National Management Consultants

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 405 (N.L.R.B. 1993)

405
313 NLRB No. 51
NATIONAL MANAGEMENT CONSULTANTS
1 On June 16, 1993, Administrative Law Judge D. Barry Morris
issued the attached decision. The General Counsel filed exceptions
and a supporting brief. The Respondents filed exceptions, and the
General Counsel filed a motion to strike, contending, inter alia, that
the Respondents’ exceptions were untimely filed. We have treated
the Respondents’ exceptions as cross-exceptions, which are therefore
timely filed, and we accordingly deny the General Counsel’s motion.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. 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.
3 The judge inadvertently neglected to include a notice in his rec-
ommended Order. Accordingly, we include the notice here.
4 The Respondents did not except to these findings.
5 All dates are in 1991 unless otherwise noted.
6 Chairman Stephens and Member Raudabaugh would also rely on
that portion of Esterline Electronics Corp., 290 NLRB 834, 835
(1988), which deals with conditional offers. The Board stated that
a letter offering reinstatement to a discriminatee will be deemed in-
valid ‘‘if the letter on its face makes it clear that reinstatement is
dependent on the employee’s returning on the specified date or if the
letter otherwise suggests that the offer will lapse if a decision on re-
instatement is not made by that date.’’ In the instant case, the Re-
spondents’ letters made it clear that reinstatement was dependent on
an employee’s responding within 5 business days. Phrased dif-
ferently, the offer could lapse if the employees did not respond with-
in that period. Thus, the offer was invalid.
National Management Consultants, Inc. and 775
and 156-08 Riverside Drive Realty Corp. and
Milo Alexander and Local 32B-32J, Service
Employees International Union, AFL–CIO.
Cases 2–CA–25386 and 2–CA–25524
November 24, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case
present the issue of whether the Respondents validly
offered reinstatement to two discharged unfair labor
practice strikers, thereby tolling backpay to these em-
ployees.1
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 rul-
ings, findings,2 and conclusions and to adopt the rec-
ommended Order,3 as modified below.
The judge found, inter alia, that employees Ray-
mond Ortiz and Milo Alexander were unfair labor
practice strikers and that they were discharged by the
Respondents because of their participation in the strike,
in violation of Section 8(a)(3) and (1) of the Act.4 The
judge further found that by letters dated September 23,
1991,5 the Respondents offered reinstatement to Ortiz
and Alexander, and the judge accordingly tolled the
Respondents’ backpay liability to them as of Septem-
ber 23.
The General Counsel, inter alia, excepts to the
judge’s finding that the September 23 letters con-
stituted valid offers of reinstatement. We find merit in
this exception for the reasons stated below.
The Respondents’ September 23 letters to Ortiz and
Alexander stated:
In view of your actions, management has had
no choice but to replace you.
However, due to your fine performance at the
position you held, management would be agree-
able to reinstating you if you return to work im-
mediately.
Should you decide that you would like to return
to work, please notify me within five (5) business
offer of days. If I do not hear from you I will
have no choice but to search for permanent re-
placements.
We find that the Respondents’ letters do not con-
stitute valid offers of reinstatement. As discharged un-
fair labor practice strikers, Ortiz and Alexander were
discriminatees entitled to an unconditional offer of re-
instatement and to backpay. Tamara Foods, 258
NLRB 1307, 1309 (1981); Park Inn Home for Adults,
293 NLRB 1082, 1089 (1989). The Respondents,
therefore, had no legitimate basis for conditioning their
continued right to reinstatement and backpay on their
complying with the letters’ requirement to respond
within 5 business days or be permanently replaced.
