jones, and Lasky and dated
“12/31/04.” Pacheco also testified that he recognized the
signatures of Jones and Lasky on the agreement because
he has had a 20-year working relationship with them.
Pacheco further stated that on January 5, 2005, he sent a
letter to the arbitrator named in the agreement requesting
that the arbitrator set a date for interest arbitration on the
wage and pension issues, as the parties had specified in
their agreement. On January 11, 2005, the designated
arbitrator faxed letters to the parties setting an arbitration

2 Pacheco had returned from vacation for the December 30 bargain-
ing session and did not return to the Intervenors’ local office until early
January 2005.
JACKSON TERRACE ASSOCIATES 181
date. On January 18, 2005, the Petitioner filed the decer-
tification petition.
The Regional Director found that “as a legal matter,”
the contract asserted as a bar to the decertification peti-
tion contained “substantial terms and conditions” and
would bar an election if it were executed before the peti-
tion was filed.3 The Regional Director viewed the “real
question” in this case as a factual one—whether the
agreement was signed before the decertification petition
was filed. The Regional Director found that inconsisten-
cies in the testimony and documentary evidence made it
impossible to determine when the agreement was actu-
ally signed and that the evidence therefore was too uncer-
tain to permit a finding that it was signed before the de-
certification petition was filed. The Regional Director
accordingly concluded that the agreement did not bar the
decertification petition.
II.
Contrary to the Regional Director, we find that the
Employer and the Intervenors signed the agreement be-
fore the Petitioner filed his decertification petition on
January 18, 2005, and that the agreement constitutes a
bar to the petition.
The Board has long held that, for contract bar pur-
poses, an agreement must meet certain formal and sub-
stantive requirements, including the requirement that the
document proposed as a bar be signed by the parties to
the agreement prior to the filing of a petition that it
would bar. Appalachian Shale Products Co., 121 NLRB
1160, 1162 (1958). A contract signed after the filing of a

3 Appalachian Shale Products Co., 121 NLRB 1160 (1958). Al-
though the Petitioner did not file a request for review contesting this
finding, in its statement in opposition to the requests for review, the
Petitioner suggests that the parties had not reached any agreement by
December 31. The Petitioner further suggests that the written agree-
ment asserted as a bar to its petition does not contain, on its face, “sub-
stantial terms and conditions of employment deemed sufficient to stabi-
lize the bargaining relationship,” as Appalachian Shale requires, inas-
much as the agreement merely adopts the terms of the prior agreement
and leaves certain issues open and subject to interest arbitration. In
Stur-Dee Health Products, 248 NLRB 1100, 1101 (1980), cited by the
Regional Director, the Board stated that the failure of an agreement to
delineate every possible provision does not negate the bar quality of the
agreement. The Board also stated that a provision to leave economic
items, such as wages and pension issues, to interest arbitration, does not
mean that the agreement may not operate as a bar. Id. As in Stur-Dee,
the Employer and the Intervenors have a long history of collective
bargaining and they have been parties to a series of collective-
bargaining agreements containing provisions for, inter alia, recognition
of the unit, mediation and arbitration, vacations, holidays, hours of
work, union security, seniority, and dues checkoff. Here, the agree-
ment provides the “requisite degree of labor relations stability to consti-
tute a bar” to the petition where the agreement specifically retains the
terms of the parties’ prior collective-bargaining agreement. Moreover,
the parties have included in their agreement a “definite and readily
ascertainable method for determining economic terms.” Id.
petition does not serve as a bar to an election. Id. at
1161–1162. The party asserting that a contract operates
as a bar bears the burden of proving that the agreement
was signed by the parties prior to the filing of a petition.
Roosevelt Memorial Park, Inc., 187 NLRB 517 (1970).
See also Appalachian Shale, supra at 1160.
The agreement at issue in this case is signed by the
Employer’s representative, Peter Florey, and by the In-
tervenors’ representatives, Helen Lasky and Gerard
Jones. The sole issue in this case is the date on which
the parties’ representatives actually signed the agree-
ment. While the agreement’s stated execution date is
“12/31/04,” it is not readily apparent from the document
which signatory actually signed the document on De-
cember 31, which signatory dated the document, or
whether any or all of the signatories signed the document
on December 31. Where, as here, the execution date is
not clear from the face of the document, the Board may
look to evidence outside the document to ascertain the
execution date. Road & Rail Services, 344 NLRB 388
(2005), and cases cited therein.4
The extrinsic evidence shows that the parties to the
agreement signed it on December 31. As an initial mat-
ter, it is undisputed that Lasky, Jones, and Florey pos-
sessed the authority to sign the agreement on behalf of
the Intervenors and the Employer. Jones’ undisputed
testimony shows that he signed the agreement before the
end of the year and that Lasky signed the agreement in
his presence. Florey’s undisputed testimony shows that
he signed the agreement and dated it “12/31/04.” Florey
also testified that when he received the agreement, the
signatures of Jones and Lasky were already on the
agreement. Additionally, Pacheco testified that, pursuant
to the terms of the agreement, he contacted an arbitrator
on January 5, 2005.5 The Petitioner presented no testi-
mony to contradict or discredit the testimony of Jones,
Florey, and Pacheco concerning the circumstances sur-
rounding the execution of the agreement.6
The Petitioner requests that the Board consider evi-
dence regarding whether the parties actually reached an
agreement at the bargaining table. That issue, however,
is not before us. Further, the Petitioner did not produce

