Pms Corp.

National Labor Relations Board - Board Decisions

Feb 5, 1987

282 N.L.R.B. 1012 (N.L.R.B. 1987)

1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mar Del Plata Condominium Association , Inc.; and
Property Management Services Corporation,
d/b/a PMS Corporation and Hotel, Motel,
Restaurant & Hi-Rise Employees & Bartenders
Union, Local 355, Hotel & Restaurant Employ-
ees' & Bartenders' International Union, AFL-
CIO. Case 12-CA-10621
5 February 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 19 July 1984 Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent, Mar Del Plata Condominium Associa-
tion, Inc., filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
a supporting brief.
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, i and
conclusions2 and to adopt the recommended
Order.3
i We correct the following inadvertent errors of the judge (1) in sec.
I, par. 4, the sentence beginning "The inference is warranted, and I so
find, that such regards . " is corrected to read "The inference is war-
ranted, and I so find, that such records ", (2) in sec. IV,A, the
heading beginning "The discharge of Randy Garcia" is corrected to re-
flect that "Rudy Garcia" was discharged; (3) in sec IV,B, par 1, the sen-
tence beginning "In addition Rudy Garcia, who was subsequently re-
placed by `handyman' Rogelio Gonzalez . ." is corrected to reflect
that `handyman' Rogelio "Gomez" replaced Garcia; and (4) in sec IV,B,
par 5 the sentence "However he corroborated or failed to deny much of
Portuando's testimony" is corrected to reflect that Schwab's testimony
was corroborated or not denied.
2 The Board recently affirmed assertion of jurisdiction over condomin-
iums in Imperial House Condominium, 279 NLRB 1225 (1986), Although
Member Johansen dissented in that case, he considers himself bound here
by Imperial House, and joins the panel in asserting jurisdiction
a Contrary to the judge, we find that Respondent PMS Corporation,
like Respondent Mar Del Plata Condominium Association, violated Sec.
8(a)(3) and (1) by discharging Rudy Garcia on 27 January 1983 and Sec.
8(a)(1) by coercing, interrogating, and threatening employees Juan
Ramon Gonzalez, Francisco Enrique Valdez, Manuel ("Monolo") Gonza-
lez, Antonio Leyva, Jorge Del Vecchio, and Luis Leiva in January and
February 1983 Although these 8(a)(l) and (3) violations occurred more
than 6 months before Respondent PMS was named as a charged party,
we agree with the General Counsel that Respondent PMS nonetheless is
liable Thus, the liability of Respondent PMS cannot be considered sepa-
rate and apart from that of its joint employer Mar Del Plata. As we
stated in Ref Chem Co, 169 NLRB 376, 380 (1968), enf. denied on other
grounds 418 F 2d 127 (5th Cir 1969): "As joint employers, each is re-
sponsible for the conduct of the other and whatever unlawful practices
are engaged in by the one must be deemed to have been "committed by
both . . [T]he nature of the joint-employer relationship is such that
the charge against [one joint employer] also constitute[s] a charge against
[the other] " Accord- Photo Sonics Inc., 254 NLRB 567, 570 fn. 2 (1981),
enfd 678 F.2d 121 (9th Cir. 1982) Inasmuch as these 8(a)(1) and (3)
charges were timely filed against Respondent Mar Del Plata, we find that
its joint employer, Respondent PMS, similarly is liable for these unfair
labor practices.
ORDER
The National Labor Relations Board adopts the
recommended ,Order of the administrative law
judge and orders that the Respondents, Mar Del
Plata Condominium Association, Inc., Miami
Beach, Florida, and Property Management Serv-
ices Corporation, d/b/a PMS Corporation, Miami,
Florida, their officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Although we have reversed these 8(a)(1) and (3) findings, it is unneces-
sary to modify the judge's Order, which already holds both PMS and
Mar Del Plata liable for these violations.
Eduardo Soto, Esq. and Farrell Tate, Esq., for the General
Counsel.
George L. Combaluzier, Esq., of Miami, Florida, for Re-
spondents.
Robert Schwab, Esq., of Miami Beach, Florida, and Rich-
ard Siwicka, Esq., of Miami, Florida, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case
was heard ,at Miami, Florida, on December 5 through 8,
1983, and January 9, 1984. The charge and amended
charge were filed on March 17 and August 18, 1983, re-
spectively,,by Hotel, Motel, Restaurant and Hi-Rise Em-
ployees and Bartenders Union, Local 355, Hotel and
Restaurant, Employees' and Bartenders' International
Union, AFL-CIO (the Union). The complaint, which
issued on ,r lay 2, 1983, and was amended on September
9, 1983,, and at the hearing, alleges that Mar Del Plata
Condominium Association, Inc. and Property Manage-
ment Services Corporation, d/b/a PMS Corporation (al-
leged) joint, employers (Mar Del Plata and PMS and col-
lectively Respondent), violated Section 8(a)(1), (3), and
(5) of the National Labor Relations Act. The gravamen
of the complaint in sum is that Respondents allegedly: (1)
properly recognized the Union as the collective -bargain-
ing representative of their employees in an appropriate
unit , but subsequently failed and refused to furnish the
Union with the names, job classifications, and wage rates
of their employees, withdrew recognition from the
Union, and subcontracted out the work of the unit em-
ployees; (2) engaged in coercive interrogation and
threats of reprisal, promises of benefit and coercive state-
ments in order to discourage employee support for the
Union; and (3) discharged employee Rudy Garcia on
January 27, 1983, and employees Jose Veliz, Rafael
Leyva, Luis Leiva, Robert Hibbs, Jorge Del Vecchio,
Manuel Gonzalez, Gilberto Rodriguez, Francisco Enri-
que, Antonio A. Leyva, Dean E. Duncan, Alberto Perez,
and Juan Ramon Gonzalez on March 11, 1983,1- because
of their support for the Union and in order to discourage
i All dates herein are for the period from July 1, 1982, through June
30, 1983, unless otherwise indicated.
282 NLRB No. 131
MAR DEL PLATA CONDOMINIUM 1013
employee support for the Union. The Respondents by
their respective answers deny i he commission of the al-
leged unfair labor practices, Respondents specifically
assert that Mar Del Plata is not subject to the jurisdic-
tion of the Board. PMS further asserts that by reason of
such lack of jurisdiction, the Board does not have juris-
diction over PMS in the present case, and that those alle-
gations of the complaint pertaining to alleged unfair
labor practices occurring more than 6 months prior to
filing and service of the amended charge are time-barred
by Section 10(b) of the Act. (The original charge named
only Mar Del Plata as a Respondent.)
All parties were afforded full opportunity to partici-
pate, to present relevant evidence, to argue orally, and to
file briefs. The General Counsel and Respondents each
filed a brief. On the entire record in this case2 and from
my observation of the demeanor of the witnesses, and
having considered the briefs and arguments of the par-
ties, I make the following
FINDINGS OF FACT
1. JURISDICTION WITH RESPECT TO RESPONDENTS
PMS, a Florida corporation with an office and place
of business in Miami, Florida, is and has been at all times
material engaged in the property management business.
PMS admits, and I so find, that in the course of its busi-
ness operations it annually purchases and receives at its
Miami facility products, goods, and materials valued in
excess of $50,000 directly from points outside the 'State
of Florida. Julio Gonzalez-Portuando, who is the presi-
dent and sole stockholder of PMS, testified in sum that
PMS has had and continues to have its own employees.3
Portuando's secretary, Christian Mahoney, who was pre-
sented as Respondents' witness in this proceeding, identi-
fied herself as an employee of PMS. Therefore, regard-
less' of whether PMS was or is the sole or joint employer
of employees working at Mar Del Plata, I find that PMS
is and was at all times material an ' employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
Mar Del Plata is and has been at all times material, a
not-for-profit Florida corporation (also known as an "As-
sociation") organized and existing under the Florida
Condominium Act (Chap. 718, Laws of Florida). Mar
Del Plata maintains an office at a residential condomini-
um building in Miami Beach, Florida. The building con-
tains 151 dwelling units, and the owner of each unit is by
reason of such ownership a member of the Association
and shareholder in the condominium property, Some of
the units are rented by the owner. Some of the owners
are Latin-American nationals. The, Association, i.e., the
corporate entity, is under law and under its Declaration
2 Certain errors in the transcript has been noted and corrected
3 Proper Spanish usage would require that I refer to Gonzalez-Por-
tuando as "Gonzalez." However, the record evidence indicates that at
times material there were three employees named Gonzalez working at
Mar Del Plata. Therefore, in order to avoid confusion I shall (with due
apology) refer to Gonzalez-Portuando as "Portuando." As for the three
employees, I shall refer to Juan Ramon Gonzalez as "porter Gonzalez,"
Manuel Gonzalez by his nickname "Monolo," and Rogeho Gonzalez as
"bartender Gonzalez," unless the context clearly indicates to whom I am
referring
of Condominium and By-Laws, responsible for the man-
agement, maintenance , and operation of the "common
elements" -of -the condominium property, i.e., nomunit
property, and the cost of same is a common expense.
The Association may contract out the performance of
such functions. The affairs of the Association are man-
aged by its board of directors (elected by the members at
an annual meeting), and administered by its officers, who
are chosen by the board. The board submits an annual
budget (including assessments- against owners to defray
the costs and expenses of the condominium) to, the mem-
bership for their approval. Nearly all of Mar Del Plata's
income is derived from assessments . Mar Del Plata's
income statement for the calendar year 1982 shows
"total revenue from operations" of $637„067,21 of which
$631,068.24 consisted of "residential assessment income."
Mar Del Plata's proposed budget for 1983, which was
approved and adopted on December 23, 1982, projected
total assessment income in the same amount. There was
no increase in assessment . The 1983 budget provided
$135,600 for salaries and, wages. The General Counsel
and Mar Del Plata stipulated that during 1982 Mar Del
Plata paid $165,000 to Florida Power and Light Compa-
ny for electricity, and paid $48,000 to Peoples Gas
System for gas services, and that both companies are en-
gaged in commerce within the meaning of the Act. The
General Counsel and Mar Del Plata further stipulated
that during 1982 Mar Del Plata purchased and received
at the condominium goods and materials worth $5000
from Sam Hamilton, Inc. of Miami, Florida, which in
turn received those goods and materials directly from
outside the State of Florida. Mar Del Plata does not dis-
pute (through the testimony of its vice president and di-
rector, Lilia Marroquin, and its director, Margaretta Gia-
mattei) that during the period from January 1 through
March 11, when the alleged unfair labor practices took
place,, it employed service employees at the condomini-
um.
I find that at all times material Mar Del Plata was an
employer within the meaning of Section 2(2), (6), and (7)
of the Act, and that it would effectuate the purpose of
the' Act for the Board to assert its jurisdiction in this
case. In 30-Sutton Plate Corp., 240 NLRB 752 (1979), the
Board held that it would assert its jurisdiction over resi-
dental cooperative and condominiums. The Board specif_
ically held (at 753):
Today's cooperatives and condominiums are in-
volved in commercial activity on a large scale. Al-
though they may very in size and in the types of
services offered to occupants, many provide such
amenities as reception and answering services, 24-
hour security and valet services, laundry and stor-
age space, covered, parking areas, medical facilities
and day-care centers, swimming pools, tennis,
courts, golf courses, saunas, playgrounds, and func-
tion and recreation rooms. Thus a typical enterprise
may hire more than a score of employees, who per-
form a variety of functions. For these employees,
the cooperative or condominium must meet a pay-
roll which may include tax, insurance, and work-
men's compensation payments. The enterprise will
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also typically purchase maintenance supplies and
energy for heating and cooling and make payments
covering mortgage costs, sewage and water fees,
and real estate taxes. Sometimes the cooperative or
condominium hires an agent to manage the property
or contracts out certain maintenance and support
tasks, thereby utilizing outside profitmaking enter-
prises. All these activities indicate that cooperatives
and condominiums are "engaged in the business of
concerted home management and maintenance. Fur-
thermore, this business impacts on interstate com-
merce, for it is dependent upon the free flow of sup-
plies and labor and in this sense necessarily involves
other institutions which operate in interstate com-
merce.