That condition had the effect of subordinating their re-
medial rights to the rights of employees hired to re-
place them. See Chesapeake Plywood, 294 NLRB 201,
202–203 (1989). Accordingly, we find that the Re-
spondents’ September 23 offers of reinstatement to
Ortiz and Alexander were invalid and that the judge
incorrectly tolled their backpay and failed to require,
in his recommended Order, that the Respondents offer
them immediate and full reinstatement.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents, Na-
tional Management Consultants, Inc. and 775 and 156-
08 Riverside Drive Realty Corp., New York, New
York, their officers, agents, successors, and assigns,
shall take the action set forth in the recommended
Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Offer Milo Alexander and Raymond Ortiz im-
mediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them
from the date of their discharge on September 13,
1991, until such time as the Respondents communicate
valid offers of reinstatement to them.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain in good faith with
Local 32B-32J, Service Employees International
Union, AFL–CIO as the exclusive representative of the
employees in the following appropriate unit:
All full-time and regular part-time building serv-
ice employees, including the superintendent and
porters employed at our facilities at 156-08 and
775 Riverside Drive, New York, New York, but
excluding all doormen, guards, professional em-
ployees and supervisors as defined in the Act.
WE WILL NOT condition bargaining on the Union’s
waiver of discharged strikers’ rights to reinstatement.
WE WILL NOT discharge or otherwise cause the ter-
mination of any employees because of activity pro-
tected by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, recognize and bargain collec-
tively with the Union as the exclusive representative of
the employees in the above-described appropriate unit
and, on request, embody in a signed agreement any un-
derstanding reached.
WE WILL offer Milo Alexander and Raymond Ortiz
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy
section of the judge’s decision.
WE WILL remove from our files any reference to
their unlawful terminations and notify them in writing
that this has been done and that evidence of the unlaw-
ful discharges will not be used as a basis for future
personnel actions against them.
NATIONAL MANAGEMENT CONSULT-
ANTS, INC. AND 775 AND 156-08 RIVER-
SIDE DRIVE REALTY CORP.
Burt Pearlstone, Esq., for the General Counsel.
Howard R. Birnbach, Esq., of Great Neck, New York, for
the Respondents.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in New York, New York, on September
14–15 and November 2, 1992. On charges filed on October
23, 1991, and January 10, 1992, and subsequently amended,
a consolidated complaint was issued on August 25, 1992, al-
leging that Respondents, National Management Consultants,
Inc. (National) and 775 and 156-08 Riverside Drive Realty
Corp. (Riverside) violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act (the Act). Respondents filed an
answer denying the commission of the alleged unfair prac-
tices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the General
Counsel and by the Respondents.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent National, a corporation with an office and
place of business in Brooklyn, New York, has been engaged
in the management of residential real estate, including apart-
ment buildings located at 775 and 156-08 Riverside Drive,
New York, New York. National manages approximately 20
buildings in New York and it collects rents in excess of
$500,000 annually. Riverside, a New York corporation, has
been engaged in the ownership and management of real es-
tate including the facilities located at 775 and 156-08 River-
side Drive. Annually Riverside derives revenues in excess of
$500,000. Riverside and National purchase and receive at
their New York facilities goods valued in excess of $5,000
from suppliers who purchase and receive such goods from
suppliers located outside the State of New York. I find that
Respondents are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. See James
Johnston Property Mgt., 221 NLRB 301, 302 (1975). In ad-
dition, Respondents have not denied, and it is therefore
deemed admitted, and I so find, that Local 32B-32J, Service
407NATIONAL MANAGEMENT CONSULTANTS
1 All dates refer to 1991 unless otherwise specified.
Employees International Union, AFL–CIO (the Union) is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Successorship
For a number of years Time Equities, Inc. owned, oper-
ated, and managed the buildings located at 775 and 156-08
Riverside Drive. In November 1990, Riverside purchased the
assets of Times Equities with respect to the Riverside Drive
location. Since then National has been engaged in the day-
to-day management of the Riverside Drive facility. Following
the change in ownership and management, Respondents have
continued to operate the building as a residential apartment
with the same tenants. At the time Respondents took over the
property there were four employees: Superintendent Aponte,
Raymond Ortiz and Milo Alexander, porters, and Freddy
Garcia, a handyman. These employees were all retained by
Respondents in the same capacities as they occupied prior to
the change in ownership in November 1990. Accordingly, I
find that since November 1990 Respondents have been en-
gaged in the same business operations, at the same location,
providing the same services to the same customers, and em-
ploying the same employees as had been employed by Time
Equities. I find, therefore, that Respondents constitute succes-
sors to Time Equities. See Christopher Street Corp., 286
NLRB 253, 255 (1987).
