Masonic Temple Association of Detroit and 450 Temple, Inc., a Single Employer

National Labor Relations Board - Board Decisions

Nov 29, 2016

364 NLRB No. 150 (N.L.R.B. 2016)

364 NLRB No. 150
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Masonic Temple Association of Detroit and 450 Tem-
ple, Inc., and Local 324, International Union of
Operating Engineers (IUOE), AFL–CIO. Case
07–CA–144521
November 29, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On June 6, 2016, Administrative Law Judge Christine
E. Dibble issued the attached decision. The Respondents
filed exceptions and a supporting brief and the General
Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified and set forth in full below.2

1 In agreeing with the judge that the instant proceeding is not time-
barred, we rely upon established Board precedent holding that the 6-
month limitations period prescribed by Sec. 10(b) of the Act begins to
run only when a party has clear and unequivocal notice of a violation of
the Act; actual or constructive notice will not be found where a party
sends conflicting signals or otherwise engages in ambiguous conduct.
CAB Associates, 340 NLRB 1391, 1392 (2003). Here, prior to January
13, 2015, the Respondents did not manifest a clear and unequivocal
repudiation of their overall bargaining obligation sufficient to begin the
running of the 10(b) period. Although the Respondents had failed to
respond to the Union’s repeated demands to negotiate a new collective-
bargaining agreement, they continued to remit dues and medical and
insurance payments to the Union until May 2014. Moreover, it was not
until January 13, 2015, that the Respondents clearly and unequivocally
informed the Union that they would not recognize or bargain with it
because there were no longer any union members in the bargaining
unit. Accordingly, we agree with the judge that the unfair labor prac-
tice charge filed 3 days later, on January 16, 2015, was timely.
In addition, in affirming the judge’s findings, we do not rely on her
citation to Crete Cold Storage, LLC, 354 NLRB 1000 (2009), a case
decided by a two-member Board. See New Process Steel, L.P. v.
NLRB, 560 U.S. 674 (2010).
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language, to add a description of the bar-
gaining unit, and to provide for the posting of the notice in accord with
J. Picini Flooring, 356 NLRB 11 (2010). We shall substitute a new
notice to conform to the Order as modified.
There are no exceptions to the judge’s grant of an affirmative bar-
gaining order to remedy the Respondents’ unlawful refusal to recognize
and bargain with the Union. Therefore, we find it unnecessary to pro-
vide a specific justification for this affirmative bargaining order. SKC
Electric, Inc., 350 NLRB 857, 862 fn. 15 (2007); Heritage Container,
Inc., 334 NLRB 455, 455 fn. 4 (2001). See also Scepter, Inc., v. NLRB,
280 F.3d 1053, 1057 (D.C. Cir. 2002).
Member Miscimarra believes the Board should evaluate the appro-
priateness of an affirmative bargaining order, which is an “extraordi-
ORDER
The National Labor Relations Board orders that the
Respondents, Masonic Temple Association of Detroit
and 450 Temple, Inc., Detroit, Michigan, a single em-
ployer, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain
with Local 324, International Union of Operating Engi-
neers (IUOE), AFL–CIO as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit.
(b) 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 with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time employees in the
classifications of Chief Engineer, Assistant Chief Engi-
neer, General Maintenance Engineers I and II, and
Maintenance Helpers employed by the Employer at its
facility located at 500 Temple Avenue, Detroit, Michi-
gan, but excluding housekeeping employees, office
clerical employees, temporary employees, guards,
watchmen, supervisors as defined in the Act, and all
other employees.
(b) Within 14 days after service by the Region, post at
its facility in Detroit, Michigan, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondents’ authorized repre-