The Board's -discussion of present day condominiums is
substantially descriptive of the operations of Mar Del
Plata. Nevertheless, Respondents contend that the Board
should reconsider and reverse 30 Sutton Place and revert
to its prior policy of declining to assert jurisdiction over
residential condominiums, which policy was set forth in
Point East Condominium Owners Assn., 193 NLRB 6
(1971). Respondents point out that in 30 Sutton Place,
which was a representation proceeding, both the employ-
er and the petitioning union requested the Board to
assert its jurisdiction. However, the Board did not base
its decision on such consent. Rather, the Board made an
independent evaluation of the situation and, on the basis
of its own analysis, made a policy determination that the
Board should assert jurisdiction over residential coopera-
tives and condominiums. In support of their position, Re-
spondent presents a variety of arguments, some of which
are inconsistent. On the one hand, Respondents argue
(Br. 23) that the employees involved were employed "in
the domestic services of the families who live at Mar del
Plata" and thereby exempt from coverage as employees
under Section 2(3) of the Act. On the other hand, Re-
spondents argue (Br. 25) that Mar Del Plata is a political
subdivision of the State of Florida, and therefore exempt
from coverage under the Act. Both arguments are incor-
rect. The first argument was specifically rejected by the
Board in 30 Sutton Place (240 NLRB at 753 fn. 6).
Indeed, both the Florida Condominium Act and the con-
dominium documents discussed above, repeatedly em-
phasize that the corporate entity, and not the individual
owners, are responsible for the maintenance, manage-
ment, and operation of the common elements of the con-
dominium. In the present case, the employees involved
were engaged in performing service work in connection
with those common elements. Condominiums in general
and Mar Del Plata in particular also fail to meet the defi-
nition of a political subdivision as set forth in the lead
case of NLRB v, Natural Gas Utility District of Hawkins
County, 402 U.S. 600, 604, 605 (1971). In that case, the
Supreme Court held that the statutory exemption for po-
litical subdivisions is limited to entities which are "either
(1) created directly by the state, so as to constitute de-
partments or administrative arms of the government, or
(2) administered by individuals who are responsible to
public officials or to the general electorate." In the
present case, Mar Del Plata is a privately owned, operat-
ed, and controlled corporation which like other private
corporations is chartered under state law, albeit under a
statute governing a specific type of private corporation,
i.e., condominiums. Mar Del Plata's directions are chosen
by the corporation's shareholders and are responsible
only to them, and its officers are responsible to the
board. Respondents also urge that the Board should de-
cline jurisdiction because of the alleged difficulties in-
volved in persuading condominium owners to agree to
increased assessments. However, difficulties in financing
have never been considered as a valid reason for the
Board to decline jursidiction. In 30 Sutton Place at fn. 5,
the Board pointed out that it has repeatedly asserted its
jurisdiction over nonprofit operations which depend
heavily on governmental grants or charitable bequests
for their financing, i.e., factors which, unlike those in the
present case, are completely beyond the control of the
employer. Indeed, complex financial arrangements in the
private sector of the economy, which were relatively un-
known prior to the commercial revolution, were a prin-
cipal reason why labor unions came into existence. See
Commons, et al., History of Labour in the United States,
v. I, Introduction (1918-1935). At the hearing Respond-
ents offered to prove that the Union was targeting con-
dominiums for unionization because of a loss of tourism
in Miami Beach. If so, then this would be an additional
reason for the Board to continue to assert its jurisdiction
over condominiums. Otherwise, a substantial number of
workers, i.e., those who formerly were or otherwise
would be employed in hotels and restaurants, but now
work in condominiums, would be deprived of the protec-
tion of the Act. The predictable result would be the kind
of industrial strife and unrest which the Act was de-
signed to avoid (in fact, the employees in the present
case picketed the condominium after their termination).
In 30 Sutton Place the Board held that it would limit
its assertion of jurisdiction to those enterprises which re-
alize at least $500,000 gross annual revenue, i.e., the same
standard which the Board applies to the apartment house
industry. Notwithstanding Mar Del Plata's own records,
discussed above, Respondents' contend, through the tes-
timony of Director Giamattei, that Mar Del Plata failed
to meet this standard because an unspecified number of
owners were delinquent in paying their assessments. The
argument is without merit. The General Counsel subpoe-
naed Mar Del Plata to produce all records showing
gross revenues for the period from January 1, 1982,
through October 31, 1983. No records were produced to
show dues delinquencies or, any other figures which
would detract from the reported gross revenues for 1982
and projected gross revenues for 1983. The inference is
warranted, and I so find, that such records would have
failed to substantiate Giamattei's assertions.4 Moreover,
in determining the applicability of the Board's commerce
standards, such delinquencies would not detract from
gross revenue. Rather, they constitute accounts receiva-
4 In response to a leading question from Respondent's counsel, Giamat-
tei testified that she thought that more than 25 owners were delinquent
Assuming that 25 owners of average size units were delinquent for a full
year, this would still not reduce Mar Del Plata's cash income below the
$500,000 level.
MAR DEL PLATA. CONDOMINIUM 1015
ble, which, together with cash received, constitute the
condominium's gross income. It is the total volume of
the operation, and not simply those payments actually re-
ceived, which determines the applicability of the Board's
standards. See Jos. McSweeney & Sons, 119 NLRB 1399,
1400 (1958) (involving application of outflow standards);
see also M CE. of East St. Louis, 226 NLRB 493 (1976),
holding that in determining the applicability of the retail
gross volume of business standard, the Board will in-
clude the volume of purchases by welfare recipients who
did not themselves pay for such purchases. I further find
that the operations of Mar Del Plata affect commerce
within the meaning of the Act. Mar Del Plata's indirect
purchase of $5000 worth of goods from outside the State
of Florida, plainly is well above de minimis. See NLRB
v. Inglewood Park Cemetery Assn., 355 F.2d 448 (9th Cir.
1966), cert. denied 384 U.S. 951; NLRB v. Aurora City
Lines, 299 F.2d 229, 231 (7th Cir. 1962). Additionally, as
indicated, Mar Del Plata annually purchases over
$200,000 worth of gas and electricity from utility compa-
nies which are engaged in commerce. See 30 Sutton
Place, 240 NLRB at 753-754.
The next question presented concerns the alleged
status of Mar Del Plata and PMS as joint employers. As
that question involves some consideration of the merits
of the case, and also involves the operations or alleged
operations of another firm, I should defer resolution'of
the question at this point. I shall also defer consideration
of the propriety of the alleged bargaining unit.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE RELATIONSHIP BETWEEN MAR DEL PLATA
AND PMS AND THE NATURE OF THEIR OPERATIONS
Portuando is president and sole stockholder of PMS.
He is also president and sole stockholder of another cor-
poration, Miami Domestic Services, Inc. (MDS). PMS
and MDS share common officers, and have the same sec-
retary, receptionist, and telephone number. (There are
two doors, marked FMS and MDS respectively, but
both lead to the same office suite.) They each have their
own stationery and file separate tax returns. Portuando is
actively involved in running the day-to-day operations of
both firms. PMS and MDS are involved in complemen-
tary business operations, to the extent that persons deal-
ing with either or both corporations, including Por-
tuando himself, had difficulty in telling one from an-
other. (As a witness, Portuando demonstrated a perfer-
ence to refer to "we" rather than specify PMS or MDS.)
Portuando testified that PMS 'has management contracts
with some 80 condominium associations , none of whom
are parties to collective-bargaining contracts. At one
point Portuando testified that throughout 1981 and 1982
and earlier, PMS performed the managerial functions for
the condominiums, but would contract with MDS to
perform the maintenance work. At another point Por-
tuando testified further that each corporation has its own
employees, but that some employees of PMS perform
work for MDS. According to Portuando, employees of
MDS do not perform work, for PMS. As will be dis-
cussed, this latter assertion contradicts Portuando's asser-
tions with regard to the present contractual relationship
between Mar Del Plata and the two compaines.
Portuando testified that beginning in 1981, MDS per-
formed management services for Mar Del Plata pursuant
to written contract, but that PMS had no contractual re-
lationship with Mar Del Plata prior to January 7, 1983.
The date is significant in that the General Counsel and
Respondents, respectively, each introduced a contract
which was ostensibly executed on that date. The General
Counsel presented in evidence an "association service
agreement" between Mar Del Plata and PMS dated Jan-
uary 7, 1983, and effective by its terms from that date
until February 28, 1984, unless canceled by either party
on 90 days' notice. Under this agreement, Mar Del Plata
employed PMS as its "exclusive manager" with full au-
thority, among other things, to supervise employees and
subcontractors, and to hire employees and contractors
"to carry out its duties under this agreement," which
duties included, among other things, "full responsibilities
for the management of the Association's affairs' on a rou-
tine basis," regular and preventive maintenance sched-
ules, regular property' inspections , job descriptions, and
logging of incoming calls. Portuando testified that the
contract, which makes no reference to MDS, was still' in
effect at the time of the present hearing. Respondents
presented in evidence a "property service agreement" os-
tensibly executed on January 7 by Mar Del Plata and
MDS (through its comptroller) to commerce on March
11, 1983, subject to cancellation by either party on 30
days' notice. The agreement provided that MDS would
furnish Mar Del Plata with the services of one chief en-
gineer, one secretary-receptionist, one handyman, one
bartender, four valets, and two porters. If MDS and
PMS were in fact two separate and distinct business enti-
ties, then the MDS agreement would contradict and vio-
late the terms of the PMS agreement because, under the
PMS agreement, only PMS had exclusive discretion to
contract for services at the condominium. According to
Portuando, he decided to separate management from
maintenance functions, with PMS performing the former
and MDS the latter, because under, the policies of a trade
association to which he belonged,, management firms
should not themselves perform maintenance work be-
cause this would result in a conflict of interest. Even
apart from Portuando's own 'admission that MDS per-
forms both management and maintenance services, Por-
tuando's explanation makes no sense. As PMS and MDS
were commonly owned and controlled, there would be a
conflict of interest even if the functions were divided be-
tween them. In response to prodding from Respondents'
counsel, Portuando testified that the MDS contract was
simply a continuation of an existing relationship between
MDS and Mar Del Plata, but which provided for differ-
ent services. In fact, it was the PMS contract which in-
volved the continuation of a contractual relationship
with Mar Del Plata, and MDS did not appear on the
scene at Mar Del Plata until March 11, 1983. Even Por-
tuando admitted at one point that PMS began perform-
ing management services for Mar Del Plata in 1981. Mar
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Del Plata Director -Giamattei testified that PMS was the
manager of the- condominium at least since December
1982, when she became a member of the board of direc-
tors. (In response to persistently leading questions from
Respondents' counsel, Mar Del Plata Vice President
Marroquin testified that MDS always managed the build-
ing. However, as indicated, her testimony was contra-
dicted by Giamattei. In its answer to the complaint, Mar
Del Plata admitted that "PMS exercised control over
labor relations policy at the condominium.")
Because of his extensive business responsibilities, Por-
tuando was not able to regularly oversee operations at
the condominium. Portuando designated a "supervisor"
(diamattei's words) Joaquin Torralbas, who regularly
came to the condominium and who, among other respon-
sibilities, brought the employees their paychecks.5 It is
undisputed, and indeed both Portuando and Giamattei so
indicated in their testimony, that the paychecks were co-
signed by a director of Mar Del Plata and by Portuando
on behalf of PMS.6 Until October 1982, Walter Hughes
was building manager and in charge at the condominium,
with authority to hire, fire, and direct employees in their
work. In October 1982, Portuando in his capacity as
president of PMS and management agent for Mar Del
Plata (as indicated in correspondence between Portuando
and Mar Del Plata) recommended that the position of
building manager be eliminated and its functions divided
among the "supervisor of PMS," i.e., Torralbas , the engi-
neering office, and a new position of customer service di-
rector. Mar Del Plata, through its then president, con-
curred and authorized Portuando to terminate Hughes,
which he did.7 Thereafter, Chief Engineer, Hernandez
became the immediate supervisor of the employees at the
condominium. Hernandez began working at the condo-
minium for Force Federal, a security service (Respond-
ents' arrangements with security services will be dis-
cussed at - a later point in this decision). In September
1982, after Hernandez was interviewed by Board mem-
bers, Torralbas hired him as chief engineer at Mar Del
Plata. In his capacity as chief engineer, Hernandez di-
rected the service -employees in their work. Hernandez
had authority to and did interview job applicants, effec-
tively recommend the hire or termination of employees,
which recommendations were made to Torralbas or
Marroquin, and hire or terminate employees as author-
ized by either or both of them. I find that Hernandez, in'
his capacity as chief engineer, was a supervisor and
agent of Mar Del Plata and PMS within the meaning of
Section 2(11) and (13) of the Act.
