Park Inn

National Labor Relations Board - Board Decisions

May 18, 1989

293 N.L.R.B. 1082 (N.L.R.B. 1989)

1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Malvina Krausman, Sally Perlberg and Leon Perl-
berg, copartners doing business as Park Inn
Home for Adults, Pinkus Osowsky , individual-
ly, doing business as New Park Inn Home for
Adults, Marvin Beinhorn, individually, doing
business as Park Inn and the successor of Park
Inn Home and of New Park Inn Home for
Adults, Travelers Maintenance , Inc and Samuel
Konig, as the successor of Marvin Beinhorn,
doing business as Park Inn' and Local 144,
Hotel, Hospital , Nursing Home Allied Health
Services Union, AFL-CIO and Local 143,
Office, Service and Allied Workers Union,
AFL-CIO, Party in Interest Cases 29-CA-
6645, 29-CA-6645-2, 29-CA-6705, and 29-
CA-7540
May 18, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On August 9, 1983, Administrative Law Judge
Donald R Holley issued the attached decision Re-
spondents Malvina Krausman, Sally Perlberg, and
Leon Perlberg, copartners doing business as Park
Inn Home for Adults (Park Inn), Respondent Bein
horn, and Respondent Konig jointly filed excep-
tions and a supporting brief, and the Charging
Party and the General Counsel filed answering
briefs
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions only to the extent consistent with this
Decision and Order and to adopt the recommended
Order3 as modified
' The caption appears as corrected
s The Respondents have excepted to some of the judge s credibility
findings The Board s established policy is not to overrule an administra
tive 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 re
versing the findings
We agree with the judge s findings that Respondents Osowsky Bein
horn and Konig are alter egos of Respondent Park Inn and are jointly
and severally liable for remedying the unfair labor practices found Under
the circumstances we find it unnecessary to reach the j udge s finding
that these Respondents are also successor employers to Respondent Park
Inn
We agree with the judge s findings that Respondents Travelers Mainte
nance Inc and Osowsky were joint employers and that Respondent
Osowsky violated Sec 8(a)(2) of the Act by soliciting employees to sign
authorization cards for the party in interest Local 143 and by signing a
contract with that Union at a time when it did not represent a majority
of employees in an appropriate bargaining unit
8 The Charging Party s motion to strike the Respondents brief in sup
port of exceptions is denied
The complaint alleged, and the judge found, that
Respondent Park Inn violated Section 8(a)(5), (3),
and (1) by failing since March 11, 1978 (6 months
prior to the filing of the charge), to make contribu-
tions to the Charging Party's employee benefit
funds In finding these violations, the judge reject-
ed the Respondents' argument that the allegations
were time barred because Park Inn had ceased con
tributing to the funds before the 6-month limita-
tions period in Section 10(b) and had also notified
the Charging Party that it was terminating the par
ties' expired contract outside the 10(b) period The
judge relied on Farmingdale Iron Works, 249
NLRB 98 (1980), enfd mem 661 F 2d 910 (2d Cir
1981), to find that each failure to make the required
payments within the 10(b) period was a separate
actionable violation The judge further found that
although Park Inn notified Local 144 by letter in
December 1976 that it considered the parties' most
recent contract, which had expired on October 31,
1976, to be terminated as of the expiration date, the
letter did not place the Union on notice of Park
Inn's intention to modify its obligation to contrib
ute to the funds and the Union therefore could not
be found to have waived its right to bargain over
Park Inn's unilateral cessation of fund contribu-
tions
We reject the judge's reasoning Taking the
latter point first, we find, unlike the judge, that the
Union was on notice before the Section 10(b) date
that Park Inn had repudiated its obligation to con-
tribute to the funds We note that, as the judge
found, Park Inn first became delinquent regarding
the funds in 1972 and ceased payments entirely in
1974, nearly 2 years before the parties' contract ex
pired Further, we note that, although the parties
submitted to arbitration the issue of Park Inn's obli
gations to the funds on two occasions and Park
Inn's fund delinquencies were an issue in negotia-
tions between the parties in 1977-1978, the record
offers no clear evidence that Park Inn in fact ever
acknowledged a continuing obligation to contribute
to the funds In view of the sheer length of time
during which Park Inn consistently failed to make
payments into the funds, we cannot find that the
Union's possible prospective satisfaction through
arbitration or even through bargaining of Park
Inn's failure to contribute to the funds is sufficient
to negate the bald fact, of which the Union was
The Charging Party has requested that the Respondents be ordered to
reimburse it for litigation expenses We conclude that the defenses that
the Respondents has raised are arguably debatable rather than fnvo
lous and we find that an award of such expenses is unwarranted Heck s
Inc 215 NLRB 765 (1974) Tudee Products 194 NLRB 1234 (1972)
modified sub nom Electrical Workers IUE v NLRB 502 F 2d 349 (D C
Cir 1974)
293 NLRB No 130
PARK INN HOME FOR ADULTS
clearly aware, that Respondent Park Inn had failed
and refused, year after year, to make any payments
Thus, we do not view Park Inn's December 1976
letter terminating the contract as determinative of
whether the Union had notice of the repudiation of
a contractual obligation Accordingly, under the
circumstances of this case, we find that the Union
had clear notice of Park Inn's repudiation of any
obligation to contribute to the funds outside the
10(b) period
Further, concerning the judge's reliance on
Farmingdale, supra, we note that since the judge's
decision issued , the Board has considered the appli-
cation of Farmingdale to cases like this in which a
charge of a unilateral change is filed more than 6
months after expiration of the applicable collective-
bargaining agreement initially creating the alleged-
ly breached obligation Chemung Contracting Corp,
291 NLRB 773 (1988) In light of Chemung's hold
ing that Section 10(b) bars a finding that an em-
ployer has violated the Act by failing to make con-
tributions after the relevant collective-bargaining
agreement expires when the charge is filed more
than 6 months after expiration of the contract and
the union had notice of the failure outside the 10(b)
period, we dismiss these allegations and shall
modify the recommended remedy and Order ac-
cordingly
The judge also found that Park Inn violated Sec-
tion 8(a)(5) and (1) of the Act by bargaining in bad
faith with the Charging Party, Local 144, on and
after August 7, 1978, by unilaterally implementing
changes in terms and conditions of employment on
August 15, 1978,4 that were inconsistent with its
prior offers in negotiations with Local 144, and by
constructively discharging its employees on August
15 The judge found, alternatively, that if Park Inn
had not discharged its employees on August 15,
then they became unfair labor practice strikers on
that date We agree with the judge, but only for
the reasons stated below, that Park Inn bargained
in bad faith with the Union on and after August 7
and unlawfully implemented unilateral changes on
August 15 We also find for the reasons stated
below, in agreement with the judge's alternative
finding, that Park Inn's employees commenced an
unfair labor practice strike on August 15 and in so
doing did not engage in unprotected activity or
lose their status as employees Finally, we find that
Park Inn either discharged its employees for engag-
ing in protected concerted activities on August 15
or created a situation leading employees reasonably
to conclude that they had been discharged, in vio-
lation of Section 8(a)(3) and (1)
4 Unless otherwise noted all subsequent dates are in 1978
1083
The credited facts, as more fully set forth in the
judge's decision, are as follows In 1970, Park Inn
began operation of a home for the aged At all rel-
evant times until August 15, 1978, the facility was
operated by Malvina Krausman, who leased the
space occupied by the Home and owned the per
sonality with which the Home was operated
Sometime soon after it commenced operations,
Park Inn recognized Local 144 as the exclusive
representative of a unit of its service and mainte-
nance employees, and the parties executed a series
of collective bargaining agreements, the most
recent of which expired on October 31, 1976
Under these agreements, Park Inn was required to
make contributions to certain employee welfare
and pension funds In 1972, Park Inn fell behind in
its obligations to these funds By 1974, it had
ceased completely to make the required payments
In 1975, Local 144 received an arbitrator's award
for the indebtedness to the funds According to the
undisputed testimony of Frank Romano, an attor-
ney representing Park Inn, Local 144 failed to
reduce this award to judgment within the applica
ble limitations period, but he agreed with the
Union and the fund representatives to permit the
Union's attorneys to file a new grievance for the
period of time that the expired award would have
covered and, additionally, to expand on that
period 5 On October 26, 1976, Local 144 notified
Park Inn that it was prepared to negotiate a new
agreement By letter dated December 20, 1976,
Park Inn notified Local 144 that it was terminating
the expired contract
The parties met on December 14, 1976, and
Local 144 presented contract proposals, which ap-
parently were patterned after the then-existing col-
lective-bargaining agreement between Local 144
and the Metropolitan New York Nursing Home
Association Park Inn rejected the Union's propos
als Romano, who was Park Inn's chief spokesman
throughout the negotiations, told the Union that its
proposals were unrealistic in view of the lower
revenues that he claimed homes for the aged gener-
ated Romano told Local 144 that he would not re-
spond to the proposals until the Union gave up the
notion that the nursing home agreement could
guide negotiations between the parties No further
negotiations occurred until November 11, 1977,
when Local 144, then represented by Business
Agent Archie Godwin, presented proposals that
again were apparently based on the master nursing
home contract Romano again objected to using
the nursing home agreement as a guide to negotia-
5 An arbitration award covering fund contributions through December
31 1976 was reduced to judgment in 1978
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions Park Inn presented no proposals, however,
Local 144 agreed to prepare new proposals
The parties next met in December 1977 Local
144 presented proposals calling for, inter alga, a 30
percent increase in wages over those in the expired
agreement and increases in benefit fund payments
and other economic items Park Inn responded that
it lacked the money to meet the proposed terms,
but presented no proposals of its own
After this session , Romano telephoned Godwin
to discuss Local 144's proposal Romano told
Godwin that the proposed wage increase was
higher than the increase originally proposed by
Local 144 in December 1976, and that the pro-
posed trust fund contributions exceeded those in
the master nursing home agreement Godwin re
plied that he was unaware of Local 144's original
proposal and that he would review the proposals
and get back to Park Inn
No further negotiations occurred until, following
a June 21 letter from Local 144, the parties agreed
to resume negotiations on July 12 On July 11,
Local 144 notified Park Inn and the Federal Medi-
ation and Conciliation Service that it intended to
strike and picket at Park Inn's premises on July 26
At the July 12 session, Romano told Godwin that
he would not negotiate under a strike threat and
complained about Local 144's failure to contact
him before issuing the strike notice, but presented
no proposals on behalf of Park Inn Local 144 Inds
cated that it could extend the strike deadline if the
parties were bargaining and that it was primarily
interested in wages and Park Inn's delinquent trust
funds payments Romano replied that Park Inn was
losing money and could not even afford the terms
of the parties' expired agreement, invited Local 144
to review Park Inn s financial records, and stated
that, as an alternative, Park Inn was willing to
meet an area standard wage and benefit scale
Local 144 did not agree to pursue either alternative
even though, according to Romano's testimony,
Romano told the union representatives that if they
would yield on examining the facility's financial
records or adopting an area standard for wages,
Park Inn "would be willing to make substantial
movement on the indebtedness to the funds "
The parties met again on July 20 At this session,
Romano again told Local 144 that he would not
negotiate under threat of a strike Park Inn made
its first proposal, a package offer including, inter
alia, a 4 percent wage increase, subject to reopen
ing for an increase of up to 10 percent if the state
permitted Park Inn to increase the rates it charged
its clients, an increase in the work week from 35 to
40 hours, and a payment of $750 per month against
Respondent Park Inn's $60,721 outstanding liability
for trust funds payments through December 31,
1976, with a period of forgiveness for future contri-
butions The proposal denied liability for the period
from January 1, 1977, through June 30, 1978 No
agreement was reached, and on July 25 the parties
met again Local 144 announced that the strike
notice had been extended, to take effect August 7
Local 144 then proposed retroactive incremental
wage increases totaling $25 over the period be
tween October 1, 1976, and March 1, 1978 Park
Inn rejected this proposal, but indicated that it
might increase its 4-percent wage offer if it could
win some economic relief from the landlord of the
premises
The parties met again on July 31 Park Inn raised
its proposed wage increase to 5 percent, with 1
year of retroactivity, and offered to pay the trust
funds' delinquencies within 5 years According to
Romano's testimony, Park Inn changed its position
on prospective trust fund contributions at this
meeting Local 144 rejected this proposal and pro-
posed a 10 percent wage increase in the first year
of the agreement, with a 7 5-percent increase in the
second year Alternatively, Local 144 proposed
that the parties agree to the terms of the expired
agreement regarding all but wages, which would
be submitted to interest arbitration Respondent
Park Inn rejected these proposals 6 Romano stated
that Respondent Park Inn would have to obtain
concessions from some source, or it might be
forced to surrender the lease and discontinue oper-
ations Romano testified that he also agreed to dis
cuss the indebtedness to the funds with Park Inn
The parties met for the final time on August 7, in
the presence of a Federal mediator At the meet
ing, Romano announced that Park Inn was submit-
ting a final offer and indicated that if the offer
were not accepted Park Inn would consider the
bargaining at an impasse In contrast to its previous
offer in negotiations and the parties tentative
agreement on some terms, Respondent Park Inn's
offer eliminated any retroactivity for the proposed
5-percent wage increase, provided no uniform al-
lowance, eliminated accrual and payment of unused
sick leave, and provided for a payout of $750 per
month on its trust fund obligations as opposed to
payment within 5 years Although the 5 year pay-
ment plan apparently was to apply only to contri
butions before December 31, 1976, Romano testi
feed that at that meeting Park Inn also offered to
pay past contributions due and owing after January
1, 1977 In addition, Park Inn's proposal provided
6 The parties did reach tentative agreement on retaining the terms of
the expired collective bargaining agreement regarding inter alia longevi
ty pay uniform allowance sick leave and holidays
PARK INN HOME FOR ADULTS 1085
for future contributions to Local 144's trust funds
at the rates established under the Metropolitan
New York Nursing Home Association's contract
with Local 144, on the condition that Park Inn re
ceive a 4-month period of forgiveness The propos-
al's terms reiterated Romano's position that this
was a package offer and that agreement on any
item was contingent on agreement on all items
On August 8 Godwin met with the unit employ-
ees and informed them of Respondent Park Inn's
"final offer " The employees voted to reject the
offer and to strike On August 10 the Federal medi
ator requested that the parties maintain the status
quo and continue bargaining Romano asked Local
144 if the Union's negotiators could offer a new
proposal if negotiations continued Local 144 re-
sponded that they could not
On August 11 Romano notified Local 144 that
Park Inn intended to implement the terms of its
August 7 offer on August 14 Romano also gave
the Union a copy of a notice from Krausman to
Local 144 employees, which listed the terms and
conditions of employment under which the em-
ployees would be required to work and stated that
employees failing to conform to its provisions
would be subject to "severe disciplinary measures
and, if deemed appropriate by management, dis
charged " This notice deviated from Respondent
Park Inn's August 7 offer in this important respect
whereas the August 7 proposal had provided for
payout of Park Inn's trust funds' delinquencies and
for continued payment into the funds after a 4-
month forgiveness period, the notice announced
that management had no further obligation with re-
spect to contributions to Local 144's benefit funds
and would thereafter provide injury or disability
coverage to employees as required by law
On August 14 Park Inn posted the notice to em
ployees that was to become effective the following
day After being informed by an employee of the
posting, Godwin went to Park Inn's facility at 7 30
a in on August 15 and spoke to Krausman on his
arrival She agreed to allow him to meet with the
employees and summoned them to the lobby where
they met with Godwin
After Godwin had conferred with the employees
for about 30 minutes, Krausman made an an-
nouncement over the loudspeaker giving the em-
ployees 15 minutes to return to work or leave the
premises Godwin then returned to Krausman's
office where he spoke with Romano on the tele-
phone Godwin told Romano and Krausman that
Local 144 wanted Park Inn to restore the status
quo and continue negotiations Romano refused,
telling Godwin that Park Inn had lawfully imple-
mented its final offer and that the employees would
have to return to work or leave the premises
Godwin replied that the employees would not
work under the posted conditions Krausman then
summoned the police, who escorted the employees
and Godwin out of the building Once outside,
Godwin and the employees commenced picketing
of the facility with signs stating that Respondent
Park Inn had locked them out Local 144 had
given no additional notice specifically announcing
that a strike was to take place on August 15
Several significant events occurred concurrent
with the negotiations leading up to August 14 Ac
cording to testimony credited by the judge, about
the time Local 144 contacted Park Inn on June 21
and the parties resumed negotiations in mid July,
Krausman contacted Murray Kalik, an attorney
who had a contract to purchase the building in
which Park Inn was located, subject to the lease
held by Krausman Krausman told Kalik that, in
his words, she "was having an inordinate amount
of trouble and would have to surrender the prem
ises " Kalik began to seek a new tenant and located
Respondent Osowsky, who signed a lease for the
Park Inn premises and its personalty owned by
Krausman, on August 3, 4 days before Romano
presented Local 144 with Park Inn's "final offer "7
By August 11 Krausman herself had informed Park
Inn's night manager , McCabe, that Krausman had
surrendered her lease and that a new operator
would be taking over the facility Several days
before Park Inn posted and implemented its "final
offer" on August 14, Respondent Osowsky con
tracted with Jack Schulz, president of Travelers
Maintenance Inc, a manpower leasing firm, to pro-
vide employees to perform unit work commencing
August 15 On August 14, the day before the
posted conditions of employment took effect,
Schulz hired a full complement of new employees
to begin work at Park Inn between 7 and 8 am