4 Cf. Cooper Tank & Welding Corp., 328 NLRB 759 (1999) (ab-
sence of an execution date on a contract does not remove the contract
as a bar to a petition if it can be established that the contract was, in
fact, signed before a petition was filed).
5 Pacheco’s letter to the arbitrator and the arbitrator’s response cor-
roborate that the contract was in effect prior to the date on which the
decertification petition was filed. Cooper Tank & Welding, supra at
759.
6 Even the Regional Director points out that his doubts about a De-
cember 31 execution date do not necessarily mean that the agreement
was signed after the petition was filed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD182
evidence to establish that the signing of the agreement
was contrived. The Petitioner does not attack the signa-
tories’ authority to sign the document. The Petitioner did
not present testimony or evidence to contradict the Em-
ployer’s and Intervenors’ witnesses who testified that
they signed the agreement on or before December 31.
Additionally, it is undisputed that there are letters dated
prior to the filing of the petition to and from the arbitra-
tor named in the agreement regarding sending wage and
pension issues to interest arbitration, as specified in the
agreement.7
We find the cases on which the Regional Director re-
lied in reaching his conclusions to be distinguishable.
For example, in Bo-Low Lamp Corp., 111 NLRB 505
(1955), and Roosevelt Memorial Park, Inc., 187 NLRB
517 (1970), the parties presented inconsistent testimony
as to the date on which they signed a contract. The
Board held in both cases that the “vague, ambiguous, and

7 The Regional Director, based on the Petitioner’s contentions, ex-
pressed his concerns about the agreement and its execution, remarking
that there are, in his view, many unanswered questions about the
agreement. We find those concerns to be without merit. The Regional
Director questioned why Helen Lasky’s signature on the agreement
looked different from her signature on a January 19, 2005 letter to
employees. Although on the face of the two documents Lasky’s signa-
tures look different, no party alleged at the hearing, and there is nothing
in the record to suggest, that her signature on the agreement is fraudu-
lent. Jones testified that Lasky signed the agreement in his presence
and that he recognized her signature. Pacheco testified that he recog-
nized Lasky’s signature based on a 20-year working relationship with
her. Further, there is no evidence that the signature on the letter that the
Regional Director used for comparison to the agreement is actually that
of Lasky.
We find that the Regional Director’s remaining concerns are
speculative at best and essentially relate to the reaching of an agree-
ment at the bargaining table and not to the question at hand of whether
the Employer and Intervenors signed the agreement prior to the filing
of the petition.

inconsistent” testimony introduced to establish the con-
tract’s execution dates was insufficient. In the present
case, however, unlike both Bo-Low Lamp and Roosevelt
Memorial Park, testimony about the execution date is
neither vague nor inconsistent.
Road & Rail Services, Inc., supra, which issued after
the Regional Director’s decision in this case, also in-
volved inconsistent testimony. In that case, the issue was
whether one of three contracts operated as a bar to a peti-
tion. Two signatories did not testify, and the intervenor
presented inconsistent testimony as to whether it had a
contract with the employer. Under these facts, the Board
found “sufficient uncertainty” as to the date of a bar-
worthy contract because “neither of the parties asserting
contract bar has met its burden of presenting evidence
sufficient to overcome and resolve the myriad uncertain-
ties in [the] case.” Id. at slip op. 3. By contrast to Road
& Rail Services, there is no similar confusion or uncer-
tainty in this case: there is but one document; the docu-
ment is signed by the required signatories; and there is
uncontradicted and corroborating testimony from two of
the three signatories about the agreement’s execution.
We find, therefore, based on the entire record, that the
Employer and the Intervenors have met their burden of
showing that they signed their agreement on or before
December 31, prior to the January 18, 2005 date on
which the Petitioner filed a decertification petition. We
further find, contrary to the Regional Director, that the
December 31, 2004 agreement constitutes a bar to the
decertification petition. Accordingly, we reverse the
Regional Director’s Decision and Direction of Election
and dismiss the petition.
ORDER
The petition is dismissed.