5 Apolinar Hernandez , who was chief engineer at Mar Del Plata, testi-
fied that Torralbas first said that he worked for MDS, then said that he
worked for PMS, and that so far as Hernandez knew, they were both the
same company.
6 Marroquin testified that a board member had to sign the paychecks,
but that she could not otherwise remember who signed the checks I do
not believe her.
tr Hughes was subsequently rehired as a doorman at Mar Del Plata, but
was again terminated.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Discharge of Randy Garcia, and Concluding
Findings with Respect to the Relationship Among Mar
Del Plata, PMS, and MDS
In January 1983, the employees at Mar Del Plata were
in a state of turmoil. A number of employees had been
fired in December, and the remaining employees were
concerned about their job security. The employees were
also concerned about their lack of an adequate rest area,
and the fact that they were not permitted to use drinking
fountains on the premises. (The employees wanted to use
the penthouse, but instead were assigned to a room at the
end of the sewer line, where trash was kept, which the
employees regarded as unfit for their purposes.) The em-
ployees, including Assistant Engineer Rudy Garcia, dis-
cussed their problems. Garcia, who was hired by Manag-
er Hughes in September 1982, performed general mainte-
nance and repair work. Notwithstanding his title, Garcia
would be more accurately described as a handyman. He
was well regarded as an employee, having received two
merit pay increases within 45 days of his employment.
In December Hernandez told Garcia that he would
become chief engineer because, unlike Hernandez, he
was fluent in both English and Spanish and had some
college education. With regard to the employees' discon-
tent, Garcia was particularly concerned about the dis-
charge of another employee, which he regarded as
unfair. (Garcia had previously complained to Marroquin
about the discharge but to no avail.) Garcia was familiar
with labor unions, having been president of a local union
when he was employed by the Southern Pacific Rail-
road. Garcia then proceeded to take two related courses
of action. On Monday, January 24, Garcia telephoned
Union Assistant Business Manager Robert Schwab. He
told Schwab about the employees' problems, and asked
how they could get union representation. Schwab ex-
plained that the Union would need majority support, and
agreed to set up a meeting. The next day, acting on his
own initiative, Schwab went to visit the condominium.
He met Garcia, who introduced him to other employees.
Garcia then saw Lilia Marroquin.,Marroquin was owner
of a unit since 1977, a member of Mar Del Plata's board
of directors since March 1981, and vice president of Mar
Del Plata since December 1982. As the office of presi-
dent was then vacant (the last president having resigned),
Marroquin was acting as the condominium's chief execu-
tive officer. Garcia introduced Schwab to Marroquin as
"my union man." They talked about Marroquin's experi-
ence with labor unions in Mexico. Schwab said that the
employees wanted the Union to represent them. Marro-
quin answered that "we have a management agent who
handles all those kinds of matters." At Marroquin's re-
quest, Chief Engineer Hernandez gave Portuando's name
and telephone number. Also at Marroquin's request,
Schwab gave her a sample union authorization card.
Within 2 days, i.e., not later than the morning of January
27, Schwab telephoned Portuando's office for the pur-
pose of setting up a meeting. Marroquin's conversation
with Schwab, even apart from any other evidence in this
case, indicates that Portuando acted for and on behalf of
MAR DEL PLATA CONDOMINIUM 1017
Mar Del Plata in his subsequent dealings with Schwab,
and that Mar Del Plata and PMS maintained and admin-
istered a common labor policy with respect to the em-
ployees at the condominium.
On the same day'that Schwab visited Mar Del Plata,
he gave union authorization cards to Garcia. In the
meantime, Garcia did not wait for developments between
Schwab and Portuando to take: their own course.' That
same day (January 25) Garcia presented the employees'
grievances to, Chief Engineer Hernandez. Garcia asked
Hernandez to present the grievances to Mar Del Plata's
board of directors, and to tell them that if the grievances
were not resolved, the employees would go to the
Union. Hernandez agreed to do so. He prepared a list of
the grievances, and arranged to meet with four board
members that evening. (The members were Marroquin,
Giamattei, Rotundo, and Lechter. A fifth member, Wein-
statein, was not available.) Hernandez informed Por-
tuando of the meeting, and Portuando agreed to the pro-
cedure. Hernandez, who was presented as the General
Counsel's witness, testified in sum that he informed the
board of the employees' grievances, and relayed Garcia's
message concerning unionization. However, instead of
considering the merits of the grievances, the board mem-
bers decided to fire Garcia because he "promoted the
problem of the Union."
Hernandez testified that on .]January 27 he received a
letter from Portuandb, dated January 27, for submission
to Garcia, informing him that his position was abolished
because the 1983 condominium budget provided for only
one engineer , and that he was terminated "effective im-
mediately," with 1 week's severance pay. The letter was
on PMS stationery. Hernandez gave the letter to Garcia
on January 28.8 Hernandez immediately informed Por-
tuando that he was resigning his position because he did
not wish to become "involved . . . with the conditions
that were created," but agreed to remain for another 15
days in order to give time for Portuando to obtain a re-
placement. However, Portuando and the board had not
yet obtained a replacement ' by the time Hernandez left.
Portuando and Marroquin testified in sum that at a
board meeting on January 17, Portuando recommended
that Garcia be terminated because the 1983 budget did
not provide for a second engineer. In support of their
testimony, Respondents presented in evidence the alleged
minutes of a board meeting on that date, indicating that
"the assistant engineer should be replaced by a handy-
II Hernandez testified that Garcia was off work on January 27 Garcia
testified that he was at work on January 27, that he spoke to Hernandez
that morning , that Hernandez immediately met with the board , and that
following the meeting Hernandez told Garcia that he made no progress,
but that Hernandez did not then inform him of his discharge Garcia fur-
ther testified that he learned that evening that he was discharged, and
that Hernandez showed him the discharge letter the next day . The evi-
dence indicates that one employee signed a union authorization card on
January 26, and that Garcia solicited additional cards on January 27 I
find in light of the testimony of Hernandez and Garcia and the sequence
of, events, that Hernandez met with the board on the evening of January
25, that probably the next morning Heinandez informed Garcia that the
meeting was unsuccessful , but did not then inform him of his termination
because he had yet been instructed to do so, that the employees there-
upon began signing authorization cards, that Hernandez informed Garcia
of his termination after receiving Portundo's letter, and that Hernandez
showed him the letter on the morning of January 28
man to fulfill `handyman' duties." Marroquin testified
that she told Garcia that he could remain at a' lower rate
of pay. Garcia denied that he ever received such an
offer. It is undisputed that Portuando subsequently of-
fered Garcia a job at another location, and that Garcia
accepted the offer but later quit that job. At Mar Del
Plata, Rogelio Gomez was later hired as a "handyman"
to perform the work previously performed by Garcia.
I credit the testimony of Hernandez that the board of
directors decided to fire Garcia because he initiated the
union activity, and that Garcia was consequently fired
for this reason. I do not credit the testimony of Marro-
quin that she told Garcia he could stay on at a lower
rate of pay. Hernandez had no evident reason to know-
ingly testify falsely against Respondents. Indeed, Hernan-
dez quit his job precisely because he did not wish to
become involved in the growing controversy between
Mar Del Plata and its employees. Directors Marroquin
and Giamattei, in their respective testimony, came close
to substantially corroborating much of Hernandez ' testi-
mony concerning his meeting with the Board. In Marro-
quin's words:
He came to my house, to my apartment, by himself
and he told me he wants to talk with all of the
Board and he went to all of the apartments of the
Board of Directors, and it was one afternoon. I do
not know which is the date and we received him.
And he screamed at us and he hit on the table for
telling us what is going on about the union.
Giamattei testified that Hernandez told the Board that he
was "the only person that was capable of stopping the
Union to come," but "we, were not impressed." The 1983
budget, which was approved by Mar Del Plata on De-
cember 23, was unchanged from that of the previous
year. Payroll expenditure had already been reduced by
the elimination of the position of building manager,
shortly after Garcia was hired as assistant engineer. If in
fact the Company could not afford an assistant engineer,
then this fact would have been apparent in October 1982,
when Garcia was given pay raises. If in fact the 1983
budget changed the payroll picture in such a way as to
compel elimination of the position of assistant engineer,
then this fact would have been known to the board of
directors when they approved the budget on December
23. Portuando prepared the budget, and therefore he was
in a position to know whether the budget allowed for a
second engineer. Nevertheless, according to Portuando,
he took more than 3 weeks to come to the realization
that the condominium could not afford a second engi-
neer. If in fact the Board belatedly decided on January
17 to replace Garcia, then it is difficult to see why Por-
tuando took 10 days (and shortly after Garcia was identi-
fied as the principal union adherent), to' effectuate that
decision. If in fact Mar Del Plata and Portuando decided
in good faith to eliminate the position of second engi-
neer, then it is probable they would have terminated
Hernandez and promoted Garcia, in view of the fact that
Garcia was regarded as better qualified for the position
of chief engineer than Hernandez. It is even more proba-
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ble that they would have offered the position to Garcia
when Hernandez tendered his resignation.
As indicated, Respondents presented minutes which
purported to indicate that Mar Del Plata decided on Jan-
uary 17 to replace Gonzalez. This was not the only in-
stance in this proceeding in which Respondents pro-
ferred writings in the form of minutes, contracts, or nota-
tions which purported to substantiate their position, not-
withstanding that the writings were of doubtful credibil-
ity in the circumstances, and in light of other, more cred-
ible evidence. As will be discussed, Portuando admitted
in one such instance that his written entry was false. In
these circumstances, I am not inclined to accept such
writings at their face value. Rather, I find that such writ-
ings are reliable only to the extent that they constitute
admissions against interest or are corroborated by other
more reliable evidence.
With regard to the relationships among Mar Del Plata,
PMS, and MDS, the present case involves two distinct
types of relationships, namely, that of "joint employers"
and "single employer." (A third type of relationship,
namely, that of "alter ego," will be discussed at a later
point in this decision in connection with the change
which took place on March 11.) Unfortunately, the terms
have sometimes been used interchangeably, with some
resulting confusion about the defmitions and conditions
present in each type of relationship.
However, in two separate decisions that issued within
a relatively short period of time, the Fifth Circuit Court
of Appeals made clear the distinction between "joint em-
ployers" and "single employer." In NLRB v. Greyhound
Corp., 368 F.2d 778 (5th Cir. 1966), the court held, in
agreement with the Board, that separate firms which
"share, or co-determine, those matters governing essen-
tial terms and conditions of employment" of the employ-
ees involved, are joint employers of those employees, re-
gardless of whether the firms are commonly owned, op-
erated, or controlled. See also NLRB v. Checker Cab
Co., 367 F.2d 692, 698 (6th Cir. 1966), cert. denied 385
U.S. 1008 (1967). In NLRB v. M.P. Building Corp., 411
F.2d 567 (5th Cir. 1969), the court, in agreement with
the Board, held that two firms may be regarded as a
single employer under the Act when there is "interrela-
tion of operations, together with centralized control of
labor relations , common management, and common own-
ership or financial control."
I find that at all times material , and specifically
throughout 1982 and continuing at least until March 11,
1983, Mar Del Plata and PMS were joint employers of
the service employees at Mar Del Plata's condominium.