nary remedy,” Lee Lumber and Building Material Corp. v. NLRB, 117
F.3d 1454, 1461 (D.C. Cir. 1997), by giving “due consideration to the
employees’ section 7 rights,” determining whether “other purposes . . .
override the rights of the employees to choose their bargaining repre-
sentatives,” and evaluating whether “other remedies, less destructive to
employees’ rights, are . . . adequate.” Peoples Gas System, Inc. v.
NLRB, 629 F.2d 35, 46 (D.C. Cir. 1980); see also Lee Lumber, above,
117 F.3d at 1460–1462. However, he agrees that such an evaluation is
unnecessary here given the absence of exceptions to the bargaining
order in this case.
3 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National 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.”
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sentative, shall be posted by the Respondents and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondents cus-
tomarily communicate with their employees by such
means. Reasonable steps shall be taken by the Respond-
ents to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondents have
gone out of business or closed the facility involved in
these proceedings, the Respondents shall duplicate and
mail, at their own expense, a copy of the notice to all
current employees and former employees employed by
the Respondents at any time since January 13, 2015.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. November 29, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with Local 324, International Union of Operating Engi-
neers (IUOE), AFL–CIO (the Union) as the exclusive
collective-bargaining representative of our employees in
the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time employees in the
classifications of Chief Engineer, Assistant Chief Engi-
neer, General Maintenance Engineers I and II, and
Maintenance Helpers employed by the Employer at its
facility located at 500 Temple Avenue, Detroit, Michi-
gan, but excluding housekeeping employees, office
clerical employees, temporary employees, guards,
watchmen, supervisors as defined in the Act, and all
other employees.
MASONIC TEMPLE ASSOCIATION OF DETROIT
AND 450 TEMPLE, INC.
The Administrative Law Judge’s decision can be found
at www.nlrb.gov/case/07–CA–144521 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National La-
bor Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
MASONIC TEMPLE ASSOCIATION OF DETROIT AND 450 TEMPLE, INC. 3
Scott Preston, Esq., for the General Counsel.
Eric I. Frankie, Esq., of Detroit, Michigan, for the Respondent.
Amy Bachelder, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, Administrative Law Judge. This case
was tried in Detroit, Michigan, on November 10, 2015. The
original charge in this case was filed by Local 324, Internation-
al Union of Operating Engineers (IOUE), AFL–CIO (the Un-
ion/Charging Party) on January 16, 2015. The Charging Party
filed amendments to the charge on August 17, and September
9, 2015. On September 14, 2015, the National Labor Relations
Board (NLRB/the Board) Region 7 issued the complaint. The
complaint alleges that Masonic Temple Association of Detroit
(Respondent MTA) and 450 Temple, Inc. (Respondent 450), is
a single employer within the meaning of the National Labor
Relations Act (NLRA/the Act), and since about January 13,
2015, has failed and refused to bargain with the Union as the
exclusive collective-bargaining representative of the unit in
violation of the Section 8(a)(1) and (5) of the Act.
After the trial, the General Counsel, Respondent MTA and
Respondent 450 filed briefs, which I have read and considered.1
Based on those briefs and the entire record, including the testi-
mony of the witnesses and my observation of their demeanor, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent MTA and Respondent 450 are corporations with
an office and facility located at 500 Temple Avenue in Detroit,
Michigan. They have been engaged in the business of operat-
ing a theater, a special events venue, and providing banquet
facilities for various functions. The complaint alleges as fol-
lows:
At all material times, Respondents have been affiliated busi-
ness enterprises with common officers, ownership, directors,
management, and supervision; have formulated and adminis-
tered a common labor policy; have shared common premises
and facilities; have provided services for and made sales to
each other; have interchanged personnel with each other; have
interrelated operations with common purchasing and sales,
and events scheduling; and have held themselves out to the
public as a single integrated business enterprise.
(GC Exh. 1(j)) Respondents filed a joint answer denying that
they are a single-integrated business enterprise and a single
employer within the meaning of the Act. However, Respond-

1 Administrative law judge exhibits are identified as “ALJ Exh.”
General Counsel exhibits are identified as “GC Exh.” Respondent
exhibits are identified as “R. Exh.” Charging Party exhibits are identi-
fied as “CP. Exh.” Joint exhibits are identified as “Jt. Exh.” The hear-
ing transcript is identified as “Tr.” The General Counsel, Respondents,
and Charging Party posthearing briefs are identified as “GC Br.”, “R
Br.”, and “CP Br.”, respectively. Respondent MTA and Respondent
450 filed a joint posthearing brief.
ents presented no evidence at the trial, nor made an argument in
its posthearing brief to support a finding that they are not a
single-integrated business enterprise and a single employer
within the meaning of the Act. The evidence is undisputed that
Respondent 450 was established as the “business arm of the
Temple.” (GC Exh. 8; Tr. 101.) Since the mid to late 1990s
the officers of Respondent MTA have been elected to also
serve as officers of Respondent 450. (Tr. 99; GC Exh. 7.)
Trustees of Respondent MTA can make motions and vote on
decisions affecting Respondent 450. Moreover, Respondent
MTA has 100 percent ownership of Respondent 450. They also
operate out of the same office. Consequently, I find that Re-
spondent MTA and Respondent 4502 are a single-integrated
business enterprise and a single employer within the meaning
of the Act. Rogan Bros. Sanitation, 362 NLRB No. 61, slip op.
at 4 (2015); Bolivar-Tees, Inc., 349 NLRB 720 (2007); Denart
Coal Co., Inc., 315 NLRB 850, 851 (1994); Herbert Industrial
Insulation Corp., 319 NLRB 510, 524 (1995).
During a representative 1-year period, Respondents derived
gross revenues in excess of $500,000 and purchased and collec-
tively received, at its Detroit facility goods valued in excess of
$5000 directly from points outside the state of Michigan. Ac-
cordingly, I find, as Respondents admit, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
I also find, as Respondents admit, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
Background
The backdrop for this dispute is the Masonic Temple (the
Temple) building at 500 Temple Avenue in Detroit, Michigan.
Although it is owned by Respondents, it has been managed by
different entities at various points in its existence. The Temple
is a massive approximately 500,000 square foot building with a
20 story tower that houses different lodge rooms of fraternal
organizations. The building also consists of a 4000 seat theater,
a ballroom, a drill hall, and at various times restaurants. The
Temple is home to Masonic fraternities and is also used to host
public events (e.g., weddings, parties, concerts, live theater).
The Temple began as a financially viable entity. However,
in about 2004, its financial picture began to dim, in part, be-
cause of losses in rental income. The Shriners, who paid ap-
proximately $25,000 in monthly rent, terminated its rental
agreement with Respondent MTA and relocated to Southfield,
Michigan. The following year the Scottish Rite organization,
which also paid about $25,000 in monthly rent, moved its
headquarters from the Temple to Dearborn, Michigan. Some-
time in 2010, the financial situation of the Temple (and by as-
sociation Respondents) further deteriorated. Respondents expe-
rienced difficulty paying utility bills, property taxes, and pay-

