Park Maintenance

National Labor Relations Board - Board Decisions

Dec 29, 2006

348 N.L.R.B. 1373 (N.L.R.B. 2006)

PARK MAINTENANCE
348 NLRB No. 98
1373
Park Maintenance, Palisades Maintenance and Park
View Towers, alter egos and Local 11, Interna-
tional Brotherhood of Teamsters.1 Cases 22–
CA–26709 and 22–CA–27008
December 29, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On May 18, 2006, Administrative Law Judge Steven
Davis issued the attached decision. The Respondents
filed exceptions and the General Counsel filed a cross-
exception; the General Counsel also filed a brief support-
ing the cross-exception and in opposition to the Respon-
dents’ exceptions.
The National Labor Relations Board has delegated 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,2 findings,3 and conclusions

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 The General Counsel has excepted to the judge’s admission into
evidence of two affidavits. The General Counsel notes the absence of a
showing that the affiants were unavailable to testify. We agree with the
General Counsel and find that the affidavits should not have been ad-
mitted into evidence. See G.M. Mechanical, Inc., 326 NLRB 35, 35 fn.
1 (1998); Valley West Welding Co., 265 NLRB 1597, 1597 fn. 3
(1982); Limpco Mfg. Inc., 225 NLRB 987, 987 fn. 1 (1976), enfd. mem.
565 F.2d 152 (3d Cir. 1977). However, we note that the judge discred-
ited the statements in the affidavits. Accordingly, the judge’s admis-
sion of the affidavits was harmless error.
3 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
No party excepted to the judge’s findings that the Respondents vio-
lated Sec. 8(a)(5) and (1) by refusing to recognize the Union since
August 6, 2004, and by transferring employees from the union health
plan to a different plan in September 2004 without offering to bargain
and without the Union’s consent.
In affirming the judge’s finding that the Union’s December 16, 2004
unfair labor practice charge alleging the Respondents’ refusal to exe-
cute the negotiated agreement was timely filed within the 6-month
period established by Sec. 10(b), we note that the charge was timely
even if the Union first received notice of the Respondents’ refusal
during a July 2004 telephone conversation between Union Business
Agent Rey Lopez and Respondents’ official James R. Canino Jr., rather
than, as found by the judge, at the parties’ August 6, 2004 meeting.
We reject the Respondents’ contention challenging the judge’s de-
scription of the bargaining unit. The judge’s description tracks the unit
description alleged in the complaint, the consolidated amended com-
plaint, and the amended consolidated complaint. The Respondents’
answers admitted this allegation and the Respondents did not challenge
the unit description at the hearing. We note that the Respondents’
and to adopt the recommended Order as modified and set
forth in full below.4
ORDER
The National Labor Relations Board orders that the
Respondents, Park Maintenance and Palisades Mainte-
nance (alter egos) and Park View Towers (a single em-
ployer with Park Maintenance and Palisades Mainte-
nance), West New York, New Jersey, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Continuing to withhold recognition from, and failing
and refusing to bargain with, Local 11, International Broth-
erhood of Teamsters as the exclusive collective-bargaining
representative of employees in the following unit:
All full-time and regular part-time building service em-
ployees employed in the building known as Park View
Towers, excluding all office clerical employees, profes-
sional employees, guards and supervisors as defined in
the Act.
(b) Refusing to execute the memorandum of agree-
ment, which is effective from June 1, 2004 to December
31, 2007.
(c) Refusing to give effect to and apply the terms of
the memorandum of agreement referred to above.
(d) Transferring unit employees from the Northern
New Jersey Teamsters Benefit Plan to the plan main-
tained by Park View Towers without offering to bargain
with the Union and without the Union’s consent.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize Local 11, International Brotherhood of
Teamsters as the exclusive representative of employees

answer to the amended consolidated complaint was inadvertently omit-
ted from the formal documents entered into evidence as General Coun-
sel Exhibit 1; we take administrative notice of the answer as part of the
record pursuant to Sec. 102.45(b) of the Board’s Rules and Regula-
tions.
In affirming the judge’s alter ego finding, Chairman Battista adheres
to his position that the General Counsel must show, among other
things, an intent to avoid legal obligations under the Act in order to
prove alter ego status. See Crossroads Electric, Inc., 343 NLRB 1502
at fn. 2 (2004), enfd. 178 Fed. Appx. 528 (6th Cir. 2006). However, the
Respondents here do not press this contention and Chairman Battista
accordingly concurs in his colleagues’ finding of alter ego status with-
out reaching the motive for the creation of Respondent Park Mainte-
nance.
4 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the violations found, to conform to the
Board’s standard remedial language, and to reflect the disaffiliation of
the Teamsters from the AFL–CIO.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1374
in the unit set forth above and execute the memorandum
of agreement, which is effective from June 1, 2004 to
December 31, 2007.
(b) Honor the memorandum of agreement referred to
above for employees in the unit.
(c) Rescind the transfer of unit employees from the
Northern New Jersey Teamsters Benefit Plan to the plan
maintained by Park View Towers, and upon execution of
the memorandum of agreement, return the unit employ-
ees to the Northern New Jersey Teamsters Benefit Plan.
(d) Jointly and severally make all contractually-
required payments to the health benefit funds, and make
the unit employees whole in the manner set forth in the
remedy section of the judge’s decision.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
their facility in West New York, New Jersey, copies of
the attached notice marked “Appendix.”5 Copies of the
notice, on forms provided by the Regional Director for
Region 22, after being signed by the Respondents’ au-
thorized representative, shall be posted by the Respon-
dents and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondents to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondents have gone out of business
or closed the facility involved in these proceedings, the
Respondents shall duplicate and mail, at their own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondents at any
time since August 6, 2004.

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT continue to withhold recognition from, or
fail and refuse to bargain with, Local 11, International
Brotherhood of Teamsters as the exclusive collective-
bargaining representative of employees in the following
unit:
All full-time and regular part-time building service em-
ployees employed in the building known as Park View
Towers, excluding all office clerical employees, profes-
sional employees, guards and supervisors as defined in
the Act.
WE WILL NOT refuse to execute the memorandum of
agreement, which is effective from June 1, 2004 to De-
cember 31, 2007.
WE WILL NOT refuse to give effect to and apply the
terms of the memorandum of agreement referred to
above.
WE WILL NOT transfer unit employees from the health
plan maintained between Palisades Maintenance and the
Union’s Benefit Plan to the plan maintained by Park
View Towers without offering to bargain with the Union
and without the Union’s consent.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL recognize Local 11, International Brother-
hood of Teamsters and execute the memorandum of
agreement, which is effective from June 1, 2004 to De-
cember 31, 2007.
WE WILL honor the memorandum of agreement re-
ferred to above for employees in the unit.
WE WILL rescind our transfer of unit employees from
the Northern New Jersey Teamsters Benefit Plan to the
plan maintained by Park View Towers, and upon execu-
PARK MAINTENANCE 1375
tion of the memorandum of agreement, return the unit
employees to the Northern New Jersey Teamsters Bene-
fit Plan.
WE WILL jointly and severally make all contractually-
required payments to the health benefit funds, and make
whole all employees and union funds, with interest on
amounts owing for our failure to have done so.
PARK MAINTENANCE, PALISADES MAINTEN-
ANCE AND PARK VIEW TOWERS, SINGLE
EMPLOYER
Jeffrey P. Gardner, Esq., for the General Counsel.
Philip Feintuch, Esq. (Feintuch, Porwich & Feintuch, Esqs.),
Jersey City, New Jersey, for the Respondents.
Rey Lopez, Vice President, Teamsters Local 11, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge, a first amended charge, and a second amended charge
filed by Local 11, International Brotherhood of Teamsters,
AFL–CIO (Union) in Case No. 22–CA–26709 on December
16, 2004, March 30, 2005, and January 18, 2006, respectively,
and based on a charge filed by the Union on July 12, 2005 in
Case No. 22–CA–27008, a complaint was issued against Park
Maintenance, Palisades Maintenance (Palisades) and Park View
Towers, Alter Egos, on January 31, 2006. On March 21, 2006,
a hearing was held before me in Newark, New Jersey.
The complaint alleges that Palisades and Park Maintenance,
both enterprises engaged in repairing and maintaining an
apartment complex owned by Park View Towers, were estab-
lished by Park View Towers as a subordinate instrument to and
a disguised continuation of Park View Towers. Based on those
assertions, it is alleged that the three entities are alter egos and a
single employer.