The evidence indicates that PMS contracted with Mar
Del Plata to manage its affairs and to supervise all em-
ployees at the condominium, that PMS carried out these
functions, that PMS, through its own personnel (Por-
tuando and Torralbas) and through personnel jointly
hired by PMS and Mar, Del Plata (Hughes and Gonza-
lez) directed the employees in their work, and that PMS
and Mar Del Plata jointly terminated Hughes and Assist-
ant Engineer Garcia. Specifically, PMS recommended
the termination of Hughes; Mar Del Plata ordered both
teminations, and PMS, acting through Portuando, carried
out the order. PMS, acting through Torralbas, or Mar
Del Plata, acting through Marroquin, or both acting
jointly, normally authorized Hernandez to hire or termi-
nate , employees. PMS, in consultation with Mar Del
Plata, prepared Mar Del Plata's budget, which deter-
mined the staffing at the condominium and the employ-
ees' wages and monetary benefits. The employees were
paid by PMS from Mar Del Plata's funds. The evidence
further indicates that Mar Del Plata authorized PMS to
deal with the Union with respect to the Union's claim to
represent the employees. Therefore, Mar Del Plata and
PMS were joint employers of the service employees at
the condominium. Greenhoot, Inc., 205 NLRB 250 (1973);
Queens-Nassau Nursing Home, 218 NLRB 1213, 1215
(1975), enfd. 538 F.2d 309 (2d Cir. 1976); Moderate
Income Management Co., 256 NLRB 1193, 1194 (1981);
Carillon House Nursing Home, 268 NLRB 589 (1984);
Sun-Maid Growers of California, 239 NLRB 346, 350-351
(1978), enfd. 618 F.2d 56 (9th Cir. 1980). I further find
that at all times material, PMS, and,MDS were and still
are a single employer under the Act. PMS and MDS are
commonly owned, operated, and controlled by a single
individual (Portuando). Their operations are closely inte-
grated, there is interchange of employees, and they are
held out to the public, prospective customers, and em-
ployees as a single business operation, to the extent that
even Portuando has difficulty in telling them apart.
Therefore, they constitute a single employer under the
Act. Amshu Associates, 218 NLRB 831 (1975), enfd. 538
F.2d 312 (2d Cir. 1976).9
Returning to the matter of Rudy Garcia, I find that
Mar Del Plata and PMS jointly terminated Garcia be-
cause of his activities in bringing in the Union and pre-
senting the employees' grievances to Respondents. Mar
Del Plata thereby violated Section 8(a)(1) and (3) of the
Act. However, as Garcia was terminated more than 6
months prior to the filing of the amended charge which
first named PMS as a respondent, I am precluded from
finding that PMS thereby violated the Act. National
Welders Supply Co., 132 NLRB 660 (1961). But, see Esgro
Inc., 135 NLRB 285, 286 (1962), involving a single em-
ployer relationship.
B. The Union's Alleged Representative Status and
Alleged Recognition by Respondents
During the period from January 1 to March 11, 1983,
Respondents, in addition to a chief engineer and office
personnel, jointly employed employees in the categories
of assistant engineer (later "handyman"), porters, door-
men, valets, bartender, and security guards at Mar Del
Plata. Respondents' personnel records and the testimony
of witnesses for both sides, indicate that as of February
4, Respondents employed 14 employees in these catego-
ries, including two security guards (Jose Veliz and Vin-
9 The complaint does not name MDS as a respondent , although the
complaint alleges that Mar Del Plata and PMS unlawfully subcontracted
the unit work. However, Respondents placed the status of MDS in litiga-
tion. Respondents contended , by way of defense, that prior to January
1983 MDS was the management agent for Mar Del Plata , and that for
nondiscriminatory reasons, Mar Del Plata, in January 1983, contracted
with PMS to perform management services and with MDS to furnish
maintenance services Therefore, it is appropriate for me to make findings
concerning the relationships among Mar Del Plata, PMS, and MDS.
MAR DEL PLATA CONDOMINIUM 1019
cente Andrade). In addition, Rudy Garcia, who was sub-
sequently replaced by "handyman" Rogelio Gonzalez,
must be regarded as a de jure employee by reason of his
discriminatory termination. I find, as alleged in the com-
plaint, that all service employees employed by PMS and
Mar Del Plata at Mar Del Plata's Miami Beach facility,
excluding all office clerical employees, guards, and su-,
pervisors as defined in the Act, constitute a unit appro-
priate for collective bargaining within the meaning of
Section 9(b) of the Act. 30 Sutton Place Corp., supra, 240
NLRB at 754; see also NLRB v. Greyhound Corp;, supra,
368 F.2d at fn. ' 18; Greenhoot, Inc., supra, 205 NLRB at
251.
The cards which Assistant Business Manager Schwab
gave to Rudy Garcia were dual-language, single-purpose
cards which clearly and unambiguously stated that the
signatory employee was applying for union membership
and designating the Union as bargaining representative.
Doorman Robert Hibbs testified that he signed his card
on January 26, and gave the card to porter Ramon Gon-
zalez. Garcia and five other employees (valet Manuel
"Monolo," Gonzalez, doorman Jorge Del Vecchio, door-
man-valet Luis Leiva, and porters Juan Ramon Gonzalez
and Gilberto Rodriguez) each signed cards on January
27. Monolo, Leiva, and porter Gonzalez testified that
they each received their cards from Garcia. Del Vecchio
testified that he returned his card to porter Gonzalez.10
Doorman Antonio Leyva testified that he and his late
brother, Rafael Leyva (also a doorman) signed their re-
spective cards on January 28. Rodriguez testified that he
gave a card to guard Jose Veliz on January 31, and
Veliz signed the card in his 'presence and returned the
card to him. Doorman Dean Duncan testified that he re-
ceived his card from Del Vecchio, signed it on February
2, and gave the card to Hibbs. Porter Francisco Enrique
Valdez testified that he received his card from Luis
Leiva, signed it on February 4 (his first day at work),
and returned the card to Leiva. Del Vecchio testified
that he asked bartender Rogelio Gonzalez to sign a card,
but that he refused. None of the witnesses indicated ,that
Engineer Hernandez ever gave them a card, or asked
them to join the Union, or that any employee signed a
card in his presence, or returned a card to Hernandez.
Hernandez testified that he did not ask the employees to
sign union cards. As indicated, Hernandez generally im-
pressed me as a candid witness. I credit the testimony of
the employees and Hernandez, and I do not credit the
testimony of Director Giamattei that she saw Hernandez
carrying blank authorization cards in his pocket. Manag-
er Schwab testified that he collected the signed cards at
a gathering of employees near the condominium, ,prior to
meeting with Portuando. I find that as of February 4, the
Union was in possession of valid authorization cards
from' 11 of the 13 , unit employees (I have excluded the
unauthenticated card of Perez and the card signed by se-
curity guard Veliz). Therefore, I find that as of February
4, ' the Union was the designated collective-bargaining
representative of the employees in the appropriate unit.
10 The General Counsel presented in evidence an authorization card
purportedly signed by valet Alberto Perez and dated January 27, but the
card was not authenticated by any witness.
As found, Schwab contacted Portuando's office for the
purpose of setting up a meeting. They met in Portuan-
do's office on Friday, February 4.11 Schwab testified in
sum concerning the meeting as follows: Portuando iden-
tified himself as president of PMS, the management
agent for Mar Del Plata, stated that he knew the purpose
of Schwab's visit because he had been in contact with
the board of directors, that he was the representative for
Mar Del Plata and would be handling the matter, that
the management contract also authorized him to meet
with Schwab, and that Schwab should deal with him
rather than the board. Schwab said that he represented
the employees at Mar Del Plata and wanted to discuss
the situation there. In support of his claim, Schwab of-
fered to and did show Portuando the signed authoriza-
tion cards. 12 Portuando looked over the cards, recog-
nized some of the names, and told Schwab, "you have
them," adding that he was not surprised that the employ-
ees wanted the Union. Schwab expressed the employees'
grievances, principally job security, and Portuando said
he was aware of 'those grievances. Schwab asked about
the discharge of Garcia. Portuando asserted that Garcia
was terminated because there was no money for a second
engineer. Schwab asserted that the discharge was unjust,
and asked that Garcia be reinstated. Portuando promised
to (and in fact did) offer Garcia another job. Schwab
said there was a tense situation at the condominium, and
that the employees were ready to strike. Portuando an-
swered that he did not want a strike. Schwab said that
he wanted to negotiate a contract, and he gave Por-
tuando a copy of a contract between the Union and a
condominium association, with the name' of the condo-
minium deleted. He told Portuando that this was a typi-
cal condominium contract, and basically what the em-
ployees - wanted. Portuando asked if it would be agree-
able if the condominium simply set established benefits
for the employees. Schwab insisted that they would have
to negotiate, and Portuando agreed, to do so. Schwab
proposed, and Portuando agreed, that there would be a
moritorium on firings except for "just cause" (which
Schwab explained) and that firings would be subject to a
grievance and arbitration procedure. Schwab explained
the procedure, and Portuando said 'that he was familiar
with it, 'and would handle the arbitrations. They did not
otherwise discuss the particulars of a contract at this
meeting. They agreed to meet again in order to complete
negotiations, and Portuando promised to present a man-
agement' proposal at that meeting. Schwab requested that
Portuando furnish something in writing which would
confirm that Mar Del Plata recognized and agreed to
bargain in good faith with the Union. Schwab asked Por-
tuando to send a mailgram. It is undisputed' that by letter
dated February 7, on PMS stationery, Portuando as
11 Schwab testified that they met on February 2, but on cross- examina-
tion he admitted that they might have met later that' week Portuando's
secretary, Chris Mahoney, testified in sum that they were initially sched-
uled to meet on February 1, that Schwab was unable to meet at the
agreed time, and that they subsequently agreed to meet on February 4 1
credit Mahoney, and I find the meeting took place on February 4.
12 Schwab probably did not have the card of Francisco Enrique,
which was signed on February 4 However, I find that Schwab had the
other cards, and showed them to Portuando.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"management agent" for Mar Del Plata, informed
Schwab as follows:
As we agreed , here is a verification of our good
faith in negociating [sic] with you as representative
of the Mar Del Plata employees.
In the near future I will be drawing up an agree-
ment on the benefits to the employees.
It is also undisputed that on February 10, Schwab
posted Portuando 's letter near the timeclock at Mar Del
Plata, that Vice President Marroquin saw him doing so,
that he told her that they met and agreed to negotiate
and were negotiating , and that Marroquin expressed her
approval . Additionally, the minutes of a board meeting
on February 7 at which Portuando was present indicate
that the "matter about the Union for employees was dis-
cussed . It was decided that P .M.S. Corporation would
deal with them in good faith."13
Schwab further testified that he and Portuando next
met at Portuando's office on February, 25. Schwab testi-
fied in sum concerning this meeting as follows: Por-
tuando said that he did not have an opportunity to draft
a proposed contract , but that they could proceed on the
basis of the sample contract which Schwab had submit-
ted as a basis for agreement . They proceeded to discuss
the contract article by article , with Schwab explaining
each article. They agreed on recognition and scope of
contract (limited to employees at Mar Del Plata), use of
the Union's hiring hall, checkoff, and probationary em-
ployees. They did not , agree on economic items. They
agreed on most holidays. They discussed wages only in a
general way . (Schwab testified that he was generally sat-
isfied with the wage rates at Mar Del Plata.) Portuando
said that the present budget did not allow for health ben-
efits or other extra costs. He suggested that Schwab
make a presentation to the board for a special appropria-
tion, and Schwab agreed to do so . They agreed to meet
again on March 4 . Schwab requested the names, wage
rates, dates of hire, and classifications of the employees
at Mar Del Plata, and Portuando promised to get the in-
formation . 14 Schwab never received the information.
Thereafter, Portuando's secretary called Schwab to
cancel the March 4 meeting. She told him that he was
out of the country. Schwab left a message for Portuando
to call him . He also sent a letter to Portuando, dated
March 8 , requesting continuation of contract negotia-
tions, protesting cancellation of the March 4 meeting,
and requesting , as "previously requested," the names, po-
sitions, wage rates, and total annual income or hours of
employment of the Mar Del Plata employees . On March
1" The same minutes indicate that on motion of Marroquin , the board
passed a resolution that "to avoid Directors from dealing with employees
directly about problems , they should go to the higher authorities." Direc-
tor Giamattet testified that this meant the employees should deal directly
with the management company . The minutes also indicate that : "It was
decided the new `Handy man ' is to visit the P.M.S. Corp . office to be
interviewed and to be made engineer " I find that these entries are fur-
ther evidence that PMS and Mar Del Plata were joint employers, and
that PMS was the sole management agent for Mar Del Plata.