the next day
The judge found, based on credited testimony,
that Krausman, Kalik, and Osowsky determined
that if Park Inn was unable to negotiate a favorable
agreement with Local 144, they would rid the fa
7 The judge also found that Krausman s husband was Respondent
Osowsky s landlord with respect to two other business ventures at the
time the August 3 lease was signed The judge s findings also indicated
that Osowsky s entrepreneurial investment in the Home was very small
He paid no consideration for the lease and his personal liability under the
lease was limited to the rent and any damages caused by his willful and
malicious destruction of the property Finally although Osowsky s testi
mony reveals that he commenced operating a fully equipped facility on
August 15 Kahk testified that he did not own the personal property at
Park Inn s premises and his testimony indicated that the lease covered
only the real property Kahk Krausman and Osowsky each contend that
no discussions were held nor any agreement reached regarding this per
sonal property nor regarding the satisfaction of Park Inn s outstanding li
abilities Indeed Osowsky testified that he did not discuss his acquisition
of Park Inn with either of the Krausmans
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cility of the Union through a scheme centering on
Osowsky's assumption of the lease on the Home's
premises The judge found further that the lease ex-
ecuted by Osowsky on August 3 and the agree
ment between Osowsky and Travelers, in combina
tion with a regressive final offer put forward while
Park Inn continued to negotiate with Local 144 as
if Krausman's status as operator remained un
changed created a situation in which Local 144
would predictably reject the August 7 offer and
provide Park Inn, from its point of view, with two
desirable options to wait for the Union to strike
and then replace the striking employees or to claim
that impasse existed and implement its final offer
In their exceptions, the Respondents urge a dif-
ferent interpretation of these events Contrary to
the judge, in their view Krausman testified credibly
that during July she did meet with Kalik, but only
to urge him to give her rent concessions in a good-
faith effort to arrive at an agreement with Local
144, and that she did not actually decide to cease
operations until August 15 The Respondents
argue, inter alia, that the record shows that Park
Inn bargained in good faith throughout the course
of negotiations and that the August 7 offer repre-
sented an advance over the July 31 offer, most no-
tably in the area of payments of trust fund delin-
quencies, as the August 7 offer encompassed pay-
ments into the funds due since January 1, 1977
Further, the Respondents urge that Krausman
knew nothing about it and was not involved in
Kalik's successful efforts to obtain a new tenant
and lease the facility's premises, including the per
sonal property she herself owned Although the
lease signed by Osowsky on August 3 contained no
such conditions on its face, the Respondents further
contend that both the lease and Osowsky' s agree
ment with Travelers to supply employees on
August 15 were conditioned on a possible future
decision by Krausman to quit her leasehold and re
linquish the premises Finally, the Respondents
argue that Osowsky commenced operations at the
Home only after the employees went on strike on
August 15, and that he had no obligation to bar-
gain with Local 144 as he did not hire any Park
Inn employees but lawfully subcontracted all unit
work to Travelers
We reject the Respondents' interpretation of the
evidence and the testimony as internally inconsist-
ent and implausible Thus, we find no fault with
the judge's credibility resolutions nor with his find
ings of fact In this regard, based on the credited
testimony of Schulz, Kalik, and McCabe, as well as
on the lease signed by Osowsky and Kalik on
August 3, we find, in agreement with the judge,
that the purported transfer from Krausman to
Osowsky, which the Respondents argue freed
Osowsky to hire new employees to operate the fa-
cility, was both decided on and set in motion
before the August 15 date that the Respondents
would have us attach to Krausman's decision
There can be no doubt that Krausman was privy to
Kalik's successful efforts to locate a new tenant
before August 15, given the judge's crediting of
Kalik's testimony that he informed Krausman that
he had located a new tenant, Osowsky, before
August 3 Additionally, McCabe's credited testimo-
ny that Krausman informed McCabe on August 11
that Krausman was giving up her lease and that the
facility would have a new operator partially cor-
roborates Kalik's testimony because it shows that
Krausman was aware before August 15 that a new
tenant had been found Furthermore, the judge's
findings are consistent with Osowsky's prior agree-
ment with Travelers to provide employees on
August 15
Consistent with our finding that Krausman was
aware of the transfer of the facility to Osowsky,
we conclude that Park Inn's failure to inform
Local 144 of the imminent transfer indicates that
the transfer was a scheme to circumvent the de
mands of Local 144 rather than a bona fide arm's
length transaction We further conclude that Park
Inn's failure to inform Local 144 on and after
August 7 that Krausman's status as the facility's op
erator would change imminently and its explicit
statements through counsel that Krausman was still
seeking concessions from her landlord effectively
and unlawfully rendered the Union unable to nego-
tiate at and after the August 7 session and demon-
strated that Park Inn's August 7 offer was tendered
without the intent to arrive at an agreement Metro-
politan Teletronics, 279 NLRB 957, 958 (1986), enfd
mem 127 LRRM 2048 (2d Cir 1988) Thus, al
though the record contains no basis for concluding
that Park Inn bargained in bad faith before July 31,
we agree with the judge that it did violate Section
8(a)(5) and (1) by engaging in bad faith bargaining
on and after August 7 8
'In reaching his conclusions regarding Park Inns bargaining the
judge relied in part on his finding that Respondent Park Inn s August 7
proposals were less palatable than those advanced previously We find
it unnecessary to rely on the judge s analysis of the content of Park Inn s
proposals or to determine whether the final offer was regressive in
concluding that Park Inn advanced its final offer in bad faith In this
regard as noted above in our view Krausman s actions during July and
early August to relinquish her leasehold in order to construct a scenario
whereby she could argue that she was no longer the operator of the facil
ity while asserting at the bargaining table that she was seeking conces
sions from her landlord provide ample evidence of Park Inn s underlying
bad faith in negotiations on and after August 7 We also find it unneces
sary to pass on the judge s reliance on the cited passage from NLRB v
Reed & Prince Mfg Co 205 F 2d 131 (1st Cir 1953) cert denied 346
US 887 (1953)
PARK INN HOME FOR ADULTS
We also agree with the judge that the August 14
posting of the notice announcing changed condi
tions of employment was an unlawful unilateral
change 9 Further, we attach particular significance
to this posting In our view, by threatening em
ployees with discipline, including discharge, if they
refused to work under the posted conditions, Park
Inn presented the employees with an "either/or"
proposition intended to vitiate the employees' right
to strike in protest of Park Inn's unlawful acts or in
support of their own economic interests In so
doing, Park Inn deliberately presented its employ
ees with a "Hobson's Choice," counting on the
likelihood that the employees would refuse to work
under the unlawfully posted conditions and thus
pave their own way to discharge or replacement
by the Travelers' employees We note further that
Osowsky, Kalik, and Krausman timed the purport
ed change of ownership to occur on the day that
the notice went into effect, intending thereby to ef-
fectively create a "no-win" situation for the em-
ployees Thus, under the Respondents' own view
that Osowsky was a "new" employer and that he
therefore could supplant the unit employees with
Travelers' employees as of August 15, the jobs of
the employees would have been in jeopardy re-
gardless of how the employees reacted to the post-
ing
This scenario, in effect orchestrated by the Re-
spondents' actions, makes it difficult to determine
the precise status of the employees as they left
Park Inn's premises on August 15 The judge found
that the employees were constructively discharged
and, therefore, were entitled to reinstatement and
backpay Alternatively, he found that they were
unfair labor practice strikers whose status as such
was protected despite the Union's failure to file a
new strike notice under Section 8(g) of the Act
We agree with the judge that the employees are
entitled to reinstatement and backpay, but for the
reasons stated below
As an initial matter, while we agree with the
judge that Park Inn violated Section 8(a)(5) by its
B The judge did not reach the issue of whether the parties bargained to
impasse before Park Inn implemented its final offer Thus he did not
find that Park Inn violated Sec 8 (a)(5) by implementing an offer without
having bargained to impasse as the complaint alleged We note however
that Park Inn cannot claim a valid impasse here in light of the climate
created by its own unfair labor practices set forth above in which the
final stage of bargaining took place Taft Broadcasting Co 163 NLRB
475 (1967) See also Shipbuilders /Bethlehem Steel) v NLRB 320 F 2d
615 621 (3d Cir 1983) and cases cited there Hence Park Inn was obli
gated to maintain the status quo and was not privileged at that stage of
bargaining to implement even the exact terms of its final offer Moreover
we note that with respect to the fringe benefit plans the implemented
proposal was substantially and significantly different from Park Inn s final
offer Accordingly we find that Respondent Park Inn violated Sec
8(a)(5) and ( 1) by unilaterally changing terms and conditions of employ
ment effective August 15
1087
August 14 posting, we reject the judge's conclusion
that the record justifies a finding that Park Inn
thereby constructively discharged its employees on
August 15 in violation of Section 8(a)(3) and (1)
Thus, we find no indication that the employees re
signed their employment on that date in response
to the posted conditions Although the unlawfully
implemented changes in the working conditions
clearly motivated the employees to engage in a
strike, it does not appear from the record evidence
that they intended to resign Rather, it appears that
their actions were intended to protest Park Inn's
conduct, but not to terminate their employment re-
lationship 10
We, however, agree with the judge's alternative
conclusion that if Park Inn's employees were not
constructively discharged then the employees
struck on August 15 and the strike was in response
to Park Inn's serious unfair labor practices This
conclusion follows logically from the finding that
the posting itself was unlawful, as the employees'
refusal to work was clearly in response to the post-
ing
We further find that, despite Local 144' s failure
to provide notice of the strike on August 15, these
employees did not engage in unprotected activity
and did not lose their status as employees We
agree with the judge that, under the doctrine of
Mastro Plastics Corp v NLRB, 350 U S 270 (1956),
as applied in Hospital Employees District 1199E
(CHC Corp), 229 NLRB 1010 (1977), and the later
case Council's Center for Problems of Living, 289
NLRB 1122 (1988), Local 144 was excused from
the notice requirement of Section 8(g) because the
strike was triggered by sufficiently serious unfair
labor practices In Mastro Plastics, the Supreme
Court held an unfair labor practice strike to be pro-
tected even though it violated a contractual no-
strike clause The Board has construed Mastro Plas-
tics as not affording protected status to all unfair
labor practice strikes in violation of no-strike
clauses, but only to strikes in response to "serious"
unfair labor practices by employers Arlan's Depart
ment Store, 133 NLRB 802, 807 (1961)
As the Board noted in Hospital Employees District
1199E (CHC Corp), supra at fn 3, Congress in en-
acting Section 8(g) made clear that a union would
not be required to comply with that section's pro-
visions in the event of a strike in response to an
employer's unfair labor practices "as in Mastro
Plastics Corp " (Citation omitted) See S Rep No
93-766 at 4, Coverage of Nonprofit Hospitals
10 In view of our finding that the employees did not intend to resign
their positions on August 15 we need not reach the judge s finding that
the conditions of employment unilaterally imposed by Park Inn on that
date were sufficiently onerous to constitute constructive discharge
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
under the National Labor Relations Act, H R Rep
No 93-1051 at 6 The legislative history thus does
not indicate clearly the nature of employer unfair
labor practices that would excuse a union from
complying with Section 8(g) However, because
Section 8(g) can be viewed as the equivalent of a
statutory no-strike clause for the health care indus-
try, Arlan's and its progeny can furnish guidance to
the Board and the courts in determining whether
particular unfair labor practices have been such as
to render a strike in that industry protected, even if
the requirements of Section 8(g) have not been
met Normally, in other words, if a health care em-
ployer's unfair labor practices would be deemed
` serious" under Arlan's, the Board would find a
strike in response to those unfair labor practices
protected whether or not the union has complied
with the 8(g) notice requirements
In applying Arlan's, the Board has found a per
vasive pattern of bad faith bargaining by an em-
ployer to be a sufficiently serious unfair labor prac
tice that a strike in response did not lose its pro
tected character, even in the face of a no-strike
clause Television Wisconsin, 224 NLRB 722, 776
(1976), overruled on other grounds in 275 NLRB
278 (1985) Courts have enforced Board decisions
finding strikes to be protected, notwithstanding no
strike agreements, when the precipitating events
were unilateral changes in terms and conditions of
employment Isla Verde Hotel v NLRB, 702 F 2d
268 (1st Cir 1982) (unilateral change in retaliation
for union's filing a charge, coupled with employer's
refusal to negotiate), NLRB v Northeast Oklahoma
City Mfg Co, 631 F 2d 669 (10th Cir 1980) Cf
Caterpillar Tractor Co v NLRB, 658 F 2d 1242
(7th Cir 1981), Dow Chemical Co v NLRB, 636
F 2d 1352 (3d Cir 1980), cert denied 454 U S 818
(1981) (strikes found not protected when employ-
ers' unilateral changes were based on arguable in-
terpretation of management-rights clauses, and dis-
putes were susceptible to resolution through griev-
ance procedure)
On the basis of the foregoing authorities, we find
that Park Inn's actions in this case-bargaining in
bad faith with the intention of provoking a strike
by unlawfully implementing changed (for the
worse) conditions and threatening employees with
discharge if they did not accept the new condi-
tions-were "serious" unfair labor practices within
the meaning of Arlan's If anything, those actions
were more serious violations of the Act than the
employers' unlawful acts in Television Wisconsin,
Isla Verde, and Northeast Oklahoma City, supra
There can be no doubt that the Respondent acted
as it did in gross bad faith, and with the aim of un-
dermining and ultimately destroying the bargaining
relationship between itself and the Union Accord
ingly, we find that those unfair labor practices are
the kind Congress had in mind when it analogized
to Mastro Plastics in 1974, and that the employees'
strike did not lose its protected character merely
because the Union did not comply with the re-
quirements of Section 8(g)
In addition, we find that the particular circum
stances of this case compel a conclusion that the
employees did not lose their protected status by
striking on August 15 Thus, we agree with the
judge that the plan executed by Krausman, Kalik,
and Osowsky to avoid dealing with Local 144 and
to replace the employees represented by Local 144
with cheaper subcontracted labor reached its in
tended outcome when the employees struck after
Park Inn's new terms of employment went into
effect on August 15 As we have found, Park Inn's
August 7 proposal and all its subsequent bargaining
steps, including its announcement of impasse and its
posting and implementation of new conditions of
employment, were tainted by bad faith Moreover,
this calculated bad-faith bargaining and economic
pressure occurred when Respondent Osowsky had
already agreed to lease and operate the facility and
had contracted for new employees-who had al-
ready been hired-to staff it We conclude from
these facts that whether the employees struck that
day or in 10 days or did not strike at all, they were
to be replaced by the Travelers' employees hired
to do their jobs, and that by refusing to work
under the posted conditions the employees, in
effect, sprang the trap set for them by Park Inn In
our view, the Act does not privilege any employer
including an 8(g) health care institution, to embark
on a deliberate plan to provoke employees into a
strike, while intending to profit from the strike by
using employees, already hired at lower pay, in
place of the employees essentially impelled into a
work stoppage 11 Thus, in view of all the circum
" See Cedarcrest Inc 246 NLRB 870 876 (1979) in which the Board
also excused a union from the 8(g) notice requirements See generally
United States Ape & Foundry Co 180 NLRB 325 328 (1969) enfd sub
nom Molders Local 155 v NLRB 442 F 2d 742 (D C Cir 1971) for its
discussion of the potential unlawfulness of provoking employees to strike
In making our findings concerning the Respondents plan here we do
not suggest that an employer violates Sec 8(a)(5) or provokes a strike
merely by secretly arranging for replacement employees in preparation
for an anticipated strike
Member Johansen does not pass on the applicability of Mastro Plastics
supra to this case Given the compelling circumstances of this case how
ever Member Johansen agrees with his colleagues that the striking em
ployees did not lose their protected status when they engaged in a work
stoppage beginning August 15
A comparison of some of the terms and conditions of employment
posted on August 14 to those the employees had enjoyed under the ex
pired contract illustrates the choice that the employees faced and con
firms the predictable effect of the posting on the employees First imple
mented proposals lengthened the employees work week from 35 to 40
Continued
PARK INN HOME FOR ADULTS
stances of this case, including the Union's two pre-
vious and legally sufficient strike notices, we find
that the Park Inn employees who engaged in an
unfair labor practice strike on August 15 did not
thereby lose their status as employees 12
It remains for us to determine whether the strik-
ers are entitled to reinstatement This issue turns on
whether or not Park Inn discharged them after the
commencement of the work stoppage 13 In this
regard, in determining whether striking employees
have been discharged, "the events must be viewed
through the striker's eyes and not as the employer
would have viewed them " Trident Recycling Corp,
282 NLRB 1255, 1260 (1987) Furthermore, the
burden of any ambiguity created by a respondent's
actions falls on the respondent Pennypower Shop-
ping News, 253 NLRB 85 (1980), enfd 726 F 2d
626 (10th Cir 1984) In this case, we believe that
Park Inn either discharged the striking employees
or engaged in conduct that caused them reasonably
to conclude that, once they failed to return to
work under the posted conditions, their employ-
ment with Park Inn had been terminated
The posting informed employees clearly that if
they would not work under the posted conditions
they would be subject to severe discipline, and, "if
deemed appropriate," discharge A refusal to work
under the posted conditions could consist of little
else other than a work stoppage, or a strike There-
fore, in light of Krausman's ultimatum to the em
ployees and Romano's similar ultimatum to
Godwin to the effect that if the employees would
not work under the posted conditions they must
leave the premises, when the employees were es-
corted from the building by the police and saw