2 Since I have found that Respondent MTA and Respondent 450 are
a single-integrated business enterprise and a single-employer, I will
refer to them as “Respondents” except where a clear distinction is re-
quired.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
roll. At some point, Respondents was in arrears on payment to
the Union’s healthcare fund.3
Since about January 2008, Roger Sobran (Sobran) has been
president of Respondents. He is responsible for overseeing the
daily operations of the Temple. Steven Genther (Genther) is
the Temple’s general manager. The record does not establish
his dates of employment at the Temple, except to show that he
has been a supervisor since at least 2007. In 2013 and 2014,
Genther was also a trustee for Respondent 450. James Lloyd
(Lloyd), a full-time bargaining unit employee, began working
as an engineer at the Temple in January 1989. He also served
as the union steward from 2007 until his resignation from his
employment with Respondents on June 30, 2013. During his
tenure at the Temple, Lloyd received successive promotions
from engineer to group leader, assistant chief engineer and
finally chief engineer. When Lloyd resigned there remained
approximately seven bargaining unit engineers employed by
Respondents. Paul Buono (Buono) was also part of the engi-
neering crew and a full-time bargaining unit member at the
Temple. Buono resigned his employment in about June 2014.4
In May 2010, James Arini (Arini) succeeded Tom Scott
(Scott) as the union’s business representative for its stationary
division.5 Since December 2010, Arini has represented the
Temple’s bargaining unit employees. In his role as the business
representative, Arini ensures that bargaining unit members are
represented by negotiating and monitoring the proper enforce-
ment of the collective-bargaining agreement (CBA). He has
also served as the Union’s treasurer for about the past 3-½
years.
Since about 1968, Local 547 IUOE had represented bargain-
ing unit employees working at the Temple. However, in ap-
proximately 2007 or 2008, Local 547 merged and was sub-
sumed into Local 324 IUOE. Consequently, since at least
1968, maintenance engineers, boiler operators, and operating
engineers working at the Temple have been represented by the
Union or its predecessor. These employees have entered into
CBAs with various Temple operators since about 1968. Begin-
ning in the early 1980s until 2007, the Nederlanders operated
the Temple but the unit employees worked for Respondent
MTA. (Tr. 20.) The most recent CBA of record between the
Union and Respondent MTA was effective from August 1,

3 Although a majority of the bargaining unit members were not dues
paying union members, the Union’s healthcare fund was available to all
bargaining unit members. In 2014, one union member and approxi-
mately five nonunion members were receiving health coverage through
the Union’s healthcare fund.
4 James Arini and Sobran provided contradictory testimony on
whether bargaining unit members remained after Buono resigned.
Sobran insisted that after Buono resigned, there were no other bargain-
ing unit members employed by Respondent. He bases this assertion on
the fact that there were no other dues paying union members after Buo-
no resigned. (emphasis added) I find Sobran’s argument is without
merit for reasons discussed more fully in the analysis portion of this
decision.
5 The stationary division is defined as, “[the] operating engineers
that typically operate boilers, refrigeration equipment, chillers, and
maintain office buildings and other buildings throughout the state.” (Tr.
56.)
2003, through July 31, 2006. (GC Exh. 3.) The CBA recog-
nized the unit as:
[A]ll full-time and regular part-time maintenance engineers,
maintenance helpers, watchman and chief engineer employed
by the Employer at its facility located at 500 Temple Avenue,
Detroit, Michigan, but excluding housekeeping employees,
office clerical employees, temporary employees, guards, su-
pervisors as defined in the Act, and all other employees.
(GC Exh. 3.) The evidence also established that the city code
required that commercial buildings use licensed operators to
work on their boiler and refrigeration equipment. Likewise, the
CBAs negotiated by the Union mandated that bargaining unit
employees perform work on those units.6 Although the parties
never agreed to another CBA after its expiration, Respondents
continued to remit dues to the Union that it received from its
union employees. Respondents also continued to make pay-
ments, albeit irregularly, to the Union’s healthcare fund.
From 2007 to 2010, Olympia Entertainment operated the
Temple and employed the unit employees. It entered into a
CBA with the Union, which was effective from January 1, 2008
through December 31, 2009. (GC Exh. 2.) The Union and
Olympia Entertainment agreed to a 30-day extension of the
CBA following its expiration. (GC Exh. 2.) The CBA essen-
tially maintained the same recognition clause as the most recent
CBA between the Union and Respondent MTA with only mi-
nor changes. It recognized the unit as:
[A]ll full-time and regular part-time employees in the classifi-
cation of Chief Engineer, Assistant Chief Engineer, General
Maintenance Engineers I and II, and Maintenance Helpers
employed by the Employer at its facility located at 500 Tem-
ple Avenue, Detroit, Michigan, but excluding housekeeping
employees, office clerical employees, temporary employees,
guards, watchmen, supervisors as defined in the Act, and all
other employees.
(GC Exh. 2.) On or about December 1, 2010, Olympia Enter-
tainment ended its relationship with the Temple and terminated
its employees. It is undisputed that after the expiration of the
contract extension between the Union and Olympia Entertain-
ment, there were no other CBAs in effect between the Union
and other entities affiliated with the Temple. After Olympia
Entertainment left, its dues paying bargaining unit employees,
Lloyd and Buono, and the remaining six to eight non-dues pay-
ing bargaining unit employees became employees of Respond-
ent MTA. Respondent MTA resumed operations of the Temple
with Olympia Entertainment’s exit.
December 15, 2010, Union’s Formal Request to Bargain
In December 2010, Genther approached Lloyd and told him
that Sobran said the Respondent MTA was going to suspend or
refuse to recognize the Union.7 Lloyd informed Scott who