2. Joint employer status
National is responsible for the day-to-day operations of the
facility and supervises the building service employees. The
person responsible for this is Sol Singer, the onsite manager
employed by National who directs the superintendent, the
handyman, and the two porters. National may hire and fire
employees, but not without approval from Riverside. Simi-
larly, National may enter into collective-bargaining agree-
ments, but only with the approval of Riverside. The employ-
ees are paid by National from a payroll account that it main-
tains, but the moneys are deposited by Riverside into the
payroll account and are expressly for that purpose. In addi-
tion, Sol Gross and Joseph Friedman are officers in both Na-
tional and Riverside. Based on the above, I find that National
and Riverside each significantly controls the employment of
the building service personnel at the facility and, as such, are
joint employers of those employees. See Marcus Manage-
ment, 292 NLRB 251, 259–260 (1989).
3. The Union’s attempts to negotiate a successor
agreement
Respondents have not denied, and it is therefore deemed
admitted, that the following employees of Respondents con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time building service
employees, including the superintendent and porters
employed at Respondents’ facilities at 156-08 and 775
Riverside Drive, New York, New York, but excluding
all doormen, guards, professional employees, and super-
visors as defined in the Act.
Since 1985 the Union has been the designated exclusive
collective-bargaining representative of the employees in the
unit. The most recent collective-bargaining agreement was
effective for the period April 21, 1988, through April 20,
1991. Sol Gross, vice president of both National and River-
side, testified that in November 1990 he became aware of the
then current collective-bargaining agreement between Time
Equities and the Union. Joseph Friedman, president of Na-
tional and an officer of Riverside, testified that after the
change of ownership Respondents maintained the same sala-
ries and working conditions as prevailed under the 1988–
1991 collective-bargaining agreement for the building service
employees.
In June 19911 the Union requested that Respondents meet
and bargain with it to negotiate a successor agreement to the
1988–1991 agreement. During the first week of July Pedro
J. Pizarro, the Union’s business agent, telephoned Gross and
asked him whether Respondents intended to sign an assent
agreement to the Realty Advisory Board Master Agreement.
Gross answered that Respondents did not intend to sign an
assent agreement but that they were interested in an inde-
pendent agreement for the property. Pizarro then sent a pro-
posed independent agreement but Gross failed to reply. Pi-
zarro followed this up with several phone calls but these
calls went unreturned.
In August, not having received a favorable response, Pi-
zarro decided that the employees should strike. A 1-day
strike ensued. Pizarro spoke to Friedman on the day of the
strike, told him about the strike and Friedman stated, ‘‘I’m
not going to negotiate anything until these guys go back to
work.’’ A week later, Pizarro again spoke to Gross about the
agreement and Gross told Pizarro that he would get back to
him by the end of the month. Not having heard from Gross,
Pizarro again called Gross’ office during the last part of Au-
gust and was told by the receptionist that Gross was on vaca-
tion and would not return until September 11. Pizarro tele-
phoned Gross on September 11 or 12, at which time Gross
told Pizarro that he was told by his attorney not to sign the
agreement. Respondents offered no counterproposals to the
proposed agreement and Pizarro told Gross that the employ-
ees would probably go on strike. The strike began on Sep-
tember 13. The strikers included Alexander, Ortiz, and Gar-
cia. Superintendent Aponte did not join in the strike.
4. Discharges of Alexander and Ortiz
Alexander appeared to me to be a credible witness. He tes-
tified that Gross came up to him at the picket line on the
first day of the strike and told him, ‘‘You know you’re going
to be fired for going on strike.’’ Alexander then asked Gross
why Respondent would not sign a contract and Gross replied,
‘‘I’m not going to [be] strong-armed into signing a contract
with a union I don’t like.’’ Ortiz also credibly testified that
on the first day of the strike Singer approached him on the
picket line and told him that he was fired because he went
on strike. In addition, Robert Byrd, the superintendent of the
building next to Respondents’ facility, credibly testified that
on the first or second day of the strike he was standing with
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The complaint also alleges that Respondents insisted, as a condi-
tion of reaching any collective-bargaining agreement, that the Union
agree to waive the rights of Ortiz and Alexander to reinstatement.