hours while granting a pay increase of 5 percent resulting in a reduction
in hourly wage rates Second the posted proposals revoked other terms
of employment such as the uniform allowance payment of accrued sick
leave (previously paid to employees just before Christmas) payment of
$5 for split shift work and payment of a 10-percent differential for night
shift work The posting also stated that Park Inn had no obligation to
provide its employees with contractual health pension and welfare bene
fits beyond those mandated by law
We note that in NLRB v California School of Professional Psychology
583 F 2d 1099 (9th Cir 1978) the court denied enforcement to California
School of Professional Psychology 227 NLRB 1657 (1977) cited by the
judge in Cedarcrest in support of a point not relevant here The court s
ruling does not affect the portion of the latter case to which we allude
here
12 In finding that the strike was not unprotected we rely not only on
those unfair labor practices the full facts and import of which were
known to employees but also on those unlawful acts the import of which
was not clear to employees as a result of Park Inn s successful conceal
ment of relevant facts Cf Gulf Envelope Corp 256 NLRB 320 325-326
(1981)
In finding that Park Inn s unfair labor practices triggered the strike
under the circumstances of this case Member Cracraft does not distin
guish between those unlawful acts that the employees knew to be unfair
labor practices and those acts the impact of which Park Inn had success
fully concealed from the Union and the employees
is This determination is significant because the record does not estab
lish the existence of any request for reinstatement on behalf of the stnk
ing employees
1089
new employees begin to arrive virtually simulta-
neously to perform their jobs, it would have been
more than reasonable for them to conclude that
Park Inn had indeed discharged them for their re-
fusal to work under the unlawfully imposed condi-
tions Therefore, we find that Park Inn either dis-
charged the employees or caused them reasonably
to believe that they had been discharged in viola
tion of Section 8(a)(3) and (1) of the Act Accord-
ingly, we shall order their reinstatement despite the
lack of evidence in the record that a request for re-
instatement has been made on their behalf Penny
power Shopping News, supra, 253 NLRB at 86
CONCLUSIONS OF LAW
I Malvina Krausman, Sally Perlberg, and Leon
Perlberg d/b/a Park Inn Home for Adults, Pinkus
Osowsky d/b/a New Park Inn Home for Adults,
Marvin Beinhorn d/b/a Park Inn, and Samuel
Konig d/b/a Park Inn, are employers engaged in
commerce within the meaning of Section 2(2), (6),
and (7) of the Act
2 Pinkus Osowsky d/b/a New Park Inn Home
for Adults, Marvin Beinhorn d/b/a Park Inn, and
Samuel Konig d/b/a Park Inn and each of them,
are alter egos of Park Inn Home for Adults
3 All service and maintenance employees em-
ployed by the Respondents at 115-02 Ocean Prom
enade, New York, New York, excluding all other
employees, guards, and supervisors as defined in
Section 2(11) of the Act constitute a unit appropri-
ate for collective bargaining within the meaning of
Section 9(b) of the Act
4 Local 144, Hotel, Hospital, Nursing Home
Allied Health Services Union, AFL-CIO, and
Local 143, Office, Service and Allied Workers
Union, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act
5 Local 144 is now, and has been at all times
material to this proceeding, the representative for
the purposes of collective bargaining of a unit of
Respondent Park Inn's employees appropriate for
collective bargaining
6 By advancing its final offer in negotiations for
a collective-bargaining agreement with Local 144
in bad faith, and by unilaterally implementing terms
and conditions of employment on August 15, 1978,
without having bargained to a valid impasse, Re-
spondent Park Inn violated Section 8(a)(5) and (1)
of the Act
7 By discouraging membership in the above-
named Union by terminating or causing its employ-
ees reasonably to conclude that their employment
had been terminated for engaging in protected con-
certed activities and pursuant to a plan to create
alter ego entities for the purpose of avoiding the
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
obligation to bargain with Local 144, Respondent
Park Inn has violated Section 8 (a)(3) and (1) of the
Act
8 By soliciting employees to sign authorization
cards for Local 143, Office, Service and Allied
Workers Union, AFL-CIO, and by recognizing
and maintaining contractual relations with that
Union at a time when it did not represent an un-
coerced majority of employees in an appropriate
bargaining unit , and when it was legally obligated
to recognize and bargain with Local 144 as the ex
clusive representative of the employees in the unit
described above , Respondent Osowsky violated
Section 8(a)(2) and (1) of the Act
ORDER
The National Labor Relations Board orders that
the Respondents , Malvina Krausman, Sally Perl
berg and Leon Perlberg , copartners d/b/a Park
Inn Home for Adults , Pinkus Osowsky, individual-
ly d/b/a New Park Inn Home for Adults, Marvin
Beinhorn , individually d/b/a Park Inn, and Samuel
Konig , d/b/a Park Inn, New York, New York,
shall
1 Cease and desist from
(a) Failing and refusing to recognize and bargain
with Local 144, Hotel , Hospital , Nursing Home
Allied Health Services Union , AFL-CIO as the ex-
clusive collective -bargaining agent of the employ-
ees in the following appropriate unit
All service and maintenance employees em-
ployed at 115-02 Ocean Promenade , NY, NY,
excluding all other employees , guards, and su-
pervisors as defined in Section 2(11) of the
Act
(b) Advancing its final offer in negotiations for a
collective-bargaining agreement with Local 144 in
bad faith, and unilaterally , and without bargaining
to valid impasse with the Union , altering the
wages, hours, and other conditions of employment
of employees
(c) Discouraging membership in the above
named Union by terminating employees or causing
them reasonably to conclude that their employment
has been terminated for engaging in protected con-
certed activities and pursuant to a plan to create
alter ego entities for the purpose of avoiding the
obligation to bargain with Local 144, or by dis-
criminating against employees in any other manner
in regard to their hire or tenure of employment, or
any other terms or conditions of employment
(d) Soliciting employees to sign authorization
cards for Local 143, Office , Service , and Allied
Workers Union , AFL-CIO and recognizing and
maintaining contractual relations with that Union,
or any other labor organization , that does not rep
resent an uncoerced majority of employees in an
appropriate bargaining unit, at a time when it is le-
gally obligated to recognize and bargain with
Local 144 as the exclusive representative of the
employees in the unit described above
(e) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Recognize and, on request, bargain with
Local 144, Hotel, Hospital, Nursing Home Allied
Health Services Union, AFL-CIO as the exclusive
collective bargaining agent of the employees in the
aforesaid appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms
and conditions of employment and, if an under-
standing is reached, embody such understanding in
a signed agreement
(b) Reimburse employees for all moneys for
dues, fees, and initiation fees that were unlawfully
deducted from their wages and remitted to Local
143 to the extent that such has not been accom-
plished by Travelers Maintenance, Inc
(c) Offer the employees who were terminated on
August 15, 1978, or whom Respondent Park Inn's
conduct placed in the position of reasonably con
cluding that their employment had been terminat
ed, immediate and full reinstatement to their former
jobs or, if such jobs no longer exist, to substantially
equivalent positions, dismissing if necessary any
persons hired on August 14, 1978, or thereafter to
replace them, and make the employees whole for
any loss of earnings they may have suffered as a
result of the discrimination practiced against them,
with interest 14
(d) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis
charges will not be used against them in any way
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(f) Post at its facility at 115-02 Ocean Prome-
nade, New York, New York, copies of the attached
notice marked "Appendix "15 Copies of the notice,
14 Interest shall be computed in the manner prescribed in New Horizons
for the Retarded 283 NLRB 1173 (1987)
ib If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
PARK INN HOME FOR ADULTS 1091
on forms provided by the Regional Director for
Region 29, after being signed by the Respondents'
authorized representative, shall be posted by the
Respondents immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted Reasonable steps
shall be taken by the Respondents to ensure that
the notices are not altered, defaced, or covered by
any other material
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT fail and refuse to recognize and
bargain with Local 144, Hotel, Hospital , Nursing
Home Allied Health Services Union , AFL-CIO as
the exclusive collective bargaining agent of the em-
ployees in the following appropriate unit
All service and maintenance employees em-
ployed at 115-02 Ocean Promenade , NY, NY,
excluding all other employees , guards , and su-
pervisors as defined in Section 2(11) of the
Act
WE WILL NOT advance our final offer in negotia-
tions for a collective bargaining agreement with
Local 144 in bad faith , and WE WILL NOT unilater
ally, and without bargaining to valid impasse with
the Union , alter the wages , hours , and other condi-
tions of employment of our employees
WE WILL NOT discourage membership in the
above-named Union by terminating employees or
causing them reasonably to conclude that their em-
ployment has been terminated for engaging in pro-
tected concerted activities and pursuant to a plan
to create alter ego entities for the purpose of avoid-
ing the obligation to bargain with Local 144, or by
discriminating against employees in any other
manner in regard to their hire or tenure of employ
ment, or any other terms or conditions of employ-
ment
WE WILL NOT solicit employees to sign authori-
zation cards for, and WE WILL NOT recognize and
maintain contractual relations with, Local 143,
Office, Service, and Allied Workers Union, AFL-
CIO, or any other labor organization that does not
represent an uncoerced majority of employees in
an appropriate bargaining unit, at a time when we
are legally obligated to recognize and bargain with
Local 144 as the exclusive representative of the
employees in the unit described above
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act
WE WILL recognize and, on request, bargain
with Local 144, Hotel, Hospital, Nursing Home
Allied Health Services Union, AFL-CIO as the ex-
clusive collective-bargaining agent of the employ-
ees in the aforesaid appropriate unit with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment and if
an understanding is reached, embody such under-
standing in a signed agreement
WE WILL reimburse employees for all moneys
for dues, fees, and initiation fees that were unlaw
fully deducted from their wages and remitted to
Local 143 to the extent that such has not been ac-
complished by Travelers Maintenance, Inc
WE WILL offer the employees who were termi
nated on August 15, 1978, or whom our conduct
placed in the position of reasonably concluding
that their employment had been terminated, imme-
diate and full reinstatement to their former jobs or,
if such jobs no longer exist, to substantially equiva-
lent positions, dismissing, if necessary, any persons
hired on or after August 15, 1978, or thereafter to
replace them, and WE WILL make such employees
whole for any loss of earnings they may have suf-
fered as a result of the discrimination practiced
against them, with interest
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL notify each of them that we have re-
moved from our files any reference to their dis-
charge and that the discharge will not be used
against them in any way
MALVINA KRAUSMAN, SALLY PERL-
BERG AND LEON PERLBERG, COPART
NERS D/B/A PARK INN HOME FOR
ADULTS, PINKUS OSOWSKY, INDIVID-
UALLY D/B/A NEW PARK INN HOME
FOR ADULTS, MARVIN BEINHORN, IN-
DIVIDUALLY D/B/A PARK INN, AND
SAMUEL KONIG, D/B/A PARK INN
Lauren Rich Esq, counsel for the General Counsel
Frank Romano Esq, of New York, New York, for Re
spondents Malvina Krausman, Sally Perlberg and
Leon Perlberg, copartners d/b/a Park Inn Home for
Adults
John H Yauch Jr Esq (Yauch Peterpaul & Clark), of
Springfield, New Jersey, for Respondent Marvin Bein
horn
Benjamin H Segal Esq, of New York, New York for
Respondent Pinkus Osowsky
Harold R Weinrich Esq and Jo Anne Morley Esq (Jack
son Lewis Schnitzler & Krupman), of New York, New
York for Respondents Malvina Krausman, Sally Perl
berg and Leon Perlberg, copartners d/b/a Park Inn
Home for Adults and Respondent Samuel Konig
David Lew Esq (Bert & Lew), of New York, New York
for Respondent Travelers Maintenance
Robert A Cantore Esq and Andrew Schultz Esq (Na
deck Waldman Elias & Engelhard P C) of New
York, New York, for the Charging Party
DECISION
STATEMENT OF THE CASE
DONALD R HOLLEY, Administrative Law Judge On
original charges filed in Cases 29-CA-6645 and 29-CA-
6705, a consolidated complaint was issued on October
30, 1978 1 against Malvina Krausman Sally Perlberg and
Leon Perlberg d/b/a Park Inn Home for Adults (Re
spondent Park Inn) Pinkus Osowsky d/b/a New Park
Inn Home for Adults (Respondent New Park Inn or
Osowsky), and Travelers Maintenance Inc (Respondent
Travelers), which alleged violation of Section 8(a)(1),
(2), (3) and (5) of the National Labor Relations Act In
substance the consolidated complaint alleged that Re
spondent Park Inn negotiated with Local 144, Hotel,
Hospital, Nursing Home and Allied Health Services
Union, AFL-CIO (Local 144 or the Union) in bad faith
from February 28 1978, forward that on August 14
Park Inn unilaterally changed the existing wages hours
and other conditions of employment of bargaining unit
employees represented by Local 144, without bargaining
to impasse with the Union that on August 15 Park Inn
locked out or fired employees represented by Local 144
' All dates are 1978 unless otherwise indicated
because they would not work under the conditions an
nounced by Park Inn on August 14, that Respondent
New Park Inn, which commenced operations on August
15, is the alter ego and successor to Respondent Park
Inn that Respondent Travelers which commenced to
supply employees to New Park Inn on August 15, and
the latter named Respondent are joint employers of spec
ified employees, that Respondent New Park Inn contin
ued after August 15 to lock out and failed to reinstate
the Park Inn employees who were locked out or fired on
August 15, that Respondents New Park Inn and Travel
ers unlawfully assisted Local 143, Office, Service and
Allied Workers Union, AFL-CIO (Local 143) in August
1978 by soliciting the signatures of New Park Inn em
ployees on Local 143 authorization cards and by entering
a collective bargaining agreement with Local 143 at a
time when it did not represent an uncoerced majority of
New Park Inn employees, and that picketing by employ
ees, who were locked out or discharged on August 15,
was caused or prolonged by the unfair labor practices of
Respondents Park Inn, New Park Inn, and Travelers
The named Respondents filed timely answers denying
they had engaged in the unfair labor practices set forth
in the consolidated complaint
On September 11, Local 144 filed the original charge
in Case 29-CA-6645-2 On November 8, a complaint
was issued in that case In substance, that complaint al
leged that Respondent Park Inn and Respondent New
Park Inn violated Section 8(a)(1) (3) and (5) of the Act
by failing since March 11, 1978, to make contributions to
the Local 144 Employee Benefit Funds Respondents
Park Inn and New Park Inn filed timely answers denying
they engaged in the unfair labor practices alleged in the
November 8 complaint and on March 5 1979 the
Region issued an order consolidating all the above men
tioned cases for trial Thereafter, on June 20 1979, the
Region amended the consolidated complaint by naming
Local 143 as a party in interest
On October 10, 1979 Local 144 filed the original
charge in Case 29-CA-7540 and on December 31, 1979
the Region issued second order consolidating cases
amended consolidated complaint and notice of hearing
(the complaint) which consolidated Case 29-CA-7540
with Cases 29-CA-6645, 29-CA-6705, and 29-CA-6645-
2 for trial Summarized, the complaint realleged the mat
ters set forth in earlier complaints and additionally al
leged that since June 1 1979 Marvin Beinhorn d/b/a
Park Inn (Respondent Beinhorn) operated the subject
home for the aged as the successor to Respondent Park
Inn and Respondent New Park Inn and that Respondent
Bemhorn violated Section 8(a)(1), (3) and (5) of the Act
since June 1 1979 by continuing to lock out and to
refuse to reinstate the employees locked out or dis
charged on August 15 1978, and by failing to make con
tributions to the Local 144 Employee Benefit Funds
Each of the named Respondents denied they had en
gaged in the unfair labor practices attributed to them in
the complaint 2
2 On April 10 1979 the Region issued an order renumbering certain
paragraphs of the complaint and amended the complaint by setting forth
jurisdictional allegations relating to Respondent Travelers operations
PARK INN HOME FOR ADULTS
The trial was commenced in Brooklyn, New York, on
June 16 1980 On June 17, a settlement stipulation be
tween the General Counsel Respondent Travelers and
the Union was reached and approved by me 3 Thereaf
ter, Respondent Travelers took no active part in the
trial The trial continued on various dates during July
and August, and on August 19, 1980, it was recessed
sine die, pending compliance by Respondents Park Inn
New Park Inn, and Beinhorn with a non Board settle
ment agreement
On January 13, 1982, counsel for the General Counsel
moved to reopen the record and resume the trial for fail
ure of the Respondents to comply with the terms of the
non Board settlement agreement The teal was resumed
on June 1, 1982, and at that time Samuel Konig the
present operator of the Park Inn Home for Adults,
moved to intervene in the proceeding as a party in inter
est Thereafter on July 7, 1982, counsel for the General
Counsel served on Respondents Park Inn New Park Inn,
Beinhorn and Samuel Konig notice of intention to
amend, which signified she intended to amend the com
plaint, inter alia to name Samuel Konig as a Respondent
and successor to Respondent Beinhorn, and to require
that Respondent Konig, as successor to Respondent
Beinhorn, remedy the unfair labor practices described in
paragraphs 13 through 17, 19, 20, 25, 26, 29(a), 31(a) and
32 of the complaint When the trial resumed on July 12,
1982, over objection, I granted the General Counsel s
motion to amend the complaint as indicated immediately
above The trial continued on July 13 and 14, 1982, and
from September 7-10, 1982, when the record was closed
Counsel for the General Counsel and counsel for Re
spondents Park Inn and Konig filed posthearing briefs
which have been carefully considered On the entire
record in the case and from my observation of the wit
nesses while they testified I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent Park Inn denied the commerce allegations
set forth in paragraphs 2(a) through (e) of the complaint
Malvina Krausman , the sole owner of Park Inn Home
for Adults since some unstated time in 1976 indicated
during her testimony that from 1971 until 1976 she Sally
Perlberg and Leon Perlberg operated a home for aged
adults at 115-02 Ocean Promenade Queens, New York
and that from 1976 until August 15 1978, she operated
the facility as a sole proprietor She testified the facility
has 181 beds and that during the 12 month period pre
ceding August 15 1978, an average of 160 beds were oc
cupied by residents who each paid Respondent Park Inn
in excess of $300 per month It is undisputed that Re
spondent Park Inn employed a number of individuals in
various job classifications to care for residents of the
home at all times material
On the above facts I find that Respondent Park Inn s
gross revenue during the 12 month period preceding
August 15, 1978 exceeded $100000 and that jurisdiction
over Respondent Park Inn should be asserted pursuant to
3SeeGC Exh 2
1093
the discretionary standard for the assertion of jurisdiction
over health care facilities announced by the Board in