14 Schwab initially testified that he asked for Mar Del Plata's budget.
However, he subsequently testified that Portuando gave him a copy of
the budget even though he did not ask for it
10 Portuando returned Schwab 's call. Portuando said
that the employees had a bad attitude and the board was
upset. Schwab answered that the- employees were upset
and ready to picket . Portuando admitted that they were
good employees . The next day Schwab received reports
that the employees were all fired . Schwab also received
a letter from Portuando , dated March 9, asserting that
Mar Del Plata "has contracted out all of the services re-
quired for the operation of the Association ," which
"means that the Association will no longer have any em-
ployees as of March 15, 1983 ," and therefore "there is no
future need for us to meet in relation to the Union."
There was no further contact between Schwab and Por-
tuando.
Portuando testified that he met with Schwab only
once, namely, at the February 4 meeting . However, he
corroborated or failed to deny much of Portuando 's testi-
mony. Portuando admitted that Schwab showed him the
authorization cards. According to Portuando , he did not
recognize any of the names, although he had the payroll
list. In view of the fact that Portuando had recently dis-
charged Rudy Garcia , one of the card signers, his asser-
tion is incredible . Portuando admitted that Schwab
claimed to represent the employees . According to Por-
tuando, Schwab suggested the language of the February
7 letter, asserting that he needed something to show the
employees that they spoke. However , Portuando admit-
ted that they agreed on "good faith negotiation."
Schwab testified that he did not dictate the language of
the letter and that the letter did not reflect his kind of
wording . I credit Schwab . The letter does not reflect the
kind of wording which would likely be used by a union
official . Rather, Schwab would probably suggest lan-
guage similar to the recognition clause of a contract,
which would have included a reference to the Union,
rather than "you" as representative of the employees.
Moreover, Portuando took 3 days in which to consider
the language of the letter. Portuando was a practical
businessman with extensive operations . It is unlikely that
he would have sent the letter to Schwab without com=
prehending its meaning . Portuando admitted that the
board of directors asked him to find out what the Union
wanted, and that he probably reported back to the board
(in fact, as indicated by the board's minutes, he did
report back). Portuando also admitted that he would
have sent contracts or other legal matters to Mar Del
Plata's attorney . At no time did Portuando ever tell
Schwab that he did not mean what he said in ' the Febru-'
ary 7 letter. Portuando also testified that Schwab said he
"needed certain things," and "could order a strike,"
whereupon ' Portuando promptly replied that "if you
strike I'll replace all the employees immediately." It is
evident from this testimony that Portuando felt confident
and knowledgeable in dealing with Schwab . It is also
evident that Portuando understood that Schwab wanted
recognition and a contract. I further find that Portuan-
do's statement is evidentiary of Respondents ' motivation
for their subsequent actions in March. Portuando further
admitted that Schwab showed him a copy of a condo-
minium contract which "is usually signed by employers."
Portuando denied that they went through the articles of
MAR DEL PLATA CONDOMINIUM 1021
the contract, and denied that he agreed not to fire em-
ployees or to submit disputes to, arbitration. Howevei,
Portuando admitted that they talked about holidays and
hospitalization, which were far down the list of articles
in the proposed contract. Portuando also testified that
Schwab suggested that he go to the board, and that Por-
tuando tried to set up a meeting. Portuando did not ex-
plain the purpose of such a meeting , In the context of
the testimony of Schwab and Portuando, it is evident
that, such meeting would have been (as testified to by
Schwab) for the purpose of requesting a special appro-
priation for monetary 'benefits. In his testimony, Por-
tuando made no reference to Schwab's request for infor-
mation. As indicated, Schwab testified that.he made that
request at the February 25 meeting, and referred to the
request in his letter of March 8. I find that Portuando's
failure to meet that testimony further tends to indicate
that there was in fact a second meeting.15 Portuando did
testify that he did not tell Schwab that MDS would be
taking over the employment of individuals working at
MDS, although he was allegedly aware of that plan, be-
cause it was none of Schwab's' business. Portuando's tes-
timony constitutes a virtual admission that Respondents
were dealing,in bad faith with the Union, and reflects ad-
versely on his credibility. I find that Portuando did not
tell Schwab about MDS because PMS and Mar Del
Plata were the joint employers of the employees at the
condominium, and because they had no intention of
transferring the maintenance- operation, to MDS except as
a means of destroying the Union.,
I credit the testimony of Schwab except as otherwise
indicated. Portuando's February 7 letter plainly consti-
tuted confirmation of Respondents' agreement to recog-
nize and bargain with the Union, and of their promise to
submit a proposed contract. I find that Respondents law-
fully agreed to recognize and bargain with the Union as
the exclusive representative of their employees in an ap-
propriate unit, and were therefore legally obligated by
that relationship.'Jerr-Dan Corp., 237 NLRB 302 (1978),
enfd. mem. 601 F.2d 575 (3d Cir. 1979); Phelps Cement
Products, 257 NLRB 19 (1981), enfd. mem. 697 F.2d 295
(2d Cir. 1982); Lyon & Ryan Ford, Inc., 246 NLRB 1, 4
(1979), enfd. 647 F.2d 745, 753 (7th Cir. 1981). However,
I shall defer to a later point in this decision, the question
of whether Respondents were subsequently excused from
their obligation to bargain with the Union because, as
claimed by Portuando,, they no longer employed any em-
ployees in the unit.
15 Contrary to Respondents ' contention (Br. 21) secretary Mahoney
did not deny that there was a meeting on February 25 Mahoney testified
that a meeting was canceled because Portuando was out of the country
However it is evident that Mahoney was referring to the,aborted March
4 meeting. Portuando 's, alleged desk calendar entries for, February 25,
also retied on by Respondents, indicate that Portuando was in his office
that day . The entries ' include a partially legible and unexplained reference
to Mar Del Plata
C. Alleged Threats, Coercive Statements, Promises of
. enefit and Interrogation by Vice President
Marroquin, and Alleged Threats by Chief Engineer
Hernandez
Employee witnesses testified about various alleged un
lawful statements and interrogation by Vice President
Marroquin and ,Chief Engineer Hernandez. As the com
plaint alleges that these violations occurred at times prior
to February 18, i.e., more than 6 months before the
Union filed the amended charge, I shall deal with them
as alleged unfair labor practices by Mar Del Plata, al-
though the incidents may be considered as evidence with
respect to alleged violations by both Respondents within
the 10(b) period.
Porter Enrique testified that after he signed a union
card, Marroquin approached him in the lobby and asked
him if he belonged to "this union." Enrique answered
that he did. Doorman-valet Luis Leiva testified that Mar-
roquin spoke to him several times about the Union, al-
though his investigatory affidavit referred to only one
conversation. Leiva testified that in one conversation,
Marroquin asked if he signed a union card. He,answered
"Yes," whereupon she asked why. Leiva explained that
they needed some legal support. Leiva 'testified that in
another conversation, Marroquin, in the presence of Di-
rector Giamattei, said that "we are going to break your
union because you're a shit." "Monolo" Gonzalez testi-
fied that after the employees signed union cards, Marro-
quin spoke to him in the lobby and, in the presence of
the doorman, asked him who was the chief of the Union.
Monolo answered that they all signed cards., whereupon
Marroquin responded that the Union had no strength in
Florida and she was "going to destroy that." Monolo
testified that Marroquin also asked him if he signed a
union card.
In his investigatory affidavit. Monolo gave a some-
what different' version of the conversation. Monolo
stated that Marroquin asked him who were the leaders of
the Union, and Monolo answered that "it was something
between all of us for our own benefit," whereupon Mar-
roquin responded that in Florida the Union was weak
and could not go anywhere. Antonio Leyva testified that
after the employees signed union cards, Marroquin spoke
to him three times about the Union. Leyva testified that
on one occasion Marroquin asked if he and his brother
signed cards, and on another if he knew who signed
cards. Leyva answered that he did not know who signed
cards.
Leyva testified that on a third occasion, in the pres-
ence of bartender Rogelio Gonzalez and a condominium
owner, Marroquin said that she did not want the Union,
that Florida was a "marginal" state, and that she would
destroy the Union. Jorge Del Vecchio testified that Mar-
roquin spoke to him twice about the Union after he
signed a union card. Del Vecchio testified that on one
occasion, possibly in the presence of Monolo, Marroquin
asked why he was going to become a union member.
According to Del Vecchio, he answered that "I want
it," and nothing else was said. Del Vecchio testified that
about a week later Marroquin asked him if he signed the
union card, and he answered that he did. Del Vecchio
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
initially testified that nothing else was said in this con-
versation . However, Del Vecchio subsequently testified
that in one of the conversations , Marroquin said that
"the Union was not good for us ," because she was
"going to destroy the Union ." Porter Juan Ramon Gon-
zalez testified concerning a lengthy conversation with
Marroquin on February 12. Gonzalez , at Marroquin's re-
quest, was moving furniture from the pool area during a
severe storm , when she asked to speak privately with
him. Marroquin reminded him of his experiences as a po-
litical prisoner in Cuba , and asked "why you 're going to
follow this way of thinking and join the Union," and
"what are you going to solve with that." Gonzalez re-
mained - silent, but Marroquin persisted . She asked if he
knew who joined the Union , and he admitted that he
did. She told Gonzalez that he should separate himself
from the Union because she was going to "step on us"
and "bust the Union ." She asked if Garcia , the Union, or
the other employees would pay his rent and other ex-
penses. She told him he should tear up his union card.
She said she would buy out the Union and that if the
employees abandoned the Union she would give them
the benefits they wanted . Marroquin told a story about
Mexico, when farmers demanding land and rights alleg-
edly tried to lynch her and her husband (Gonzalez had
previously heard this story). Gonzalez testified that Mar-
roquin again asked who signed the union cards.
Marroquin , in her testimony, categorically denied that
she' ever questioned, threatened , or even talked to any
employee about the Union . Director Giamattei also
denied that the alleged conversation with Leiva ever
took place . As between the employees and the two Mar
Del Plata officials , I generally credit the employees, al-
though I find a tendency on the part of some of the em-
ployees to embellish the facts. Marroquin and Giamattei
were not simply unsophisticated housewives with limited
knowledge of the English language and American ways.
Marroquin had substantial business interests in Mexico,
where she had experience in dealing with unions. She
was Mar Del Plata's chief executive officer and , in that
capacity and as director , had considerable responsibility
for the operation of the condominium . It is evident that
at least from her experiences in Mexico , Marroquin was
strongly antagonistic toward labor unions. Giamattei was
by profession , a civil engineer . Marroquin and Giamattei,
like the other unit owners, had a substantial investment
in the condominium . In resolving the credibility ques-
tions, I find particularly significant another development
which took place in February. As will be further dis-
cussed, in February , Mar Del Plata retained the services
of Power Patrol and Security Agency, Inc. (Power
Patrol), a guard , watch, and security agency , for the pur-
pose of conducting an investigation at the condominium.
Director Giamattei testified that the investigation had
nothing to do with the Union. However, Mar Del Plata's
minutes indicate that on March 1 Roy Millinger of
Power Patrol reported to the board , among other things,
that "the leader , of the underground employee movement is
Leiba [sic] the doorman" [emphasis in original]. Mil-
linger, who in his testimony was evasive about the mean-
ing of this report , admitted at one point that "under-
gound employee movement" may have referred to the
Union , and also admitted that the report referred to An-
tonio Leyva. Barry Baker, one of Power Patrol 's investi-
gators, who posed as a maintenance employee during his
investigation from February 19 to 23, prepared a detailed
report of his findings and recommendations . Baker re-
ported that Luis Leiva and Antonio Leyva were particu-
larly outspoken on behalf of the Union, and that Leyva
exerted strong influence over the other workers because
he worked in the hotel industry in New York as a union
member and shop steward . Baker also reported that the
employees "will attempt to bring in a union within 30
days." Baker recommended , among other things, that
Mar Del Plata : "Eliminate potential unionization , utilize
either subcontractors for maintenance , porters, security
and or contrace [sic] total management firms-no Mar
del Plata employees ." The March 1 minutes indicate that
Millinger recommended that Mar Del Plata : "Clean
house. Change all employees and start from scratch." As
will be discussed , Respondents terminated all the em-
ployees who signed union cards, but retained two of the
three employees who did not sign cards. It is evident
that Power Patrol would not have reported - on the extent
of union activity, including the identity of the leading
union adherents, unless it was asked to do so, and would
not have made recommendations as to how to "Elimi-
nate potential unionization" unless it was so asked.