Pizarro testified that in January or February 1992 Gross told him
that ‘‘one of the conditions’’ to negotiating was that he ‘‘didn’t want
[any] of the striking employees back to work.’’ This testimony was
not rebutted. Accordingly, I find that Respondents conditioned bar-
gaining on the Union’s waiver of discharged strikers’ rights to rein-
statement, in violation of Sec. 8(a)(1) and (5) of the Act.
Ortiz in front of the service entrance of the facility and Sing-
er approached Ortiz and asked him ‘‘what he was doing at
the building, why he was picketing in front of his building,
that he had been fired and he had no reason to be there.’’
A short time later Byrd asked Singer why he would not sign
the union contract and Singer replied that ‘‘he did not like
the contract and that he would not sign’’ it. Byrd then asked
Singer why he had fired Ortiz and Singer replied that ‘‘he
fired him because he was on strike.’’
On September 16 Respondents circulated a letter to the
tenants of the facility. The letter stated, in pertinent part:
Management has made it clear that any employee
who decides to strike, his employment will be imme-
diately terminated with no chance of reinstatement.
Thankfully, Mr. Aponte, your superintendent, has as-
sured us that he will continue to work. However, oth-
ers, namely the two porters, have chosen their own de-
mise. THEIR EMPLOYMENT IS HEREBY
TERMINATED!!
Alexander testified that he saw the letter on September 16.
Ortiz also credibly testified that Alexander showed him a
copy of the letter the same day. Shortly thereafter, Pizarro
went to the building to discuss the letter with Respondents.
He saw Singer and asked him whether the two employees
had been ‘‘fired.’’ Singer replied, ‘‘[h]e was proud of the let-
ter. That he had helped write it. And that there’s not going
to be any negotiations until these guys go back to work, until
the strike was over.’’
5. Offer of benefits
At the hearing, General Counsel amended the complaint
alleging that Respondents, through Singer, on or around Sep-
tember 15, offered a promise of benefits to strikers to induce
them to refrain from engaging in protected, concerted activ-
ity. Prior to the amendment Singer had testified that while
the strike was going on Singer told Ortiz, ‘‘I pay you for
three weeks vacation, come back, think about [it].’’ Subse-
quent to the amendment, Singer testified that he approached
Ortiz while Ortiz was picketing and he told him, ‘‘I don’t
understand why you are on strike, because I don’t owe you
anything . . . I just finished paying you three weeks vaca-
tion.’’ When asked whether he offered to give him vacation
pay, Singer testified, ‘‘No, he just got it a month ago.’’ Sing-
er also testified that on August 23 Ortiz had received 3
weeks’ vacation pay which totaled $1020. This testimony
was not rebutted. I credit Singer’s testimony and find that the
General Counsel has not shown by a preponderance of the
evidence that an offer of benefits was made. Accordingly, the
allegation is dismissed.
Discussion and Conclusions
1. Supervisory status
The record is clear that Joseph Friedman is president of
National and Sol Singer is managing agent. Singer testified
that the four employees in the unit at the facility were under
his supervision. In addition, Sol Gross is vice president of
both National and Riverside. Both Gross and Friedman testi-
fied that they made the decision to fire Ortiz and Alexander.
I find that Friedman, Singer, and Gross are supervisors with-
in the meaning of Section 2(11) of the Act.