University Nursing Home 168 NLRB 263 (1967)' I fur
ther find that Respondent Park Inn is as alleged in the
complaint an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act
It is undisputed that Pinkus Osowsky operated the
home for adults involved in this case from August 15
1978 until approximately June 1, 1979 The complaint al
leges and Respondent New Park Inn admits, that during
the described period, Respondent New Park Inn s gross
revenue exceeded $100 000, and that during the same
period it purchased from local suppliers goods, materials
and supplies valued at in excess of $50 000 which were in
turn received by these suppliers from points located out
side the State of New York It is admitted, and I find,
that Respondent New Park Inn was at all times material
an employer engaged in commerce within the meaning
of Section 2(2) (6), and (7) of the Act
The record reveals that Marvin Beinhorn d/b/a Park
Inn operated the home for the aged involved herein from
approximately June 1, 1979, until June 1, 1981 The com
plaint alleges , and Respondent Beinhorn s answer admits,
that its annual gross revenues exceed $500,000, and it an
nually purchased from local suppliers goods and materi
als valued at in excess of $50 000, which were, in turn,
received directly by the suppliers from points located
outside the State of New York It is admitted, and I find
that at times material Respondent Beinhorn was an em
ployer engaged in commerce within the meaning of Sec
tion 2(2) (6) and (7) of the Act
II STATUS OF LABOR ORGANIZATION
It is undisputed, and I find, that Local 144 Hotel
Hospital Nursing Home and Allied Health Services
Union, AFL-CIO, and Local 143 Office, Service and
Allied Workers Union, AFL-CIO (Local 143 and/or
Party in Interest) are labor organizations within the
meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Facts
1 Overview of the case
When Respondent Park Inn commenced to operate a
home for the aged at 115 02 Ocean Promenade in New
York City in 1970 it recognized the Union as the collec
tive bargaining agent for its service and maintenance em
ployees 5 Thereafter, the Union and Park Inn were par
4 While the jurisdictional standard set forth in University Nursing Home
supra does not appear to require proof of facts that would establish
legal jurisdiction Malvina Krausman testified the facility is heated with
natural gas and General Counsel witness Ross A Caplan an engineer
with Long Island Lighting Company credibly testified his firm supplied
the natural gas utilized by Respondent Park Inn during 1978 and that all
the natural gas supplied by Long Island Lighting Company in 1978 came
from points located outside the State of New York I find such facts es
tablish that the Board has legal jurisdiction over Respondent Park Inn
5 The complaint alleges that the appropriate bargaining unit to be all
service and maintenance employees employed at the Ocean promenade
Continued
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ties to three successive collective bargaining agreements,
the last of which expired by its terms on October 31
1976 The agreements obligated Park Inn to make specs
feed contributions to certain trust funds, i e , welfare,
pension, dental and educational trust funds, and the fa
cility became delinquent in its trust fund contributions as
early as 1972 It has failed completely to make the re
quired contributions since December 11, 1974 At some
point after the most recent agreement expired, the Union
obtained an arbitration award for $60,721 12 represent
ing delinquencies during the period January 1, 1972 to
December 31, 1976 By letter dated December 20 1976
Respondent Park Inn sought to sever its contractual rela
tionship with the Union and it has claimed since that
time that it is not legally obligated to make further con
tributions to the trust funds
In the fall of 1976, the parties commenced negotiations
for a new agreement Several meetings were held during
1976 and 1977 but no agreement was reached In mid
1978, serious negotiations were conducted for approxi
mately 1 month with the Union seeking additional bene
fits and Park Inn seeking to reduce existing benefits On
August 15 1978, Park Inn implemented a so called last
offer and the bargaining unit employees ceased work and
commenced to picket the facility
When the employees left the premises on August 15,
1978 Malvina Krausman, the owner, vacated the facility
and Rabbi Pinkus Osowsky supposedly assumed owner
ship and control of the business Osowsky paid noth ng
for the business and he staffed the facility with employ
ees provided by an independent contractor, Travelers
Maintenance Subsequently Travelers recognized Local
143 as the bargaining agent for the housekeeping and
maintenance employees working in the home When
Osowsky was notified in early May 1979 that the New
York State Department of Social Services would not
issue him an operating certificate, Marvin Beinhorn sup
posedly assumed ownership and control of the facility
Beinhorn, who initially utilized the employees working
in the facility when he assumed control also paid noth
ing for the business In mid 1981 Beinhorn who had
failed during his 2 year association with the facility to
obtain an operating certificate abandoned the business
and control was assumed by Samuel Konig Because
Konig paid nothing for the business, he agreed to pay
Beinhorn the profit the latter earned while operating the
business
As indicated above the General Counsel claims that
Respondents Park Inn New Park Inn, Betnhorn, and
Travelers violated the Act in numerous respects While
Konig is not charged with violating the Act the General
Counsel has by alleging that he is a successor to Bein
horn, sought to compel him to remedy the unfair labor
practices committed by others The individual allegations
are discussed below
adult home exclusive of all other employees guards and all supervisors
as defined in Sec 2(11) of the Act It is undisputed and I find the unit
described is an appropriate bargaining unit
2 The alleged surface bargaining
The contract negotiations involved in this case oc
curred between December 14, 1976 and August 7 1978
The parties held only seven negotiating sessions during
the period in question, and there were several long hia
tuses between sessions Testimony and evidence reveal
ing what occurred during the period extending from De
cember 14, 1976, to February 28, 1978, will be consid
ered only for the purpose of shedding light on the nego
tiations that occurred subsequent to the latter date,
which is the Section 10(b) date 6
The December 14 1976 session
Pursuant to Union Business Agent Fran Dunham s Oc
tober 26, 1976 letter, the Union and Respondent Park
Inn met on December 14, 1976, to renegotiate the collec
tive bargaining agreement which had expired on Octo
ber 31, 1976 Dunham represented the Union and Frank
Romano, an attorney, represented Respondent Park Inn
Prior to the session under discussion, Dunham had
supplied Romano with the Union s proposals They are
embodied in an exhibit placed in evidence as Respondent
Krausman s Exhibit 29
While Romano appeared as a witness in the instant
case Dunham did not Romano testified that when he
was presented with the above described document he
recognized the proposals as terms of the then subsisting
collective bargaining agreement between the Metropoli
tan New York Nursing Home Association, Inc and
Local 144 7 According to Romano Dunham informed
him that the Union s aim in negotiations with Respond
ent Park Inn was to attempt to negotiate what could be
used as a master agreement for homes for the aged in the
New York area and the Unions desire was that the
wages and benefits received by Park Inn bargaining unit
employees would be elevated to the level of the wages
and benefits then being enjoyed by blue collar workers
pursuant to the master nursing home agreement Ro
mano s response was that the nursing home agreement
could not realistically be used as a guide to the parties
negotiations because homes for the aged did not generate
the revenues generated at nursing homes Romano fur
ther indicated he did not intend to respond to the
Union s proposals until it abandoned the nursing home
concept 8
6 ThP original charge in Case 29-CA-6645 was filed on August 30
1978
7 See Respondent Krausman s Exh 31
s Briefly summarized the Union s proposals were
To change the minimum wage of unit employees from $150 to $193 per
week
To retain a 35 hour workweek and a 7 hour day
To retain two 15 minute breaks
To change from 15 to 18 sick days
To provide for 3 weeks vacation after 4 rather than 5 years and in
clude a clause providing for 5 weeks vacation after 15 years
To change from 12 to 14 holidays
To increase the uniform allowance from $2 to $5 per week
To increase longevity pay from a maximum of $3 per week after 10
years to $ I more each week after 4 years
To change shift differential from 10 to 15 percent
Continued
PARK INN HOME FOR ADULTS 1095
The November 11, 1977 bargaining session
Pursuant to the Union s letter dated October 13, 1977,
requesting resumption of negotiations the parties met at
the Park Inn on November 11 1977 9
The Union was represented by Willie Godwin the
business agent then assigned to service the employees at
the facility John Burke, and an employee committee
Respondent Park Inn was represented by Attorney
Romano, Krausman, and Himber Godwin and Romano
gave testimony concerning the session
Godwin testified that the Union submitted proposals
that were based on the master nursing home contract to
Respondent Park Inn at this session He indicated
Romano stated that due to the structure and reimburse
ment of homes for adults there was no way they could
use the nursing home association contract as a guideline
in negotiations Finally, he testified he agreed with
Romano and the meeting ended when he signified he
would prepare and submit new proposals 1°
The December 1977 bargaining session
While the parties agreed at the close of the November
negotiation session to meet later in November, Attorney
Romano subsequently pleaded the press of other business
would prevent him from participating and requested that
negotiations be resumed on a date subsequent to Decem
ber 5, 1977 The record fails to reveal the precise date on
which the parties met in December
At the session under discussion Krausman acted as
Respondent Park Inn s principal spokesperson and the
Union was represented by Godwin, John Kelley (secre
tary treasurer) and an employee committee Godwin
gave testimony concerning the meeting
To retain bereavement pay at 3 days for siblings and 5 days for imme
diate family
To change paternity pay from 3 to 5 days
To retain the 6 month leave of absence and 10 month maternity leave
provisions
To change jury duty pay by providing that rather than paying differ
ence employer would pay full salary and employee would reimburse
home with court check
To retain contributions of 8 1/2 percent of gross to a welfare fund I
percent to educational and dental funds and 3 1/2 percent to pension
fund
To institute the grievance procedure set forth in the matter nursing
home agreement
To provide for 3 days paid marriage leave
To provide for 50 cents per week transporation allowance
To provide for $2 per day meal allowance if home did not provide
meal
To furnish lockers and rest area for employees
s Subsequent to December 14 1976 no further negotiation sessions
were held until November 11 1977 During the hiatus attorney Romano
continued to represent Respondent Park Inn in a trust fund delinquency
matter and it is undisputed that no one affiliated with the Union men
tioned resumption of negotiations to him until September 19 1977 Simi
larly no formal communications requesting further contract negotiations
were sent by the Union to Respondent Park Inn until October 13 1977
Although Business Agent Dunham was replaced by Willie Gordy as busi
ness agent for Park Inn employees at a time that Godwin placed as May
1977 in a pretrial affidavit and Godwin claims he repeatedly asked Mal
vina Krausman to resume negotiations during visits to Park Inn in 1976
and 1977 Godwin s propensity to confuse dates during his appearance as
a witness coupled with Krausman s denial that he requested that negotia
tions be resumed cause me to decline to credit Godwin s assertions
10 The record fails to adequately reveal which proposals were submit
ted on the date in question
Godwin indicated that he presented Krausman with
the proposals embodied in exhibits placed in the record
as Respondent s Krausman s Exhibit 4 and General
Counsels Exhibit 38 at the December session He testi
fled Krausman s response was she did not have any
money and would have to talk to Attorney Romano
The proposals set forth in the exhibits in question are
identical They are
Duration 2 year contract
Hours 35 hours per week, 7 hours per day-5
consecutive days per week
All work in excess of 7 hours per day or 35
hours per week to be paid at the rate of time and a
half
Wages 30 percent increase
Cost of Living $2 per point in excess of 5 points
Breaks Two 15 minute breaks per shift, 1 hour
for lunch
Uniform Allowance $4 per week
Weekends Every other weekend off
Meal Allowance $2 per shift if not provided by
the home
Vacation 1 week after 6 months 2 weeks after 1
year, 3 weeks after 3 years, 4 weeks after 6 years
Sick Leave 18 days per year All unused sick
leave to be paid I week before Christmas or upon
termination of employment for any reason
Holidays 18 days per year All work performed
on a holiday to be paid double time
Paid Leaves Bereavement-7 days for spouse
and child 5 days for immediate family Paternity-5
days Marriage-5 days Jury Duty-no loss of pay
Shift Diff 10 percent for afternoon and evening
shifts
Longevity After 3 years-$2 After 5 years-$4
After 8 years-$6
Welfare 10 percent of gross payroll
Pension 2 percent of gross payroll
Dental 2 percent of gross payroll
Educational 2 percent of gross payroll
While Attorney Romano did not attend the December
1977 bargaining session he testified without contradic
tion that after he received a copy of the proposals the
Union gave to Krausman at the bargaining session under
discussion,"' he discussed the proposals with Godwin on
the telephone Romano testified he told Godwin it ap
peared to him that the Union was still requesting nursing
home benefits, that the demand for 10 percent of a gross
for welfare even exceeded the 8 1/2 percent figure in the
expired nursing home contract, and that the proposed 30
percent wage increase was higher than that one original
ly requested by Dunham Godwin replied he was un
aware of a Dunham proposal, that he would review the
proposals and get back to Romano
i l The document received by Romano was placed in the record as R
Krausman s Exh 35 Inspection of the exhibit reveals at least part of the
proposal was prepared by the Union for presentation to the nursing
home
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Romano testified without contradiction that he heard
nothing further from Godwin or the Union until the
latter notified Krausman by letter dated June 21, 1978,
that it desired to resume negotiations 12
The July 12, 1978 bargaining session
By letter dated July 11 1978 the Union gave notice to
Respondent Park Inn and the state and Federal Media
tion Services that it intended to strike and picket at the
Park Inn on July 26, 1978 13
Pursuant to arrangements made after Respondent Park
Inns receipt of the Union s June 21, 1978 letter, the next
negotiation session was held at the Union s offices on
July 12 1978 Godwin, Kelley and an employee group
represented the Union Romano and Krausman repre
sented the Park Inn
Romano stated at the outset of the July 12 session that
he would not negotiate under a strike threat In addition
he complained because he had not been contacted by
Godwin or Kelley before a strike notice had been sent
After Kelley indicated that the strike deadline could be
extended if the parties were bargaining the Union mdi
cated its demands remained the same, that they were pri
marily interested in wages and the delinquencies to the
trust funds Romano said that Park Inn had lost money,
could not even afford the old contract, and could not
afford the contract proposed by the Union At some
point, Romano invited the union negotiators to review
Park Inn s financial records or as an alternative, invited
the Union to conduct a survey of the wages and benefits
paid by other homes for the aged in the area Romano
indicated Respondent Park Inn would meet an area
standard wage and benefit scale While Kelley had indi
cated at the beginning of the session that the Union was
not interested in retroactivity Romano recalled he
wanted retroactivity on all economic items by the end of
the session 14 The Union evidenced no interest in look
ing at Park Inn s books or conducting a survey to ascer
tarn the average wage and benefits paid by other homes
to their employees No agreement was reached during
the session
The July 20 1978 bargaining session
The parties met on July 20 1978 at the Unions of
faces Respondent Park Inn was represented by Attorney
Romano and Krausman John Kelley, Frank McKinney
David Pope (representative from the Funds) and an em
ployee committee represented the Union
After stating he would not negotiate under a threat of
a strike Romano made counterproposals to the Union s
demands His notes made during the session were re
ceived in evidence and they reflect Park Inn s position at
the time 15 Park Inn proposed inter alia 16
1 Term- Romano proposed 3 year term extend
ing from 11/1/76 to 10/31/79 The Union indicated
it wanted a 2 year term and agreement was reached
2 Hours-Park Inn proposed 40 hour week 8
hour day Rotating weekend with split days No
overtime for the sixth day if caused by rotating
weekend, time and a half for seventh consecutive
day or in excess of 8 hours per day
3 Wages-4 percent base increase When and if
rates increase, reopener for increase up to 10 per
cent
4 Cost of Living-Union s proposal rejected
5 Uniforms-Park Inn to supply uniforms No al
lowance
7 Meal Allowance-Agree to Union s demand
8 Vacation-Union s proposal rejected Vacation
schedule in expired contract proposed
9 Sick Leave-Union s proposal rejected Sched
ule in expired contract proposed but no accrual of
unused sick leave
10 Holidays-Union s proposal rejected Contin
ue existing schedule
11 Paid Leaves
(a) Bereavement-Agree to 7 days for spouse
and child Reject 5 days for immediate family
Propose 3 days limited to parents and siblings
(b) Paternity-Reject 5 days and offer 3 days
(c) Marriage-Agree to 5 days one time
during contract
(d) Jury Duty-Agree to proposal
12 Shift Differential-Rejects proposal and
wants to eliminate all differential pay Mgmt will
consider elimination of split shift
13 Longevity-Reject proposal and continue ex
isting schedule
14 Severance-Reject Offer none
15 Sanitary Conditions-Agree to proposal
16 Transportation-Reject proposal and makes
no offer
17 Funds
(a) Arbitration award-$60721-pay out at
$750 00 per month until fully paid
(b) Period 1/1/77 6/30/78-No liability
(c) Increased contributions-Mgmt rejects
proposals and wants forgiveness for period of
time competitive with other facilities
12 Godwin testified he repeatedly sought to get Krausman to resume
negotiations during visits to the home subsequent to the December 1977
meeting but he failed to provide specifics While I am inclined to credit
his assertion that he spoke with Krausman concerning the need to contra
ue negotiations I am unwilling to find that he made requests which were
ignored subsequent to February 28 1878 (the 10(b) date) in the absence
of specific testimony
13 R Krausman s Exh 12
14 Godwin testified the Union never asked for retroactivity on any
thing other than wages and fund contributions I find Romano erroneous
ly concluded Kelley was requesting retroactivity on all economic items
The July 25, 1978 bargaining session
On July 25 1978, the parties met at the Unions of
fices Attorney Romano and Krausman represented Park
Inn and the Union was represented by Kelley, Godwin,
S Abhiram, and several employees
15 See R Krausman s Exh 37
16 Romano indicated he was making a package offer and if all was not
agreed to nothing was agreed on
PARK INN HOME FOR ADULTS 1097
The Union announced that the strike notice was ex
tended to take effect August 7, 1978 It proposed a $25
raise spread as follows October 1, 1976-$4 March 1
1977-$4 August 1 1977-$9 and March 1 1978-$8
Respondent Park Inn did not accept the Union s wage
proposal Romano indicated to the union negotiators that
Park Inn might increase its wage offer beyond 4 percent