It is alternatively alleged that in January, 2005, Park Mainte-
nance acquired the business of Palisades and has operated the
business in unchanged form and has employed a majority of its
employees who were previously employees of Palisades. Based
on those assertions, it is alleged that Park Maintenance is a
successor to Palisades.
The complaint alleges that on April 27, 2004, the Union and
Palisades reached an agreement on a successor collective-
bargaining agreement covering the building service employees
working at Park View Towers. The complaint also alleges that
since about May, 2004, the Union requested Palisades to sign
the contract, and that since August 6, 2004, Palisades refused to
do so.
The complaint further alleges, and the answer admits, that
since September, 2004, Palisades transferred unit employees
from its health plan to the health plan maintained by Park View
Towers without the Union’s consent. The complaint finally
alleges, and the Respondents deny, that on about June 16, 2005,
Park View Towers and Park Maintenance withdrew their rec-
ognition of the Union.
The answer asserts certain affirmative defenses including
that neither Park View Towers nor Park Maintenance recog-
nized the Union at any time, and that the Union was not the
bargaining agent of the employees for either entity. The answer
further asserts that the Union abandoned its representation of
the employees and failed to cover them with medical insurance.
At hearing, the Respondents argued that the initial charge was
not timely filed under Section 10(b) of the Act.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel and the Respondents, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent Park View Towers, having its office and place
of business in West New York, New Jersey, has been engaged
in the operation of a residential apartment complex. The com-
plaint alleges and the answer admits that during the past year,
Respondents Park View Towers and Park Maintenance derived
gross revenues in excess of $500,000 from their operations.
Based upon these admissions, I find that the Respondents have
been employers engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the act. The Respondents admit that
the Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Park View Towers and Palisades Maintenance
James M. Canino Sr. (Canino Sr.) is the general partner of
Park View Towers, a two-building, 24 floor apartment complex
with 684 units and a 350 car parking lot.
Palisades Maintenance was formed in order to provide clean-
ing and maintenance services for Park View Towers, its sole
customer. James R. Canino, Jr. (Canino Jr.) and Lisa
D’Alesandro, the children of Canino Sr., each owned 50% of
Palisades. Canino Jr. was its president, and Lisa D’Alesandro
was its secretary-treasurer. In addition, in 2002, Maria Oliva,
the niece of Canino Sr., became the corporate secretary of Pali-
sades, which had its office in the premises of Park View Tow-
ers. Park View Towers purchases all equipment and supplies
used by Palisades, and bills Palisades for the amount of the
purchases.
Canino Jr., Canino Sr., and Oliva were responsible for hiring
the Palisades maintenance employees. The day-to-day frontline
supervisor of the porters was Carlos Rodriguez, who was an
employee of Park View Towers, and has not been employed
separately by Palisades. From January 1, 2004 to December 31,
2004, there were 13 unit employees employed by Palisades in
classifications including porter, landscaper, and painter. Of
those, 7 left their employ for various reasons including retire-

1 I reject the Respondents’ 10(b) argument. Palisades did not “clearly
and unambiguously” refuse to execute the successor collective-
bargaining agreement until August 6, 2004. Inasmuch as the charge
alleging such refusal was filed on December 20, 2004, the charge was
timely filed within the 6-month Section 10(b) period. Liberty Ashes,
Inc., 314 NLRB 277, 279 (1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1376
ment or discharge. Three new workers were hired in 2004, but
all three were no longer employed there by July, 2004. Accord-
ingly, on December 31, 2004, only three workers remained
employed by Palisades: Porter Rafael Molina, landscaper Clau-
dio Andia, and part-time employee Donatila Andia.
Canino Sr. testified that Palisades’ employees did all the
janitorial work at Park View Towers, and worked only at that
building. Such work included cleaning, portering, washing the
lobby floor, vacuuming the upper floors, removing litter from
the parking lot, taking out the garbage and separating the recy-
clable items. The employees had no repair duties to perform in
the apartments. When a vacancy arose, other workers, mainly
carpenters but not the unit employees made repairs and pre-
pared the apartment for re-renting.
Canino Sr. further testified that Park View Towers funds
Palisades, and as the general partner of Park View Towers, if he
believes that the contract between Palisades and the Union is
too expensive, he would cancel Palisades’ funding and “fire”
Palisades.
2. The Bargaining
The admitted collective-bargaining unit is as follows:
All full-time and regular part-time building service employees
employed in the building known as Park View Towers, ex-
cluding all office clerical employees, professional employees,
guards and supervisors as defined in the Act.
The Respondents admit that the Union has been the desig-
nated exclusive collective-bargaining representative of the unit
as represented by successive collective-bargaining agreements,
and until June 16, 2005, had been recognized as such by the
Respondents.
Since 1996, Rey Lopez, the Union’s vice-president and busi-
ness agent, had been representing the employees of Palisades
who work at Park View Towers. He stated that the only official
he had dealt with since that time was Canino Jr., with whom he
negotiated the last contract which was signed by them in June,
2001. Although Lopez had met Canino Sr. briefly before 2004,
Canino Sr. had never been involved with negotiations for a new
contract. Canino Sr. stated that he “oversaw” the agreements
negotiated with the Union in the past, and he had “input” in all
the prior contracts. He further stated that he had been present at
the 2001 negotiation, but did not know why he did not sign that
contract, perhaps, he believed, because he wanted his son and
daughter to “take over,” and he “wanted to give him that au-
thority so as to get used to how to handle it.”
On February 23, 2004, Lopez sent a letter to Canino Jr, ask-
ing to meet to begin negotiations for a successor collective-
bargaining agreement to replace the contract which was due to
expire on May 31, 2004. Simultaneously, letters were sent to
federal and state mediation agencies. Lopez stated that some-
time after the letters were sent, Canino Jr. called and said that
he was ready to negotiate. Lopez told him that he did not yet
have proposals to present.
On March 24, Lopez met with four employees to discuss the
Union’s contract proposals. They agreed that continued health
benefits was a priority, and that since the cost of such benefits
had risen considerably, they would not make extreme demands
in other areas.
On March 31, Lopez sent the Union’s contract proposals to
Canino Jr., and asked him to call to arrange a date to begin
negotiations. Thereafter, Canino Jr. called and requested a
meeting date of April 27 because he and Lopez would be meet-
ing the following day to conclude negotiations for Overlook
Terrace, another building in which Canino Sr. was a part
owner, and Canino Jr. wanted the contracts to run “side by
side” to “mirror each other.”
a. The April 27 negotiations
At the meeting on April 27 at the Palisades office which is
situated at the Park View Towers facility, Lopez and shop
steward Rafael Molina met with Canino Jr., who signed the
attendance sheet as president of Palisades Maintenance.2 Dur-
ing the one hour meeting, the parties discussed the Union’s
proposals, Palisades not having presented its own list of de-
mands. Canino Sr. stated he could not be present at the meeting
because he was with his ill wife in Florida.
Lopez testified that he and Canino Jr. discussed each of the
Union’s proposals. Canino Jr. either agreed to each one or dis-
agreed, and if he disagreed the Union withdrew it. Lopez’ nota-
tions on his proposal, written at the meeting, support his testi-
mony. He stated that at the end of the negotiations that day they
reached agreement and shook hands, as follows:
b. The Union’s proposals and Canino Jr.’s responses
The following narrative is based on Lopez’ testimony and
the documentary evidence.3 The Union proposed and Canino Jr.
agreed to (a) a change in the contract to set forth the Union’s
new address (b) supply safety belts and winter jackets for the
workers and (c) a term of three years for the new contract
which would run from June 1, 2004 to May 31, 2007. However,
at the end of the meeting or the next day, Canino Jr. asked that
the expiration date be changed to December 31, 2007 - the
same date the Overlook Terrace contract was due to expire, and
Lopez agreed.
The Union proposed a $1-per-hour wage increase in each of
the three years of the contract. Canino Jr. agreed to a 25 cents
per hour wage increase in each of the 3 years of the contract,
and Lopez accepted that sum.
Canino Jr. refused to agree to the Union’s proposals for (a) a
five cents per hour longevity increase for each year of service
in the first year of the contract (b) the addition of two paid
floating holidays (c) an increase in the number of vacation days
for employees employed from 11 to 15 years (d) a union-
sponsored pension fund and (e) a 401(k) plan.
With respect to Article 13, the Union proposed and Canino
Jr. agreed to change the title of that Article from “Welfare” to
“Health Benefits.”