Power Patrol could not simply assume that Mar Del
Plata wanted to destroy the Union. Rather, as will be
further discussed , the principal purpose of the investiga-
tion was to establish a pretextual basis for destroying the
Union, if necessary by terminating all the union adher-
ents. Therefore, Mar Del Plata's actions with regard to
the "security" investigation by Power Patrol were con-
sistent with the statements attributed by the employees to
Marroquin.
I have previously indicated Marroquin 's lack of credi-
bility with respect to her testimony concerning the rela-
tionships among Mar Del ' Plata, PMS, and MDS. As for
the employees , porter Gonzalez impressed me as an intel-
ligent and candid person and a conscientious employee
who was well regarded by Marroquin. Y credit his testi-
mony concerning his conversation with Marroquin. I
find that Mar Del Plata , by Marroquin, violated Section
8(a)(1) of the Act by coercively interrogating Gonzalez
concerning his union attitude and activities and those of
his fellow employees, by promising that the employees
would receive the benefits they wanted if they aban-
doned the Union, by threatening to step on the employ-
ees and telling Gonzalez that he would have to seek his
pay elsewhere , and thereby impliedly threatening the
employees with loss of employment , and threatening to
buy out or bust the Union, thereby unlawfully telling the
employees that it would be futile for them to support the
Union as their bargaining representative . Marroquin,
who was Mar Del Plata 's highest ranking official, had no
legitimate reason to question Gonzalez or any of the
other employees . She gave no assurances against reprisal,
although Rudy Garcia had recently, been discharged be-
cause of his union activity. Rather , Marroquin accompa-
nied her interrogation of Gonzalez with unlawful threats
of reprisal and promises of benefit. Additionally, as will
MAR DEL PLATA CONDOMINIUM 1023
be discussed, the interrogation had an unlawful, purpose.
Therefore, the interrogation was demonstrably unlawful.
Spartan Plastics, 269 NLRB 546 (1984). With regard to
the threats to buy out or bust the Union, see Bedford
Farmers Cooperative, 259 NLRB 1226, 1227, 1232 (1982);
Douglas & Lomason Co., 253 NLRB ' 277, 280 (1980);
Church Point Wholesale Grocery Co., 215 NLRB 500, 506
(1974).
I also credit the testimony of Enrique that Marroquin
questioned him about whether he joined the Union, and I
find that Mar Del Plata thereby violated Section 8(a)(1).
(As Enrique was a new employee whose card had not
been shown to Portuando, Marroquin .had particular mo-
tivation to so question him.) With, regard to the testimo-
ny of "Monolo," I find that this affidavit is a more accu-
rate account of what Marroquin said than his testimony
at the hearing. It is unlikely that Marroquin asked him if
he signed a union card, as she probably already knew
that he was' a union member. However, as indicated by
the subsequent Power, Patrol investigation, Respondents
were very much interested in identifying the union lead-
ership. I fmd that Mar Del Plata violated Section 8(a)(1)
by interrogating Monolo concerning the, identity of the
union leaders. I also , credit the testimony of Antonio
Leyva, and I find that Mar Del Plata violated Section
8(a)(1) by interrogating Leyva concerning the identity of
card signers, and by threatening to destroy the Union,
thereby asserting that it would be futile for the employ-
ees to support the Union. (By referring to Florida as a
"marginal" state, Marroquin was probably asserting that
unions were weak in Florida, or referring to the fact that
Florida law prohibits the union shop.)
With regard to the testimony of employee Del Vec-
chio, I credit only his testimony that Marroquin asked
him why he was becoming a union member. It is unlike-
ly that she would first ask why he was joining the
Union, and later ask whether he signed a card. Marro-
quin probably already knew that he signed a card. I find
that Mar Del Plata violated Section 8(a)(1) by question-
ing Del Vecchio about why he was joining the Union.
Marroquin had no legitimate reason for questioning Del
Vecchio, she gave him no assurances against reprisal, the
interrogation took place in the context of other unfair
labor practices, and the questioning was demonstrably
part of a systematic campaign to determine the exact
extent of union support among the employees, including
the identity of the union leadership. I also credit the tes-
timony of Luis Leiva that Marroquin questioned him
about whether and why he signed a union card, and
threatened to break the Union, and I find that Mar Del
Plata thereby violated Section 8(a)(1). (Although Leiva's
affidavit referred to only' one conversation, Respondents
did not offer in evidence either the affidavit or any perti-
nent portion. Therefore it cannot be inferred that the af-
fidavit either excluded the possibility of more than one
conversation, or that the interrogation and threats took
place in a single conversation.) I find that by reason of
Schwab's showing of cards to Portuando, Marroquin's
systematic interrogation of the employees, and Power
Patrol's investigation, Respondents knew by March 1
which employees supported the Union and which did
not, and which employees were most active on behalf of
the Union.'s I further find that Marroquin's systematic
inrrdgation and threats, together with other evidence
that has been and will be discussed demonstrate that the
termination of the union adherents on March 11 was the
culmination of Respondent's avowed campaign to de-
stroy the Union, and that the reasons now advanced by
Respondents for that action are false or pretextual.
Porter Gonzalez testified without contradiction that
after the union campaign began, Chief Engineer Hernan-
dez told him that the employees should try to win and
get the Union into the building because Marroquin said
that if they did not win, she would "step on everybody"
and they would all be out of a job. I credit Gonzalez. At
the time, Gonzalez had already notified Portuando of his
intention to leave. I find that Hernandez was speaking
for himself, and that such fact was evident 1o Gonzalez.
In light of Marroquin's hostility to unionization, it is un-
likely that Gonzalez would have interpreted Hernandez'
statement to mean that Mar Del Plata was encouraging
the employees to win their campaign. Therefore, Mar
Del Plata was not responsible for Hernandez' statement.
J S Abercrombie Co., 83 NLRB 524, 529 (1949). Howev-
er, I find that Hernandez was aware of Respondents' in-
tention to destroy the Union, and that his warning to
Gonzalez was further evidence of that intention.
D. Termination of the Remaining Union Adherents,
the Alleged Subcontracting of Work to MDS, and
Concluding Findings With Respect to Withdrawal of
Recognition and Refusal to Meet Bargaining
Obligations
On March 11, union members working at Mar Del
Plata were either notified by Power Patrol or informed
by their follow' employees that they were terminated.
The employees were told to go to PMS' office where
they would receive their final paychecks. At PMS' office
employees were also each given a form letter dated
March 15, on PMS stationery and signed by Portuando
as manager for Mar Del Plata, which letter read as fol-
lows:
TO WHOM IT MAY CONCERN:
DUE TO THE CONTRACTING OF AN INDEPENDENT
FIRM WHICH WILL BE PROVIDING US WITH THEIR
OWN EMPLOYEES, [NAME OF EMPLOYEE'S POSITION
HAS BEEN TERMINATED. THUS, IN OUR OPINION, EN-
TITLING HIM TO UNEMPLOYMENT BENEFITS.
Some of the employees were offered other employment.
Robert Hibbs, Dean Duncan, Luis Leiva, "Monolo"
Gonzalez, Antonio Leyva, Jorge Del Vecchio, and Gil-
berto Rodriguez each testified that they were given a
form termination letter. Antonio Leyva testified that his
brother Rafael was also given a termination letter. Por-
tuando, in this testimony, acknowledged that porter Juan
Ramon Gonzalez was given a termination letter„ Porter
Gonzalez testified that PMS Supervisor Torralbas and
16 As discussed, Alberto Perez' card was not authenticated for repre-
sentational purposes. However, as Perez' card was included in those
which Schwab showed to Portuando, Respondents could reasonably be-
lieve that he was a union adherent.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roy Millinger of Power Patrol informed him on March
11 to tell those employees who were not then at work,
that they were terminated effective as of noon that day.
Francisco Enrique testified that he was not at work on
March 11, but that porter Gonzalez told him that they
were all fired, and that he received his final paycheck at
PMS' office, but was not given a termination letter. I
find that Respondents, through Torralbas and Power
Patrol, authorized porter Gonzalez to inform Enrique
and similarly situated employees that they were terminat-
ed. The remaining alleged discriminatees, Jose Veliz and
Alberto Perez, were not presented as witnesses in this
proceeding. However, Respondents' payroll records, and
the testimony of Chief Engineer Hernandez and Director
Giamattei, indicate that they were still employed at Mar
Del Plata after the termination of Rudy Garcia, but were
no longer working there after March 11. Giamattei testi-
fied that bartender Rogelio Gonzalez and handyman Ro-
gelio Gomez were the only pre-March 11 employees
who continued to work at Mar Del Plata after that date,
although a doorman who worked in 1982 was recalled to
work for Power Patrol at the condominium. No evi-
dence was presented which would indicate that Veliz
and Perez were terminated on a different date or under
different circumstances than the other card signers. I find
that all 12 alleged discriminatees were terminated on
March 11 for the same reason . "The fact that there is no
formal discharge is immaterial if the words or conduct of
an employer would logically lead an employee to believe
his tenure has been terminated." Pennypower Shopping
News v. NLRB, 726 F.2d 626 (10th Cir. 1984).
Significantly, no official of Respondents ever testified
about the reason why the employees were terminated, or
more specifically, why, the union adherents were termi-
nated while other personnel were retained. As discussed,
Portuando advanced a palpably false reason about why
Mar Del Plata executed separate contracts with PMS
and MDS, i.e., to avoid a conflict of interest. However,
even the purported minutes of the meetings of Mar Del
Plata's board of directors fail to indicate an actual deci-
sion to terminate the employees. Rather the purported
minutes indicate that, as of January 7, the board wanted
MDS to retain the present employees. This would indi-
cate that the board was satisfied with their performance.
Nevertheless, Respondents presented testimony and doc-
uments for the purpose of showing that the employees
were not performing in a satisfactory manner . Respond-
ents now argue in their brief (p. 9) that this alleged dis-
satisfaction was the principal motivating factor for the al-
leged replacement of Mar Del Plata personnel with
MDS personnel on March 11. This evidence substantially
consisted of (1) testimony by Marroquin and Giamattei
concerning alleged poor conditions and work perform-
ance at the condominium, (2) alleged complaints by
owners concerning such conditions, and (3) the results of
the Power Patrol investigation in February 1983. For
reasons which have been and will be discussed, I find
that the alleged deficiencies in employee performance
were demonstrably pretextual and substantially lacked
any credible factual basis.
In order to fully evaluate Respondents' argument, it is
necessary to consider the organizational structure and
maintenance arrangements at Mar Del Plata during the
period from January 27, when Rudy Garcia was dis-
charged, to March 1, when Power Patrol ostensibly
made its report to the board. Mar Del Plata did not have
a building manager. Walter Hughes was terminated in
October 1982, and never replaced in that capacity. Chief
Engineer Hernandez, the immediate supervisor of the
employees, left in mid-February after giving notice to
Portuando, and was subsequently replaced by Walt
Cresswell. However, there was an interim period when
there was no chief engineer and, consequently, no on-
the-job supervision of the employees. Meanwhile, - Rudy
Garcia was replaced by handyman Rogelio Gomez.
Also, in January 1983, Mar Del Plata canceled a pool
maintenance contract and did not obtain another con-
tractor. Portuando's desk calendar indicates an inquiry
from Mar Del Plata's office ,secretary on February 7
concerning who was responsible for servicing the pool.
Power Patrol's supposedly impartial investigation and
report completely disregarded these circumstances. Al-
though its reports were replete with accusations that the
employees were lazy, unproductive, neglectful of their
duties, and had a disrespectful attitude, there is no indica-
tion that Power Patrol investigated whether the employ-
ees_ were receiving adequate supervision or whether
Cresswell was adequately performing in his new job. Al-
though one of Power Patrol's investigators recommend-
ed "strong supervisory personnel to enforce efficient
work productivity," this recommendation was not passed
on to the board as part of Power Patrol's final recom-
mendation, and Cresswell remained as chief engineer
after March 11. Investigator Barry Baker complained
about a loose lamppost near the pool. However, Baker
disregarded the fact that handyman Gomez would be re-
sponsible for repairing such a condition, and Gomez also
remained after March 11. The investigators' reports fo-
cused entirely on the union adherents, including com-
ments by Baker (the inside investigator) concerning their
union attitude and activities, which culminated in his rec-
ommendation to contract out the work in order to elimi-
nate potential unionization.