if they could gain some monetary concessions from their
landlord
The July 31, 1978 bargaining session
On July 31, 1978, the parties met at the Union s of
faces Respondent Park Inn was represented by Attorney
Romano and the facility s accountant, Joseph Berg The
Union was represented by Kelley, Godwin, an employee
committee and at one point its president, Peter Otley
Park Inn offered a 5 percent wage increase, with 1
year of retroactivity and offered to pay out the moneys
owned for trust fund delinquencies in 5 years The Union
rejected the proposals and proposed a 10 percent across
the board increase the first year a 7 1/2 percent wage
increase the second year, or that the parties agree to the
terms of the expired contract on all but wages and
submit wages to interest arbitration Park Inn rejected
the Unions proposals The parties agreed to the expired
contract provisions on longevity pay, uniform allowance,
sick days, and holidays The Union rejected the 40 hour
week proposal At the conclusion of the meeting,
Romano indicated Park Inn would have to have conces
sions from the landlord or it would have to surrender its
lease and discontinue operations
The August 7, 1978 meeting
The parties met at the Union s offices on August 7
1978 Federal Mediator Irwin Gerard attended the ses
sion The Union was represented by Kelley, Godwin
Sam Abhiram and several employees Romano repre
sented Park Inn
Romano announced at the meeting that he intended to
make a final offer on behalf of Park Inn and indicated
that if the Union did not accept it he would consider the
bargaining at an impasse The final offer was subsequent
ly typed by Ottley s secretary It was placed in the
record as General Counsels Exhibit 33 The body of the
letter provides
Dear Mr Kelley
At your request and confirmation of manage
ment s proposals made during today s contract ne
gotiations which was held at the union office in the
presence of you Mr Godwin your negotiating
committee and Mr Irwin Gerard Commissioner,
Federal Mediation and Conciliation Service the fol
lowing constitutes managements final offer with
the understanding that the union s rejection of same
would result in an impasse
1 Term The term of this contract shall be for
two years November 1, 1976 and expiring October
31, 1978
2 Hours There shall be a 40 hour week and 8
hour day (exclusive meals) Management agrees to
the implementation of rotating week ends with split
days off If required to accommodate rotating week
ends work performed on the sixth consecutive day
shall be without over time In any event there shall
be overtime at the rate of time and one half for
work performed on the seventh consecutive day
and/or in excess of 8 hours per day
3 Wages There shall be a 5% across the board
increase effective upon the date of execution of a
contract In other words, there shall be no retroac
tivity effective with respect to wage increases
4 Cost of Living The union s proposal is rejected
5 Breaks and Meals The union s proposal is ac
cepted i e there shall be two fifteen minute breaks
per shift and one hour for lunch
6 Uniform Allowance The union s proposal is re
jected Management will supply uniforms, but each
employee is to maintain such uniform at their sole
cost and expense
7 Weekends Again management agrees to imple
ment rotating week ends with split days off No
overtime for work performed on the 6th consecu
tive day and time and one half for work performed
on the 7th consecutive day
8 Meal Allowance The unions proposal is ac
cepted, i e management shall pay each employee $2
per shift if one meal is not provided to each em
ployee by and at the facility
9 Vacation The union s proposal is rejected and
management offers to continue the existing vacation
schedule as set forth in writing in Memorandum of
Agreement dated August 5, 1976 and expired on
October 31 1976
10 Sick Leave The union s proposal is rejected
and management offers to continue the existing sick
leave benefits as contained in the aforesaid August
5th agreement with the exception that there be no
accrual of unused sick leave
11 Holidays The union s proposal is rejected and
management offers to continue the existing holiday
benefits as set forth in the aforesaid August 5th
agreement with the understanding that double time
for work performed on a holiday shall be at the rate
of one days holiday pay plus one days straight
time
12 Paid Leaves (a) Bereavement Management
agrees to 7 days leave for the death of an employ
ee s spouse and/or child Management rejects the
union s proposal of 5 days for immediate family
and instead proposes 3 days limited to the death of
parent brother or sister
(b) Paternity-Management rejects the union s
proposal and, instead offers 3 days leave
(c) Marriage-Management agrees to the
union s proposal of 5 days paid leave on the con
dition that it is one time during the life of this
contract
(d) Jury duty-Management agrees to the
union s proposal that there be no loss of pay
13 Shift Differential Management rejects the
union s proposal and, instead proposes that all dif
ferential pay including split shift be eliminated
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Longevity Management rejects the union s
proposal and offers to continue the existing longevi
ty schedule as set forth in the aforesaid August 5th
agreement
15 Severance Management rejects the union s
proposal
16 Sanitary Conditions Management accepts the
union's proposal, a locker for each employee and
the implementation of a lounge area
17 Transportation Management rejects the
union s proposal
18 Funds There are two areas of negotiations in
volving contributions to the various funds i e
union s claim for retroactivity in the approximate
amount of $114 000 i e the union's demand for pro
spective increase contributions
With respect to the union s claim for retroactivity
and without prejudice to managements contention
that there is no indebtedness to the funds for the
period January 1, 1977 to the present management
offers a pay out plan of $750 per month until fully
paid
With respect to the increase contributions to the
funds, management agrees to be bound by those
rates applicable to the terms of the Metropolitan
New York Nursing Home Association on the condi
tion that this facility receives a four month conces
sion of forgiveness of contributions to all funds
As I have indicated to you on several occasions
during the course of negotiations there can be no
agreement on any one item unless there is agree
ment on all items However I reiterate that if the
above proposal is unacceptable by the union, man
agement will declare an impasse and conduct itself
accordingly
Finally, as I have stated on numerous occasions
management again wishes to indicate that by rea
sons of economic conditions management may sur
render its lease on the premises and make applica
tions to the appropriate Government Agencies to be
removed from the operating licenses
Very truly yours
Frank A Romano
The Union rejected Respondent Park Inn s final offer
Implementation of last offer
By mailgrams dated August 10, 1978, Federal Media
tor Gerard requested that the parties maintain the status
quo and meet again Attorney Romano telephoned Union
Negotiator Kelley after he received Gerard s mailgram
to see if the Union was prepared to offer anything new if
the parties responded to the mediators request Romano
testified without contradiction that Kelley told him no
On August 11 1978, Romano notified both the Federal
mediator and the Union that Respondent Park Inn in
tended to put the terms and conditions of its last offer
into effect on August 14 1978 In the letter sent to the
Union, Romano enclosed a copy of a notice which Re
spondent Park Inn intended to post at the facility The
notice provides 17
To All Local 144 Employees
From Malvina Krausman , Administrator
Effective Monday, August 14 1978, the follow
ing terms and conditions of employment shall be in
stituted
1 Hours There shall be a 40 hour week and 8
hour day
2 Wages There shall be a 5% across the board
increase effective Monday, August 14, 1978 There
shall be no retroactivity with respect to this wage
increase
3 Cost of Living There shall be no cost of living
increase
4 Breaks and Meals There shall be two 15
minute breaks per shift and one hour for lunch
5 Uniform Allowance Management shall hereafter
supply uniforms when it is deemed necessary and
desirable, but each employee shall maintain their
present and/or future uniforms at their sole cost and
expense
6 Weekends If requested by a majority of the
employees, management shall implement rotating
weekends with split days off There shall be no
overtime for work performed on the 6th consecu
tive day, but time and one half shall be paid for
work performed on the 7th consecutive day
7 Overtime Overtime at the rate of time and one
half shall be paid for work performed in excess of 8
hours per day off or for work performed on the
7th consecutive day
8 Meal Allowance Management shall pay each
employee $2 00 per shift if one meal is not provided
to each employee by and at the facility
9 Vacation The following vacation schedule
shall be continued
a All employees who complete six months of
substantially continuous employment shall upon
the completion of such six months receive one
week vacation with pay
b All employees who have completed the
second six months of substantially continuous em
ployment shall receive an additional one week of
vacation with pay per year
c All employees who have completed one
year, but less than five years of substantially con
tinuous employment shall receive two weeks va
cation with pay per year
d All employees who have completed five
years, but less than six years of substantially con
tinuous employment shall receive three weeks va
cation with pay per year
e Effective January 1, 1976 all employees who
have completed six years or more of substantially
continuous employment shall receive four weeks
vacation with pay per year
" See Respodnent Krausman Exh 17 and 18 G C Exh 34
PARK INN HOME FOR ADULTS
10 Sick Leave Each employee shall be entitled to
receive 15 sick days per annum , accruing at the rate
of one and one quarter days per month There shall
be no accrual of unused sick pay which heretofore
was paid to each employee two weeks before
Christmas of each year
11 Holidays Each employee shall receive a total
of 12 holidays and personal days with pay, as fol
lows New Years Day, Decoration Day, Labor
Day, Chnstmas Day, Lincoln 's Birthday , Washing
ton's Birthday, Independence Day, Thanksgiving
Day, Martin Luther King 's Birthday , 2 personal
days, and employees birthday
Work performed on any of the above holidays or
personal days shall be paid at the rate of one days
holiday pay plus one days straight time
12 Paid Leaves (a) Bereavement-Each employ
ee shall receive 7 days paid leave for the death of
such employee 's spouse and/or child Each employ
ee shall receive 3 days paid leave for the death of a
parent , brother or sister
b Paternity-Each employee shall receive 3 days
paid leave
c Marnage-Each employee shall receive 5 days
paid leave on the condition that it is one time
d Jury Duty-Employees called for Jury Duty
shall be paid the difference between their regular
pay and the amount they receive for Jury Duty
Pay
13 Shift Differential and Split Shift Differential
All differential pay of any kind and nature whatso
ever shall be eliminated This shall in no way effect
the present requirement that an employee perform
services on a split shift basis
14 Longevity All employees who have complet
ed four years of substantially continuous employ
ment , but less than eight years, shall receive $100
per week per year additional on the anniversary
date of their employment All employees who have
completed eight years of substantially continuous
employment but less than ten years shall receive
$2 00 per week per year additional on the anniversa
ry date of their employment All employees who
have completed ten years or more of substantially
continuous employment shall receive a $3 00 per
week per year on the anniversary date of their em
ployment
15 Severance Pay There shall be no severance
pay
16 Sanitary Conditions As soon as conveniently
possible , management shall provide a locker for
each employee together with the use of a lounge or
sitting area
17 Transportation Allowance There shall be no
transportation allowance
18 Pension Welfare Dental and Educational
Funds Management shall have no further obligation
with respect to contributions to the funds and shall
provide coverage for injury or disability as required
by law
1099
Any employee who does not conform with the
above terms and conditions of employment upon
the effective date (Monday, August 14, 1978), shall
be subject to severe disciplinary measures and, if
deemed appropriate by management, discharged
On August 8, 1978, Godwin met with Respondent
Park Inn's employees at the facility and they voted to
strike On August 14, Respondent Park Inn posted the
above described notice, indicating the terms and condi
tions of employment set forth therein would become of
fective August 15, 1978 One of the employees who read
the notice called Godwin, who indicated he would visit
the facility on the next day
Godwin arrived at the Park Inn at approximately 7 30
a in on August 15 18 After saying hello to several em
ployees, he met with Krausman in her office for about 15
minutes Dunng that period, Krausman informed the em
ployees over the loudspeaker system that they were to
report to the lobby When the employees who were then
on duty reported to the lobby, Godwin informed them
the paper posted by Krausman was a proposal that had
been turned down by the Union After the employees
had been in the lobby for over half an hour, Krausman
told them over the loudspeaker that if they did not
return to work in 15 minutes they should leave the prem
ises Godwin then went to Krausman s office where he
conversed with Attorney Romano Godwin told
Romano and Krausman the Union wanted Park Inn to
rescind the notice , maintain the status quo and return to
the bargaining table Romano indicated management had
lawfully implemented its last offer and informed Godwin
the employees would have to go to work or leave the
building Godwin indicated the employees would not
work under the posted conditions At approximately 9
a in, Park Inn management summoned the police, and
the employees in the lobby, together with Godwin, were
escorted out of the building After contacting his supers
ors at the Union Godwin and the employees com
menced picketing with signs that stated they had been
locked out by Respondent Park Inn 19
3 The circumstances surrounding Osowsky s
acquisition of Park Inn
In early 1978, Sea Wave Realty Corp, the stock of
which is wholly owned by an attorney named Murray
Kalik contracted to purchase the building complex lo
cated at 115-02 Ocean Promenade in New York City
from Maygold Realty Co Kalik testified he had repre
sented Krausman for a number of years prior to 1978,
18 Godwin employee Yvonne Bishop and Krausman each sought to
describe what occurred on the morning of August 15 While I credit
Bishop s testimony in its entirety Godwin and Krausman each sought to
tailor their testimony to meet the needs of their case Thus I credit Bish
op s claim that Godwin arrived at the Park Inn at 7 30 a in rather than
8 30 or 9 am as Godwin claims and I credit Bishops assertion that
Krausman announced that there would be an employee meeting in the
lobby some 15 20 minutes after Godwin arrived rather than Krausman s
denial that the Union was permitted to meet with employees
18 Employee Bishop testified she continued to picket at the premises
until January 1980 She credibly testified she observed Krausman enter
the premises regularly during August and once or twice during Septem
ber 1978
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
but did not indicate what kind of representation he had
provided On August 3, 1978, the property in question
was deeded to Sea Wave by Maygold subject to an out
standing leasehold interest in that portion of the building
complex occupied by Respondent Park Inn Krausman
owned the leasehold interest
During July 1978, Krausman testified she met with
Kalik on two occasions in an attempt to gain rental con
cessions which, would permit her to meet the Union s
bargaining demands Kalik refused to grant Krausman
any rental concession He testified that during the last
meeting Krausman informed him she could not meet the
Union s demands and would have to surrender her lease
on the Park Inn premises 20
According to Kalik, when Krausman informed him
she was going to surrender her lease at some point in
July, he cast about for a new tenant who would be inter
ested in leasing the Park Inn premises He claims that
Rabbi Osowsky was recommended to him by someone
other than Krausman, and that Osowsky executed a lease
placed in the record as General Counsels Exhibit 7 on
August 3, 1978, the same day Sea Wave acquired the
property The lease provided, inter alia that the leased
premises were to be used as a proprietary home for
adults , that the term of the lease would be 20 years
commencing August 15, 1978, that the yearly rental
would be $217,000 to be paid in monthly installments
that the lease was conditioned on the issuance by the
New York Department of Social Services of a license for
the operation of a proprietary home for adults at these
premises, and that the lessee would not be personally
liable for any claims other than for the rent limited
solely to the period of time during which lessee retains
physical possession of the premises and for any willful
and malicious destruction by lessee of lessor s property
At the time Osowsky executed the above described
lease , he and Guttman were partners in the operation of
two homes for the aged located in Belle Harbor, New
York City Malvina Krausman s husband was their land
lord During his testimony Osowsky claimed that he did
not discuss his acquisition of the Park Inn with either of
the Krausmans before or after he signed the August 3
lease While admitting he paid nothing for the Park Inn
business, he denied he reached any agreement with
Krausman regarding satisfaction of Respondent Park
Inn s outstanding liabilities, collection of its receivables,
or payment for furnishings and equipment then being
used to provide care for the residents of the home 21
Interestingly, Kalik testified that he informed Kraus
man that he was leasing the Park Inn portion of the
building complex under discussion to Osowsky before
Osowsky actually signed the lease While Krausman
denied Kahk s assertion I credit Kalik 22
The record reveals that after Osowsky leased the Park
Inn premises he contacted Jack Schultz, the president of
Travelers Maintenance , Inc , to ascertain whether Trav
elers would be interested in doing business at Park Inn
Schultz testified that he thereafter visited the home and
agreed to commence to furnish cooks, porters waiters,
and dishwashers Osowsky instructed him to have such
employees report to the Park Inn between 7 and 8 a in
on August 15 1978 Subsequently, Osowsky and Travel
ers executed an agreement dated August 15, 1978 which
was placed in the record as General Counsels Exhibit 6
The agreement provided, inter alia , that from August 15,
1978 until August 14, 1979, Travelers would furnish por
ters waiters, dishwashers, and switchboard operators to
Park Inn at a cost of $3 per hour per person, with an
additional 35 percent to cover overhead, taxes, work
men s compensation, and profit The agreement also pro
vided All the above personnel will report to, be super
vised by and take instructions from you or your desig
nee
While the above described agreement between Travel
ers and Osowsky was not actually signed until August
15, Schultz credibly testified that prior to that date he
hired approximately 14 employees who were supposed
start to work at Park Inn on August 15 23 He further in
dicated that he arrived at the facility between 7 and 8
a in on August 15 and that only 5 of the 14 persons he
had hired for the job appeared Although Schultz was
asked by employees who were picketing the premises to
stay out of the building, he entered and the five Travel
ers employees performed 5 1/2 hours work at the facili
ty that day
Subsequent to August 15, 1978 the so called New
Park Inn was operated much the same as it had been op
erated prior to August 15 as the same residents remained
there and they were cared for with the same facilities
and equipment which were in the home when Krausman
departed The main difference in the operation was that
Travelers carried the home s personnel on its payroll on