The Union proposed that the health benefit rate be:

2 The General Counsel and the Respondent each request that I draw
an adverse inference from the other party’s failure to call Molina to
testify as to what was said at that meeting. The negotiations were con-
ducted in English and according to the General Counsel’s brief, Molina
does not speak and may not understand English. Accordingly, his tes-
timony as to what was said at the session would have no value.
3 Canino Jr. died in September 2004.
PARK MAINTENANCE 1377
(a) $637.00 per employee per month effective June 1,
2004, which constituted an increase of $217.00 per month
per employee from the expiring contract;
(b) $733.00 effective June 1, 2005—an increase of
$96.00 over the prior year; and
(c) $843.00 effective June 1, 2006—an increase of
$110.00 over the prior year.
When these rates were presented, Canino Jr. told Lopez that
“you are out of your mind.” Lopez responded that since bene-
fits were increased, the premiums for the benefits were also
raised, and that the health benefit rates are “non-negotiable.”
At hearing, Lopez explained that if an employer did not want
to pay the rates presented, Lopez would suggest an alternative
plan with less coverage and benefits and lower premiums.
However, in this negotiation, Canino Jr. did not make such a
request and there was no discussion concerning alternate cover-
age or rates. In addition, Canino Jr. did not say that Palisades
could not pay or could not afford those new rates. Rather, Can-
ino Jr. agreed to these terms but wanted the employees to pay
$10 per week as an employee contribution (called a “co-pay”)
toward the increased cost of the health benefits. The co-pay rate
in the expiring contract was $5 per week. The co-pay did not
relate to the amount of money paid for a doctor visit. Rather, it
was the amount the employee contributed so that the actual
amount of money paid by Palisades would be reduced by $40
per month. Lopez agreed to that amount which was proposed
by Canino Jr.
Lopez also proposed and Canino Jr. agreed that employees
hired on or after June 1, 2004 receive a starting hourly wage of
$9.00; those hired on June 1, 2005 receive $9.50, and those
hired on June 1, 2006 receive $10. In addition, Canino Jr. told
Lopez that he had a problem retaining new employees and
wanted to provide a merit raise to encourage retention. Lopez
agreed to include merit increase language in the agreement.
At the end of the negotiations that day, Lopez and Canino Jr.
said “this is the agreement” and shook hands. Lopez testified
that they reached “total agreement” that day, and that the only
oral agreement made was to change the expiration date so that
this contract and the Overlook Terrace agreement would expire
on the same day. Lopez said that he would send a Memoran-
dum of Agreement (MOA). Lopez conceded that Canino Jr. did
not sign or initial written Union proposal that they worked from
that day, but Lopez made notations on his copy of the Union’s
proposals as to what was agreed. Those notations conform to
the MOA sent to Palisades for signature.
c. The April 28 meeting
On April 28, Lopez and Overlook Terrace shop steward
Mario Allegro met with Merci Orbe-Henao, the property man-
ager for Overlook Terrace, Anthony Palmeri, the managing
agent of Overlook, Jim Conforti, a co-owner of Overlook with
Canino Sr., and Maria Oliva who is the controller for Park
View Management Corporation which manages Palisades and
Park Maintenance. Also present was Canino Jr. who was listed
as “agent” on the Overlook attendance sheet. Lopez testified
that he had never before negotiated with Canino Jr. for Over-
look Terrace. They met at the Overlook Terrace building.
According to Lopez, the purpose of the meeting was to nego-
tiate the terms of a new collective-bargaining agreement with
Overlook Terrace and not with Palisades. The attendance sheet
is entitled “contract negotiations with Overlook.”
Lopez denied that the prior day’s negotiations with Palisades
continued on April 28 or that these were Palisades’ negotiations
at all. However, he stated that at the end of the negotiations
with Overlook, Canino Jr. requested, and he agreed that the
Palisades agreement be modified to reflect the agreement
reached that day with Overlook in three respects: (a) wage in-
creases of 15 cents, 25 cents, and 25 cents in each of the three
years of the contract instead of 25 cents each year as agreed the
day before (b) employee weekly copayment of health benefits
of $10, $10, and $15 in each of the 3 years of the contract in-
stead of $10 for each of the 3 years agreed the day before4 and
(c) the expiration date was changed to be the same as the Over-
look contract.
Lopez stated that he agreed to Canino Jr.’s requests to mod-
ify the Palisades agreement because at that point the Union’s
members had not ratified the agreement reached and he had not
prepared the MOA. He incorporated these changes in the MOA
he sent to Canino Jr., as set forth below.
Lopez stated that at the end of the negotiations with Over-
look that day, he shook hands with the participants and told
them that he would put the agreements with Palisades and
Overlook in writing and send them for signature. No further
negotiations were discussed or scheduled.
Oliva testified that the negotiations which took place that day
were for both Overlook and Palisades inasmuch as the Union
represented both companies, and it “made sense” to negotiate
collectively because they were both “interested parties” and
there was a “shared ownership” (Canino Sr.) between the two
entities. She was unaware that Canino Jr. had met with Lopez
the previous day.
Oliva stated that the participants “went through” the propos-
als for both Overlook and Palisades, including, according to her
belief, an “astronomical 100% increase” in health benefits. She
stated that Lopez did not suggest that other health options could
be selected to reduce the cost. Rather, he said that “there was
nothing we could do about it. . . .His instructions to us were
these are the rates and that is that. He never offered any alterna-
tive, there was a huge discussion because you can see from the
numbers, the jumps were enormous.” Although Lopez did not
make a formal counteroffer, she considered his suggestion that
new hires start at $9 as a counteroffer.
Oliva recalled agreeing to a 25-cents-per-hour raise, which is
not accurate since the agreed upon raise was 15 cents, 25 cents,
and 25 cents over 3 years. She also recalled that there would be
no holidays or longevity increases. With respect to employee
contributions to health benefits, she noted that at the time, Pali-
sades’s employees paid $5 per week but Overlook’s workers
paid nothing. They discussed making the contributions similar.

4 In this respect, Lopez’ initial testimony was confused. He stated
that both Overlook and Canino Jr. demanded and he agreed that the
employee copay would be $10, $15, and $20 per week in each of the
three years of the new contract. However, the signed MOA with Over-
look confirms that the amounts agreed to are $10, $10 and $15, as set
forth above. In addition, Lopez’ later testimony corrected those
amounts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1378
She further stated that Lopez demanded safety belts, but that
such items were already provided to the workers. They also
discussed winter jackets, which were provided to Overlook’s
workers but not to Palidades’. Regarding the Union’s demand
for a 401(k) plan, Palisades would not agree to such a plan
unless it received a letter from the Union stating that it would
not cost it any money, and the Employer’s bookkeeping ex-
penses were “not insurmountable.” Oliva conceded receiving a
letter from Lopez that no costs would be involved in such a
plan, but was expecting more information which was not forth-
coming from Lopez. I accordingly find that following Oliva’s
receipt of the letter that Palisades would incur no costs from the
401(k) plan, that such plan was acceptable to Palisades.
Oliva also stated that the participants discussed the media-
tion and arbitration clauses which were “very strong” for the
Union and Palisades sought to change such language, but ap-
parently no substantive discussions were held because, accord-
ing to her, “it was one of those things . . . that fell off the table.”
Oliva stated that at the end of the meeting, Lopez announced
that “this is it, okay,” and she, Canino Jr. and perhaps Palmeri
responded that “all these agreements or proposals need to be
reviewed by James M. Canino” (Canino Sr.), and were “subject
to Mr. Canino Sr.’s approval.” Canino Sr. testified that his son
had no authority to agree to a final contract.
Lopez denied being told at either of the meetings that the
agreements were subject to Canino Sr.’s review. However, he
conceded that he was aware that although Canino Jr. negotiated
the contract as Palisades’ representative, he knew that “some-
body else is pulling the shot behind this person.” He stated that
although he represents the Union, he also represents the Un-
ion’s members, and must obtain ratification of the contract.
“When I have my final product, I will present it to them for
ratification which just means approval. Without the approval I
cannot go ahead and sign the agreement. The same way with
the companies.” However, Lopez denied having any discussion
with Canino Jr. concerning his authority to agree to a contract
with or without the employees’ ratification.
Canino Sr. testified that only two or three days after the
April 27 meeting, his son told him “what the Union wanted in
their agreement.” Canino Sr. “made a few remarks” and then
his son immediately called Lopez and told him that “we have a
problem with this agreement. We have to sit down with my
father.” Canino Sr. stated that thereafter when he “never heard
from” Lopez he called him in early May and complained that
he had not yet heard from or met with him, and that he wanted
to meet with him to “go over this contract.” According to Can-
ino Sr., Lopez said “look, that’s only my wish list.” A meeting
was arranged for August 6.
d. The Union sends the MOA
The MOA for Palisades as prepared by Lopez essentially in-
cluded the following terms:
1. The address of the Union was changed to reflect its
new address.