6 Arini provided undisputed testimony about the city code require-
ment, and the mandate of the CBA regarding boiler and refrigeration
work.
7 Sobran denied making the statement. However, I do not find So-
bran’s denial credible. Sobran provided shifting reasons for not engag-
ing in contract negotiations. He also admitted that he felt contract
MASONIC TEMPLE ASSOCIATION OF DETROIT AND 450 TEMPLE, INC. 5
responded that Respondent could not take that action. Lloyd
relayed this information to Genther who said that Sobran, as an
agent of Respondent, had decided to eliminate the Union.
When Lloyd told Scott about the conversation he had with Gen-
ther, Scott stated that Sobran did not have the authority to elim-
inate the Union. During the same timeframe, early December
2010, Arini introduced himself to Lloyd and Genther. He brief-
ly talked with Genther about steps the Union and Respondent
MTA needed to take to negotiate an agreement. However,
Arini did not get a response from Respondent MTA about start-
ing bargaining sessions. Although Sobran denied Arini made
attempts to start contract negotiations, I do not find his denials
credible. It is undisputed that in December 2010, Arini told
Genther that the Union wanted to start contract negotiations
with Sobran, Respondent’s agent. It is equally clear there is no
evidence Sobran responded to this request. Even assuming
Genther did not relay this request to Sobran, it is irrelevant to
Respondent MTA’s obligation to bargain because the request
was made to one of Respondent’s admitted agents, Genther. I
therefore find that Arini communicated to Respondent MTA
that the Union wanted to engage in negotiation of a new CBA
but Sobran failed to respond.
Consequently, by letter dated December 15, 2010, Arini sent
Sobran a written request to bargain over a new CBA. The letter
read:
Please consider this communication the formal request to the
Masonic Temple Association to meet and fulfill its obligation
to bargain with the International Union of Operating Engi-
neers, Local 324 regarding wages, benefits, and working con-
ditions for all Operating Engineers employed at the Masonic
Temple.
(CP Exh. 1.) As a result of Respondent MTA’s failure to re-
spond to the request, in January 2011, the Union filed, with
NLRB, an unfair labor practice charge against Respondent
MTA for refusing and failing to bargain in good faith with the
Union. Subsequently, the parties entered into a settlement
agreement with Respondent MTA agreeing to “recognize the
Union and bargain in good faith as a successor employer” (GC
Exh. 4.)8 Beginning in late January 2011 until May 2011, there
were negotiation sessions between Respondent MTA and the
Union that occurred about once a month.9 Arini and Lloyd