a cost plus basis while persons regularly employed in the
home supervised the employees
Patricia McCabe the night manager of the facility tes
tified that prior to August 15 Shirley Himber managed
the home and Rosalyn Press was the office manager
When Osowsky took over, he assumed responsibility for
ordering the food and paying the bills He dispensed
with the services of Himber and made McCabe and
Press comanagers of the facility and a short time there
after hired one Steven Greenberg who assisted in the
day to day supervision of employees who worked in the
kitchen Rabbi Leoni Orlan who had been in charge of
20 Krausman claimed she did not tell Kalik she was going to surrender
her lease until August 15 1978 The chronology of events in late July
and early August which are discussed infra causes me to credit Kalik
21 Krausman also denied the existence of any oral or written agree
ment I do not credit either witness and infer that an agreement or under
standing necessarily existed as one simply does not cease to operate an
ongoing without making permission for settlement of such business mat
ters Such a conclusion is bolstered by Kahk s indication that Sea Wave
did not purchase the equipment in the home it merely obtained fee own
ership of the real property through the August 3 deed
22 Kahk s testimony was indirectly corroborated to some extent by the
testimony of Patricia McCabe Respondent Park Inn s night manager
prior to August 15 1978 as McCabe testified Krausman informed her on
Friday August 11 1978 that she was surrendering her lease because she
could not meet the Union s demand and that starting Monday (August
15) Osowsky would be her boss Krausman denied McCabe s assertion
but I credit McCabe who was a disinterested witness
23 Schultz testified he finalized his deal with Osowsky over the phone
on August 10 or 12
PARK INN HOME FOR ADULTS
dietary for Krausman and had supervised the Kosher, re
marred in charge of dietary after August 15
While Travelers president, Schultz and his assistant
Gladstone Green assisted in the staffing and supervision
of the home for several weeks after August 15, the
above named supervisors who worked at the home full
time thereafter hired the employees needed to operate
the facility and provided their supervision
Through the testimony of Union Business Agent
Godwin and former employee Yvonne Bishop, General
Counsel sought to show that Krausman remained active
in the operation of the home after August 15 Their testi
mony was conflicting as Bishop testified she observed
Krausman at the home frequently during the last 2 weeks
of August and on two occasions during September, while
Godwin testified he participated in picketing until Febru
ary 1979, and that he saw Krausman at the home almost
every day during that period Krausman denied she per
formed any work at the home after August 15 24 I credit
Bishop s testimony as she was a disinterested witness but
do not credit Godwin's uncorroborated claim that
Krausman continued to go to the home on a daily basis
for months after August 15
4 The union situation during Osowsky s tenure
The record reveals that prior to the time that it agreed
to furnish employees for Respondent New Park Inn,
Travelers had dealt with Local 143 at other locations
Schultz, Travelers president, testified that after his
firm commenced performance of its contract with
Osowsky, Travelers sought to end the picketing at the
facility by offering employment to various unidentified
persons picketing at the facility and by contacting Local
144 to ascertain what it wanted to stop the picketing
Such contact led to a meeting between Travelers and
Local 144 at the former s offices on August 24 At that
time, Kelley and Russo from Local 144 advised Schultz
and his partner Goldman that the Union would stop
picketing if Travelers would sign a contract The propos
als made by the Union were placed in the record as Gen
eral Counsels Exhibit 9 Schultz testified Travelers re
jected the proposals because they were too expensive
In addition to engaging in the limited dealings with the
striking employees and Local 144 as described above
Schultz testified that on August 22 Local 143 sent him
the 10 authorization cards placed in the record as Gener
al Counsels Exhibits 10A through J and demanded rec
ognition as the bargaining representative of the employ
ees working at New Park Inn Schultz indicated that
without making any attempt to verify the authenticity of
the cards presented Travelers signed a contract with
Local 143 on August 24 1978 25
Travelers' payroll records for the week ending August
25, 1978 were placed in the record as General Counsel s
Exhibit 7(b) They reveal that there were then 22 em
ployees working in the facility Zemeha Hogeson one of
the employees then employed, credibly testified that
24 Both Osowsky and Beinhorn operated by using Krausman s operat
ing certificates and Krausman was shown to have signed required state
reports as the operator in May 1980 See G C Exh 49
"'See G C Exh 11
1101
Schultz assistant Gladstone Green, handed her and
other employees Local 143 authorization cards on
August 19 1978, and informed them they had to sign
them to work there 26 As observed by counsel for the
General Counsel one of the persons who signed a card
presented by Local 143 to Travelers-Cruz Nolasco-
was not employed by Travelers at the New Park Inn fa
cility during the payroll period ending August 25, 1978
Consequently, it is clear, and I find, that on August 24,
1978, Local 143 represented, at best, only 9 of the 22 em
ployees then working at Respondent New Park Inn
5 The circumstances surrounding Beinhorn s
acquisition of the home
On May 21 or 22, 1979, Osowsky received notification
from the New York State Department of Social Services
that his application for an operating certificate at New
Park Inn was denied 27 Osowsky testified that immedi
ately after he received the above described correspond
ence he notified Attorney Kalik he was surrendering his
lease on the facility and disassociating himself from the
operation
During the time that Osowsky operated Respondent
New Park Inn Marvin Beinhorn was employed at Bou
levard Hospital He testified that in the spring of 1979 he
became interested in operating a home for the aged and
various people steered him to Attorney Kalik whom
he eventually contacted to express his interest in ventur
ing into a facility Bemhorn indicated Kalik thereafter
contacted him in May 1979, to inform him a facility may
soon become available depending on a license problem
Subsequently, on May 22 1979, Kalik contacted Bein
horn to inform him Osowsky was surrendering his lease
on the New Park Inn property and they met to discuss
the situation According to Beinhorn, when he met with
Kalik, the latter told him that when he took over the
New Park Inn the accounts receivable due at the time
would be forwarded to Osowsky and Beinhorn would
not be responsible for the moneys owned by Osowsky-
that Kalik would take care of it With respect to the
equipment Beinhorn indicated Kalik informed him he
would have no interest in the equipment then at the fa
cility but any new equipment purchased would belong
to him Beinhorn testified he paid nothing for the buss
ness and had no discussions with Osowsky before he as
sumed control of the operation He claims Kalik assured
him he could operate under Krausman s license Bein
horn s agreement with Kalik was formalized when he ex
ecuted a letter agreement dated May 22 1979 which
was sent to him for acceptance, in lieu of executing a
lease 28
26 Hogeson s pretrial affidavit makes reference to her becoming a
member of Local 143 30 days after she was employed at New Park Inn
The affidavit ws taken on August 31 1978 and it is clearly inaccurate
The witness was quite straightforward and I credit her testimony given
at the trial
29 See G C Exh 40 which indicates Osowsky was denied an operat
mg certificate because he had operated New Park Inn Home for Adults
without the Departments written approval and/or a valid operating cer
tificate
28 See G C Exh 2 The letter indicates inter alia that the terms of the
Osowsky lease would be binding on Beinhorn and that he was to send a
Continued
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When Travelers learned that Osowsky was no longer
connected with the Park Inn facility it notified its em
ployees working in the facility by memorandum dated
June 8, 1979, that effective June 15, 1979, it would no
longer be responsible for their payroll It is undisputed
that Beinhorn retained the employees working in the fa
cility when he assumed control of the operation and
merely put them on his payroll At the time of the trans
fer of operations, which Beinhorn places as occurring on
June 1, 1979 Steven Greenberg was the then administra
tor at the home He remained employed in that capacity
While Beinhorn hired several new supervisory employ
ees during the 2 year period that he was to operate the
facility, the nature of the operation and the equipment
used to care for the aged residents did not change mate
rially dunng his tenure at the home 29
6 The circumstances surrounding Konig s
acquisition of the home
Bemhorn testified he notified Kalik in late 1980 that he
wanted out of the Park Inn operation At the time, he
claims he suggested to Kalik that Samuel Konig, who
had been employed at the home as the office manager
since August 1979, might be interested in taking over the
facility About the same time, Konig applied for an oper
ating certificate He received such a certificate on May
11, 1981, and assumed control of the facility on June 1,
1981 30
Konig indicated dunng his testimony that he made no
immediate changes in the employee complement when
he took over, and the record reveals there was no hiatus
in the operation of the home at that time 31 As of June
1 1981 Ann Millard was the administrator of the facili
ty She had replaced Steven Greenberg during Bein
horn s tenure and she was retained by Konig Konig, like
Osowsky and Beinhorn paid nothing for the business
when he acquired it He and Beinhorn entered an oral
agreement whereby Konig was to apply outstanding re
ceivables to Beinhorn s accounts payable and subsequent
ly pay Beinhorn accrued profits 32
B The Issues
The issues framed by the pleadings are
1 Did Respondent Park Inn violate Section 8(a)(5) of
the Act by
a Failing to bargain with the Union in good faith from
February 28, 1978, until August 7 1978
b Unlawfully implementing its last offer on August 15
1978
c Failing since March 11 1978 to make contributions
to the Union s trust funds
copy of such lease together with the letter of acceptance to the New
York Department of Socical Services
29 The most siginificant change instituted by Beinhorn was use of some
different vendors
30 Koing signed a new lease with Sea Wave at the time
31 Konig testified no announcement of this change of ownership was
made to employees
32 Beinhorn testified he took $2000 out of the business while operating
it and that Konig subsequently paid him $7000 epresenting his profit
after Konig collected receivables and satisfied his accounts payable
2 Did Respondent Park Inn violate Section 8(a)(3) of
the Act by locking out and/or constructively discharg
ing employees on August 15, 1978?
3 Whether Respondent New Park Inn is the alter ego
or successor to Respondent Park Inn
4 Whether Respondent New Park Inn violated Sec
tion 8(a)(1) and (3) of the Act by continuing to lock out
and failing to reinstate the employees who left the facth
ty and commenced to picket on August 15 1978
5 Whether Respondent New Park Inn violated Sec
tion 8(a)(1) and (5) of the Act by failing since August 15
1978, to make contributions to the Union s trust funds
6 Whether Respondent New Park Inn violated Sec
tion 8(a)(1) and (2) of the Act by soliciting employees to
sign authorization cards for Local 143 and by thereafter
signing a contract with Local 143 at a time when it did
not represent an uncoerced majority of the employees in
an appropriate bargaining unit
7 Whether Respondent Beinhorn is the successor to
Respondent Park Inn and New Park Inn?
8 Whether Respondent Beinhorn has violated Section
8(a)(1) and (3) by continuing to lock out and/or failing
to reinstate the employees who left the facility on
August 15, 1978 and have engaged in picketing at the fa
cility since that time
9 Whether Respondent Beinhorn violated Section
8(a)(5) of the Act by failing to make contributions to the
Unions trust funds during the period June 1, 1979 to
June 1 1981
10 Whether Respondent Konig is the successor to Re
spondent Betnhorn and is thus responsible for remedying
unfair labor practices committed by Respondents Park
Inn New Park Inn, and Beinhorn
C Analysis and Conclusions
1 The bargaining allegation
Section 8(a)(5) of the Act establishes a duty to enter
into discussion with an open and fair mind and a sincere
purpose to find a basis of agreement NLRB v Herman
Sausage Co, 275 F 2d 229 231 (5th Cir 1960) As the
Supreme Court stated in NLRB v Insurance Agents 361
U S 477 485 (1960)
Collective bargaining then is not simply an occa
sion for purely formal meetings between manage
ment and labor while each maintains an attitude of
take it or leave it it presupposes a desire to reach
ultimate agreement to enter into a collective bar
gaining contract
This obligation does not compel either party to agree to
a proposal or make a concession NLRB v American Na
tional Insurance Co 343 U S 395 (1952) specifically it
does not compel agreement on particular contractual
terms, no matter how strongly desired by a union
NLRB v H K Porter, 397 U S 99 (1970) However the
Board may and does examine the contents of the pro
posals put forth for if the Board is not to be blinded
by empty talk and by the mere surface motions of collec
tive bargaining, it must take some cognizance of the rea
sonableness of the position taken by an employer in
PARK INN HOME FOR ADULTS 1103
course of bargaining negotiations' NLRB v Reed &
Prince Mfg Co, 205 F 2d 131, 134 (1st Cir 1953), cert
denied 346 U S 887 (1953) The standard for assessing
whether a particular course of bargaining meets the test
of good faith was stated as follows in M System
Inc, 129 NLRB 527 547 (1960)
Good faith or the want of it is concerned essen
tially with a state of mind There is no shortcut to a
determination of whether an employer has bar
gained with the requisite good faith the statute com
mands That determination must be based upon rea
sonable inference drawn from the totality of con
duct evidencing the state of mind with which the
employer entered into and participated in the bar
gaining process The employers state of mind is to
be gleaned not only from his conduct at the bar
gaining table, but also from his conduct away from
it-for example, conduct reflecting a rejection of
the principle of collective bargaining or an underly
ing purpose to bypass or undermine the Union
manifests the absence of a genuine desire to com
pose differences and to reach agreement in the
manner the Act commands All aspects of the Re
spondent s bargaining and related conduct must be
considered in unity not as separate fragments each
to be assessed in isolation
In her brief, counsel for the General Counsel contends
that Respondent Park Inn engaged in surface bargaining
with the Union during the period extending from Febru
ary 28 to August 7, 1978 In addition she argues that it
violated the Act by implementing its last offer in an un
lawful manner I agree to the extent indicated below
My review of the actions of the parties during the
period extending from February 28 through July 31
causes me to conclude that Respondent Park Inn ap
peared to be earnestly attempting to reach agreement
with the Union up to that point As indicated, supra the
union negotiators had indicated early in the 1978 negotia
tions that their major concerns were wages and payment
of the trust fund delinquencies In its first proposal Re
spondent Park Inn offered a 4 percent wage increase
with retroactivity open and it offered to pay the fund
delinquencies at $750 per month until the debt was satis
feed (7 1/2 year payout) Thereafter on July 31 Re
spondent Park Inn made its offers more palatable by of
fenng a 5 percent wage increase with 1 year of retroac
tivity and it bettered its fund offer by proposing to pay
the delinquency in 5 years Significantly, at or about the
time the Union rejected Respondent Park Inn s July 31
proposals, Krausman who had been told by Attorney
Kalik that he would grant her no rental concessions, told
Kalik she would have to surrender her lease because she
could not reach agreement with the Union By some un
explained means Kalik then located Rabbi Osowsky and
immediately leased him the Park Inn premises for a 20
year term commencing August 15, 1978 Osowsky then
contacted Travelers and arranged to have the work, then
being performed at the home, performed by Travelers
from August 15 forward It was in that setting that Re
spondent Park Inn appeared at negotiations on August 7
and reduced its wage offer by offering 5 percent with no
retroactivity, such raise to take effect on the signing of a
contract Similarly, it then reverted to its proposal to pay
the fund delinquencies at $750 per month until the obli
gation was satisfied In other respects, as set forth supra,
it continued to propose terms less advantageous than that
in the expired contract, or the same terms found in that
contract
In my view Respondent Park Inn s actions in late July
and early August reveal it was not attempting, as of
August 7, to reach agreement with the Union As mdi
cated, supra, Respondent Park Inn made its best offer to
the Union on July 31 About the same time, I am con
vinced, for reasons set forth more fully, infra, that
Krausman had decided she was not going to be able to
get the Union to agree to a contract she could live with
and she Attorney Kalik and Rabbi Osowsky decided
that if Respondent Park Inn could not get the Union to
agree to terms that would permit the facility to operate
at a profit they would, through a sham paper transaction
engineered by Kalik, get rid of the Union and if neces
sary, operate the home by using Travelers employees
To implement their plan, Kalik caused Osowsky to exe
cute a lease on August 3 Significantly, that lease trans
ferred the entire Park Inn operation (realty and personal
property) to Osowsky effective August 15 As indicated,
supra, Osowsky immediately obtained Travelers com
mitment to staff the home on the latter date with em
ployees that would cost (Osowsky) $3 per hour plus an
additional 35 percent to cover employee related expenses
and profit Thereafter attorney Ramono appeared at ne
gotiations on August 7 and advanced proposals that,
except for an offer to pay certain trust fund moneys for
1977 and 1978 were less palatable than the proposals
made on July 31 Predictably the Union rejected the
proposals At that point, Respondent Park Inn could do
nothing but let the Union strike as it had indicated it
would, or it could claim an impasse existed and unilater
ally implement its last offer The record reveals it chose
to implement its last offer with one very important ex
ception At the August 7 session it had offered to pay
the percentages then set forth in the master nursing
home agreement for the various trust funds with a 4
month period of forgiveness However when implement
ing its last offer on August 14 to be effective on August
15 it advised its employees inter alia
Management shall have no further obligation with
respect to contributions to the funds and shall pro
vide coverage for injury or disability as required by
law
Patently Respondent Park Inn s actions with respect
to its employees coverage under the Union s welfare
pension, dental, and educational plans was not consistent
with the last offer it had made to the Union Consequent
ly notwithstanding the existence or lack of existence of a
bargaining impasse, Respondent Park Inn violated Sec
tion 8(a)(5) by announcing its employees would no
longer be covered by such plans In my view as indicat
ed infra, this action, coupled with the other unilateral
changes instituted by Respondent Park Inn on August
15 amounted to an indication that Respondent Park Inn
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
expected its employees to work under what was tanta
mount to nonunion conditions from August 15 forward
Was it mere coincidence that Respondent Park Inn im
plemented the changes on August 15, the date Osowsky,
utilizing Travelers employees, was scheduled to take
over the operation? I think not I am compelled to con