2. A probationary period of 180 days for new employ-
ees.
3. Wage raises of 15 cents, 25 cents and 25 cents in
each of the three years of the contract, and merit wage in-
creases at the employer’s discretion.
4. Health benefits increases of $637.00, 733.00, and
843.00 per month per employee in each of the three years
of the contract, with employee weekly contributions of
$10.00, $10.00 and $15.00 for each of the three years of
the contract.
5. Summer and winter uniforms, consisting of a jacket
and parka to be provided by Palisades.
6. Palisades will reimburse each employee up to
$50.00 for safety shoes.
7. Palisades agrees to participate in the Teamsters Na-
tional 401(k) plan on behalf of all unit employees.
Both the Palisades and the Overlook agreements were identical
in every respect, except that the Palisades MOA included a provi-
sion that Palisades supply uniforms to its employees. Each agree-
ment was ratified unanimously by its respective employee unit.
On May 24, 2004, Lopez sent a letter to Canino Jr. in which
he enclosed four signed and dated copies of the Palisades
MOA, and asked him to sign all copies and return two to him.5
The letter further requested that if he had any questions regard-
ing the MOA, he should call. Lopez testified that the MOA
accurately reflected the agreement between the parties and
included the changes made on April 28. The MOA stated that it
represented the “changes negotiated and agreed to between the
parties” from the prior agreement.
Although Lopez stated that every item in the Palisades MOA
was discussed during negotiations, he conceded that Article
17—Uniforms, was not discussed at the sessions. That Article
provides that summer and winter uniforms, including a jacket
and parka, will be supplied by Palisades. Lopez’ explanation
was that although that provision was in the prior contract, Pali-
sades had not supplied uniforms in the past 3 years, and he
believed that it was appropriate that it be included in the MOA
and need not have been discussed. That explanation is valid.
The MOA just dealt with the changes to be made to the expir-
ing contract. There was no harm in the inclusion of the uniform
provision in the MOA, apparently for emphasis, even though it
was already included in the past contract. Oliva testified that
the parties discussed the issue of shoes but she was not certain
if they reached an agreement on that item. She noted that Over-
look wanted the shoes provision but Palisades had never pro-
vided shoes to its employees.
At the same time, Lopez sent the same letter to Overlook
with copies of its MOA. Lopez received a copy of the Overlook
contract signed by manager Orbe-Henao and dated May 27. He
received no reply or response from Palisades, and in early July,
he called Canino Jr. who said that there was a problem with the
health insurance rates, and that Lopez would have to meet with
Canino Sr., who wanted a different set of proposals concerning
that term. A meeting was arranged for August 6.
e. The August 6 meeting and subsequent events
Present at the meeting were Lopez, Canino Jr., Canino Sr.,

5 Canino Sr. testified that he received it on the day it was sent, May
24.
PARK MAINTENANCE 1379
and Oliva. Canino Sr. testified that he told Lopez that his son
“agreed to something that he was not supposed to” because he
was having certain personal problems and he “didn’t have his
mind into it.” Lopez testified that Canino Sr. “totally disagreed”
with all the agreed-upon terms set forth in the MOA. Lopez
stated that he told Canino Sr. that if his son did not agree with
the rates and prices agreed to on April 27, he should have said
something the following day.
At the conclusion of the meeting, Lopez told Canino Sr:
“You know what, this is the memorandum [of agreement], I
thought I had a deal, whatever proposal you suggest . . . what
you think you can agree on . . . just put it in writing . . . just the
same way I did my proposal . . . and let me take a look at it.”
About 2 weeks later, on August 19, Lopez received a letter
from Canino Sr. which was entitled, “Memorandum of Agree-
ment Palisades Maintenance Corp. & Overlook Terrace.” It
stated “as per our conversation of August 6, 2004, we have
reviewed your ‘wish list.’” Canino Sr. agreed to (a) the change
of address of the Union (b) the probationary period clause for
new employees and (c) wage raises of 15, 25, and 25 cents in
each of the 3 years of the new contract, and that Palisades may
grant merit raises in its discretion.
However, the letter also stated that Palisades could not agree
to the health benefits increases set forth in the Union’s MOA.
Rather, the letter stated that it would only agree to health bene-
fits of $433, 446, and 459 in each of the 3 years. The letter also
stated that jackets and parkas were not required, Palisades re-
fused to reimburse porters for the cost of their shoes, and stated
that it did not wish to participate in the 401(k) plan.
The letter ended as follows:
In conclusion, let me outline our economic position. Our only
income is predicated on an allowance based on rent increases
granted by the New Jersey Mortgage and Housing Finance
Agency. Over the past several years, that rental increase is
minimal, and has been actually less than the C.P.I., with the
exception of 2004 when the increase was 4%. We had re-
quested 10% but were denied. We have commenced litigation
to have this decision reversed and hopefully we will prevail in
our litigation and be awarded the additional 6% rent increase.
I am at your convenience for any further talks with you con-
cerning this matter.
Lopez did not respond to the letter and did not contact Pali-
sades thereafter because he believed that it was “crazy”—a
“joke”—in that Palisades was “naming its own price” as to the
health benefits, and that Palisades’ proposal amounted to only a
3% increase from the prior contract, far below the 20 to 35%
increase in rates applicable at the time. Lopez did not believe
that he was obligated to make a counteroffer to Canino Sr.
Rather, he believed that it was Palisades’ obligation, if it could
not afford the package offered, to request a different benefits
package and lower rates.
Lopez did not interpret Canino Sr.’s letter as a counterpro-
posal or a request to renegotiate the MOA. According to Lopez,
Canino Sr. simply set forth his demands in the August letter,
which was untimely because they should have been presented
before April 27. Lopez stated that where an employer “picks
and chooses” which terms it will agree to following an agree-
ment, he would prefer to renegotiate the entire agreement be-
cause his members would be confused as to what was agreed to
and not agreed to. However, Lopez did not renegotiate this
agreement because he had already reached a full agreement
with Canino Jr., and because Canino Sr. (a) did not request a re-
negotiation and (b) the letter simply set forth Palisades’ de-
mands which were unreasonable. Lopez concluded that he and
Canino Jr. had made a “sealed agreement” which he decided to
adhere to. Canino Sr. testified that when he received the MOA
on May 24, he read it and called Lopez, telling him that the
document was “ridiculous.”6 According to Canino Sr., Lopez
again said that it was only his “wish list, and told him to send
his “comments” to him. Although Canino Sr. said he “immedi-
ately” sent his written comments to Lopez, the letter, discussed
above, was not sent until after the August 6 meeting, 3 months
later.
Canino Sr. testified that at the August 6 meeting, they dis-
cussed the contract’s terms, and Canino Sr. told Lopez “what I
was willing to pay,” making “counterproposals” to the MOA.
3. The health benefit plan
Lopez testified that when he received Canino Sr.’s August
letter, he believed that the parties would not agree to a renewal
contract at least for the immediate future, so he advised the
Union’s Benefit Plan that Palisades refused to sign the MOA,
and that the fund’s benefits should be stopped immediately.
Accordingly, on September 9, 2004, the Northern New Jer-
sey Teamsters Benefit Plan sent a letter to Palisades advising
that its contract with the Union expired on May 31, 2004, and
that the Plan would not be able to provide health coverage for
participants employed by Palisades at the old contribution rate.
The letter informed Palisades that coverage under the Plan
would terminate the following day. A letter was also sent that
day to the employees of Palisades, advising that their health
coverage would be terminated the following day because Pali-
sades “reneged on its commitment to pay the increased contri-
butions,” and that “without an agreement providing for the
higher rate the Plan cannot continue your coverage.”
Shortly thereafter, Canino Sr. was told that the employees’
claims for hospital and prescription drug benefits were rejected
by the Union’s Plan since they were no longer covered by that
Plan. He then placed them on the Park View Towers benefit
plan which billed Palisades for the premiums.
According to affidavits given to the Board agent by employ-
ees Rufino (Claudio) Andia and Rafael Molina, Lopez told
them in September, 2004 that the Union would no longer repre-
sent them because Palisades would not sign the contract and
there were only two employees left in the unit. Lopez testified
that he told them that their health benefits would cease because
Palisades refused to sign the MOA, but denied telling them that
he would no longer represent them. This case is evidence that
the Union continues to represent and have an interest in the
employees of Palisades.