2. Failure to bargain
The complaint alleges that Respondents have failed and re-
fused to bargain in good faith with the Union, in violation
of Section 8(a)(1) and (5) of the Act. The Board has found
violations of the duty to bargain in situations where an em-
ployer ignores or simply makes no attempt to honor union
requests to bargain. Franchet Metal Craft, 262 NLRB 552,
554 (1982). The Board has also held that the failure by an
employer to submit any counterproposals tends to frustrate
further bargaining and may thus constitute a clear rejection
of the collective-bargaining duty spelled out in the Act. See
Chalk Metal Co., 197 NLRB 1133, 1147 (1972). In June the
Union requested that Respondents meet and bargain with it
to negotiate a successor agreement to the one which had ex-
pired on April 20. In July the Union submitted a proposed
collective-bargaining agreement. Several times during July,
August, and September Pizarro attempted to get response
from Respondents but was unsuccessful. Finally, on Septem-
ber 11 or 12, Gross told Pizarro that his attorney advised him
not to sign the agreement. Gross offered no reasons, offered
no counterproposals and made no attempt to schedule any
meetings to discuss the matter. I find that Respondents’ con-
duct demonstrates bad faith and an attempt to frustrate, rather
than engage in meaningful bargaining. Accordingly, I find
that Respondents have refused to bargain with the Union re-
garding a successor collective-bargaining agreement, in viola-
tion of Section 8(a)(1) and (5) of the Act.2
3. Unfair labor practice strike
A strike will be considered to be an unfair labor practice
strike if the record establishes that an unfair labor practice
was a ‘‘contributing cause’’ of the strike. Massachusetts
Coastal Seafoods, 293 NLRB 496 (1989). The uncon-
troverted testimony of Pizarro, Alexander, and Ortiz shows
that Pizarro called together the four building service employ-
ees on the day before the strike and told them he felt they
would have to strike to get Respondents to the bargaining
table. All of the employees agreed and the strike commenced
the following day. The record is clear that the employees
struck primarily because of the failure of Respondents to ne-
gotiate in good faith. I thus find that the strike, which began
on September 13, was an unfair labor practice strike at its
inception.
4. Discharges of Ortiz and Alexander
It is well established that the discharge of striking employ-
ees, even if they are engaged in an economic strike, is a vio-
lation of Section 8(a)(1) and (3) of the Act. See Mars Sales
Co., 242 NLRB 1097, 1102 (1979), enfd. in pertinent part
409NATIONAL MANAGEMENT CONSULTANTS
626 F.2d 567, 572–573 (7th Cir. 1980). I have credited Alex-
ander’s testimony that, on the first day of the strike, Gross
told him that he would be fired for going on strike. I have
also credited Ortiz’ testimony that Singer told him he was
fired because he went on strike. This was corroborated by
Byrd who testified that Singer told him that he had fired
Ortiz because he was on strike. In addition, Respondents’ let-
ter to the tenants dated September 16 states that any em-
ployee who decides to strike will be ‘‘immediately termi-
nated with no chance of reinstatement.’’ The letter continues
that the ‘‘two porters have chosen their own demise. Their
employment is hereby terminated.’’ I find that the General
Counsel has made a prima facie showing sufficient to sup-
port the inference that protected conduct, namely, the strike,
was a motivating factor in Respondents’ decision to dis-
charge the employees.
Under Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), once a prima facie showing has been established, the
burden shifts to the employer to demonstrate that the ‘‘same
action would have taken place even in the absence of the
protected conduct.’’ Respondents maintain that the employ-
ees were terminated because during the strike garbage was
accumulating which resulted in a potential health hazard.
Under Laidlaw Corp., 171 NLRB 1366, 1369–1370 (1968),
enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920
(1970), Respondents had the right to hire replacement work-
ers during the duration of the strike. The Board pointed out,
however, that the strikers remain employees. I find that Re-
spondents have not sustained their burden under Wright Line
and that their discharge of Alexander and Ortiz on September
13 constitutes a violation of Section 8(a)(1) and (3) of the
Act.