elude that Respondent Park Inn decided shortly before
the business was leased to Osowsky that effective August
15 the facility was one way or another, to be operated
under nonunion conditions For the reasons stated, I find
that by preparing to accomplish such aim by offering less
on August 7 than it had offered on July 31 Respondent
Park Inn failed to bargain with the Union in good faith
from August 7 forward By engaging in such conduct
and by unilaterally implementing changes that were in
consistent with its prior offers to the Union, I find that
Respondent Park Inn violated Section 8(a)(5) of the Act
as alleged
2 The trust fund issue
The complaint alleges that Respondent Park Inn vio
lated Section 8(a)(5) from March 11, 1978, forward by
failing to make contributions to the Local 144 Employee
Benefit Funds
As found supra Respondent Park Inn first became de
linquent in its contributions to the trust funds named in
the contract between the parties in 1972, and it has not
made any contributions since December 11, 1974 By
letter dated December 20, 1976, it notified the Union
that it considered its most recent contract to be terminat
ed as of the expiration date Since that time, it has
claimed it has no obligation to make payments to the
funds
The General Counsel contends that the date on which
Respondent Park Inn first unilaterally altered its employ
ees' renumeration by failing to remit moneys to the funds
is immaterial as the violation is a continuing one and the
Respondent Park Inn s failure to remit moneys to the
funds each month constitutes separate and distinct viola
tion of the Act Respondent has pleaded and contends
that Section 10(b) of the Act precludes a finding of vio
lation as the Union has been aware that contributions
were last made on December 11 1974
Section 10(b) of the Act states in relevant part that
Whenever it is charged that any person has en
gaged in or is engaging in any unfair labor
practice the Board shall have power to issue
a complaint stating the charges and con
taining a notice of hearing before the Board
Provided, That no complaint shall issue based upon
any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board
[Emphasis added ]
In Farmington Iron Works 249 NLRB 98 (1980) the
Board was confronted with a situation in which the em
ployer violated a collective bargaining agreement well
outside the Section 10(b) period by making no contribu
tions to contractual fringe benefits funds and the union
was well aware of such as a result of monthly reports
from the funds trustees While concluding that Section
10(b) precluded any remedy for the failure to make pay
ments outside the 6 month period preceding the charge
the Board further concluded that an unfair labor practice
finding was not time barred in its entirety, stating at 99
The Board previously has considered the applica
tion of Section 10(b) to the unilateral discontinu
ance, in the face of a bargaining obligation, of bene
fits which formerly were granted on a periodic
basis Thus the Board has held that each denial of a
merit increase to employees whose evaluations pre
viously would have entitled them to such an in
crease constituted a separate and distinct violation
of the Act which could be remedied upon the filing
of a charge within 6 months after the denial of that
particular increase The Board further has held that
the unilateral decision to discontinue making benefit
fund contributions like the failure to make periodic
wage increases, constitutes a violation of Section
8(a)(5) of the Act Accordingly we conclude that
each failure to make the contractually required
monthly benefit fund payments constituted a sepa
rate and distinct violation of Respondents bargain
ing obligation and therefore, that any benefit fund
payment [within the Section 10(b) period] is subject
to the Board s remedial powers [Emphasis added ]
Noting that almost 4 years had elapsed since Respond
ent Park Inn had ceased contributing to the funds and
almost 2 years had elapsed since expiration of the con
tract, Respondent Park Inn contends in its brief that by
its acquiescence with knowledge over a period of several
years, the Union has waived any right to bargain over
the Employers unilateral cessation of fund contributions
[Br 98] In support of its waiver argument, it cites
Stone Boat Yard, 264 NLRB 981 (1982) Sir James Inc
183 NLRB 256 259 (1990) enfd 446 F 2d 570 (9th Cir
1971) and A V Corp 209 NLRB 451-455 (1974)
I find Respondent Park Inn s contention that the
Union was placed on notice of the homes intention to
cease making fund contributions and its failure to
demand bargaining constitutes a waiver of its right to re
ceive such contributions to be without merit Stone Boat
Yard supra Sir James Inc supra and A V Corp supra,
all enunciate the proposition that on contract expiration
an employer must continue to apply contract terms that
govern employer employee relations unless the employer
gives timely notice of an intention to modify a condition
of employment and the union fails to timely request bar
gaining In Stone Boat Yard, supra, the notice given by
the employer indicated its desire to make substantial
changes in the contract and the Board found such noti
fication was deficient as the union was not given a writ
ten or detailed proposal of the intended changes in the
contract Here the only notice given by Respondent
Park Inn of its intention to modify its obligation to make
contributions to the Union s trust funds was its Decem
her 20, 1976 letter, which merely indicated it was termi
nating the 1976 contract effective October 31 1976 Pa
tently Respondent Park Inn did not by merely inform
ing the Union it was terminating a contract that had al
ready expired, place the Union on notice of an intention
PARK INN HOME FOR ADULTS
to modify its obligation to make contributions to the
trust funds
In sum, I find that the record fails to reveal that the
Union acquiesced in Respondent Park Inn s unilateral
modification of its obligation to make contributions to
the Union s trust funds, and I further find that it violated
Section 8(a)(1), (3), and (5) of the Act as alleged by fail
ing since March 11, 1978, to make the contributions re
quired by the expired 1976 contract
3 The lockout and/or constructive discharge issue
The General Counsel contends that as the police es
corted bargaining unit employees out of the Park Inn on
August 15 they were locked out In the alternative she
claims they were constructively discharged
As noted supia I have credited employee Bishop s ac
count of events at the facility on the morning of August
15 According to her the employees remained in the
lobby of the facility for an extended period of time and
they refused to return to work or leave the facility
within a reasonable time after Krausman advised them to
make a choice In the circumstances, I find that by re
questing that the police escort the employees from the
building after they refused to perform their regular
duties or leave voluntarily, Respondent Park Inn did not
lock its employees out on August 15
In the Crystal Princeton Refining Co, 222 NLRB 1068,
1069 (1976), a constructive discharge case, the Board
stated
There are two elements which must be proven to
establish a constructive discharge First, the bur
dens imposed upon the employees must cause, and
be intended to cause a change in his working con
ditions so difficult or unpleasant as to force him to
resign Second it must be shown that those burdens
were imposed because of the employees union ac
tivities
With respect to the second element-union activities
of the employees-the Board stated in Superior Sprinkler,
227 NLRB 204, 210 (1976)
[The employer] unlawfully refused to bargain with
the Union and thus offered its employees the
choice of accepting the employers unlawful repudi
ation of its statutory bargaining obligations and
working under unlawfully imposed conditions of
employment or quitting their employment Thus
the employees continued employment would be
conditioned upon their abandonment of rights guar
anteed them under the Act, that is, the right to bar
gain collectively through representatives of their
own choosing Forcing employees to make such a
choice, namely, to work under illegally imposed
conditions or to quit their employment discourages
union membership almost as effectively as actual
discharge Accordingly, I find that the Com
pany constructively discharged and thereby
violated Section 8(a)(1) and (3) of the Act
As found supra Respondent Park Inn notified its em
ployees on August 14 that effective August 15 inter alia
1105
(1) They would work 40 hours per week and 8 hours per
day instead of 35 hours per week and 7 hours per day
(2) they would receive a 5 percent increase in their
weekly salary,33 (3) they would not be paid for accrued
sick time in the future (4) they would no longer receive
a differential (10 percent) for shift differential and (5)
they would no longer be covered by the Union s welfare
fund educational and dental funds, or pension fund 34
In sum by altering the wages, hours and working
conditions of its employees on August 15, Respondent
Park Inn increased their workday and workweek cut
their hourly pay and, in effect, reduced their pay by an
additional amount exceeding 14 percent by depriving
them of participation in the Union s welfare, educational,
dental and pension funds In my view such actions re
quired, in effect that Park Inn s employees work under
what was tantamount to nonunion conditions and they
imposed such an unpleasant burden upon employees that
they were justified in resigning their employment As the
changes were unlawfully implemented, I find, as alleged,
that by offering its employees the choice of working
under the conditions posted on August 14, or subjecting
themselves to severe disciplinary measures including
discharge, Respondent Park Inn constructively dis
charged its bargaining unit employees on August 15,
1978, in violation of Section 8(a)(1) and (3) as alleged
Assuming arguendo, Respondent Park Inn s employ
ees were not constructively discharged on August 15, I
would find that they became unfair labor practice strik
ers on that date as it is clear they refused to work be
cause of the unlawful unilateral changes in their wages,
hours and working conditions which were implemented
on that date The Respondents claim that no such finding
should be made because the Union caused the employees
to strike without first giving the 10 day notice of inten
tion to strike required by Section 8(g) of the Act thus
enabling Respondent Park Inn to terminate them for en
gaging in unprotected activity I find the defense to be
without ment In the first place, the record fails to reveal
that Respondent Park Inn ever notified any of its em
ployees that it was terminating them because they had
engaged in unprotected activity Moreover as contended
by counsel for the General Counsel, the Board indicated
in Hospital (CHC Corp) 229 NLRB 1010 fn 3 (1977),
that
[T]he public interest demands that employees of
health care institutions be accorded the same type
of treatment under the law as other employees in
our society and that the 8(g) notice requirement
not be utilized to deprive employees of their statu
83 The vast majority of the bargaining unit employees were paid $150
per week or approximately $4 28 per hour before August 15 Working a
40-hour week with a 5 percent increase in their weekly salary they
would under the change have earned approximately $4 per hour
34 Such contributions aggregated 14 percent of Respondent Park Inn s
gross payroll under the expired contract On August 7 1978 Respondent
Park Inn agreed to pay the funds the percentages of gross set forth in the
Metropolitan New York Nursing Home Association contract with the
Union While the record fails to identify the amount of those percentages
it reflects that they were higher than those set forth in the expired con
tract
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tory rights It is clear, therefore that a labor orgam
zation will not be required to serve a 10 day notice
or to wait until the expiration of the 10 day notice
when the employer has committed unfair labor
practices as in Mastro Plastics Corp v NLRB, 350
US 270 (1956)
Here, the Union notified Krausman, Federal Mediation
and the New York State Mediation Board on July 11
and 25 that it intended to strike at Park Inn Home for
Adults on July 26 and August 7, respectively Thereaf
ter, the record reveals that the Union postponed its con
templated strike to participate in further negotiations
Rather than participate in such negotiations by bargain
ing with the Union in good faith, Respondent engaged in
bad faith bargaining and it then effectuated the unlawful
unilateral changes previously discussed In the circum
stances described, I find that the Union, having placed
Respondent Park Inn on notice of its intention to strike
on two occasions if agreement on the terms of a new
collective bargaining agreement was not reached, com
plied with the spirit, if not the letter, of Section 8(g)
Moreover as it is clear that Respondent Park Inn s com
mission of serious unfair labor practices caused the work
stoppage under discussion, I find the Union was not re
quired to issue a third strike notice and wait an addition
al 10 days before it was legally entitled to strike
4 The status of Respondents New Park Inn,
Beinhorn, and Konig
The General Counsel contends that Respondent New
Park Inn (Osowsky) is the alter ego of Respondent Park
Inn, and that Respondents Beinhorn and Konig are sue
cessor employers within the meaning of Perma Vinyl
Corp, 164 NLRB 968 (1967) enfd sub nom United
States Pipe & Foundry Co v NLRB 398 F 2d 544 (5th
Cir 1968) and Golden State Bottling Co v NLRB 414
U S 168 (1973)
The legal principles to be applied in determining
whether two factually separate employees are in fact
alter egos are well settled Although each case must turn
on its own facts the Board has generally found alter ego
status where the two enterprises have substantially iden
tical management , business purpose operation equip
ment , customers, and supervision as well as ownership 35
Here it cannot be seriously disputed that the so called
enterprises in question have had substantially identical
business purpose equipment and customers as the facile
ty has been operated as a home for the aged without
hiatus, the elderly residents in the facility when
Osowsky Beinhorn and Konig became the operators re
mained there, and it is clear that, with exception of the
addition of a few items, the furniture and equipment in
the home when Malvina Krausman was the operator is
still there Management, supervision operation, and own
ership of the home is claimed to have been different
under the various operators and those subjects are ad
dressed below
36 Denzil S Alkire 259 NLRB 1323 1324 (1982) Crawford Door Sales
Co 226 NLRB 1144 (1976)
Ownership
While Respondent New Park Inn (Osowsky) Bein
horn, and Konig admit they acquired control of the fa
cnty without investing any moneys in the business, they
claim they became the owners of the business as a result
of arms length transactions with Attorney Kahk, and
that they have had no business dealings of any nature
with Krausman-the owner of all the equipment, furni
ture, and supplies in the facility For the reasons stated,
infra, I do not accept their claim
As indicated supra, Attorney Kahk purchased the real
property that houses the Park Inn on August 3 At that
time, Malvina Krausman owned the 181 beds in the facil
ity and the remaining items of personal property, includ
mg, inter aha, the furniture, the kitchen equipment, and
the supplies that were on hand Despite the fact that the
realty and the personalty were owned as indicated, on
August 3 Kalik, after meeting with Krausman, leased the
premises as well as the items of personalty owned by
Krausman to Osowsky When Osowsky vacated the
premises in late May or early June 1979, Kalik repeated
the process with Beinhorn, and about 2 years later again
repeated the process with Konig Krausman a most re
luctant and evasive witness, claims she was unaware of
the fact that Attorney Kalik engaged in the described
transactions I find her testimony to be incredible She
impressed me as being an intelligent person, and I simply
do not believe she would permit strangers to take control
of her business, her furniture, her equipment, and her
supplies without consenting to the arrangement and ob
taming appropriate payment or recompense
During the trial the General Counsel repeatedly
sought to cause Krausman and Rabbi Osowsky in par
ticular to respond to subpoenas which requested the fi
nancial records maintained at the facility Even though
Krausman was ordered after subpoena enforcement pro
ceedings to produce the financial records she refused
claiming the facility had been robbed shortly after
August 15, 1978, and certain unidentified records had
been stolen This testimony was not corroborated in any
respect and I do not credit it In addition, while admit
tang she may have some records at her personal rest
dence at times during the trial Krausman failed despite
the General Counsels repeated requests that she produce
what she had to come forth with any records Similarly,
the General Counsel sought to cause Rabbi Osowsky to
produce subpoenaed financial records kept in the ordi
nary course of business at the home He produced noth
ing except the lease between him and Kalik claiming all
other records were at the facility then being operated by
Beinhorn, and stating the records were not in his custody
and control While Beinhorn and Konig willingly pro
duced payroll records and furnished certain information
concerning purchases from vendors and like matters nei
ther produced the general ledgers maintained at the facil
ity
In sum the record in this case reveals that Krausman
has owned the furniture and equipment utilized in the fa
cility during the entire course of this proceeding As
Kalik leased such personalty to Osowsky Beinhorn and
Konig to enable them to operate the facility, I infer that
PARK INN HOME FOR ADULTS
Krausman was consulted before Kalik engaged in such
actions, and I infer that she consented to each arrange
ment Since Krausman and Osowsky refused to produce
the financial records, which would have revealed the
extent of Krausman s financial participation in the oper
ation of the facility during Osowsky s tenure, an adverse
inference that she participated financially in the oper
ation of the facility is warranted In short, I find, for the
reasons set forth, that Respondent Park Inn (Krausman),
in effect, fully capitalized the operations of Respondent
New Park Inn (Osowsky), Beinhorn, and Konig by per
mitting them to use her furniture, equipment and other
items of personal property in the facility during their re
spective tenures at the facility
Management
It is true, as maintained by the Respondents, that there
is no direct evidence in the record that would show that
Malvina Krausman was extensively involved in the
active management of the facility after August 15, 1978
I feel it is fitting, however, to scrutinize the events sur
rounding her departure from the facility on the date
mentioned and the events which occurred later if an ac
curate conclusion with respect to management of the fa
cility from August 15 forward is to be reached
As indicated, supra, Attorney Kalik had represented
Krausman for a number of years before her July-August
bargaining difficulties were encountered She claims that
in late July she approached Kalik seeking rental conces
sions and when he told her he could give her none that
ended the matter and she simply informed him she
would have to surrender her lease on the premises if she
was unable to reach agreement with the Union What
happened next? On the Kalik end, the next thing that
happened was that Kalik, through unexplained means,
happened to locate Rabbi Osowsky who was then en
gaged in the operation of two homes for the aged owned
by Krausman s husband, and Osowsky agreed to lease
the premises housing the facility if Krausman surren
dered her lease As indicated supra although Attorney
Kalik admitted he discussed the Osowsky lease arrange
ment with Krausman before Osowsky signed the lease
and Krausman's night supervisor, McCabe credibly testa
feed that Krausman told her on August 11 that Osowsky
would be her new boss as of August 15, Krausman false
ly testified she was unaware of the fact that Osowsky
was going to become the new operator of the facility
until he appeared at the facility on August 15 Why did
she disavow knowledge of the Osowsky Kalik lease ar