6 Oliva testified that she reviewed the MOA with Canino Sr. who
“hit the roof” when he saw the health benefits charges, and said that he
would tell Lopez that he could not afford those rates.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1380
4. The dissolution of Palisades and the establishment
of Park Maintenance
Canino Jr. died on September 24, 2004. Palisades’ last day of
operation was on December 31, 2004. Park Maintenance was
established and began operations the following day, January 1,
2005.
Upon the dissolution of Palisades, Canino Sr.’s accountant de-
termined that the value of that company was $76,000. Canino Sr.
personally purchased the value of Palisades, and inasmuch as
Canino Jr. was a 50% owner with his sister D’Alesandro, Canino
Sr. personally paid $38,000 to his son’s estate and $38,000 to his
daughter, who did not make any financial contribution to this
transaction simply because she was his daughter.
Canino Sr. and D’Alesandro became the new 50-percent
owners of Park Maintenance upon its establishment. Its officers
are president Canino Sr., treasurer D’Alesandro, and secretary
Oliva. It was stipulated that Oliva is an employee of Park View
Management Corp., and has not been employed separately by
either Palisades or Park Maintenance. Palisades operated from
Canino Jr.’s desk at Park View Towers, which desk later be-
came the office of Park Maintenance.
In about September, 2004, there were only three employees
of Palisades: Rafael Molina, Claudio Andia, and Donatila An-
dia. In that month, they ceased to be employed by that company
and Canino Sr. placed them on the payroll of Park View Tow-
ers. Thereafter, on January 1, 2005, Canino Sr. put them on the
payroll of Park Maintenance.
Canino Sr. and Oliva are responsible for hiring the building
service employees of Park Maintenance. The day-to-day front-
line supervisor of the porters is Carlos Rodriguez, who was an
employee of Park View Towers, and has not been employed
separately by Park Maintenance.
The payroll record of Park Maintenance establishes that on
January 1, 2005, the date that Park was established, it employed
six persons other than office workers: Claudio Andia, porter,
Donatila Andia, part-time cleaner, Rafael Molina, porter, Nel-
son Dominguez, porter, Rafael Merchan, painter, and supervi-
sor George Grafstein. Other unit employees, porter Jose Delcid
and painter Michael Muniz were hired in September and Octo-
ber, 2005, respectively.
Accordingly, as of January 1, 2005, of the five unit employ-
ees of Park, three had been employed by Palisades on Decem-
ber 31, 2004: Claudio Andia, Donatila Andia, and Rafael
Molina.
The classifications of the eight employees employed by Park
from January 1, 2005 to February 9, 2006, show that they
worked at duties substantially similar, if not identical to those
performed by Palisades’ employees: part-time cleaning, porter
and painter. Rafael Molina continued work as a porter, Claudio
Andia’s new classification was porter, and part-time employee
Donatila Andia continued as a cleaner.
Canino Sr. stated that he hires employees who work for Park
Maintenance who perform major renovation work in the apart-
ments which are about 30 years old. For example, in installing
new kitchens and bathrooms they perform substantial alteration
work including plumbing, tile work, carpentry, heating, rebuild-
ing walls and welding. However, the payroll records confirm
that employees of Park performed work in classifications which
indicate that they did not perform major alteration and renova-
tion work at Park View Towers: part-time cleaning, porter,
supervisor, and painter. Park Maintenance performs work for
companies other than Park View Towers, but Park View Tow-
ers is the biggest customer of Park Maintenance.
The equipment used by the Park Maintenance porters includ-
ing, but not limited to mops, brooms, shovels, plows, and sup-
plies is the same equipment as was used by Palisades’ porters,
and such equipment was purchased by, and is owned by Park
View Towers.
ANALYSIS AND DISCUSSION
I. AUTHORITY TO REACH AGREEMENT
The duty to bargain carries an obligation to appoint a nego-
tiator with genuine authority to carry on meaningful bargaining
regarding fundamental issues. Schmitz Food, 313 NLRB 554,
560 (1993). An agent assigned to negotiate a collective-
bargaining agreement is clothed with apparent authority to bind
the principal in the absence of clear notice to the contrary. If the
agent does not have authority to bind his principal, notice of
that must be clearly and unambiguously given. If the em-
ployer’s agent does not clearly communicate in advance the
existing condition precedent of his principal’s approval of any
agreement, the employer’s refusal to sign the agreement is
unlawful. Mid-Wilshire Health Care Center, 337 NLRB 72, 80
2001).
“Apparent authority results from a manifestation by the prin-
cipal to a third party that creates a reasonable basis for the latter
to believe that the principal has authorized the alleged agent to
perform the acts in question.” Sanitation Salvage Corp., 342
NLRB 449 (2004).
It is clear that Canino Jr. had apparent authority to bind Pali-
sades to the agreement he reached with Lopez. Canino Jr. was
the president and half owner of Palisades. Lopez had always
dealt with him in matters relating to the Union and the contract.
Such contact had been ongoing since 1996, a period of 8 years
prior to the current negotiations. Lopez and Canino Jr. had
negotiated and signed the last contract. Canino Sr. said that his
son signed that agreement because he wanted him to “take
over” and he wanted to “give him that authority so as to get
used to how to handle it.” In this respect, Palisades held Canino
Jr. out as its primary representative in dealings with the Union
generally, and in negotiating and signing contracts specifically,
which caused Lopez to reasonably believe that Canino Jr. con-
tinued to have the authority to enter into a collective-bargaining
agreement on its behalf. Sanitation Salvage, above at 451.
As to the 2004 negotiation, Lopez’ letter requesting bargain-
ing was sent to Canino Jr. who called, requesting an early start
to negotiations, Lopez’ demands were sent to Canino Jr. In this
regard, I note that Canino Sr. did not claim that he personally
received the Union’s demands. Accordingly, Canino Jr. re-
ceived and reviewed those demands on his own, and then bar-
gained with Lopez based on those demands. If Canino Sr. was
“overseeing” the negotiations as he claimed, he would have
reviewed the Union’s initial demands and immediately objected
to them. Clearly, Canino Sr. was not involved in the negotia-
tions until the MOA was sent for Palisades’ signature.
PARK MAINTENANCE 1381
Canino Jr. was the only representative for Palisades at the
April 27 negotiation session. He negotiated freely, agreeing and
refusing to agree to the Union’s demands. Following the bar-
gaining, Lopez sent the MOA to him.
Canino Sr.’s testimony is significant. He stated, as set forth
above, that he told Lopez at their August 6 meeting that his son
“agreed to something that he was not supposed to” because he
was having personal problems which resulted in a lack of con-
centration. Thus, Canino Sr. admitted that his son agreed to the
terms of a contract, but sought to negate such agreement by
saying that his son was distracted. Canino Sr. testified that his
son told Lopez that “we have a problem with this agreement.”
As set forth above, Canino Sr. apparently believed that agree-
ment had been reached between his son and Lopez, but that he
later had a “problem with this agreement” in that Canino Jr.
should not have agreed to the terms set forth therein.
I credit Lopez’ testimony that he was never told that the
MOA was subject to Canino’s review or approval. Oliva’s tes-
timony that she and Palmeri advised Lopez that Canino Sr. had
to approve the contract cannot be credited. First, Palmeri did
not testify. In addition, Oliva had limited knowledge of the
negotiations itself. For example, she did not know that substan-
tial negotiations had occurred on April 27 between Canino Jr.
and Lopez. Second, it appears that changes in the Palisades’
agreement would not have taken place on April 28 but for the
fact that the Overlook contract was negotiated that day, and
Canino Jr. wanted certain terms to be identical. Accordingly,
the evidence establishes that agreement was reached as to all
terms on April 27 when Oliva was not present, and that agreed-
upon changes—to the wages, amount of the employees’ contri-
bution to their health benefits, and the expiration date were
made the following day.
I accordingly find that at no time was any notice given to the
Union of any limitation of the authority of Canino Jr. to reach
final and binding agreement on the terms of a collective-
bargaining agreement. Palisades bears the consequences of the
failure to timely advise the Union that Canino Jr. lacked that
authority. I therefore conclude that Canino Jr. had apparent
authority to negotiate and agree to the contract which he
reached with Lopez.
II. THE REFUSAL TO EXECUTE THE CONTRACT
Section 8(d) of the Act requires the parties to a collective-
bargaining relationship, once they have reached agreement on
the terms of a collective-bargaining agreement, to execute that
agreement at the request of either party. H.J. Heinz Co. v.