negotiations were pointless because the majority of unit employees
were not dues paying union members. It is therefore more plausible
than not that he told Genther he intended to withdraw recognition of the
Union. Regardless, Arini’s testimony that Genther relayed this infor-
mation to him is undisputed.
8 Sobran testified that he did not understand he was signing an
agreement to bargain in good faith with the Union. I find his denial is
nonsensical because the agreement clearly states that Respondent MTA
agrees to “recognize the Union and bargain in good faith…” (GC Exh.
4) The phrase leaves no room for misinterpretation.
9 Sobran denied that their meetings were bargaining sessions. He
testified that the parties met twice in early 2011 to discuss nonunion
employees’ healthcare coverage. However, I do not find him credible
on this point. Sobran admitted the meetings were held to discuss the
settlement agreement that specifically mandated Respondent MTA
engage in bargaining sessions. Regardless, this point is relatively insig-
nificant to the complaint at issue.
negotiated on behalf of the Union and Sobran and Genther
represented Respondent MTA at the bargaining sessions. The
parties were unable to reach an agreement; and there were no
other bargaining sessions after May 2011.
After their last negotiation session in May 2011, the Union
was informed that a new unnamed entity would take over man-
agement of the Temple; and the Union should wait until the
changeover to negotiate a CBA with it. In the fall of 2011, the
Detroit Masonic Temple Theater Company (DMTTC) took
over management of the Temple. The Union held one negotia-
tion session with DMTTC that occurred in January 2012.
Again, Arini and Lloyd represented the Union with Sobran
representing Respondent MTA and Attorney Mike Smith repre-
senting DMTTC. Within months of its takeover of the Tem-
ple’s operations, DMTTC became involved in a dispute with
Respondent MTA over lease payments. Consequently, the
Union was precluded from engaging in another bargaining
session because of the dispute. In September 2012, Sobran met
with employees to inform them that DMTTC would be leaving.
On November 9, 2012, DMTTC and Respondent MTA ended
their association. Shortly thereafter it was decided that Re-
spondent 450 would become the for-profit business arm of the
Temple and take over its management. Respondent MTA was
organized as the nonprofit side of the Temple. There is no
evidence that employees were notified by Respondent MTA
that Respondent 450 was taking over management of the Tem-
ple.10
Attempts to Engage in Collective Bargaining from
2012 to January 2015
From late 2012 to January 13, 2015, Arini made multiple at-
tempts to restart contract talks between the Union and Re-
spondents. During this period, he would visit the Temple
monthly and frequently telephone the office in an effort to get
Sobran to respond to his queries about scheduling bargaining
sessions. He would leave messages for Sobran with the recep-
tionist and, or Genther who both assured him that they would
give Sobran the messages. While admitting that he had not
been very aggressive in his attempts because of the Temple’s
precarious financial situation, nevertheless, in October 2014,
Arini increased his efforts to get a CBA in place because the
Union’s last dues paying member, Buono, had resigned in June
2014; and the Respondents were demanding that the Union
refund the medical/insurance payments made by them on behalf
of Buono. From October 2014, through January 2015, Arini
spoke primarily with Genther about Respondents’ arrears to the
Union’s healthcare fund but would always end the conversation
by reminding Genther that he needed to speak with Sobran
about starting contract talks. During several of these discus-
sions, Arini informed Genther that if a contract was not negoti-

10 Lloyd provided undisputed testimony that he did not notice Re-
spondent 450 was managing the Temple until about June 2012, when
his checks started being issued by it. After the changeover, the terms
and conditions of his employment (and presumably that of the other
employees) remained unchanged, including work equipment, work
rules, work policies, and suppliers. Genther, who was Lloyd’s direct
supervisor under Olympia Entertainment’s management and Respond-
ent MTA, continued as his direct supervisor.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ated soon, the Union’s trustees were going to discontinue ex-
tending healthcare coverage to nonunion employees. Genther
would always assure him that he would relay the message to
Sobran.
January 13, 2015 Attempts to Start Collective-Bargaining
Sessions
On January 13, 2015, Arini was finally able to speak with
Sobran on the telephone about starting negotiation sessions. At
some point in the discussion, Arini told Sobran that the Union’s
trustees would no longer fund healthcare for nonunion employ-
ees if a CBA was not negotiated. Arini also informed Sobran
that the Union would file an unfair labor practice charge with
the NLRB unless he agreed to negotiate. Sobran refused by
telling Arini that Respondents would never again be a union
employer because Michigan was now a right-to-work state.11
Following the conversation, Arini filed the charge at issue with
NLRB alleging that Respondents, as a single employer, failed
and refused to bargain in good faith. Arini has not contacted
Respondents since their failed discussion on January 13, 2015.
Discussion and Analysis
The 8(a)(1) and (5) Violation—Failure to Bargain
in Good Faith
Section 8(a)(1) of the Act reads that it is an unfair labor prac-
tice for an employer “to interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed in section 7.”
Section 8(a)(5) prohibits an employer from refusing to “bargain
collectively” with its employees’ representatives. The good-
faith standard is used by the courts and the Board to determine
if the parties have met their obligation to bargain under the Act.
The Board takes a case-by-case approach in assessing whether
parties have met, conferred, and negotiated in good faith. Na-
tional Licorice Co. v. NLRB, 309 U.S. 350 (1940) (the Court
adopted the “good faith” standard for an employer’s conduct);
St. George Warehouse, Inc., 349 NLRB 870 (2007) (the Board
reviews the totality of the employer’s conduct in deciding if the
employer has satisfied its obligation to confer in good faith).
Respondents deny violating the Act by arguing that (1) the
unfair labor practice charge at issue is untimely; (2) the Union
never made a valid demand to bargain; and (3) the Union is not
the exclusive representative of a majority of Respondents em-
ployees in an appropriate bargaining unit. The General Coun-
sel contends, however, that Respondents’ reasons for refusing
to bargain with the Union are invalid. According to the Gen-
eral Counsel, the law does not support the premise that expira-
tion of a CBA relieves the employer from engaging in good-
faith bargaining if requested by a union. The General Counsel
also argues that the evidence is clear the Union made several
demands to bargain; and Respondents’ argument that it can
withdraw union recognition because the remaining employees
are nonunion is contrary to Board law. Last, the General Coun-