5. Offers of reinstatement
Respondents introduced into evidence copies of letters
dated September 23, addressed to Ortiz and Alexander stat-
ing ‘‘management would be agreeable to reinstating you if
you return to work immediately. Should you decide that you
would like to return to work, please notify me within five
(5) business days.’’ Singer testified that the letters were sent
by certified mail and the record contains the white certified
mail receipts stamped by the post office. Singer testified that
the ‘‘green’’ return receipt was not requested. At the time the
letters were introduced, General Counsel objected to their re-
ceipt into evidence arguing that the documents were not sub-
mitted to General Counsel pursuant to its subpoena and,
therefore, should be precluded pursuant to Bannon Mills,
Inc., 146 NLRB 611 (1964). I did not believe that the sub-
poena clearly called for these documents and I, therefore,
overruled General Counsel’s objection and admitted the let-
ters into evidence. In its brief General Counsel urges an ad-
ditional reason, not advanced at the hearing, why I should
not consider the letters. Paragraph 17(b) of the complaint al-
leges that Respondents have failed to reinstate or offer to re-
instate Alexander and Ortiz. In their answer Respondents did
not deny the allegation. Since, under the Board’s rules, if an
allegation is not denied it is deemed admitted, General Coun-
sel contends that Respondents should be bound by their an-
swer and that I should not consider the letters offering rein-
statement.
While technically General Counsel is correct, had General
Counsel raised the same objection at the hearing, no doubt
counsel for Respondents would have at that time moved to
amend the answer. I believe that Respondents’ failure to
deny paragraph 17(b) of the complaint was an oversight and
that it would be inequitable for me not to consider the letters
offering reinstatement. I credit Singer’s testimony that the
letters were mailed and I note that the record contains the
white certified mail receipts with the post office stamp af-
fixed. I therefore find that by letters dated September 23, Re-
spondents offered reinstatement to Ortiz and Alexander.
6. Deferral to arbitration
On March 17, 1992, an arbitration award was issued find-
ing that National did not assume the collective-bargaining
agreement between Time Equities and the Union. Respond-
ents urge that I defer to that decision. Pursuant to Spielberg
Mfg. Co., 112 NLRB 1080 (1955), and its progeny, one of
the standards which must be satisfied before the Board will
defer to the decision of an arbitral tribunal is that the unfair
labor practice issue must have been presented to and consid-
ered by the arbitral tribunal. The complaint alleges that Re-
spondents are successors to Time Equities. There is no indi-
cation that this issue was either presented to or considered
by the arbitrator. While the complaint also alleges that Re-
spondents ‘‘adopted’’ the prior agreement, General Counsel
has not requested any relief with respect thereto, nor has the
matter been pursued in General Counsel’s brief. Indeed, to
be deemed to have adopted the predecessor’s contract, there
must be clear evidence of consent. See Hospital Employees
Local 1115 (Kerst View), 248 NLRB 1234, 1244 (1980). The
mere continuation of economic benefits prevailing at the time
of the takeover will not, without more, indicate an adoption
of the predecessor’s collective-bargaining agreement. See
Virginia Sportswear, 226 NLRB 1296 (1976). In this connec-
tion, I note that the arbitration award involves a claim for de-
linquencies in payments to the welfare, pension, and annuity
funds. It would appear therefore that Respondents did not
make fund payments, thereby indicating that Respondents did
not adopt the prior contract. I find that a sufficient showing
has not been made to sustain the allegation that Respondents
adopted the collective-bargaining agreement between Time
Equities and the Union. Accordingly, the allegation is dis-
missed. In addition, for the reasons previously stated Re-
spondents’ motion to defer is denied.
CONCLUSIONS OF LAW
1. Respondents are employers engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees of Respondents constitute a
unit appropriate for the purposes of collective-bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time building service em-
ployees, including the superintendent and porters at Re-
spondents’ facilities at 156-08 and 775 Riverside Drive,
New York, New York, but excluding all doormen,
guards, professional employees and supervisors as de-
fined in the Act.
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 I have previously found that by letters dated September 23, 1991,
Respondents offered reinstatement to Alexander and Ortiz. Since I
have found the strike to be an unfair labor practice strike from its
inception, Alexander and Ortiz were, accordingly, unfair labor prac-
tice strikers. As such, they retain their rights to reinstatement.
4 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and rec-
ommended 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 purposes.
4. Respondents are joint employers of the employees in
the above-described unit and constitute successors of Time
Equities, Inc.
5. At all material times the Union has been the exclusive
collective-bargaining representative of the employees in the
above unit within the meaning of Section 9(a) of the Act.