NLRB, 311 U.S. 514 (1941). The question to be decided is
whether the parties reached complete and final agreement on all
material terms of the tentative agreement. If they did, Palisades’
refusal to execute a contract is a violation of the Act as an
unlawful refusal to bargain. If there was no agreement or
“meeting of the minds,” then it is not unlawful for an employer
to refuse to execute the written contract it received as the Board
has no authority to order an employer to execute an agreement
it has not accepted. H.K. Porter Co. v. NLRB, 397 U.S. 99
(1970). The General Counsel has the burden of proving that an
agreement has been reached. Crittenton Hospital, 343 NLRB
718 (2004). See Intermountain Rural Electric Assn., 309 NLRB
1189, 1192 (1992). Whether the parties have reached a “meet-
ing of the minds” is determined “not by parties’ subjective
inclinations, but by their intent as objectively manifested in
what they said to each other.” MK-Ferguson Co., 296 NLRB
776 fn. 2 (1988).
I have found above that Canino Jr. had full authority to reach
agreement on the terms of a successor contract with Lopez. I
also find that a full agreement was reached on April 27 which
was modified and agreed upon on April 28. Thus, I credit Lo-
pez’ testimony that at the conclusion of both days’ sessions, he
shook hands with Palisades’ representatives who acknowledged
that they had reached agreement. “Such conduct is a hallmark
indication that a binding agreement has been reached at the end
of negotiations.” Winward Teachers Assn., 346 NLRB 1148,
1150 (2006).
The MOA as presented by Lopez to Palisades by letter of
May 24 represented the entire agreement of the parties. I find
particularly relevant the facts that (a) the Palisades agreement,
especially the health benefits, was identical to that of Overlook
(b) that Canino Jr. was present during the negotiation of and
agreement to the Overlook agreement (c) the Overlook agree-
ment was signed immediately by that company and (d) that
Canino Sr. is a part-owner of Overlook. These facts present a
strong argument that the Palisades’ terms, which are the same
as Overlook’s were finally agreed to by Canino Jr. on April 28.
As set forth above, I cannot credit Oliva’s testimony that she
told Lopez that any agreement reached was subject to the ap-
proval of Canino Sr.
I cannot credit Canino Sr.’s testimony that Lopez told him in
late May that the MOA he sent was only his “wish list.” First,
Lopez denied saying that. In addition, Lopez had already sent
his “wish list”—in the form of his demands—2 months earlier,
on March 31. This “wish list” was later the subject of bargain-
ing and agreement. I cannot accept Canino Sr.’s testimony that
Lopez would call the MOA that had been the culmination of 2
days of bargaining a “wish list” nearly 2 1/2 months after Lo-
pez sent the MOA to Canino Jr. for signature.
I further discredit Canino Sr.’s testimony for the following
reasons. Canino Sr. testified that his son called Lopez 2 or 3
days after the April 27 meeting, and told him that he had to
meet with his father. Incredibly, Canino Sr. testified that not
having heard from or met with Lopez thereafter, he called Lo-
pez in early May and asked to meet, and they arranged a meet-
ing for August 6. Clearly, if Canino Jr. called Lopez on April
29 or April 30, how could Canino Sr. legitimately complain to
Lopez when he called in early May that he never called or came
to see him. According to Canino Sr.’s testimony, his son had
just made the call to Lopez.
It is more logical, as Lopez testified, that not having heard
from Palisades after the MOA was sent in late May, he called
Canino Jr. in July, and a meeting was arranged for August 6. It
is not realistic that Canino Sr. would have called in early May
and that a meeting would not be scheduled for 3 months, par-
ticularly since the contract was due to expire on May 31. Thus,
consistent with the evidence, I find that Palisades did not object
to the MOA until Lopez called in July, contradicting Canino
Sr.’s testimony that he immediately challenged it in early May.
Further, Canino Sr. testified that he sent a letter to Lopez
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1382
immediately after speaking to him in early May, but the letter
outlining his disagreement with the MOA was not sent until he
met with Lopez on August 6, 3 months later. He could not have
sent the letter in response to Lopez’ alleged “wish list,” but
instead it was sent as an outright rejection of the MOA.
I accordingly find and conclude that Palisades and the Union
reached a full and complete agreement on all material terms of
a successor agreement on April 27 and 28, and that Palisades
failed and refused to execute the agreement when it was ten-
dered in late May. Such a refusal violated the Act.
III. THE ALLEGED UNILATERAL CHANGE
The complaint alleges and the answer admits that since Sep-
tember, 2004, Palisades transferred unit employees from its
health plan to the health plan maintained by Park View Towers, a
mandatory subject of bargaining, without the Union’s consent.
As set forth above, upon the failure of Palisades to execute
the successor agreement, the Union’s Benefit Plan terminated
its coverage of Palisades’ two employees. Canino Sr. then
placed them on the Park View Towers’ benefit plan.
An employer is required to bargain with a union which
represents its employees regarding a change in health care
plans. If it does not do so, the employer violates Section 8(a)(5)
of the Act. Larry Geweke Ford, 344 NLRB 628, 628 (2005).
The Respondents defend their actions by arguing that (a)
they sought to provide the employees with coverage since the
Union’s Plan terminated them and (b) they had no obligation to
bargain with the Union since the Union allegedly refused to
represent the employees.
First, the effort of Park View Towers in transferring Pali-
sades’ employees to its benefit plan was laudable, but neverthe-
less unlawful. It could have offered to bargain with the Union
concerning this change and explained its reasoning in doing so.
This was not done. Second, as set forth above, the affidavits of
employees Claudio Andia and Rafael Molina stated that Lopez
told them that the Union would no longer represent them be-
cause Palisades would not sign the contract and there were only
two employees left in the unit. Lopez denied saying that. I
credit the testimony of Lopez, who stated that the Union repre-
sents shops having one or two employees. In addition, the affi-
davits were given only after Palisades unlawfully refused to
execute the successor contract as set forth below. Palisades
therefore could not lawfully refuse to bargain with the Union
even assuming the two employees no longer desired its repre-
sentation.
In addition, the transfer would not have been necessary if
Palisades had executed the MOA instead of unlawfully refusing
to do so.
I accordingly find and conclude that by transferring unit em-
ployees from the health plan maintained between Palisades and the
Union’s Benefit Plan to the plan maintained by Park View Towers
without offering to bargain with the Union and without the Union’s
consent, Palisades violated Section 8(a)(5) of the Act.
IV. THE WITHDRAWAL OF RECOGNITION FROM THE UNION
The complaint alleges that Park View Towers and Park
Maintenance unlawfully withdrew recognition of the Union as
the exclusive collective-bargaining representative of the unit
employees. The answer acknowledges that those entities never
recognized the Union as the representative for their employees,
and defends their actions by asserting that the Union abandoned
its representation of the employees. The answer also asserts that
the employees filed a petition for a decertification election be-
cause the Union failed to cover them with medical insurance,
and that they notified the Respondents that they no longer wish
to be represented by the Union.
It is well established that “an employer may not withdraw
recognition from a union while there are unremedied unfair
labor practices tending to cause employees to become disaf-
fected from the union.” Penn Tank Lines, Inc., 336 NLRB
1066, 1067 (2001). The Respondents may not avoid their duty
to bargain where their own violations of the Act caused the
union’s loss of majority support. See, e.g., NLRB v. Williams
Enterprises, 50 F.3rd 1280, 1288 (4th Cir. 1995).
The following factors are considered in determining whether
the Respondents’ unfair labor practices caused the loss of sup-
port among the unit employees: (a) the length of time between
the unfair labor practices and the withdrawal of recognition (b)
the nature of the violations, including the possibility of a detri-
mental or lasting effect on employees (c) the tendency of the
violation to cause employee disaffection and (d) the effect of
the unlawful conduct on employees’ morale, organizational
activities and membership in the union. Master Slack Corp.,
271 NLRB 78, 84 (1984).
Here, there is a direct causal relationship between the Re-
spondents’ unfair labor practices and the expression of em-
ployee dissatisfaction with the Union which apparently caused
the Respondents to withdraw recognition.
With regard to the first factor, Palisades’ unlawful refusal to
sign the MOA resulted in the Union’s Fund terminating bene-
fits to the unit employees and rejecting their hospital and drug
claims. The employees then became disinterested in the Union
and filed a decertification petition, and the Respondents refused
to recognize the Union. There is no evidence of employee dis-
satisfaction with the Union prior to Palisades’ refusal to sign
the MOA. One event followed another in short order. Regard-
ing the remaining three factors, the refusal to sign the MOA
which resulted in the termination of health benefits is of great
concern to employees as exhibited here when employees’ bene-
fits claims were rejected. The Respondents’ unlawful conduct
undoubtedly caused employee dissatisfaction with the Union as
their bargaining representative, and led to a loss of support
among the employees which caused the Respondents to with-
draw recognition from it.