11 Sobran denied making this comment and disagreed with Arini’s
version of the discussion. I do not find Sobran credible on this point.
During his testimony, Sobran admitted several times that he understood
Arini was trying to get him to negotiate a CBA by threatening to file a
charge against Respondents for refusing to bargain. (Tr. 121, 124 &
133–134.)
sel contends that Sobran admitted that the Union presented him
with a request to bargain on January 13, 2015, thus making the
complaint timely.
Complaint is timely under Section 10(b) of the Act
Respondents contend that the unfair labor practice charge at
issue was filed outside of the 6-month limitation period set
forth in Section 10(b) of the Act. Specifically, Respondents
argue that the Union was aware as early as December 2010 that
“Sobran and Respondents were, allegedly, refusing to bargain
in good faith.” (R. Br. 6.) Respondents points to Lloyd’s and
Arini’s actions noting Lloyd admitted that he learned in De-
cember 2010 that Sobran did not want to bargain with the Un-
ion and “Sobran did not change his position on this issue from
December, 2010, until June 30, 2013.” Id. Respondents also
note Arini telephoned Sobran on January 13, 2015, because
Arini believed that since the January 16, 2011 settlement
agreement, Respondents had not responded to the Union’s re-
quest to bargain or Arini’s monthly attempts to contact Sobran
to request bargaining. (R. Br. 5.)
I find that Respondents’ argument is without merit. As pre-
viously noted, in December 2010, Lloyd learned that Sobran
was threatening not to recognize the Union. The facts establish
that from December 2010 to 2013, Lloyd did not submit a writ-
ten demand to bargain to Sobran or Genther. Nonetheless, on
December 15, 2010, the Union submitted a written request to
bargain to Respondent MTA; and filed an unfair labor practice
charge with the NLRB when Respondent MTA failed to re-
spond to the demand. The parties entered into a settlement
agreement whereby Respondent MTA agreed to “bargain in
good faith as a successor employer.” (CP Exh. 1; GC Exh. 4)
Consequently, it is irrelevant that Lloyd, as a union steward, did
not submit a demand to bargain because Arini, in his official
capacity as the union’s business representative, submitted a
request to bargain soon after Lloyd learned of Respondents
refusal to recognize the Union, which ultimately led to Re-
spondent MTA’s consent to bargain. I also find that it was not
unreasonable for the Union to assume after the January 2011
settlement agreement that Respondents would continue to rec-
ognize it as the exclusive representative for Respondents’ bar-
gaining unit employees. Further, Respondents continued to
remit union dues and make healthcare contributions to the Un-
ion’s healthcare trust fund until at least May 2014. Respond-
ents also made payments for Lloyd’s and Buono’s health insur-
ance until their resignations in June 2013, and May 2014, re-
spectively. Given these facts, I do not find that it is plausible
Respondents would have informed the Union prior to May
2014 that it was withdrawing recognition and refusing to bar-
gain with the Union.
The record also establishes that despite Arini’s repeated at-
tempts to contact him, Sobran would not respond to him until
their telephone conversation on January 13, 2015. It was dur-
ing this conversation that Sobran told Arini that because there
were no longer any union members working for Respondents,
he did not feel it necessary and would not bargain with the
Union. There is no evidence that between May 2014, and Jan-
uary 13, 2015, Respondents informed the Union that it would
not recognize it as the exclusive bargaining representative of an
MASONIC TEMPLE ASSOCIATION OF DETROIT AND 450 TEMPLE, INC. 7
appropriate bargaining unit, and would not bargain with the
Union for a new CBA. It is clear, therefore, that January 13,
2015, is when the Union was made aware of Respondents’
decision not to recognize and/or bargain with it. The charge in
this case was filed 3 days later, well within the 6-month time
period established in Section 10(b) of the Act.
Accordingly, I find that Respondents argument that the com-
plaint at issue it untimely is without merit.
Respondents failed to rebut the presumption of majority
union support
It is presumed that an incumbent union retains its majority
status. This presumption is irrefutable during the term of a
CBA that does not exceed 3 years. Trailmobile Trailer, LLC,
343 NLRB 95, 97–98 (2004); Auciello Iron Works, Inc. v.
NLRB, 517 U.S. 781, 785–787, 116 S.Ct. 1754, 135 L.Ed.2d 64
(1996). If, however, a CBA has expired, the presumption that
the incumbent union has majority status is rebuttable. NLRB v.
Curtin Matheson Scientific, 494 U.S. 775, 778 (1990); McDon-
ald Partners, Inc. v. NLRB, 331 F.3d 1002, 1004 (D.C.Cir.
2003). The Board has held, “an employer may rebut the con-
tinuing presumption of an incumbent union’s majority status,
and unilaterally withdraw recognition, only on a showing that
the union has, in fact, lost the support of a majority of the em-
ployees in the bargaining unit.” Levitz Furniture Co., 333
NLRB 717, 725 (2001). See also Champion Home Builders
Co., 350 NLRB 788, 791 (2007).
In the case at hand the CBA has expired. Consequently,
there is a rebuttable presumption that the Union retains its ma-
jority status. Respondents have the burden of proof on this
point. I find, however, that Respondents have failed to sustain
its burden.
The only “evidence” Respondents present to support its ar-
gument that the Union lost its majority status is Sobran’s testi-
mony that after Buono resigned, none of the remaining workers
told him that they were currently or wanted to be union mem-
bers. This argument was reiterated in the posthearing brief
filed by Respondents’ counsel. The posthearing brief reads in
relevant part,
Sobran testified, without contradiction, that no current em-
ployees of Respondents have indicated that they are or wish to
be Charging Party’s members. Arini admitted that he had no
idea of how many of Respondents’ employees could possibly
be in Charging Party’s claimed bargaining unit. Thus, Sobran
was correct in January, 2015, to tell Arini that there would be
not (sic) purpose to bargain because Charging Party had no
members on site.
(R. Br. 7.) Respondents’ argument is contrary to current Board
law. In Anderson Lumber Co.12 the Board adopted the admin-
istrative law judge’s decision holding that bargaining unit em-
ployees’ union membership status is not determinative of the
employer’s obligation to bargain. On appeal, to the United
States Court of Appeals, District of Columbia Circuit noted that
the Levitz rule did not create a rule “requiring employees to
expressly state that they no longer want the union to represent