6. By failing and refusing to negotiate, Respondents have
failed and refused to bargain in good faith with the Union,
thereby engaging in unfair labor practices within the meaning
of Section 8(a)(1) and (5) of the Act.
7. By conditioning bargaining on the Union’s waiver of
discharged strikers’ rights to reinstatement, Respondents have
engaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (5) of the Act.
8. By discharging Milo Alexander and Raymond Ortiz for
engaging in a strike Respondents have engaged in unfair
labor practices within the meaning of Section 8(a)(1) and (3)
of the Act.
9. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
10. Respondents did not violate the Act in any other man-
ner alleged in the complaint.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I find it necessary to order Respond-
ents to cease and desist therefrom and to take certain affirm-
ative action designed to effectuate the policies of the Act.
Respondents having discharged Milo Alexander and Ray-
mond Ortiz in violation of the Act, I find it necessary to
order Respondents to make them whole for any loss of earn-
ings they may have suffered from the time of their dis-
charges to the date of Respondents’ offers of reinstatement.3
Backpay shall be computed in accordance with the formula
approved in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).4
As I have also found that Respondents have unlawfully re-
fused to bargain with the Union I shall further recommend
that Respondents be ordered to bargain collectively with the
Union as the representative of the employees in the appro-
priate unit.
General Counsel has requested that I issue a broad order
requiring Respondents to cease and desist from violating the
Act in ‘‘any other manner.’’ In Transport Service Co., 302
NLRB 22 fn. 2 (1991), the Board stated
Although we agree with the Judge that the Respond-
ent has violated the Act, we do not agree that a broad
order is necessary here. A broad order is warranted
only when a respondent is shown to have a proclivity
to violate the Act or has engaged in such egregious or
widespread misconduct as to demonsrate a general dis-
regard for the employees’ fundamental statutory rights.
See Hickmott Foods, 242 NLRB 1357 (1979).
General Counsel has cited no prior Board decisions against
the Respondents based on similar conduct. See Sheet Metal
Workers Local 27 (Camcon), 292 NLRB 1046 (1989). Based
on the record in this proceeding I do not believe that Re-
spondents have engaged in such egregious or widespread
misconduct as to warrant a broad order.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondents, National Management Consultants, Inc.
and 775 and 156-08 Riverside Drive Realty Corp., their offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Local 32B-32J
Service Employees International Union, AFL–CIO as the ex-
clusive representative of the employees in the following ap-
propriate unit:
All full-time and regular part-time building service em-
ployees, including the superintendent and porters em-
ployed at Respondents’ facilities at 156-08 and 775
Riverside Drive, New York, New York, but excluding
all doormen, guards, professional employees and super-
visors as defined in the Act.
(b) Conditioning bargaining on the Union’s waiver of dis-
charged strikers’ rights to reinstatement.
(c) Discharging employees for activities protected by Sec-
tion 7 of the Act.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Upon request, recognize and bargain collectively with
the Union as the exclusive representative of the employees
in the above-described appropriate unit and, upon request,
embody in a signed agreement any understanding reached.
(b) Make whole Milo Alexander and Raymon Ortiz for
any loss of earnings, with interest, in the manner set forth
in the remedy section.
(c) Remove from their files any references to the unlawful
discharges of Alexander and Ortiz and notify them in writing
that this has been done and that the discharges will not be
used against them in any way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports and all other records necessary to analyze the
amounts of backpay owing under the terms of this Order.
(e) Post at the facility located at 775 and 156-08 Riverside
Drive, New York, New York, copies of the attached notice
411NATIONAL MANAGEMENT CONSULTANTS
6 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
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.’’
marked ‘‘Appendix.’’6 Copies of the notice on forms pro-
vided by the Regional Director for Region 2, after being
signed by Respondents’ authorized representative, shall be
posted by the Respondents immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ents to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20 days
of the date of this Order what steps the Respondents have
taken to comply.
IT IS FURTHER ORDERED that those allegations of the com-
plaint as to which no violations have been found are dis-
missed.