I accordingly find that the Respondents were not entitled to
withdraw recognition from the Union because it was their un-
remedied unfair labor practices which caused the unit employ-
ees to become disaffected from the union. Broadway Volks-
wagen, 342 NLRB 1244, 1247–1248 (2004).
V. ALTER EGO, SUCCESSOR AND SINGLE EMPLOYER STATUS
OF THE RESPONDENTS
The complaint alleges that Park Maintenance is a successor
to Palisades Maintenance, and that both enterprises were estab-
lished by Park View Towers as a subordinate instrument to and
a disguised continuation of Park View Towers, and that all
PARK MAINTENANCE 1383
three are alter egos and a single employer.
A. Alter Ego Status of Palisades and Park Maintenance
In Advance Electric, 268 NLRB 1001, 1002 (1984), the
Board set forth the standards to be applied in determining
whether two presumably separate employers are alter egos: (a)
the two enterprises have “substantially identical” management,
business purpose, operation, equipment, customers, supervision
and ownership. The most important factor is centralized control
of labor relations. Superior Export Packing Co., 284 NLRB
1169, 1175 (1987); J.M. Tanaka Construction v. NLRB, 675
F.2d 1029, 1034 (9th Cir. 1982).
Here, the evidence compels the conclusion that Park Mainte-
nance is the alter ego of Palisades. The management of both
companies was substantially identical. D’Alesandro, the brother
of Canino Jr. and daughter of Canino Sr. was the treasurer of
both companies. Oliva, the cousin of D’Alesandro, was the cor-
porate secretary of both, and was employed by Park View Man-
agement Corp. She had not been employed separately by either
Palisades or Park Maintenance. Canino Jr. was the president of
Palisades, and upon his death, his father, Canino Sr. became the
president of Park, and co-owner of that company with
D’Alesandro. Although Canino Sr. had no named position in
Palisades, he testified that he formed Palisades in part to give his
son “something to do,” and as co-owner of Park View Towers, he
could “fire” Palisades if its contracts were too expensive.
Notwithstanding that Park View Towers was not the sole
customer of Park View Towers as Palisades was, nevertheless
Park View Towers was Park’s biggest customer. Despite this
difference, the business purpose of both Palisades and Park
Maintenance was identical—the performance of cleaning and
maintenance services at the Park View Towers apartment com-
plex. A & P Brush Mfg. Corp., 323 NLRB 303, 308 (1997).
The employees of both companies performed such duties. Al-
though the Respondents argue that Park Maintenance performs
renovation projects in the apartments which work Palisades did
not do, it appears that the classifications of the employees em-
ployed by Park remain the same as those who worked for Pali-
sades—porters, cleaners, painter, and that they perform the
same type of work for Park as they had for Palisades.
The day-to-day frontline supervisor of the cleaning personnel
at Palisades and at Park was Carlos Rodriguez who was em-
ployed by Park View Towers, and was not employed separately
by Palisades or Park Maintenance. The equipment used by Park
Maintenance is the same equipment formerly used by Palisades
Maintenance employees, and such equipment was purchased
and is owned by Park View Towers.
Regarding ownership, D’Alesandro owned 50 percent of
Palisades and Park Maintenance. Canino Jr. owned 50 percent
of Palisades with his sister, and when Park Maintenance was
formed, D’Alesandro became the 50 percent owner with her
father, Canino, Sr. The Board has held that “where members of
the same family are the owners of two nominally distinct enti-
ties, which are otherwise substantially the same, ownership and
control of both of the entities is considered substantially identi-
cal” and that such ownership militates in favor of a finding of
alter-ego status. Cofab, Inc., 322 NLRB 162, 163 (1996).
Regarding the centralized control of labor relations, the hire
of Palisades’ employees was done by Canino Jr., Canino Sr.,
and Oliva. The hire of Park Maintenance’s employees was done
by Canino Sr. and Oliva. Rodriguez was the supervisor of the
employees of both companies. In addition, Canino Sr. testified
that upon the dissolution of Palisades, he placed its employees
on the payroll and benefits plan of Park View Towers, and
thereafter, he put them on the payroll of Park Maintenance.
An intent to evade responsibilities under the Act is an addi-
tional factor that must be considered, but a finding of antiunion
animus is not required in order to find an alter ego relationship.
SRC Painting, LLC, 346 NLRB 707, 720 (2006). Here, it is
clear that Palisades was dissolved upon the death of Canino Jr.
in order to settle his estate, and that Park Maintenance was
formed in order to continue to provide maintenance services for
Park View Towers. Accordingly, I cannot find that the purpose
behind the formation of Park Maintenance was to evade its
responsibilities under the Act. Nevertheless, it is clear that Park
seized upon this opportunity to refuse to recognize its obliga-
tions as an alter ego, successor and single employer. A & P
Brush, above at 309; Martin Bush Iron & Metal, 329 NLRB
124, 125 (1999). Thus, from its inception, Park was intended to
and did operate as a nonunion company. Accordingly, although
there is no evidence to find that Park Maintenance was created
to evade its responsibilities under the Act, I do find that its
desire to operate nonunion was coextensive with its establish-
ment. Even if Park had not been formed for the purpose of
avoiding its bargaining obligation with the Union, that factor is
not determinative in making a finding that Park is the alter ego
of Palisades. Fallon-Williams, Inc., 336 NLRB 602, 603
(2001).
The above evidence strongly supports a finding that Pali-
sades and Park Maintenance are alter egos, and I so find. As the
alter ego of Palisades, Park Maintenance must execute the
memorandum of agreement reached between Palisades Mainte-
nance and the Union.
B. Single Employer Status of Palisades, Park Maintenance
and Park View Towers
The criteria for determining single employer status are simi-
lar to those for alter ego status, set forth above. A single em-
ployer relationship exists when two or more employing entities
are in reality a single-integrated enterprise. Four criteria deter-
mine the existence of single employer status: common owner-
ship, common management, functional interrelationship of
operations and centralized control of labor relations. Not all of
those criteria need to be present to establish single employer
status, and such status depends on all the circumstance of the
case and is characterized by the absence of an “arm’s-length
relationship among unintegrated companies.” The most impor-
tant factor is centralized control over labor relations. Mercy
Hospital of Buffalo, 336 NLRB 1282, 1284 (2001).
Nothing more need be added to the above facts to find that
the three entities, Palisades, Park Maintenance, and Park View
Towers constitute a single employer. Specifically, Canino Sr., a
general partner of Park View Towers, formed and funded Pali-
sades and then dissolved it, and became the president and 50
percent owner with his daughter in Park Maintenance. Both
Palisades and Park Maintenance had their office on the prem-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1384
ises of Park View Towers. Cannelton Industries, 339 NLRB
996 (2003). Park View Towers was the sole customer of Pali-
sades, and the major customer of Park Maintenance. The
equipment used by Palisades and Park Maintenance was the
same, and was purchased and is owned by Park View Towers.
Centralized control of labor relations is seen in the fact that
Carlos Rodriguez was the supervisor of the employees of Pali-
sades and Park Maintenance, and was employed by Park View
Towers. Further, Canino Sr. was actively involved in key labor
relations decisions. He transferred all the employees of Pali-
sades to the payroll of Park View Towers, and then to the pay-
roll of Park Maintenance, and placed them on the benefits plan
of the latter two companies. One employee of Park View Tow-
ers, Rafael Merchan, was transferred from the payroll of Park
View Towers to that of Park Maintenance. In addition, Canino
Sr., Canino Jr., and Oliva hired Palisades’ employees, and Can-
ino Sr. and Oliva hired the employees of Park Maintenance.
Significant evidence of the centralized control of labor rela-
tions between the three companies is seen by the events imme-
diately prior to and at the August 6 meeting. Canino Sr. “hit the
roof” at the health benefits amounts agreed to by his son, telling
Oliva that “he” could not afford those rates. Although not hav-
ing an ownership interest or official position in Palisades, Can-
ino Sr. sought to renegotiate the MOA which had already been
negotiated and agreed to by his son. Canino Sr. “totally dis-
agreed” with the terms of the MOA, and later signed a letter
headed “Palisades Maintenance” setting forth what Palisades
would agree to. Thus, Canino Sr. attempted to abrogate the
agreement that was already made, and indeed it was his inter-
vention which caused Palisades not to sign the MOA. Accord-
ingly, Canino Sr.’s actions controlled the terms under which
Palisades’ employees would work.