12 360 NLRB No. 67 (2014).
them.”13 See also Crete Cold Storage, LLC, 354 NLRB 1000,
fn. 2 (2009) (determination of majority support turns on wheth-
er a majority of unit employees wish to be represented by a
particular union, not on whether a majority choose to become
members of the union).
The record is devoid of evidence showing that action was
taken by the remaining bargaining unit employees to express
their lack of support for the incumbent Union. Respondents
failed, for example, to present a petition from the majority of
remaining bargaining unit employees seeking to decertify the
Union; present statements from the majority of remaining bar-
gaining unit employees that they no longer wished to be repre-
sented by the Union; or present other substantive evidence that
the majority of the bargaining unit employees wanted to with-
draw their support of the incumbent Union. Since Levitz, the
Board has consistently held that evidence of a desire to with-
draw from membership in the union is insufficient proof that
the Union has in fact lost the support of a majority of the unit.
In Pacific Coast Supply the court noted,
The Board has long maintained a distinction between an em-
ployee’s desire to be represented by a union, and his or her
desire to be a member of a union. Whether a union has “ma-
jority support turns on whether most unit employees wish to
have union representation, not on whether most unit employ-
ees are members of a particular union.”“
Id. at 327 (quoting Trans-Lux Midwest Corp., 335 NLRB 230,
232 (2001). Respondents fail to grasp this distinction.
Accordingly, I find that the evidence shows the Union has
maintained its majority support even after the expiration of the
CBA, which Respondents failed to rebut.
The bargaining unit at issue is appropriate for
collective bargaining
In its answer to the complaint, Respondents deny that the
employees identified in paragraph nine of the complaint consti-
tute a unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act. Respondents, however,
presented no argument or evidence to support its position. The
bargaining unit is the same unit that is contained in the 2006
CBA with Respondent MTA and the 2008 CBA with Olympia
Entertainment. (GC Exhs. 2, 3.) It is also the same bargaining
unit agreed upon by the parties in the January 2011 settlement
agreement recognizing the bargaining unit as,
All full-time and regular part-time employees in the classifica-
tions of Chief Engineer, Assistant Chief Engineer, General
Maintenance Engineers I and II, and Maintenance Helpers
employed by the Employer at its facility located at 500 Tem-
ple Avenue, Detroit, Michigan, but excluding housekeeping
employees, office clerical employees, temporary employees,
guards, watchmen, supervisors as defined in the Act, and all
other employees.
(GC Exh. 4.) Lloyd provided undisputed testimony that there
were approximately seven bargaining unit engineers when he
resigned in June 2013. Likewise, Sobran acknowledged that
there are about six to eight current employees (general building