rangement? In my view, the answer is provided in part,
by the actions of both Respondent Park Inn and
Osowsky during the first 2 weeks of August During that
period, as indicated supra Respondent Park Inn bar
gained in bad faith with the Union and unlawfully imple
mented a so called last offer in such a manner as to con
structively discharge its bargaining unit employees
During the same period, Osowsky arranged to have the
employees of an independent contractor report to the fa
cility on August 15 to perform the work of bargaining
unit employees In my view it was no coincidence that
both Osowsky and Krausman implemented their plans in
such a way as to bring their actions to a conclusion on
1107
August 15 I conclude that both individuals were acting
in accordance with a scheme designed to rid the facility
of the Union and its union employees so they could be
replaced by the cheaper labor offered by Respondent
Travelers
In addition to the fact that Krausman appears to have
participated in the management of Respondent New Park
Inn by causing Osowsky to commence operation of the
facility with the employees of an independent contractor,
the record reveals that she participated in the manage
ment of the supposedly new entity in several other ways
Thus, Attorney Kalik and Osowsky both admitted
during their testimony that Osowsky operated the facility
by utilizing Krausman s operating certificate Interesting
ly, Krausman and Beinhorn repeatedly refused to
produce the operating certificates under which the facili
ty was operated from August 15, 1978, forward An in
ference that they were not produced because production
would work to the Respondents detriment is warranted
I infer that they were not produced because Krausman
held herself out to be the licensed operator of the facility
from August 15, 1978, until Konig obtained an operating
certificate in the spring of 1981 36 Finally, although
Krausman and Osowsky refused to produce records kept
by the home during Osowsky s tenure, the General
Counsel was able to obtain a copy of the 1978 financial
report for the facility, which was filed with the New
York Department of Social Services The report was
filed by Krausman in her capacity as the operator of the
facility As Krausman and Osowsky refused to produce
the annual financial reports filed by the facility during
the time Osowsky and Beinhorn were designated to be
the owners and/or operators of the facility I infer they
refused to produce them because Krausman prepared and
submitted them as the licensed operator of the facility
In sum , I find that while Osowsky provided top man
agement of the facility on a day to day basis, and Bein
horn and Konig performed essentially the same function
during their tenures Krausman by assisting in the initial
labor policy to be followed by the entities which alleged
ly succeeded Respondent Park Inn by permitting the fa
cility to operate under her operator's certificates, and by
preparing and submitting the required annual financial
reports to the New York Department of Social Services
participated significantly in the management of the facili
ty while Osowsky and Beinhorn were associated with
the home
Operation
The Respondents claim that the operation of the old
and the new entities was different because the new enti
ties did not utilize any of the employees formerly used
by Respondent Park Inn Having found that Respondent
Park Inn unlawfully discharged its bargaining unit em
ployees to permit Osowsky to operate the facility with
cheaper labor, I attach little significance to the fact that
under Osowsky the facility was initially operated by uti
se In this connection I note that Kalik assured Beinhorn when he
became the operator of the facility that he could use Krausman s operat
mg certificate
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lizing employees other than those used by Respondent
Park Inn Moreover, I note that the record reveals that
both the old and the new entities utilized the same classi
fication of employees, i e , aides, maids, operators, por
ters, dishwashers, waitresses, and cooks
Patently, as employees in the same job classifications
were utilized by both the old and the new entities in
volved in this proceeding, the operations were substan
tially identical
Supervision
As noted, supra, when Osowsky became the operator
of the facility on August 15, he retained former Re
spondent Park Inn Supervisors McCabe and Press, and,
with exception of the first 2 weeks of Osowsky s tenure
at the facility, the named individuals accomplished the
day to day supervision of employees Similarly, when
Beinhorn subsequently replaced Osowsky, he retained
the supervisors then employed by Osowsky and when
Konig replaced Beinhorn the supervisors then in the
home remained in the same capacity
It is clear, and I find, that the supervision of the old
and the new entities was substantially identical
In sum I conclude that by engaging in a number of
sham paper transactions , which were accomplished by
Attorney Kalik, Malvina Krausman d/b/a Respondent
Park Inn has since August 1978 placed what are actually
a series of managers in her facility, which she has owned
at all times In my view, the entities operated by
Osowsky, Beinhorn and Konig as well are nothing more
than the disguised continuance of Park Inn Home for
Adults As a result I will recommend that each of the
named Respondents be held jointly and severally liable
for remedying the unfair labor practices of Respondent
Park Inn
5 The alleged 8(a)(2) conduct
As noted supra the General Counsel and Respondent
Travelers executed a formal settlement stipulation ap
proved by me at the commencment of the trial of this
matter I approved the stipulation as I concluded it pro
vided adequate remedy for the unfair labor practices Re
spondent Travelers allegedly committed Having charged
both Respondent Travelers and Respondent New Park
Inn engaged with conduct that violates Section 8(a)(1)
and (2) of the Act the General Counsel seeks a finding
that Respondent New Park Inn violated the Act by exe
cuting a contract with Local 143 at a time when it did
not represent an uncoerced majority of the employees
employed in an appropriate bargaining unit at the facili
ty
The facts offered by the General Counsel to prove the
alleged Section 8(a)(2) violation are fully set forth, supra
They reveal that at a time when 22 nonsupervisory em
ployees were employed by the facility Schultz of Re
spondent Travelers executed a contract with Local 143
which had proffered only 10 authorization cards Such
undisputed facts further reveal that Schultz assistant so
licited the employees signatures on the cards by inform
ing them that they had to sign to work there and that
one employee for whom a card was submitted by Local 38 See G C Exh 6
143 was not on the facility's payroll at the time the con
tract was executed
Patently, the facts summarized above reveal that Re
spondent Travelers violated Section 8(a)(2) by soliciting
its employees to sign authorization cards and by entering
a contract with Local 143 at a time when it did not rep
resent an uncoerced majority of the employees in an ap
propriate bargaining unit Respondent New Park Inn
claims it cannot be found to have violated Section 8(a)(2)
as alleged as Respondent Travelers, rather than Re
spondent New Park Inn was the Employer of the em
ployees involved The General Counsel contends that
Respondent New Park Inn and Respondent Travelers
were joint employers, and a finding that Respondent
New Park Inn violated Section 8(a)(2) is warranted
In agreement with the General Counsel, I conclude
that Respondents Travelers and New Park Inn were
clearly joint employers during Osowsky s tenure at the
facility It is undisputed that from approximately Septem
ber 1, 1978, forward, the employees were carried on
Travelers payroll, but the hiring firing and day to day
supervision of such employees was accomplished by
Osowsky and his staff 37 Having determined that the en
titres under discussion were joint employers I turn to an
examination of those record facts which, in my opinion
reveal that while Osowsky took no active part in deal
ings with Local 144 and 143, he and/or Respondent
New Park Inn should be held liable for the action taken
by Schultz and Travelers
The record reveals that prior to the time that Travel
ers committed itself to supply employees to Osowsky for
the purpose of staffing the Park Inn Osowsky had used
Travelers services elsewhere It further reveals that
Travelers had recognized Local 143 as the bargaining
agent of its employees working at other locations With
respect to the Park Inn situation, Schultz testified he had
the authority to conduct dealings with the Unions insofar
as those employees were concerned-that he was being
paid by Osowsky to handle matters of that nature While
Osowsky neither admitted nor denied that such was the
case when he appeared as a witness, it is apparent that
the two named individuals discussed unionization at the
facility when they were reaching agreement on the terms
of their relationship as their agreement states (in relevant
part) 38
As agreed the above does not include any fringe
benefits It is further agreed that should it be neces
sary to pay fringe benefits such as pension, health
and welfare sick leave holidays or any other bene
fits, the costs of such benefits will be added to the
cost of $3 00 per hour, plus the 25% and 10% listed
above
Significantly, in his dealings with Local 144 and Local
143 it is apparent that Schultz actions were consistent
with the limitation placed on him by the above quoted
language contained in his agreement with Osowsky He
rejected entering into a contract with Local 144 because
37 See Hamburg Industries 193 NLRB 67 (1971)
PARK INN HOME FOR ADULTS 1109
they wanted too much, but he signed with Local 143 as
he could do so and abide by his agreement with
Osowsky Finally, inspection of the collective bargaining
agreement executed by Travelers and Local 143 on
August 24 1978, reveals that it contained a union securi
ty clause, a checkoff clause, a probationary period
clause , a holiday clause, a vacation clause, and conferred
other benefits on the employees which could be exer
cised only if Respondent New Park Inn accepted the
contract and abided by its provisions 39 I assume, in the
absence of evidence to the contrary, that Respondent
New Park Inn participated fully in the administration of
the collective bargaining agreement under discussion
In sum, I find the facts described warrant an inference
that Osowsky was fully aware of the fact that Travelers
intended to and did execute a collective bargaining
agreement with Local 143 on behalf of the facility I fur
ther find that an inference is warranted that Respondent
Park Inn ratified Travelers' actions by accepting and
abiding by the contract under discussion subsequent to
August 24 As Respondent Park Inns alter ego, Re
spondent New Park Inn was obligated during the time
period in question to recognize and bargain with Local
144 and to refrain from dealing with any other labor or
ganization Accordingly, I find, as alleged, that by recog
nizing Local 143 as the bargaining agent of employees
employed in the facility during Osowsky s tenure, Re
spondent New Park Inn violated Section 8(a)(2) of the
Act as alleged
6 New Park Inn and Beinhorn's alleged refusal to
reinstate employees and New Park Inn s failure to
make fund contributions
The complaint alleges that Osowsky and Beinhorn vio
lated Section 8(a)(1) and (3) by refusing to reinstate the
employees who were discharged or locked out on
August 15 and, additionally, that they violated Section
8(a)(5) by failing to make contributions to Local 144 s
Benefit Funds after August 15, 1978
Having found that Respondents New Park Inn and
Beinhorn were nothing more than alter egos of Respond
ent Park Inn, I further find that the named entities were
legally obligated from August 15 1978 forward to rein
state the employees discharged on August 15 and they
were legally obligated to make contributions to the
Union s trust funds By failing to fulfill such obligations
they violated Section 8(a)(1) (3) and (5) as alleged
7 Conclusion
While I have concluded that Respondents New Park
Inn (Osowsky) Beinhorn and Konig should be treated
as alter egos of Respondent Park Inn, it should be noted
that Osowsky Beinhorn and Konig assumed control of
the Park Inn Home for Adults under conditions, that if
they were deemed to be bona fide owners of the bust
ness charged them with notice of the unfair labor prac
tices committed by Respondent Park Inn and the em
ploying enterprise remained substantially the same during
the tenure of each
39 See G C Exh 11
With respect to Osowsky, the record reveals that the
original charge in Case 29-CA-6645 was filed on August
30 1978 I have found however, that in late July or
early August 1978, Osowsky, Kalik, and Krausman
became participants in a scheme to oust the Union and
the bargaining unit employees to enable the facility to
operate with cheap labor supplied by Travelers More
over, I note that on the very day Osowsky commenced
to act as the operator of the facility, Respondent Park
Inn s bargaining unit employees were picketing at the fa
cility with signs that claimed they had been locked out
In the circumstances, I find that Osowsky took posses
sion of the facility with knowledge of the unfair labor
practices committed by Respondent Park Inn As noted,
supra, I have found that the entities operated by Re
spondents Park Inn and New Park Inn had substantially
identical ownership, management, equipment, supervi
sion, customers, and business purpose 40 In short, I find
that Respondent New Park Inn was a successor employ
er and should be required to remedy the unfair labor
practices committed by Respondent Park Inn even if my
conclusion that it is also the latter s alter ego is not ac
cepted
Turning to Beinhorn and Konig, I note that the record
reveals that the complaint was issued in Cases 29-CA-
6645 and 29-CA-6705 on October 30 1978, alleging that
Respondents Park Inn, New Park Inn, and Travelers had
engaged in unfair labor practices, and that thereafter as
additional charges were filed amendments to the original
complaint and eventually a second amended complaint
were issued Moreover, Local 144 s picketing of the fa
cility was shown to have been continued until some time
after Beinhorn took over operation of the facility 41
Noting that neither Beinhorn nor Konig denied knowl
edge of the fact that charges and/or complaints against
their predecessors were outstanding at the time they
commenced their tenure at the facility, I find they knew
or should have known when they became the operator
of the Park Inn Home for Adults that such charges and
complaints were pending
In addition to the fact that the record reveals that
Beinhorn and Konig were aware of or should have been
aware of, the charges and complaints which asserted
that Respondent Park Inn, New Park Inn, and Travelers
had engaged in unfair labor practices the record justifies
a conclusion that the employing enterprise remained es
sentially the same during their tenure at the facility
Thus when Beinhorn became the operator of the facili
ty, there was no hiatus in the operation the same rest
dents who were there when Osowsky was the operator
remained the employees and supervisors utilized by
Osowsky were retained without break in service by
Beinhorn, and ownership of the realty and personalty re
marred in Kalik and Krausman, respectively Similarly
when Konig officially became the operator, the sole
40 While Respondent New Park Inn operated the facility with employ
ees supplied by Travelers the bargaining unit employees remained em
ployees of the facility as they were constructively discharged and/or
unfair labor practice strikes
41 The record reveals picketing was still being conducted when Koing
was hired by Beinhorn
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
change in the employing enterprise was the substitution
of Konig for Beinhorn Konig retained all the employees
and supervisors then employed at the facility, operated
with the same business purpose without hiatus, and own
ership of the facility remained the same as it has been
throughout the course of this litigation
In sum, assuming, arguendo, that Osowsky, Beinhorn,
and Konig are not deemed to be alter egos of Respond
ent Park Inn, I conclude, for the reasons stated, they are
successor employers within the meaning of Perma Vinyl
Corp, supra, and Golden State Bottling Co v NLRB,
supra , and should thus be required to remedy the unfair
labor practices found here
CONCLUSIONS OF LAW
1 Malvina Krausman d/b/a Park Inn Home for
Adults, Pinkus Osowsky d/b/a New Park Inn Home for
Adults, Marvin Beinhorn d/b/a Park Inn, and Samuel
Konig d/b/a Park Inn Home for Adults are employers
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
2 Pinkus Osowsky d/b/a New Park Inn Home for
Adults, Marvin Beinhorn d/b/a Park Inn, and Samuel
Konig d/b/a Park Inn Home for Adults, and each of
them, are alter egos and successors of Malvina Krausman
d/b/a Park Inn Home for Adults
3 Local 144, Hotel, Hospital, Nursing Home Allied
Health Services Union, AFL-CIO, and Local 143,
Office, Service and Allied Workers Union, AFL-CIO
are labor organizations within the meaning of Section
2(5) of the Act
4 All service and maintenance employees employed
by the Respondents at 115 02 Ocean Promenade, New
York New York, excluding all other employees guards
and supervisors as defined in Section 2(11) of the Act
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act
5 At all times material Local 144 has been and is now
the representative for the purpose of collective bargain
ing of the employees in the unit described above within
the meaning of Section 9(a) of the Act
7 By engaging in the conduct found to be unlawful in
section III of this decision, the Respondents violated
Section 8(a)(1), (2) (3), and (5) of the Act
8 The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
THE REMEDY
tion 8(a)(1) (2) (3), and (5) of the Act I find it neces
sary to order that the Respondents cease and desist
therefrom and take certain action designed to effectuate
the policies of the Act
Having found that the Respondents have refused to
bargain collectively with the Union as the exclusive rep
resentative of the employees in the appropriate unit de
scribed above, I shall order the Respondents, including
Samuel Konig, d/b/a Park Inn Home for Adults, to rec
ognize and , on request, bargain with the Union as the ex
clusive representative of the employees in the appropri
ate unit , and, if an understanding is reached, embody
such understanding in a signed agreement
I will recommend that Respondents be required to
offer the employees who were discharged on August 15,
1978, immediate and full reinstatement to their former or
substantially equivalent positions of employment, without
prejudice to their seniority or other rights and privileges,
discharging, if necessary, any replacements in order to
provide work for the discnminatees, and to make whole
all employees for any loss of earnings they may have suf
fered as a result of the discrimination against them by
paying them backpay computed on a quarterly basis with
interest as prescribed in F W Woolworth Co, 90 NLRB
289 (1950), and Florida Steel Corp, 231 NLRB 651
(1977),42 from August 15, 1978, until the date a proper
offer of reinstatement is made to each of them
I will further recommend that the Respondents be re
quired to reimburse the Union s welfare, dental, pension,
and educational trust funds by paying them moneys un
lawfully withheld from them from March 11, 1978, for
ward
Recognizing that Travelers Maintenance Inc executed
a settlement stipulation in which it agreed to reimburse
employees for dues fees, and initiation fees unlawfully
deducted from their pay and remitted to Local 143 at a
time when that labor organization was not lawfully enti
tled to recognition as the bargaining agent of employees
employed at the facility I will recommend that the Re
spondents shall be held jointly liable with Travelers
Maintenance Inc for reimbursing employees for moneys
that were unlawfully deducted from their wages
Because of the character and scope of the unfair labor
practices found I find a broad cease and desist Order is
necessary In addition, the Respondents will be ordered
to post an appropriate notice encompassing all violations
committed
[Recommended Order omitted from publication ]
Having found that Respondents have engaged in, and
is engaging in unfair labor practices in violation of Sec 42 See generally Isis Plumbing Co 138 NLRB 716 (1962)