In addition, there is a distinct absence of an arm’s length re-
lationship among the three entities based on the above evidence
above and because all three are family operations. I accordingly
find and conclude that Park View Towers is and has been a
single employer with Palisades and Park Maintenance.
As a single employer, Respondents Park Maintenance and
Park View Towers will be held equally responsible for any
unfair labor practices found to have been committed in this
proceeding and will be held jointly and severally liable to rem-
edy those violations. Wyandanch Engine Rebuilders, Inc., 328
NLRB 866, 867 (1999).
C. Park Maintenance is the Successor of Palisades
The complaint alleges that Park Maintenance is the successor
of Palisades. The test for determining successorship under
NLRB v. Burns Security Services, 406 U.S. 272 (1972) is well
established, and set forth in Fall River Dyeing Corp. v. NLRB,
482 U.S. 27, 41–43 (1987):
An employer, generally, succeeds to the collective-bargaining
obligation of a predecessor if a majority of its employees,
consisting of a “substantial and representative complement,”
in an appropriate bargaining unit are former employees of the
predecessor and if the similarities between the two operations
manifest a substantial continuity between the enterprises.
Three employees were employed by Palisades when it
ceased operating on December 31, 2004. They were Claudio
Andia, landscaper, Donatila Andia, part-time cleaner, and
Rafael Molina, porter.
The payroll record of Park Maintenance establishes that on
January 1, 2005, the date that Park was established, it employed
five unit employees: Claudio Andia, porter, Donatila Andia,
part-time cleaner, Rafael Molina, porter, Nelson Dominguez,
porter, and Rafael Merchan, a painter who had been on the
payroll of Park View Towers before being transferred to Park.
The payroll record also lists “supervisor” George Grafstein,
who had been employed since August 1997, and is listed as a
salaried employee. I have excluded Grafstein from inclusion in
the unit as a supervisor.
Accordingly, as of January 1, 2005, of the five unit employ-
ees of Park, three had been employed by Palisades on Decem-
ber 31, 2004: Claudio Andia, Donatila Andia, and Rafael
Molina.
The classifications of the employees employed by Park from
January 1, 2005 to February 9, 2006, show that they worked at
duties substantially similar to those performed by Palisades’
employees: part-time cleaning, porter and painter. Claudio An-
dia’s new classification was porter, part-time employee Do-
natila Andia continued as a cleaner, and Rafael Molina contin-
ued work as a porter.
In addition, two other employees were hired 9 months after
Park was established. They are Jose Delcid, porter, hired on
September 19, 2005 and Michael Muniz, porter, who was hired
on October 19, 2005 and quit 8 days later.
As set forth above, the equipment used by the Park Mainte-
nance porters including, but not limited to mops, brooms, shov-
els, plows, and supplies is the same equipment as was used by
Palisades’ porters, and such equipment was purchased by, and
is owned by Park View Towers. Park Maintenance operates out
of the same location as did Palisades.
Although Canino Sr. testified that he hired employees who
work for Park Maintenance in performing major renovation
work in the apartments which are about 30 years old, it does not
appear that the five unit employees set forth above did that
work. Their job classifications establish that they did only tradi-
tional cleaning and portering work, and that they, and others
with similar job descriptions who were hired later, were the
only workers employed for the first year of Park’s existence.7
This analysis with respect to substantial continuity must be
taken from the perspective of the employees—whether the em-
ployees who have been retained will understandably view their
job situations as essentially unaltered. Tree-Free Fiber Co., 328
NLRB 389 (1999). From the perspective of the three Palisades
employees who became employed by Park Maintenance on Janu-
ary 1, 2005, it is apparent that they performed the same cleaning
duties at the same location using the same equipment and clean-
ing supplies. In addition, their immediate supervisor, Rodriguez
remained the same, and there was no hiatus in their employment.
The totality of the circumstances establishes that Park Mainte-
nance’s operation was substantially similar to that of Palisades,
and that from the point of view of the unit employees, there was

7 The payroll record of Park Maintenance received in evidence cov-
ered the period January 1, 2005 to February 9, 2006. GC Exh. 21.
PARK MAINTENANCE 1385
substantial continuity in the employing entity.
Accordingly, inasmuch as a majority of employees in the
unit had previously been employed by Palisades, I find that the
Union has been the exclusive collective-bargaining representa-
tive of those employees. By refusing to recognize the Union,
Park Maintenance violated Section 8(a)(1) and (5) of the Act.
North Hills Office Services, 342 NLRB 73, 80 (2004).
As the alter ego of and single employer with Palisades, Park
Maintenance is bound by the collective-bargaining agreement
entered into between Palisades and the Union. Cornerstone
Masonry Constructors, LLC, 343 NLRB 971, 973 (2004); Ad-
vance Electric, 268 NLRB 1001, 1004 (1984).
CONCLUSIONS OF LAW
1. Respondents Palisades Maintenance, Park Maintenance
and Park View Towers are employers within the meaning of
Section 2(2), (6) and (7) of the Act.
2. Respondent Park Maintenance is the alter ego and succes-
sor of Respondent Palisades Maintenance.
3. Respondents Park View Towers, Park Maintenance and
Palisades Maintenance constitute a single employer.
4. Local 11, International Brotherhood of Teamsters, AFL–
CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
5. At all material times, the Union has been, and is, the ex-
clusive representative of the employees in the following appro-
priate collective-bargaining unit within the meaning of Section
9(a) of the Act:
All full-time and regular part-time building service employees
employed in the building known as Park View Towers, ex-
cluding all office clerical employees, professional employees,
guards and supervisors as defined in the Act.
6. By failing and refusing to recognize Local 11 since Au-
gust 6, 2004, the Respondents have violated Section 8(a)(1) and
(5) of the Act.
7. By failing and refusing to sign the memorandum of
agreement which is effective from June 1, 2004 to December
31, 2007, the Respondents have violated Section 8(a)(1) and (5)
of the Act.
8. By failing and refusing to apply the terms of the contract
set forth above to the unit employees, the Respondents have
violated Section 8(a)(1) and (5) of the Act.
9. By transferring unit employees from the health plan main-
tained between Palisades and the Union’s Benefit Plan to the
plan maintained by Park View Towers without offering to bar-
gain with the Union and without the Union’s consent, the Re-
spondents violated Section 8(a)(5) of the Act.
10. By unlawfully withdrawing recognition from the Union,
the Respondents have violated Section 8(a)(1) and (5) of the
Act.
11. The unfair labor practices set forth above are unfair labor
practices within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Inasmuch as I have found that the Respondents have unlaw-
fully withdrawn recognition from the Union, and that Park
Maintenance is the alter ego of Palisades Maintenance, the new
entity, Park Maintenance is required to honor the memorandum
of agreement reached between Palisades and the Union. Martin
Bush Iron & Metal, 329 NLRB 124, 125 (1999). Accordingly,
Respondent Park Maintenance must, upon request by the Un-
ion, execute the memorandum of agreement agreed upon on
April 28, 2004, and abide by and give full force and effect to
the memorandum of agreement which runs from June 1, 2004
to December 31, 2007.
Respondents Park View Towers and Park Maintenance must
jointly and severally make whole the unit employees for any
loss of earnings and other benefits they may have suffered as a
result of the Respondents’ failure to comply with the above
agreement since June 1, 2004, in the manner set forth in Ogle
Protection Service, 183 NLRB 682, 683 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). The Respon-
dents shall make all contractually-required contributions to the
Union’s funds that they have failed to make since June 1, 2004
including any additional amounts due to the funds on behalf of
the unit employees in accordance with Merryweather Optical
Co., 240 NLRB 1213 (1979). The Respondents shall reimburse
unit employees for any expenses ensuing from its failure to
make the required contributions, as set forth in Kraft Plumbing
& Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940
(9th Cir. 1981), such amounts to be computed in the manner set
forth in Ogle Protection Service, above, with interest as pre-
scribed in New Horizons for the Retarded, above.
With regard to the Respondents’ unilateral change in trans-
ferring the unit employees from the Northern New Jersey
Teamsters Benefit Plan to the Respondents’ Plan, the Respon-
dents shall be ordered to rescind that unilateral change, and
upon the execution of the memorandum of agreement, the unit
employees shall be returned to the Northern New Jersey Team-
sters Benefit Plan.
[Recommended Order omitted from publication.]