The history of Mar Del Plata's security arrangements
further tends to undermine the credibility of Respond-
ents' position in this case. Mar Del Plata had a contract
with Force Federal Detective Bureau (Force Federal)
effective from August 16, 1981, to August 16, 1982, to
provide two security guards at the condominium. There-
after, Force Federal continued to supply the guards,
whose services were supplemented by Mar Del Plata's
own two security guards and its doormen. According to
Portuando, he contacted Power Patrol in August or Sep-
tember 1982, recommended them to the board for "in-
vestigations," and discussed Power Patrol with the board
on December 7,r but nothing was agreed at the time. It is
undisputed that Mar Del Plata did not enter into any
agreement with Power Patrol to provide security service
until at least February 23, when they ostensibly executed
a 1-year contract, effective as of March 1. Portuando's
desk calendar indicated that Mar Del Plata was sched-
uled to sign a contract ,with Power Patrol on, January 7.
However, Portuando admitted that no such action took
MAR DEL PLATA CONDOMINIUM 1025
place on that date. 117 Millinger testified that Power
Patrol did not begin to provide routine security service
at Mar Del Plata until March 11. Thereafter, Respond-
ents ceased to employ personnel in the categories of se-
curity guards and doormen, although the size of the em-
ployee unit was only slightly reduced. As indicated,
Power Patrol conducted the undercover investigation
from February 19 to 25, i.e., beginning prior to the exe-
cution date of the security contract. If in fact Mar Del
Plata was dissatisfied with security at the condominium
as early as October 1982, and was aware of Power
Patrol as an alternative, then it is unlikely that Mar Del
Plata would have waited until March 11 to commence
utilizing the services of Power Patrol. I fmd that Re-
spondents contracted the security work as part and
parcel of the same course of conduct as the arrangement
involving MDS, namely, to fulfill Marroquin's promise
to destroy the Union by getting rid of all the union ad-
herents, and selected Power Patrol as a reward for its
services in providing a pretext toward that end.
The testimony of Marroquin and Giamattei, and writ-
ten complaints of owners which were presented in evi-
dence, were so replete with contradictions and inconsist-
encies as to virtually nullify Respondents' argument in
this case. Marroquin testified that the complaints began
about August 1982, but subsequently testified that there
were complaints about unsatisfactory conditions through-
out 1982. However, Giamattei testified that conditions
improved after January 7, thereby indicating satisfaction
with employee performance during the period from Jan-
uary 7 to March 11. The written complaints which were
presented in evidence (including one by Marroquin)
were all dated during the period from January 31
through February 7. Portuando's desk calendar indicates
that on February 1, Marroquin asked him to provide a
format for submitting written complaints about the em-
ployees. It is evident that until the Union came on the
scene, the owners saw no need to, submit such com-
plaints. Moreover, the complaints were in many respects
irrelevant to the normal work of the union adherents and
to the action taken by Respondents on March 11. One
owner complained that the pool was not working, and
that the door to the pool was broken, and another com-
plained that the shower room ceiling needed repair.
However, at the time Mar Del Plata did not have
anyone responsible for pool maintenance, and had termi-
nated its assistant engineer , who was responsible for
minor repairs. Two owners complained about the need
for fumigation or an exterminator. However, Respond-
11 Portuando testified that no contract was signed on that date because
they did not get to it, and the matter was tabled for the next board meet-
ing. However, Portuando 's testimony was contradicted by Mar Del
Plata's alleged minutes and by Power Patrol Representative Millinger
The minutes for January 7 indicate that board members Marroquin and
Rotunda and the "management agent" were authorized to negotiate and
sign a contract with Power Patrol . Although the board met at least twice
between January 7 and February 23, there is no further reference in the
minutes to the matter of a security contract . Millinger, in his testimony,
admitted that he had no agreement with Mar Del Plata until February,
when Power Patrol was retained to conduct the undercover investiga-
tion . The evidence not only undermines Portuando's credibility, but also
places in question the authenticity of the purported minutes of January 7,
when Mar Del Plata ostensibly decided to contract with AIDS for main-
tenance work
ents used an outside contractor for this work. Another
owner complained that his bedroom door would not
slide . However, this involved a condition within an
apartment unit,' for which the employees were not re-
sponsible. Giamattei, who did not,submit a written com-
plaint, testified that there were constant problems with
the hot water heater. However, Respondents utilized an
outside contractor to maintain the heating equipment,
and the chief engineer and "handyman" (Cresswell and
Gomez) were responsible' for routine maintenance. In
fact, the evidence, including the timing and unjustified
nature of the complaints, evident satisfaction with the
employees' work until the Union entered the picture, and
Marroquin's request for complaint forms, indicates that
in February Respondents were engaged in a campaign of
harassment against the employees, which began with so-
licitation of complaints and unjustified complaints against
the employees and culminated with the unwarranted un-
dercover investigation. Thus, porters Gonzalez and Ro-
driguez described an incident in February when Gonza-
lez got down on his hands and knees and wiped his hand
across the floor in order to demonstrate to Marroquin
and Giamattei that they had thoroughly cleaned 18
flights of stairs. Nevertheless, Marroquin falsely insisted
that the floors. were not clean.18
I fmd that Respondents terminated the remaining 12
union adherents because of their support for the Union,
and in order to destroy unionization at Mar Del Plata,
and thereby violated Section 8(a)(1) and (3) of the Act.
When Respondents were initially confronted with the
spectre of unionization, they went through the motions
of dealing with the Union, thereby hoping to ' buy time,
while concurrently discharging the leading union adher-
ent in anticipation that this would weaken the Union's
position among the employees. When Respondents
learned that Garcia's discharge did not shake employee
support for the Union, they proceeded, as previously de-
scribed, to harrass the employees and build a case against
them which could be used as a pretext for their termina-
tion . In the meantime , Respondents continued to go
through the motions of bargaining with the Union, there-
by averting a strike until they were able to obtain a new
complement of employees, and possibly in hopes of ne-
gotiating a "sweetheart" deal. By February 25, when
Schwab and Portuando met for the second time, howev-
er, it was clear to Respondents that the Union was seri-
ous about wanting job security and improved benefits for
the employees. Therefore, having the benefit of a
"stacked deck" investigation whose result was solicited
and preordained, Respondents proceeded to train new
employees to the point where they were ready to take
over the service work. On March 11, without prior
notice to the Union or the employees, Respondents
abruptly terminated the union adherents and replaced
18 Power Patrol Investigator Baker testified that he saw Luis Leiva
and porters Gonzalez and Rodriguez remove a table lamp from the con-
dominium The employees in their testimony denied that such an incident
ever occurred. No evidence was presented concerning any complaint of
missing property from the condominium. I find that Respondents have
failed to present credible evidence that employees engaged in theft or
vandalism at any time material to this case
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them with employees nominally on the payroll of MDS
or, with respect to security guards, by guards employed
by Power Patrol. These followup actions were an inte-
gral part of the discriminatory course of action which in-
cluded the termination of the employees. Therefore, I
fmd that Respondents further violated Section 8(a)(1)
and (3) by nominally contracting the service work to
MDS and by contracting with Power Patrol to perform
,guard service to the extent that such service replaced the
work formerly performed by Respondents' employees.
Syufy Enterprises, 220 NLRB 738, 741 (1975). In a letter
dated,August 30, 1983, to the Board's Regional Office,
Respondents'- counsel asserted, by way of answer to an
inquiry from the Regional Office, that "PMS presently
employs employees who are performing duties referred
to in the Complaint." Respondents' counsel made no ref-
erence to MDS. The letter is of course evidentiary and
may properly be considered as an admission by Respond-
ents. McDonnell Douglas Corp., 270 NLRB 1204 fn. 1
(1984); Steve Aloi Ford, 179 NLRB 229 fn. 2 (1969). Spe-
cifically, the letter may,properly be considered as an ad-
mission either that (1) the ostensible transfer of work to
MDS was a fiction or sham, and that PMS remains the
employer or joint employer of the service employees at
Mar Del Plata, or (2) that PMS and MDS are in fact a
single employer, and therefore that it is immaterial
whether the employees are nominally on the payroll of
MDS. PMS is responsible and accountable for the ac-
tions of MDS, and MDS is obligated to remedy PMS'
unfair' labor practices, whether they are viewed as a
single employer or whether PMS is viewed as the alter
ego of MDS, or whether MDS is viewed as the succes-
sor to PMS, all of which relationships would be applica-
ble to the present case. This would be true regardless of
the fact that MDS is,-not named as a respondent in this
proceeding. NLRB v. Master Slack, 618 F.2d 6, 8 (6th
Cir. 1980); Teckwal Corp., 263 NLRB 892 (1982); Custom
Mfg. Co., 259 NLRB 614 (1981). Moreover, by reason of
the August 30, 1983 letter, Respondents are estopped
from now contending that MDS rather than PMS is the
employer or joint employer of the employees at Mar Del
Plata.
As the Union was the lawfully designated and recog-
nized collective-bargaining representative of Respond-
ents' employees in an appropriate unit , and Respondents'
actions on March 11 were discriminatory and unlawful,
it follows that Respondents violated Section 8(a)(1) and
(5) of the Act by withdrawing recognition from the
Union, and cutting off contract negotiations . Jerr-Dan
Corp., supra, 237 NLRB 302; Phelps Cement Products,
supra, 257 NLRB 19; Lyon & Ryan Ford, supra, 246
NLRB at 4. 19 I also fmd that Respondents violated Sec-
is If I had not found that Respondents initially recognized the Union,
I would nevertheless find that a finding of an 8(a)(5) violation and reme-
dial bargaining order would still be warranted under the principles of
NLRB Y. Gissel Packing Co , 395 U S 575, 613-615 (1969). The elements
of a Gissel violation are present ' Nearly all the unit employees signed
union authorization cards Respondents ' massive and flagrant unfair labor
practices, including the discriminatory discharge of every union adherent,
constitutes the kind of conduct which is likely to destroy the conditions
for a free and fair choice in an election Compare, Marchese Metal, 270
NLRB 293 (1984). Assuming , arguendo, that it were necessary for me to
make a finding for Gissel purpose that the Union enjoyed majority status
tion 8(a)(5) by actually or ostensibly contracting out unit
work without prior notice to the Union and without af-
fording the Union an opportunity to meet and bargain
concerning such actions and the effects thereof. Syufy
Enterprises, supra, 220 NLRB at 741.
CONCLUSIONS OF LAW
1. Mar Del Plata and PMS are each employers en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and it would effectuate the poli-
cies of the Act for the Board to assert its jurisdiction in
this case.
2. PMS and Mar Del Plata were at all times material
and are joint employers of the service employees at Mar
Del Plata's Miami Beach condominium.
3. MDS and PMS together constitute a single employ-
er under the Act.
4. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
5. All,service employees employed by Respondents at
Mar Del Plata's Miami Beach, Florida facility, excluding
all office clerical employees, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
6. At all times material, the Union has been and is, the
exclusive collective-bargaining representative of Re-
spondents' employees in the unit described above.
7. By failing and refusing to bargain in good faith with
the Union as the representative of the employees in the
appropriate unit, Respondents have engaged in, and are
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
8. By discriminating in regard to the tenure of employ-
ment of Rudy Garcia, Jose Veliz, Rafael Leyva, Luis
Leiva, Robert Hibbs, Jorge Del Vecchio, Manuel Gon-
zalez, Gilberto Rodriguez, Francisco Enrique, Antonio
Leyva, Dean Duncan, Alberto Perez, and Juan Ramon
Gonzalez, thereby discouraging membership in the
Union, Mar Del Plata, with respect to Garcia, and both
Respondents with respect to the other named employees,
have engaged in and are engaging in, unfair labor prac-
tices within the meaning of Section 8(a)(3) of the Act.