13 Pacific Coast Supply, LLC v. NLRB, 801 F.3d 321, 331 (2015).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
maintenance and a part-time engineer) who fit within the de-
scription of the bargaining unit set forth in the January 2011
settlement agreement. (Id.) Moreover, Arini testified, without
contradiction, that the city code required licensed operators to
work the Temple’s boiler and refrigeration equipment; and the
successive CBAs mandated that this work be performed by
bargaining unit employees. Respondents presented nothing to
contradict these facts.
Based on the evidence, therefore, I find that the Union is the
exclusive representative of Respondents’ employees in an ap-
propriate bargaining unit.
The Union made a valid demand to bargain which
Respondents refused
Respondents contend that the complaint should be dismissed
because the Union “did not make any written demand to bar-
gain to Respondents since the settlement agreement (G C Exh.
4) was entered [into] January, 2011.” (R. Br. 6.) I find however
that the evidence shows the Union made repeated requests to
bargain with Respondents.
The counsel for the General Counsel rightly notes in his
posthearing brief that during his testimony Sobran admitted
during their telephone conversation on January 13, 2015, Arini
was trying to get him to “negotiate” by threatening to file an
unfair labor practice charge with the NLRB. Sobran testified,
Well, I think the beginning of the call, I felt a little threatened
that he was just trying to threaten me into negotiating with
him. My question to him was negotiate what; we have no un-
ion people…
(Tr. 121–122.) Despite his subsequent attempt to reframe the
conversation with Arini as a “chat”, Sobran’s own words show
that he clearly understood that Arini was asking him to negoti-
ate a new CBA. He also acknowledged that he believed Arini
“wanted to come in and negotiate an agreement for people” that
in his mind “aren’t even represented by the union.” (Tr. 133–
134.) Moreover, the chain of events leading to the January 13,
2015 telephone call support a finding that Respondents were
aware of the Union’s demand to bargain and attempts to get
negotiations scheduled. First, there was the December 15, 2010
written demand to bargain, followed by the January 2011 unfair
labor practice charge and subsequent settlement agreement
mandating Respondent MTA engage in good-faith bargaining
with the Union. From December 2012, to January 13, 2015,
Arini made monthly visits to the Temple expressing to Genther
on seven to eight occasions the Union’s desire to negotiate a
contract, and to tell Sobran of the need to schedule negotiating
sessions. These actions culminated in the Union’s final de-
mand to bargain made in January 2015.
Accordingly, I find that the Union made a valid demand to
bargain which Respondents refused in violation of Section
8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. By failing and refusing to bargain with the Union as as
the exclusive collective-bargaining representative of unit em-
ployees, Respondents violated Section 8(a)(1) and (5) of the
Act.
2. The above violation constitutes an unfair labor practice
that affects interstate commerce within the meaning of the Act.
3. Respondents have not otherwise violated the Act.
REMEDY
Having found that Respondents committed the unfair labor
practice set forth above, I shall order it to cease and desist from
its unlawful conduct and to post an appropriate notice and take
other affirmative action designed to effectuate the purposes of
the Act. More specifically, Respondent will be ordered to rec-
ognize and bargain in good faith with the Union for a reasona-
ble period of time over the establishment of a collective-
bargaining agreement.
On these findings of fact and conclusions of law, and on the
entire record herein, I issue the following recommended14
ORDER
The Respondents, Masonic Temple Association of Detroit
and 450 Temple, Inc., a single employer, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with, or withdrawing recognition
from, the Union as the exclusive bargaining representative of
the unit employees at Respondents facility located at 500 Tem-
ple Avenue in Detroit Michigan.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of right guaranteed them
in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from a request, bargain collectively with
the Union as the exclusive bargaining representative of unit
employees at Respondents 500 Temple Avenue facility located
in Detroit, Michigan.
(b) Within 14 days after service by the Region, post at Re-
spondents’ facility at 500 Temple Avenue in Detroit, Michigan
copies of the attached notice marked “Appendix.”15 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 7, after being signed by the Respondents’ authorized rep-
resentative, shall be posted by the Respondents 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 Respondents to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondents have gone out of business or closed
the facilities involved in these proceedings, the Respondents
shall duplicate and mail, at its own expense, a copy of the no-

14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulation, the findings, conclusions and recom-
mended order herein shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be waived for all
purposes.
15 If this order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MASONIC TEMPLE ASSOCIATION OF DETROIT AND 450 TEMPLE, INC. 9
tice to all current employees and former employees employed
at those facilities by Respondent at any time since January 13,
2015.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondents have taken to comply.
Dated at Washington, D.C. June 6, 2016.
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
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain with, or withdraw recognition
from, the Union as the exclusive bargaining representative of
the employees at Respondents’ facility at 500 Temple Avenue
in Detroit, Michigan.
WE WILL NOT, in any like or related manner interfere with,
restrain, or coerce employees in the exercise of right guaranteed
them in Section 7 of the Act.
WE WILL, within 14 days from a request, bargain collectively
with the Union as the exclusive bargaining representative of
employees employed at our facility at 500 Temple Avenue in
Detroit, Michigan.
MASONIC TEMPLE ASSOCIATION OF DETROIT AND 450
TEMPLE, INC.