9. By interfering with, restraining, and coercing their
employees in the exercise of the rights guaranteed in
Section 7 of the Act, Respondents have engaged in, and
are engaging in, unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
at the time the order issued in this case, I would so fmd. The discnmma-
tees are, under the Act, still employees of Respondents. Excluding securi-
ty guard Vehz, the deceased Rafael Leyva, and Perez, whose card was
not authenticated, there remain 10 unit employees who signed valid cards
and are entitled to reinstatement to unit positions . Pursuant to the Gener-
al Counsel's subpoena , Respondents produced records which indicated
eight employees holding unit positions at the time of the hearing . There-
fore, the Union is still both in fact and law the majority representative
MAR DEL PLATA CONDOMINIUM 1027
THE REMEDY
Having found, that Respondents have committed viola-
tions of Section 8(a)(1), (3), and (5) of the Act, I shall
recommend that they be required to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. In this regard it is nec-
essary to address certain statements in the remedy sec-
tion of the General Counsel's brief. These statements are
inconsistent with the allegations of the complaint, the
evidence adduced in this proceeding, and the arguments
of the General Counsel with respect to the merits of the
case . They also tend to indicate a lack of appreciation of
the legal significance of the evidence, and a lack of fa-
miliarity with certain principles of labor law.
The General Counsel states that the discriminatees
should be paid in the manner set forth in Transmarine
Navigation Corp., 170 NLRB 389 (1968). The General
Counsel further, states that: "(In view of the evidence ad-
duced at the hearing, the General Counsel no longer
seeks an order requiring Respondents to reinstate their
operations as they existed as of March 9, 1983. Nor does
the General Counsel contend that Respondents had no
obligation to bargain about the decision to subcontract
unit work. The status of Jose Veliz as a unit employee is
unclear, thus, whether he is entitled to backpay, as a
result of Respondents' 8(a)(5) and (3) violations should
be left to the compliance stage.)"
Transmarine Navigation provides a remedy for cases in
which an employer, for lawful economic reasons and
without legal obligation to bargain over its decision, ter-
minates all or part of its operations, thereby causing loss
of employment for its employees, but violates Section
8(a)(5) by failing to bargain with the union representative
concerning the effects of its decision on the employees.
Transmarine Navigation has nothing to do with the
present case.20 Here, Respondents violated Section
8(a)(3) by discriminatorily discharging the 13 union ad-
herents. Therefore, the employees are entitled to the
conventional remedies of unconditional reinstatement and
full backpay. It is difficult to understand how the Gener-
al Counsel can contend, and correctly so, that Respond-
ents, disciminatorily terminated most of their employees
under the guise of a subcontracting arrangement with a
firm which in fact comprises a single 'employer with
PMS, and yet treat the case for remedy purposes as one
involving an economic decision which is not even sub-
ject to mandatory bargaining. Indeed, even if Respond-
ents lawfully decided for nondiscriminatory reasons
(which they did not), to contract out unit work, their de-
cision, and not merely the effects of that decision, would
be a mandatory subject of bargaining because the deci-
sion involved "the replacement of employees in the exist-
ing bargaining unit with 'those of an independent contrac-
tor to do the same work under similar conditions of em-
ployment." Fibreboard Paper Products Co. v. NLRB, 379
U.S. 203, 203-215 (1974). There ,Fibreboard, rather than
First National Maintenance Corp. v. NLRB, 452 U.S. 666
(1981), would govern. See also Whitehead Bros., 263
20 The General Counsel also cites C & E Distributing, 264 NLRB 525
(1982). That is an unreported summary judgment case, and therefore has
no precedential value
NLRB . $95,, 898-899 (1982). In the present case, Re-
spondents actually or ostensibly contracted out unit
work for discriminatory and unlawful reasons. There-
fore, the appropriate remedy should include restoration
of the operation as it existed before March 11. Syufy En-
terprises, supra, 220 NLRB at 741. As for security guard
Veliz, his right to reinstatement and backpay as a discri-
minatorily discharged employee is not dependent on
whether he is properly included in the appropriate bar-
gaining unit . Arlington Hotel Co., 127 NLRB 736, 737
(1960); see also NLRB v. White Motor Corp., 404 F.2d
1100, 1103 (6th Cir. 1968); Geary Ford, 261 @4LRl3 1149,
1151-1152 (1982). Veliz had a statutorily protected right
to join the Union, Respondents discriminated against him
for exercising that right and, therefore, he is entitled to
the usual remedies.
Therefore, I shall recommend that Respondents be or-
dered to restore their service operation as it existed until
March 11, and offer the named discriminatees immediate
and full reinstatement to their former jobs or, if they no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of
earnings and benefits that they may have suffered from
the time of their discharge to the date of Respondents'
offer of reinstatement. I shall also recommend that Re-
spondents be ordered to remove' from their records any
reference to their unlawful discharges, to give each of
them written notice of such removal and to inform them
that Respondents' unlawful conduct, will not be used as a
basis for future personnel actions; against them. See Ster-
ling Sugars, 261 NLRB 472 (1982). Backpay shall be
computed in accordance with the formula approved, in F.
W. Woolworth Co., 90 NLRB 289, (1950), with interest
computed in the manner and amount prescribed in Flori-
da Steel Corp., 231 NLRB 651 (1977).21 It is also recom-
mended that Respondents be required to preserve and
make available to the Board, or its agents, on request,
payroll and other records to facilitate the computation of
backpay due. I shall further recommend that Respond-
ents be ordered to recognize and, on request, bargain
with the Union as the exclusive bargaining representative
of the employees in the unit found appropriate herein, to
embody any understanding reached in a signed agree-
ment, to furnish the Union with a complete and accurate
list of the names, job classifications, dates of hire, wage
rates, and total annual income or hours worked of all
service personnel employed at Mar Del Plata since Feb-
ruary 25, 1983, and to post appropriate notices in English
and Spanish.
I further find that the unfair labor practices in this
case, which include flagrant and 'serious violations of
three sections of the Act which were directed and com-
mitted at the highest levels of management, demonstrate
that Respondents have a general disregard or hostility to
the Act. Therefore, I am recommending that Respond-
ents be ordered to cease and desist from infringing in, any
manner on the rights guaranteed'in Section 7 of the Act.
21 See generally Isis Plumbing Co , 138 NLRB 716, 717-721 (11962).
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed22
ORDER
The Respondents, Mar Del Plata Condominium Asso-
ciation , Inc. and Property Management Services Corpo-
ration, d/b/a PMS Corporation , joint employers, Miami
Beach, Florida , their officers , agents, successors , and as-
signs, including Miami Domestic Services , Inc., shall
1. Cease and desist from
(a) Discouraging membership in Hotel , Motel , Restau-
rant and Hi-Rise Employees and Bartenders Union,
Local 355, Hotel and Restaurant Employees ' and Bar-
tenders' International Union, AFL-CIO, or any other
labor organization, by discriminatorily terminating em-
ployees, subcontracting work, or in any other manner
discriminating against them with regard to their hire or
tenure of employment or any term or condition of em-
ployment.
(b) Interrogating employees about their union attitude
or activities or those of their fellow employees.
(c) Threatening employees with loss of employment if
they join or support the Union.
(d) Threatening to bribe or destroy the Union.
(e) Promising benefits in order to induce employees
not to support the Union.
(f) Failing or refusing to recognize and bargain collec-
tively in good faith with the Union as the exclusive rep-
resentative or their employees in the above -described ap-
propriate unit; unilaterally subcontracting unit work or
otherwise changing the wages, hours, and other terms or
conditions of employment of the unit employees without
prior notice to the Union and without affording the
Union an opportunity ' to meet and bargain concerning
such matters as such representative ; and failing or refus-
ing to furnish the Union with requested information
which is proper and relevant to the Union's performance
of its function as bargaining representative.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Rudy Garcia, Jose Veliz, Luis Leiva, Robert
Hibb, Jorge Del Vecchio , Manuel Gonzalez, Gilberto
Rodriguez , Francisco Enrique, Antonio Leyva, Dean
Duncan , Alberto Perez, and Juan Ramon Gonzalez, im-
mediate and full reinstatement to their former jobs or, if
such jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them and
the estate of Rafael Leyva whole for losses they suffered
by reason of the discrimination against them , as set forth
in the remedy section of this decision.
22 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec . 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(b) Remove from their files any reference to the dis-
charge of the above -named employees , and notify them
in writing that this has been done and that evidence of
the unlawful discharges will 'not be used as a basis for
future personnel actions against them.
(c) Reinstate their service operation as it existed until
March 11 , 1983, at Mar Del Plata 's facility in Miami
Beach , Florida.
(d) Recognize and, on request , bargain collectively
with the above-named Union as the exclusive representa-
tive of all employees in the appropriate unit described
above, with regard to rates of pay, hours of employment,
and other terms and conditions of employment and, if an
understanding is reached , embody such understanding in
a signed agreement.
(e) Promptly furnish to the Union a complete and ac-
curate list of the names, job classifications , dates of hire,
wage rates, and total annual income or hours worked of
all service personnel employed at Mar Del Plata 's Miami
Beach facility since February 25, 1987.
(f) Preserve and, on request , make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due.
(g) Post at Mar Del Plata's Miami Beach facility and
at PMS ' Miami office, the attached notice marked "Ap-
pendix."23 Copies of said notice in English and in Span-
ish, on forms provided by the Regional Director for
Region 12, after being signed by Respondents' authorized
representatives , shall be posted by Respondents immedi-
ately on receipt and maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted . Reasonable steps
shall be taken by Respondents to ensure that said notices
are not altered, defaced, or covered by any other materi-
al.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondents
have taken to comply.
22 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discourage membership in Hotel, Motel,
Restaurant and Hi-Rise Employees and Bartenders
Union, Local 355, Hotel and Restaurant Employees' and
Bartenders' International Union, AFL-CIO, or any other
MAR DEL PLATA CONDOMINIUM 1029
labor organization, by discriminatorily terminating .em-
ployees, subcontracting work, or in any other manner
discriminating against them with regard to their hire or
tenure of employment or any term or condition of em-
ployment.
WE WILL NOT interrogate you about your union atti-
tude or activities or those of your fellow employees.
WE WILL NOT threaten you with loss of employment if
you join or support Local 355.
WE WILL NOT threaten to bribe or destroy Local 355.
WE WILL NOT promise benefits in order to induce you
not to support Local 355.
WE WILL NOT fail or refuse to recognize and bargain
collectively in good faith with Local 355 as the exclusive
representative of our employees in the following appro-
priate unit:
All service employees employed by us and/or
Miami Domestic Services, Inc. at, Mar Del Plata
Condominium Association's Miami, Beach„ Florida,
facility, excluding all office clerical employees,
guards and supervisors as defined in the Act.
WE WILL NOT unilaterally subcontract unit work or
otherwise change the wages, hours, and other terms or
conditions of employment of the unit employees without
prior notice to Local 355 and without affording Local
355 an opportunity to meet and bargain concerning such
matters as such representative.
WE WILL NOT fail or refuse to furnish Local 355 with
requested information which is proper and relevant to
Local 355s performance of its function as bargaining
representative.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of your right to
engage in union or concerted activities, or to refrain
therefrom.
WE WILL offer, Rudy Garcia, Jose Veliz, Luis Leiva,
Robert Hibbs, Jorge Del Vecchio, Manuel Gonzalez,
Gilberto Rodriguez, Francisco Enrique, Antonio Leyva,
Dean Duncan, Alberto Perez, and Juan Ramon Gonzalez
immediate and full reinstatement to their former jobs or,
if such jobs no longer exist, to substantially equivalent
positions , without prejudice to their seniority or other
rights and privileges previously enjoyed, and make them
and the estate of Rafael Leyva whole for losses they'suf-
fered by reason of the discrimination against them, with
interest.
WE WILL remove from their` files any reference to the
discharges of the above-named employees, and notify
them in writing this has been done and that evidence of
the unlawful discharges will not be used as a basis for
future personnel actions against them.
WE WILL reinstate our service operation as it existed
until March 11, 1983, at Mar Del Plata's facility in
Miami Beach, Florida.
WE WILL recognize and, on request, bargain collec-
tively with Local 355 as the exclusive representative of
all employees in the appropriate unit described above,
with regard to rates of pay, hours of employment, and
other terms and conditions of employment, and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
WE WILL promptly furnish to Local 355 a complete
and accurate list of the names, job classifications, dates of
hire, wage rates, and total annual income or hours
worked of all service personnel employed at Mar Del
Plata's Miami Beach facility since February 25, 1983.
MAR DELPLATA CONDOMINIUM Assoc[A-
TION, INC.
'PROPERTY MANAGEMENT SERVICES COR-
PORATION, D/B/A PMS CORPORATION